New York Law Authorizes State Agency to Act in NLRB's Place

Author: Robert S. Teachout, Brightmine Legal Editor

September 17, 2025

Claiming that the National Labor Relations Board (NLRB) is currently unable to fully act, New York has passed an amendment to the New York Labor Relations Act that permits the Public Employee Relations Board (PERB) to assert jurisdiction over union elections certifications and unfair labor practices charges in the private sector. The NLRB promptly filed a lawsuit seeking to invalidate the law on the grounds that it is preempted by the National Labor Relations Act (NLRA).

Prior to the amendment, the state Labor Relations Act expressly excluded from coverage any employer covered by the NLRA. However, S.B. 8034 - which took effect immediately upon being signed by the governor on September 5, 2025 - removes that exemption. It allows the PERB to act with respect to a private-sector employer when the NLRB does not successfully assert jurisdiction pursuant to a federal court order. The PERB primarily oversees public-sector employers in New York, but it also regulates labor relations for private-sector employers who are not covered by NLRA or the Railway Labor Act.

The state asserted that the amendment is necessary because the NLRB has been unable to fully perform key functions - such as issue decisions, certify elections or promulgate regulations - since the loss of a quorum in January.

"As the current administration continues to sideline longstanding labor institutions like the National Labor Relations Board," said PERB Chair Timothy Connick, "it is more important than ever that New York State step up to defend the rights of workers and create fair venues to resolve labor disputes."

However, on September 12, the NLRB filed a lawsuit contesting the validity of S. B. 8034. The lawsuit argues that the NLRB has exclusive jurisdiction over most private-sector labor disputes under the NLRA, and that the provisions of the amended law are preempted by the NLRA.

"While we respect the important role states play in protecting businesses and workers in other areas, the NLRB has exclusive jurisdiction over unfair labor practices in the private sector," NLRB Acting General Counsel William B. Cowen said. "Legislation like this cannot be reconciled with the Supremacy Clause of the U.S. Constitution."