16-1856-cv(L)

Figueroa v. Foster

16

‐ 1856

‐ cv(L)

Figueroa v. Foster

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

__________ __________ 3

4

August Term, 2016 5

6

(Argued: April 19, 2017 Decided: July 25, 2017) 7

8

Docket Nos. 16

‐ 1856

‐ cv(L), 16

‐ 1864

‐ cv(XAP) 9

10

__________ __________ 11

12

HECTOR J. FIGUEROA, 13

President, SEIU Local 32BJ, CTW, CLC, 14

15

Plaintiff

‐ Appellee

‐ Cross

‐ Appellant

, 16

17

v. 18

19

COMMISSIONER HELEN D. FOSTER, 20

New York State Division of Human Rights, 21

22

Defendant

‐ Appellant

‐ Cross

‐ Appellee

. 23

24

__________ __________ 25

26

Before: CALABRESI, POOLER, and WESLEY, Circuit Judges

. 27

Appeal from the May 12, 2016 order of the United States District Court for 28

the Southern District of New York (Woods, J .) granting summary judgment to 292 SEIU Local 32BJ, CTW, CLC. Figueroa v. Foster

, No. 1:14

‐ cv

‐ 8796, 2016 WL 1

2851335 (S.D.N.Y. May 12, 2016). 2

In this case, we are asked to decide whether the duty of fair representation 3

under the National Labor Relations Act (“NLRA”) preempts the New York State 4

Human Rights Law (“NYSHRL”) for claims of discrimination filed by a union 5

member against a labor organization when the labor organization is acting in its 6

capacity as a collective bargaining representative (as distinguished from when it 7

is acting in its capacity as an employer). If the NLRA’s duty of fair representation 8

preempts the NYSHRL, then Title VII as administered by the Equal Employment 9

Opportunity Commission will serve as the primary force protecting union 10

members from invidious discrimination by their labor organizations. If, on the 11

other hand, the NLRA’s duty of fair representation does not preempt the 12

NYSHRL, then the NYSHRL as administered by the New York State Division of 13

Human Rights will provide union members with additional protections against 14

invidious discrimination by their labor organizations. 15

Because we hold that the NLRA’s duty of fair representation does not 16

necessarily preempt the NYSHRL, even when a labor organization is acting in its 173 capacity as a collective bargaining agent, in the circumstances of this case, we 1

reverse. 2

Reversed. 3

__________ __________ 4

ANDREW RHYS DAVIES, Assistant Solicitor General 5

(Barbara D. Underwood, Solicitor General, Steven C. 6

Wu, Deputy Solicitor General, on the brief ), for Eric T. 7

Schneiderman, Attorney General of the State of New 8

York, New York, NY, for Defendant

‐ Appellant

‐ Cross

‐ 9

Appellee

. 10

11

JAMES REIF, Gladstein, Reif & Meginniss, LLP (Jessica 12

E. Harris, on the brief ), New York, NY, for Plaintiff

‐ 13

Appellee

‐ Cross

‐ Appellant

. 14

15

POOLER, Circuit Judge : 16

Appeal from the May 12, 2016 order of the United States District Court for 17

the Southern District of New York (Woods, J .) granting summary judgment to 18

SEIU Local 32BJ, CTW, CLC. Figueroa v. Foster

, No. 1:14

‐ cv

‐ 8796, 2016 WL 19

2851335 (S.D.N.Y. May 12, 2016). 20

In this case, we are asked to decide whether the duty of fair representation 21

under the National Labor Relations Act (“NLRA”) preempts the New York State 22

Human Rights Law (“NYSHRL”) for claims of discrimination filed by a union 234 member against a labor organization when the labor organization is acting in its 1

capacity as a collective bargaining representative (as distinguished from when it 2

is acting in its capacity as an employer). If the NLRA’s duty of fair representation 3

preempts the NYSHRL, then Title VII as administered by the Equal Employment 4

Opportunity Commission (“EEOC”) will serve as the primary force protecting 5

union members from invidious discrimination by their labor organizations. If, on 6

the other hand, the NLRA’s duty of fair representation does not preempt the 7

NYSHRL, then the NYSHRL as administered by the New York State Division of 8

Human Rights will provide union members with additional protections against 9

invidious discrimination by their labor organizations. 10

Because we hold that the NLRA’s duty of fair representation does not 11

necessarily preempt the NYSHRL, even when a labor organization is acting in its 12

capacity as a collective bargaining agent, in the circumstances of this case, we 13

reverse. 145 BACKGROUND 1

I. Factual Background 2

Defendant

‐ Appellant

‐ Cross

‐ Appellee Commissioner Helen D. Foster (the 3

“Commissioner”) is the Commissioner of the New York State Division of Human 4

Rights (“SDHR”). The SDHR is responsible for the administrative enforcement of 5

the NYSHRL. The NYSHRL prohibits the commission of specific unlawful 6

discriminatory practices, including retaliatory conduct, by entities including 7

labor organizations. The SDHR has promulgated regulations for the enforcement 8

of the NYSHRL. 9

Plaintiff

‐ Appellee

‐ Cross

‐ Appellant Hector J. Figueroa is the President of 10

SEIU Local 32BJ, CTW, CLC (the “Local”). The Local is a labor organization that 11

is constituted for the primary purposes of collective bargaining and of dealing 12

with employers concerning grievances, labor disputes, and terms or conditions 13

of employment. The Local currently represents more than 145,000 employees for 14

the purpose of collective bargaining, of which more than 81,000 currently work 15

in the State of New York. 166 Every collective bargaining agreement to which the Local is a party 1

includes a grievance or arbitration mechanism for resolving disputes, including 2

disputes about employee discipline. When an employee has a dispute with his or 3

her employer, that employee first files a grievance with the Local’s Contract & 4

Grievance Center (the “CGC”). If the CGC decides not to pursue an employee 5

grievance with the employer, the employee can appeal to the Local’s Grievance 6

Appeal Board (the “GAB”). The GAB then makes findings and a 7

recommendation to the Local’s Executive Board over whether to uphold or 8

overturn the CGC’s decision not to pursue the employee’s grievance. 9

Between June 1, 2009 and November 4, 2014 when the Local commenced 10

this action, sixteen individuals filed complaints with the SDHR alleging one or 11

more violations of the NYSHRL by the Local. Between November 4, 2014 and 12

April 6, 2016, five additional complaints were filed with the SDHR alleging one 13

or more violations of the NYSHRL by the Local. Each complaint included at least 14

one allegation that the Local “failed to demand arbitration, failed to handle an 15

arbitration properly, or engaged in some other discriminatory [or retaliatory] 16

conduct as the [complainant’s] collective bargaining representative, in violation 177 of the [NYS]HRL.” App’x at 631. All but one of the complaints were dual filed 1

with the EEOC as the discrimination alleged violated both the NYSHRL and 2

federal law, including Title VII. 3

The SDHR investigated the merits of each complaint and made a 4

determination regarding whether there was probable cause to believe the Local 5

had committed or was committing an unlawful discriminatory practice in 6

violation of the NYSHRL. The Local, for its part, contested the jurisdiction of the 7

SDHR over each complaint, asserting that the duty of fair representation arising 8

from the NLRA preempted the NYSHRL and deprived the SDHR of jurisdiction. 9

As of April 6, 2016, the SDHR had dismissed sixteen of the twenty

‐ one 10

complaints for lack of probable cause to believe the Local had engaged in the 11

alleged discrimination. Three complaints were withdrawn by the complainants. 12

An additional two complaints remained pending. 13

II. Procedural Background 14

On November 4, 2014, Figueroa, in his role as President of the Local, filed a 15

complaint against the Commissioner in the United States District Court for the 16

Southern District of New York. 178 On December 8, 2014, the Local filed its First Amended Complaint 1

(“FAC”) in the instant action. The FAC alleges causes of action pursuant to the 2

Supremacy Clause and 42 U.S.C. § 1983 for declaratory and injunctive relief. On 3

December 16, 2014, the Local filed a motion for a preliminary injunction with the 4

district court. 5

On February 3, 2015, the district court denied the Local’s motion for a 6

preliminary injunction. The district court found there would be a harm to the 7

public if the SDHR were enjoined from pursuing claims against the Local under 8

the NYSHRL because “in addition to affecting the State’s ability to enforce the 9

State law that the [Local] claims is preempted by the [NLRA], it will also have an 10

adverse impact on the joint state and federal scheme for the enforcement of 11

anti[

‐ ]discrimination laws, including Title VII.” App’x at 365. 12

On May 12, 2016, the district court granted summary judgment in favor of 13

the Local and in opposition to the Commissioner and granted the Local 14

declaratory, but not injunctive, relief. Figueroa

, 2016 WL 2851335, at *1, *12. The 15

district court explained that the material facts in the case were undisputed, and 16

that the parties simply disagreed over a “specific, narrow, legal question: does a 179 union’s duty of fair representation preempt the application of the [NYS]HRL 1

when the union is acting in its capacity as a collective bargaining 2

representative?” Id. at *3. 3

The district court first addressed the duty of fair representation. Id. at *3

‐ *6. 4

The district court explained that the duty of fair representation “arises by 5

implication under the [NLRA],” and is governed by federal law. Id. at *3

‐ *4. The 6

district court accordingly determined that the duty of fair representation “will 7

preempt state law unless a state claim can be shown to arise wholly outside the 8

ambit of the [duty of fair representation].” Id. at *4 (internal quotation marks 9

omitted). The district court noted that the First, Fourth, Fifth, Ninth, and Tenth 10

Circuits had all held that the duty of fair representation preempts substantive 11

state law following the Supreme Court’s holding in Vaca v. Sipes

, 386 U.S. 171 12

(1967). Figueroa

, 2016 WL 2851335, at *4 (collecting cases). 13

In analyzing the relationship between the NYSHRL and the duty of fair 14

representation, the district court first observed that the duty of fair 15

representation protects employees from discrimination, and thus that any state 16

law that protected an employee from discrimination would be preempted. Id. at 1710 *5. The district court then noted that “the vast majority of cases in this Circuit 1

hold that the [duty of fair representation] preempts the [NYS]HRL in situations 2

where the union was acting in its capacity as the plaintiff’s collective bargaining 3

representative.” Id. (internal quotation marks omitted) (collecting cases). The 4

district court cautioned, however, that the duty of fair representation would not 5

preempt the NYSHRL “[w]hen a union is accused of discrimination based on 6

actions unrelated to its role as a collective bargaining representative,” such as in 7

its role as an employer, because the duty of fair representation is not implicated 8

when no collective bargaining representation is involved. Id. at *6. The district 9

court then reviewed preemption case law and explained that, if the NYSHRL 10

were preempted, it would have to be so based on field preemption because the 11

“NLRA does not expressly preempt state law, nor do the parties argue that 12

enforcement of the [NYS]HRL conflicts with federal law.” Id. 13

The district court next addressed the Commissioner’s two arguments 14

against preemption: (1) that Vaca does not address preemption of state claims, 15

and (2) that Title VII shows that Congress did not intend for the duty of fair 16

representation to preempt state anti

‐ discrimination law. Id. at *7. The district 1711 court disagreed with the Commissioner’s argument that Vaca was only about 1

federal claims, observing that the underlying claims in that case were state law 2

claims and that the Fifth Circuit had so found as well. Id. The district court was 3

also unconvinced by the Commissioner’s argument with respect to Title VII, 4

finding that Title VII’s express limitation to preserve state law anti

‐ 5

discrimination statutes did not mean that no federal law could preempt state law 6

anti

‐ discrimination statutes. Id. at *7

‐ *8. Instead, the district court explained that 7

“the synergies between Title VII and the [duty of fair representation], and 8

between Title VII and the [NYS]HRL, do not prevent the [duty of fair 9

representation] from preempting the [NYS]HRL.” Id. at *10. Accordingly, the 10

district court held that the duty of fair representation preempted the NYSHRL 11

“to the extent that the claimed discrimination arises from acts or omissions of a 12

labor organization acting in its role as a collective bargaining representative 13

under the NLRA.” Id. 14

The district court, however, granted the Local only declaratory and not 15

injunctive relief. Id. at *10

‐ *11. The Local had proposed a ten

‐ step protocol 16

whereby, essentially, all complaints filed with the SDHR against the Local would 1712 be dismissed without investigation unless the complainant was a current, former, 1

or potential employee of the Local. Id. at *10. The district court then held that the 2

Local had not made a showing rising to the level requisite to justify a permanent 3

injunction of that breadth, given the small expenditure of the Local’s time on the 4

filed complaints and the SDHR’s interest in investigating claims filed against the 5

Local that might involve both preempted and non

‐ preempted claims. Id. at *11. 6

The district court was also persuaded that the public interest in the “effective 7

administrative enforcement of anti

‐ discrimination laws” weighed against the 8

Local’s proposed permanent injunction. Id. 9

On May 13, 2016, judgment was entered granting the Local declaratory 10

relief. The Commissioner’s appeal was timely filed on June 10, 2016, and the 11

Local’s cross

‐ appeal was timely filed on June 13, 2016. 12

DISCUSSION 13

I. Preemption 14

A. Standard of Review 15

“We review de novo the grant of summary judgment on [a] preemption 16

question.” Liberty Mut. Ins. Co. v. Donegan

, 746 F.3d 497, 502

‐ 03 (2d Cir. 2014). 1713 Summary judgment is appropriate if the record shows “there is no genuine 1

dispute as to any material fact and the movant is entitled to judgment as a matter 2

of law.” Fed. R. Civ. P. 56(a). 3

B. Analysis 4

The questions before us are, first, whether to apply field preemption or 5

conflict preemption in evaluating the alleged preemption of the NYSHRL by the 6

duty of fair representation under the NLRA and, second, whether the NLRA’s 7

duty of fair representation preempts the NYSHRL under the applicable doctrine. 8

1. Field Preemption versus Conflict Preemption 9

“Under the Supremacy Clause of the Constitution, state and local laws that 10

conflict with federal law are without effect.” N.Y. SMSA Ltd. P’ship v. Town of 11

Clarkstown

, 612 F.3d 97, 103

‐ 04 (2d Cir. 2010) (internal quotation marks omitted). 12

“In general, three types of preemption exist: (1) express preemption, where 13

Congress has expressly preempted local law; (2) field preemption, where 14

Congress has legislated so comprehensively that federal law occupies an entire 15

field of regulation and leaves no room for state law; and (3) conflict preemption, 16

where local law conflicts with federal law such that it is impossible for a party to 1714 comply with both or the local law is an obstacle to the achievement of federal 1

objectives.” Id. at 104 (internal quotation marks omitted). 1 The latter two are 2

1 In addition to the three types of preemption, there are “two distinct NLRA

[preemption] principles,” neither of which apply to the duty of fair

representation. Golden State Transit Corp. v. City of Los Angeles

, 475 U.S. 608, 613

(1986). The first is Garmon preemption. See San Diego Bldg. Trades Council,

Millmen’s Union, Local 2020 v. Garmon

, 359 U.S. 236, 244

‐ 47 (1959). Garmon

preemption “prohibits States from regulating activity that the NLRA protects,

prohibits, or arguably protects or prohibits” in order to “preclude state

interference with the National Labor Relations Board’s interpretation and active

enforcement of the integrated scheme of regulation established by the NLRA.”

Golden State Transit Corp.

, 475 U.S. at 613 (internal quotation marks omitted).

Garmon preemption does not apply to cases involving the duty of fair

representation because, as the Supreme Court explained in Vaca

, “the desirability

of leaving the development of such rules to the [National Labor Relations Board]

is not applicable.” 386 U.S. at 181; see id. at 188 (“[T]he unique role played by the

duty of fair representation doctrine in the scheme of federal labor laws, and its

important relationship to the judicial enforcement of collective bargaining

agreements

. . . render the Garmon pre[]emption doctrine inapplicable.”); see also

Adkins v. Mireles

, 526 F.3d 531, 540, 542 (9th Cir. 2008) (holding plaintiffs’ RICO

claim was preempted under Garmon preemption, but that plaintiffs’ breach of

implied covenant of good faith and fair dealing claim was preempted based on

its reading of Vaca

, not based on Garmon preemption); Richardson v. United

Steelworkers of Am.

, 864 F.2d 1162, 1166 n.3 (5th Cir. 1989) (noting that Vaca did

not rely on Garmon preemption for its holding that the duty of fair representation

preempted the state law claims there).

The second is Machinists preemption. See Lodge 76, Int’l Ass’n of Machinists

& Aerospace Workers, AFL

‐ CIO v. Wis. Emp’t Relations Comm’n

, 427 U.S. 132, 148

‐ 51

(1976). Machinists preemption “precludes state and municipal regulation

concerning conduct that Congress intended to be unregulated” in order that

those areas might be “controlled by the free play of economic forces.” Golden15 forms of implied preemption. Steel Inst. of N.Y. v. City of New York

, 716 F.3d 31, 36 1

(2d Cir. 2013). We have recognized that the “two categories of implied federal 2

preemption—field and conflict—are not rigidly distinct” although they remain 3

independent bases for preemption. Niagara Mohawk Power Corp. v. Hudson River

‐ 4

Black River Regulating Dist.

, 673 F.3d 84, 95 (2d Cir. 2012) (internal quotation 5

marks omitted). 6

“The doctrine of [preemption] in labor law has been shaped primarily by 7

two competing interests.” Farmer v. United Bhd. of Carpenters & Joiners of Am., 8

Local 25

, 430 U.S. 290, 295 (1977). “On the one hand, [the Supreme] Court has 9

recognized that the broad powers conferred by Congress upon the National 10

Labor Relations Board to interpret and to enforce the complex [NLRA] 11

necessarily imply that potentially conflicting rules of law, of remedy, and of 12

administration cannot be permitted to operate.” Id. (internal quotation marks and 13

State Transit Corp.

, 475 U.S. at 614 (internal quotation marks omitted). Machinists

preemption similarly does not apply to cases involving the duty of fair

representation because Congress intended conduct that falls within the duty of

fair representation to be affirmatively regulated. See Fowlkes v. Ironworkers Local

40

, 790 F.3d 378, 387 (2d Cir. 2015) (“The duty of fair representation is a statutory

obligation under the NLRA

. . . .” (internal quotation marks omitted) (citing Vaca

,

386 U.S. at 177)).16 ellipses omitted) (citing Vaca

, 386 U.S. at 178

‐ 79). “On the other hand, because 1

Congress has refrained from providing specific directions with respect to the 2

scope of [preempted] state regulation, the [Supreme] Court has been unwilling to 3

declare [preempted] all local regulation that touches or concerns in any way the 4

complex interrelationships between employees, employers, and unions.” Id. at 5

295

‐ 96 (internal quotation marks and ellipses omitted). Indeed, the Supreme 6

Court has explicitly explained that the mere existence of the NLRA does not 7

“indicate[] a congressional intent to usurp the entire field of labor

‐ management 8

relations.” Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local 54

, 468 U.S. 9

491, 501 (1984). With respect to the duty of fair representation especially, the 10

Supreme Court explained in Vaca that “[a] primary justification for the 11

[preemption] doctrine—the need to avoid conflicting rules of substantive law in 12

the labor relations area and the desirability of leaving the development of such 13

rules to the administrative agency created by Congress for that purpose—is not 14

applicable to cases involving alleged breaches of the union’s duty of fair 15

representation.” 386 U.S. at 180

‐ 81. 1617 It is well established that a union has “a statutory duty fairly to represent 1

all of th[e] employees [it represents], both in its collective bargaining

. . . and in 2

its enforcement of the resulting collective bargaining agreement.” Id. at 177 3

(citations omitted). “The duty of fair representation is a statutory obligation 4

under the NLRA, requiring a union to serve the interests of all members without 5

hostility or discrimination, to exercise its discretion with complete good faith and 6

honesty, and to avoid arbitrary conduct.” Fowlkes

, 790 F.3d at 387 (internal 7

quotation marks and ellipses omitted) (citing Vaca

, 386 U.S. at 177). “A union 8

breaches its duty of fair representation if its actions with respect to a member are 9

arbitrary, discriminatory, or taken in bad faith.” Id. at 388. 10

The anti

‐ discrimination roots of the duty of fair representation are long

‐ 11

established. As the Supreme Court explained, the “statutory duty of fair 12

representation was developed [during the 1940s] in a series of cases involving 13

alleged racial discrimination by unions certified as exclusive bargaining 14

representatives under the Railway Labor Act [(“RLA”)], and was soon extended 15

to unions certified under the [NLRA].” Vaca

, 386 U.S. at 177 (citations omitted). 1618 The Local relies on a close reading of the Supreme Court’s decision in Vaca 1

to support its argument that the NLRA’s duty of fair representation preempts the 2

NYSHRL pursuant to the doctrine of field preemption. We, too, believe a close 3

reading of Vaca is instructive here, although it leads us to the opposite 4

conclusion. 5

Vaca involved an employee who brought suit against his union under 6

Missouri state law for arbitrary and malicious failure to perform the union’s duty 7

to represent the employee in processing the employee’s grievance against his 8

former employer. Resp’t’s Answer Br., Vaca v. Sipes

, 386 U.S. 171 (1967), 1966 WL 9

87665, at *5 (Oct. 1966). In his papers filed before the Supreme Court, the 10

employee expressly disavowed that his complaint raised a claim of 11

discrimination—“[t]he petition at trial level in no way pleads discrimination by 12

an unfair labor practice”—and explained instead that his complaint raised a state 13

law claim for breach of contract. Id. 14

The petitioner in Vaca

, the union, argued that the Missouri state courts had 15

lacked jurisdiction over the case because the “gravamen” of the employee’s suit 16

fell under the duty of fair representation and thus could only be brought in 1719 federal court. Vaca

, 386 U.S. at 173. The Supreme Court held that it was “obvious 1

that [the employee’s] complaint alleged a breach by the Union of a duty 2

grounded in federal statutes, and that federal law[, rather than state law,] 3

therefore governs his cause of action.” Id. at 177. The Supreme Court cautioned, 4

however, that “the unique interests served by the duty of fair representation 5

doctrine have a profound effect

. . . on the applicability of the [preemption] rule 6

to this class of cases.” Id. at 181

‐ 82. Although the Supreme Court concluded that 7

the applicability of the duty of fair representation to the employee’s case did not 8

divest the state courts of jurisdiction, id. at 188, the Supreme Court also held that 9

the employee had failed to prove his case under the federal law standard, id. at 10

188

‐ 89. In doing so, the Supreme Court implicitly held that the employee’s state 11

law claim for breach of contract was preempted by the duty of fair representation 12

under the NLRA. Id. at 189

‐ 90. 13

Several of our sister Circuits have relied in part on Vaca in determining 14

that the duty of fair representation preempts certain types of state law claims 15

based on a finding of field, rather than conflict, preemption. For example, the 16

First Circuit has held that the duty of fair representation preempts claims in tort 1720 and contract for the breach of duties related to job safety under New Hampshire 1

common law because “[w]ithout the collective bargaining agreement, there 2

would be neither a local union nor a union safety committee.” Condon v. Local 3

2944, United Steelworkers of Am., AFL

‐ CIO, CLC

, 683 F.2d 590, 594 (1st Cir. 1982). 4

The First Circuit explained that the “union’s rights and duties as the exclusive 5

bargaining agent in carrying out its representational functions” is an area in 6

which “state law may constitute an impermissible obstacle to the 7

accomplishment of the purposes of Congress.” Id. at 594

‐ 95. Accordingly, the 8

First Circuit held that “Congress ha[d] occupied the field and closed it to state 9

regulation.” Id. at 595 (internal quotation marks and brackets omitted). 10

A few years later, the Fifth Circuit held that employees’ negligent breach 11

of a common law tort duty claims against a union based on the union’s failure to 12

warn the employees that they could be replaced if they went on strike was 13

preempted by the duty of fair representation. Richardson

, 864 F.2d at 1169. The 14

Fifth Circuit relied on Vaca

, explaining that “[u]nder Vaca

, the NLRA duty of fair 15

representation, for the enforcement of which a federal (and state) court action is 16

authorized, completely preempts state law because of the congressional intent 1721 that federal law, developed to further the goals of the NLRA, entirely govern the 1

duties which an NLRA collective bargaining representative owes, by virtue of its 2

position as such, to the workers it represents in that capacity.” Id. 3

Similarly, the Tenth Circuit held that the duty of fair representation 4

preempted state wrongful discharge and civil conspiracy claims based on 5

religious discrimination. Thomas v. Nat’l Ass’n of Letter Carriers

, 225 F.3d 1149, 6

1158 (10th Cir. 2000). As the Tenth Circuit explained, “[w]here a plaintiff’s 7

allegations fall within the scope of the duty of fair representation, federal labor 8

law governs and ordinarily preempts any state

‐ law claims based on those 9

allegations.” Id. (citing Vaca

, 386 U.S. at 177). The Tenth Circuit further noted that 10

the duty of fair representation, which requires a union “to serve the interests of 11

all members without hostility or discrimination toward any,” “would certainly 12

encompass” allegations of religious discrimination. Id. 13

At least one Circuit, however, has held that the relationship between state 14

law and the duty of fair representation is better understood under the rubric of 15

conflict, rather than field, preemption. In Peterson v. Air Line Pilots Association, 16

International

, the Fourth Circuit considered whether state law claims for 1722 blacklisting, conspiracy, and interference with a contractual relationship were 1

preempted by the RLA duty of fair representation. 759 F.2d 1161, 1162 (4th Cir. 2

1985). The Fourth Circuit first explained that “[p]reemption under the RLA has 3

followed a similar tack [to that under the NLRA], but a more stringent pattern of 4

judicial deference has emerged.” Id. at 1168

‐ 69. In other words, “[u]nlike 5

preemption under the NLRA, the preemption of state law claims under the RLA 6

has been more complete.” Id. at 1169. Ultimately, the Fourth Circuit held that 7

“[s]ince [the employee’s] state claims seek to vindicate rights largely secured by 8

federal law, the potential conflict between remedies and administration are too 9

great to permit the state claims to stand.” Id. at 1171. Even when applying the 10

more stringent RLA duty of fair representation test, however, the Fourth Circuit 11

applied conflict preemption to determine whether the employee’s state law 12

claims were preempted rather than field preemption as the Local urges us to 13

apply here. Id. 14

A recent Ninth Circuit decision similarly applied a conflict, rather than 15

field, preemption analysis in evaluating the NLRA’s duty of fair representation. 16

In Adkins v. Mireles

, the Ninth Circuit held that employees’ state law claims for 1723 breach of contract, negligent misrepresentation, and intentional infliction of 1

emotional distress were preempted by the NLRA’s duty of fair representation. 2

526 F.3d at 536. The Ninth Circuit explained that field preemption had not been 3

rigidly applied in cases involving the duty of fair representation before 4

independently analyzing each of the employees’ claims. Id. at 539 (citing Vaca

, 5

386 U.S. at 179), 540

‐ 42. Although the Ninth Circuit found each claim was 6

preempted because the conduct underlying the claims was “inextricably linked 7

to [the union’s] performance of duties owed in their capacity as union 8

representatives,” id. at 541, we understand this analysis to sound in conflict 9

preemption given the court’s disavowal of the applicability of field preemption. 10

Most recently, the Eighth Circuit charted a new analytical course, holding, 11

without relying on Vaca

, that the NLRA’s duty of fair representation neither 12

occupied the entire field of discrimination and retaliation in labor relations, nor 13

preempted a plaintiff’s state

‐ law claims based on conflict preemption. Markham 14

v. Wertin

, ‐‐‐ F.3d

‐‐‐‐ , 2017 WL 2800723, at *7 (8th Cir. June 29, 2017). The Eighth 15

Circuit explained that any reliance on Vaca was misplaced, and so declined to 16

consider the case. Id. Instead, the Eighth Circuit held that field preemption did 1724 not apply because “Congress has not said whether and to what extent it intended 1

[the duty of fair representation] of the NLRA to completely preempt state

‐ law 2

claims, nor [could the Eighth Circuit] discern from the totality of the 3

circumstances that Congress has sought to occupy the field to the exclusion of 4

the States.” Id. The Eighth Circuit thus applied a conflict preemption analysis, 5

and held that the duty of fair representation did not preempt state

‐ law 6

discrimination and retaliation claims because the union had failed to show “that 7

the discrimination and retaliation claims conflict with [the duty of fair 8

representation] or otherwise frustrate the federal scheme.” Id. 9

We think it is clear from a close reading of Vaca

, and from the other cases 10

interpreting the duty of fair representation, that there is not the kind of total field 11

preemption that would foreclose the NYSHRL from claims of discrimination 12

filed by union members against a labor organization even when it is acting in its 13

capacity as a collective bargaining agent. Vaca expressly disavowed a field

‐ 14

preemption

‐ type analysis, and more recent Supreme Court cases have continued 15

to caution that every provision of the NLRA does not automatically occupy the 16

field within which its proscriptions function. See Brown

, 468 U.S. at 501; Vaca

, 386 1725 U.S. at 180

‐ 81. We therefore disagree with the decisions of our sister First, Fifth, 1

and Tenth Circuits to the extent that they suggest that any question of 2

preemption by the NLRA’s duty of fair representation should be evaluated 3

under the broader doctrine of field preemption, and we believe that the Supreme 4

Court precedent is to the contrary. We must, however, still consider whether the 5

NLRA preempts the NYSHRL under a conflict preemption framework. 6

2. NLRA’s Duty of Fair Representation and the NYSHRL 7

“Under all of the[] three preemption tests—express, field, and conflict— 8

our task is to determine whether, and to what extent, Congress intended to 9

preempt state law.” Niagara Mohawk Power Corp.

, 673 F.3d at 95. 10

“We begin with the assumption that the historic police powers of the 11

States are not to be superseded by federal law unless that is the clear and 12

manifest purpose of Congress.” Id. (internal quotation marks omitted); see N.Y. 13

SMSA Ltd. P’ship

, 612 F.3d at 104 (“Traditionally, there has been a presumption 14

against preemption with respect to areas where states have historically exercised 15

their police powers.”). A state’s passage and enforcement of laws that prohibit 16

discrimination is an exercise of a state’s historic police powers. See Ry. Mail Ass’n 1726 v. Corsi

, 326 U.S. 88, 97 (1945). A state has “a substantial interest” “in protecting 1

the health and well

‐ being of its citizens.” Farmer

, 430 U.S. at 302

‐ 03. A state’s 2

interest in eliminating discrimination is a “compelling interest” “of the highest 3

order.” Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte

, 481 U.S. 537, 549 (1987); 4

see Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of New York

, 502 F.3d 5

136, 148 (2d Cir. 2007) (“[T]here is undoubtedly a compelling interest in 6

eradicating discrimination

. . . .”). The New York statute now known as the 7

NYSHRL has been upheld by the Supreme Court as a valid exercise of New 8

York’s police power. Corsi

, 326 U.S. at 94 (“We see no constitutional basis for the 9

contention that a state cannot protect workers from exclusion solely on the basis 10

of race, color[,] or creed by an organization, functioning under the protection of 11

the state, which holds itself out to represent the general business needs of 12

employees.”). 13

Since the NYSHRL falls within New York’s historic police powers, we 14

must determine whether the “clear and manifest purpose of Congress” was for 15

the NLRA’s duty of fair representation to preempt the NYSHRL. Niagara Mohawk 16

Power Corp.

, 673 F.3d at 95. “Congress may manifest its intent to preempt state or 1727 local law explicitly

. . . or implicitly, through the scope, structure, and purpose of 1

the federal law.” N.Y. SMSA Ltd. P’ship

, 612 F.3d at 104. “Since preemption 2

claims turn on Congress’s intent, we begin as we do in any exercise of statutory 3

construction with the text of the provision in question, and move on, as need be, 4

to the structure and purpose of the Act in which it occurs.” Mary Jo C. v. N.Y. 5

State & Local Ret. Sys.

, 707 F.3d 144, 162 (2d Cir. 2013). In so doing, “we must give 6

full effect to evidence that Congress considered, and sought to preserve, the 7

States’ coordinate regulatory role in our federal scheme.” Niagara Mohawk Power 8

Corp.

, 673 F.3d at 95 (internal quotation marks omitted). 9

There is no evidence that the NLRA’s duty of fair representation was 10

designed or intended to preempt state laws focused on combatting invidious 11

discrimination, such as the NYSHRL. Instead, our independent review of the 12

evidence leads us to the opposite conclusion based on the textual and structural 13

relationships between the NLRA, Title VII, and the NYSHRL. 14

Congress has manifested an intent that the NLRA not preempt Title VII 15

and other federal laws with respect to discrimination. As the Local’s counsel 16

conceded at oral argument, the NLRA’s duty of fair representation is no bar to a 1728 union member filing a discrimination claim before the EEOC. Oral Argument at 1

11:53

‐ 12:00, Figueroa v. Foster

, Nos. 16

‐ 1856, 16

‐ 1864 (2d Cir. Apr. 19, 2017), 2

http://www.ca2.uscourts.gov/oral_arguments.html. The Supreme Court recently 3

noted that the NLRA’s “unique purpose, which is to preserve the balance of 4

power between labor and management” “is inapposite in the context of Title VII, 5

which focuses on eradicating discrimination.” Vance v. Ball State Univ.

, 133 S. Ct. 6

2434, 2445 n.7 (2013). A union, therefore, is subject to liability under both the 7

NLRA’s duty of fair representation and under Title VII, as well as under other 8

federal anti

‐ discrimination statutes enforced by the EEOC. See, e.g.

, 14 Penn Plaza 9

LLC v. Pyett

, 556 U.S. 247, 271

‐ 72 (2009) (explaining union is subject to liability 10

under the NLRA’s duty of representation before the National Labor Relations 11

Board as well as under the ADEA before the EEOC). 12

The NYSHRL is a predecessor statute, precursor to, and model for Title 13

VII. “New York’s fair employment laws were referred to in the congressional 14

debates by proponents of [Title VII] as an example of existing state legislation 15

effectively combating employment discrimination.” Kremer v. Chem. Constr. Corp.

, 16

456 U.S. 461, 473 (1982), see id at 472

‐ 73 & n. 13. Today, NYSHRL and Title VII 1729 regulate virtually the same discrimination. See Matusick v. Erie Cty. Water Auth.

, 1

757 F.3d 31, 47 (2d Cir. 2014). 2

Congress explicitly provided in Section 708 of Title VII that “[n]othing in” 3

Title VII “shall be deemed to exempt or relieve any person from any liability, 4

duty, penalty, or punishment provided by any present or future law of any State 5

. . . other than any such law which purports to require or permit the doing of any 6

act which would be an unlawful employment practice” as defined in Title VII. 42 7

U.S.C. § 2000e

‐ 7. This explicit disavowal of preemption of state anti

‐ 8

discrimination laws in the text of Title VII, combined with the discussion of the 9

NYSHRL during the enactment of Title VII, constitute evidence that “Congress 10

considered, and sought to preserve, the States’ coordinate regulatory role in our 11

federal scheme” for protecting individuals from discriminatory employment 12

practices. Niagara Mohawk Power Corp.

, 673 F.3d at 95. 13

In addition, the text of Title VII also recognizes the existence and 14

continued viability of state mechanisms for protecting individuals from 15

discriminatory employment practices, such as the SDHR. In Sections 706(c) and 16

(e) of Title VII, Congress explicitly recognized that certain states had established 1730 “agenc[ies] with authority to grant

. . . relief” from “unlawful employment 1

practice[s]” that would also violate Title VII. 42 U.S.C. § 2000e

‐ 5(e)(1); see 42 2

U.S.C. § 2000e

‐ 5(c). Congress also stated in Section 706(d) of Title VII that the 3

EEOC “shall

. . . notify” such a state agency of a complaint filed “and, upon 4

request, afford [the state agency] a reasonable time

. . . to act under such State or 5

local law to remedy the practice alleged.” 42 U.S.C. § 2000e

‐ 5(d). Further, 6

Congress provided in Section 705(g)(1) of Title VII that the EEOC “shall have 7

power” to “cooperate with and, with their consent, utilize regional, State, local, 8

and other agencies” in order to further the federal goal of combatting 9

discrimination. 42 U.S.C. § 2000e

‐ 4(g)(1). The Supreme Court has explained that 10

the latter of these provisions “clearly envision the establishment of some sort of 11

worksharing agreements between the EEOC and state and local agencies” in an 12

effort to “avoid unnecessary duplication of effort or waste of time.” EEOC v. 13

Commercial Office Prods. Co.

, 486 U.S. 107, 122 (1988). Congress, therefore, has not 14

only recognized the existence of state agencies such as the SDHR, but has 15

explicitly provided in Title VII for procedures that affirm the important 1631 coordinate role of the SDHR and other state agencies in furthering Congress’s 1

anti

‐ discrimination policies. 2

Having set forth the broader principles undergirding this Court’s instant 3

conflict preemption inquiry, the question becomes whether it is either impossible 4

for a private party to comply with both the NLRA’s duty of fair representation 5

and the NYSHRL, or whether the NYSHRL stands as an obstacle to the execution 6

of Congress’s intent as expressed in the NLRA’s duty of fair representation. See 7

Niagara Mohawk Power Corp.

, 673 F.3d at 95 (explaining conflict preemption 8

occurs “where state law actually conflicts with federal law, including where it is 9

impossible for a private party to comply with both state and federal 10

requirements, or where state law stands as an obstacle to the accomplishment 11

and execution of the full purposes and objectives of Congress” (internal 12

quotation marks omitted)). 13

Regarding the impossibility branch of conflict preemption, we have 14

explained that impossibility occurs when “state law penalizes what federal law 15

requires, or when state law claims directly conflict with federal law.” In re Methyl 16

Tertiary Butyl Ether (MTBE) Prods. Liab. Litig

., 725 F.3d 65, 97 (2d Cir. 2013) 1732 (internal quotation marks and citation omitted). We have explained that 1

impossibility is a “demanding defense, and we will not easily find a conflict that 2

overcomes the presumption against preemption.” Id. (internal quotation marks 3

and citation omitted). 4

There is no impossibility here. The Local has not argued that the NYSHRL 5

penalizes what the duty of fair representation requires, nor has the Local argued 6

that there is any direct conflict between the NYSHRL’s requirements and the 7

requirements of the NLRA’s duty of fair representation. Although the Local 8

suggests that the NYSHRL penalizes conduct that the duty of fair representation 9

would not penalize, this is not a conflict cognizable under the impossibility 10

branch of conflict preemption. “To meet its burden with respect to the 11

impossibility branch of conflict preemption, [the Local] need[s] to demonstrate 12

that it could not comply with the federal [duty of fair representation]” if it also 13

complied with the NYSHRL. Id. at 100 (emphasis in original). As Title VII 14

prohibits virtually the same discrimination as the NYSHRL prohibits, the Local 15

will be unable to meet this burden to show impossibility. See Matusick

, 757 F.3d 1633 at 47. That the duty of fair representation provides a floor over which the 1

NYSHRL provides a ceiling does not render the two in direct conflict. 2

The obstacle branch of conflict preemption, on the other hand, “precludes 3

state law that poses an actual conflict with the overriding federal purpose and 4

objective.” In re MTBE Prod. Liab. Litig

., 725 F.3d at 101 (internal quotation marks 5

omitted). “What constitutes a sufficient obstacle is a matter of judgment, to be 6

informed by examining the federal statute as a whole and identifying its purpose 7

and intended effects.” Id. (internal quotation marks omitted). “As with the 8

impossibility branch of conflict preemption, the purpose of Congress is the 9

ultimate touchstone, and the conflict between state law and federal policy must 10

be a sharp one.” Id. (internal quotation marks and citations omitted). “The 11

burden of establishing obstacle preemption, like that of impossibility 12

preemption, is heavy: the mere fact of tension between federal and state law is 13

generally not enough to establish an obstacle supporting preemption, 14

particularly when the state law involves the exercise of traditional police power.” 15

Id. at 101

‐ 02 (internal quotation marks and brackets omitted). “Indeed, federal 16

law does not preempt state law under obstacle preemption analysis unless the 1734 repugnance or conflict is so direct and positive that the two acts cannot be 1

reconciled or consistently stand together.” Id. at 102 (internal quotation marks 2

omitted). 3

As noted above, the anti

‐ discrimination roots of the duty of fair 4

representation are long

‐ established. In Vaca

, the Supreme Court observed that 5

the “statutory duty of fair representation was developed [in the 1940s] in a series 6

of cases involving alleged racial discrimination by unions certified as exclusive 7

bargaining representatives under the Railway Labor Act [(“RLA”)], and was 8

soon extended to unions certified under the [NLRA].” 386 U.S. at 177 (citations 9

omitted). As this Court more recently explained, “[a] union breaches its duty of 10

fair representation if its actions with respect to a member are arbitrary, 11

discriminatory, or taken in bad faith.” Fowlkes

, 790 F.3d at 388. The purpose of 12

the duty of fair representation, therefore, can easily be said to encompass a 13

purpose of prohibiting discrimination. 14

Indeed, the Local and the Commissioner agree that the NYSHRL serves the 15

same purpose of prohibiting discrimination as does the NLRA’s duty of fair 16

representation. Each serves to reinforce the anti

‐ discriminatory purpose of the 1735 other. This mutual service is not a conflict such that the duty of fair 1

representation and the NYSHRL “cannot be reconciled or consistently stand 2

together.” In re MTBE Prod. Liab. Litig

., 725 F.3d at 102. Instead, the two work in 3

tandem to protect union members from invidious discrimination in all of its 4

forms. 5

This opinion addresses only the Local’s claim that the duty of fair 6

representation preempts the NYSHRL in its entirety when applied to unions 7

acting in their capacity as collective bargaining agents. We do not purport to 8

address every potential conflict between the NYSHRL and federal law. For 9

example, NYSHRL claims are subject to a one

‐ year statute of limitations, see N.Y. 10

Exec. Law § 297(5), whereas private duty of fair representation claims are subject 11

to a six

‐ month statute of limitations, see 29 U.S.C. § 160(b); DelCostello v. Int’l Bhd. 12

of Teamsters

, 462 U.S. 151, 154

‐ 55 (1983), and overlapping Title VII claims filed 13

with the SDHR are subject to a 300

‐ day statute of limitations, see Vega v. 14

Hempstead Union Free Sch. Dist.

, 801 F.3d 72, 78

‐ 79 (2d Cir. 2015). We need not 15

decide today which of these statutes of limitations applies to NYSHRL claims 16

against unions because the present appeal does not raise facts that implicate any 1736 such conflict. We hold only that the NYSHRL presents no potential conflict so 1

incompatible with federal labor laws that all of its provisions must fall. We leave 2

for other cases to resolve more specific conflicts between the NYSHRL and 3

federal law as they arise. 4

Accordingly, we reverse the order of the district court granting summary 5

judgment to the Local. 6

CONCLUSION 7

For the reasons set forth above, we hold that the NLRA’s duty of fair 8

representation does not preempt the NYSHRL either on the basis of field pre

‐ 9

emption or as a general matter on the basis of conflict preemption. We 10

accordingly reverse the declaratory judgment of the district court and deny the 11

Local’s cross

‐ appeal for injunctive relief. 12