NLRB Sues to Prevent New York’s Substitute Labor Board

The National Labor Relations Board sued New York over its recently passed law that empowers the state’s labor board to step in for the NLRB when it fails to assert jurisdiction—and certify private sector unions with no federal involvement.

Why it matters: If the Board successfully blocks the New York law, it may foreclose similar state laws and avoid a broader—and growing—state patchwork approach to labor law.

Catching up:

• The NLRB has been without a quorum since January, leaving it unable to perform many of its key functions, including final adjudication of labor disputes and certification of union elections.

• In response, New York recently enacted a law empowering its own state labor board (which usually only applies to state public employees) to perform the NLRB’s usual duties.

• California recently passed a similar law that awaits Gov. Newsom (D)’s signature, while Massachusetts considers similar legislation.

The lawsuit: The Board’s lawsuit seeks to invalidate the New York law entirely, on the grounds that it is preempted by the National Labor Relations Act.

• The NLRA and the NLRB have historically had broad preemption authority, meaning that any state or local law falling within the NLRB’s jurisdiction is preempted and rendered invalid.

• Given that the New York law by design falls squarely within the NLRB’s jurisdiction, conventional wisdom would hold that the Board’s lawsuit will be successful. However, the law’s narrow trigger—limiting its effect to periods when the NLRB is not functioning—could provide a loophole to escape the legal challenge.

The bigger picture:

• It could be months, if not years, before the lawsuit is resolved. In the absence of a preliminary injunction temporarily setting aside the law, the New York law will remain in effect.

• Two nominees for the Board are pending in the Senate; if confirmed—which could take weeks if not months—they would restore the NLRB’s quorum and could render these state laws moot.

• In the meantime, there is plenty of time for private-sector unions to be certified by New York’s newly-empowered labor board—what happens to such unions if and when the law is invalidated is unclear.