The Doctrine of Preemption in General

The Supremacy Clause of the Constitution is not typically the kind of subject that arises during discussions at cocktail parties. At least until recently. The Supremacy Clause has been getting lots of play lately, as courts are called upon to determine if Arizona may develop its own immigration policy. The Supremacy clause (Article VI, Section 2 of the U.S. Constitution) declares that all laws and treaties made by the federal government will be "the supreme law of the land." It means, simply, that the federal government, in exercising powers set forth in the Constitution, will prevail over any inconsistent or conflicting exercise of power under state law. The Supremacy Clause give rise to issues that fall within the area of federal preemption. In other words, the Constitution and other federal laws and treaties will preempt (or supersede) state laws and rights that arise pursuant to state law.


Federal Preemption in Actions Against a Labor Union for Breaching Its Duty of Fair Representation

Preemption, of course, arises in a wide array of circumstances implicating many different laws. One such area of law in which preemption is a frequent issue is when a union member seeks to hold his or her union accountable for its breach of a labor union's "duty of fair representation" ["DFR"] to its members. Underlying the doctrine of federal preemption is the concern that a state law may serve to impede the objectives of federal law. Courts often deem preempted state-law claims that are identical to duties owed under the DFR. The DFR prevents a union from acting in a way that is in bad faith, arbitrary, or discriminatory. Thus, quite often a union member who sues his or her union for breach of the union's DFR will join with the DFR claim other claims, such as fraud. Courts will often deem preempted by the DFR state law claims that are "essentially identical" to the DFR claim, largely because state law should neither limit nor enlarge the scope of federal laws.


Sometimes State Law Rights Will Escape Preemption in Duty of Fair Representation Lawsuits

State-law claims are sometimes "merely a peripheral concern" of federal law. State law claims escape preemption when they are rooted in a state's police powers or when state law rights do not interfere with the federal scheme. Compelling local interest in certain tort regulation is recognized as being of little concern to federal labor law. There is also a presumption against preemption. Thus, courts often restrict preemptive effect of federal laws, particularly when it is a subject that is traditionally governed by state law, as, for example, defamation claims. A key issue in determining whether the DFR preempts state law is whether a collective bargaining agreement ["CBA"] must be interpreted; if so, preemption is more likely. For that reason, purely factual questions are typically deemed by courts as not requiring interpretation of a CBA. The mere existence of a CBA as part of the factual background of the case does not by itself require preemption.



The Railway Labor Act, under which the DFR arises in the railroad and aviation industries (as, for example, in the employment of airline pilots), can preempt a state law claim, only if it the state law claim is dependent on the interpretation of a collective bargaining agreement. Another inquiry is whether the rights involve exist independently of the collective bargaining agreement. If so, federal preemption is less likely to apply. This happens to be a complicated area of the law, and issues concerning federal preemption of state law rights in a duty of fair representation context will typically require consultation with an attorney experienced in federal labor law.