California and New York Pass Laws Allowing State Public Employment Relations Boards to Hear Unfair Labor Practice Disputes; NLRB Sues

California and New York have recently enacted similar laws that give the states’ respective Public Employment Relations Boards (PERBs) the authority to handle unfair labor practice charges filed by workers and their unions. In both cases, the states acted in response to President Trump’s firing of National Labor Relations Board (NLRB) member Gwynne Wilcox in January. Wilcox’s firing left the NLRB without a quorum, which is required for the NLRB to issue precedential decisions in union-related matters.

New York enacted its law first, with Governor Hochul signing S.8034A

on September 5. Governor Newsom signed California’s AB 288 into law on September 30. In the interim, the NLRB sued to block New York’s law in federal court on September 12.

NLRB Lawsuit Challenges New York’s Law on Preemption Grounds

In its lawsuit, the NLRB argues that state-level resolution of labor disputes is unnecessary, despite its lack of a quorum. It also argues that New York’s law interferes with the NLRB’s exclusive jurisdiction over labor disputes in the private sector, and is therefore preempted by existing federal law. In response, Governor Hochul has stated that the legislation is necessary to protect workers, both due to the current lack of a quorum at the NLRB and the Board’s alleged lack of independence under the Trump Administration.

Given the NLRB’s swift decision to challenge New York’s law, it seems likely that it will challenge California’s law on similar grounds. Notably, in addition to giving the state’s Public Employment Relations Board the authority to decide labor disputes, California’s law also gives the state’s PERB the authority to:

• Conduct union elections;
• Order employers to bargain with unions; and,
• Issue injunctions and impose fines against employers that refuse to comply.

We will continue to provide updates as they become available, and if you have questions about your company’s legal options or obligations, we invite you to contact us for more information.