California Joins New York With State NLRB Replacement

California became the second state to authorize its public labor board to step in for the NLRB when it lacks a quorum, under a new law signed this week by Gov. Newsom (D-CA).

The law: CA AB 288 would allow private sector California workers and their unions to bring union elections and unfair labor practice charges before the state’s Public Employment Relations Board when the NLRB lacks a quorum (as it currently does).

• The law would also be triggered if and when the Supreme Court legally certifies President Trump’s termination of two NLRB members. The Supreme Court’s decision on that issue is likely to be handed down next year.

Growing trend: California’s law follows a nearly identical measure enacted by New York in September, while Massachusetts is currently considering similar legislation.  

• States stepping in to fill the NLRB’s quorum void reflects the broader surge of state labor and employment laws amid federal inaction. Still, this marks a significant escalation in the state–federal clash over workplace regulation. 

Legal challenges: The National Labor Relations Act and the NLRB have historically had broad preemption authority, meaning that any state or local law falling within the NLRB’s jurisdiction is preempted and rendered invalid.  

• The California law—and any other similar measures—are likely to trigger lawsuits challenging them on preemption grounds.  

• Such lawsuits appear likely to succeed, although these laws’ narrow trigger – only becoming effective when the NLRB cannot or will not exercise jurisdiction – could provide a loophole to escape preemption challenges.

Employer takeaways:  

• Two nominees for the Board are pending in the Senate; if confirmed, they would restore the NLRB’s quorum and could render these state laws moot.  

• Full confirmation could take weeks if not months—ample time, for example, for a union to be certified under state law in California or New York—and may face delays due to populist Republican opposition led by Sen. Hawley (R-MO).  

• Numerous pending lawsuits challenging the NLRB’s constitutionality are inching closer to eliminating the agency as is, in which case these state laws would take effect and likely encourage more states to pass similar legislation.  

• If the NLRB is eventually shuttered, the current uniform federal labor standard may become a fractured patchwork across the states.  

• Key labor law issues—union certification, the scope of employee protections, etc.—may be decided differently depending on the state labor board with jurisdiction, creating significant difficulties for employers with regards to compliance and a uniform labor relations strategy.