There’s an effort under way to place EFCA-neutralizing referenda on the ballots of at least five states. The initiatives, if passed, would amend the respective states’ constitutions to guarantee secret ballot votes for authorizations of employee representatives.
No doubt unions would immediately challenge any measure that passes on the basis of Garmon-style federal preemption. Where a state law is in conflict with a federal law (like EFCA) or where Congress intended the federal law to “occupy the field,” the state law will be preempted to the extent it frustrates the federal scheme. The unions will argue that the state secret ballot requirements would frustrate EFCA’s card check scheme and interfere with rights protected by the federal law (i.e., to organize, form or join a union by means of card check certification).
Proponents of the state initiatives will counter that the Supreme Court usually is reluctant to infer preemption (although it hasn’t seemed very reluctant in the context of labor law). The argument will be that the state laws fall into one of the myriad exceptions to federal preemption — such as the “compelling local interest” exception (the language of the initiatives recite the fundamental interest in voting by secret ballot. Unions will claim such interest is not peculiar to the locality. And on it goes).
There are other state initiatives responsive to EFCA percolating throughout the country. But as mentioned yesterday, they all may be outflanked by the other major labor-related bills that could pass this year.
That’s not to say the initiatives aren’t good ideas. But if EFCA opponents get baited into directing all of their firepower solely on card check, they’ll end up losers. Big time.