International Union of Operating Engineers, Local 399, AFL-CIO et al v. Village of Lincolnshire, Illinois et al

Filing 74

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 1/7/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants defendants' motion for summary judgment in part and denies it in par t [dkt. no. 52]. Specifically, the Court dismisses the claims of plaintiffs Local 399, LDC, and CRC in count 2 for lack of standing and dismisses all of the plaintiffs' claims brought under 42 U.S.C. § 1983 but otherwise denies defendants& #039; motion. The Court also grants plaintiffs' motion for summary judgment in part and denies it in part [dkt. no. 35]. Specifically, the Court grants summary judgment in favor of plaintiffs Local 399, LDC, and CRC on counts 1 and 3 and in fa vor of Local 150 on counts 1, 2, and 3 and concludes that federal law preempts the union security agreement, hiring hall, and dues check-off provisions of Lincolnshire Ordinance No. 15-3389-116. The Court otherwise denies plaintiffs' motion. Plaintiffs are directed to file a proposed form of judgment by no later than January 12, 2017. The case is set for a status hearing on January 18, 2017 at 9:30 a.m. for the purpose of addressing and entering an appropriate judgment. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

International Union of Operating Engineers, )
Local 399, AFL-CIO; International Union of )
Operating Engineers, Local 150, AFL-CIO; )
Construction and General Laborers'
)
District Council of Chicago and Vicinity,
)
Laborers International Union of North
)
America, AFL-CIO; and Chicago Regional )
Council of Carpenters, United Brotherhood )
of Carpenters and Joiners of America,
)
)
Plaintiffs,
)
)
vs.
)
)
Village of Lincolnshire, Illinois;
)
Peter Kinsey, Chief of Police; Elizabeth
)
Brandt, Mayor; and Barbara Mastandrea,
)
Village Clerk,
)
)
Defendants.
)

Case No. 16 C 2395

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In December 2015, the Village of Lincolnshire adopted an ordinance that
imposed new restrictions on labor relations between labor unions, employers, and
employees. The plaintiffs, four unions that operate in Lincolnshire (the Unions),
challenge the ordinance, alleging that it is invalid under the Supremacy Clause and
deprives the Unions of their rights in violation of 42 U.S.C. § 1983. The Unions have
moved for summary judgment. The defendants have filed a cross-motion for summary
judgment, contending that each of the Unions lacks standing to bring at least one of the
claims and that the Unions' claims lack merit.

For the reasons stated below, the Court concludes that three of the four unions
lack standing to challenge a particular part of the Lincolnshire ordinance and that none
of the unions may bring claims under section 1983 but otherwise denies defendants'
motion for summary judgment. The Court concludes that all four unions have standing
to challenge the remaining parts of the ordinance. The Court therefore grants summary
judgment on the preemption claims in favor of all four unions, finding that federal law
preempts the challenged provisions of the Lincolnshire ordinance.
Background
The plaintiffs are four labor organizations that operate within Lincolnshire.
International Union of Operating Engineers, Local 399, AFL-CIO (Local 399) is the
collective bargaining representative for a bargaining unit composed of workers at
Colliers International Asset and Property Management, LLC in Lincolnshire. Compl. ¶
5. International Union of Operating Engineers, Local 150, AFL-CIO (Local 150) is the
collective bargaining representative for seven separate bargaining units with various
businesses in Lincolnshire, including Central Boring, Inc.; Dick's Heavy Equipment
Repair; C.R. Nelson Landscaping; Accurate Group, Inc.; D.C.S. Trucking Co.; Johler
Demolition Inc.; and Revcon Construction Corp. Id. ¶ 6. Local 150 also alleges that it is
the representative for numerous other units of employees who are likely to perform work
in Lincolnshire in the future. Id. ¶ 8.
Construction and General Laborers' District Council of Chicago and Vicinity,
Laborers International Union of North America, AFL-CIO (LDC) is party to three
collective bargaining agreements that cover employees of employers located in
Lincolnshire, including Central Boring, Inc.; Johler Demolition, Inc.; and Revcon

2

Construction Corp. Id. ¶ 9. LDC also alleges that it is the representative for numerous
other units of employees who are likely to perform work in Lincolnshire in the future. Id.
¶ 11. Chicago Regional Council of Carpenters, United Brotherhood of Carpenters and
Joiners of America (CRC) is party to collective bargaining agreements covering units of
employees who were scheduled to perform work in Lincolnshire starting in the spring of
2016. Compl. ¶ 13. CRC also alleges that it is the representative for numerous other
units of employees who are likely to perform work in Lincolnshire in the future. Compl. ¶
14.
Lincolnshire is a "home rule" unit as defined in the Illinois Constitution, meaning
that it can "exercise any power and perform any function pertaining to its government
and affairs." See Pls.' Corrected Br. in Supp. of Mot. for Summ. J. (Pls.' Opening Brief)
at 1; Ill. Const. Art. VII, § 6. In December 2015, Lincolnshire passed Ordinance No. 153389-116. Pls.' Opening Br. at 1. In relevant part, the ordinance provides:
SECTION 4: GUARANTEE OF EMPLOYEE RIGHTS
No person covered by the NLRA shall be required as a condition of
employment or continuation of employment with a private-sector
employer:
(A) to resign or refrain from voluntary membership in, voluntary
affiliation with, or voluntary financial support of a labor organization;
(B) to become or remain a member of a labor organization;
(C) to pay any dues, fees, assessments, or other charges of any
kind or amount to a labor organization;
(D) to pay any charity or other third party, in lieu of such payments,
any amount equivalent to or a pro-rata portion of dues, fees,
assessments, or other charges regularly required of members of
labor organization; or
(E) to be recommended, approved, referred, or cleared for
employment by or through a labor organization.

3

SECTION 5: VOLUNTARY DEDUCTIONS PROTECTED
For employers located in the Village, it shall be unlawful to deduct
from the wages, earnings, or compensation of an employee any
union dues, fees, assessments, or other charges to be held for,
transferred to, or paid over to a labor organization unless the
employee has first presented, and the employer has received, a
signed written authorization of such deductions, which authorization
may be revoked by the employee at any time by giving written
notice of such revocation to the employer.
Pls.' Resp. to Defs.' Stat. of Facts, Tab 13 Ex. C, 02475–76.
The Unions filed suit against Lincolnshire and three Lincolnshire officials in
their official capacity: Chief of Police Peter Kinsey; Mayor Elizabeth Brandt; and
Village Clerk Barbara Mastandrea. Compl. ¶¶ 15–18. The Unions contend that
the quoted portions of the ordinance are preempted by the National Labor
Relations Act (NLRA), 29 U.S.C. §§ 151–69, and the Labor-Management
Relations Act (LMRA), 29 U.S.C. §§ 401–531. See Pls.' Opening Brief at 1, 17–
19. In particular, the Unions contend that sections 4(A)–(D) of the ordinance
prohibit what are known as "union security agreements" and as such are
preempted by the NLRA. Compl. ¶¶ 32–37. In count 2, the Unions allege that
section 4(E) of the ordinance prohibits what are known as "hiring hall provisions"
and that this section is likewise preempted by the NLRA. Id. ¶ 38. Finally, the
Unions allege in count 3 that section 5 restricts what are known as "check-off
provisions" and is preempted by the NLRA and the LMRA. Id. ¶ 40. On all three
counts, the Unions request declaratory and injunctive relief, as well as damages
and attorneys' fees as authorized by 42 U.S.C. § 1988. Id. ¶¶ 37, 39, 41.
Discussion
The Unions have moved for summary judgment, arguing that the quoted
4

provisions of the Lincolnshire ordinance are preempted by federal law and that
the Unions are entitled to judgment on the merits. Lincolnshire 1 has crossmoved for summary judgment, arguing that the Unions lack standing to bring
these claims and that all four Unions' claims lack merit. The Court first
addresses the issue of standing and the viability of the Unions' claim under 42
U.S.C. § 1983 and then addresses the preemption issue, which is argued in both
sides' motions.
In considering each side's motion for summary judgment, the Court views the
evidence in the light most favorable to the moving party and draws reasonable
inferences in that party's favor. See Calumet River Fleeting, Inc. v. Int'l Union of
Operating Eng'rs, Local 150, AFL-CIO, 824 F.3d 645, 647–48 (7th Cir. 2016). Summary
judgment is appropriate only when there is no genuine dispute regarding any material
fact and the moving party is entitled to judgment as a matter of law. Int'l Union, United
Auto., Aerospace & Agric. Implement Workers of Am., and its Local 2343 v. ZF Boge
Elastmetall LLC, 649 F.3d 641, 646 (7th Cir. 2011).
I.

Standing
In order to bring a claim in federal court, a plaintiff must have standing as

required by Article III of the Constitution. Diedrich v. Ocwen Loan Servicing, LLC, 839
F.3d 583, 587 (7th Cir. 2016). To have standing, a plaintiff must have "(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial decision." Id. at 587–88 (citing
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). In response to a motion for
1

Because the defendants have filed their motion and responses collectively, the Court
will use the term "Lincolnshire" to refer to both the Village and the individual defendants.
5

summary judgment, the plaintiff bears the burden of establishing standing by setting
forth specific facts through affidavits or other evidence. Edgewood Manor Apartment
Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 771 (7th Cir. 2013).
The Unions allege that they are the collective bargaining representatives for
various units of employees who are employed by companies located in Lincolnshire.
The Unions allege that they have negotiated collective bargaining agreements on behalf
of these employees that contain provisions now prohibited by the ordinance. The
Unions further contend that the ordinance will invalidate these agreements and prevent
the Unions from negotiating agreements with similar provisions in the future. In this
way, the Unions allege that they have been injured by Lincolnshire's adoption of the
ordinance and that this injury can be addressed through the requested relief.
Lincolnshire contends that this is insufficient to establish the Unions' standing to
challenge the ordinance.
It appears that the Supreme Court has not directly addressed what constitutes
standing to bring a preemption challenge to state or local ordinances based on the
NLRA or the LMRA. But in Oil, Chemical & Atomic Workers International Union, AFLCIO v. Mobil Oil Corp., 426 U.S. 407 (1976), the Supreme Court held that laws like the
one at issue here, commonly referred to as "right-to-work laws," apply only to
employees whose "predominant job situs" is located within the jurisdiction that passed
the ordinance. Id. at 412–14. It would appear, therefore, that Lincolnshire's ordinance
imposes limits on the Unions' agreements—and thus generates an injury sufficient to
confer standing—only if the Unions represent employees who work predominantly in
Lincolnshire under agreements containing provisions prohibited by the ordinance.

6

A.

Local 399

Lincolnshire concedes that Local 399 has standing to bring counts 1 and 3.
Defs.' Mem. in Supp. of Mot. for Summ. J. and Resp. in Opp'n to Pls.' Mot. for Summ. J.
(Defs.' Opening Br.) at 4. Lincolnshire argues that Local 399 lacks standing to bring
count 2 because it has not alleged that it has entered into any agreements containing
the hiring hall provisions prohibited by section 4(E). Defs.' Opening Br. at 8. The
Unions do not dispute this contention. See Pls.' Resp. Br. in Opp'n to Defs.' Mot. for
Summ. J. (Pls.' Reply) at 1 n.1 (indicating only that Local 399 has entered into
agreements containing union security agreements and check-off provisions). The Court
therefore concludes that Local 399 lacks standing to bring count 2.
B.

Local 150

Lincolnshire next argues that Local 150 lacks standing to bring any of the claims
alleged in the complaint. Defs.' Opening Br. at 5–6, 8–9. Lincolnshire says that Local
150 has failed to establish that it will be affected by the ordinance, because it has not
shown that it represents any employee whose predominant job site is in Lincolnshire.
Id. at 5. The Court finds, however, that the Unions have established that employees
represented by Local 150 work predominantly in Lincolnshire.
Local 150 submitted declarations by two of its members who meet the
requirements for standing. One member, Roberto Zavala, stated that he works for
Revcon Construction Corp., located in Lincolnshire. Pls.' Resp. to Defs.' Stat. of Facts,
Tab 10 (Zavala Decl.) ¶ 2. Zavala further indicated that he spends the "vast majority of
[his] workday, about 80% to 90%" working at Revcon's facility in Lincolnshire. Id. ¶ 3.
Finally, Zavala stated that his employment is governed by the MARBA Illinois Building

7

Agreement, which contains a union security clause, a hiring hall provision, and a checkoff provision. Id. ¶ 4. Mark Beinlich, another Local 150 member, made similar
statements. Specifically, he indicated that he works for Dick's Heavy Equipment Repair,
also located in Lincolnshire. Pls.' Resp. to Defs.' Stat. of Facts, Tab 11 (Beinlich Decl.)
¶ 2. Beinlich stated that every day he reports to a facility in Lincolnshire and spends
"50% to 60% of [his] workday" at this facility. Id. ¶ 3. These affidavits are sufficient to
establish that Local 150 represents employees whose predominant job site is in
Lincolnshire.
Lincolnshire argues that this Court should prohibit Local 150 from using these
declarations in support of its motion. See Defs.' Reply at 10–11. Lincolnshire says that
it served Local 150 with interrogatories requesting the names of every member currently
working in Lincolnshire, as well as the number of hours these members spend there. Id.
Local 150 declined to provide this information on the grounds that it was "irrelevant,
cumulative, and overly burdensome." See, e.g., Defs.' Reply, Tab 1 (Answers to
Interrogs.) at 3. As a result, Lincolnshire argues, the Court should preclude Local 150
from using this information to support its response to Lincolnshire's motion under
Federal Rule of Civil Procedure 37, which says that if a party fails to provide information
as required by the rules of discovery, "the party is not allowed to use that information
. . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Lincolnshire has not,
however, identified any harm from the late disclosure of this information. The Court
finds the late disclosure was harmless under Rule 37(c)(1).
Local 150 has established that it represents employees whose predominant work

8

site is in Lincolnshire and that at least one of these employees is party to an agreement
containing the types of provisions prohibited by the ordinance. The Court therefore
concludes that Local 150 has standing to bring all three claims.
C.

LDC

Like Local 399, LDC appears to concede that it does not have standing to bring
count 2, as it alleges only that it has entered into agreements "containing union security
and check-off clauses," and not containing hiring hall provisions. See Pls.' Reply at 1
n.1. Lincolnshire argues that LDC also lacks standing to bring counts 1 and 3, on the
grounds that it has not "identified a single employee it represents who actually spends
most of his or her working hours in Lincolnshire." Defs.' Opening Br. at 7; see also id. at
8-9.
Two of the declarations that LDC points to in support of its standing do not permit
an inference that any LDC members have Lincolnshire as their primary job site. The
declaration of James Connolly, LDC's business manager, only discusses the bargaining
agreements between LDC and the various employers and does not provide any
evidence concerning how often LDC members worked in Lincolnshire. See Pls.' Stat. of
Uncontested Facts, Tab 6 (Connolly Decl.). Further, the declaration of Daniel Davis, a
member of LDC, is insufficient to permit the conclusion that LDC has standing. Davis
states that he works for Central Boring, Inc., which is located in Lincolnshire. Id., Tab 7
(Davis Decl.) ¶¶ 1–2. Although Davis states that he regularly works out of a facility in
Lincolnshire, he describes this as "usually at least once a week." Id. ¶ 3. This is
insufficient, without more, to meet the predominance standard in Mobil Oil. Further,
although Davis states that he reports his hours to supervisors at Lincolnshire and

9

receives his paycheck from there, id. ¶ 4, the Supreme Court has indicated that these
factors are insignificant in determining whether local labor laws apply to a particular
employee. See Mobil Oil, 426 U.S. at 418.
The declaration of Edwin Stuckey, however, supports an inference that LDC has
members whose primary job site is in Lincolnshire. Stuckey is the president of Stuckey
Construction Company and party to an agreement with LDC. Pls.' Stat. of Uncontested
Facts, Tab 8 (Stuckey Decl.) ¶¶ 1–2. Stuckey states that, from 2011 to 2014, he
regularly employed LDC members to perform work for elementary schools in
Lincolnshire. Id. ¶ 5. Further, Stuckey states that he currently employs LDC members
who are working on a project at Stevenson High School in Lincolnshire. Id. ¶ 6.
Lincolnshire argues that this evidence is insufficient to establish LDC's standing to
challenge the ordinance as Stuckey does not "identify any employee who spends, has
spent, or will spend the majority of his or her working hours in Lincolnshire." Def.'s
Opening Br. at 7–8. But Lincolnshire does not identify any viable reason why
identification of specific employees is required. Stuckey's affidavit is sufficient to carry
LDC's burden to establish standing, and Lincolnshire has offered no contrary evidence.
The Court finds that LDC has established its standing to bring counts 1 and 3.
D.

CRC

Like Local 399 and LDC, CRC appears to concede that it does not have standing
to bring count 2, as it likewise has not entered into agreements containing hiring hall
provisions. See Pls.' Resp. at 1 n.1. Lincolnshire argues that CRC lacks standing to
bring counts 1 and 3 on the ground that it has not "alleged, let alone shown, that any
unionized employee of either company" party to agreements with CRC "has ever

10

performed any work in Lincolnshire." Defs.' Opening Br. at 8–9.
CRC has provided sufficient evidence to establish its standing to bring counts 1
and 3. CRC provides the declaration of Robert Lid, CRC's contract and bonds
manager, who states that CRC has agreements with Interior Investments and Build
Corps, both of which are located in Lincolnshire. See Pls.' Stat. of Uncontested Facts,
Tab 9 (Decl. of Robert Lid) ¶¶ 6–7. Lid further indicates that Interior Investments
employs approximately fifty CRC members and that Build Corps employs four CRC
members. Id. ¶¶ 6–7. Finally, Lid states that approximately 3,000 contractors are
signatories to an agreement with CRC and have the ability to bid on and perform work
in Lincolnshire. Id. ¶ 9. In conjunction with his declaration, Lid also provides reporting
documents on Interior Investments and Build Corps that support his employment
estimates. See Decl. of Robert Lid, Exs. C & D.
In response, Lincolnshire again argues only that CRC's failure to identify
particular employees renders its evidence insufficient. Def.'s Opening Br. at 8. The
Court disagrees. Lid's affidavit is sufficient to establish that CRC has members who
work predominantly in Lincolnshire.
5.

Summary

The Court concludes that Local 399, LDC, and CRC each have standing to bring
counts 1 and 3 but lack standing to bring count 2 and therefore grants Lincolnshire's
motion for summary judgment to that extent only. The Court concludes that Local 150
has standing to bring all three counts and therefore denies Lincolnshire's motion for
summary judgment on the standing issue.

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II.

Section 1983 claim
The Unions have brought all three claims under both the Supremacy Clause of

the Constitution and 42 U.S.C. § 1983. Compl. ¶ 1. In its cross-motion for summary
judgment, Lincolnshire argues that the Unions have failed to state a claim under section
1983 because they cannot show that Lincolnshire violated a federally protected right.
Defs.' Opening Br. at 24–25.
The Supreme Court has held that the NLRA creates rights for labor and
management that are "enforceable against governmental interference in an action under
§ 1983." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108–09
(1989). This appears to apply, however, only for certain types of preemption claims
based on the NLRA. The Court has identified two types of preemption under the NLRA.
Chamber of Commerce v. Brown, 554 U.S. 60, 65 (2008). The first, known as Garmon
preemption, prohibits states from regulating activity that the NLRA protects or prohibits.
Id. The second, known as Machinists preemption, prohibits interference by states and
the National Labor Relations Board (NLRB) on the ground that Congress intended
certain conduct "to be controlled by the free play of economic forces." Id. The Court in
Golden State found that the NLRA implicitly establishes a federal right protected by
section 1983 based on a Machinists preemption challenge. Golden State, 493 U.S. at
112. In doing so, the Supreme Court expressly distinguished a challenge based on
Garmon preemption. See id. The Court stated that "[t]he Machinists rule is not
designed—as is the Garmon rule—to answer the question whether state or federal
regulations should apply to certain conduct. Rather, it is more akin to a rule that denies
either sovereign the authority to abridge a personal liberty." Id. Golden Gate therefore

12

suggests that Machinists preemption claims are based on a personal liberty protected
by section 1983, whereas Garmon preemption claims are not. In a subsequent case,
the Court again indicated that Garmon preemption claims and Machinists preemption
claims may be treated differently for the purpose of claims brought under section 1983.
See Livadas v. Bradshaw, 512 U.S. 107, 133 & n.27 (suggesting that Garmon
preemption is "fundamentally different" from Machinists preemption and that this
difference may be significant when deciding the availability of section 1983 relief).
The Unions appear to have brought their claims as Garmon preemption claims.
They do not argue that Lincolnshire has abridged a right or course of conduct that
Congress intended to leave to the control of the free market. Instead, the Unions argue
that Lincolnshire has attempted to regulate an area otherwise reserved to the federal
government through the NLRA. The Unions' claims therefore do not fall within the reach
of section 1983 as established by Golden State. The Court therefore dismisses the
Unions' claims under 42 U.S.C. § 1983. The Court evaluates the Unions' claims under
the Supremacy Clause in the section that follows.
III.

Preemption claim
The Unions argue that the challenged provisions of the ordinance are preempted

by the NLRA and that the Unions are entitled to judgment as a matter of law. Pls.'
Opening Br. at 1. In its cross-motion, Lincolnshire argues that the ordinance falls under
a preemption exception in the NLRA and that therefore Lincolnshire is entitled to
summary judgment.
A.

Count 1

In count 1, the Unions claim that sections 4(A)–(D) of the Lincolnshire ordinance

13

are preempted by the NLRA. Compl. ¶¶ 32–37. They contend that the NLRA generally
preempts state and local regulation of labor relations. Further, the Unions argue that
the preemption exception created by 29 U.S.C. § 164(b) applies only to state, and not
local, ordinances.
It is well-accepted "that in passing the NLRA Congress largely displaced state
regulation of industrial relations." Wis. Dep't of Indus., Labor & Human Relations v.
Gould Inc., 475 U.S. 282, 286 (1986). Thus states "may not regulate activity that the
NLRA protects, prohibits, or arguably protects or prohibits." Id. The NLRA does,
however, create a single exception. The NLRA states that it shall not be construed "as
authorizing the execution or application of agreements requiring membership in a labor
organization as a condition of employment in any State or Territory in which such
execution or application is prohibited by State or territorial law." 29 U.S.C. § 164(b).
The Supreme Court has interpreted section 164(b) as creating an exception to the
NLRA's "national policy that certain union-security agreements are valid as a matter of
law" in that it permits "any State or Territory that wishes" to exempt itself from that
policy. Mobil Oil, 426 U.S. at 416–17; see also Sweeney v. Pence, 767 F.3d 654, 659–
660 (7th Cir. 2014). In other words, section 164(b) permits states to regulate or prohibit
the use of union security agreements.
Both parties appear to agree that the ordinance provisions challenged in count 1
prohibit union security agreements, which are agreements that require union
membership as a condition of employment. See Pls.' Opening Br. at 3 & n.2; Defs.'
Opening Br. at 9–14. There is no question if the State of Illinois had adopted a statute
enacting the same provisions at issue in count 1, the provisions would not be

14

preempted by the NLRA, as they would fall within the exception created by section
164(b). See Pls.' Opening Br. at 5. The Unions argue, however, that the exception in
section 164(b) does not extend to local law and therefore does not permit Lincolnshire,
a municipality, to prohibit union security agreements. Pls.' Opening Br. at 6.
Neither the Supreme Court nor the Seventh Circuit has expressly addressed
whether the power given to states and territories in the NLRA to prohibit union security
agreements extends to political subdivisions of the state. In considering the same
question regarding other statutes, however, the Supreme Court has indicated that
whether an exception for state regulation also extends to local regulation depends on
whether Congress, in enacting the statute, intended to occupy the entire field. See Wis.
Pub. Intervenor v. Mortier, 501 U.S. 597, 607 (1991) (considering preemption of local
law under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)). When a
federal statute preempts a particular field but provides an exception for regulation by a
state, the statute should not be read as restricting only a narrow set of state
regulation—i.e., that which falls outside of the exception. Id. at 616 (Scalia, J.,
concurring). If this were so, it would make sense to conclude that the local subdivisions
faced the same narrow restriction and were otherwise free to regulate. Id. Instead,
where the statute preempts a particular field, the statute should be read as authorizing
only a narrow set of state regulation, in which case it makes sense that only states and
not their subdivisions would benefit from this limited authorization. Id. In other words,
when Congress has intended a statute to preempt regulation in that field, any exception
to such preemption must be read as a narrow authorization—as opposed to an
expansive protection—of state regulation. Therefore if the NLRA preempts the field of

15

union security agreements, the exception for state regulation in section 164(b) does not
extend to regulation by local subdivisions.
1.

Preemption

A review of the language and history of the NLRA indicates that Congress
intended to preempt the field of union security agreements. The language of section
164(b) only refers to state law. The section provides that the NLRA does not authorize
union security agreements "in any State or Territory" where "State or Territorial law"
prohibits these agreements. The provision avoids any mention of local law, in contrast
to section 164(a), which says that no employer is required to deem individuals as
supervisors "for the purpose of any law, either national or local," 29 U.S.C. § 164(a),
and the Fair Labor Standards Act (FLSA), passed around the same time, which says
that nothing in the FLSA "shall excuse noncompliance with any Federal or State law or
municipal ordinance . . . ." 29 U.S.C. § 218(a). Thus, in contemplating the scope of a
national policy on labor relations, Congress clearly articulated when local ordinances
can override this policy. Section 164(b) evinces no such intent, and its exception
therefore extends only to state law.
The legislative history further supports the conclusion that Congress intended to
preempt the field of union security agreements. As noted by the Supreme Court, the
House Report on the NLRA itself stated that "by the Labor Act Congress preempts the
field that the act covers." Retail Clerks Int'l Ass'n, Local 1625, AFL-CIO v.
Schermerhorn, 375 U.S. 96, 101 n.8 (1963) (quoting H.R. Rep. No. 510, 80th Cong., 1st
Sess., p. 44). The Court then went on to conclude that Congress added section 164(b)
to make clear that the NLRA did not preempt state law on the particular topic covered

16

by that section. See id. In doing so, the Court did note that Congress "chose to
abandon any search for uniformity in dealing with the problems of state laws barring the
execution and application of agreements authorized by [§ 164(b)] and decided to suffer
a medley of attitudes and philosophies on the subject." Id. at 104–05. But the issue
before the Court was "whether the Congress had precluded state enforcement of select
state laws adopted pursuant to its authority." Id. at 103 (emphasis added). The Court
went on to conclude that the "special legislative history" of the NLRA required "[s]tate
power . . . to exist alongside of federal power," id. at 104, in light of the purpose of
"avoid[ing] federal interference with state laws in this field," id. at 102 (emphasis
added). Schermerhorn therefore does not contradict the conclusion that Congress
intended to preempt the field of union security agreements, leaving an exception only
for regulation by the states. And as discussed by Justice Scalia in Mortimer, this
congressional intent to preempt thus makes it reasonable to interpret section 164(b) as
a narrow authorization that does not extend to local regulation of union security
agreements.
Finally, extending the preemption exception to local ordinances would create an
impossibly disparate system that would undermine Congress's intent to create
uniformity in the regulation of labor relations. The Supreme Court has held that the
NLRA "articulates a national policy that certain union-security agreements are valid as a
matter of federal law." Mobil Oil, 426 U.S. at 417. Though section 164(b) permits a
narrow exception for authorized state regulation, it is highly unlikely that Congress
intended to subject this national policy to the patchwork scheme that would result from
city-by-city or county-by-county regulation of such agreements. If the NLRA permitted

17

local governmental entities to enact their own laws regarding union security
agreements, "[t]he result would be a crazy-quilt of regulations within the various states."
See N.M. Fed'n of Labor, United Food and Commercial Workers Union Local 1564 v.
City of Clovis, 735 F. Supp. 999, 1002 (D.N.M. 1990). And because unions often enter
into agreements that cover employees across multiple cities and towns within a given
state, these agreements would be subject to multiple, potentially conflicting, laws. This
would make it difficult for unions to comply with local law and would create a strong
"incentive to abandon union security agreements," thereby undermining Congress's
creation of a federal policy in favor of such agreements. Id. at 1003. And the Supreme
Court in Mobil Oil indicated that section 164(b) should be interpreted such that "parties
entering a collective-bargaining agreement will easily be able to determine in virtually all
situations whether a union- or agency-shop provision is valid." See Mobil Oil, 426 U.S.
at 419. In sum, the Court concludes that section 164(b) does not permit local
subdivisions to regulate union security agreements.
2.

Mortier and Ours Garage

In arguing that the exception under section 164(b) extends to local laws,
Lincolnshire points to two decisions by the Supreme Court addressing a parallel issue in
the context of other statutes. Although the Court ruled in both cases that a statutory
preemption exception for state regulation extended to local subdivisions as well, the
statutes in those cases are distinguishable from the NLRA and therefore do not
persuade this Court to find that the same extension applies here.
In Mortier, mentioned above, the Court considered a provision of FIFRA which
provides that "[a] State may regulate the sale or use of any federally registered pesticide

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or device in the State." Mortier, 501 U.S. at 606 (citing 7 U.S.C. § 136v(a)). The Court
first concluded that FIFRA is not "a comprehensive statute that occupie[s] the field of
pesticide regulation," finding that there was neither a clear indication that Congress
intended this result nor evidence from which to infer preemption. Mortier, 501 U.S. at
612. Because FIFRA does not preempt the field, the Court held that the reference to
"States" in section 136v(a) preserves state power in this area, which includes a state's
ability to allocate its regulatory authority to political subdivisions. Id. at 612, 608.
As discussed above, Congress—in adopting the NLRA—intended to create a
federal policy in favor of union security agreements and otherwise preempt the field in
order to impose greater uniformity in the regulation of labor relations. The NLRA is
therefore distinguishable from FIFRA and Mortier's determination that the Act's
exception for state regulations extends to local regulation as well. Because the NLRA
preempts regulation in this area, the exception for state authority in section 164(b) only
"authoriz[es] certain types of state regulation (for which purpose it makes eminent sense
to authorize States but not their subdivisions)." See id. at 616 (Scalia, J., concurring).
This holding is likewise consistent with the Supreme Court's ruling in City of
Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424 (2002). There, the
Court considered a provision of the Interstate Commerce Act stating that the Act's
prohibition against state or local regulation "related to a price, route, or service of any
motor carrier" would not "restrict the safety regulatory authority of a State with respect to
motor vehicles." Id. at 428 (citing 49 U.S.C. § 14501(c)(1)–(2)). The Court determined
that—despite the fact that the exception in section 14501(c)(2) omitted any mention of
political subdivisions while section 14501(c)(1) included one—Congress intended

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section 14501(c)(2) to permit local exercise of safety regulatory authority. Id. at 439–40.
The Court suggested that when a statute's specific exception to preemption "might tend
against" the general policy aim of a statute, the exception should be narrowly construed.
Id. at 440. The Court then determined that the purpose of the Interstate Commerce
Act—to preempt economic regulation—does not conflict with the statute's exception for
state safety regulation. See id. at 441. The Court therefore determined that the
exception in section 14501(c)(2) need not be construed narrowly in order to avoid
interfering with the general policy aims of the Interstate Commerce Act.
This principle further indicates that the exception for state regulation in section
164(b) of the NLRA does not extend to local regulation. The NLRA expressly "permits
employers as a matter of federal law to enter into agreements with unions to establish
union or agency shops." Mobil Oil, 426 U.S. at 410; see also 29 U.S.C. § 153(a)(3).
The result of such provision is a federal policy that favors permitting union security
agreements. Mobil Oil, 426 U.S. at 420. Because the preemption exception in section
164(b) directly conflicts with the statute's policy aim, it must be read narrowly and not
expanded to permit local regulation of these agreements.
In arguing otherwise, Lincolnshire relies heavily on a recent decision by the Sixth
Circuit in which the court held that section 164(b) extends to local law and therefore that
an ordinance similar to Lincolnshire's was not preempted by the NLRA. See generally
United Auto., Aerospace & Agric. Implement Workers of Am. Local 3047 v. Hardin Cty.,
842 F.3d 407 (6th Cir. 2016). The Sixth Circuit analyzed the language of section
164(b), as well as Mortier and Ours Garage, and concluded that the dispositive question
was whether Congress had indicated "a clear and manifest purpose to preempt state

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authority to delegate governmental power to its political subdivisions." Id. at 420. The
court ultimately determined that there was no showing of a clear and manifest purpose
and therefore that section 164(b) permits local subdivisions to regulate union security
agreements. Id. Though this Court relies on the same sources, it respectfully disagrees
with the Sixth Circuit's determination of the point. The dispositive question is not
whether Congress intended to preempt state authority to delegate governmental power.
Rather, the question is whether Congress intended to preempt legislation in general in
the field of union security agreements. Because this Court concludes that Congress,
with its passage of the NLRA, did have this intention, Mortier and Ours Garage require
the exception in section 164(b) to be read narrowly to extend to states and no further.
This Court therefore concludes that laws of political subdivisions do not qualify as
"State law" under 29 U.S.C. § 164(b) and therefore that sections 4(A)–(D) of the
ordinance are preempted by the NLRA. Accordingly, the Court grants summary
judgment in favor of the Unions on count 1.
B.

Count 2

In count 2, the Unions challenge section 4(E) of the Lincolnshire ordinance,
which prohibits unions from imposing hiring hall provisions in its agreements with
employers. Only Local 150 has negotiated any agreements containing hiring hall
provisions, and therefore only Local 150 has standing to bring count 2. Because the
Court holds that local ordinances do not qualify as state law under section 164(b),
section 4(E) of Lincolnshire's ordinance is likewise preempted by the NLRA. But even if
the Court had determined that section 164(b) permits local regulation of union security
agreements, Local 150 would still be entitled to summary judgment on count 2.

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Section 164(b) permits states to prohibit only "agreements requiring membership
in a labor organization as a condition of employment." 29 U.S.C. § 164(b). Courts have
therefore held that the NLRA permits states to regulate only those provisions that
amount to "compulsory unionism." See Simms v. Local 1752, Int'l Longshoremen Ass'n,
838 F.3d 613, 619–20 (5th Cir. 2016). Hiring hall provisions—requiring that all new
hires by an employer be referred through a labor organization—do not amount to
compulsory unionism. The result of a hiring hall provision is typically that non-union
members looking to work for a particular employer are required to pay a small fee to the
hiring hall for their referral service. The Fifth Circuit in Simms considered a similar
provision and concluded that the state of Mississippi was not permitted to prohibit hiring
hall arrangements. Id. In doing so, the court emphasized that charging referral fees
relates to an employee's "pre-hire" conduct, which does not amount to compelled union
membership. Id. Section 164(b) permits states to regulate only "the [p]ost-hiring
employer-employee-union relationship." Mobil Oil, 426 U.S. at 417. Because the hiring
hall provisions require individuals to pay referral fees before they are hired, they do not
require membership in a labor organization as a condition of employment. Therefore,
section 164(b) does not give states or its subdivisions the authority to regulate these
provisions. The Court concludes that section 4(E) of the ordinance is preempted by the
NLRA and grants summary judgment on count 2 in favor of Local 150.
C.

Count 3

In count 3, the Unions challenge section 5 of the Lincolnshire ordinance, which
requires any "dues check-off arrangement"—whereby an employee authorizes his
employer to automatically deduct union dues from his paycheck—to be revocable by the

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employee at any time. The Unions are entitled to summary judgment on this claim,
because the ordinance is preempted by the NLRA and does not fall within the exception
in section 164(b). And even if the Court had held that section 164(b) permits local
regulation, the Unions would still be entitled to summary judgment on count 3, because
the regulation of check-off provisions—either by states or by their subdivisions—is
preempted by the LMRA.
The LMRA authorizes check-off arrangements so long as the employee makes "a
written assignment" to his employer "which shall not be irrevocable for a period of more
than one year." 29 U.S.C. § 186(c)(4). The LMRA's express regulation of this aspect of
labor relations is sufficient to preempt state regulation, given that Lincolnshire's
ordinance conflicts with section 186(c)(4). See Patriotic Veterans, Inc. v. State of
Indiana, 736 F.3d 1041, 1049 (7th Cir. 2013) ("conflict preemption" arises "when state
law conflicts with federal law to the extent that compliance with both federal and state
regulations is a physical impossibility" (internal quotation marks omitted)). Lincolnshire
argues that this is not the case, because an employee may satisfy both the LMRA and
the ordinance simply by having a check-off agreement that is revocable at any time.
But in the context of labor relations, the Supreme Court has made it clear that if a
particular agreement could meet all federal hurdles but not all state hurdles, then the
hurdles imposed by state law conflict with federal law. Schermerhorn, 375 U.S. at 102–
03. In Schermerhorn, the Court found such a conflict to be permissible, but only
because the conflict was authorized by Congress in section 164(b). Id. at 103. The
Court concluded, essentially, that the language of section 164(b) permits states to
impose more stringent requirements on union security agreements, despite the fact that

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such requirements would conflict with the NLRA.
Section 164(b) does not, however, permit states to regulate check-off
arrangements as it does union security agreements. This is, again, because check-off
arrangements clearly do not amount to the "compulsory unionism" that states are
permitted to regulate under section 164(b). The LMRA does not require employees to
use a check-off provision for union dues—it merely enables them to do so. Employers
cannot deduct the dues automatically but instead must have written authorization from
each employee. Thus check-off arrangements do not compel employees to unionize;
they simply make it easier for those who are union members to pay their dues.
Lincolnshire argues that "a worker who decides that he or she no longer wants to pay
union fees, but who cannot immediately revoke his or her dues authorization" is
compelled to accept union membership as a condition of his or her employment for
some period of time. Defs.' Opening Br. at 22. But giving an employee the choice
whether to enter into a dues check-off arrangement, and permitting the arrangement to
be irrevocable for a certain period of time, does not amount to compulsory unionism.
Because section 5 of Lincolnshire's ordinance imposes more stringent
requirements than federal law, it conflicts with the LMRA. This conflict is not authorized
by section 164(b), and therefore section 5 of the ordinance is preempted. The Court
grants summary judgment in favor of the Unions on count 3.
Conclusion
For the foregoing reasons, the Court grants defendants' motion for summary
judgment in part and denies it in part [dkt. no. 52]. Specifically, the Court dismisses the
claims of plaintiffs Local 399, LDC, and CRC in count 2 for lack of standing and

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dismisses all of the plaintiffs' claims brought under 42 U.S.C. § 1983 but otherwise
denies defendants' motion. The Court also grants plaintiffs' motion for summary
judgment in part and denies it in part [dkt. no. 35]. Specifically, the Court grants
summary judgment in favor of plaintiffs Local 399, LDC, and CRC on counts 1 and 3
and in favor of Local 150 on counts 1, 2, and 3 and concludes that federal law preempts
the union security agreement, hiring hall, and dues check-off provisions of Lincolnshire
Ordinance No. 15-3389-116. The Court otherwise denies plaintiffs' motion. Plaintiffs
are directed to file a proposed form of judgment by no later than January 12, 2017. The
case is set for a status hearing on January 18, 2017 at 9:30 a.m. for the purpose of
addressing and entering an appropriate judgment.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: January 7, 2017

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