In Tuesday’s election, four states — Arizona, South Carolina, South Dakota, and Utah — approved ballot measures that would guarantee employees the right to secret-ballot voting in union elections. We decided to ask employment law attorneys in each of the four states — all members of the Employers Counsel Network — about the outcome of their state’s ballot initiative.
Proposition 113 overwhelmingly passed Tuesday, amending the Arizona Constitution to make voting by secret ballot in union representation elections a fundamental right. As a practical matter, the measure makes no changes to existing law. It merely reaffirms the National Labor Relations Act (NLRA), which currently provides for secret-ballot voting. Congress, however, may soon vote on the Employee Free Choice Act (EFCA), which could allow a bypass of the secret-ballot vote. Through Proposition 113, Arizona voters made a strong statement about their belief that the right to privacy is a core part of the political process.
Although the initiative passed, employers still must prepare for the possibility of big changes around the corner. It’s possible that EFCA, if it eventually passes, will supersede Arizona’s law with regard to secret-ballot elections. Therefore, employers should maintain positive relations with their employees, share facts, and have an open-door policy with regard to questions about EFCA. Because unions may one day organize in rapid fashion, even before employers know that efforts are under way, employers need to educate their employees before representation campaigns get started, or it may be too late.
South Carolina voters overwhelmingly supported the ballot initiative providing for the right to have a secret ballot in a union election. Approximately 85 percent of Tuesday’s voters approved the measure, which provides that an individual has the right to exercise, decide, and then cast her vote in the privacy of a voting booth. The understanding of this fundamental right, supported by both of South Carolina’s senators, hopefully will send a message to the lame-duck U.S. Congress that the manner in which a person selects her choice for or against a union should not be changed.
South Dakotans reaffirmed their commitment to secret ballots by an 80 percent vote in favor of a new constitutional amendment that addressed all elections, including union elections. Local chambers of commerce and construction and retail groups supported the measure. Opponents included local unions, which pointed out that the South Dakota Constitution already has a provision regarding secrecy for voting. That provision makes clear, however, that union elections must be secret as well.
Jane Pfeifle is editor of South Dakota Employment Law Letter and an attorney in the Rapid City office of Lynn, Jackson, Shultz & Lebrun, P.C.
Utah voters approved an amendment to the Utah Constitution mandating that employee authorization of unions be conducted by secret ballot. Unhappy with the result, a leader of one of the bigger unions in Utah claimed that the amendment conflicts with the National Labor Relations Act and threatened litigation.
However, when cooler heads consider the full impact of the results of the 2010 midterm elections, the aggressive agenda of the current administration should work its way to the center, and rational compromise that advances the interests of all Americans should prevail. For now, we predict that EFCA, the Paycheck Fairness Act, and any compromise measures are distant and dying dreams.
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HR Hero Line is a twice weekly e-zine for human resources and business professionals featuring news and analysis on HR and employment law from members of the Employers Counsel Network and select experts in HR and employment law. HR Hero Line is published by Business & Legal Resources.