union election

The National Labor Relations Board has sued California to block a law that empowers a state agency to oversee some private-sector labor disputes and union elections.

Gov. Gavin Newsom signed Assembly Bill 288 into law last month in response to the Trump administration’s hampering of federal regulators. It gives the state’s Public Employment Relations Board the ability to step in and oversee union elections, charges of workplace retaliation and other issues in the event the federal labor board is unable, or declines, to decide cases.

The lawsuit, filed Wednesday in U.S. District Court for the Eastern District of California, argues the law usurps the NLRB’s authority “by attempting to regulate areas explicitly reserved for federal oversight.”

The lawsuit echos the NLRB’s challenge to a recent New York law that similarly seeks to expand the powers of its state labor board.

NLRB attorneys contend in the lawsuits that the laws create parallel regulatory systems that conflict with federal labor law.

The NLRB is tasked with safeguarding the right of private employees to unionize or organize in other ways to improve their working conditions.

Lawmakers in New York and California said they passed their bills to fill a gap, because the NLRB has been functionally paralyzed since January, when President Trump fired one of its Democratic board members. The unprecedented firing of that member, Gwynne Wilcox, left the board without the three-member quorum it needs to rule on cases.

Wilcox has challenged her firing in court, arguing that appointed board members can only be fired for “malfeasance or neglect of duty.” But her removal was upheld by the Supreme Court for now, until her case can make its way through lower courts.

Lorena Gonzalez, president of the California Federation of Labor Unions, last month called AB 288 “the most significant labor law reform in nearly a century.”

The California Public Employment Relations Board typically has authority only over public sector employees. But when the new law goes into effect on Jan. 1, workers in the private sector who are unable to get a timely response at the federal level can also petition the state board to take up their cases and enforce their rights.

The state’s labor board can choose to take on a case when the NLRB “has expressly or impliedly ceded jurisdiction,” according to language in the law. That includes when charges filed with the agency or an election certification have languished with a regional director for more than six months — or when the federal board doesn’t have a quorum of members or is otherwise hampered.

The NLRB’s paralysis has put hundreds of cases in limbo, with the agency currently lacking the ability to compel employers to bargain with their workers’ unions, or to stop unfair treatment on the job.

However, the agency’s acting general counsel — Trump appointee William Cowen — has said that only a fraction of cases require decisions from the typically five-member board and that the agency’s work has been largely unaffected, with regional offices continuing to process union elections and unfair labor practice charges.

Responding to the Trump administration‘s hampering of federal regulators, Gov. Gavin Newsom on Tuesday signed a bill greatly expanding California’s power over workplace disputes and union elections.

The legislation, Assembly Bill 288, gives the state authority to step in and oversee union elections, charges of workplace retaliation and other disputes between private employers and workers in the event the National Labor Relations Board fails to respond.

As Newsom signed the worker rights bill, his office drew a sharp contrast with the gridlock in Washington, D.C., where a government shutdown looms.

“With the federal government not only asleep at the wheel, but driving into incoming traffic, it is more important than ever that states stand up to protect workers,” Newsom said in a statement. “California is a proud labor state — and we will continue standing up for the workers that keep our state running and our economy booming.”

The NLRB, which is tasked with safeguarding the right of private employees to unionize or organize in other ways to improve their working conditions, has been functionally paralyzed since it lost quorum in January, when Trump fired one of its board members.

The Trump administration has also proposed sweeping cuts to the agency’s staff and canceled leases for regional offices in many states, while Amazon, SpaceX and other companies brought lodged challenges to the 90-year-old federal agency’s constitutionality in court.

With this law in place, workers unable to get a timely response at the federal level can petition the California Public Employment Relations Board to enforce their rights.

The law creates a Public Employee Relations Board Enforcement Fund, financed by civil penalties paid by employers cited for labor violations to help pay for the added responsibilities for the state labor board.

“This is the most significant labor law reform in nearly a century,” said Lorena Gonzalez, president of the California Federation of Labor Unions. “California workers will no longer be forced to rely on a failing federal agency when they join together to unionize.”

The state’s labor board can choose to take on a case when the NLRB “has expressly or impliedly ceded jurisdiction,” according to language in the law. That includes when charges filed with the agency or an election certification have languished with a regional director for more than six months — or when the federal board doesn’t have a quorum of members or is hampered in other ways.

The law could draw legal challenges over whether the bill infringes on federal law.

It was opposed by the California Chamber of Commerce, which warned that the bill improperly attempts to give California’s labor board authority even as the federal agency’s regional offices continuing to process elections as well as charges filed by workers and employers.

The chamber argued that “courts have repeatedly held that states are prohibited from regulating this space.”

Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law counters, however, that in the first few decades of the NLRB’s functioning, state labor agencies had much more leeway to enforce federal labor rights.

She said the law “simply proposes going back to the system that existed for three decades.”

The bill’s author, Assemblymember Tina McKinnor (D-Hawthorne) said the bill will ensure California workers can continue to unionize and bargain.

“The current President is attempting to take a wrecking ball to public and private sector employees’ fundamental right to join a union,”McKinnor said in a statement. “This is unacceptable and frankly, un-American. California will not sit idly as its workers are systematically denied the right to organize.”