Labor – Preemption – NLRA

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Where a Massachusetts Commission Against Discrimination decision holding a union liable for sex discrimination was upheld in Superior Court, that judgment should be affirmed despite the union’s argument that the claims against it are preempted by the National Labor Relations Act.

“Women have been employed at the Port of New Bedford for years. However, their work there traditionally was confined to certain jobs that were viewed as low-level. Over time, some women began to seek other positions at the port, including that of forklift operator, a position that traditionally had been staffed only by men. Such efforts were rebuffed by the International Longshoremen Association, Local 1413-1465 (union), which ran the hiring process through which workers were selected for available positions. In 2009, April Robar filed a complaint with the Massachusetts Commission Against Discrimination (commission) alleging that the union had engaged in sex discrimination against her.

“Specifically, Robar alleged that she was passed over for work as a forklift operator in favor of men who not only were less qualified than she was, but who — unlike her — lacked a mandatory qualification for the position. …

“Following an adjudicatory hearing, a hearing officer found that the union had discriminated against Robar based on her sex. The full commission upheld the hearing officer’s decision, as did a Superior Court judge. In this further appeal, the union challenges the commission’s decision on the merits and additionally argues that it is preempted by various Federal labor laws. We affirm. …

“… In the end, the union lost not because the hearing officer misunderstood the reasons why Robar was passed over for the available forklift positions, but because the hearing officer did not credit the union’s explanation. There was ample support in the record for the hearing officer’s findings and rulings, even apart from the direct suggestions of bias inherent in statements made by union members or officials. We discern no error in the hearing officer’s application of the traditional three-stage test regarding how discrimination claims can be established. … There was evidence credited by the hearing officer that Robar was qualified to be hired as a forklift operator and that the union treated her differently from men even when they lacked a mandatory qualification for the position, without any credible explanation for the disparate treatment. Nothing more is required. …

“The union now argues that the commission’s claims against it are preempted by three different Federal labor laws: §301 of the Labor Management Relations Act (LMRA), 29 U.S.C. §185; the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1001 et seq.; and §§7 and 8 of the National Labor Relations Act (NLRA), 29 U.S.C. §§157-158. …

“… Because it is uncontested that the union did not timely raise its LMRA and ERISA preemption defenses, those defenses have been waived.

“A different result applies to the commission’s argument that the union waived its preemption defense under the NLRA, at least to the extent such arguments are based on §§7 and 8 of that statute. This type of preemption — which has become known as Garmon preemption — is based on the theory that Congress gave the NLRB exclusive jurisdiction over certain kinds of labor disputes. … The Supreme Court has specifically held that Garmon preemption, if it applies, cannot be waived. … We therefore turn to the union’s argument that such preemption applies here. …

“The second step in the analysis is controlled by Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 174 (1978). There, the Supreme Judicial Court held that ‘State antidiscrimination statutes are not preempted by Federal labor law [including the NLRA].’ … The court reasoned that discrimination falls within the ‘peripheral concern’ exception to Garmon preemption. … Despite the age of this case, it remains good precedent binding on us. … Thus, while it is not too late for the union to argue that Garmon preemption bars the commission’s case, we hold that it does not.

“In its amicus brief, the Massachusetts AFL-CIO (AFL-CIO) argues that the type of discrimination alleged here perhaps best can be characterized as a violation of the union’s “duty of fair representation,” a doctrine that imposes on unions the obligation to fairly represent all employees, whether members of the union or not, “without hostility or discrimination toward any.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). Because the NLRB plainly has authority to enforce the duty of fair representation pursuant to §9 of the NLRA, 29 U.S.C. §159, the AFL-CIO argues that the commission’s claims here may be preempted even apart from Garmon preemption, which is based on §§7 and 8 of the NLRA. We are unpersuaded that this helps the union here. Neither the union nor the AFL-CIO has provided a convincing reason why any preemption implicated by the duty of fair representation should be viewed as broader than Garmon preemption. To the contrary, the cases establish that in light of the history of the duty of fair representation — which first arose as a judicially created construct — the NLRB’s authority to enforce that duty has never been viewed as exclusive. … Relatedly, it follows that a claim of preemption based on the NLRB’s authority to enforce the duty of fair representation — unlike Garmon preemption — can be waived. Accordingly, to the extent that the union seeks to argue that the commission’s case is preempted based on a form of preemption that extends beyond Garmon preemption, such arguments have been waived.”

International Longshoremen Association, Local 1413-1465 vs. Massachusetts Commission Against Discrimination, et al. (Lawyers Weekly No. 11-028-24) (19 pages) (Milkey, J.) The case was heard by Renee P. Dupuis, J., on motions for judgment on the pleadings. Scott W. Lang for the plaintiff; Peter M. Mimmo for Massachusetts Commission Against Discrimination; the following submitted briefs for amici curiae: Andrea Joy Campbell, Jessica Rahmoune and Douglas S. Martland for the commonwealth; James A.W. Shaw and Ryan M. Quinn for Massachusetts AFL-CIO; Joseph L. Sulman for Massachusetts Employment Lawyers Association (Docket No. 23-P-83) (April 3, 2024).

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