California’s new labor law requires NLRB authority in workplaces

from Levi SumagaysaiCalMatters

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California, under a law that takes effect today, seeks to protect the labor and union rights of private-sector employees because the federal agency that has held that power for decades is in limbo.

But the future of the new law is unclear because the Trump administration is challenging it.

The lawwhich gives more power to the California Labor Relations Board, is a response to the lack of a quorum in the National Labor Relations Board.

President Donald Trump fired NLRB Chairman Gwynn Wilcox days after he began his second term in January. His two board nominees have yet to be confirmed, so the federal board has been without the three members needed for a quorum for months.

Assemblywoman Tina McKinner, the Inglewood Democrat who wrote the bill, said when the governor signed it in September that “California will not sit idly by as its workers are systematically denied the right to organize due to employer intransigence or federal inaction.”

The NLRB sued California over the law in October, saying in its lawsuit that the state was trying to impose authority over “areas expressly reserved for federal oversight.”

Regarding the legal challenge to the law, Terry Shantz, McKinnor’s chief of staff, referred CalMatters to the state attorney general. Attorney General Rob Bonta’s office is responsible for defending the law in court. A spokesman for Bonta said the office had no comment on the matter.

With the NLRB unable to meet its obligations, states are trying to fill the gap in enforcing the National Labor Relations Act, which Congress passed in 1935. But labor experts contacted by CalMatters don’t have high hopes for the California law, which is similar to one passed in New York this year. They said courts, including the Supreme Court, have ruled that states cannot decide questions involving federal labor law because of preemption, the doctrine that a higher body of law takes precedence over a lower body.

“It’s hard to imagine a scenario where the courts don’t strike down these (state) laws,” said John Logan, professor and chair of the Department of Labor and Employment Studies at San Francisco State University.

William Gould, former chairman of the National Labor Relations Board during the Clinton administration and professor emeritus at Stanford University, agreed: “The issue is a dead letter in the courts unless (the Supreme Court) shifts gears.”

That’s what the California and U.S. chambers of commerce, along with other business groups, are hoping for, according to their amicus brief in support of the Trump administration’s lawsuit against California: “In California’s view, each state could have its own labor law for private sector workers. Dozens of laws would overlap and conflict.”

The California Federation of Labor, an umbrella organization for unions that represents about 2 million California workers, said in a brief meeting with friends that even before Trump fired the NLRB chief, the federal agency’s backlog was a problem that meant companies could delay bargaining in good faith with their workers’ unions without repercussions.

If the California law is overturned, workers who have formed unions but failed to secure contracts with employers such as Amazon and Starbucks — which are among the companies with a request that the NLRB be declared unconstitutional — may continue to experience delays, according to Logan. Or, he said, it’s unclear what would happen if other workers tried to organize and their companies simply fired them.

“The demise of the NLRB is a scandal that calls for political reform,” Gould said.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.