Trump Administration and States at Odds Over Labor Authority

On the last day of September, California Gov. Gavin Newsom (D) signed a bill increasing the Golden State’s authority over workplace disputes and union elections.

AB 288 by Assemblywoman Tina McKinnor (D) expands the power of the state’s Public Employee Relations Board to include oversight of private sector disputes that fail to draw a quick response from the National Labor Relations Board, as well as elections where workers consider whether to unionize.

“The current President is attempting to take a wrecking ball to public and private sector employees’ fundamental right to join a union and collectively bargain for fair wages, benefits and safe working conditions,” McKinnor said when Newsom signed the bill. “California will not sit idly as its workers are systematically denied the right to organize due to employer intransigence or federal inaction. The right to join a union and bargain collectively is essential to the state’s economic security and the human dignity of all California workers.”

Fifteen days later, the NLRB sued California to block implementation of the bill.

“Section 2 of AB 288 unlawfully usurps the NLRB’s authority by attempting to regulate areas explicitly reserved for federal oversight, creating a parallel regulatory framework that conflicts with the NLRA [National Labor Relations Act],” reads the lawsuit. “This encroachment disrupts the balance of federal and state powers, as Congress desired that ‘centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid those diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.’”

NLRB’s Suit Against California Follows Similar Action in New York

The California lawsuit comes one month after the NLRB filed a similar suit against the state of New York over SB 8034 by Sen. Jessica Ramos (D), which would allow the Empire State’s Public Employee Relations Board to step in for the federal board as well.

“While we respect the important role states play in protecting businesses and workers in other areas, NLRB has exclusive jurisdiction over unfair labor practices in the private sector; legislation like this cannot be reconciled with the Supremacy Clause of the U.S. Constitution,” said the NLRB’s Acting General Counsel William Cowen. “Employers, unions, and employees deserve clarity on their legal rights and regulatory obligations. Beyond the fact that this legislation is unmistakably preempted, attempts such as this only create confusion, waste employees’ time, delay the ultimate resolution of labor disputes, and drive up costs for businesses, which in turn will divert resources that may otherwise be used to invest in their employees or create new jobs.”

Handful of States Consider NLRB ‘Trigger’ Laws

At least four states have introduced legislation this year that would allow their own labor boards to enforce labor laws if the National Labor Relations Board fails to do so, due to its current lack of a quorum to issue decisions. Two of those states, California and New York, have enacted such “trigger” measures.

State Labor Bills Spurred by NLRB Paralysis

Legislators in both California and New York said their bills were motivated by President Trump’s firing of Democratic NLRB member Gwynne Wilcox, which has left the board functionally paralyzed since January.

“Removing Ms. Wilcox from office has also reduced the Board to only 2 members overall, Democratic appointee David Prouty and Republican Chair Marvin Kaplan,” wrote the left-leaning Economic Policy Institute in late May. “With only 2 members, the NLRB does not have a quorum, meaning they cannot make decisions or hear cases on unfair labor practices or union representation. This means President Trump has essentially made the Board non-operational.”

Other Blue States Could Follow California and New York

These dual fights could be just the beginning. Legislation introduced this year in “relatively union-dense” Massachusetts HB 2086 by Rep. Marjorie Decker (D) and SB 1327 by Sen. Paul Feeney (D)] and deep blue Hawaii HB 931 by Rep. Amy Perruso (D) and SB 1523 by Sen. Karl Rhoads (D)], would make changes similar to the California and New York bills.

Other blue states could follow, while red states may look into blocking their state labor boards from stepping into the federal labor oversight void.

In October, the U.S. Senate Health, Education, Labor and Pensions Committee approved Trump’s nomination of retired NLRB lawyer James Murphy, but canceled a planned vote on the nomination of Boeing Chief Labor Counsel Scott Mayer for another board seat.

The NLRB had only one sitting member, David Prouty, after the August expiration of board member Marvin Kaplan’s term in August. The five-member board needs at least three members for a quorum.

With no other nominee yet known to be in the pipeline, the NRLB could remain paralyzed for some time, which could continue to incentivize states to “fill the void by enacting laws that test the boundaries of federal preemption and reshape the federal framework that traditionally governs labor matters,” as Squire Patton Boggs associate Gabrielle Martin wrote in mid-October.

—By SNCJ Correspondent BRIAN JOSEPH

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