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Attorney General Jason R. Ravnsborg

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South Dakota Joins Challenge to National Labor Relations Board Action


FOR IMMEDIATE RELEASE :    Monday, November 25, 2013
CONTACT:  Sara Rabern (605)773-3215 

South Dakota Joins Challenge to National Labor Relations Board Action

PIERRE, S.D  - Attorney General Marty Jackley announces that South Dakota has joined 16 other states as part of a Multi-State Amicus Curiae or “friend of the Court” in the United States Supreme Court. The amicus brief addresses appointments of members to the National Labor Relations Board’s (NLRB) and the President’s power to fill vacancies that happened during the recess of the Senate. The brief specifically deals with separation of powers, the system of checks and balances with the national government and federalism.

“The Senate has a vital role in preserving and protecting the balance between federal authority and states’ rights,” said Jackley. “The NLRB’s attempt to circumvent our State Constitutional right to a secret ballot demonstrates the importance of Senate oversight.”

South Dakota experienced an attempted overreach of power by the NLRB when the NLRB sought to void South Dakota’s Constitutional protections to a secret ballot supported by 79% of South Dakota’s voters in the 2010 general election. On January 14, 2011, the NLRB via a press release and correspondence delivered to the Attorneys General of South Dakota, Arizona, South Carolina and Utah,  threatened to sue the states over their recently approved state constitutional amendments protecting citizen’s rights to vote by secret ballot. The NLRB claimed the amendments conflict with the federal National labor Relations Act (NLRA).  The NLRB further stated that it had “been authorized to bring a civil action in federal court to seek to invalidate the Amendment[s]” absent the Attorneys General entering into a “stipulation concerning the unconstitutionality of the Amendment[s].”

In a January 27, 2011, joint letter to the NLRB, the Attorneys General including Jackley rejected the NLRB’s demand to stipulate to the unconstitutionality of these amendments.  The Attorneys General noted that under the NLRA, “secret elections are generally the most satisfactory--indeed the preferred--method” of ascertaining whether there exists majority support for a matter. The Attorneys General went on to state that “our constitutional amendments protect the right to cast secret ballots, a right that the NLRB itself is ‘under a duty to preserve.’”
The NLRB sued Arizona as their test case and Arizona prevailed over the NLRB. Consequently, the NLRB has not sued South Dakota over its constitutionality amendment protecting secret ballots.