````
            LEGAL GUIDE

         Preemption of State Law in Certain
       Suits Against Labor Unions

           Written by: Michael S. Haber

      SummaryFederal 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
                                                                          premption applies.

    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
                                            immigration policy.

       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
                                             state law.

        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
preempted state-law
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.

4    Conclusion

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.
suing labor unions
212 791-6240
225 Broadway, Suite 3010
New York, New York 10007
Law Offices of Michael S. Haber, 225 Broadway, Suite 3010, New York, New York 10007  (212) 791-6240
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