New York Leads Charge to Fill NLRB Void, Teeing Up Labor Fights

A novel New York bill allowing the state to oversee private union disputes while the NLRB lacks a quorum heralds legal battles over a decades-old doctrine that reserves labor-relations authority to the federal government.

New York lawmakers this week backed an increasingly popular argument that the federal National Labor Relations Board’s exclusive jurisdiction over labor matters doesn’t apply after President Donald Trump fired NLRB member Gwynne Wilcox and stripped the board of the quorum it needs to fully function. The NLRB’s power stems from the US Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon, which held that the National Labor Relations Act preempts state or local labor regulation.

“This is uncharted territory,” Harvard Law School professor Benjamin Sachs said. “If the federal government is going to shut down, then states have to step into the gap. The answer can’t be, ‘Well, we’re not going to do anything because in the future, the president will solve the quorum problem.’”

If signed by Gov. Kathy Hochul (D), New York’s bill and similar proposals in California and Massachusetts would prompt a wave of litigation forcing federal courts to clarify whether Garmon requires a functional NLRB, labor law scholars predicted. And as Trump inches closer to filling the NLRB’s three vacancies, the resumption of a quorum could further complicate the balance of power between states and the NLRB.

Regardless of how Garmon preemption fares in courts while the board remains paralyzed, law professors say it’s time to rethink the role of states in labor regulation.

State Action

A largely incapacitated NLRB has reinvigorated some states to step up to the plate. While the board can still process unfair labor practice cases and union election petitions through delegated authority, it cannot issue decisions.

“Workers have no place to go when their rights to organize or collective bargain are violated,” said California State Assemblywoman Tina McKinnor (D), lead author of the California bill.

She noted that employers have questioned the validity of NLRB regional director decisions absent a quorum. “California will never let a federal power vacuum be used as a union busting strategy.”

Gali Racabi, an assistant professor at Cornell Law School, said at least 19 states have laws on the books dealing with private-sector labor relations for workers who fall outside the NLRA, and that the weakening of the NLRB has unions and labor lawyers looking to states for leadership.

“We’re going to see more and more experimentation with trying to empower states into governing labor relations,” Racabi said.

Some labor advocates in red states have expressed concern that a state-forward approach could mean a less employee-friendly environment for them, NYU Wagner Labor Center Director Terri Gerstein said.

Still, she said, progressive state lawmakers should be “innovative and aggressive about protecting workers’ rights and filling in the void that the federal government is increasingly creating.”

‘Law of the Jungle’

Though the three bills all have slightly different provisions for when state jurisdiction kicks in, all are premised on the argument that federal preemption requires a functional and reliable NLRB to take effect.

It’s difficult in practice to say when the NLRB is so incapacitated that Garmon preemption would cease to apply, Gerstein said, especially as the Trump administration continues to chip away at the administrative state.

“It feels like it’s more of a continuum or gray area than like an on/off. The capacity won’t be zero, but it won’t be adequate,” Gerstein said. “That’s sort of the challenge of thinking through the preemption analysis in these situations.”

NYU law professor Samuel Estreicher said a court would need to rule that Garmon preemption has ceased in order for states to take up private labor cases. Even if they do, having a state law “trigger” when preemption ceases or the NLRB loses a quorum is “not a workable proposition” due to the many reasons the NLRB could go without a quorum—including, for instance, a delay in Senate confirmation for nominees.

Though he said the bills are unlikely to be effectual, he said, they “may have the effect of prodding the president into filling out” the board’s three vacancies.

Nominations are “imminent,” NLRB Chair Marvin Kaplan said June 10. But if the board continues without a quorum, that strengthens the argument that Garmon preemption should be reconsidered, Fordham University School of Law professor James Brudney said.

“An extended period in which the board is nonfunctional,” Brudney said, “should not mean that individuals are reduced to the law of the jungle if states have passed suitable legislation.”

Practical Implications

If the bills are signed it to law, it will set off court battles as employers and unions that lose state-level disputes seek to challenge those rulings in federal court, labor law observers said.

Already the California Chamber of Commerce has suggested the California bill, AB 288, is illegal due to preemption in a June 12 letter to the state senate.

“The present lack of a quorum at the NLRB and hypothetical scenarios about what may happen does not allow AB 288 to escape preemption,” the group’s senior policy adviser Ashley Hoffman wrote.

Proponents of the state-level efforts may find a path around Garmon preemption in the US Court of Appeals for the Fourth Circuit’s recent ruling in National Association of Immigration Judges v. Owen.

There, the court ruled that district courts may have jurisdiction over claims otherwise reserved for the Merit Systems Protection Board if the board—which similarly lacks a quorum—is no longer “strong and independent.” Sachs said an analogous argument holds for the NLRB.

“What the Fourth Circuit case says is that if you get rid of the agency to whom you are otherwise deferring, it no longer makes sense to defer to that agency,” Sachs said.