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Chicago-Kent College of Law




After Lueck the preemption of state law claims by employees covered by collective bargaining agreements seemed to spread.26 Lingle partially stemmed the flow, 27 but the lower courts continue to deny significant state law rights to unionized employees in the name of section 301 and the arbitration process that it has encouraged. 28 Many of these lower court decisions paint a much too broad swath of section 301 preemption through the range of employment rights now being made available by state law.

The fault, I suggest, lies with the preemption test suggested in Lueck and expressly articulated in Lingle. Both cases were correctly decided on their facts, but neither adequately explained why either the need for uniform federal law governing the interpretation of collective agreements or protection of the arbitration process requires preemption of some state law claims. The result has been a section 301 preemption test that has confused and misled the lower courts.

I will also argue in this essay that the Court's difficulty with section 301 preemption in part derives from its failure to confront directly how the grant of certain minimum rights to unionized employees may conflict with federal labor policies supporting labor law preemption doctrine in addition to that applied through section 301. In particular, I wish to suggest that although the broad dicta of the Oliver case has been rightly rejected by the Court, Oliver does suggest a principle that should help define those state laws that might impair the free processes of collective bargaining that have been encouraged through the National Labor Relations Act.29 I will contend that by widening its preemption focus the Court could have more convincingly decided not only Lueck, but even more clearly its 1990 United Steelworkers of America v. Rawson case, involving a state tort claim against a union for negligently performing mine safety inspections. Widening its focus would also allow the Court to articulate doctrine that would more effectively control lower court frustration of organized employees' invocations of state law rights that do not significantly impede the collective bargaining process.

Before making these arguments, however, I want to return to a brief review of the Trilogy. Doing so seems appropriate not only because of the anniversary marked by this symposium, but also because the content and justifications for the section 301 law fashioned in these three cases provides an illuminating background for understanding how the Court should be fashioning section 301 preemption law.

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