New York Governor Kathy Hochul has signed into law legislation authorizing the New York State Public Employment Relations Board (PERB) to assert jurisdiction over disputes between employers and unions if the National Labor Relations Board (NLRB) is unable (or unwilling) to do so. This law potentially conflicts with federal law and therefore may violate the U.S. Constitution’s Supremacy Clause.
Prior to this new law, PERB only had jurisdiction over labor disputes in the public sector and agricultural industry in New York. Now, PERB will be able to intervene in private-sector labor disputes between employers and unions when the NLRB fails to “successfully [assert] jurisdiction over any employer, employees, trades, or industries pursuant to an order by [a] federal district court.”
Typically, the NLRB does not assert jurisdiction by first obtaining a federal district court order. Rather, jurisdiction is asserted through the NLRB’s administrative process. This occurs when NLRB Regional Directors conduct union elections or NLRB administrative law judges conduct unfair labor practice trials, and each action is subject to review by the Board Members. Federal courts typically have jurisdiction only to review the Board Members’ decisions (in the U.S. Court of Appeals) or determine whether to grant injunctive relief or enforce an NLRB subpoena (in federal district court). The latter lawsuits are uncommon, making it likely that this law gives PERB wide jurisdiction over private-sector labor disputes.
In short, this new law creates the potential for both the NLRB and PERB to assert jurisdiction over the same labor dispute, escalating costs for employers and unions alike.
Similar bills are pending in California and Massachusetts that would authorize those states to enforce, in effect, the NLRA if the NLRB fails to do so.
Is this Law Preempted?
The Constitution’s Supremacy Clause “preempts,” or voids, state laws that conflict with federal laws. According to U.S. Supreme Court jurisprudence, states may not regulate activity that the NLRA protects, prohibits or “arguably” protects or prohibits.[1] New York’s new law may be particularly susceptible to preemption under this doctrine given that it allows PERB to protect certain private sector labor conduct that the NLRA protects or arguably protects. Indeed, even before Governor Hochul signed the bill into law, NLRB Acting General Counsel William Cowen argued the bill would “very likely” be preempted.
New York envisions that its law would survive a preemption challenge because the NLRB currently lacks a quorum, which prevents the NLRB from making adjudicatory decisions or issuing regulations. The absence of a quorum began earlier this year when President Donald Trump fired then-Board Member Gwynne Wilcox. Despite the lack of quorum, Acting General Counsel Cowen has claimed the NLRB has been able to fulfill most of its statutory duties. He has argued that the NLRB’s Regional Offices have continued to process cases without the need for a decision by the Board Members. Further, because the New York law creates a new remedial framework, overseen by a state agency (PERB), the NLRB’s absence of a quorum likely won’t save it from preemption. The Supreme Court has said that even permitting a state to provide a remedy that Congress has withheld from the NLRB “only accentuates the danger of conflict.”[2]
In July 2025, President Trump appointed two Board Members, Scott Mayer and James Murphy, whose appointments will restore a quorum if they are confirmed by the Senate.[3] However, even if the NLRB regains a quorum, some unions may demand that PERB address their labor activities as the new law appears to permit, setting up a preemption dispute.
Potential District Court Litigation
Because New York now permits PERB to assert jurisdiction over a labor dispute unless a federal district court states otherwise, the NLRB may be required to successfully prosecute a district court lawsuit arguing that the law is preempted. Acting General Counsel Cowen’s proactive statement casting doubt on the validity of the law could mean the NLRB will file such a lawsuit shortly. But this reading of the law’s requirements is by no means clear and would purport to place the burden of whether the NLRB has jurisdiction to enforce the NLRA on the NLRB’s ability to prove as much in federal court.
In light of the new law, employers in New York should consult experienced labor counsel to learn more about what they should do.
[1] See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959); Wisconsin Department of Industry, Labor and Human Relations, et al. v. Gould, Inc., 475 U.S. 282, 286 (1986).
[2] See Gould, Inc., 475 U.S. at 287 (citation and internal quotations omitted).
[3] It’s not uncommon for there to be lags in NLRB appointments in new presidential administrations. In both the Biden and first Trump Administrations, newly-appointed Members joined the Board in August and September of the first year of those presidencies, although in each case the Board was operating with a quorum before they joined.
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