PERB - Horton Management Law

On September 5, 2025, Governor Kathy Hochul signed off on a potentially monumental change in New York’s labor law. The amendment to the New York State Labor Relations Act purports to give the New York Public Employment Relations Board (PERB) broad jurisdiction over private employers. As its name suggests, PERB historically focuses on public sector labor relations issues. The National Labor Relations Board (NLRB), a federal agency, governs most private-sector labor relations throughout the country, including New York. Can New York step in and take over this historically federal role?

Read here for more on the scope of NLRB’s jurisdiction.

NYS Labor Relations Act Amendment

The amendment to Labor Law § 715 purports to expand PERB’s jurisdiction to private employers in a novel way. Specifically, the statute now provides that PERB has jurisdiction over private-sector labor relations unless the NLRB “successfully asserts jurisdiction over any employer, employees, trades, or industries pursuant to an order by the federal district court established under article three of the United States constitution.”

If you’re not sure what that means, you’re not alone. The wording appears to be ambiguous in multiple respects. But we do at least know what the NY Legislature wants it to mean.

State Senator Ramos sponsored the legislation in the NY Senate. Her introducer’s memorandum explains the goal: to prevent a gap in labor law enforcement during periods when the NLRB cannot act, such as when the Board lacks a quorum. In other words, “This bill intends to give New York the power to protect employees if the National Labor Relations Board is not fulfilling its duty.”

The amendment took effect immediately upon signing.

Federal Preemption

The NY Legislature knows that this amendment will face preemption challenges. The Sponsor’s memo acknowledges that “[u]nder current law the National Labor Relations Act preempts any attempt to take up these cases at the state level.”

The Supreme Court has long held that the NLRA preempts most state regulation of private-sector labor relations:

Garmon preemption blocks state action in areas “arguably protected or prohibited” by the NLRA.
Machinists preemption blocks states from regulating areas Congress intended to leave to the “free play of economic forces.”

The Sponsor’s memo asserts that “The National Labor Relations Act simply remaining in place does not guarantee that the provisions will successfully protect employees.” Thus, the Legislature’s theory seems to be that by amending state law as they have, PERB can assert jurisdiction unless the NLRB stops it from doing so. However, that reasoning still appears to be at odds with established preemption case law.

The Garmon and Machinists preemption doctrines don’t shut off just because the NLRB is not acting. Federal law still governs, even if enforcement is delayed.

There are two narrow exceptions where states can act:

When the NLRB formally declines jurisdiction over entire categories of employers under NLRA § 14(c)(2) (e.g., very small local businesses).
When the NLRB cedes jurisdiction to a state agency under NLRA § 10(a).

New York’s amendment doesn’t fit either exception. Instead, it aims directly at the NLRB’s core jurisdiction, effectively daring federal courts to enforce existing preemption standards.

On September 12, 2025, the NLRB sued the State of New York and its PERB seeking to enjoin the enforcement of the amendment. If the NLRB (which is not itself an employer subject to the NYS law) is deemed to lack standing, then private parties may need to take up the litigation fight.

How New York’s State Labor Relations Act Differs from the NLRA

One reason the recent amendment is so consequential is that New York’s own Labor Relations Act is not just a copy of the NLRA. The differences are significant.

Devalues Employer Interests

Most importantly, the New York law is written as a one-sided protection for employees. The NLRA recognizes both employee rights and certain employer rights. The New York state labor relations statute does not include that balancing language. Its focus is on ensuring employees’ right to organize.

Certification procedures under the state law are also potentially more favorable to unions. While the NLRB strongly favors secret-ballot elections, the NY State Labor Relations Act permits certification based on alternative showings of majority support. In practice, that could mean greater reliance on card-check recognition and fewer opportunities for employers to communicate with their employees before a union is installed.

Lacks Relevant Precedent

The NLRA has nearly 90 years of precedent guiding questions like: What is an appropriate bargaining unit? When is an election necessary? What counts as unlawful conduct during a campaign? PERB has far less (essentially zero) precedent in the private-sector setting, and the State Labor Relations Act does not replicate all the more detailed parameters found in federal law. In essence, PERB would be starting from scratch in this area.

Broader Remedies

Finally, remedies under the state law are not identical to those under the NLRA. At the federal level, remedies are historically limited: reinstatement, back pay, and cease-and-desist orders. The New York statute authorizes PERB to fashion remedies for unfair labor practices with little guidance on limits. Without decades of judicial gloss, employers could face new uncertainty about what remedies PERB might impose.

In short, if PERB were to exercise jurisdiction broadly under this amendment, employers would not simply be dealing with the familiar NLRA system transplanted to Albany. They would be operating under a different statute—one that is more protective of employees, less protective of employers, and far less developed in terms of jurisprudence.

What Employers Should Do

Stay alert to petitions. If a union files at PERB citing the new law, you may need to respond quickly with a preemption defense.
Know your thresholds. If you are in one of the small categories where the NLRB has formally declined jurisdiction, PERB jurisdiction is nothing new—it already applied.
Prepare for litigation. Expect forum fights. Legal battles are inevitable—effectively invited by the amendment. The question is which employers will be the ones stuck in the crosshairs and forced to take up the fight.

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The New York Public Employment Relations Board (PERB) administers the Taylor Law, which extends collective bargaining rights to public employees in the state. The Taylor Law created PERB with its enactment in 1967.

Since July 2010, PERB has also administered the New York State Employment Relations Act, which governs collective bargaining for private employers in New York over which the National Labor Relations Board (NLRB) does not exercise jurisdiction. However, because the NLRB’s jurisdiction over private employers is broad, the overwhelming majority of PERB’s work still involves only public (governmental) employers.

PERB is similar to the NLRB in that it operates primarily through adjudication. Whereas the federal Labor Board processes “unfair labor practice” charges, PERB handles “improper practice” charges. Both entities oversee representation cases–determinations of which labor organization, if any, represents a particular group of employees.

PERB Board

The governor appoints the 3 members of the PERB Board, with the advice and consent of the State senate. No more than 2 of the board members can be from the same political party. Board members hold 6-year terms, with the governor appointing one member to serve as the chair.

The Board and most of the agency’s staff operate out of Albany. There are also regional offices in Brooklyn and Buffalo.

John Wirenius chairs the Board. Robert Hite is another board member. The third seat is vacant.

PERB Representation Procedures

Under the Taylor Law, public employers in New York can voluntarily recognize a labor organization as the bargaining representative of certain employees.

Where the employer has not voluntarily recognized a union to represent select employees, the union can file a petition with PERB seeking certification as the employees’ exclusive bargaining representative. The union must also file a “showing of interest” by at least 30 percent of the employees in the proposed bargaining unit.

The employer, and other interested parties (e.g., other union(s) claiming majority support), have 10 days to file a response to the representation petition. Then PERB investigates the facts surrounding the petition to determine whether there is majority support for the union representation. If necessary, there may be a hearing before an administrative law judge as part of its inquiry.

Unlike in the NLRB representation process, PERB need not hold an election before determining the question of representation. Sometimes, however, more than one union seeks representation of the same employees. Or there is insufficient evidence of support for certification without an election. Then PERB will hold an election to determine the representation status.

There are also procedures for decertification and unit clarification.

Role in Collective Bargaining

PERB oversees various procedures related to impasse resolution in collective bargaining. In other words, it gets involved when New York public employers and the unions representing their employees can’t agree on terms of employment.

The Office of Conciliation provides services related to mediation, fact-finding, and interest arbitration.

Either party to the negotiation of a labor agreement may file a declaration of impasse when it believes the parties cannot make further progress on their own. If the Director of Conciliation finds the declaration sufficient, a mediator will be appointed.

If the mediation process does not resolve the negotiations, then the matter will proceed either to fact-finding or interest arbitration. Fact-finding applies to most negotiations involving public labor negotiations in New York. However, interest arbitration prominently applies to police office and fire-fighter labor contracts.

Improper Practice Charges

When public sector unions or employers feel that their rights under the Taylor Law have been violated, they may file an improper practice (IP) charge with PERB.

Once an agency director initially reviews the IP charge and forwards it to the non-filing party, the respondent party must file an answer to the charge (among other possible responses).

Next, PERB typically schedules a conference between the parties with an Administrative Law Judge. If the conference does not resolve the dispute, then the case may proceed to a hearing before an ALJ.

If either party does not agree with the ALJ’s decision following a hearing, they may appeal to the PERB Board.

Know Before You Go

The New York Public Employment Relations Board needn’t be a scary place. Still, most employers don’t want to end up there. Yes, sometimes employers initiate PERB cases. But unions file most of them.

The best way to avoid PERB is to make sure you are following the Taylor Law. But, even then, negotiation impasse may be unavoidable at some point.

Especially if you don’t have experience with PERB and its procedures, you shouldn’t just go in to a conference or mediation assuming everything will go your way. Usually, it will be best to consult your city/town/village/county/school attorney first. If they don’t have the expertise, then you may need to also speak to a lawyer who regularly handles labor and employment matters for public employers.

Tag: PERB

New York Tries to Expand State Labor Relations Jurisdiction