States, NLRB battle over authority over unionization

The disarray at the National Labor Relations Board (NLRB), now with only one member and an acting general counsel (GC), has prompted states to start acting on their own to provide methods of resolving labor disputes that the Board is unable to address and also to provide paths to union organizing, particularly for “gig” workers and others currently working as independent contractors.

New York seeks to adjudicate labor disputes

A New York law passed last September authorizes the New York State Public Employment Relations Board to assert jurisdiction over disputes between private employers, employees, and unions when the NLRB is unable to act effectively. Supporters contend the legislation is necessary because the NLRB cannot do so and is, therefore, not preempted when the NLRB is functionally ineffective.

Acting GC William Cowen recently responded by filing suit in the U.S. District Court for the Northern District of New York, alleging that the New York law “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.” The NLRB seeks a declaration that the law is preempted and an injunction barring New York from enforcing it.