NLRB’s Top Lawyer Plans to Sue New York Over State Labor Law (1)

The general counsel’s office for the National Labor Relations Board is preparing to sue to block a New York law asserting state authority over private-sector labor disputes, Acting General Counsel William Cowen told Bloomberg Law.

The state law is a direct attack on the “core jurisdiction” of the NLRB and is preempted under the National Labor Relations Act, he said.

Supporters of the New York measure, which Gov. Kathy Hochul (D) signed Sept. 5, designed it as a response to the NLRB’s lack of a quorum after President Donald Trump fired Democratic member Gwynne Wilcox.

The law also addressed concern that labor unions might have a hard time getting their unfair labor practice charges adjudicated. Similar legislation is pending in California and Massachusetts.

The general counsel’s office is likely to file suit in federal court, perhaps as soon as Friday or possibly early next week, Cowen said in a phone interview Thursday.

“It’s a matter that needs immediate action,” he said. “It’s not a minor incursion. This is a throwdown of significant weight.”

If the NLRB doesn’t defend its federal authority, there’s a “significant risk” that the NLRA will be undermined and a state-by-state patchwork of labor law enforcement will emerge, he added.

The board itself can’t vote to file a lawsuit now because it has only one member, short of the three members needed for a quorum. But the board delegated litigation authority to the general counsel more than a decade ago, Cowen said.

The NLRA gives the labor board authority to oversee union elections and adjudicate unfair labor practice charges involving private-sector employers that conduct interstate commerce. The Supreme Court held in its 1959 decision San Diego Building Trades Council v. Garmon that states are preempted from regulating labor.

But state lawmakers and some legal scholars have argued state regulators aren’t obligated to defer to a federal agency if that agency is incapacitated, such as lacking a quorum.

A US Court of Appeals for the Fourth Circuit ruling in June left open the possibility that the Merit Systems Protection Board might lose its exclusive jurisdiction over certain federal employee disputes while that board lacks a quorum.

Cowen disputed the notion that the NLRB isn’t functional, saying regional directors and the general counsel’s office continue handling much of the agency’s work under their delegated authorities. Only 2% of cases filed with the NLRB end up requiring a board decision, he said.

“The world can grind along very well in the absence of a quorum,” he said. “In all that process, a substantial number of the cases resolve themselves before they ever get to the board.”