Does Tennessee's 2011 law guaranteeing secret-ballot union elections conflict with federal labor law?

Subject

Opinion No. 11-54, Selection of exclusive bargaining representative, July 6, 2011

Plain-English summary

Representative G.A. Hardaway asked whether Tennessee's then-new 2011 Public Chapter 502 conflicted with federal labor law. Public Chapter 502 amended Tenn. Code Ann. § 50-1-701 to say that employees and employers in Tennessee "have the right to make such designation by secret ballot" when they choose to designate an exclusive bargaining representative through an election, and that "no alternative means of designation shall be used in this state as convincing evidence of employee majority support" in that circumstance.

The pre-emption concern was that, under the National Labor Relations Act (NLRA), an employer can voluntarily recognize a union based on something other than a secret-ballot election (most commonly authorization cards signed by a majority of employees, called "card check"). The U.S. Supreme Court in Gissel Packing held that the NLRA does not require a secret-ballot election as the only means of selecting an exclusive bargaining representative. So if a Tennessee statute purported to ban card check or other non-election methods outright, it would clash with the federal scheme and be preempted under the Supremacy Clause.

The AG read Public Chapter 502 narrowly, and that narrow reading is what saved it. The statute says nothing about card check or other non-election methods. It only addresses what happens when the parties choose to hold an election: in that case, it must be a secret-ballot election, and alternative methods cannot substitute for the ballot result. Card check and other non-election routes to representation remain available. The Tennessee law layers a procedural rule on top of the federal regime; it does not block any path the federal law permits. The AG also concluded the bill does not appear to violate the United States Constitution, though the opinion gives no detailed constitutional analysis beyond that conclusion.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Federal labor law remains in flux. The National Labor Relations Board's approach to employer recognition, card-check majority status, and "bargaining orders" has shifted across administrations. Anyone evaluating whether a Tennessee employer can or must recognize a union, or under what procedure, should consult current NLRB law and a labor lawyer rather than rely on this 2011 opinion's framework.

Background and statutory framework

The Tennessee statute. Section (1)(a) of 2011 Tennessee Public Chapter No. 502 reads: "All employees and employers in this state, when seeking to designate an exclusive bargaining representative through an election permitted by state or federal law, have the right to make such designation by secret ballot, when secret ballot is permitted by such law; under such circumstance, no alternative means of designation shall be used in this state as convincing evidence of employee majority support."

The federal frame: NLRA § 9 (29 U.S.C. § 159). Section 9 of the NLRA establishes the procedure for designating a labor organization as the exclusive bargaining representative. The statute recognizes secret-ballot elections supervised by the NLRB as the primary route, but in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court held that secret-ballot elections are not the only legally permissible path. Employers can voluntarily recognize a union based on a card-check showing of majority support, and the NLRB can order bargaining in some circumstances without an election.

The preemption framework. Under the Supremacy Clause, a state law is preempted if it conflicts with federal law or if it stands as an obstacle to the accomplishment of Congress's objectives. The AG did not need to reach that question, because the AG read Tennessee's statute as not actually conflicting with federal law in the first place.

Why the AG read the statute narrowly. The text says "when seeking to designate an exclusive bargaining representative through an election." That phrase limits the statute to election scenarios. It does not say "when seeking to designate an exclusive bargaining representative by any means." So if employees and an employer use card check or another non-election method, the Tennessee statute, by its own terms, doesn't apply.

Common questions

Can a Tennessee employer still voluntarily recognize a union without an election?

According to the opinion, yes. The Tennessee statute "does not foreclose the option of selecting an exclusive bargaining representative through means other than secret ballot election when employees or employers seek to designate an exclusive bargaining representative through other means." Card check and similar voluntary-recognition methods remain available.

What changed compared to the prior version of Tenn. Code Ann. § 50-1-701?

The 2011 amendment added the secret-ballot guarantee. Before the amendment, Tennessee law did not have a specific secret-ballot rule on this question. Card check was just as available before as after, but the state was silent about what happens in the election scenario.

Does the secret-ballot rule apply to public employees?

The opinion does not separately address public-sector labor relations. Public Chapter 502 was framed as a generally applicable Tennessee labor law, and parts of it would interact differently with public-sector statutes that have their own bargaining-procedure rules. Anyone in the public-sector context should look at the controlling chapter (for example, the now-amended Education Professional Negotiations Act / Professional Educators Collaborative Conferencing Act) rather than just this opinion.

Did this opinion bless the constitutionality of the law overall?

In a one-line conclusion, yes. The AG wrote: "The law does not appear to violate any provision of the United States Constitution." The opinion does not analyze potential challenges under the First Amendment, equal protection, or other clauses, so the conclusion is thin. The opinion is a defensive prediction, not an in-depth constitutional analysis.

How does this interact with the NLRB's Cemex and other recognition doctrines?

The opinion predates current NLRB doctrine on voluntary recognition and bargaining orders. Anyone asking how the secret-ballot rule operates against an Cemex-style order or against a current NLRB enforcement action should consult contemporary labor counsel; the 2011 opinion did not address scenarios that did not yet exist.

Citations

• 2011 Tenn. Pub. Ch. 502 (amending Tenn. Code Ann. § 50-1-701)
• 29 U.S.C. §§ 141 et seq. (NLRA); 29 U.S.C. § 159
• N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-054.pdf

Original opinion text

July 6, 2011
Opinion No. 11-54
Selection of exclusive bargaining representative

QUESTIONS

1. Do any provisions in 2011 Tennessee Public Chapter No. 502 conflict with federal law, including, but not limited to, the National Labor Relations Act of 1935 (NLRA), as amended, and any rules, regulations or guidelines promulgated thereto and, if so, are any provisions in Public Chapter No. 502 thereby pre-empted by federal law pursuant to the Supremacy Clause of the United States Constitution?

2. Does the language in 2011 Tennessee Public Chapter No. 502, which would amend Tenn. Code Ann. § 50-1-701, violate the United States Constitution, and all rights and protections guaranteed herein?

OPINIONS

1. No, the bill does not conflict with federal law and is not pre-empted by federal law.

2. No, the bill does not appear to violate the United States Constitution.

ANALYSIS

1. Section (1)(a) of 2011 Tennessee Public Chapter No. 502 provides as follows:

All employees and employers in this state, when seeking to designate an exclusive bargaining representative through an election permitted by state or federal law, have the right to make such designation by secret ballot, when secret ballot is permitted by such law; under such circumstance, no alternative means of designation shall be used in this state as convincing evidence of employee majority support.

Concern has been raised that the above subsection of 2011 Tennessee Public Chapter No. 502 may conflict with federal labor law. However, there is no conflict. The potential for a pre-emption conflict with federal law stems from the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. § 141, et seq. The NLRA recognizes secret ballot elections as one means which can be used by labor organizations to demonstrate that they have majority support to establish the organization as the exclusive bargaining representative for the purposes of collective bargaining with an employer. See 29 U.S.C. § 159. In N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), the United States Supreme Court held that the NLRA does not require a secret ballot election as the only method for the selection of an exclusive bargaining representative. Thus, should a state attempt to restrict this federal right, a pre-emption conflict would arise.

The above law does not establish secret ballot elections as the only means by which a labor organization may select an exclusive bargaining representative for the purposes of collective bargaining. The law states that should employees and employers seek to designate an exclusive bargaining representative through an election, they have the right to a secret ballot election; if a secret ballot election is chosen, no alternative means of designation shall be used. The law does not foreclose the option of selecting an exclusive bargaining representative through means other than secret ballot election when employees or employers seek to designate an exclusive bargaining representative through other means.

2. The law does not appear to violate any provision of the United States Constitution.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

MELISSA BRODHAG
Assistant Attorney General

Requested by:
The Honorable G.A. Hardaway
State Representative
109 War Memorial Building
Nashville, TN 37243-0192