Summary
The California Legislature Attempted to Sidestep the Federal Supremacy Clause and Got Caught
California AB-288 (Chapter 139, Statutes of 2025) is a state-level attempt to let certain private-sector workers seek remedies through California’s Public Employment Relations Board (PERB) when the federal National Labor Relations Board (NLRB) is unable (or deemed unable) to act.
A practical, business-reader guide to what the Law tried to do, what a federal judge has blocked (for now), and what companies should watch next.
Disclaimer: This article is informational and not legal advice. AB-288 is subject to ongoing litigation, and parts of it have been preliminarily enjoined; businesses should consult counsel for situation-specific guidance.
The Law was signed and chaptered on 30 September 2025, amending Labor Code §§ 1141 and 1148 and adding §§ 923.1 and 1140.6, among other provisions described in the chaptered text.
Businesses should monitor developments, including court filings, appellate proceedings, and NLRB updates, to stay informed about AB 288’s legal status and to proactively adjust their compliance plans.
Why AB-288 Exists: A Backstop Built for Federal Breakdown
AB-288 is explicitly framed as a response to perceived or actual dysfunction at the NLRB—particularly the risk that the federal system could be slowed or stalled by quorum problems, constitutional challenges, or extended delays —leaving organizing and unfair labor-practice (ULP) disputes unresolved.
California’s public rationale—echoed in the state’s signing announcement—was that if the NLRB “does not fulfill its duties,” workers should have a way to petition PERB as an alternative forum.
In the chaptered statute, the Legislature includes findings and declarations explaining why it believes California has an interest in ensuring that workers can “effectively vindicate” their organizing and bargaining rights when the federal process is impaired.
What AB-288 Actually Changes (in plain English)
At its core, AB 288 seeks to create a “state fallback lane” for certain disputes that would otherwise fall exclusively within the NLRA/NLRB regime, by authorizing petitions to PERB under defined conditions.
The chaptered bill text shows that AB 288 adds Labor Code § 923.1, which directs a liberal construction to protect workers’ rights of association and collective action and provides a mechanism for petitioning PERB under specified triggers.
It also makes related structural changes (including amendments to Labor Code §§ 1141 and 1148 and the addition of § 1140.6). It contains additional provisions discussed in the legislative digest, including confidentiality handling and an enforcement fund tied to civil penalties.
The “Triggers”: When AB-288 Says PERB Can Step In
AB 288’s key operational language is in Labor Code § 923.1(b)(1), which sets two broad pathways for PERB jurisdiction over certain workers’ petitions.
1) Loss of NLRA coverage
A worker can petition PERB if they are in a job that “is, or would have been” subject to the NLRA as of 1 January 2025, but lose NLRA coverage because the NLRA is “repealed, narrowed, or its enforcement enjoined” in a case involving that worker, with carveouts for other federal/state regimes (e.g., Railway Labor Act, ALRB).
2) NLRB “expressly or impliedly” cedes jurisdiction
AB 288 also attempts to treat the NLRB as having “impliedly” ceded jurisdiction if certain conditions are met (as of 1 January 2026), including situations involving: lack of quorum, alleged loss of independence, case-processing injunctions, and specified delay thresholds at various stages (regional, ALJ, review, and exceptions).
From a business standpoint, these triggers matter because they determine when an employer may face proceedings in a state forum for conduct traditionally governed by the federal labor framework. Staying aware of these developments helps businesses anticipate and adapt to possible jurisdictional overlaps. Another way of saying this is that if a plaintiff cannot get their bite of the apple in federal court, they can turn to the California state court, which is highly labor-union-biased.
What PERB Could Do Under AB 288 (Before the Injunction)
AB 288 contemplates that workers (or their representatives) could ask PERB to process representation petitions previously filed with the NLRB and to certify an exclusive bargaining representative under certain circumstances (including selection by majority support through recognized methods).
The chaptered digest also describes PERB’s potential role in deciding ULP matters, including a timeline and ordering “appropriate relief,” such as civil penalties. It establishes a PERB Enforcement Fund into which specific penalties would be deposited (appropriated for the administration of these provisions).
Separately, AB 288 includes a notable records/confidentiality provision: the digest indicates that PERB would hold specific supporting documentation and evidence confidential as investigatory material and exempt them from disclosure under the California Public Records Act.
The Lawsuit: Federal Preemption Takes Center Stage
My Article on Federal Supremacy
In October 2025, the NLRB filed suit in the Eastern District of California seeking to block enforcement, arguing the NLRA preempts AB 288 and creates an impermissible “parallel regulatory system.”
Coverage at the time described the lawsuit as a Supremacy Clause/preemption challenge designed to preserve the NLRB’s traditional role over private-sector labor relations.
This dispute follows a broader pattern of states exploring “trigger” concepts when federal agencies are perceived as stalled—an approach that has also prompted litigation in other jurisdictions.
The Big Development: The 26 December 2025, Preliminary Injunction (What’s Blocked vs. What Survived)
On 26 December 2025, Judge Troy L. Nunley (E.D. Cal.) granted the NLRB’s motion for a preliminary injunction in part and denied it in part, enjoining California from enforcing specific provisions of Section 2 of AB 288 while allowing other limited provisions to remain available (for now).
The court’s order walks through the statute’s “triggers. It frames the core question as conflict/preemption—i.e., whether AB 288 creates conflicting jurisdiction over activity that the NLRA protects/prohibits (or arguably does).
Critically for businesses, the order indicates the court saw unacceptable risk of conflicting jurisdiction in significant parts of AB 288’s “implied cession” framework—particularly where the trigger was NLRB quorum loss and delay-based conditions—while recognizing narrower situations where federal authority genuinely disappears (e.g., where the NLRA no longer applies to a worker, or where a specific case is enjoined).
Practical takeaway: As of early January 2026, AB-288 is not a reliable “second forum” for most private-sector disputes because key handoff conditions are blocked—yet the Law is not dead, and some narrow pathways remain potentially viable pending appeal and merits rulings. But, bad legislation of the radical left, labor union-biased legislature got wacked.
What This Means for General Business Readers (Not Just HR)
Even if you never plan to unionize (or deal with a union), AB-288 matters because it highlights three operational risks companies care about: forum, timeline, and remedy uncertainty.
First, forum uncertainty: AB-288 was designed to open a state door (PERB) in addition to the federal door (NLRB), raising concerns about parallel exposure—an issue the federal court cited as a basis for the injunction.
Second, timeline uncertainty: AB-288’s “delay triggers” attempted to treat slow processing as a handoff event, but the court’s injunction underscores that delay, by itself, is not automatically a permission slip for state takeover.
Third, remedy uncertainty: AB-288’s digest contemplates remedies and funding mechanisms (including civil penalties and an enforcement fund), which—if revived—could alter downside exposure relative to standard NLRA remedies, even though the injunction now constrains the scope.
A Practical “Watch List” for Companies Operating in California
Here’s what a well-run business should monitor (without overreacting):
· Appeals and further orders in NLRB v. State of California, because the 26 December injunction is preliminary and could be narrowed, expanded, or reversed.
· Whether any remaining, narrow triggers (loss of NLRA coverage or case-specific injunctions) become practically relevant to your workforce category or industry niche.
· How the NLRB’s operational capacity changes (e.g., restored quorum, shifting enforcement priorities), since AB 288’s policy premise is tied to perceived federal incapacity
· Your internal labor-risk fundamentals—employee communications, handbook rules, supervisor training, and documentation—because the best defense against uncertainty is reducing the likelihood of disputes, regardless of the forum.
Bottom Line
AB-288 is California’s attempt to “grab the rope” and pull some private-sector labor disputes toward a state forum when federal enforcement falters—but a federal court has already restrained that pull, at least for now.
For business leaders, the most prudent stance is not panic—it’s situational awareness: monitor the litigation, understand whether your worker categories could ever fit the narrow surviving triggers, and keep your labor-practices house in order.
For the Technical Reader
Below is a detailed, plain‑English explanation of the NLRB’s lawsuit challenging California’s AB 288, including who sued whom, what the complaint argues, what relief the NLRB asked for, what the court did at the preliminary‑injunction stage, and what’s left to fight about. (Informational only; not legal advice.)
1) The case in one sentence
The National Labor Relations Board (NLRB) sued the State of California and California’s Public Employment Relations Board (PERB) to stop enforcement of Section 2 of AB 288, arguing it’s preempted by the National Labor Relations Act (NLRA) and creates a parallel state enforcement system over conduct Congress reserved for federal regulation.
2) Who the parties are (and why that matters)
- Plaintiff: NLRB, the federal agency Congress created to administer and enforce the NLRA (including union representation proceedings and unfair labor practice cases).
- Defendants: State of California and PERB, the California agency historically focused on public‑sector labor relations (state/local government employees), which AB-288 attempted to position as a backup forum for certain private‑sector disputes.
- Intervenor: The International Brotherhood of Teamsters was allowed to intervene to defend AB 288.
Why it matters: The lawsuit isn’t about one employer or one workplace dispute—it’s about who has authority (jurisdiction) to regulate private‑sector labor relations in California when federal enforcement is impaired or delayed.
3) What AB-288 (Section 2) tried to do
AB 288 (chaptered 30 September 2025) adds Labor Code § 923.1, which allows certain workers/representatives to petition PERB to “vindicate” organizing and collective-bargaining rights if:
· they lose NLRA coverage (because the NLRA is repealed, narrowed, or its enforcement enjoined in a case involving that worker), or
· The NLRB has “expressly or impliedly” ceded jurisdiction, with “implied” cession defined by triggers such as lack of quorum, alleged loss of independence, court injunctions halting NLRB processing, and various processing‑delay thresholds.
California publicly framed AB-288 as a path for workers to seek PERB relief when the NLRB “does not fulfill its duties.”
4) What the NLRB asked the court to do (the “relief”)
In its complaint, the NLRB requested:
- a declaratory judgment that Section 2 of AB 288 is preempted by the NLRA (under the Supremacy Clause), and
- an injunction preventing California/PERB from enforcing Section 2, because it allegedly creates a parallel regulatory system inconsistent with Congress’s national labor policy.
This is a classic “stop the statute before it operates” lawsuit: the NLRB filed a lawsuit in federal court seeking to enjoin AB 288’s state-level process on federal supremacy and uniformity grounds.
5) The NLRB’s core legal theory: NLRA preemption (Garmon / “exclusive federal field”)
The complaint’s main point
The NLRB says AB 288 unlawfully empowers PERB to regulate conduct that the NLRA already covers (or arguably covers) and therefore is preempted under the Supremacy Clause.
How the judge framed it
In the preliminary‑injunction order, the court analyzed AB-288 primarily under Garmon preemption principles—i.e., states generally can’t regulate activity that the NLRA protects, prohibits, or arguably protects/prohibits, because that risks conflicting rules and remedies and undermines the NLRB’s role as the specialized tribunal.
Why “parallel systems” are a problem (in this doctrine)
The court emphasized the risk of “conflicting jurisdiction” and “two separate remedies … brought to bear on the same activity,” which is precisely what the NLRA’s preemption doctrines are designed to prevent.
6) The factual dispute beneath the legal dispute: “Did the NLRB really stop functioning?”
California’s defense (and labor supporters’ framing) is essentially: AB-288 only activates when the NLRB can’t do its job, so there’s no actual conflict—PERB is filling a gap.
The NLRB’s response is: even when the Board lacks a quorum or is slow, Congress did not authorize states to take over, and the NLRB can still function “to the greatest extent permitted by Law” through delegated authority (regional directors, ALJs, and the General Counsel), even if certain Board-level decisions pause.
The court’s order recounts California’s legislative findings about NLRB dysfunction (quorum issues, constitutional litigation, and delays). Still, it treats the controlling question as whether AB 288’s triggers create an impermissible conflict with the NLRA scheme.
7) Procedural History and key filings (what happened when)
- 30 September 2025: AB 288 signed and chaptered.
- 15 October 2025: NLRB files the lawsuit in E.D. California is seeking declaratory and injunctive relief.
- Nov. 2025: Teamsters permitted to intervene (noted in the court’s order History).
- 26 December 2025: Court issues a preliminary injunction order: granted in part, denied in part.
8) The preliminary injunction: what the court blocked vs. allowed
The judge has not yet made a final decision in the case. A preliminary injunction concerns whether the plaintiff (here, the NLRB) is likely to succeed and whether immediate harm and the public interest favor pausing enforcement while the merits are litigated.
✅ What the court said California may implement
According to the docket summary of the injunction order:
· § 923.1(b)(1)(A) — the “loss of NLRA coverage” pathway (NLRA repealed/narrowed/enjoined as to the worker).
· § 923.1(b)(1)(B) — only to the extent the NLRB has “expressly” ceded jurisdiction.
· § 923.1(b)(1)(B)(i) — only to the extent a specific case is enjoined by a court (i.e., NLRB proceedings halted by a court order).
❌ What the court enjoined (blocked)
Again, per the docket summary, the court preliminarily enjoined California from implementing:
- § 923.1(b)(1)(B)(i) as to “lack of quorum” and “lost independence” triggers,
- § 923.1(b)(1)(B)(ii) (delay at regional/ALJ stage),
- § 923.1(b)(1)(B)(iii) (delay in Board review/permission to appeal),
- § 923.1(b)(1)(B)(iv) (delay for cases pending on exceptions/review).
Why the court drew that line
The court reasoned, in substance, that delay or quorum problems do not automatically constitute a true “jurisdictional void” that permits a state agency to step in without creating a conflicting system. In contrast, actual loss of NLRA coverage or a case-specific injunction against NLRB proceedings more closely resembles a genuine gap.
9) What the lawsuit is “really” about for businesses
Even if you never see a union drive, this lawsuit is a significant signal about forum stability:
- If AB 288 were fully effective, employers could face state-level labor adjudication (PERB) that overlaps with federal NLRA standards—leading to inconsistent rulings, duplicative litigation, and compliance uncertainty.
- The preliminary injunction largely preserves the status quo: the NLRB remains the primary venue for private‑sector labor relations, with only narrow AB-288 pathways available.
10) What happens next (typical next steps)
Because the 26 December order is preliminary, several things can happen:
1. Merits litigation continues in the district court (briefing, possible summary judgment, final judgment).
2. Appeal: either side can seek appellate review of the injunction (or later, the final decision).
3. Narrow tailoring: the injunction’s scope can be modified as facts and legal arguments evolve.
Review summary
- NLRB’s claim: AB-288 §2 is NLRA-preempted, creates a parallel system, and violates the Supremacy Clause.
- California’s theory: AB-288 fills a gap when the NLRB can’t act; no conflict.
- Court so far: Blocks quorum/independence triggers and delay triggers; allows loss of NLRA coverage, express cession, and case-specific injunction pathway.