Progressive states plan end run around federal labor law

The five-member National Labor Relations Board (NLRB), the main federal labor law enforcement agency, is currently down to just one member and therefore lacks a quorum to act. Democrat-leaning states are using this situation as an excuse to expand the powers of their own labor law agencies to encroach on the NLRB’s jurisdiction.

New York Gov. Kathy Hochul signed a new law on September 5 that says private sector workers fall under the scope of the state’s Labor Relations Act unless the NLRB “successfully assert[s] jurisdiction over any employer, employees, trades, or industries” first. In short, if the NLRB doesn’t act, the state will. The NLRB is challenging the new law.

A bill in the California legislature, AB 288, would allow private sector workers who petition the NLRB and don’t get a response in a specified time frame to instead request the state’s Public Employment Relations Board to step in and act in the NLRB’s stead. The law is being promoted by California’s Teamsters.

“Obviously, we would prefer reforms to federal labor law for the entire country, because a private-sector Amazon worker in Alabama should have the same rights as one in California,” Lorena Gonzalez, president of the California Labor Federation, told Politico. “But we can’t control that right now.” Gonzalez is a former state legislator and the author of AB5, the Golden State’s anti-“worker misclassification” law. It was another effort to tilt the playing field in favor of unions.

Bloomberg reports that similar legislation has been proposed in Massachusetts.

This is an instance where federalism becomes problematic. Allowing states to enforce different labor standards undermines the National Labor Relations Act (NLRA), the law that created the NLRB. The NLRA was meant in part to create a uniform standard across states, a set of consistent rules for businesses to follow. Otherwise, the very thing the law is supposed to promote, “labor peace” – that is, amicable relations between workers and management – is jeopardized.

Should states be allowed to go beyond what the NLRB requires, ones with progressive leadership could shift the rules in ways that benefit union allies. Simply having different rules from state to state could present major logistical problems for businesses that operate nationwide or even just regionally. Note that California’s law is being promoted by the Teamsters, who still represent many long-haul truckers as well as other sectors where work involves interstate commerce.

The Constitution leaves most law enforcement matters to the states but gives the federal government the authority to regulate interstate commerce. The commerce clause exception has long been abused by federal lawmakers seeking a legal justification for economic meddling, but labor law is one area when federal control is legitimate because labor issues frequently involve interstate commerce.

As noted above, the NLRB is challenging the New York law and will likely challenge other states if they adopt similar ones. Having a functioning quorum at the federal agency would help undermine these state-level legislative efforts.

The NLRB is an imperfect institution with a long history of flip-flopping in its approach based on who holds the White House and therefore gets to appoint its members. The nation could theoretically function without it by turning over the Board’s responsibilities entirely to the judiciary. However, as the struggles of the Department of Government Efficiency show, eliminating an agency is far easier said than done. The more practical approach is to give the NLRB a majority of members who understand both the law and free market principles.

President Trump has in fact tried to remake the NLRB and put it more firmly under White House control by removing the legal protections against firing sitting members. The courts have thus far upheld the president’s efforts.

Trump has nominated two people to serve on the NLRB: Scott Mayer, the former chief labor attorney for Boeing, and James Murphy, a longtime board staffer. If they are confirmed by the Senate, it would give the five-seat board a functioning quorum, though two seats would remain open. The one current member, Chairman David Prouty, is a Biden appointee.

The Senate Health, Education, Labor and Pensions Committee has yet to announce any hearings on the nominees. If it doesn’t get around to it in the near future, states may start encroaching on the government’s role in labor policy.