Businesses will reckon with more pro-union approaches to resolving labor disputes after New York and California enacted laws empowering state agencies to handle matters long reserved for the National Labor Relations Board, if the states can overcome preemption challenges.
In recently-enacted legislation, the states asserted broad jurisdiction over private-sector union cases that the federal board has taken up under the National Labor Relations Act since 1935.
If the laws survive litigation, state boards in certain instances will oversee union representation elections and adjudicate unfair labor practice charges, potentially applying different statutory language and administrative processes. Handling these claims will be each state’s Public Employment Relations Board, which focused up to now on state and local government employees’ labor disputes.
Passage of the laws, combined with uncertainty at the NLRB—which lacks a quorum and faces lawsuits over its structure—risks a shift away from a nearly century-old federal framework and toward a state-by-state patchwork.
“It’s a whole different system that employers would have to be part of,” said Daniel D. Schudroff, a principal at Jackson Lewis PC in New York. “You would have different states interpreting issues in different ways.”
New York’s law is already the subject of two legal challenges, with the NLRB and Amazon each suing to claim the NLRB remains the proper forum for these disputes and that the state laws are preempted....
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