Opinion: What's Next for the NLRB?

State-level Adjudication? Here's My Take:

For those of us who have been doing this for a while, it feels like we need to come up for air. There is a lot going on! 

Could the NLRB be Gone for Good?

On June 17, 2025, the New York State Assembly overwhelmingly passed Senate Bill S8034A (also known as A8590 in the Assembly) by a vote of 128–14.

It's a bold step. A bold step on the constantly shifting soil that we refer to as 2025. 

Other states plan to follow suit, drafting their own legislation. Their intent is to fill a gap that has existed since January, during which the National Labor Relations Board (NLRB) has lacked a quorum. Almost immediately after taking office, Trump axed board member Gwynne Wilcox. She has tried to challenge her dismissal. But for now, the board doesn't have the three members it needs for a quorum. Without a quorum, it can't issue decisions. 

We can speculate as to whether Wilcox will succeed in being reinstated. Given the current political climate, I'm of the opinion that she won't be back anytime soon, if ever. Sad, really. 

The states, and workers, are tired of just sitting around waiting. 

In an article posted on employerlaborrelations.com on June 20, 2025, about this bill, Seyfarth Shaw, LLC had this take:

"Although the Trump Administration has not yet nominated anyone to fill the two Board vacancies, this delay is not unusual and hardly can be construed to mean the Board has 'declined' to act."

With infinite respect for the (unnamed) author of this piece at Seyfarth Shaw, I disagree. I think most of us do. Whether you think it's a skillful, power move by the Trump administration, or see it as an egregious flex, a lot of folks view the long gap as far from a "delay".

Seyfarth Shaw is correct that delays are perfectly normal. This one is vastly different. It’s an orchestrated campaign: mid-term firing, stonewalling nominations, and legal maneuvers to leave seats vacant.

But that's neither here nor there. This is unprecedented territory: states asserting jurisdiction where federal law has long reigned, but only when the federal board is stalled. What it has done, is leave states hanging in the balance. So, they're taking action. California had already introduced a bill. New York followed. Massachusetts is likely to be next. New York is the first to bring this approach to full legislative fruition, passing an Assembly-Senate version that could be signed into law imminently. At the time of this writing, it was on its way to New York Governor Kathy Hochul’s desk. It's unclear whether she will sign it. 

My take? It's DOA. Assuming Governor Hochul signs the bill, it will almost certainly be subject to immediate (legit) legal challenge under Garmon, because it arguably exceeds the limits of state authority in an area Congress has reserved for the NLRB. 

Even though it may be a moot point, the states do have a point. And hey, I could be wrong. This could end up resulting in a significant shift in how we address labor disputes in the future. Not unheard of. 

"So, Tate," you may be asking at this point, "if you don't think that's happening, then what?"

I'm glad you asked 😅

A lot of employers have long been pushing to restructure the NLRB. With the states jumping into the fight, the pressure will be on. There are arguably some vulnerabilities in the National Labor Relations Act (NLRA) that could be susceptible to a successfully-planned attack. 

Is it likely that the board will be abolished? Sorry Jeff Bezos, but no. 

Here's a wild guess. 

The Effort to Restructure or Supplement the NLRB

Remember how the Department of Homeland Security was created after 9/11? Many of the same agencies and authorities stayed in place, just grouped under a new name. The optics were good. It was framed as a sweeping reform, though the underlying operations changed very little. Both sides could claim a win. Lawmakers could say they took action, critics could say they added oversight and ended the standoff, and everyone could walk away satisfied, even if the practical impact is limited.

With this debate heating up, that's where I think the states' involvement will lead us. These new "trigger" laws, even if they're unsuccessful, will create a brand new sense of urgency. 

Both the NLRB and the NLRA will look different. It's just a matter of how much.