New York State Attempts to Usurp The “Abandoned” NLRB’s Authority
On September 15, the National Labor Relations Board (“NLRB”) took decisive action to sue the State of New York and its Public Employment Review Board (“PERB”). The complaint claims a recent law enacted by Governor Hochul undermines the NLRB and, as a result, seeks to have the federal District Court declare the federal National Labor Relations Act (“NLRA”) preempts the recent S.8034A signed into law by Governor Hochul.
S.8034A, which was signed into law and became effective as of September 12, amended New York State Labor Law (“Labor Law”) §715, which defines the jurisdiction of New York’s PERB. Previously, the PERB’s authority excluded any employees subject to the NLRA or federal railway labor act and employees of the New York State or any political or civil subdivision thereof. As a result of S.8034A, the PERB’s authority was broadened so it is only limited by the NLRA in the event the NLRB “successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by the federal district court,” meaning a district court would have to first issue a declaratory judgment that the NLRA had jurisdiction over the subject. New York State amended Labor Law §715 to give its own PERB more authority because of its belief that the federal government had virtually abandoned the NLRB and its abilities to enforce the NLRA and protect labor unions.
New York has grown increasingly concerned with the NLRB’s enforcement abilities after President Trump abruptly dismissed the democratic chairperson of the NLRB upon coming into office in January. As a result, what should be a five-member board of the NLRB currently consists of just one (1) member, two short of a three-person quorum needed for the board to vote on matters. New York State will argue that state regulators are not obligated to defer to a federal agency if the agency is incapacitated (here, lacking a quorum).
In opposition, the federal government argues that when the NLRB lacks a quorum, litigation authority is delegated to the NLRB’s general counsel, thus there should be no concern regarding the NLRB’s enforcement ability. The NLRB’s Acting General Counsel has alleged that even in the absence of an NLRB quorum, the vast majority of claims are handled by the regional directors and general counsel’s office, with just 2% of cases progressing to a decision from the actual board members of the NLRB.
The NLRB filed the action seeking a declaratory judgment that S.8034A is preempted by federal law, claiming S.8034A “unlawfully usurps the NLRB’s authority by attempting to regulate areas explicitly reserved for federal oversite, creating a parallel regulatory framework that conflicts with the NLRA.” The complaint goes on to note that the NLRB was formed, in part, to ensure a “uniform application of [the NLRA’s] substantive rules and to avoid those diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies” (quoting the Supreme Court of the United States’ decision in Garner v. Teamsters, 346 U.S. 485, 490–91 (1953)).
While it appears likely that the federal government will prevail, New York is not alone in its position. California and Massachusetts also have legislation proposed to grant similar authority to their state employment boards and they feel they have the legal basis to do so based upon the federal government’s failure to fully staff the NLRB board. As this could have a direct effect on NYECA members, we will continue to follow this court case.
Andrew J. Mundo, Esq., MURTAGH, COHEN, BYRNE & MURDY