Employment Law Daily NLRA did not preempt NYSHRL for discrimination claims filed against union by member
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Thursday, July 27, 2017

NLRA did not preempt NYSHRL for discrimination claims filed against union by member

By Ronald Miller, J.D.

The duty of fair representation under the NLRA did not preempt the New York State Human Rights Law (NYSHRL) for claims of discrimination filed by a union member against a union acting in its capacity as a collective bargaining representative, ruled the Second Circuit. Applying the conflict preemption framework, the appeals court found no evidence that the NLRA’s duty of fair representation was designed or intended to preempt state laws focused on combatting invidious discrimination, such as the NYSHRL. Accordingly, the judgment of the district court was reversed (Figueroa v. Foster, July 25, 2017, Pooler, R.).

Discriminatory practices by union. The NYSHRL prohibits the commission of specific unlawful discriminatory practices, including retaliatory conduct, by various entities, including labor organizations. The Commissioner of the New York State Division of Human Rights (SDHR) has promulgated regulations for the enforcement of the NYSHRL. In this case, the plaintiff is the president of a local union. Every collective bargaining agreement to which the union is a party includes a grievance or arbitration mechanism for resolving disputes, including disputes about employee discipline.

Between June 1, 2009 and April 6, 2016, 21 individuals filed complaints with the SDHR alleging violations of the NYSHRL by the union. Each complaint included at least one allegation that the union failed to demand arbitration, failed to handle an arbitration properly, or engaged in some other discriminatory or retaliatory conduct as the member’s collective bargaining representative, in violation of the NYSHRL. All but one of the complaints were dual filed with the EEOC as the discrimination allegedly violated both the NYSHRL and federal law, including Title VII.

SDHR investigation. The SDHR investigated the merits of each complaint and made a determination regarding whether there was probable cause to believe the union had committed or was committing an unlawful discriminatory practice in violation of the NYSHRL. For its part, the union contested the SDHR’s jurisdiction over each complaint, asserting that the duty of fair representation arising from the NLRA preempted the NYSHRL and deprived the SDHR of jurisdiction. Currently, only two complaints remain pending.

The union filed a complaint against the Commissioner in federal court alleging causes of action pursuant to the Supremacy Clause and 42 U.S.C. § 1983 seeking declaratory and injunctive relief. Ultimately, the district court granted summary judgment in favor of the union, granting the union declaratory, but not injunctive, relief. The district court explained that the duty of fair representation “arises by implication from the NLRA,” and is governed by federal law. Accordingly, it determined that the duty of fair representation “will preempt state law unless a state claim can be shown to arise wholly outside the ambit of the duty of fair representation.” Further, the district court noted that the First, Fourth, Fifth, Ninth, and Tenth Circuits have all held that the duty of fair representation preempts substantive state law following the Supreme Court’s holding in Vaca v. Sipes.

Preemption. Two questions were presented to the Second Circuit for review. First, whether to apply field preemption or conflict preemption in evaluating the alleged preemption of the NYSHRL by the duty of fair representation under the NLRA. Second, whether the NLRA’s duty of fair representation preempts the NYSHRL under the applicable doctrine.

Under the Supremacy Clause, state and local laws that conflict with federal law are without effect. “In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives.”

“The duty of fair representation is a statutory obligation under the NLRA, requiring a union to serve the interests of all members without hostility or discrimination, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” “A union breaches its duty of fair representation if its actions with respect to a member are arbitrary, discriminatory, or taken in bad faith.” Here, the union relied on a close reading of Vaca to support its argument that the NLRA’s duty of fair representation preempts the NYSHRL pursuant to the doctrine of field preemption.

Although the Second Circuit concluded that a close reading of Vaca was instructive, it was led to an opposite conclusion than that asserted by the union. Rather, the appeals court determined after a close reading of Vaca, and other cases interpreting the duty of fair representation, that there is not the kind of total field preemption that would foreclose the NYSHRL from claims of discrimination filed by union members against a union, even when it is acting in its capacity as a collective bargaining agent. Vaca expressly disavowed a field-preemption-type analysis and more recent Supreme Court cases, such as Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local 54, have continued to caution that every provision of the NLRA does not automatically occupy the field.

Therefore, the Second Circuit disagreed with the decisions of the First, Fifth, and Tenth Circuits to the extent they suggest that any question of preemption by the NLRA’s duty of fair representation should be evaluated under the broader doctrine of field preemption.

Conflict preemption. Still, the appeals court had to consider whether the NLRA preempts the NYSHRL under the conflict preemption framework. As an initial matter, it noted that a state’s passage and enforcement of laws that prohibit discrimination is an exercise of a state’s historic police powers. Since the NYSHRL falls within New York’s historic police powers, the court had to determine whether the “clear and manifest purpose of Congress” was for the NLRA’s duty of fair representation to preempt the NYSHRL.

Here, the appeals court found no evidence that the NLRA’s duty of fair representation was designed or intended to preempt state laws focused on combatting invidious discrimination, such as the NYSHRL. Rather, reviewing the textual and structural relationships between the NLRA, Title VII, and the NYSHRL, Congress has manifested an intent that the NLRA not preempt Title VII and other laws with respect to discrimination. The explicit disavowal of preemption of state anti-discrimination laws in the text of Title VII, combined with the discussion of the NYSHRL during enactment of Title VII, constituted evidence that Congress considered and sought to preserve, the states’ coordinated regulatory role in the federal scheme for protecting individuals from discriminatory employment practices.

Further, the court found that it was not impossible for a private party to comply with both the NLRA’s duty of fair representation and the NYSHRL, and that the NYSHRL did not stand as an obstacle to the execution of Congress’s intent as expressed in the NLRA’s duty of fair representation, There was no showing by the union that the NYSHRL penalizes what the duty of fair representation requires, nor did it show any direct conflict between the NYSHRL’s requirements and the requirements of the NLRA’s duty of fair representation. Accordingly, the district court’s grant of summary judgment in favor of the union was reversed.

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