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As we reported in <a href="https://www.thebargainingtableblog.com/blogs/preemption-what-preemption-new-york-bill-attempts-to-supplant-the-nlrb/" target="_blank" rel="noreferrer noopener">July</a>, with the National Labor Relations Board (NLRB or the Board) in a <a href="https://www.bakerlaw.com/insights/what-just-happened-the-practical-impacts-of-a-quorum-less-nlrb/" target="_blank" rel="noreferrer noopener">state of limbo</a> since the beginning of President Donald J. Trump’s second term, several states, including New York, are considering legislation that would allow state agencies to assert jurisdiction over issues handled by the Board. For example, the NLRB Trigger Bill (Assembly Bill A8590/Senate Bill S8034A), which would allow the New York Public Employment Relations Board to fill the role of the NLRB, is sitting on Gov. Kathy Hochul’s desk awaiting her decision on whether to sign it into law.  

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On Aug. 15, the acting general counsel (GC) of the NLRB, William Cowen, weighed in on this and similar bills, stating that legislation such as the NLRB Trigger Bill is likely preempted by the National Labor Relations Act (NLRA). The acting GC explained that the reason this type of legislation would likely be preempted is that states are not permitted to regulate conduct that the NLRA “protects, prohibits, or arguably protects” and “cannot be reconciled” with the U.S. Constitution’s Supremacy Clause.

Moreover, the temporary lack of a Board quorum, which may soon be resolved with Trump’s nominees, does not grant states the authority to enact their own labor laws. Cowen noted that the Board has previously cleared backlogs during similar quorum gaps, and he expressed confidence that the Board will do so again. While the acting GC’s statement is not controlling, it reflects the agency’s current legal interpretation and signals how the Board may approach, and presumably attack, these legislative efforts.

The BakerHostetler Labor Relations team will continue to monitor any developments regarding state initiatives as well as the state of the Board. Stay tuned.

Orlando

New York

Partner

Patrick M. Muldowney

Philadelphia

Counsel

Christian R. White

Washington, D.C.

Associate

Gabriel L. Trujillo-Lederer

‘Oh … That Preemption’: National Labor Relations Board Acting General Counsel Responds to State Legislation That Seeks To Supplant the Board’s Jurisdiction