Barton v. Swan Surfaces, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANN BARTON, individually, and on

behalf of all others similarly

situated,

Plaintiff, Case No. 20-cv-499-SPM

v.

SWAN SURFACES, LLC.,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Plaintiff Ann Barton, former employee of Swan Surfaces, LLC., brings a

proposed class action against Swan Surfaces, Inc. for alleged violations of the Illinois

Biometric Privacy Act (“BIPA”), codified at 740 ILCS §14/1, et seq. Swan moved to

dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure, arguing that the claims are preempted and that Barton failed to exhaust

her remedies. For the reasons set forth below, the Court grants the Motion to Dismiss.

The Illinois Biometric Information Privacy Act

The Illinois General Assembly enacted the Illinois Biometric Information

Privacy Act (“BIPA”), in 2008 to protect a person’s privacy interests in his “biometric

identifiers”, which includes fingerprints, retina and iris scans, hand scans and facial

geometry. 740 ILCS 14/1, et seq. (2008); Fox v. Dakkota Intefrated Systems, LLC., 980

F.3d 1146 (2020). BIPA was created in response to the growing use of biometrics “in

the business and security screening sectors”. 740 ILCS 14/5. In fact, the legislative

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findings refer to the immutability of biometric identifiers and the risk of identify

theft, and state the following, “Biometrics are unlike other unique identifiers that are

used to access finances or other sensitive information. For example, social security

numbers, when compromised, can be changed. Biometrics, however, are biologically

unique to the individual; therefore, once compromised, the individual has no recourse,

is at heightened risk for identity theft, and is likely to withdraw from biometric-

facilitated transactions.” 740 ILCS 14/5(c). Because “the full ramifications of

biometric technology are not fully known”, the General Assembly found that “the

public welfare, security, and safety will be served by regulating the collection, use,

safeguarding handling, storage, retention, and destruction of biometric identifiers

and information.” Id. §§14/5 (f)-(g).

Section 15 of the Act comprehensively regulates the collection, use, retention,

disclosure and dissemination of biometric identifiers. 740 ILCS 14/15. Specifically, §

15(a) of BIPA states:

“A private entity in possession of biometric identifiers or information

must develop a written policy, made available to the public, establishing

a retention schedule and guidelines for permanently destroying

biometric identifiers and biometric information when the initial purpose

for collecting or obtaining such identifiers or information has been

satisfied or within 3 years of the individual’s last interaction with the

private entity, whichever comes first.” 740 ILCS 15/15(a).

Section 15(b) of the Act deals with informed consent and prohibits private

entities from collecting, capturing, or otherwise obtaining a person’s biometric

identifiers or information without the person’s informed written consent. Id. § 15(b).

In other words, the collection of biometric identifiers or information is barred unless

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the collector first informs the person “in writing of the specific purpose and length of

term for which the data is being collected, stored, and used” and “ receives a written

release” from the person or his legally authorized representative. Id.

PROCEDURAL BACKGROUND

On May 29, 2000, plaintiff, Ann Barton (“Barton”), individually and on behalf

of all other similarly situated, filed a two-count Class Action Complaint against

defendant, Swan Services, LLC. (“Swan”) (Doc. 1). Barton seeks to represent a class

of “[a]ll individuals who, while residing in the State of Illinois, had their fingerprints

collected, captured, received, otherwise obtained and/or stored by Swan” (the “Class”)

(Id., p. 8). Specifically, Barton alleges that Swan violated BIPA for: (1) failing to institute,

maintain, and adhere to publicly available retention schedule in violation of 740 ILCS

14/15(a); and (2) failing to obtain informed written consent and release before

obtaining biometric identifiers of information (Id., pp. 11-14).

On July 31, 2020, Swan filed its motion to dismiss along with supporting

memorandum of law (Docs. 15, 16). Swan attached as exhibits to its memorandum of

law the following three documents: (1) the declaration of Sandy L. Moore, vice

president of human resources for Swan; (2) a copy of the collective bargaining

agreement (“CBA”) between Laborers’ International Union of North America, Local

1197 (“the Union”) and The Swan Corporation, effective August 1, 2019 through July

31, 20241; and, (3) Appendix “A”, which is a copy of the dues check-off authorization

1The CBA is 25 pages, plus cover sheet and table of contents, and was executed by Flint Taylor,

Business Manager for Local 1197 on July 31, 2019, by Sandy Moore, Director of Human Resources

for Swan Corporation on August 1, 2019 and by Clint Taylor, Business Manager for Southern &

Central Illinois Laborers’ District Council on August 1, 2019.

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form executed by Barton on December 4, 2019 (Docs. 16, 16-1). Swan asserts two

major arguments for dismissal (Doc. 16). First, that Barton’s claims are preempted

by Section 301 of the LMRA, and second, that Barton’s claims must be dismissed

because she failed to exhaust her remedies under the collective bargaining agreement

(Id.). Swan also contends that the Union was Barton’s “legally authorized

representative” with respect to claims involving biometric timekeeping (Id.).

On September 17, 2020, Barton filed her memorandum of law in opposition to

motion to dismiss (Doc. 23). Plaintiff raises several arguments as to why her

complaint should not be dismissed, including: exceptions to preemption; rights not

preempted; violation of § 15(a)’s destruction duty; futility of invoking grievance

procedure and silence in CBA on use of biometric timekeeping systems (Id.).

On September 30, 2020, Swan filed its reply in support of its motion to dismiss

(Doc. 25). Swan attempts to counter Barton’s arguments and again argues that the

BIPA claims are preempted, that the CBA is applicable and that there is binding

authority in the Seventh Circuit on this issue (Id).

FACTUAL BACKGROUND

Barton was employed by Swan from December 9, 2019 until January 8, 2020

(Doc. 16). She was an hourly employee in the company’s molding department at the

Centralia manufacturing facility (Id.). On December 4, 2019, prior to her first day of

work, Barton executed the document entitled “Appendix “A” – Dues Check-Off

Authorization Form2 (Doc. 16-1). Barton clocked in and out of work using her

2 Appendix “A” authorized the withdrawal of union fees from Barton’s wages at Swan to go towards

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fingerprints (Doc. 1).

During the period that Swan collected and used Barton’s fingerprints, she was

a member of the Union (Doc. 16-1). The CBA was in effect during the entirety of

Barton’s employment with Swan (Id.). The collective bargaining agreement contained

a management rights clause3 (Id.). The CBA also included a grievance procedure 4(

Id).

LEGAL STANDARD

The motion to dismiss and supporting memorandum of law filed by Swan were

brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (Docs. 15,

16). A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction.

Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.

2009). In order to survive a Rule 12(b)(1) motion, the plaintiff bears the burden of

establishing subject matter jurisdiction. Ctr. for Dermatology & Skin Cancer, Ltd. v.

Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). When deciding a facial challenge to

subject matter jurisdiction—that is, when the defendant argues that the plaintiff’s

allegations as to jurisdiction are inadequate—“the district court must accept as true

all well-pleaded factual allegations, and draw reasonable inferences in favor of the

plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). But district courts may

also “look beyond the jurisdictional allegations of the complaint and view whatever

her dues for the Union

3 The management rights clause stated in pertinent part, “the Employer has the sole and exclusive

right to manage and direct any and all of its operations.”

4 See “Art. 8 – Grievance and Arbitration Procedure” of CBA for resolution of disputes as to the

interpretation and application of the CBA, with the dispute culminating in arbitration.

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evidence has been submitted on the issue to determine whether in fact subject matter

jurisdiction exists.” Taylor, 875 F.3d at 853 (citing Apex Digital, Inc. v. Sears, Roebuck

& Co., 572 F.3d 440, 444 (7th Cir. 2009)). In that case, “no presumptive truthfulness

attaches to plaintiff's allegations,” and the court is “free to weigh the evidence and

satisfy itself as to the existence of its power to hear the case.” Apex Digital, 572 F.3 at

444 (internal citations omitted).

ANALYSIS

Swan argues that Barton’s claims are preempted by Section 301 and moves

this Court to dismiss her claims based on this rationale (Docs. 15, 16). In response,

Barton counters that the legislature enacted BIPA to address security concerns and

intended for it to have substantial force (Doc. 23). Barton attempts to rely upon Lingle

v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), and should that fail, attempts

to distinguish Miller v. Southwest Airlines, Co., 926 F.3d 898 (7th Cir. 2019); however,

both arguments fall short. Because Swan attached the CBA and the declaration of

Sandy Moore, this court can look beyond the complaint can view any competent proof

submitted by the parties to determine if plaintiff has established jurisdiction by a

preponderance of the evidence. Meridian Sec. Inc. Co. v. Sadowski, 441 F3d. 536 (7th

Cir. 2006).

I. The LMRA Preempts Plaintiffs’ BIPA Claims

Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29

U.S.C. § 185 (a) provides:

“Suits for violation of contracts between an employer and a labor

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organization representing employees in an industry affecting commerce

as defined in this Act, or between any such labor organizations, may be

brought in any district court of the United States having jurisdiction of

the parties, without respect to the amount in controversy or without

regard to the citizenship of the parties.”

Beginning with Teamsters v. Lucas Flour Co., the Supreme Court developed

the principle of § 301 preemption which holds, “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 that

are necessarily uniform throughout the Nation must be employed to resolve the

dispute. 369 U.S. 95 (1962). In other words, section 301 preempts a state law claim if

resolution of the claim “requires the interpretation of a collective-bargaining

agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988). This

preemption encompasses “claims founded directly on rights created by collective-

bargaining agreements, and also claims substantially dependent on analysis of a

collective-bargaining agreement.” Caterpillar Inc. v. Williams, 482 U.S. 386, 394

(1987)); see Miller, 926 F.3d at 904); see also Crosby v. Cooper B-Line, Inc., 725 F.3d

795, 797 (7th Cir. 2013) (Section 301 preemption “covers not only obvious disputes

over labor contracts, but also any claim masquerading as a state-law claim that

nevertheless is deemed ‘really’ to be a claim under a labor contract”).

A. Miller v. Southwest Airlines, Inc., 926 F.3d 898 (7th Cir. 2019)

Miller, in which the Seventh Circuit found that BIPA claims are preempted

when they require interpretation of a CBA, controls the Court’s decision in this case.

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The facts in Miller parallel those before us. 926 F.3d 898. In Miller, plaintiff raised

BIPA claims against his employer, Southwest Airlines, which required employees to

use their fingerprints to clock in and out of work. Id. at 901. Specifically, plaintiff

claimed Southwest violated BIPA by implementing the timekeeping “systems without

their consent, by fail[ing] to publish protocols, and by us[ing] third-party vendors to

implement the system.” Id. At all relevant times, Southwest had a CBA with

plaintiff’s union. Id Southwest moved to dismiss, arguing that it had provided the

plaintiff’s union with the required notice and that the union consented to the use of

the fingerprint system, either expressly or through the CBA’s management rights

clauses. Id. Furthermore, Southwest asserted that the timekeeping system was a

proper subject of negotiation between a union and employer. Id.

The Seventh Circuit began its analysis in Miller with the premise that disputes

over the interpretation or administration of a collective bargaining agreement with

an airline must be resolved by an adjustment board under the Railway Labor Act

(RLA). Id. at 903. In its analysis, the Court noted that there was a CBA in place, and

that the union was the exclusive bargaining agent for the workers. Id. In so holding,

the court affirmed the dismissal by the district court on preemption grounds because

plaintiff’s claims “necessarily entailed the interpretation or administration of the

CBA”, and rejected plaintiff’s arguments that the union was not his “legally

authorized representative” for BIPA purposes. Id. at 904.

Although Miller involved the RLA, not the LMRA, the Supreme Court has

held that the RLA preemption standard is “virtually identical to the pre-emption

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standard the Court employs in cases involving § 301 of the LMRA.” Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994). Furthermore, the Seventh Circuit

recently suggested that its holding in Miller applied to an analogous fact pattern

under the LMRA. Fox, 980 F.3d 1146 (declining to hold that union member plaintiff’s

BIPA claim was preempted by the LMRA because the district judge did not address

the issue and the parties did not brief it, but stating that “the answer appears to flow

directly from Miller”).

Although not binding on this Court, our sister district to the north has had

several occasions to review BIPA claims, and in each has determined that they are

preempted by §301 of the LMRA. See Fernandez v. Kerry, Inc., 2020 WL 7027587

(N.D. Ill. November 30, 2020); Williams v. Jackson Park SLF, LLC, 2020 WL 5702294

(N.D. Ill. Sept. 24, 2020); Gray v. Univ. of Chicago Med. Ctr., Inc., 2020 WL 1445608

(N.D. Ill. Mar. 25, 2020); Peatry v. Bimbo Bakeries USA, Inc., 2020 WL 919202 (N.D.

Ill. Feb. 26, 2020). In all four cases, the unionized employee/plaintiff alleged, on behalf

of themselves and classes of similarly situated individuals, that the

employer/defendants violated BIPA through collection, storage and use of biometric

information, and in all four cases the Northern District has aligned with Miller.

i. Fernandez v. Kerry, Inc., 2020 WL 7027587

In Fernandez, five former employees of Kerry, Inc., brought a proposed class

action for alleged violations of BIPA. 2020 WL 7027587 (N.D. Ill. Nov, 30, 2020). The

employees worked in production in the Melrose Park plant where they were required

to scan their fingerprints to clock in and out of work. Id. The employees were all

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members of the Miscellaneous Warehousemen, Airline, Automotive Parts, Service,

Tire and Rental, Chemical and Petroleum, Ice Paper and Related Clerical and

Production Employees Union, Local No. 781. Id. Defendant moved to dismiss on

preemption grounds, arguing that the CBA between Kerry and Local 781 contained

a management rights clause, along with a grievance procedure for resolution of

disputes as to the interpretation and application of the CBA that culminated in

arbitration. Id.

The Fernandez court conducted an in depth analysis, but ultimately relied

upon the Seventh Circuit holding in Miller v. Southwest Airlines Co., 926 F.3d 898,

and granted the motion to dismiss on preemption grounds. Id. The district court

emphasized that it was bound to follow Miller, but went on to find that its conclusion

that plaintiffs’ BIPA claims were preempted was bolstered by the Northern District

Court decisions in Williams, 2020 WL 5702294, Gray, 2020 WL 1445608, and Peatry,

2020 WL 919202.

ii. Williams v. Jackson Park SLF, LLC, 2020 WL 5702294

In Williams, the plaintiff worked as a nurse technician for defendant, Jackson

Park SLF, LLC., and was required to scan his handprints to clock in and out of work.

2020 WL 5702294 (N.D. Ill. Sept. 24, 2020). Plaintiff alleged that Jackson Park

violated BIPA for not having a retention schedule and for not obtaining informed

written before obtaining and disclosing biometric identifiers. Id. Plaintiff was a

member of United Food & Commercial Workers International Union, Local 1546,

which had a collective bargaining agreement with Jackson Park. Id. The CBA

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contained a management rights clause and also included a grievance procedure for

disputes about the application or interpretation of the CBA. Id. Defendant moved to

dismiss the complaint arguing that because plaintiff was a union member, the issue

in dispute was preempted under Section 301 of the LMRA. Id.

The district court relied upon Miller v. Southwest Airlines, and agreed with

defendant’s position. Id. Plaintiff raised arguments that the CBA did not mention

biometric information and that the union could not waive his statutory consent or

privacy rights, but the court noted that the same could be said about the CBA in

Miller. Id. The court also reiterated that it could not ignore Seventh Circuit precedent

and admonished that plaintiff’s reliance on Illinois trial court opinions was not

binding. Id.

iii. Gray v. Univ. of Chicago Med. Ctr., Inc., 2020 WL 1445608

The plaintiff in Gray was a nurse who worked for the University of Chicago

Medical Center. 2020 WL 1445608 (N.D. Ill. Mar. 25, 2020). She was represented by

a nurses’ union, which was the exclusive bargaining agent for plaintiff and other

nurses. Id. Her duties included using a machine to dispense medication, which

required employees to use their handprint as a means of authentication to access the

medication. Id. She filed claims under BIPA, but the court dismissed her complaint

finding her claims were all preempted by Section 301 of the LMRA. Id. In so holding,

the court found that Miller, where the Seventh Circuit found that BIPA claims are

preempted when they require interpretation of a CBA, controlled its decision. Id.

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iv. Peatry v. Bimbo Bakeries USA, Inc., 2020 WL 919202

In Peatry, plaintiff was a machine operator at defendant’s bakery product

manufacturing company in Cicero, Illinois where she was required to clock in and out

with her fingerprints. 2020 WL 919202 (N.D. Ill. Feb. 26, 2020). Plaintiff was a

member of the Chemical and Productions Workers Union, Local 30, AFL-CIO, that

had a CBA with defendant. Id. Plaintiff attempted to ignore and distinguish Miller

after a motion to dismiss was filed; however, the court determined the facts were

almost identical and found that Miller governed. Id. at *3. As such, the court held

that plaintiff’s claims were preempted under § 301, citing that the “state law is

preempted to the extent that a state has tried to overrule the union’s choices on behalf

of the workers”. Id. at *4.

It is important to note that in all four cases infra, the district judges

emphasized that he/she must follow the decisions of this court (Seventh Circuit)

whether or not they agree. Reiser v. Residential Funding Corp., 380 F.3d 1027 (7th

Cir. 2004)(emphasis added). Similarly, this Court is bound to follow Seventh Circuit

precedence; therefore, Barton’s claims are preempted by Section 301 of the LMRA

and must be dismissed.

B. Management Rights Clause

In further support of finding that BIPA is preempted by § 301, the courts also

looked at the language contained in the management rights clauses in the respective

CBAs and found them to be very similar. See Fernandez, 2020 WL 7027587; Williams,

2020 WL 5702294; Gray, 2020 WL 1445608; and Peatry, 2020 WL 919202. As such,

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it is necessary to interpret the management-rights clause at issue to determine

whether the union consented to the use of the time clocks on behalf its’ collective

members.

In Miller, the management rights clause stated, “The right to manage and

direct the work force, subject to the provisions of the Agreement, is vested in and

retained by the company.” Similarly, the management rights clause between the

union and Swan states, “[the] Employer has the sole and exclusive right to manage

and direct any and all of its operations” (Doc. 16-1, p. 1). In this case, the clause

contains twenty-six (26) additional rights and “it is specifically recognized and agreed

that the Employer reserves and has the sole and exclusive right to: (u) Control the

use of equipment, property and technology of the Employer, including current and/or

future surveillance equipment such as but not limited to GPS, biometrics and

surveillance cameras” (Doc. 16-1, pp. 1-3).

Although the Miller CBA did not expressly mention biometric data nor did it

anticipate the use of biometric data, the Seventh Circuit found that whether its

management right clause gave rise to consent regarding biometric data was for an

adjustment board, not for a court to determine. Miller, 926 F.3d at 903. In this case,

biometric data may have been anticipated in that it was specifically mentioned in the

CBA management rights clause, and consequently, like Miller, it is an issue for

review and interpretation, but by an arbitral board and not the court system.

C. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988)

Barton contends that Lingle, not Miller, controls in this case; however, her

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argument is not persuasive (Doc. 23). In Lingle, plaintiff brought an action in the

Circuit Court for Williamson County, alleging that she had been discharged for

exercising her rights under the Illinois Workers’ Compensation Act. 486 U.S. 399.

The case was removed to this court, which held that Lingle’s claim for retaliatory

discharge was preempted by § 301 of the LMRA. Id. Although the Seventh Circuit

affirmed, the Supreme Court overruled, holding that the application of employee’s

state tort remedy was NOT preempted by § 301 because it did not require

interpretation of a CBA. Id. (emphasis added). In other words, so long as the state

law claim could be resolved without interpreting the CBA, the claim was independent

for preemption purposes. Id. Such is not the case at hand.

In reaching its decision, the Lingle court examined the elements of the offense

of retaliatory discharge: (1) that the employee was discharged or threatened with

discharge; and (2) that the employer’s motive was to deter the employee from

exercising his rights under the Workers’ Compensation Act. Id. at 399, 400. The Court

determined that neither of those elements required the court to interpret any term of

a CBA. Id. at 400. Specifically, the Court held that a retaliatory discharge claim may

be pursued under state law because such a claim can be resolved without interpreting

a collective bargaining agreement; it is person-specific and does not concern the terms

and conditions of employment. Id. Furthermore, the Court reiterated that

interpretation of collective-bargaining agreements remained firmly in the arbitral

realm; judges can determine questions of state law involving labor-management

relations only if such questions do not require interpreting the collective bargaining

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agreement itself. Id.

This court cannot separate the BIPA claims without looking at the CBA.

Because interpretation of the CBA is essential to this case and because they are so

intertwined, Barton’s claims are preempted.

II. Plaintiff Did Not Exhaust Her Remedies

Swan’s second argument is that Barton did not exhaust her remedies under

the CBA prior to filing her complaint (Docs. 15, 16). In response, Barton counters that

her failure to invoke the CBA’s grievance procedure is not enough for dismissal (Doc.

23). Barton further clams that any failure to invoke the grievance procedure should

be excused because any attempt would have been futile (Id.).

Article 8 of the CBA is entitled, “Grievance and Arbitration Procedures”, and

it is broken into five (5) Sections that culminates in arbitration (Doc. 16-1, p. 9).

Where the CBA establishes a grievance and arbitration remedy, that remedy becomes

exclusive by force of Section 301. Lancaster v. Norfolk and W.Ry.Co., 773 F.2d 807

(7th Cir. 1985).

Swan is correct that, as a general matter, exhaustion of remedies is required;

however, there are exceptions. Hammer v. Int’l Union, United Auto., Aerospace, &

Agric. Implement Workers or Am., 178 F.3d 856 (7th Cir. 1999). An employee can be

excused from a CBA’s exhaustion requirement if: (1) resorting to the grievance

procedure would be futile; (2) the employer, through its conduct repudiated the

grievance procedure itself; or (3) the union breached its duty of fair representation.

Id.

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Futility is a recognized exception to the exhaustion requirement. Glover v. St.

Louis – San Francisco Ry. Co., 393 U.S. 324 (1969). But, an employee’s speculation

that it would be futile to file a grievance is insufficient to excuse the employee’s failure

to exhaust. Douglas v. American Info. Technologies, Corp., 877 F.2d 565 (7th Cir.

1989). Instead, the employee must put the grievance procedure to the test and show

that he/she tried to exhaust the contractual remedies and that further attempts to

pursue a grievance would have been futile. Id. at 574; Mechmet v. Four Seasons

Hotels, Ltd., 825 F.2d 1173 (7th Cir. 1987). Because Barton’s claim of futility is

nothing more than a mere, unsubstantiated assertion, failure to exhaust the

grievance procedure is not excused.

CONCLUSION

For the reasons set forth above, and in reliance on the binding precedent in

Miller v. Southwest Airlines, Co., 926 F.3d 898 (7th Cir. 2019), defendant Swan

Surfaces, LLC’s motion to dismiss for lack of subject matter jurisdiction is

GRANTED. Barton’s class action complaint is dismissed without prejudice and any

potential motion for class certification is moot at this time. Although this Court is

reticent to do so, Barton is granted until March 5, 2021 to file an amended complaint

correcting the jurisdictional deficiencies identified here, if she can do so consistent

with Rule 11 of the Federal Rules of Civil Procedure. If no amended complaint is filed

on or before April 5, 2021, the Court will enter final judgment and close the case. If

Barton files an amended complaint, Swan will have 30 days from that date to file a

responsive pleading.

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IT IS SO ORDERED.

DATED: March 2, 2021

/s/ Stephen P. McGlynn_

STEPHEN P. McGLYNN

U.S. District Judge

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