Benjamin Sachs, Professor of Labor and Industry at the Harvard Law School and a leading expert in the field of Labor Law and Labor Relations, recently penned an interesting Labor Perspective that appeared in OnLabor. It read, in part: When President Trump removed Gwynne Wilcox from her seat on the National Labor Relations Board (NLRB), he left the Board without a quorum. Since that time, the Board has been legally incapacitated: It cannot fulfill its statutory function of adjudicating Unfair Labor Practice (ULP) cases. At the time of Wilcox’ removal, I argued that by incapacitating the Board in this way, Trump may have suspended Garmon pre-emption - the doctrine that prohibits States and cities from regulating conduct that is either protected or prohibited by Federal Labor Law. Incapacitating the Board suspends Garmon pre-emption because Garmon’s pre-emption is all about deference to the administrative capacity of the Board. As the Supreme Court explained in an early case, Labor pre-emption flows from the fact that when Congress passed the Federal Labor Statute it “did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal:” the NLRB. Or as the Court wrote in Garmon itself, “the unifying consideration of our (Labor pre-emption) decisions has been regard to the fact that Congress has entrusted administration of the Labor policy for the Nation to a centralized administrative agency.” Even more to the point, the Court has described Garmon pre-emption as the “zone protected and reserved for . . . NLRB jurisdiction.” Without a functioning Board, then, the rationale for Garmon pre-emption simply disappears. A new decision from the U.S. Court of Appeals for the Fourth Circuit, published and authored by Judge Berner, adds significant support for this theory. The decision, in National Association of Immigration Judges v. Owen, does not involve the NLRB nor does it involve pre-emption, but the reasoning in the case is precisely analogous to the argument about Garmon. Owen involves the question of whether the Civil Service Reform Act (CSRA) - which creates a “uniform scheme for administrative and judicial review of covered Federal Employee personnel actions” - deprives District Courts of jurisdiction to hear claims by Federal Employees challenging adverse employment actions. 

To Continue Reading This Labor News Story, Go To: Going, Garmon, Gone: Why States May Now Be Free to Redesign Labor Law ✦ OnLabor