Since mid-2009, 23 complaints have been filed with the New York State Division of Human Rights (SDHR) against the Service Employees International Union Local 32BJ (SEIU), in which the union was alleged to have discriminated against an employee member. Each of those complaints was filed against the union in its capacity as an employee’s collective bargaining representative, and involved allegations that the union failed to demand arbitration, failed to handle an arbitration properly, or engaged in some other discriminatory conduct in its role as collective bargaining representative, in violation of the New York Human Rights Law (HRL).
The union consistently made written submissions to SDHR arguing that its duty of fair representation (DFR) arising from the NLRA “preempted the SDHR’s investigation and prosecution of the administrative complaint and deprived it of jurisdiction over such a complaint.” For its part, the SDHR has disagreed, and has continued to investigate and issue final determinations in such cases.
Finally, in Figueroa v. Foster
, the SEIU sought judicial relief and filed suit alleging that it was entitled to a declaratory judgment finding that its duty of fair representation preempted claims made against it under the HRL when acting in its capacity as collective bargaining representative.
Currently, SEIU represents over 81,000 employees in New York State. Each collective bargaining agreement to which it is a party includes a mechanism for resolving disputes regarding discipline or termination of employees. Union members notify the union when they believe they have been treated unfairly, and it evaluates and investigates requests to file grievances, attempts to resolve grievances, and determines whether to demand arbitration of unresolved grievances.
Duty of fair representation.
Unions owe the employees they represent a duty of fair representation (DFR) in enforcing collective bargaining agreements. “[W]hen a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith,” it breaches this duty. The DFR arises by implication under the NLRA. “Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.”
The federal duty of fair representation will preempt state law unless a state claim can be “shown to arise wholly outside the ambit” of the DFR, “that is, unless it involved union activity that was peripheral to the concern of the applicable federal statutes and presented only a tangential or remote potential conflict with the federal regulatory scheme.” Federal appellate courts have consistently held that the DFR preempts substantive state law. Although “[t]he Second Circuit has not addressed the issue of whether the NYSHRL or NYCHRL are preempted by the duty of fair representation,” the “vast majority” of cases in the circuit hold that the DFR preempts the HRL in situations where the union was acting in its capacity as the plaintiff’s collective bargaining representative.
Against this backdrop, the court declined SDHR’s invitation to disregard the overwhelming weight of precedent and to conclude instead that the DFR does not preempt state anti-discrimination law. The NLRA does not expressly preempt state law, nor did the parties argue that enforcement of the HRL conflicts with federal law—rather, the DFR has been held to preempt state laws because “[a] union’s rights and duties as the exclusive bargaining agent in carrying out its representational functions” comprise an area in which “Congress has occupied the field and closed it to state regulation.”
Title VII and the DFR co-exist. “It is well established that a union’s duty breach of its duty of fair representation may subject it to liability under Title VII.” Likewise, Title VII and the HRL complement each other. “State laws obviously play a significant role in the enforcement of Title VII.” However, the court rejected SDHR’s proposition that the interplay between Title VII and the HRL prevents preemption by the DFR. Rather, the DFR works in tandem with Title VII and a breach of the DFR is an element of Title VII claims of discrimination against unions acting as collective bargaining representatives. The synergies between Title VII and the DFR, and between Title VII and the HRL, do not prevent the DFR from preempting the HRL.
The fact that the DFR preempts the HRL merely means that when a union discriminates in its role as a collective bargaining representative, the aggrieved party has recourse under Title VII and the DFR. Here, the court found that the duty of fair representation arising from the NLRA preempts the HRL to the extent that the claimed discrimination arises from acts or omissions of a labor organization acting in its role as a collective bargaining representative under the NLRA. Accordingly, the SEIU was entitled to declaratory judgment regarding the preemptive effect of the DFR.