The federal government may sue South Dakota over the state's recently enacted secret ballot right.
Negotiations broke down this month between the National Labor Relations Board and four states, including South Dakota, that recently passed laws forbidding the use of non-secret union elections.
South Dakota's took the form of a constitutional amendment, Amendment K, approved by 79 percent of voters in the November election.
The NLRB argues that federal law -- the 1935 National Labor Relations Act -- gives workers the right to try to unionize through a public election by signing their names to cards. Employers can either accept the union or call for a secret ballot election.
A proposed federal law, the Employee Free Choice Act, would force employers to recognize a union if more than 50 percent of employees signed a card calling for a union to be formed -- a prospect that Amendment K, which guarantees the right to a secret ballot, was designed to circumvent.
The Employee Free Choice Act was last introduced in Congress in 2009, and, as a Democrat-backed piece of legislation, is not expected to pass the Republican-controlled House of Representatives.
South Dakota Attorney General Marty Jackley and his counterparts in Arizona, South Carolina and Utah have been negotiating with the NLRB since January, when the NLRB first threatened to sue. Jackley said those negotiations broke down earlier this month when the attorneys general refused to sign a confidentiality agreement.
In breaking off negotiations, Jackley also refused the NLRB's request to declare Amendment K unconstitutional.
"They wanted us, as attorneys general, to basically declare our state constitutional amendments unconstitutional and pre-empted by federal law," Jackley said.
Jackley said he believes Amendment K doesn't violate the National Labor Relations Act, though he said the Employee Free Choice Act might pose such a conflict if it were to pass.
"We told them that given the existing federal law, we do not believe that a state constitutional amendment guaranteeing the fundamental right to a secret ballot is in violation of a federal law," Jackley said.
A NLRB spokesman said the board is considering its options.
The labor board threatened such a lawsuit in January before entering into negotiations with Jackley and the other attorneys general.
Jackley said he is prepared to defend Amendment K in court if challenged.
Contact David Montgomery at 394-8329 or firstname.lastname@example.org