Congressman Jason Chaffetz wants to curb the power of the National Labor Relations Board by taking away its ability to sue Utah and other states that have adopted laws that require union organizing efforts be done by secret ballot.
On Friday, Chaffetz introduced HR2118, which he said is aimed at bringing the NLRB’s power to file lawsuits in line with most other federal agencies. The latter typically are required to have the U.S. Department of Justice fight their legal battles for them, but only after the ultimate decision to move forward on litigation is made by the U.S. attorney general.
"The problem is the NLRB has extremely broad authority to file lawsuits, and unlike most other federal agencies it actually has the power to sue a state on its own," Chaffetz said. "Deciding whether a state action violates federal law should be made by the DOJ, not a board of union-friendly, politically motivated appointees."
Utah, Arizona, South Carolina and South Dakota all recently amended their constitutions to guarantee workers the right to a secret ballot in union elections.
Business and anti-union groups lobbied for the changes. They were worried that Congress ultimately might enact legislation requiring employers to recognize unions if a majority of workers signed cards signifying they wanted representation. In order to head off that "card check" process, they argued a secret ballot was necessary to protect workers from union intimidation.
The NLRB, however, believes the state amendments conflict with federal law. In January, the agency threatened to sue Utah and the others, contending their amendments conflicted with employee rights laid out in the National Labor Relations Act.
Jim Judd, president of the Utah AFL-CIO, said federal law gives business owners and employers two options. They can recognize a union if a majority of workers sign cards that support unionizing or they can conduct a secret ballot election.
"What Utah’s law does is take away one of those options from business operators," he said. "Employers are required to hold secret ballot elections, even if they don’t want to go through what for many can be a costly process."
Chaffetz, though, said his proposed legislation doesn’t prohibit the federal government from enforcing federal law over conflicting state laws. "But states that choose to have pro-growth, right-to-work policies should not be intimidated and threatened by the NLRB."
Utah Attorney General Mark Shurtleff, who may find himself defending the state against NLRB litigation in federal court, couldn’t be reached for comment Friday.
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However, after the NLRB’s threat of a lawsuit in January, Shurtleff said he believed the state was on solid ground. And he indicated he hoped to coordinate a response with the other three states.
Chaffetz said his bill is co-sponsored by two congressmen from South Carolina. He anticipates that his proposed legislation will be assigned to one or more House committees next week.
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