New York, California make a play for federal labor law enforcement

The National Labor Relations Board (NLRB), the main federal labor law enforcement agency, currently lacks a quorum to act. Ordinarily, that type of federal gridlock would frustrate a union organizer since the NLRB is the agency that prosecutes unfair labor practice complaints. This time, however, it may be great news for those organizers because they’re working on a plan to have union-friendly states usurp the NLRB’s enforcement role. A stalled, inoperative NLRB improves the odds for that gambit.

Both California and New York have passed laws this year stating that if the NLRB is unable to act on unfair practice complaints filed in those states then state labor agencies can act in the federal entity’s stead. A similar law was reportedly introduced in Massachusetts. The laws have been challenged by the NLRB in court, and they’ll likely be found unconstitutional. The National Labor Relations Act, the law that created the NLRB, does not create room for any other entity to fulfill the NLRB’s role. Those court challenges could take months or years to resolve though.

The state laws would be irrelevant if the NLRB were functioning properly. Instead, the five-member board currently only has one member. One nominee, James Murphy, a former NLRB legal staffer, was approved last month by the Senate Health Education Labor and Pensions (HELP) Committee, but has yet to be confirmed by the full Senate.  Should he get confirmed, the NLRB would still lack a quorum.

A nomination to fill the third seat, with Boeing lawyer Scott Mayer, was scheduled for a vote on Thursday by the HELP committee. But the vote was first postponed until later in the day and then did not occur, according to trade groups. The HELP committee has not posted an update on Mayer’s nomination and did not respond to a request for clarification by CEI.

That was the second time that a vote on Mayer didn’t occur. An October vote was cancelled following objections to Mayer’s nomination by Missouri Se. Josh Hawley, a Republican. The senator has complained about Boeing’s treatment of aerospace workers in his state during a recent strike and, on the basis of that, objected to Mayer’s nomination in October. Republicans have just a one-vote majority on the committee, so Hawley’s objection was enough to stall the nomination. It’s not clear if that scenario replayed itself this week, but Hawley has carved out a unique niche for himself as the most pro-union senator in the GOP.

Historically, the Senate has had a problem appointing a full NLRB board because of partisan divisions. The board has traditionally been split 3-2 in favor of the president’s party and some deal-making has usually been required to get nominations through the full Senate. That didn’t always happen and the NLRB has previously gone through periods without a functioning quorum. That frustrated unions. The business community, on the other hand, has generally tolerated a stalled NLRB since it defanged unions.

Until now, that is. The effort to have states perform an end-run around the NLRB is predicated on the NLRB not being able to do its job. A stalled, inactive NLRB therefore gives New York and California, both union-friendly states, a rationale to start going after businesses for resisting union organizing bids or to punish them for any other complaints that unions might raise. California Gov. Gavin Newsom and New York Gov. Kathy Hochul would have a powerful tool at their disposal. The fact that the courts might ultimately take that tool away could become a rationale to use it aggressively while they still have it.