State anti-discrimination law does not conflict with National Labor Relations Act

This case asks whether union members who want to challenge the union's discriminatory actions may do so pursuant to the New York State Human Rights Law, which prohibits discrimination in employment and in union membership. The question is whether the National Labor Relations Act, which covers the union's duty of fair representation, preempts the state anti-discrimination laws. The Court of Appeals holds there is no preemption, and union members can sue their unions under state law.

The case is Figueroa v. Foster, decided on July 25. We assume that federal law preempts state law, but, as always, there are many exceptions. In this case, there would appear to be some overlap between the State Human Rights Law and the NLRA. We solve this problem under a three-part test:

“Under the Supremacy Clause of the Constitution, state and local laws that conflict with federal law are without effect.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103‐04 (2d Cir. 2010). “In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and (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 1 obstacle to the achievement of federal objectives.”

As Judge Pooler frames the issue:

If the NLRA’s duty of fair representation preempts the NYSHRL, then Title VII as administered by the Equal Employment Opportunity Commission will serve as the primary force protecting union  members from invidious discrimination by their labor organizations. If, on the other hand, the NLRA’s duty of fair representation does not preempt the NYSHRL, then the NYSHRL as administered by the New York State Division of Human Rights will provide union members with additional protections against invidious discrimination by their labor organizations.

There is no preemption. Under the field preemption theory, where the federal law is so comprehensive that it forecloses any relief under state law, not every provision of the NLRA automatically occupies the field which its proscriptions function. "There is 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. Instead, our independent review of the  evidence leads us to the opposite conclusion based on 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 federal antidiscrimination laws. The state antidiscrimination law is a precursor to Title VII, enacted long before the Civil Rights Act of 1964 because New Yorkers are more enlightened than the rest of the country. Title VII explicitly states that it does not preempt comparable state antidiscrimination laws, and the Second Circuit (Calabresi, Pooler and Wesley) find that Congress considered and sought to preserve the states' coordinate role in fighting discrimination in employment. The text of Title VII further recognizes the continued vitality of its state-law counterparts, and it is not impossible for a private party to comply with the NLRA's duty of fair representation and the NYSHRL's prohibition against employment discrimination.