State Labor Laws Continue to Proliferate

Alabama recently joined Georgia and Tennessee in enacting a law restricting voluntary recognition of unions. 

Secret ballot elections required in union campaigns: The Alabama law, SB 231, prohibits employers from receiving state economic incentives and funds if the employer:

• Voluntarily recognizes a union before a secret ballot election is held;
• Voluntarily provides unions with employee’s personal contact information; or
• Requires any subcontractor to do the same. 

The legislation – and similar laws in Georgia and Tennessee – are a direct response to increased organizing campaigns in southern states, perceived NLRB overreach, and contrasting legislation recently passed in blue states prohibiting captive audience meetings or repealing right-to-work laws.

Indeed, workers at an Alabama Mercedes plant are voting as we speak on whether to unionize with UAW, with results expected before the end of the weekend. A victory would be the latest historic triumph for both the UAW and union interests in the South.

What about the NLRA and preemption? Under the NLRA, employers are entitled to voluntarily recognize unions and voluntarily provide unions with employee personal contact information – actions prohibited under the new Alabama law, setting up a clear and direct conflict. Because the NLRA has historically preempted any state or local laws creating such conflicts, the Alabama law could soon find itself in legal jeopardy. 

Reticence of the Board to challenge the growing number of state laws: The current Board has, somewhat surprisingly, not yet challenged similar laws passed in Georgia and Tennessee. This reticence could be explained by the fact that invalidating such laws on the basis of preemption could lead to similar results for the contrasting blue state pro-union laws. The Board may wish to preserve such laws at the cost of preemption and live with growing anti-union legislation in red states. 

Legal uncertainties create challenges for multi-jurisdictional employers who now must try to comply with differing state requirements plus the federal NLRA. As has been the case with many other issue areas, the last decade has seen federal laws and preemption take a back seat to the growing state patchwork.