Acting General Counsel Statement on Potential State Legislation Regulating Private Sector Labor Relations

National Labor Relations Board Acting General Counsel William Cowen stated today that recent measures under consideration by several state legislatures due to the Board’s lack of a quorum very likely would be preempted by the National Labor Relations Act. These measures purport to assume jurisdiction over private sector labor disputes covered by the NLRA.  In general, states are not permitted to regulate conduct “that the NLRA protects, prohibits, or arguably protects or prohibits.” Wisconsin Dept. of In­dustry v. Gould Inc., 475 U. S. 282, 286 (1986); see also San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959). This type of legislation cannot be reconciled with the Supremacy Clause, found in Article VI, Clause, 2 of the U.S. Constitution. 

Any concern that the National Labor Relations Board is unable to fulfill its statutory duties under the Act is unfounded.  Indeed, the work of the NLRB has largely been unaffected by the temporary absence of a Board quorum. As explained in the Agency’s February 1, 2025, press release, its Regional Offices continue to process unfair labor practice and representation cases, and the Acting General Counsel has been delegated litigation authority that would normally be exercised by the Board. 

In a typical year, over 95% of all cases are processed without requiring a Board decision.  For example, as described in the Agency’s FY 2024 Performance and Accountability Report, the public filed 21,300 unfair labor practice charges, of which 39.5 percent were found to have merit. 96.3 percent of the meritorious cases were settled. In addition, 2,164 election petitions were filed. Thus, the Agency processed 23,464 cases in FY 2024. During that time, the Board decided 259 unfair labor practice and representation cases, representing less than 2% of the cases processed that year.  

Moreover, in recent years when the Board has had a quorum, it has demonstrated its ability to quickly resolve its “oldest cases” (those pending at the Board for 18 months or more). For example, in fiscal year 2020, the Board started the year with 73 “oldest cases,” which it reduced to just 2 cases at the end of the fiscal year – a 97% reduction. Over the period FY 2020 – FY 2024, the Board averaged an 86% yearly reduction of its oldest cases.

Notwithstanding the Board’s lack of a quorum, normal Agency operations are continuing to the greatest extent permitted by law. Once the Board’s quorum is restored, we are confident that they will promptly be able to clear whatever case backlog may exist.