Washington State has enacted a new labor law that authorizes its state labor agency to exercise powers that closely resemble those of the National Labor Relations Board (NLRB) when the federal agency is unable or unwilling to act. Supporters frame the law as a response to chronic underfunding of the NLRB, case-processing delays, and political volatility. But viewed more skeptically, the statute looks less like a “gap-filler” and more like a direct challenge to long‑settled federal preemption doctrines that have historically foreclosed this kind of state intervention.
At its core, the National Labor Relations Act (NLRA) was designed to create a single, uniform national system governing private‑sector labor relations. For decades, the Supreme Court has reinforced that structure through two powerful preemption doctrines—Garmon preemption, which bars state regulation of conduct arguably protected or prohibited by the NLRA, and Machinists preemption, which prohibits states from regulating areas Congress intended to leave to the free play of economic forces.
Washington’s new approach arguably collides with both.
The state’s theory is that it should be able to step in when the NLRB declines jurisdiction, fails to act quickly, or is otherwise incapacitated. But that argument has been raised before—and usually rejected.
California, for example, has repeatedly tested the boundaries of state authority over labor relations, only to see major initiatives stalled or narrowed after federal court challenges. More recently, New Jersey and New York have advanced laws attempting to regulate union‑related activity in ways that drew sharp objections from the NLRB, which assert that states may not create parallel enforcement regimes for NLRA-covered conduct.
The NLRB has consistently taken the position that federal labor law leaves no room for “backup” state labor boards. When the Board declines to exercise jurisdiction, it has long argued that Congress intended non‑regulation, not substitution by the states. Federal courts have largely agreed, emphasizing that allowing states to step in would undermine national uniformity and invite a patchwork of labor rules.
Washington’s law is thus less a novel solution than the latest iteration of a recurring experiment: can a state do indirectly what it cannot do directly under the NLRA? History suggests the answer is no. The statute will almost certainly face preemption challenges, and employers, unions, and workers may once again find themselves in prolonged litigation over whether a state labor agency can assert authority in an area Congress reserved to the federal government.
In the end, using state law to test federal preemption is a risky—and likely short‑lived—strategy, one that courts have repeatedly been reluctant to bless.
About the author
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
