Labor & Employment Law Daily Wrap Up, LABOR—E.D. Cal.: NLRB successfully argues for preliminary injunction against California’s new labor board law, (Jan 5, 2026)

By Todd Harrison, J.D.

Certain provisions of the new law would allow the state to assume jurisdiction over conduct that is subject to the NLRA, implicating Garmon preemption.

Largely granting the NLRB’s motion for a preliminary injunction seeking to enjoin the enforcement of Section 2 of California Assembly Bill 288 (A.B. 288), a federal district court determined that the implied cessation conditions contained in the bill—loss of quorum, loss of independence, and processing delays—create a conflict between the state labor board and the NLRB, and would effectively give the state labor board authority over conduct subject to the NLRA. However, the court did find some sections of A.B. 288 avoided this conflict, specifically those concerning loss of coverage, enjoinment, and express cessation of jurisdiction (NLRB v. State of California, No. 2:25-cv-02979-TLN-CKD (E.D. Cal. Dec. 26, 2025)).

A.B. 288 amends the California Labor Code to allow private sector workers covered by the NLRA to bring labor disputes before the state’s Public Employment Relations Board (PERB) under certain enumerated circumstances. The bill was set to take effect on January 1, 2026.

Current NLRB challenges. In adopting A.B. 288, the state legislature attempted to address the myriad challenges currently faced by the NLRB, including the Board’s loss of quorum, loss of independence, constitutional challenges enjoining the NLRB, and the delayed administration of NLRA processes.

PERB’s role. If PERB determines that any of these conditions have occurred—loss of quorum, loss of independence, enjoinment, and processing delays—A.B. 288 enables it to retain jurisdiction over pending matters and to maintain jurisdiction from that point forward. PERB may follow applicable precedents established by the NLRA but is not required to do so.

Preliminary injunction. On October 15, 2025, the NLRB filed this action seeking declaratory and injunctive relief to prevent enforcement of Section 2 of A.B. 288, arguing that it is preempted by the NLRA under the Supremacy Clause and unlawfully usurps the NLRB’s authority by attempting to regulate areas explicitly reserved for federal oversight, creating a parallel regulatory framework the conflicts with the NLRA.

Conflict. In addressing the NLRB’s likelihood of success on the merits, the court began with the question of conflict, analyzing each of the conditions in A.B. 288 that California claimed prevented PERB from infringing on the NLRB’s authority.

Here, the court agreed with California that A.B. 288’s provision concerning loss of coverage avoided conflict because if a worker is no longer subject to the NLRA, their conduct is neither protected nor prohibited by the NLRA. For the same reason, the court found A.B. 288’s enjoinment provision avoided any conflict as well, noting that if the NLRB is enjoined from processing a case, it has lost authority over that subject matter. The NLRB did not challenge the “expressly…ceded jurisdiction” language of A.B. 288 and, for purposes of completeness, the court confirmed this provision avoided a conflict between PERB and the NLRB.

Loss of quorum. Turning to the portions of A.B. 288 concerning the implied cessation of jurisdiction, the court first considered the triggering condition of a loss of quorum. The court observed that the NLRA itself anticipates periods where the Board lacks a quorum and California acknowledged that a loss of quorum has happened before.

“The quorum requirement, and its consequences, is by design,” said the court, going on to state that in some ways “the Board’s inability to fully function due to the lack of quorum shows the NLRA is operating as intended.” As such, the court could not conclude that the loss of quorum would equate to the NLRB ceding its jurisdiction over any particular matter, and allowing PERB to operate under this condition would create a conflict.

Processing delays. With regard to the triggering condition of processing delays, the court found this to be similar to the loss of quorum, noting that, unlike other federal regulatory schemes, the NLRA does not prescribe deadlines. Although the court agreed that delay can cause tangible harm and undercuts the NLRB’s ability to protect workers, time, on its own, does not prove that the NLRB has given up its authority on a matter.

“Like the issue of lack of quorum, delayed resolution by the NLRB is not new,” said the court, and thus it could not conclude that delay in and of itself constitutes a cessation of jurisdiction. Because the NLRB maintains its authority under this condition, continued the court, allowing PERB to assume jurisdiction from processing delays would create a conflict.

Loss of independence. As to loss of independence, the court agreed generally with the proposition that Congress intended the NLRB to be independent. However, it could not conclude that Congress’s interest in the NLRB’s independence when it enacted the NLRA was so strong that in its absence, it intended that the NLRB be stripped of its authority.

Even assuming A.B. 288 is correct that the NLRB’s independence is lost if the Supreme Court finds that Board members are unconstitutionally protected from removal, the court determined that the NLRB would nonetheless maintain its authority, and allowing PERB to assume jurisdiction under this condition would create a conflict.

Garmon preemption. Having found A.B. 288 does not avoid a conflict of authority between PERB and the NLRB by the implied cessation provisions, the court considered whether the law allowing workers to petition PERB under these circumstances was preempted. Here, the court applied its analysis of Garmon preemption.

The Garmon doctrine asks whether the conduct at issue is arguably protected or prohibited by the NLRA. In this instance, there was no dispute that workers were authorized to petition PERB under the implied cessation provisions of A.B. 288, and the bases for such petitions are subject to the NLRA. Because the law would allow PERB to assume jurisdiction over conduct subject to the NLRA, the court determined that these provisions were preempted. Thus, the NLRB demonstrated that is likely to succeed on the merits of its preemption claim with respect to these provisions.

Irreparable harm. Turning to the irreparable harm factor, the NLRB argued that it would suffer irreparable harm because A.B. 288 directly threatens its exclusive jurisdiction. It further contended that A.B. 288’s implementation will lead to inconsistent rulings and damage the NLRB’s ability to set and maintain national labor policy.

Having found the NLRB was likely to succeed on the merits of the majority of its preemption claim, the court presumed that the NLRB would suffer irreparable harm from constitutional violations if A.B. 288 were to be implemented in its entirety.

In addition, the court noted that the Teamsters had represented that they intended to file charges with PERB once A.B. 288 went into effect. “Once charges are filed pursuant to A.B. 288, the threat of conflicting authority and discordant resolution of the same conduct will become live,” explained the court. Thus, to avoid the harms following from conflicting adjudications, it would be appropriate to maintain the status quo until the final adjudication on the merits of the case.

Equities, public interest. Finally, applying the balance of equities and the public interest, the court acknowledged the harm to workers from being unable to assert their labor rights and to access the NLRA’s protections. “However, on balance, alleviating that deprivation through a process administered by PERB, which too may take a considerable amount of time, cannot justify the risk of conflicting jurisdiction and resolutions that would emerge from A.B. 288’s implementation,” said the court. Accordingly, these factors too weighed in the NLRB’s favor, and the court granted the motion for a preliminary injunction enjoining California from implementing the portions of A.B. 288 concerning the implied cessation of jurisdiction.

The case is No. 2:25-cv-02979-TLN-CKD.

Judge: Nunley, T.

Attorneys: Chad Wallace for the NLRB. Joseph Henry Meeker, California Department of Justice, for State of California. Felix De La Torre for Public Employment Relations Board.

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