With mounting uncertainty about the lack of a quorum and near term future of the National Labor Relations Board (the “NLRB” or the “Board”), New York State legislators are attempting to usurp the powers delegated to the Board by Congress. New York lawmakers have passed legislation that, if signed by Governor Kathy Hochul, would grant state agencies the power to enforce federal labor law. Employers could face significant challenges if this bill becomes law. Most concerning, employers could have a collective bargaining agreement imposed on them by an arbitrator.

Turmoil at the NLRB

During President Trump’s first term, the NLRB shifted toward a markedly pro-employer position. Within days of taking office for his second term, Trump again moved quickly to begin reshaping the NLRB. Since returning to office, Trump has not merely shown an interest in moving away from the pro-union policies of the Biden administration; rather, he has demonstrated a desire to bring wholesale change to the Board through drastic actions that radically alter the foundation of American labor law.

Trump’s sweeping transformation of the NLRB began with the firing of Jennifer Abruzzo, the Biden-appointed General Counsel (“GC”). Trump subsequently installed William B. Cowen as interim GC. Cowen has been tasked with undoing much of the work done by Abruzzo. So far, he has made short work of that mission.

While Trump replacing a Biden appointed GC came as no real surprise, and was in keeping with Biden’s own dismissal of Trump’s GC, Trump has gone much further than other presidents in his efforts to reshape the NLRB.

After firing Abruzzo, President Trump turned his attention to the Board itself, taking the unprecedented step of firing Board Member Gwynne Wilcox, a Democratic appointee, without cause. Wilcox’s dismissal has been the subject of much litigation — which we previously covered here, here, here, here, and here — that remains unresolved, leaving Wilcox unemployed. At the time of Wilcox’s firing, the five-member Board had two vacant seats, and following the decision to terminate Wilcox the Board has only two sitting members. Under the National Labor Relations Act, three members are required to form a quorum necessary to exercise the Board’s powers. See 29 U.S.C. § 153(a).

There is some indication that the NLRB quorum may soon be restored. During a keynote address at the New York University School of Law’s Annual Conference on Labor & Employment Law, NLRB Chair Marvin Kaplan made remarks suggesting nominations to fill vacant seats are “imminent.” However, he also cautioned that “these things take time.” Indeed, once those nominations are made, a lengthy Senate confirmation process could take months. Whether Wilcox’s legal challenges play out in her favor, or new members are appointed and confirmed, it remains unclear when the Board may be able to act again.

In addition to lacking the required quorum, the NLRB also faces other substantial challenges. Not only are numerous court cases challenging the constitutionality of the NLRB ongoing, but years of underfunding and hiring freezes have led to staffing shortages that continue to impede the Board’s ability to efficiently carry out its statutory mandate.

The Legislation

Increasingly, progressive states are searching for means by which they can empower unions. For example, to fill the void left by a powerless NLRB, California and Massachusetts have introduced legislation intended to empower state agencies to perform many of the NLRB’s functions. Legislative efforts such as these are squarely in opposition to the pro-employer approach of the Trump administration.

Like their California and Massachusetts counterparts, New York legislators have also moved swiftly to bolster state protections for unions. In a recent written statement, New York Assembly Chair, Harry B. Bronson said, “with 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.”

To that end, on May 15, 2025, Democratic Senator Jessica Ramos introduced Senate Bill S8034A. The bill is intended to amend New York Labor Law Section 715 to bring private employers under its authority. The law would be amended to exclude private employers, only where the NLRB “successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by [a] federal district court.”

In effect, if the bill becomes law and the NLRB does not actively assert its jurisdiction through the federal courts, the New York Public Employment Relations Board (“PERB”) would be free to exercise its authority over private employers in New York State. PERB would then be empowered to conduct private-sector union elections, investigate and remediate unfair labor practices, and take any other steps needed to administer federal labor law.

Perhaps most troubling are the impasse resolution procedures the bill would create. The bill adds Section 702-c to the Labor Law which would allow PERB to determine if the employer and union are at impasse if they have not reached a first contract within 45 days of certification or recognition. Section 702-c would also create procedures under which PERB could appoint a mediator to assist the parties in reaching agreement. Troublingly, if the parties cannot reach an agreement within 30 days of the mediator’s appointment, either party may petition to have an arbitrator appointed to decide the matter. The arbitrator would then have the authority to impose a collective bargaining agreement on the parties with the terms the arbitrator deems appropriate.

The bill has quickly progressed since being introduced, and Governor Kathy Hochul now has until the end of the year to sign or veto the bill. It is unclear if Governor Hochul will sign this bill into law, as her track record on employment issues is mixed. While she has signed some employee-friendly bills into law in the past (such as the New York Pay Transparency Bill), she has also sided with employers on other issues (such as vetoing a overbroad non-compete ban).

Legal Hurdles

The New York bill, and others like it, will likely face legal challenges if signed into law.

Generally, where a state law is in conflict with federal law, the state law is deemed invalid, or “preempted.” Federal labor law is no exception. Under a long line of Supreme Court precedent, states generally may not regulate issues related to private sector unions. Most importantly, under the Supreme Court’s decision in San Diego Building Trades Council v. Garmon, states are generally precluded from regulating any activities that the NLRA protects or prohibits, or arguably protects or prohibits. See San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959) (“When an activity is arguably subject to §7 or §8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board”).

Parties challenging these state laws will make a compelling argument that they are preempted. The conservative majority on the Supreme Court may be reluctant to overturn over half a century of precedent to allow states to implement this type of pro-union scheme.

Key Takeaways

Whether the New York bill becomes law or not, employers should be mindful of and continue to comply with existing federal labor laws. The consequences of violating these laws can be substantial, regardless of whether it is the NLRB or a state agency enforcing those laws.

For the time being, employers should continue business as usual. The uncertainty surrounding whether this bill will become law, as well as the serious legal challenges it is likely to face, means there is time before any real change occurs.

Employers with specific questions or concerns about this legislation, or any labor relations issues, should consult with counsel. We will continue to monitor for any new developments.