In what appears to be an end-run around the National Labor Relations Board (NLRB), legislatures in certain union-friendly states have begun passing bills asserting authority over the union organizing process. Proponents of these measures argue that the NLRB is “underfunded, politically influenced and lacks strong enforcement tools,” thus requiring state intervention.
In New York, a proposal would bring private-sector employees under the scope of the state’s Labor Relations Act except “where the [NLRB] successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by the federal district court established under article three of the United States constitution.”
The state Senate passed its version of the bill on June 10, and the state Assembly passed it by a vote of 128-14 on June 17. The bill will next go to Governor Kathy Hochul, who reportedly plans to review it, and she has until the end of the year to do so.
In California, the Assembly on June 2 passed a bill known as AB 288 that would similarly give the California government authority to take control over union elections under the auspices of the Public Employee Relations Board (PERB), a state agency that administers the “collective bargaining statutes covering employees” in different business sectors, for relief in cases where the NLRB has allegedly not acted quickly enough.
The bill, sponsored by the California Federation of Labor Unions and California Teamsters, passed the Assembly by a vote of 68-2, and it was referred to the Senate labor committee on June 11, which one may presume will refer it for a floor vote in that body.
These measures reflect a growing frustration among labor unions that they no longer have a majority at the NLRB to do their bidding. Back in January, President Trump fired the agency’s general counsel, who prosecutes cases before the Board, and he also dismissed one of the Board’s members. The latter move deprives the NLRB of a quorum, so it cannot issue decisions or develop regulations while that dismissal is being challenged in court or until newly appointed members bring the Board back to a quorum.
Unfortunately for labor-friendly legislators, these proposals will almost certainly be challenged and likely overturned in court. Federal labor law has strong preemption, which prevents states from taking over the NLRB’s responsibilities. Unfortunately, more states are likely to pass these sorts of laws before litigation can demonstrate their incompatibility with federal law.
About the author

Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.