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 preemption 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 issues increasingly arise as to whether
                                                    states may develop their 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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