States Seize Opportunity to Shape Labor Landscape Amid NLRB Paralysis
Washington, D.C., September 4, 2025 — The National Labor Relations Board (NLRB), the federal agency tasked with enforcing U.S. labor laws on collective bargaining and unfair labor practices, has been incapacitated since January 2025, lacking the three-member quorum required to issue decisions. This paralysis, triggered by President Donald Trump’s controversial removal of board member Gwynne Wilcox, has prompted states like New York, California, and Massachusetts to introduce legislation aimed at filling the void by regulating private-sector labor relations. These efforts, while seen as a lifeline for workers’ rights, face significant legal hurdles due to federal preemption under the National Labor Relations Act (NLRA), raising questions about the future of labor law in the United States.
The NLRB’s Paralysis
The NLRB’s inability to function stems from Trump’s January 2025 firing of Wilcox, the first board member ever removed by a president, reducing the five-member board to two—below the quorum mandated by the Supreme Court’s 2010 New Process Steel ruling. This followed the dismissal of General Counsel Jennifer Abruzzo and her deputy, Jessica Rutter, with William Cowen appointed as acting general counsel. Wilcox’s lawsuit challenging her removal, Wilcox v. Trump, resulted in a March 2025 ruling by Judge Beryl Howell reinstating her, but the Supreme Court’s stay of that decision in May 2025 has left the board gridlocked, unable to rule on cases or issue new labor law interpretations.
The paralysis has halted the NLRB’s ability to adjudicate unfair labor practice (ULP) cases or oversee union elections, leaving workers and unions without federal recourse. While regional offices continue to process charges and petitions, with 96.3% of 2024’s meritorious ULP cases settling without board intervention, the lack of a quorum prevents final resolutions for contested cases, creating a backlog and emboldening employers to challenge NLRB actions.
State Responses: Trigger Laws and Labor Protections
With the NLRB sidelined, states are stepping in to protect private-sector workers’ rights, particularly in progressive strongholds. According to Littler Mendelson’s 2025 Labor Day Report, multiple states are considering laws to transfer authority from the NLRB to local agencies, potentially “de-federalizing” labor relations. Key developments include:
- New York: On June 17, 2025, the New York State Assembly passed A8590/S8034, the “NLRB Trigger Bill,” by a 128-14 vote. If signed by Governor Kathy Hochul, it would allow the state’s Public Employment Relations Board (PERB) to certify union elections and adjudicate ULPs for private-sector workers when the NLRB lacks a quorum or fails to assert jurisdiction. The bill awaits Hochul’s signature.
- California: Assembly Bill 288 (AB 288), passed on June 18, 2025, by a bipartisan 68-2 vote, expands the jurisdiction of California’s PERB to handle private-sector labor disputes when the NLRB is incapacitated. Framed as an exercise of the state’s police power, the bill allows private-sector employees to petition for relief if the NLRB lacks funding or staffing to fulfill its duties.
- Massachusetts: Bills S1327 and H2086 propose similar measures, enabling the state’s labor board to oversee private-sector collective bargaining during NLRB dysfunction. These “trigger laws” aim to protect workers’ rights to organize and bargain collectively, particularly for student workers at private universities, as noted by The American Prospect.
Additionally, Rhode Island became the 13th state to ban mandatory “captive audience” meetings in 2025, reinforcing state-level protections against anti-union tactics, especially given the NLRB’s likely reversal of its 2024 Amazon.com Services LLC ban under a Trump-appointed board.
Legal Challenges: Federal Preemption
The state initiatives face significant obstacles due to the NLRA’s preemption of state labor laws under the Supremacy Clause. The Supreme Court’s 1959 San Diego Building Trades Council v. Garmon decision established that states cannot regulate conduct “protected, prohibited, or arguably protected or prohibited” by the NLRA, giving the NLRB exclusive jurisdiction over private-sector labor disputes. Acting General Counsel William Cowen, in an August 15, 2025, statement, argued that state efforts to oversee private-sector labor relations are “likely invalid” due to this preemption, asserting that the NLRB’s regional operations remain largely unaffected, with over 95% of cases resolved without board decisions.
Proponents of state laws counter that preemption does not apply when the NLRB is non-functional, as it cannot assert jurisdiction without a quorum. New York’s and California’s trigger laws are designed to activate only in such scenarios, arguing that they fill a gap without conflicting with federal law. However, legal scholars, like those at Squire Patton Boggs, warn that courts may strike down these laws if they encroach on the NLRA’s domain, potentially leading to a Supreme Court showdown.
Broader Implications and Corporate Pushback
The NLRB’s paralysis has coincided with broader challenges to its authority. A Fifth Circuit ruling on August 19, 2025, in SpaceX v. NLRB found the NLRB’s structure likely unconstitutional due to removal protections for board members and administrative law judges, halting proceedings against SpaceX and others. Companies like Amazon and Trader Joe’s have joined SpaceX in arguing that the NLRB’s enforcement is illegitimate, with lawsuits claiming the agency violates Article II of the Constitution. These cases, likely headed to the Supreme Court, could further erode the NLRB’s power, amplifying the need for state-level interventions.
Posts on X reflect public sentiment, with users like @EliseJoshi criticizing corporate efforts to “abolish” the NLRB as workers unionize for better wages, highlighting the stakes for labor rights. Meanwhile, state trigger laws have spurred union activity, particularly among student workers at private institutions like Caltech and USC, where the United Auto Workers have organized new bargaining units.
Looking Ahead
The future of labor law hinges on several developments. The Supreme Court’s resolution of Wilcox v. Trump and SpaceX v. NLRB could determine the NLRB’s viability and the validity of state trigger laws. President Trump’s nominations of a career NLRB staffer and Boeing’s chief labor counsel to fill board vacancies may restore the quorum, but their confirmation timeline remains uncertain. If states like New York and California succeed in implementing their laws, they could set a precedent for others, potentially fragmenting labor regulation across the U.S.
For now, the NLRB’s paralysis offers states a rare opportunity to shape labor policy, but the legal and political battles ahead will determine whether these efforts can withstand federal preemption and corporate challenges. As The American Prospect notes, the stakes are high: without a functioning NLRB, state legislation may be the only safeguard for private-sector workers’ rights in an increasingly anti-union climate.
For more information, contact the NLRB Office of Public Affairs at publicinfo@nlrb.gov or visit www.nlrb.gov.