16-1856-cv(L) 

Figueroa v. Foster 

16‐1856‐cv(L)

Figueroa v. Foster

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 ____________________

4 

5 August Term, 2016  

6 

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

8 

9 Docket Nos. 16‐1856‐cv(L), 16‐1864‐cv(XAP)

10 

11 ____________________

12 

13 HECTOR J. FIGUEROA,

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

15 

16       Plaintiff‐Appellee‐Cross‐Appellant,

17 

18     v.

19 

20 COMMISSIONER HELEN D. FOSTER,  

21 New York State Division of Human Rights,

22 

23         Defendant‐Appellant‐Cross‐Appellee.

24 

25 ____________________

26 

27 Before: CALABRESI, POOLER, and WESLEY, Circuit Judges.

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

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

2

1 SEIU Local 32BJ, CTW, CLC. Figueroa v. Foster, No. 1:14‐cv‐8796, 2016 WL

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

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

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

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

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

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

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

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

10 Opportunity Commission will serve as the primary force protecting union

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

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

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

14 Human Rights will provide union members with additional protections against

15 invidious discrimination by their labor organizations.

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

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

3

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

2 reverse.

3 Reversed.

4 ____________________

5 ANDREW RHYS DAVIES, Assistant Solicitor General

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

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

8 Schneiderman, Attorney General of the State of New

9 York, New York, NY, for Defendant‐Appellant‐Cross‐

10 Appellee.

11 

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

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

14 Appellee‐Cross‐Appellant.

15 

16 POOLER, Circuit Judge:

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

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

19 SEIU Local 32BJ, CTW, CLC. Figueroa v. Foster, No. 1:14‐cv‐8796, 2016 WL

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

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

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

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

4

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

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

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

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

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

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

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

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

9 Human Rights will provide union members with additional protections against

10 invidious discrimination by their labor organizations.

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

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

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

14 reverse.
 

5

1 BACKGROUND

2 I. Factual Background

3 Defendant‐Appellant‐Cross‐Appellee Commissioner Helen D. Foster (the

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

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

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

7 discriminatory practices, including retaliatory conduct, by entities including

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

9 of the NYSHRL.  

10 Plaintiff‐Appellee‐Cross‐Appellant Hector J. Figueroa is the President of

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

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

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

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

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

16 in the State of New York.
 

6

1 Every collective bargaining agreement to which the Local is a party

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 conduct as the [complainant’s] collective bargaining representative, in violation
 

7

1 of the [NYS]HRL.” App’x at 631. All but one of the complaints were dual filed

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

3 federal law, including Title VII.

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

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

6 had committed or was committing an unlawful discriminatory practice in

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

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

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

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

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

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

13 An additional two complaints remained pending.

14 II. Procedural Background

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

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

17 Southern District of New York.
 

8

1 On December 8, 2014, the Local filed its First Amended Complaint

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

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

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

5 district court.

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

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

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

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

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

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

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

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

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

15 declaratory, but not injunctive, relief. Figueroa, 2016 WL 2851335, at *1, *12. The

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

17 that the parties simply disagreed over a “specific, narrow, legal question: does a
 

9

1 union’s duty of fair representation preempt the application of the [NYS]HRL

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

3 representative?” Id. at *3.

4 The district court first addressed the duty of fair representation. Id. at *3‐*6.

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

6 implication under the [NLRA],” and is governed by federal law. Id. at *3‐*4. The

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

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

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

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

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

12 state law following the Supreme Court’s holding in Vaca v. Sipes, 386 U.S. 171

13 (1967). Figueroa, 2016 WL 2851335, at *4 (collecting cases).  

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

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

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

17 law that protected an employee from discrimination would be preempted. Id. at
 

10

1 *5. The district court then noted that “the vast majority of cases in this Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 representation to preempt state anti‐discrimination law. Id. at *7. The district
 

11

1 court disagreed with the Commissioner’s argument that Vaca was only about

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

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

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

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

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

7 anti‐discrimination statutes. Id. at *7‐*8. Instead, the district court explained that

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

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

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

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

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

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

14 under the NLRA.” Id.  

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

16 injunctive relief. Id. at *10‐*11. The Local had proposed a ten‐step protocol

17 whereby, essentially, all complaints filed with the SDHR against the Local would
 

12

1 be dismissed without investigation unless the complainant was a current, former,

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

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

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

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

6 Local that might involve both preempted and non‐preempted claims. Id. at *11.

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

8 administrative enforcement of anti‐discrimination laws” weighed against the

9 Local’s proposed permanent injunction. Id.  

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

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

12 Local’s cross‐appeal was timely filed on June 13, 2016.

13 DISCUSSION

14 I. Preemption

15 A. Standard of Review

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

17 question.” Liberty Mut. Ins. Co. v. Donegan, 746 F.3d 497, 502‐03 (2d Cir. 2014).
 

13

1 Summary judgment is appropriate if the record shows “there is no genuine

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

3 of law.” Fed. R. Civ. P. 56(a).

4 B. Analysis

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

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

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

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

9 1. Field Preemption versus Conflict Preemption

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

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

12 Clarkstown, 612 F.3d 97, 103‐04 (2d Cir. 2010) (internal quotation marks omitted).

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

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

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

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

17 where local law conflicts with federal law such that it is impossible for a party to
 

14

1 comply with both or the local law is an obstacle to the achievement of federal

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

 

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.” Golden
 

15

1 forms of implied preemption. Steel Inst. of N.Y. v. City of New York, 716 F.3d 31, 36

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

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

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

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

6 marks omitted).

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

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

9 Local 25, 430 U.S. 290, 295 (1977). “On the one hand, [the Supreme] Court has

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

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

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

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

 

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

1 ellipses omitted) (citing Vaca, 386 U.S. at 178‐79). “On the other hand, because

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

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

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

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

6 295‐96 (internal quotation marks and ellipses omitted). Indeed, the Supreme

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

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

9 relations.” Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local 54, 468 U.S.

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

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

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

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

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

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

16 representation.” 386 U.S. at 180‐81.  
 

17

1 It is well established that a union has “a statutory duty fairly to represent

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

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

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

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

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

7 honesty, and to avoid arbitrary conduct.” Fowlkes, 790 F.3d at 387 (internal

8 quotation marks and ellipses omitted) (citing Vaca, 386 U.S. at 177). “A union

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

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

11 The anti‐discrimination roots of the duty of fair representation are long‐

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

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

14 alleged racial discrimination by unions certified as exclusive bargaining

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

16 to unions certified under the [NLRA].” Vaca, 386 U.S. at 177 (citations omitted).
 

18

1 The Local relies on a close reading of the Supreme Court’s decision in Vaca

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

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

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

5 conclusion.  

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

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

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

9 former employer. Resp’t’s Answer Br., Vaca v. Sipes, 386 U.S. 171 (1967), 1966 WL

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

11 employee expressly disavowed that his complaint raised a claim of

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

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

14 law claim for breach of contract. Id.  

15 The petitioner in Vaca, the union, argued that the Missouri state courts had

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

17 fell under the duty of fair representation and thus could only be brought in
 

19

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

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

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

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

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

6 doctrine have a profound effect . . . on the applicability of the [preemption] rule

7 to this class of cases.” Id. at 181‐82. Although the Supreme Court concluded that

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

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

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

11 188‐89. In doing so, the Supreme Court implicitly held that the employee’s state

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

13 under the NLRA. Id. at 189‐90.

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

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

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

17 First Circuit has held that the duty of fair representation preempts claims in tort
 

20

1 and contract for the breach of duties related to job safety under New Hampshire

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

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

4 2944, United Steelworkers of Am., AFL‐CIO, CLC, 683 F.2d 590, 594 (1st Cir. 1982).

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

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

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

8 accomplishment of the purposes of Congress.” Id. at 594‐95. Accordingly, the

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

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

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

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

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

14 preempted by the duty of fair representation. Richardson, 864 F.2d at 1169. The

15 Fifth Circuit relied on Vaca, explaining that “[u]nder Vaca, the NLRA duty of fair

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

17 authorized, completely preempts state law because of the congressional intent
 

21

1 that federal law, developed to further the goals of the NLRA, entirely govern the

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

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

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

5 preempted state wrongful discharge and civil conspiracy claims based on

6 religious discrimination. Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149,

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

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

9 law governs and ordinarily preempts any state‐law claims based on those

10 allegations.” Id. (citing Vaca, 386 U.S. at 177). The Tenth Circuit further noted that

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

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

13 encompass” allegations of religious discrimination. Id.  

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

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

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

17 International, the Fourth Circuit considered whether state law claims for
 

22

1 blacklisting, conspiracy, and interference with a contractual relationship were

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

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

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

5 judicial deference has emerged.” Id. at 1168‐69. In other words, “[u]nlike

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

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

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

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

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

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

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

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

14 apply here. Id.

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

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

17 In Adkins v. Mireles, the Ninth Circuit held that employees’ state law claims for
 

23

1 breach of contract, negligent misrepresentation, and intentional infliction of

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

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

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

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

6 386 U.S. at 179), 540‐42. Although the Ninth Circuit found each claim was

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

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

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

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

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

12 without relying on Vaca, that the NLRA’s duty of fair representation neither

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

14 preempted a plaintiff’s state‐law claims based on conflict preemption. Markham

15 v. Wertin, ‐‐‐ F.3d ‐‐‐‐, 2017 WL 2800723, at *7 (8th Cir. June 29, 2017). The Eighth

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

17 consider the case. Id. Instead, the Eighth Circuit held that field preemption did
 

24

1 not apply because “Congress has not said whether and to what extent it intended

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

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

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

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

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

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

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

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

10 We think it is clear from a close reading of Vaca, and from the other cases

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

12 preemption that would foreclose the NYSHRL from claims of discrimination

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

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

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

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

17 field within which its proscriptions function. See Brown, 468 U.S. at 501; Vaca, 386
 

25

1 U.S. at 180‐81. We therefore disagree with the decisions of our sister First, Fifth,

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

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

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

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

6 NLRA preempts the NYSHRL under a conflict preemption framework.

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

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

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

10 preempt state law.” Niagara Mohawk Power Corp., 673 F.3d at 95.  

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

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

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

14 SMSA Ltd. P’ship, 612 F.3d at 104 (“Traditionally, there has been a presumption

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

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

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

26

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

2 the health and well‐being of its citizens.” Farmer, 430 U.S. at 302‐03. A state’s

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

4 order.” Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987);

5 see Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of New York, 502 F.3d

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

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

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

9 York’s police power. Corsi, 326 U.S. at 94 (“We see no constitutional basis for the

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

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

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

13 employees.”).

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

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

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

17 Power Corp., 673 F.3d at 95. “Congress may manifest its intent to preempt state or
 

27

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

2 the federal law.” N.Y. SMSA Ltd. P’ship, 612 F.3d at 104. “Since preemption

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 conceded at oral argument, the NLRA’s duty of fair representation is no bar to a
 

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1 union member filing a discrimination claim before the EEOC. Oral Argument at

2 11:53‐12:00, Figueroa v. Foster, Nos. 16‐1856, 16‐1864 (2d Cir. Apr. 19, 2017),

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

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

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

6 which focuses on eradicating discrimination.” Vance v. Ball State Univ., 133 S. Ct.

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

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

9 federal anti‐discrimination statutes enforced by the EEOC. See, e.g., 14 Penn Plaza

10 LLC v. Pyett, 556 U.S. 247, 271‐72 (2009) (explaining union is subject to liability

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

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

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

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

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

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

17 456 U.S. 461, 473 (1982), see id at 472‐73 & n. 13. Today, NYSHRL and Title VII
 

29

1 regulate virtually the same discrimination. See Matusick v. Erie Cty. Water Auth.,

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

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

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

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

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

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

8 U.S.C. § 2000e‐7. This explicit disavowal of preemption of state anti‐

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

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

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

12 federal scheme” for protecting individuals from discriminatory employment

13 practices. Niagara Mohawk Power Corp., 673 F.3d at 95.

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

15 continued viability of state mechanisms for protecting individuals from

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

17 (e) of Title VII, Congress explicitly recognized that certain states had established
 

30

1 “agenc[ies] with authority to grant . . . relief” from “unlawful employment

2 practice[s]” that would also violate Title VII. 42 U.S.C. § 2000e‐5(e)(1); see 42

3 U.S.C. § 2000e‐5(c). Congress also stated in Section 706(d) of Title VII that the

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

5 request, afford [the state agency] a reasonable time . . . to act under such State or

6 local law to remedy the practice alleged.” 42 U.S.C. § 2000e‐5(d). Further,

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

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

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

10 discrimination. 42 U.S.C. § 2000e‐4(g)(1). The Supreme Court has explained that

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

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

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

14 Commercial Office Prods. Co., 486 U.S. 107, 122 (1988). Congress, therefore, has not

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

16 explicitly provided in Title VII for procedures that affirm the important
 

31

1 coordinate role of the SDHR and other state agencies in furthering Congress’s

2 anti‐discrimination policies.  

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

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

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

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

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

8 Niagara Mohawk Power Corp., 673 F.3d at 95 (explaining conflict preemption

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

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

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

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

13 quotation marks omitted)).

14 Regarding the impossibility branch of conflict preemption, we have

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

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

17 Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65, 97 (2d Cir. 2013)
 

32

1 (internal quotation marks and citation omitted). We have explained that

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

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

4 and citation omitted).  

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

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

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

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

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

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

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

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

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

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

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

16 will be unable to meet this burden to show impossibility. See Matusick, 757 F.3d
 

33

1 at 47. That the duty of fair representation provides a floor over which the

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

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

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

5 objective.” In re MTBE Prod. Liab. Litig., 725 F.3d at 101 (internal quotation marks

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

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

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

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

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

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

12 burden of establishing obstacle preemption, like that of impossibility

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

14 generally not enough to establish an obstacle supporting preemption,

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

16 Id. at 101‐02 (internal quotation marks and brackets omitted). “Indeed, federal

17 law does not preempt state law under obstacle preemption analysis unless the
 

34

1 repugnance or conflict is so direct and positive that the two acts cannot be

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

3 omitted).  

4 As noted above, the anti‐discrimination roots of the duty of fair

5 representation are long‐established. In Vaca, the Supreme Court observed that

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

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

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

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

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

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

12 discriminatory, or taken in bad faith.” Fowlkes, 790 F.3d at 388. The purpose of

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

14 purpose of prohibiting discrimination.

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

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

17 representation. Each serves to reinforce the anti‐discriminatory purpose of the
 

35

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

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

3 together.” In re MTBE Prod. Liab. Litig., 725 F.3d at 102. Instead, the two work in

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

5 forms.

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

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

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

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

10 example, NYSHRL claims are subject to a one‐year statute of limitations, see N.Y.

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

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

13 of Teamsters, 462 U.S. 151, 154‐55 (1983), and overlapping Title VII claims filed

14 with the SDHR are subject to a 300‐day statute of limitations, see Vega v.

15 Hempstead Union Free Sch. Dist., 801 F.3d 72, 78‐79 (2d Cir. 2015). We need not

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

17 against unions because the present appeal does not raise facts that implicate any
 

36

1 such conflict. We hold only that the NYSHRL presents no potential conflict so

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

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

4 federal law as they arise.  

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

6 judgment to the Local.

7 CONCLUSION

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

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

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

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

12 Local’s cross‐appeal for injunctive relief.