A federal court blocked most of California’s attempt to give its own labor board power over private-sector union disputes. AB 288, effective January 1, 2026, added Labor Code section 923.1, which lets certain workers petition the state Public Employment Relations Board when federal labor law protections stall. On December 26, 2025, the U.S. District Court for the Eastern District of California preliminarily enjoined the state from implementing most of the triggers that would have sent private-sector cases to PERB. Three narrow paths remain.
What did AB 288 do?
AB 288 (Stats. 2025, ch. 139) added Labor Code section 923.1. Subdivision (b)(1) says a qualifying worker “may petition the Public Employment Relations Board to protect and enforce the rights described in subdivision (a),” which include the right “to engage in collective action, to organize, form, join, or assist labor organizations.”
The statute describes two kinds of workers who can petition. The first, in subparagraph (A), is a worker who loses coverage under the National Labor Relations Act “because the National Labor Relations Act is repealed, narrowed, or its enforcement enjoined in a case involving that worker.” The second, in subparagraph (B), is a worker whose position is covered by the NLRA “but the National Labor Relations Board has expressly or impliedly ceded jurisdiction.”
The statute then lists conditions that count as the NLRB ceding jurisdiction. They include “a lack of a quorum of the National Labor Relations Board,” a finding that the NLRB “has lost its independence,” and processing delays, such as a case “remaining pending before a regional director for more than six months without the issuance of a complaint or certification of an election.”
What did the federal court enjoin?
Most of the ceded-jurisdiction triggers. In NLRB v. State of California, No. 2:25-cv-02979-TLN-CKD, the NLRB sued on October 15, 2025, arguing that the NLRA preempts AB 288. Chief Judge Troy L. Nunley granted a preliminary injunction “in part and DENIED in part.”
The order enjoins the state from implementing section 923.1(b)(1)(B)(i) as to “lack of quorum of the [NLRB],” and “the [NLRB] has lost its independence,” and all of subparagraphs (B)(ii), (B)(iii), and (B)(iv), which are the processing-delay triggers.
The court focused on how the statute would work in practice. Because AB 288 lets PERB keep a matter and “specifies that PERB is not obligated to follow NLRA precedent,” the order said, “these clauses position PERB to stand in the way of the NLRB’s ability to process a matter over which it has jurisdiction.”
A preliminary injunction isn’t a final judgment. It’s the court’s view at an early stage, and the case docket remains open.
What does the order leave in place?
Three provisions. The order says the state “may implement” section 923.1(b)(1)(A), the loss-of-coverage provision; section 923.1(b)(1)(B) “as to ‘expressly [] ceded jurisdiction[;]’”; and section 923.1(b)(1)(B)(i) “as to ‘a case is enjoined by a court[.]’” A footnote explains that AB 288’s severability clause led the court to allow those parts.
| AB 288 trigger for PERB jurisdiction | Status under the December 26, 2025 order |
|---|---|
| Worker loses NLRA coverage (repeal, narrowing, or enjoined enforcement in the worker’s case), § 923.1(b)(1)(A) | May be implemented |
| NLRB expressly cedes jurisdiction, § 923.1(b)(1)(B) | May be implemented |
| Continued processing of a case enjoined by a court, § 923.1(b)(1)(B)(i) | May be implemented |
| NLRB lacks a quorum or has lost independence, § 923.1(b)(1)(B)(i) | Enjoined |
| Processing delays of six months or more, § 923.1(b)(1)(B)(ii)-(iv) | Enjoined |
What does this mean for a private employer?
For most employers, the NLRB is still the agency that hears union election disputes and unfair labor practice charges. The enjoined triggers were the ones most likely to come up in ordinary cases, because NLRB delays and quorum questions are common. The surviving triggers turn on unusual events: a court order stopping the NLRB’s case, the NLRB disclaiming jurisdiction, or a change in federal law that removes a worker’s coverage.
That doesn’t make the statute irrelevant. A union or employee group may still try to bring a petition under a surviving provision, especially where an employer has itself challenged the NLRB’s authority in court and won a stay. An employer that pursues that kind of constitutional challenge in a federal case should factor in that a court-ordered stop to the NLRB case is one of the surviving triggers.
Section 923.1 also sits alongside other California rules on labor relations. Retaliation against workers for organizing or for concerted activity is a separate exposure under federal law, discussed in the firm’s post on protected concerted activity at nonunion companies, and California’s restrictions on mandatory meetings about unionization are covered in its post on the captive audience law and the Ninth Circuit injunction.
What should an employer facing organizing activity do now?
A petition to PERB, an NLRB charge, and a state-court lawsuit can each arrive with short response windows, so the first steps are about getting organized.
- Preserve communications with employees about the organizing campaign, including supervisor texts and emails, meeting materials, and any discipline issued during the campaign.
- Calendar the response deadline on any NLRB charge, PERB petition, or court filing, and confirm whether the company’s EPLI policy covers labor-relations claims and requires notice.
- Identify the supervisors involved, train them on what they may and may not say, and pause discipline of organizing employees until it’s been reviewed.
- Pull the personnel and discipline records for any employee who claims retaliation, along with the policies applied.
- Talk to a lawyer before responding to a PERB petition, since whether PERB has jurisdiction under the surviving provisions is the first question to raise.
The firm’s page on employer defense in California employment cases describes how retaliation and labor-related claims are defended.
If a union or employee group has filed with PERB
If your company has received a PERB petition or an organizing-related retaliation claim, whether the case fits one of AB 288’s surviving triggers usually decides which agency hears it. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving union organizing and retaliation. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Labor Code section 923.1, added by AB 288 (Stats. 2025, ch. 139). The court order is NLRB v. State of California, No. 2:25-cv-02979-TLN-CKD (E.D. Cal. Dec. 26, 2025).
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.