Squire Patton Boggs Summer Associate Akshey Mulpuri discusses legislative developments in several states attempting to address the current incapacity of the National Labor Relations Board due to lack of a quorum.

Since January 27, 2025, when National Labor Relations Board (“NLRB” or “Board”) Member Gwynne Wilcox was removed from that position, the NLRB – the federal administrative agency that oversees labor relations matters between private sector employers, employees, and labor unions – has been comprised of only two Senate-confirmed members. As a consequence, the Board has lacked the three-member quorum necessary for it to issue decisions in union representation and unfair labor practice cases. (See our blog here.)

With this incapacity now nearing the half-year mark, several states, including New York, California, and Massachusetts, have introduced legislation that would allow the state to oversee private labor relations matters while the NLRB is unable to act due to the lack of a quorum.

California state assemblymembers passed Assembly Bill 288 (“AB 288”) on June 18, 2025 by a remarkable bipartisan vote of 68-2. The bill, framed as an exercise of the state’s inherent police power to regulate working conditions of workers within its borders, would expand the jurisdiction of California’s Public Employment Relations Board by authorizing employees of private sector employers otherwise subject to the NLRB’s jurisdiction to petition the state’s public sector labor board for relief when the NLRB either lacks a quorum or lacks staffing or funding sufficient to fulfill its statutory duties.

Similarly, on June 17, 2025, New York’s State Assembly passed A08590, also referred to as the “NLRB Trigger Bill,” which if signed into law would amend New York’s labor law to allow its Public Employment Relations Board to certify union representation elections and adjudicate unfair labor practices for private sector parties if the NLRB does not “successfully assert” jurisdiction.

Under the U.S. Constitution, federal law is the supreme law of the land. These proposed state laws therefore raise questions about whether, if signed into law, they would conflict with federal law – here, the National Labor Relations Act (“NLRA”) – such that they would be preempted by the NLRA. The landmark U.S. Supreme Court decision addressing NLRA preemption is San Diego Building Trades Council v. Garmon, in which Justice Frankfurter, writing for the majority, explained that where there is a clear conflict between the NLRA and local or state law, the local or state law is always preempted. However, these state laws proposed as workarounds to the NLRB’s current incapacity are premised on a non-functioning NLRB, and therefore the argument in support of them is that they are not preempted by the NLRA when the NLRB cannot assert jurisdiction and thereby enforce the NLRA.

While novel in their approach, a number of legal scholars have opined that it is unlikely these bills, if signed into law, could survive a preemption challenge, for several reasons, including that these laws would be triggered any time the NLRB lacks a required quorum, even for reasons unrelated to the policy-based rationales purportedly supporting them, including, for example, delays in confirmation of new NLRB members by the U.S. Senate.

Although these bills are not yet law – and even if they are signed into law, they may be ineffective – the actions taken by state legislatures in response to the NLRB’s present incapacity may serve to push the Trump Administration to fill at least one of the current NLRB vacancies and thereby establish a quorum sooner rather than later. NLRB Chairman Marvin Kaplan recently commented that NLRB member nominations are imminent, but there have been no official announcements of potential nominees to date.

We’ll monitor and update with further developments.