State bills to regulate private sector labor disputes due to the National Labor Relations Board’s (NLRB) lack of a quorum — if enacted — would “very likely” violate the U.S. Constitution’s Supremacy Clause, according to NLRB Acting General Counsel William Cowen.
The Supremacy Clause awards priority to federal laws, such as the National Labor Relations Act (NLRA), over state laws when they regulate the same conduct, a legal hierarchy known as preemption.
Although Cowen did not name the states he was referring to, Fox Rothschild recently discussed legislative efforts underway in California, Massachusetts and New York to effectively enforce NLRA if the NLRB fails or is unable to do so. Cowen argued that, pursuant to the Supreme Court’s preemption precedent, states are generally prohibited from regulating conduct that the NLRA protects or prohibits — or even conduct the NLRA “arguably” protects or prohibits.
In his statement, Cowen countered assertions by states that the NLRB is currently unable to resolve labor disputes due to the agency’s present lack of quorum, which began earlier this year when President Donald Trump fired then-Board Member Gwynne Wilcox. He said this is largely based on the processing of unfair labor practice and representation cases by NLRB Regional Offices without the need for a decision by the Board Members, including because many of those cases are settled.
Cowen further noted that in recent years, when the Board has had a quorum, it has quickly resolved its longest-pending cases, demonstrating that when the Board regains a quorum, it will be positioned to swiftly clear the backlog. Last month, President Trump made two Board Member appointments — Scott Mayer and James Murphy — who will restore a quorum if they are confirmed by the Senate.[1]
In the past, employers, unions and the NLRB itself have brought lawsuits arguing that state laws are preempted by the NLRA. Cowen’s proactive statement casting doubt on the validity of the state bills — before they have become law — shows his interest in the issue and could mean that the NLRB will file preemption lawsuits if the states approve the legislation. In addition, Crystal Carey, the President’s nominee for NLRB General Counsel, could assess the matter if she is confirmed by the Senate.[2]
Interested parties should continue to monitor the state bills and any additional action by the NLRB.
[1] Mayer and Murphy’s nominations are pending in the Senate Committee on Health, Education, Labor and Pensions (HELP). It’s possible the HELP Committee will hold a hearing on these nominations in September, when the Senate returns from recess.
[2] The Senate HELP Committee held a hearing on Carey’s nomination on July 16, 2025.
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