The disarray at the National Labor Relations Board (NLRB), now with only one member and an acting general counsel (GC), has prompted states to start acting on their own to provide methods of resolving labor disputes that the Board is unable to address and also to provide paths to union organizing, particularly for “gig” workers and others currently working as independent contractors.
New York Seeks to Adjudicate Labor Disputes
A New York law passed last September authorizes the New York State Public Employment Relations Board to assert jurisdiction over disputes between private employers, employees, and unions when the NLRB is unable to act effectively. Supporters contend the legislation is necessary because the NLRB cannot do so and is, therefore, not preempted when the NLRB is functionally ineffective.
Acting GC William Cowen recently responded by filing suit in the U.S. District Court for the Northern District of New York, alleging that the New York law “unlawfully usurps the NLRB’s authority by attempting to regulate areas explicitly reserved for federal oversight, creating a parallel regulatory framework that conflicts with the NLRA.” The NLRB seeks a declaration that the law is preempted and an injunction barring New York from enforcing it.
In the past, the NLRB has vigorously asserted the preemptive authority of the NLRA and the Board. Thus, Cowen’s suit is solidly in keeping with prior practice. The Board made clear that the New York law “undermines the federal labor policy Congress designed to be national in scope” and challenges the NLRB’s exclusive authority to regulate the workplace. This may only be an opening salvo in the preemption battle, as other states are also acting on their own in areas commonly reserved for the federal government and the NLRB.
California Strikes Deal with Gig Drivers
Many activists have worked for years to find a “third way” for gig workers, specifically a path to greater workplace protections and benefits while retaining independent contractor status. California lawmakers announced they reached a deal with the main ridesharing companies to support a law that would allow the state’s numerous gig drivers to unionize while still treating them as independent contractors.
The bill, advocated by Uber and Lyft, would create a framework for ride-hailing drivers to unionize and negotiate collective bargaining agreements with the companies covering pay, benefits, and other working conditions. Under its structure, a union can trigger an election by presenting the state Public Employment Relations Board with proof of support from at least 10% of active drivers, defined as those who have performed at least the median number of rides during the last six months. If a union presents proof of 30% support, the state will automatically certify it to represent drivers, unless another union triggers a runoff by making the same showing. The California bill mirrors a ballot initiative Massachusetts voters approved last year.
NLRB Likely to Respond
NLRB Acting GC Cowen’s action against the New York law presages a similar response against California and Massachusetts. As new Board nominees await confirmation, it appears the Board is being prepared to take on its traditional role again. But the actions by the states and the ensuing preemption lawsuits are a measure of the frustration state governments, employers, and employees have experienced over the past six months.