Preemption of State Law in Certain Suits Against Labor Unions Written by: Michael S. Haber Summary: Federal labor law often preempts state law in actions by union members against their labor unions for
breach of the duty of fair representation. This brief guide
explains some of the rules for analyzing whether federal
1 The Doctrine of Preemption in General The Supremacy Clause of the Constitution is not typically the kind of subject that arises during discussions at cocktail parties. At least until
recently. The Supremacy Clause has been getting lots of play lately, as
courts are called upon to determine if Arizona may develop its own
The Supremacy clause (Article VI, Section 2 of the U.S. Constitution)
declares that all laws and treaties made by the federal government will
be “the supreme law of the land." It means, simply, that the federal
government, in exercising powers set forth in the Constitution, will
prevail over any inconsistent or conflicting exercise of power under
The Supremacy Clause give rise to issues that fall within the area of
federal preemption. In other words, the Constitution and other federal
laws and treaties will preempt (or supersede) state laws and rights that
arise pursuant to state law.
2 Federal Preemption in Actions Against a Labor Union
For Breach Of The Duty of Fair Representation
Preemption, of course, arises in a wide array of circumstances implicating many different laws. One such area of law in
which preemption is a
frequent issue is when a
union member seeks to
hold his or her union
accountable for its breach
of a labor union’s “duty
of fair representation”
[“DFR”] to its members.
Underlying the doctrine
of federal preemption is
the concern that a state
law may serve to impede
the objectives of federal
law. Courts often deem
claims that are identical
to duties owed under the DFR. The DFR prevents a union from acting in a way that is in bad faith, arbitrary, or discriminatory. Thus, quite often a union member who sues his or her union
for breach of the union’s DFR will join with the DFR claim other claims, such as fraud.
Courts will often deem preempted by the DFR state law claims that are “essentially identical” to the DFR claim, largely because state law should neither limit nor enlarge the scope of federal laws.
3 Sometimes State Law Rights Will Escape
Preemption in Duty of Fair Representation Lawsuits
State-law claims are sometimes “merely a peripheral concern” of federal law. State law claims escape preemption when they are rooted in a state’s police powers or when state law rights do not interfere with the federal scheme. Compelling local interest in certain tort regulation is recognized as being of little concern to federal labor law.
There is also a presumption against preemption. Thus, courts often restrict preemptive effect of federal laws, particularly when it is a subject that is traditionally governed by state law, as, for example, defamation claims.
A key issue in determining whether the DFR preempts state law is whether a collective bargaining agreement ["CBA"] must be interpreted; if so, preemption is more likely. For that reason, purely factual questions are typically deemed by courts as not requiring interpretation of a CBA. The mere existence of a CBA as part of the factual background of the case does not by itself require preemption.
The Railway Labor Act, under which the DFR arises in the railroad and aviation industries (as, for example, in the employment of airline pilots), can preempt a state law claim, only if it the state law claim is dependent on the interpretation of a collective bargaining agreement.
Another inquiry is whether the rights involve exist independently of the collective bargaining agreement. If so, federal preemption is less likely to apply.
This happens to be a complicated area of the law, and issues concerning federal preemption of state law rights in a duty of fair representation context will typically require consultation with an attorney experienced in federal labor law.