New York’s Challenge to NLRB: A Dual Regulatory Dilemma
Employers in New York State must pay close attention to the unfolding jurisdictional conflict between the state and the federal government over the government administration of labor relations law and employee rights to organize and engage in free speech. A recent legislative maneuver by New York, coupled with a swift response from the National Labor Relations Board (NLRB), has created an uncertain environment for businesses operating within the state. The central issue is the NLRA preemption doctrine, which grants the federal government exclusive authority over most private-sector labor matters for employers engaged in interstate commerce pursuant to NLRB jurisdictional standards.
New York’s Bid for State Jurisdiction
In September 2025, New York Governor Kathy Hochul signed S8034A, an amendment to Section 715 of the New York Labor Law. This “NLRB Trigger Bill” attempts to expand the scope of the New York State Labor Relations Act (NYLRA) to cover private-sector employers and employees who are normally subject to the exclusive jurisdiction of the federal National Labor Relations Act (NLRA). Ironically, NYS merged the State Labor Relations Board (SLRB) into the Public Employment Relations Board (PERB) in July 2010 raising the obvious issue of exactly how the State would be able to handle the additional federal case law with the already congested PERB’s case calendar for both improper practices and representation issues.
The state’s action was a direct response to the federal case backlog stemming from the NLRB’s lack of a three-member quorum since January 2025. While the NLRB’s regional offices continue their day-to-day functions, the lack of a quorum prevents the Board in Washington, D.C. from deciding appeals of both Regional and administrative law judges’ decisions.
The mechanism for this proposed concurrent jurisdictional assertion is highly ambiguous and contingent if not misguided: state intervention would only be triggered if the NLRB does not “successfully” assert jurisdiction, an assertion that the law curiously requires to be pursuant to an order from a federal district court. This requirement ignores the standard administrative processes of the NLRB, which under the NLRA rarely involve federal district court orders other than those for injunctive relief. Nor does it address exactly how PERB can expeditiously handle the proposed federal case backlog.
Review the amendment in its entirety here.
The Federal Counterpunch and Preemption Crisis
The federal government did not let this challenge to its authority stand. Just days after the bill’s signing, news spread that NLRB had filed a federal lawsuit against New York State, seeking a declaratory judgment and an injunction against the amendment. The federal agency asserted that the new State Labor Relations Act provision is fundamentally preempted by the NLRA as confirmed by the U.S. Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon.
The core contention is that the NLRA grants the federal Board exclusive authority over most private-sector labor relations engaged in interstate commerce, an authority that remains intact even when the Board lacks a quorum to issue final decisions. Acting General Counsel William B. Cowen stated that the state law “unlawfully usurps” the NLRB’s jurisdiction and creates unwarranted confusion. This news highlights that NLRB’s suit aims to preserve a uniform national labor policy, which the Supreme Court’s Garmon decision has long held bars states from regulating conduct that is even arguably protected or prohibited by the NLRA.
Legal Implications for Employers
For employers engaged in interstate commerce, this inter-governmental conflict presents an immediate and significant escalation in legal complexity and procedural uncertainty.
- Dual Regulatory Threat: Businesses in New York, particularly those facing organizing drives or ULP charges, are now exposed to potential litigation on two fronts: defending the underlying labor charge and simultaneously litigating the federal preemption question over which agency—the NLRB or the state’s PERB—has ultimate authority. This risk of duplicative proceedings and potentially conflicting outcomes drives up legal costs and consumes executive attention.
- Operational Uncertainty: The ambiguity in New York’s “trigger” language regarding when the state’s jurisdiction applies means corporate counsel must now navigate two distinct and potentially contradictory sets of labor relations procedural rules, hindering the ability to establish clear, stable policies.
Until a federal court resolves the preemption challenge, employers must proceed with extreme caution. Businesses with significant operations in New York are encouraged to consult our Labor & Employment Law Practice Group to monitor this litigation closely and maintain strict compliance with established federal labor law, while also preparing for the contingency of state-level agency involvement.