AB 288 enables California to protect labor rights when the federal government cannot

The California Legislature has passed, and Governor Gavin Newsom should sign, Assembly Bill 288 to protect workers and businesses whom Trump abandoned when he deprived the National Labor Relations Board of a quorum in January by firing one of its members. AB 288 enables California to step up to enforce the rights to unionize and to resolve labor disputes when the federal government no longer can or will.

Under AB 288, when the NLRB fails to act on an unfair labor practice case for six months or is defunct, as the NLRB has been since January when Trump fired NLRB Member Gwynne Wilcox and deprived it of a quorum, workers or businesses can ask the California Public Employee Relations Board to enforce their rights. It serves the interests of business, workers, and the public in resolving disputes without litigation, lockouts or strikes. And it protects workers who are unlawfully fired from having to wait years for the NLRB to be revived so that it can resolve their case.

The U.S. Supreme Court held in 1942 that state labor relations boards could adjudicate claims under the federal labor law or similar state labor laws governing. So did the high courts of New York, Wisconsin and Massachusetts. The law was clear that, unless or until the NLRB had taken a case, a state labor board could adjudicate the case so long as its resolution was not inconsistent with the substantive protections of federal law. There was a consensus among courts and labor law scholars that when the federal agency budget and personnel are insufficient to permit prompt and careful disposition of every case, state labor boards should step in.

When the U.S. Supreme Court expanded federal authority over labor matters in the late 1950s, the heyday of large corporations and large national unions, it ruled that states could not adjudicate any case within the jurisdiction of the NLRB unless the matter was "deeply rooted in local feeling or responsibility." Many lawyers came to believe that only the federal labor board can enforce federal labor law and, therefore, without a functioning NLRB, federal labor law cannot be enforced. They simply forgot the way things had worked before and the authority that states retained.

But the Court has recently reduced the scope of the federal labor board's exclusive authority. In 2023, in Glacier Northwest, Inc. v. International Brotherhood of Teamsters -- which involved a strike at the Glacier Northwest cement company -- the Court held that state courts may adjudicate claims for damages caused by labor actions, even where an unfair labor practice charge regarding the actions was pending in the NLRB. The Court's majority emphasized the importance of allowing states to protect workers and businesses in their state so long as the application of state law does not conflict with federal law. And two justices (Clarence Thomas and Neil Gorsuch) called for reconsidering federal supremacy over state labor law entirely.

Under the Glacier Northwest decision, states have authority to protect workers and businesses under state law even where an unfair labor practice charge is pending in the NLRB when the state seeks to address matters deeply rooted in local responsibility. Here in California, where companies are flouting the fundamental rights of employees to associate in unions, to advocate for improved labor standards and safer work, and to seek redress of their grievances, California has the authority to step in. AB 288 opens the door to our state labor relations board to resolve these cases.

To revive the practice of joint federal-state responsibility for enforcing labor rights will require coordination between California's labor board and the national labor board. But coordination between state and federal agencies is nothing new. State and federal labor boards confer about which should handle cases when it is unclear whether federal law applies, as in the case of very small businesses or workers who might be excluded from federal labor protections because they work in agriculture or domestic work. Other state and federal agencies share enforcement authority, including in matters of civil rights and criminal justice. AB 288 provides that if the federal NLRB is proceeding in a matter, the case will stay in there. But if the NLRB is not handling a case the state labor board will be there to enforce the law. The goal is to ensure employee and business rights are enforced in the most efficient, expeditious and effective manner.

AB 288 will also protect California workers and businesses if the Trump Administration succeeds in its effort to have core parts of the federal labor enforcement regime declared unconstitutional. A federal court of appeals based in Louisiana and Texas recently ruled portions of federal labor law unconstitutional and enjoined the agency from proceeding in a case against SpaceX. The U.S. government argued in that case that the law is indeed unconstitutional. Although the decision does not apply in California, it signals that the United States no longer believes the NLRB as currently structured can enforce federal law. It's time for California to act.

AB 288 protects fundamental constitutional rights of Californians at a time when the federal government is failing. It is a commonsense measure that builds on the established practice enabling unions and employers to come together under a stable and predictable set of rules to bargain collectively. And it reflects our state's commitment, enshrined in the California constitution, to protect fundamental rights of freedom of speech and freedom of association, and freedom to assemble for the common good.