next matter on our counter is figure or first says the commissioner of new york state division of human rights  morning good morning ma'am please the court and your receivers representing the commissioner the district court's judgment should be reversed the supreme court has rejected the union's argument that federal labor law has usurped the entire field of labor management relations to the contrary the supreme court has told us that because congress has not expressly preempted state law there is no preemption in areas that are traditionally left to local law and as relevant here the states retain their ability to prohibit unions from engaging in the kinds of abusive conduct that no one should be expected to in language of a collective bargaining agreement but to be essence of a collective bargaining agreement in relation to the duty of fear representation and that that  is and you know admit that this is a bit odd because it doesn't fit in the category doesn't fit in complete preemption it doesn't fit in but three categories of feel we have it doesn't fit in but the representation is so important we should we do what your honor is identifying is the error that the district courts have made here they have taken the first circuits and languages which was talking about section three zero one of the l and r a that's claims that depend upon interpretation of the language of a collective bargaining agreement in that case it was a collective bargaining agreement that required the union to conduct safety inspections not the first circuit was so concerned with language as was concerned with the collective bargaining agreement in general in a broader congress has seen fit to go ahead and regulate the substantive law with regard to invidious discrimination even against unions title seven is not exempt from national labor relations or from from the union relates to activities of labor unions well that may involve to some degree fairer aspects of fair representation but premised upon invidious discrimination right that's exactly right and indeed congress is also authorized state agencies to cooperate cooperatively work with congress to enforce federal those federal provisions and indeed in new york if a new the new york division of human rights makes a finding of discrimination and that's affirmed in article seventy eight proceeding in new york courts that is given to close of fact with regard to the federal claims is it not is exactly right i have a hard time understanding how congress somehow this duty of fair representation has been siphoned off into just the jurisdiction of the national labor relations board well it hasn't your honor and that's exactly point there is no preemption absent clear evidence of a congressional intent to preempt new york so we know that in terms of federal substantive law that's not the case that is absolutely not it hasn't taken the field away from any other federal agency in determining the mail that's right your honor and it hasn't done it for state law new york's human rights law has prohibited labor unions from engaging in various discrimination since one thousand nine hundred forty and this is not about regulating labor relations i mean this is a statute that was put in place in the wake of race riots in the one nine hundred thirty s and in light of the legislative committee that reported that portions of the state's minority population were risk of starvation so this is called state action to protect the health and welfare of the population and it's existed together with the and since that has not that is exactly right your honor and congress has never done anything to indicate any unions and where the record shows that actually conquest was fully aware that new york was applying its anti discrimination laws to labor unions and that is you know as the supreme court has told us for example in the wyeth case powerful evidence th congress did not intend to displace state law and actually what we have here is congress showing really an all hands on board approach to invidious discrimination and so against that but just a little curious  this has been going on a long time can you cite any other case in any other circuit or anywhere that has come out the way you would have us come out i mean the first circuit was actually deciding and what the first circuit i don't want to get into whether we could distinguish it we're not bound by them anyway that's my question is it is a broader question of why and all his time this argument maybe which has appeal to it has not been picked up you know i think it hasn't been it hasn't been litigated either way and it's been no clear ruling either way i would point your honour's to in response to your question about whether there is any example of a court to the case from the ninth circuit in one hundred eighty five carter against smith food seven sixty five f second nine one six where the ninth circuit in that case did draw a distinction between california common law tort claims based on alleged union discrimination and statutory claims and said that although the common law claims might be preempted by federal labor law california's anti the what brings this case to us now why was it brought well you're one of the the union took the position that it was entitle to be immunized from all contact with the division of human rights it wasn't satisfied with just having a substantive defense to an enforcement action which is all it has if it's right in this preemption argument and it insisted upon an injunction that would compel the they ask for the declaratory judgment and if they're right then the declaratory judgment is sufficient and complete relief when they are new york based union their headquarters is visible from this courthouse they're not entitled to an injunction that prohibits the division morning your honour's my name is james reef i represent local thirty two b j i wanted to clarify a couple of points that were were urged first it's not our contention never has been our contention that the entire field of labor management relations is preempted this case concerns only the question of when the union acts as a collective bargaining representative our  state law claims challenging the union's conduct in that capacity preempted that's the sole and much narrower issue secondly we do not claim and we have never claimed that the local is immune from any and all contact with the state division of human rights we have said that they're entitled if they're genuinely in a good faith  unclear about the scope of an administrative complaint it's filed with them they're entitled to make an inquiry now there's disagreement about the scope of that inquiry and exactly how the state division would go about that but they're entitled to mak that the only issue here is whether this preemption from a finding of liability at the end of the administrative process that there is preemption from a finding of liability but that's not what the case is about what the case is about is federal law yes so congress made a clear decision to not immunize you from title seven even though it involved your conduct with regard to fair representation that's correct and it's not protected and reserved only to the jews that substance the second question is therefore that it's not reserved only to the national labor relations board to determine that the duty of fair representation has within it and indeed is discrimination component we don't we don't contend that this case involves the question of the jurisdiction their family relations board what always it how is it that if congress saw fit to understand that you weren't entitled to have only the n l r b decide the issue of them did is discrimination but that another federal agency it saw all those rights and protect and those federally protected rights to be separate independent of your responsibilities of duty of fair representation how is it that a state agency which has the same responsibility which is had it for years before the federal government ever decided to protect those rights how is it that the state agency is preempted by federal law from doing the exact same thing in cooperation with that very federal agency responsible for enforcing those federal rights how is it what what is it about the duty of representation that prohibits a state from protecting workers from invidious discrimination by their representatives what does it the to go back to your honor's initial point about title seven the supreme court held in shaw that the anti preemption clause in title seven did not extend any further th courts have interpreted in vienna or b has interpreted the duty of fear representation in a way that has been very favorable to you you know it is it's hard to bring a claim for violation of a duty of whether it meets the standards of duty of fear of recent patients that that is something that can stand because what ever reasons within the context of the labor relation that made it be narrow with respect to a violation of the duty of the representation why given the strength of the title seven and the general who all with respect to discrimination shouldn't we read those laws as being able to stand together in a lo the test for discrimination under the duty of fair representation is not some narrow test it's the same test for purposes of discrimination as the state human rights law in other words if if a union intentionally discriminates against a member of the collective bargaining agreement that's a breach of the duty of fair representation in the same way that it could be a violation of the state human rights law and that's been true since  when and it's the same standard why do you object to the jurisdiction of the state of human rights because of the way they conduct these proceedings they they are continually  way protecting an individual oh well i don't think it's any more difficult to go to the national labor relations board and file a charge for the national labor relations board exactly in the same way federal courts and concerns with private dhea for actions have never varied from from the position that was adopted by the supreme court in one thousand nine hundred four which is this this intentional discrimination on the basis of race is  there's absolutely no greater difficulty to go to the board whoever is on the board this is been uncontested for years and years as to what the test is for proving a claim of racial discrimination under the duty a ask you again if it's the same standard why do you object to the state division of human rights have enjoyed jurisdiction because of the way they conduct the proceedings and we and we think that vaca precludes them from from entertaining these don't these some of these same complainants have gone to the n l r b and some of them have gone to federal court with with private the of our claims and those proceedings whether they're in federal court or for that matter they could bring be brought in state court or at the different statutes of limitation implied in both of these agencies yes under under the state human rights law there's a one year statute of limitations for administrative claim there's three or statue of limitations if it's brought in state supreme court as a private action under the national labor relations act there's a six month limitation if if a charge is presented to the national labor relations board and there's similarly a six month statute of complicated question that the supreme court in the general electric case which we cited in our brief has a footnote in which it says that you should not draw us hard and fast lines between the different feel different kinds of preemption and it specifically talks about the relationship of field preemption to conflict preemption is into our garden status line i was asking if this is an example of conflict preemption on the statute of limitation issue i would say it's conflict preemption in the sense that that term is commonly used ok the way it's commonly used it is state law prohibits something federal law affirmatively guarantees it and protects it that's the  conventional way in which the term conflict preemption is is used there is there is preempt there is a way in which field preemption is conflict preemption and that is as the supreme court said in the general electric case if congress intended to bar state regulation in a particular field then there's a conflict between the state asserting jurisdiction over that field and the congressional intent so in that sense the supreme court says that's a form of conflict preemption when i start with that there is a six month statute of limitation for duty of fair representation claims there is a twelve month statute for human rights law claims that is not the kind of conflict that would cause the entire statute to be context when brought in in new york and therefore it's very hard to say that there is some enormous conflict between state and federal interest just because there's a six month statute to pick a bill to the pure duty of fair representation claim as compared with the human think the answer is yes the answer is easy is yes and and really that brings me on to the second point i want to make in rebuttal you're part of the strong interest the state has here is not simply prohibiting the discrimination but it's also providing a mechanism an administrative enforcement mechanism that facilitates people's ability to actually enforce their rights exactly with that you need the administrative procedure but that's not a basis for preemption your  it's this is really highlights the oddity of the preemption claim it's not that they're saying that the state is prohibiting them from doing something that they're allowed to do by federal law they would just prefer to be limited to and in the context so we're going to have if there is no human rights law and no division of human rights as people having to file these things process a in state or federal court as opposed to having the division appoint a lawyer to present the victim's case before the commission and find my final point there was a reference mike madison he said that he wasn't trying through the injunction to have an injunction that would stop the division from even contacting the union page six forty three of the record paragraph two of his proposed injunction so it says the state division of human rights shall not require any response or other action by local thirty two b j so that was exactly what was sought and that's the course for the questions i would ask the