Elias Schisgall at Bloomberg Law reports a novel New York Bill allowing the State to oversee private Union disputes while the National Labor Relations Board (NLRB) lacks a quorum heralds legal battles over a decades-old doctrine that reserves labor relations authority to the Federal Government. New York Lawmakers have backed an increasingly popular argument that the NLRB’s exclusive jurisdiction over labor matters doesn’t apply after President Donald Trump fired Board Member Gwynne Wilcox and stripped the NLRB of the quorum it needs to fully function. The NLRB’s power stems from the U.S. Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon, which held that the National Labor Relations Act (NLRA) pre-empts State or local labor regulation. “This is uncharted territory,” Harvard Law School Professor Benjamin Sachs said. “If the Federal Government is going to shut down, then States have to step into the gap. The answer can’t be, ‘Well, we’re not going to do anything because in the future, the President will solve the quorum problem.’” If signed by Governor Kathy Hochul, New York’s Bill and similar proposals in California and Massachusetts would prompt a wave of litigation forcing Federal Courts to clarify whether Garmon requires a functional NLRB, Labor Law Scholars predicted. And as Trump inches closer to filling the NLRB’s three vacancies, the resumption of a quorum could further complicate the balance of power between States and the NLRB. Regardless of how Garmon pre-emption fares in courts while the NLRB remains paralyzed, Law Professors say it’s time to rethink the role of States in labor regulation.

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