Staff report

WASHINGTON — The National Labor Relations Board has filed suit against the State of New York, saying a newly signed labor law improperly intrudes on federal authority and risks upending decades of national labor law.

https://www.nlrb.gov/news-outreach/news-story/nlrb-files-lawsuit-against-the-state-of-new-york-to-protect-agencys-0

The lawsuit, filed Sept. 12 by Acting General Counsel William B. Cowen, challenges S.8034A, a measure signed into law by Gov. Kathy Hochul on Sept. 5. The law amends the State Labor Relations Act to give the New York Public Employment Relations Board authority over private-sector union elections and unfair labor practice cases.

Cowen said the law is preempted by the 1935 National Labor Relations Act, which gave the NLRB exclusive jurisdiction over private-sector labor relations nationwide. He argued that the state measure, though well intentioned, would only lead to confusion.

“Employers, unions, and employees deserve clarity on their legal rights and regulatory obligations,” Cowen said in a statement. “Attempts such as this only create confusion, waste employees’ time, delay the ultimate resolution of labor disputes, and drive up costs for businesses.”

The NLRB has been operating without a quorum of board members, leaving its Acting General Counsel with authority to pursue litigation. Cowen said the lawsuit was necessary to preserve the agency’s role and ensure consistency in labor law.

Why Delays Matter in Union Organizing

While the lawsuit is framed as a constitutional battle over jurisdiction, the stakes are practical: delays in the federal system can derail union efforts before they ever succeed.

• Momentum fades. When workers petition for a union election, organizing energy is often strong. But if employers challenge the petition or commit alleged unfair labor practices, the case must go through the NLRB. Proceedings can take months or even years. During that time, workers may lose interest, face retaliation, or leave the workplace, weakening the campaign.
• Delayed justice is lost justice. Even if the NLRB eventually rules in favor of workers, the delay often means the original drive is dead. Employers know this and sometimes use the federal backlog as a de facto union-busting tool, dragging cases out until momentum collapses.
• What New York tried to change. By empowering its state board, New York hoped to handle union elections and disputes more quickly, giving workers an alternative to the federal bottleneck.
• What happens now. The NLRB’s lawsuit blocks that option, insisting that only federal law applies. That preserves consistency for employers nationwide but leaves workers reliant on a system too slow to protect their rights in real time.

Bottom line: The NLRB insists it is defending the Constitution and maintaining a single national standard. But the decision will keep workers tied to a system where delay itself can be the difference between a successful organizing drive and a failed one.

Example:

What happened at Staten Island (JFK8)

• In April 2022, warehouse workers at Amazon’s Staten Island facility (JFK8) voted to unionize under the Amazon Labor Union (ALU). It marked the first successful union election in Amazon’s U.S. history. AP News
• Following the election, there were objections, legal challenges, and allegations of unfair labor practices both by Amazon and by union organizers. AP News+1
• Some specific events:
  • Amazon fired an employee, Gerald Bryson, who had been involved in safety advocacy early in the COVID‐19 pandemic. The NLRB’s administrative law judge later found that his firing was an unfair labor practice and ordered his reinstatement. Retail Dive+1
  • The company challenged the union election results and the certification, raising issues of alleged misconduct and improper influence. Vox+2AP News+2

How long it’s been tied up & delays

• From the vote in April 2022 until now, there have been over two years of legal, regulatory, and administrative proceedings.
• Key delays include:
  1. NLRB Review & Investigations: After the vote, the NLRB had to handle objections, investigate unfair labor practice charges (both by workers/unions and Amazon), rule on them, etc. These processes are inherently slow because of the level of evidence collection, hearings, waiting for parties to respond, etc. AP News+2National Labor Relations Board+2
  2. Court Actions:
     • In November 2022, a federal judge (Judge Diane Gujarati) issued a Section 10(j) injunction ordering Amazon to stop firing workers who engage in protected concerted activities and to post, distribute, and read publicly the court’s order at JFK8. National Labor Relations Board+1
     • Amazon has also appealed, challenged the structure of the NLRB, and delayed or sought to pause enforcement in various ways. Reuters+1
  3. Certifications & Election Challenges: The NLRB has had to formally certify the union, dismiss some of Amazon’s challenges to the election, but there are still active disputes (like whether Amazon must bargain) that are moving slowly. Reuters+1

What this shows about delays hurting union efforts

Putting this example alongside the earlier discussion, here’s how delays in the JFK8 case reflect broader problems:

• Momentum loss: Although the vote was won, organizing doesn’t end with the tally. Workers still need to negotiate a contract, enforce protections, and feel safe in speaking up. Years of legal back‐and‐forth can dampen enthusiasm among workers, especially when turnover is high or working conditions are stressful.
• Legal uncertainty & distraction: Challenges, both at the NLRB level and in court, occupy time and resources for both the union and workers. They must respond to legal filings, hearings, etc., instead of focusing on organizing internally, pushing for contract details, or dealing with issues in the workplace.
• De facto delays = de facto weakening of rights: Even when the union wins in principle, if Amazon delays negotiating or if court orders are slow to enforce, workers may endure unfair conditions for longer, or employer pressure may undermine the union’s position.
• Cost of waiting: Workers may lose wages, benefits, or even jobs due to retaliation before final resolutions. Also, legal fees, and the mental burden of uncertainty, can take a toll.
• Precedent & deterrence: Other workers seeing how long this has dragged out might be discouraged from trying. Employers may see that delaying actions (filing objections, appeals) is a viable tactic to stall unionization.

How Delay Becomes Union Busting by Another Name

Employers have long fought union drives with direct tactics — anti-union consultants, captive-audience meetings, or even firings. But another, subtler weapon is proving just as powerful: delay. By tying disputes up in courts or dragging them through the slow-moving federal labor system, companies can sap momentum, wear down workers, and often outlast union campaigns altogether.

Here are three examples that show how time itself has become a union-busting tool.

Example 1: Amazon’s Staten Island Warehouse (JFK8)

In April 2022, workers at Amazon’s JFK8 warehouse on Staten Island voted to form the first U.S. Amazon union. It was a historic victory. But more than two years later, the union still doesn’t have a first contract.

Amazon has kept the case tied up by filing legal objections, challenging the election’s validity, and appealing NLRB rulings. The company has also fought NLRB enforcement orders in federal court, arguing over technicalities while continuing to operate without a union contract.

The result: workers are left waiting. Some of the original organizers have moved on. Turnover has weakened the drive. The momentum that carried the election victory has been blunted by a drawn-out legal war.

For unions, the message is clear — even when you win the vote, you can lose to time.

Example 2: Starbucks and the Dress Code Dispute

In 2025, Starbucks imposed a stricter dress code requiring workers to buy specific black shirts, khaki or denim pants, and compliant footwear. Workers said the policy unfairly forced them to pay out of pocket. Lawsuits were filed in California, Colorado, and Illinois, alongside unfair labor practice charges with the NLRB.

But those cases will take months or years to resolve. In the meantime, baristas are required to comply or risk losing shifts. Even if courts eventually rule Starbucks must reimburse costs, the damage is already done — workers have borne the expenses, and the organizing momentum is undercut.

Unions call this “busting by attrition.” The company doesn’t need to win quickly in court; it simply needs to wait out the process while workers absorb the costs and frustrations. Once again, delay is the weapon.

Example 3: New York’s Blocked Labor Law

New York lawmakers tried to address this problem directly. A law signed in September 2025 would have given the state’s Public Employment Relations Board authority over private-sector union elections and unfair labor practices. Supporters argued it could speed up disputes and keep employers from running out the clock on workers.

But within a week, the National Labor Relations Board filed a lawsuit against New York, saying the law violates federal supremacy. The NLRB insists it alone has jurisdiction over private-sector labor disputes.

That keeps one national standard in place — but also locks workers into the same slow federal system. Critics say it effectively preserves the status quo where delay often benefits employers and undermines organizing efforts.

Example 4: Indiana University’s Graduate Workers Union

At Indiana University, graduate employees began organizing in earnest in 2022, demanding recognition of their union to negotiate over wages, health benefits, and working conditions. Instead of outright union-busting tactics, the university adopted a different approach: refusing to recognize the union at all.

Without recognition, no election was held under the Indiana Labor Relations Board, and no contract negotiations began. Administrators instead waited — offering incremental stipends or adjustments while letting time pass. With each passing semester, turnover eroded organizing strength as graduate workers graduated and left campus.

By doing nothing, IU effectively achieved what Amazon and Starbucks accomplished with legal challenges: it ran out the clock. Graduate workers’ campaigns slowed under the weight of waiting, showing how non-recognition itself can be a form of union busting.

The Pattern: Winning by Waiting

Taken together, these cases show how delay has become a structural barrier to union power:

• Employers exploit backlogs in the NLRB and federal courts.
• Workers lose momentum as cases stretch into years.
• Even victories can feel hollow, if they arrive long after the organizing drive has cooled.
• Non-recognition itself can be a form of union busting.

The post Explainer: NLRB Sues New York Over Labor Law; And How Winning by Waiting is a Union Busting Tactic first appeared on The Bloomingtonian.