New York’s move to let its state public sector labor board step in for a paralyzed National Labor Relations Board (NLRB) has ignited a constitutional fight that could redraw the boundaries of labor law authority in the United States.

At issue is S.8034A, a law signed by Gov. Kathy Hochul in September amending Section 715 of the state’s labor law. It authorizes the state Public Employment Relations Board (PERB) to take up private-sector labor disputes when the NLRB has not “successfully asserted” jurisdiction.

It’s led to a pitched battle in federal court between the NLRB and the state, and the result could have a sweeping impact on how labor disputes are resolved in the future.

The NLRB has been unable to meet its three-member quorum for meetings on official action since January, due to vacancies. One of President Trump’s nominees to the board is currently awaiting a vote by the full U.S. Senate, and another has been tabled in committee.

There is no hint of when the stalemate could end. That means even if some labor disputes—such as challenges to union elections—wind their way through regional NLRB offices, appeals and final resolutions have to wait for full NLRB votes.

New York legislators and Hochul, in the meantime, took action to empower PERB to resolve such disputes. The result is a federal-state fight over who gets that power: NLRB or the states.

“It’s absolutely fascinating—you just don’t see something like this in labor law,” said Greg Lisi, an attorney and head of the Employment Law and Labor Practice of Forchelli Deegan Terrana, which has offices in Uniondale and Hauppauge.

“But the problem for New York is the Supremacy Clause. And the Supremacy Clause says that if the federal government legislates in a certain area, states can’t overrule it by making their own laws in that area,” Lisi said.

In its federal lawsuit, the NLRB is asking the court to block New York from enforcing its new law, arguing that Congress intended labor relations to follow one national standard—not a collection of state-by-state experiments. Business organizations, including the U.S. Chamber of Commerce, have backed that view.

The case, filed in federal court in Albany, will likely move quickly. The facts aren’t in dispute, leaving attorneys to argue the law and the Constitution without a full evidentiary trial.

Unions see the situation differently than the NLRB. The Amazon Labor Union No. 1, now affiliated with the Teamsters, has asked to file a friend-of-the-court brief, saying New York’s law offers a necessary fallback while the NLRB sits without a quorum to issue board-level decisions. The union points to the drawn-out fight at Amazon‘s Staten Island warehouse—where a 2022 union win took more than two years to be upheld—as evidence of how the federal system has slowed to a crawl. The dispute over the union’s legal status to represent Amazon workers is hanging in the balance, with the legal suspended animation leaving management, the union, and the workforce with no binding legal authority to say who wins or what happens next.

The NLRB’s regional offices continue to operate, investigating various charges in cases, holding hearings and brokering settlements. But cases requiring final rulings pile up in Washington. And, in the meantime, that might change negotiating strategies in some situations.

“One of the big weapons at the bargaining table is the threat of going to the NLRB with an unfair labor practice charge,” Lisi said. The bargaining strategy could be affected if that threat is in limbo.

Thomas Eron, who practices labor law at Bond, Schoeneck & King, which has offices in Melville, said the constitutional issue may be clear, but the practical effects are murkier.

Even without a quorum, he said, “the NLRB still has a life of its own, in a sense. At the regional level, complaints are being filed, investigations were being conducted.

“And significantly, for non-unionized employers, the labor board was taking election petitions.” Only cases on the NLRB’s desk for final determination are stalled.

Eron said New York’s law could set up conflicting tracks for union organizing campaigns.

Under a previous NLRB ruling, employers have two weeks to file for a union election after a union demands recognition—otherwise they risk a presumption of majority support. PERB, under state law, relies on a different process – card checks – which can lead to a different result.

“If there’s a petition at PERB, do you deal with card check there, or do you run to the NLRB and file?” he said. “Miss that two-week window and you may have lost your chance to hold an election.”

For now, PERB has agreed to pause oversight of all private-sector cases while the federal lawsuit moves forward. “In effect, PERB said anything they get in the private sector will stay on ice until the court sorts it out,” Eron said.

The court filings in the Albany case from the Teamsters and the Amazon Labor Union reflect the growing frustration from the labor side. They argue that workers need a viable path when the federal process stalls and note that the drawn-out Amazon case shows what happens when the system runs out of bandwidth.

Business groups counter that this kind of state intervention is exactly what the Supreme Court has long prohibited.

Eron said that the kind of uncertainty of outcome often pushes both sides to negotiate. “Uncertainty is leverage for everyone,” he said. “When the law blurs, people tend to settle rather than gamble on how a judge might read it two years from now.”

Time could also be hard to gauge. The NLRB case against New York could take two years to get to the U.S. Supreme Court if not resolved before then. But some NLRB disputes take even longer to be resolved.

“It’s really not even as much a labor relations issue as it is a constitutional issue,” Lisi said. “It really is a constitutional question that when Congress fails to act, or when the president fails to act…can the state step in to fill the void? There are places where they can and do. And there are other places where they cannot.”