By: Arthur Telegen and David S. Ostern
Seyfarth Synopsis: On Tuesday, June 17, 2025, the New York State Assembly overwhelmingly approved A8590 / S8034 by a vote of 128-14. This bill, which now heads to Governor Kathy Hochul’s desk, aims “[t]o make sure employees still receive protections guaranteed by the National Labor Relations Act if the National Labor Relations Board is unable to successfully assert jurisdiction.”
For nearly six months, the National Labor Relations Board (“NLRB” or the “Board”) has been without a quorum. This is a result of President Donald J. Trump’s dismissal of former-Member Gwynne Wilcox, who continues to challenge the legality of her firing (unsuccessfully thus far). Under the NLRA, three members are required to constitute a quorum of the Board. See 29 U.S.C. § 153(a). Without Wilcox and given the two Member vacancies, the Board remains unable to render decisions. Meanwhile, many employers continue to litigate the constitutionality of the NLRA, claiming for example, that it unduly restricts executive power over the Board and deprives respondent of an argued right to a jury trial.
While Chairman Marvin Kaplan and Member David Prouty await the appointment and confirmation of at least one additional Member (or the reinstatement of Wilcox) to resume their official business, and the constitutional challenges to the Board’s structure and procedure are ongoing, the New York legislature has sent a bill to the Governor’s desk that would supposedly fill in the void and restore protections for New York private-sector workers.
The bill provides that unless the Board “successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by [a] federal district court . . . ,” such organizations or private-sector workers would be protected and subject to the New York State Labor Relations Act. In the absence of the Board exercising jurisdiction, the New York State Labor Board would immediately, “upon application and verification, promptly certify the exclusive bargaining representative of any bargaining unit previously certified by another state or federal agency.”
Assuming Governor Hochul signs the bill, it will almost certainly be subject to immediate legal challenge because it invades the jurisdiction that Congress has explicitly granted exclusively to the NLRB and also violates established preemption doctrine.
With respect to jurisdiction, the bill ignores long-standing Supreme Court precedent and Section 14(c) of the NLRA. In 1957, the Supreme Court held that the Board has exclusive jurisdiction over matters entrusted to it by Congress, even when the Board has not exercised that jurisdiction. See Guss v. Utah Labor Relations Bd., 353 U.S. 1, 6-10 (1957); see also 29 U.S.C. § 160(a) (providing for explicit cession by agreement with a state agency).
Two years after the Guss decision, Congress passed Section 14(c)(2) of the NLRA, which effectively codified the Supreme Court’s holding in Guss while permitting the states to Act where the Board “by rule of decision or by published rules” has declined to assert jurisdiction. See Act of Sept. 14, 1959, Pub. L. No. 86-257, at p. 542. The NLRA does not contain any other authority to fill the gaps.
Nonetheless, according to New York Assembly Labor Chair Harry B. Bronson, this bill is necessary because “‘[w]ith attacks at the federal level, it is up to the states to lead the way and in New York State, we value the rights of our workers, their health and safety on the job, and our strong principles of unionism.’” In other words, the New York bill is intended to step into a perceived breach that Congress and the Supreme Court have placed off limits. Although the Trump Administration has not yet nominated anyone to fill the two Board vacancies, this delay is not unusual and hardly can be construed to mean the Board has “declined” to act.
In addition, the bill is likely to be challenged under the long-standing doctrine of Garmon preemption. Garmon preemption derives from the 1959 Supreme Court decision, San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), where the Supreme Court held that states and federal courts “must defer to the exclusive competence of the [Board] . . . ” when the activity or regulation at issue is arguably subject to Section 7 or 8 of the NLRA. 359 U.S. at 245; see also Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. v. Lockridge, 403 U.S. 274, 276 (1971).As the Supreme Court stated in Garmon, in determining whether a particular activity or regulation is arguably protected or prohibited by the NLRA, it is “left in the first instance to the National Labor Relations Board.” Garmon, 359 U.S. at 244-45.
Given the direct connection Chair Bronson appears to make (see supra) between the New York bill and the purpose and scope of the NLRA, New York likely will also have an uphill battle in convincing a federal court that Garmon does not “prevent[ ] States . . . from providing their own regulatory [scheme] . . . for conduct prohibited or arguably prohibited by the [National Labor Relations] Act. See Belknap, Inc. v. Hale, 463 U.S. 491, 498-99 (1983) (citations omitted).
Seyfarth’s Labor Management Relations team will continue to provide updates on this legislative development. Employers with questions or concerns should reach out to Seyfarth’s team of experienced labor attorneys.
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