In other words, where the NLRB refuses to protect workers’ rights, California has said it will. The NLRB, however, is steadfastly insisting on its right not to protect workers, relying on the doctrine of federal preemption. Yes, dear reader, we have stepped through the looking glass.
NLRB v. State of California is just another iteration of a play that the current administration has run several times. Think of it broadly as the administrative destruction of the so-called “deep state,” focusing this time on the dismantling of workers’ rights. With AB 288, California has moved legal defenses into place. New York has enacted similar legislation, and Massachusetts is also contemplating action.
NLRA and NLRB basics
Enacted in 1935, the NLRA establishes employees’ rights to:
- form, join or assist labor unions;
- bargain collectively with an employer over wages, hours and other conditions of employment; and
- engage in concerted activity to protect themselves and other workers from harmful working conditions. This may include discussing pay or safety concerns, circulating petitions, or handing out leaflets about those conditions.
The NLRA also prohibits employers from interfering with, restraining, or coercing employees in the exercise of their rights. This may cover threats of firing, discipline, or plant shutdowns for union activity. It also prohibits discrimination in hiring, firing, or other employment terms based on union activity.
The NLRB is the federal agency that enforces these rights and investigates unfair labor practice charges. It consists of a five-member board, an independent General Counsel, and a network of regional offices across the country. The Board hears and decides unfair labor practice cases, while the General Counsel is responsible for investigating and prosecuting those cases and overseeing the regional offices.
The five members are appointed by the president for staggered five-year terms and must be confirmed by the Senate. The NLRB must have a quorum of three members to issue decisions in unfair labor practice and union representation cases.
Hamstringing the NLRB
On January 27, President Trump fired NLRB member Gwynne Wilcox and General Counsel Jennifer Abruzzo. No reason was given, but both were appointees of President Biden. The NLRB was already short two members, so the latest terminations left it without a quorum and unable to act. The Board is facing multiple legal challenges that question whether its structure is constitutional and the independence of its members.
The bottom line is that, although workers still theoretically have the rights guaranteed by the NLRA, they have no way to enforce them. Hundreds of cases are in limbo. But for the legislative intervention of states like California, employers’ violations of workers’ fundamental rights might remain unaddressed.
AB 288
Effective January 1, 2026, AB 288 will give California’s Public Employers Relations Board (PERB) jurisdiction over private-sector labor disputes that are not being addressed by the NLRB. When federal enforcement of the NLRA is delayed, PERB may:
- conduct union elections;
- process unfair labor practice charges;
- seek injunctions and penalties against employers;
- order employers to bargain with unions;
- impose civil monetary penalties for labor law violations; and
- order parties to binding arbitration after six months of failed negotiations.
AB 288 will allow covered workers to petition the PERB to enforce their rights under the NLRA in situations where they lose coverage under the NLRA because the law has been “repealed, narrowed, or its enforcement enjoined in a case involving that worker,” whether by the president, Congress, or the federal courts. The law offers specific examples, including situations in which the NLRB lacks a quorum, if the U.S. Supreme Court holds Board members’ job protections to be unconstitutional, or when the NLRB cannot process cases because courts have issued injunctions against its structure or authority on constitutional grounds.
Federal preemption
In its lawsuit, the NLRB relies heavily on the well-established doctrine of federal preemption. Based on the Supremacy Clause of the Constitution, that doctrine declares that federal law overrides conflicting state law because it is the supreme law of the land. More specifically, the plaintiff argues that:
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“[t]he NLRB’s authority is exclusive in matters covered by the NLRA, and it preempts state regulation in these areas. This preemption ensures a uniform national labor policy by preventing states from enacting laws or regulations that could disrupt the balance established by federal law.”
Through the looking glass
Most of the litigation about federal preemption focuses on whether federal and state law are in conflict. The sticking point generally has to do with whether the two laws cover identical situations. In this lawsuit, however, the issue is more likely to be whether the NLRB is actually acting within the scope of the NLRA by refusing to enforce the law’s fundamental reason for being – which is to protect workers’ rights.
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