Singleton Jr. et al v. B.L. Downey Company LLC

Filing 24

MEMORANDUM Opinion and Order: For the reasons stated in the attached opinion, Downey's motion to dismiss 11 12 is granted, and the case is dismissed without prejudice. Signed by the Honorable Thomas M. Durkin on 7/19/2021. Mailed notice. (ecw, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELMER SINGLETON JR. and THEODORE
DAVIS, individually and on behalf of all
other similarly situated,
Plaintiffs,

No. 21 C 236
Judge Thomas M. Durkin

v.
B.L. DOWNEY COMPANY LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Elmer Singleton and Theodore Davis bring this putative class action alleging
that their former employer, B.L. Downey Company LLC, violated the Illinois
Biometric Information Privacy Act (“BIPA”). Downey has filed a motion to dismiss,
arguing that Plaintiffs’ claims are preempted by the Labor Management Relations
Act. R. 11; R. 12. That motion is granted.1

Generally, dismissal of a state law claim as preempted is considered a dismissal for
lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See
Miller v. Sw. Airlines Co., 926 F.3d 898, 901 (7th Cir. 2019). The Seventh Circuit has
noted, however, that none of its decisions “considers the effect of the Supreme Court’s
modern understanding of the difference between ‘jurisdiction’ and other kinds of
rules,” particularly with regard to federal labor statutes. See Miller v. Sw. Airlines
Co., 926 F.3d 898, 901 (7th Cir. 2019) (citing Fort Bend County v. Davis, 139 S. Ct.
1843 (2019); Carlson v. CSX Transp., Inc., 758 F.3d 819, 831 (7th Cir. 2014)). The
Seventh Circuit noted further that granting a motion like this under “either a
substantive or a jurisdictional label ends the litigation between these parties and
forecloses its continuation in any other judicial forum.” Miller, 926 F.3d at 901. Thus,
because it is inconsequential, the Court will not dwell on this issue.
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Downey scans and stores its employees’ fingerprints in order to record when
they clock in and out of work. Plaintiffs allege, in sum, that this violates BIPA because
Downey failed to obtain Plaintiffs’ consent and tell them how their fingerprint
information would be disclosed to third parties in the process.
Plaintiffs’ employment with Downey was subject to a collective bargaining
agreement containing the following “management rights clause”:
[t]he Company shall manage the plant and direct the
working force. Among the exclusive rights of management,
but not intended as a wholly inclusive list of them, are the
exclusive rights to plan, direct and control plant
operations; to schedule the working hours and lunch
periods; to transfer; to assign work to employees; to hire; to
promote; to demote, to discipline; to suspend; to discharge
for proper cause; to make and enforce shop rules to carry
out the management of the plant; to relieve employees from
duty because of lack of work or for any other legitimate
reason; to introduce new production methods, materials or
facilities. The choice of, control, and direction of the
supervisory employees are vested exclusively in the
company.
R. 12-1 at 10 (Article 7); see also R. 12-2; R. 12-3. In Miller v. Southwest Airlines, the
Seventh Circuit held that a substantially similar management rights clause meant
that BIPA claims about clocking in and out of work were preempted by the Railway
Labor Act. 926 F.3d 898 (7th Cir. 2019).
The Railway Labor Act does not apply to Plaintiffs in this case. (At least,
neither party has argued that it does.) But Downey points out that the preemption
analyses under the Railway Labor Act (“RLA”) and the Labor Management Relations
Act (“LMRA”) are “virtually identical.” See Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 247 (1994); Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 667 n.13 (7th Cir. 2001)
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(citing the LMRA preemption standard in a RLA case). For this reason, the Seventh
Circuit has noted in dicta that preemption of BIPA claims under the LMRA “appears
to flow directly from Miller.” See Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146,
1156 (7th Cir. 2020). And several district courts have acted accordingly to dismiss
BIPA claims as preempted by the LMRA. See, e.g., Carmean v. Bozzuto Mgm’t Co.,
2021 WL 2433649, at *4 (N.D. Ill. June 15, 2021) (citing cases).
Plaintiffs argue that Miller runs contrary to the Supreme Court’s preemption
analysis in Allis Chalmers Corp. v. Lueck, 472 U.S. 202 (1985). See R. 22 at 3. But as
Plaintiffs note in their brief, the Supreme Court later built upon its preemption
analysis in Lingle v. Norgle Div. of Magic Chef, Inc., 486 U.S. 399 (1988). And the
Seventh Circuit applied Lingle in Miller. To the extent the Seventh Circuit got it
wrong, that is an argument for the Seventh Circuit. This Court is bound to follow
Miller and its straight-forward implications.
Nevertheless, Plaintiffs argue that Miller’s application here is not
straightforward in that the “question of whether [Downey] violated BIPA is not
dependent upon any analysis of any language within the [collective bargaining
agreement].” R. 22 at 5. This argument, however, runs directly counter to Miller’s
express holding. The Seventh Circuit held that “there can be no doubt that how
workers clock in and out is a proper subject of negotiation between unions and
employers—[and] is, indeed, a mandatory subject of bargaining.” Miller, 926 F.3d
at 903. The court also held that resolving “the employees’ BIPA claims . . . would
require the court to interpret the ‘management-rights’ clauses . . . and, specifically,

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to decide whether the unions, through those clauses, consented to the collection and
use of the employees’ biometric data.” Id. at 903-05. Plaintiffs claims in this case are
similarly “dependent upon” analysis of the collective bargaining agreement, such that
Miller controls.
Plaintiffs also contend that “there is no basis to find that the union provided a
‘written release’ to [Downey],” in arguing that the collective bargaining agreement’s
management rights clause is not relevant to Plaintiffs’ BIPA claims. R. 22 at 9.
Plaintiffs argue that “it does not matter if a union [‘consents’ to use of fingerprints]
through a management rights clause, because ‘consent’ is not the same as a BIPAcomplaint written release.” Id. at 10. Again, this argument is contrary to Miller in
which, as noted, the court implied that a collective bargaining agreement like the one
at issue here could establish consent sufficient under BIPA. This Court does not have
the authority to decide otherwise.
Lastly, Plaintiffs ask the Court to join Plaintiffs’ union as a party and stay the
case in favor of arbitration. Putting aside the fact that Plaintiffs have not made
motions for this relief, it runs contrary to the LMRA and precedent regarding what
to do with a case preempted by the LMRA. A state law claim completely preempted
by LMRA § 301 “must either be treated as a § 301 claim, or dismissed as pre-empted
by federal labor-contract law.” Allis-Chalmers, 471 U.S. at 220. According to the
Seventh Circuit, the preferred course is to treat the preempted claim as a § 301
claim. See Healy v. Metro. Pier and Expo. Auth., 804 F.3d 836, 840 (7th Cir. 2015)
(“Here, § 301 preempts the state law tortious interference claim and converts it into

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a § 301 claim.”); Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495, 501 (7th Cir.
1996) (“Because this lawsuit arose under § 301, it is considered a suit for breach of
the CBA.”); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1180 (7th Cir.
1993) (“[I]f the plaintiff's claim, ostensibly based on state law, cannot be adjudicated
without interpretation of the collective bargaining agreement, the claim turns into a
federal claim that the agreement itself has been violated.”); Douglas v. Am. Info.
Techs. Corp., 877 F.2d 565, 573-74 (7th Cir. 1989) (“Because we have determined that
Ms. Douglas’ claim for intentional infliction of emotional distress is preempted by
section 301, we must now determine whether the district court correctly dismissed
the claim for failure to exhaust grievance and arbitration remedies available under
the collective bargaining agreement.”).
Following this precedent, Plaintiffs must first have “grieve[d] the dispute using
the grievance process outlined in the [CBA].” Healy, 804 F.3d at 843. Plaintiffs do not
allege or argue that they complied with the grievance procedures in the collective
bargaining agreement, so their claims are dismissed without prejudice for failure to
exhaust. See Miller, 926 F.3d at 905 (affirming dismissal without prejudice in favor
of collective bargaining agreement process); Greene v. Meese, 875 F.2d 639, 643 (7th
Cir. 1989) (“[T]he proper remedy for a failure to exhaust administrative remedies is
to dismiss the suit without prejudice, thereby leaving the plaintiff free to refile his
suit when and if he exhausts all of his administrative remedies or drops the
unexhausted claims.”); see also Carmean v. Bozzuto Mgm’t Co., 2021 WL 2433649, at
*4 (N.D. Ill. June 15, 2021) (citing cases). And since the case must be dismissed, the

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Court no longer has the authority to stay the case or consider joinder of additional
parties.
Conclusion
Therefore, Downey’s motion to dismiss [11] [12] is granted, and the case is
dismissed without prejudice.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: July 19, 2021

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