Arizona, Arkansas, Missouri, Utah, Nevada, and Georgia have all begun the process of crafting state constitutional amendments to require secret ballot elections for fear that the Employee Free Choice Act (EFCA) will pass Congress and strip Americans their right to vote whether they want to be unionized. These initiatives are backed by small businesses and entrepreneurs – who believe they are the sitting ducks for unions when EFCA passes. The Missouri amendments states:
The right of individuals to vote by secret ballot is fundamental. Where state or federal law requires elections for public office or public votes on initiatives or referenda, or designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed.
Clinton Bolick of the Goldwater Institute, who is the author of the amendment, said that even if EFCA becomes law, states can pass an amendment protecting the secret ballot that would trump the federal law that does away with secret ballots. He said that the U.S. Supreme Court has consistently held that states can grant such additional individual rights. “The federal Constitution is a floor, not a ceiling for individual rights. The right to a secret ballot is very widely recognized.” For more click here.
On the flip side, according to Workplace Prof Blog
To the extent that this initiative is targeting union elections, it is without a doubt more of a PR move than anything else. Although it could have teeth under state labor laws (to the extent they exist), it is a waste of ink in the private sector. The NLBR’s jurisdiction over representational issues in the private sector is given more deference than anything else the Board does, and NLRA preemption clearly applies. But the initiative is obviously more about the political battle over EFCA, and I have little doubt that it will be the last of its kind.
This will certainly have interesting developments over the next several months, and I plan on bringing you all of the details as they occur.