When Boards Collide: PERB vs. NLRB and the Compliance Clash

Unless you’ve been skipping the news lately, it’s no surprise that California and the federal administration don’t see eye to eye on many policies, let alone labor relations. Cue AB288 – a bill just passed by the legislature that allows employees to bypass the National Labor Relations Board (NLRB) and go to the California Public Employee Relations Board (PERB). If signed by the governor, this proposal could transform how labor relations is handled in the Golden State—and maybe even elsewhere, if the idea catches on.  

How Did We Get Here? The NLRB’s No-Quorum Freeze

Since January 2025, the NLRB has lacked a quorum due to the removal of Member Gwynne Wilcox by President Trump, which left only two confirmed members. Without a quorum, the Board has been unable to issue decisions, prompting states like California (and New York[1]) to propose legislation allowing state agencies to oversee private labor disputes. As of July, the White House nominated two new members—Scott Mayer and James J. Murphy—whose confirmations would restore the quorum, though Senate approval is still pending.

What’s Happening Now? California’s Reaction to the Federal Stasis

The state legislature has passed a bill that allows employees seeking assistance from the NLRB to go to the California PERB for relief if they have not received a timely determination or remedy from the NLRB. Employees may also go to the PERB if they are alleging employer actions that interfere with organizing, bargaining, or concerted activities.

How Might Things Change? The PERB and Its Process  

California has proposed allowing the PERB, which normally oversees labor relations for public-sector employees such as state and local government workers, to handle private-sector cases until the NLRB is fully functional. PERB enforces collective bargaining laws, adjudicates disputes, and remedies unfair labor practices within the public sector. The legislation is a major rework of PERB in that it would amend PERB’s authority, update its enforcement provisions, set new definitions, and add an entirely new section to establish PERB jurisdiction over private-sector workers. PERB already has authority to investigate unfair labor practice charges, issue decisions and orders for remedies, including reinstatement, back pay, and civil penalties, and to certify unions and order binding arbitration in certain cases – in the public sector. AB288 would change this system to now allow PERB to provide the same right and remedies to employees in the private sector. 

How Would This Work? 

PERB may accept petitions from private-sector workers when the NLRB fails to act within statutory timeframes. According to the language in the bill, the NLRB “will be deemed to have ceded jurisdiction to the states” if one of four events happen: 1) if the NLRB loses its quorum or if the Board “loses its independence” as a result of a U.S. Supreme Court finding that the NLRB Board members are “unconstitutionally protected from removal” or if a case is enjoined due to other constitutional challenges to the Board’s structure or authority; 2) where no certification or complaint has been issued, there are processing delays that result in more than six months without the issuance of a complaint or certification of an election, 3) a case remains pending more than six months after a complaint has been issued without the issuance of a decision by an administrative law judge; 4) for cases where an election has been certified, there are processing delays resulting in the NLRB failing to accept or decline or grant review for more than six months following the filing of a request for review or for special permission to appeal; and 5) for cases on review or exceptions before the Board, when there are processing delays resulting in the case remaining pending for more than 12 months without the issuance of a final decision. 

Further, in cases alleging that an employer has failed to bargain in good faith after having been in bargaining for six months without reaching an agreement, the union can go to PERB directly for relief. The PERB can order that an employer submit to binding arbitration to assist the parties in finalizing their negotiations for a collective bargaining agreement if more than six months have passed without the parties coming to an agreement. (This provision would not start until 1/1/2027.)

Enforcement and Penalties

The PERB has broad and overarching enforcement authority. It may order reinstatement of employees, back pay for lost wages, and civil penalties (including $1,000 per worker per violation). Its administrative orders are enforceable in court, subject to appeal. Existing statutory framework provides for the right of an employer to appeal a PERB administrative order by first filing a written appeal with the PERB Board itself within 10 days of the decision. If the Board upholds the decision, the employer may then seek judicial review by filing a petition for writ of review in the California Court of Appeal. 

If this bill becomes law, it could mark a major turning point in labor relations law.

Is Any of This Legal? Preemption and Its Perils

Whether California can do any of this is an open question. For decades, courts have said that the NLRA occupies the field of labor relations. It sets out not only uniform, comprehensive rules of substance, but also uniform, comprehensive rules of process. States have no more power to create their own procedures for overseeing labor relations than they do to outlaw protected labor practices. In fact, the NLRA’s preemptive shadow is so broad that courts have found it to preempt state laws affecting activity the NLRA leaves unregulated. If the NLRA intentionally leaves some conduct (such as labor disputes) to market forces, states have to do the same.

California’s proposed bill seems to flout those principles. It sets up an alternative, parallel process for overseeing labor relations. It would allow disputes otherwise covered by the NLRA to run through a separate process overseen by the PERB. By longstanding tradition, understanding, and legal precedent, California lacks the authority to bypass the established federal framework in this way.

But in recent years, states have grown more aggressive in the labor-relations space. They have banned “captive audience” meetings, extended unemployment benefits to strikers, and required “labor peace” agreements for some employers. This California bill is the latest, and most expansive, example of that trend. This trend is likely to continue until there is definitive guidance from the courts. 

What Happens Now?

If the governor signs the bill, there will almost certainly be legal challenges. And as those challenges play out, there will be a period of uncertainty. It will be unclear in some cases which law applies—federal or state. Employers should as always work closely with experienced counsel.