Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—‘Preemption? What preemption?’ New York bill attempts to supplant the NLRB, (Jul 16, 2025)

By Patrick Muldowney and Gabriel Trujillo-Lederer of BakerHostetler

The National Labor Relations Board (NLRB or the Board) has been in a state of limbo since the beginning of President Donald J. Trump's second term. Now, New York is trying to fill that void.

Ever since the dismissal of Board Member Gwynne Wilcox Jan. 27, and the subsequent stay on her reinstatement May 22, the NLRB has been operating without a quorum. With only two of its five members appointed, the Board cannot issue decisions regarding union representation petitions or unfair labor practice (ULP) charges. This has tied the NLRB's hands, as it cannot issue rulings that may have been unfavorable to employers, but the Board also cannot issue new decisions to overturn the Biden Board's employee-friendly rulings.

New York's NLRB Trigger Bill

With the Board currently sidelined, some states have attempted to supplant its authority. Enter New York's NLRB Trigger Bill, which would allow the New York Public Employment Relations Board (PERB) to fill the role of the NLRB. New York State Sen. Jessica Ramos, chair of the Senate's Labor Committee, stated that this bill was in response to the "federal gridlock" the NLRB is currently experiencing. PERB only oversees public- and private-sector employees whom the National Labor Relations Act (NLRA) does not cover, such as agricultural workers. The NLRB Trigger Bill, however, states that if the NLRB does not "successfully assert" jurisdiction over issues such as representation petitions or ULP cases, PERB could assert jurisdiction.

Effectively, this means that PERB could adjudicate representation and ULP cases for both public- and private-sector employees if the Board lacks a quorum. Most concerningly, the bill adds a provision that allows PERB to determine whether a union and an employer are at an impasse if they do not reach a contract within the first 45 days of recognition. Furthermore, this provision could allow a mediator to impose a collective bargaining agreement on both parties if they do not reach an agreement within 30 days of the mediator's appointment. This bill is sweeping in its efforts to displace the NLRB's jurisdiction, but it will face legal challenges.

Preemption Issues

The bill is currently on the desk of Gov. Kathy Hochul, but if signed into law, it will face judicial challenges on the grounds that the statute is preempted by federal law. There are two U.S. Supreme Court cases that cut against this bill. First, the Court held in Guss v. Utah Lab. Rels. Bd., 353 U.S. 1 (1957) that the NLRB has exclusive jurisdiction over issues assigned to it by Congress, even if the Board itself has not exercised its jurisdiction. Second, the Court found in San Diego Unions v. Garmon, 359 U.S. 236 (1959) that if an activity is even "arguably" subject to the NLRA, both state and federal courts must defer to the exclusive jurisdiction of the NLRB.

Simply, Guss stands for the proposition that the NLRB does not need to "successfully assert" jurisdiction to retain its exclusivity. Moreover, Garmon stands for the proposition that if an issue comes close to the NLRA, the NLRB retains exclusive jurisdiction. Both these cases stand against the enforceability of the NLRB Trigger Bill.

Supporters of the bill may point to a recent decision by the Fourth U.S. Circuit Court of Appeals in N.A. of Immigr. Judges v. Owen, 139 F.4th 293 (4th Cir. 2025), in arguing that state courts or agencies can assert jurisdiction over the relevant matters if federal agencies cease to function as intended. Nevertheless, that decision concerned an entirely different agency without the unique NLRB caselaw precedent.

What Should Employers Do?

Employers should monitor any legislative attempts to supplant the Board, as the New York law could be a model for other states. Indeed, California and Massachusetts are considering similar legislation that could face the same preemption challenges as explained above. The BakerHostetler Labor Relations team will continue to monitor any developments regarding state initiatives as well as how the drama at the NLRB plays out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Patrick Muldowney and Gabriel Trujillo-Lederer

BakerHostetler

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