Utah Vote by Secret Ballot, Amendment A (2010)
On January 14 officials of the National Labor Relations Board said the measure, along with similar measures in Arizona, South Carolina and South Dakota, is unconstitutional and that the U.S. plans to invalidate the laws. Specifically, officials argue that the approved measures conflict with federal law and argue the case based on the Supremacy Clause of the United States Constitution.
The current National Labor Relations Act can be read here.
The National Labor Relations Board stated on April 22, 2011 that it will file lawsuits against Arizona and South Dakota over the 2010 voter-approved state constitutional amendments. The NLRB did not file anything at that time, but did plan to do so soon after their announcement. The lawsuit was officially filed against Arizona on May 6, 2011, with South Dakota soon to follow.
Legal challenges will not be filed against Utah and South Carolina yet, if at all, according to the agency's acting general counsel, in order "to conserve limited federal and state agency resources and taxpayer funds."
After facing the legal threats in January, the four attorneys general in South Carolina, Utah, Arizona, and South Dakota, entered into negotiations with the NLRB over the secret ballot initiatives. This occurred after the AG's wrote a letter on January 27, 2011 to the agency saying that they would "vigorously defend" the constitutional changes. However, these negotiations broke down during March 2011 after the AGs declined to sign confidentiality agreements.
NLRB lawsuit legislation
During the week of June 1, 2011, legislation was introduced by U.S. Representative Jason Chaffetz (R-Utah) that aimed to stop the ability of the NLRB from suing states. The bill, HR 2118, specifically states that NLRB can sue individuals and companies, but cannot sue states challenging laws that they say conflict with the NLRA. According to Chaffetz: "H.R. 2118 ensures that states that choose to have pro-growth, right-to-work policies will not be intimidated and threatened by the NLRB. Deciding whether or not a state action violates federal law should be made by the DOJ, not a board of union friendly, politically motivated appointees."
- See also: 2010 ballot measure election results
|Amendment A (Secret Ballot)|
Text of measure
This resolution proposes to amend the Utah Constitution to: include elections under state or federal law for public office, on an initiative or referendum, or to designate or authorize employee representation or individual representation among the elections that are required to be by secret ballot; and make technical changes.
Although the Utah Constitution currently states, "All elections shall be by secret ballot," supporters argued that Amendment A was crucial to protecting against any future changes to that statement. "What is the cost of freedom in this country? What is the price to save something as sacred as a secret ballot?" said Rep. Carl Wimmer.
"Decades ago there was abundant evidence of intimidation in other elections. We haven’t had intimidation in many, many decades in this country because we’ve had secret ballots. But we don’t want that to come back," said Mike Lee, an attorney for the Save Our Secret Ballot movement and Republican candidate for U.S. Senate.
Opponents argued that the proposed measure was rushed through the legislature. Additionally, they argued that lawmakers were simply fearful of a pending federal legislation that could make it easier to form a union.
Utah AFL-CIO president Jim Judd called the amendment "a solution looking for a problem." Judd argued that the state's current constitution worked well. He pointed to development of at least three unions at private companies that formed in the last year and a half. The state constitution, he said, allowed for unionization by majority sign-up with the employer's consent.
Media editorial positions
- The Salt Lake Tribune opposed Amendment A. In an editorial, the board wrote, "We strongly agree that union organizing elections should be by secret ballot and that they should be administered by a neutral third party, the National Labor Relations Board. That’s the way it works today...However, because federal law already provides the secret ballot for union organizing elections, we see no reason to tinker with the Utah Constitution. Further, we do not believe that the Utah Constitution is the proper place to decide labor law. We would urge Utahns, therefore, to vote “against” Constitutional Amendment A."
Path to the ballot
- See also: How the Utah Constitution is amended
|Labor and unions on the ballot in 2010|
According to Section 1, Article XXIII, a two-thirds vote was necessary in the state legislature to place the proposed amendment before the state's voters.
The same initiative was filed in Arizona, Arkansas, Missouri and Nevada. In 2010, legislation also known as the Employee Free Choice Act was pending before the United States Congress that would remove that requirement from federal law.
- Utahns to vote on only two measures (so far)
- Update: Secret ballot inititatives may face legal challenge
- FOX 13 Now,"'Amendment A' secret ballot resolution partisan among Utah legislators," October 12, 2010
- Las Vegas Review-Journal,"November election about more than candidates," September 10, 2010
- Associated Press,"4 states to debate anti-union ballot measure as Congress stalls on 'card check'," August 12, 2010
- State "secret ballot" amendments challenged by NLRB
- Examiner,"Utah voters pass all four constitutional amendments," November 5, 2010
- Utah State Legislature,"HJR 8 full text," accessed January 5, 2010
- Rapid City Journal,"Feds prepare to sue South Dakota over secret ballot amendment," January 14, 2011
- Law360.com, "NLRB To Sue SD, Ariz. Over Union Ballot Laws," April 25, 2011
- The Associated Press, "NLRB will sue Ariz., SD over union laws," April 25, 2011
- East Valley Tribune, "Federal regulators sue Arizona over union amendment," May 6, 2011
- Rapid City Journal, "Feds may sue over secret ballot vote," March 18, 2011
- The Hill, "Chaffetz seeks to end NLRB's ability to sue states," June 6, 2011
- FOX13News,"'Amendment A' secret ballot resolution partisan among Utah legislators," October 11, 2010
- The Salt Lake Tribune,"Amendment backers warn against union coercion," October 11, 2010
- Deseret News,"Lawmakers push to keep union votes secret," October 12, 2010
- The Salt Lake Tribune,"Amendment A," October 13, 2010
State of Utah
Salt Lake City (capital)
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