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January 14, 2011

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Jeff Hirsch

Calvin, I'll try to provide a bit of the labor law perspective. First, the NLRA mandates a duty on employers to bargain with a union "selected" by employees (in constrast, the NLRB can only "certify" a union after an election). The two means of "selection" are a secret-ballot election and signed cards. Although the NLRA doesn't expressly say this, for the last few decades, the only non-election option is when an employer voluntarily recognizes a union with cards signed by a majority of employees (but the employer can always insist on an election). Therefore, these state measures will kick in only where an employer is wiling to voluntarily recognize a union. Given the strength of NLRA preemption, the conflict with the statute seems pretty clear-cut.

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