by Micaela Heery1

Col­lec­tive bar­gain­ing agree­ments are ubiq­ui­tous in the field of labor law. These agree­ments have allowed par­ties to over­come some of the inher­ent com­plex­i­ties of col­lec­tive action and recon­fig­ure the bal­ance of pow­er between employ­ers and employ­ees, often through union rep­re­sen­ta­tion. Many col­lec­tive bar­gain­ing agree­ments man­date pri­vate arbi­tra­tion as the ini­tial forum to resolve dis­putes.2 Per­haps because of the pref­er­ence for arbi­tra­tion, the case law is unset­tled in sit­u­a­tions in which par­ties bring claims that are relat­ed to the col­lec­tive bar­gain­ing agree­ment to court, rather than to arbitration.

Plain­tiffs, usu­al­ly indi­vid­ual employ­ees, some­times sue in fed­er­al court over employ­ment-relat­ed dis­putes, despite the pres­ence of an arbi­tra­tion clause in a col­lec­tive bar­gain­ing agree­ment. That is, employ­ees might try to claim that the col­lec­tive bar­gain­ing agree­ment does not cov­er their claims. Employ­ers, in their defense, often refer to the manda­to­ry arbi­tra­tion clause of the agree­ment.3 Sec­tion 301 of the Labor Man­age­ment Rela­tions Act pro­vides fed­er­al juris­dic­tion and a fed­er­al body of com­mon law to hear claims of this nature.4 But fed­er­al courts have divid­ed on how to decide which claims are suf­fi­cient­ly dis­tinct to be heard in court from those that must be arbi­trat­ed under the col­lec­tive bar­gain­ing agree­ment.5 These deci­sions involve a com­mon con­flict of try­ing to estab­lish judi­cial­ly man­age­able stan­dards.6

A com­pli­cat­ing fac­tor in this analy­sis is that sec­tion 301 of the Labor Man­age­ment Rela­tions Action allows col­lec­tive bar­gain­ing agree­ments to pre­empt state law that inter­feres with the uni­form inter­pre­ta­tion of col­lec­tive bar­gain­ing agree­ments.7 Thus, many courts have not­ed seri­ous ques­tions about the extent to which pri­vate bar­gain­ing agree­ments can sup­plant state law.8

This Con­tri­bu­tion argues that courts con­sid­er­ing whether col­lec­tive bar­gain­ing agree­ments pre­empt state claims should stan­dard­ize their analy­ses in the fol­low­ing way. First, courts should con­sid­er whether the claim is inde­pen­dent of, i.e. not cov­ered by, the col­lec­tive bar­gain­ing agree­ment. Inde­pen­dence should be eval­u­at­ed with a two-prong inquiry: whether the right aris­es from an inde­pen­dent body of law (a state reg­u­la­tion, rather than the col­lec­tive bar­gain­ing agree­ment, for exam­ple); and whether the claim depends on an inter­pre­ta­tion of the col­lec­tive bar­gain­ing agree­ment. If the plain­tiff estab­lish­es that the claim is inde­pen­dent under this test, then the court should usu­al­ly not find pre­emp­tion of the claim.

How­ev­er, this analy­sis can and often should include a con­sid­er­a­tion of the two over­ar­ch­ing pol­i­cy con­cerns that under­lie these analy­ses. First, allow­ing pre­emp­tion in some cas­es could poten­tial­ly under­mine a State’s police pow­ers. Sec­ond, find­ing a claim not to be pre­empt­ed may inter­fere with the devel­op­ment of a uni­form nation­wide stan­dard of fed­er­al labor law. This in turn would reduce pri­vate par­ties’ abil­i­ties to pre­dict how terms of col­lec­tive bar­gain­ing agree­ments will be inter­pret­ed. This sec­ond lay­er of analy­sis could func­tion as a tiebreak­er. That is, if the ini­tial inde­pen­dence inquiry is not clear, courts should use their dis­cre­tion in light of evi­dence of either of the above con­cerns to deter­mine pre­emp­tion based on the weight of the com­pet­ing con­cerns. This approach infus­es what could be an over­ly for­mal­is­tic inquiry of “inde­pen­dence” with preva­lent con­cerns about fed­er­al­ism and a con­gres­sion­al­ly-sup­port­ed fed­er­al arbi­tra­tion regime.

Because of this, the con­sid­er­a­tion of these fac­tors should not only be used in the event of “close calls.” Rather, courts should also infuse their analy­sis of inde­pen­dence with these con­sid­er­a­tions so as to pre­vent an over­ly for­mal­is­tic inquiry into inde­pen­dence that results in abstract rules that bear no cor­re­la­tion to tan­gi­ble con­cerns about the impos­si­bil­i­ty of com­ply­ing with state rules or on the oth­er hand a broad pre­emp­tive power.

* * * * *

In some labor dis­putes involv­ing col­lec­tive bar­gain­ing agree­ments, sec­tion 301 of the LMRA pro­vides both fed­er­al juris­dic­tion and a body of fed­er­al law for the arbi­tra­tion of those con­tro­ver­sies.9 The mere fact that a dis­pute con­cerns a col­lec­tive bar­gain­ing agree­ment is not suf­fi­cient to invoke the use of fed­er­al labor law through sec­tion 301 of the LMRA.10 For exam­ple, a col­lec­tive bar­gain­ing agree­ment can be a rel­e­vant fact of a dis­pute with­out requir­ing its inter­pre­ta­tion. In this area of law, there is no sug­ges­tion of field pre­emp­tion, as Con­gress has nev­er exer­cised author­i­ty to occu­py the entire area of labor leg­is­la­tion.11

The Supreme Court has used the term “inde­pen­dence” to describe the nec­es­sary thresh­old a plain­tiff must meet to avoid pre­emp­tion of their claim. How­ev­er, the Court at var­i­ous times has described inde­pen­dence dif­fer­ent­ly. In Allis-Chalmers v. Lueck, the Court pre­sent­ed two dif­fer­ent ways of deter­min­ing inde­pen­dence: either the state law pro­vid­ed non­nego­tiable state rights (thus estab­lish­ing inde­pen­dence), or the claim was “inex­tri­ca­bly inter­twined” with an inter­pre­ta­tion of the terms of the con­tract itself.12

At times the Court has painstak­ing­ly deter­mined the actu­al source of rights. In Allis-Chalmers, for exam­ple, an employ­ee brought a tort action against his employ­er for bad faith han­dling of an insur­ance claim that was guar­an­teed as part of a col­lec­tive bar­gain­ing agree­ment. Wis­con­sin tort law allowed this type of suit despite its ori­gin in a col­lec­tive bar­gain­ing agree­ment.13 Because the tort dis­pute could not be decid­ed with­out deter­min­ing the duties the col­lec­tive bar­gain­ing agree­ment cre­at­ed, the claim was not inde­pen­dent.14 By con­trast, in Lin­gle v. Norge Divi­sion of Mag­ic Chef, Inc.,15 the Court found no pre­emp­tion because the Illi­nois tort claim con­cerned pure­ly fac­tu­al ques­tions about employ­er and employ­ee con­duct, and thus “d[id] not require con­stru­ing the col­lec­tive-bar­gain­ing agree­ment.”16 More­over, even if the col­lec­tive bar­gain­ing agree­ment did not exist between the par­ties, the plain­tiff in Lin­gle would still have an inde­pen­dent claim under state law.17

The prob­lem with this analy­sis is that the dichoto­my does not always exist. It is pos­si­ble to have a right estab­lished under state law that still involves inter­pre­ta­tion of the con­tract.18 Thus, the either/or analy­sis will not answer all inquiries. In some cas­es, there may be an awk­ward fit between an inde­pen­dent state right and a seem­ing­ly com­pli­cat­ed ques­tion of con­trac­tu­al inter­pre­ta­tion. To clar­i­fy this analy­sis, courts should rec­og­nize that both the source of the right in ques­tion and the neces­si­ty of inter­pret­ing the col­lec­tive bar­gain­ing agree­ment are part of the def­i­n­i­tion of inde­pen­dence. Non-inde­pen­dence on one ground may not result in the entire claim being non-inde­pen­dent. If a claim sat­is­fies both sens­es of independence—if it aris­es under a body of law inde­pen­dent of the col­lec­tive bar­gain­ing agree­ment, and if it does not turn on an inter­pre­ta­tion of the col­lec­tive bar­gain­ing agreement—the claim should prob­a­bly not be pre­empt­ed. If a claim does not sat­is­fy either def­i­n­i­tion of inde­pen­dence, then the claim prob­a­bly should be pre­empt­ed.19 How­ev­er, if it is unclear whether a claim is inde­pen­dent in both sens­es, a court should refer to oth­er con­cerns to deter­mine pre­emp­tion: the states’ inter­est in reg­u­la­tion; and the par­ties’ inter­est in hav­ing col­lec­tive bar­gain­ing agree­ments gov­erned by con­sis­tent nation­al stan­dards.20

* * * * *

Courts should look to two dif­fer­ent pol­i­cy con­sid­er­a­tions to guide their deci­sions when an inde­pen­dence inquiry does not pro­duce a clear out­come. Addi­tion­al­ly, even in cas­es with a clear out­come accord­ing to inde­pen­dence may have extreme effects on the fed­er­al arbi­tra­tion regime or states reg­u­la­to­ry regimes that should be tak­en into account.

One con­cern in these cas­es is that pri­vate par­ties will be able to use col­lec­tive bar­gain­ing agree­ments to avoid com­ply­ing with state law reg­u­la­tions. In Allis-Chalmers, for exam­ple, the Court appears to lim­it the pow­er to con­tract around law: “[c]learly, § 301 does not grant the par­ties to a col­lec­tive-bar­gain­ing agree­ment the abil­i­ty to con­tract for what is ille­gal under state law.”21 But sec­tion 301 does allow for col­lec­tive bar­gain­ing agree­ments to pre­empt state law when it inter­feres with the uni­form inter­pre­ta­tion of these agree­ments,22 so this state­ment does not pro­vide a clear sense of what par­ties can­not do. Per­haps the Allis-Chalmers Court meant that par­ties can­not use a col­lec­tive bar­gain­ing agree­ment to hire indi­vid­u­als for mur­der, as that is against state crim­i­nal law. But out­side such an extreme case, what is the lim­it? Could col­lec­tive bar­gain­ing agree­ments con­tract around min­i­mum wage?23 Because the sec­tion 301 pre­emp­tion pow­er lacks clear bound­aries, it is a pow­er­ful one.24 Thus, one fac­tor to con­sid­er is the effect that pre­emp­tion would have on a State’s police powers.

The pre­sump­tion against tak­ing away States’ his­toric police pow­er is espe­cial­ly strong in the area of labor law. The Supreme Court has ruled that “pre-emp­tion should not be light­ly inferred” in labor law, “since the estab­lish­ment of labor stan­dards falls with­in the tra­di­tion­al police pow­er of the State.”25 Unless Con­gress has express­ly indi­cat­ed oth­er­wise, courts gen­er­al­ly assume that the police pow­er is not pre­empt­ed.26 It could be argued that Con­gress’ pas­sage of sec­tion  301 of the Labor Man­age­ment Rela­tions Act speaks suf­fi­cient­ly to this issue in addi­tion to a gen­er­al shift towards encour­ag­ing arbi­tra­tion.27 How­ev­er, even with those con­sid­er­a­tion in mind, unbri­dled pre­emp­tion in the field of labor law would fun­da­men­tal­ly alter fed­er­al­ism in a way that we should not hasti­ly pre­sume with­out true clar­i­ty from Con­gress.28

Addi­tion­al­ly, courts should con­sid­er the unique inter­ests of employ­ers and about the uni­form inter­pre­ta­tion of labor law. While employ­ees may assert that their state rights are being pre­empt­ed, employ­ers may argue that par­ties freely agreed to this arrange­ment. Because of the inher­ent dif­fi­cul­ty in cre­at­ing col­lec­tive bar­gain­ing agree­ments and cre­at­ing uni­form nation­wide stan­dards, in some cas­es the con­tract may rep­re­sent the bal­ance that state inter­ests and pri­vate par­ties need to resolve labor dis­putes. If, for instance, a par­ty brings evi­dence of con­flict­ing state stan­dards, that would be valu­able evi­dence for the court to con­sid­er. A com­pa­ny with employ­ees in mul­ti­ple states might be unable in some cas­es to com­ply with every state reg­u­la­tion.29 There­fore, allow­ing that com­pa­ny to agree to a stan­dard with its employ­ees through a col­lec­tive bar­gain­ing agree­ment would avoid con­flict and cre­ate a man­age­able way to con­duct business.

By con­sid­er­ing these pol­i­cy fac­tors sub­se­quent to the inde­pen­dence analy­sis, courts would best achieve the fed­er­al­ism bal­ance Con­gress sought through sec­tion 301 of the Labor Man­age­ment Rela­tions Act. Con­sid­er, for exam­ple, the prob­lem pre­sent­ed the Tulane Law School Mar­di Gras Sports Law Invi­ta­tion­al.30 In that case the def­i­n­i­tion of inde­pen­dence points more heav­i­ly towards not pre­empt­ing the claim. The claim was brought under Min­neso­ta law cre­at­ing an inde­pen­dent, statu­to­ry right that would exist regard­less of the col­lec­tive bar­gain­ing agree­ment. Whether or not the claim required inter­pre­ta­tion of the agree­ment is a clos­er call. How­ev­er, a plau­si­ble argu­ment can be made that only the behav­ior of the NHL had to be ana­lyzed, rather than the col­lec­tive bar­gain­ing agree­ment in its entire­ty. There­fore, the claim seems to be inde­pen­dent. Con­sid­er­ing state’s police pow­ers, as part of the sec­ond prong, also weighs in favor of find­ing no pre­emp­tion. How­ev­er, if the par­ties could present suf­fi­cient evi­dence about the impos­si­bil­i­ty of the NHL cre­at­ing a nation­wide standard—because of con­flict­ing state law—for its com­pet­i­tive league, per­haps pre­emp­tion would be advis­able. The evi­dence, how­ev­er, would have to be strong to over­come the pre­sump­tion that the inde­pen­dence of the claim.

* * * * *

The cur­rent legal land­scape for deter­min­ing whether a claim is inde­pen­dent of a col­lec­tive bar­gain­ing agree­ment is murky. Courts should clar­i­fy the doc­trine sur­round­ing these cas­es with two major adjust­ments. First, they should explic­it­ly rec­og­nize that inde­pen­dence involves two sep­a­rate con­sid­er­a­tions: whether the claim aris­es under body of law inde­pen­dent of the col­lec­tive bar­gain­ing agree­ment, and whether the claim depends on inter­pret­ing the col­lec­tive bar­gain­ing agree­ment. Sec­ond, if the ques­tion of inde­pen­dence is not clear or if par­ties demon­strate com­pelling rea­sons to do so, courts should con­sid­er fac­tors such as a State right to reg­u­late labor or the ben­e­fits of uni­form nation standards.

Rec­om­mend­ed Cita­tion: Micaela Heery, Is This What We Bar­gained For?: Allow­ing the Pre­emp­tion of State Law through Col­lec­tive Bar­gain­ing Agree­ments, 2018 N.Y.U. Pro­ceed­ings 8,


1. Micaela Heery is a 2L at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the 2018 Prob­lem at the Tulane Law School Mar­di Gras Sports Law Invi­ta­tion­al held in New Orleans, Louisiana. The issue in the prob­lem pre­sent­ed facts sim­i­lar to Williams v. NFL, 582 F.3d 863 (8th Cir. 2009), which involved the Williams broth­ers (amongst oth­er play­ers) and the Min­neso­ta Vikings. In both the prob­lem and the Williams case, play­ers were employed under a col­lec­tive bar­gain­ing agree­ment that detailed pro­ce­dures for drug test­ing. How­ev­er, the State of Min­neso­ta has its own law con­cern­ing drug test­ing in the work­place. One issue pre­sent­ed was whether sec­tion 301 of the Labor Man­age­ment Rela­tions Act pre­empt­ed the state claims. The full brief for the com­pe­ti­tion, writ­ten by Micaela Heery and her com­pe­ti­tion part­ner, John Muller, will be pub­lished in a forth­com­ing edi­tion of Tulane’s Sport Law Jour­nal as the “Best Brief” of the competition.
2. See Stu­art M. Boyarsky, Not What They Bar­gained For: Direct­ing the Arbi­tra­tion of Statu­to­ry Antidis­crim­i­na­tion Rights, 18 Harv. Nego­ti­a­tion L. Rev. 221, 225–228 (2013) (describ­ing the Supreme Court’s recog­ni­tion of the crit­i­cal role of arbi­tra­tion and its indus­try sta­tus as the pre­ferred method of resolv­ing labor disputes).
3. See, e.g., NFL Play­ers Ass’n v. NFL, 654 F. Supp. 2d 960 (D. Minn. 2009), aff’d, 582 F.3d 863 (8th Cir. 2009) (hold­ing that sec­tion 301 of the Labor Man­age­ment Rela­tions Act did not pre­empt claims made under state law). But see Tex­tile Work­ers Union v. Lin­coln Mills, 353 U.S. 448 (1957) (com­pelling par­ties to use agreed-upon arbi­tra­tion at the behest of the labor union).
4. See 29 U.S.C. § 185; Lin­coln Mills, 353 U.S. at 456 (“We con­clude that the sub­stan­tive law to apply in suits under § 301(a) is fed­er­al law, which the courts must fash­ion from the pol­i­cy of our nation­al labor laws.”).
5. See, e.g., Trs. of the Twin City Brick­lay­ers Fringe Ben­e­fit Funds v. Supe­ri­or Water­proof­ing, Inc., 450 F.3d 324, 330 (8th Cir. 2006) (hold­ing that plaintiff’s claims of fraud­u­lent and neg­li­gent mis­rep­re­sen­ta­tion about a fail­ure to con­tribute to ben­e­fit plan were pre­empt­ed because the scope of the oblig­a­tions depend­ed on the col­lec­tive bar­gain­ing agree­ment). But see Lin­gle v. Norge Div. of Mag­ic Chef, Inc., 486 U.S. 399, 412–13 (1988) (find­ing no pre­emp­tion because the claim did not depend on the inter­pre­ta­tion of the col­lec­tive bar­gain­ing agree­ment; how­ev­er, the Court rec­og­nized that although the con­tract might con­done the retal­ia­to­ry treat­ment alleged, that would not change the result).
6. See, e.g., Mar­tinez v. Kaiser Found. Hosps., No. C‑12–1824 EMC, 2012 U.S. Dist. LEXIS 93091, at *1 (N.D. Cal. July 5, 2012) (“‘[t]he demar­ca­tion between pre­empt­ed claims and those that sur­vive § 301’s reach is not . . . a line that lends itself to ana­lyt­i­cal pre­ci­sion’ — after all, “ ‘[s]ubstantial depen­dence’ on a CBA is an inex­act con­cept.’” (quot­ing Cramer v. Con­sol. Freight­ways, Inc., 255 F.3d 683, 691 (9th Cir. 2001) (en banc)).
7. See Lin­gle, 486 U.S. at 405–06 (1988) (“if the res­o­lu­tion of a state-law claim depends upon the mean­ing of a col­lec­tive-bar­gain­ing agree­ment, the appli­ca­tion of state law (which might lead to incon­sis­tent results since there could be as many state law prin­ci­ples as there are States) is pre-empt­ed and fed­er­al labor-law principles—necessarily uni­form through­out the Nation—must be employed to resolve the dispute.”).
8. See, e.g., Cramer, 255 F.3d at 695 n.9 (“Con­sol­i­dat­ed argues that the terms of CBAs affect­ing employ­ees in mul­ti­ple states should super­sede incon­sis­tent state laws. This con­tention over­reach­es, how­ev­er, because the LMRA cer­tain­ly did not give employ­ers and unions the pow­er to dis­place any state reg­u­la­to­ry law they found incon­ve­nient.”). But cf. Bar­bi­eri v. Unit­ed Techs. Corp., 255 Conn. 708, 717–18 (2001) (“the for­mer is a species of the com­plete pre­emp­tion doc­trine . . . and it does not divest state courts of sub­ject mat­ter juris­dic­tion, but sim­ply sup­plants state sub­stan­tive law.”).
9. See Lin­coln Mills, 353 U.S. at 450–51.
10. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985) (“Of course, not every dis­pute con­cern­ing employ­ment, or tan­gen­tial­ly involv­ing a pro­vi­sion of a col­lec­tive-bar­gain­ing agree­ment, is pre-empt­ed by § 301 or oth­er pro­vi­sions of the fed­er­al labor law.”).
11. Id. at 208 (“Con­gress, how­ev­er, has nev­er exer­cised author­i­ty to occu­py the entire field in the area of labor leg­is­la­tion. Thus the ques­tion whether a cer­tain state action is pre-empt­ed by fed­er­al law is one of con­gres­sion­al intent.” (foot­note omitted)).
12. See id. at 213 (“whether the Wis­con­sin tort action for breach of the duty of good faith as applied here con­fers non­nego­tiable state-law rights on employ­ers or employ­ees inde­pen­dent of any right estab­lished by con­tract, or, instead, whether eval­u­a­tion of the tort claim is inex­tri­ca­bly inter­twined with con­sid­er­a­tion of the terms of the labor con­tract. If the state tort law pur­ports to define the mean­ing of the con­tract rela­tion­ship, that law is pre-empted.”).
13. Id. at 203.
14. Id. at 220.
15. 486 U.S. 399 (1988).
16. Id. at 407.
17. See id. at 408–10 (“even if dis­pute res­o­lu­tion pur­suant to a col­lec­tive-bar­gain­ing agree­ment, on the one hand, and state law, on the oth­er, would require address­ing pre­cise­ly the same set of facts, as long as the state-law claim can be resolved with­out inter­pret­ing the agree­ment itself, the claim is ‘inde­pen­dent’ of the agree­ment for § 301 pre-emp­tion purposes.”).
18. See, e.g., Atwa­ter v. NFL Play­ers Ass’n, 626 F.3d 1170, 1181 (11th Cir. 2010) (find­ing pre­emp­tion of a state law neg­li­gence claim because the col­lec­tive bar­gain­ing agree­ment defined “the scope of any duty” owed).
19. This test pre­serves the pos­si­bil­i­ty that, even if the results of both inquiries point to a cer­tain res­o­lu­tion, the extreme nature of oth­ers con­cerns men­tioned infra might neces­si­tate draw­ing a dif­fer­ent con­clu­sion about inde­pen­dence. Thus, the ques­tion of inde­pen­dence pri­or to a court’s under­tak­ing the analy­sis described infra might func­tion as a strong but rebut­table presumption.
20. The two inter­ests will be referred to as “pol­i­cy con­sid­er­a­tions” through­out this Contribution.
21. Allis-Chalmers, 471 U.S. at 212.
22. See, e.g., Dixon v. Borg­warn­er Diver­si­fied Trans­mis­sion Prods., No. 1:03-cv-00945-SEB-VSS, 2005 U.S. Dist. LEXIS 4273, at *13 (S.D. Ind. Mar. 15, 2005) (find­ing pre­emp­tion of claim of con­struc­tive ter­mi­na­tion); Lewis v. Local 382, IBEW, 335 S.C. 562, 568 (1999) (find­ing pre­emp­tion of claim based on vio­la­tion of state “Right to Work” law).
23. Con­sid­er, for exam­ple, the prob­lem posed in 2018 Prob­lem at the Tulane Law School Mar­di Gras Sports Law Invi­ta­tion­al. Find­ing for the peti­tion­er would allow the rules of a col­lec­tive bar­gain­ing agree­ment to pre­empt a state reg­u­la­to­ry regime set­ting stan­dards for employ­ee drug test­ing. Thus, the pri­vate stan­dards would sup­plant the state ones, allow­ing the col­lec­tive bar­gain­ing agree­ment to effec­tive­ly sanc­tion vio­la­tions of state law.
24. Some take the view that the lim­it to col­lec­tive bar­gain­ing agreement’s “pow­er of pre­emp­tion” are “non­nego­tiable state-law rights . . . .” See Allis-Chalmers, 471 U.S. at 213. Of course, this only rais­es ques­tions about which rights are in fact “non­nego­tiable.”
25. Fort Hal­i­fax Pack­ing Co. v. Coyne, 482 U.S. 1, 21 (1987); see also Hawai­ian Air­lines v. Nor­ris, 512 U.S. 246, 252 (1994).
26. Wyeth v. Levine, 555 U.S. 555, 565 (2009) (“we start with the assump­tion that the his­toric police pow­ers of the States were not to be super­seded by the Fed­er­al Act unless that was the clear and man­i­fest pur­pose of Con­gress.” (inter­nal quo­ta­tion marks omitted)).
27. See Unit­ed Steel­work­ers v. War­rior & Gulf Nav­i­ga­tion Co., 363 U.S. 574, 581 (1960) (“Arbi­tra­tion is the means of solv­ing the unfore­see­able by mold­ing a sys­tem of pri­vate law for all the prob­lems which may arise and to pro­vide for their solu­tion in a way which will gen­er­al­ly accord with the vari­ant needs and desires of the par­ties. The pro­cess­ing of dis­putes through the griev­ance machin­ery is actu­al­ly a vehi­cle by which mean­ing and con­tent are giv­en to the col­lec­tive bar­gain­ing agreement.”).
28. For exam­ple, sec­tion 301 of the Labor Man­age­ment Rela­tions Act does not men­tion pre­emp­tion at all. See 29 U.S.C. § 185; Charles Dowd Box Co. v. Court­ney, 368 U.S. 502, 507 (1962) (“The leg­isla­tive his­to­ry of the enact­ment nowhere sug­gests that, con­trary to the clear import of the statu­to­ry lan­guage, Con­gress intend­ed in enact­ing § 301(a) to deprive a par­ty to a col­lec­tive bar­gain­ing con­tract of the right to seek redress for its vio­la­tion in an appro­pri­ate state tribunal.”).
29. See, e.g., The NFL Star­caps Case: Are Sports’ Anti-Dop­ing Pro­grams at a Legal Cross­roads?: Hear­ing Before the Sub­comm. on Com­merce, Trade, and Con­sumer Prot. of the H. Comm. on Ener­gy and Com­merce, 111th Cong. 121–22 (2009) (dis­cussing the poten­tial dif­fi­cul­ties of enforc­ing uni­form drug test­ing stan­dards at a nation­al lev­el if there were con­flict­ing state standards).
30. See supra note 1.