In today’s news and commentary, labor law professors file an amici curiae arguing that the NLRA should not preempt a California law empowering its state labor board to adjudicate certain labor disputes, and the NLRB officially regains quorum.
As Mila previously covered, in October 2025 the NLRB sued the State of California and its Public Employment Relations Board (PERB), seeking an injunction against enforcement of Section 2 of Assembly Bill No. 288, which amends California’s Labor Code to permit PERB to act when the NLRB has “expressly or impliedly ceded jurisdiction,” such as when the Board lacks a quorum. The Board argues that the California law is preempted under Garmon. However, last week over twenty labor law professors filed an amici curiae brief arguing that Garmon preemption should not apply because the Board is no longer an independent, functional agency, undermining the doctrinal premise that justified exclusive federal jurisdiction in the first place.
The labor law professors challenge the Board’s preemption claim on three main grounds. First, Garmon preemption—a judicially created exception to the presumption that state police powers over labor and employment disputes survive absent clear congressional intent—depends on the premise that the Board is an independent, apolitical agency. Second, state labor boards routinely exercised authority alongside the Board in the 1930s and 1940s, demonstrating that Congress did not intend blanket federal displacement of...
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