Federal agencies remain in a state of flux following the first 100 days of the Trump administration, with no clarity on the horizon for those who like their labor law to arrive with predictable guidance.
For example, we recently discussed how the Federal Mediation and Conciliation Service’s (FMCS) downsizing had prompted a quasi-private model to emerge, presumably to fill part of the void for mediation and arbitration services on existing collective bargaining agreements. More morphing has been underway at the NLRB, a quasi-judicial body with three board-member vacancies that have left the board without a quorum.
As a result, the Board cannot issue rulings or relief for employers. Although earlier this summer, Board Chair Marvin Kaplan claimed that Trump’s picks are “imminent,” it is unclear when this could happen, and states aren’t waiting to find out how that suspense ends.
Lawmakers in a trio of states – California, New York, and Massachusetts – are now attempting to gain jurisdiction over labor disputes involving private employers to bypass the NLRB’s authority for certain functions:
- California’s bill would allow the state’s Public Employment Relations Board (PERB) to resolve collective bargaining disputes, adjudicate ULP charges, and apply civil penalties. Those ramped-up duties would also overlap with the Golden State’s attempt to have PERB pick up tasks previously performed by the FMCS.
- New York’s bill has already passed and would allow its version of PERB to certify certain representation elections, adjudicate existing union contracts, and handle ULPs. That bill is headed to Gov. Kathy Hochul’s desk for a signature.
- Massachusetts isn’t too far behind with the state House considering similar legislation, and we can expect other blue states to follow suit.
Will these laws matter if they pass? Generally speaking, matters covered by the NLRA will preempt state or local laws; however, the issue isn’t entirely cut-and-dried due to a recent case that creates some grey area.
An existing precedent exists with San Diego Bldg. Trades Council v. Garmon, a 1959 Supreme Court ruling that shut down an attempt by California to circumvent federal labor law. Yet this year in June, the Fourth Circuit Court Of Appeals ruled in National Association of Immigration Judges v. Owen that in the case of another quorum-lacking, quasi-judicial agency – the Merit Systems Protection Board (MSPB) – federal courts could gain jurisdiction over matters usually presided over by that board.
Clear as mud? Of course. There’s no way to predict whether the recent case involving the MSPB will potentially sway other courts to rule that state law could preempt a weakened NLRB. If those hypothetical future cases also reach the Supreme Court, more clarity could emerge; however, Trump could always decide to surprise everyone by naming his NLRB nominees without warning and thereby reestablish a quorum pending confirmation.
What these budding state laws could accomplish, however, is to pressure the Trump administration to clarify its stance on matters of federal labor law. Therefore, employers will want to stay informed about developments and remember that anything can change overnight.
