International Union of Operati v. Village of Lincolnshire

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 17-1300 & 17-1325

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 399, et

al.,

Plaintiffs-Appellees, Cross-Appellants,

v.

VILLAGE OF LINCOLNSHIRE, et al.,

Defendants-Appellants, Cross-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 2395—Matthew F. Kennelly, Judge.

____________________

ARGUED MARCH 27, 2018 — DECIDED SEPTEMBER 28, 2018

____________________

Before WOOD, Chief Judge, and BAUER and KANNE, Circuit

Judges.

WOOD, Chief Judge. The National Labor Relations Act and

its amendments establish a national system of industrial-labor

relations. The question before us in this case is whether a mu-

nicipality—specifically, the Village of Lincolnshire, Illinois—

can add to or change that system through a local ordinance.

Lincolnshire passed an ordinance that purports to do three

2 Nos. 17-1300 & 17-1325

things: (1) forbid the inclusion of union-security or hiring-hall

provisions in collective bargaining agreements, (2) forbid the

mandatory use of hiring halls, and (3) forbid dues checkoff

arrangements. The Village asserted that it had the right to do

so under section 14(b) of the National Labor Relations Act,

29 U.S.C. § 164(b), which permits states to bar compulsory un-

ion membership as a condition of employment. Lincolnshire

contends that, as a political subdivision of Illinois, it is entitled

to exercise the state’s power in this respect.

Whether a local law, rather than a state-wide law, falls

within the scope of section 14(b) is a subject that has divided

other courts. The Sixth Circuit, in United Automobile, Aerospace

& Agricultural Implement Workers of America Local 3047 v. Har-

din County, Kentucky, 842 F.3d 407 (6th Cir. 2016), agreed with

the Village that it does, but only for union-security clauses.

The Sixth Circuit found hiring-hall and dues-checkoff provi-

sions comparable to those in the Lincolnshire ordinance to be

outside the scope of section 14(b) and thus preempted by the

NLRA. On the other side of the fence, Kentucky’s highest

court has held that section 14(b) does not permit local legisla-

tion on the topic of either union-security or mandatory use of

hiring-halls or dues-checkoffs. See Kentucky State AFL-CIO v.

Puckett, 391 S.W. 2d 360 (Ky. Ct. App. 1965). 1 With all due re-

spect to our sister circuit, on the union-security clause issue

we find ourselves persuaded by the position that Kentucky

1 Until 1976, the highest court of Kentucky was the Court of Appeals

of Kentucky. Pursuant to the Amendment of May 29, 1975, effective at the

beginning of 1976, Kentucky restructured its courts, and so the highest

court now is the Supreme Court of Kentucky.

Nos. 17-1300 & 17-1325 3

took, although our reasons differ somewhat. 2 We agree with

both courts that localities may not address the subjects of hir-

ing halls or dues checkoffs. We thus conclude that the author-

ity conferred in section 14(b) does not extend to the political

subdivisions of states and affirm the judgment of the district

court holding Lincolnshire’s ordinance preempted and with-

out force.

I

In 2015 Lincolnshire adopted Ordinance Number 15-3389-

116 (“the Ordinance”). Section 4 of the Ordinance bans union-

security agreements within the Village by forbidding any re-

quirement that workers join a union, compensate a union fi-

nancially, or make payments to third parties in lieu of such

contributions. Section 4(B)–(D). Section 4 also bars any re-

quirement that employees “be recommended, approved,

2 This case reveals an interesting gap in Circuit Rule 40(e), which re-

quires circulation to the full court when a panel decision would create a

conflict with another circuit. The rule says nothing about the creation of a

conflict with the highest court of a state, notwithstanding the fact that Su-

preme Court Rule 10(a) includes cases in which a United States court of

appeals “has decided an important federal question in a way that conflicts

with a decision by a state court of last resort.” One goal of Circuit Rule

40(e) is to ensure that this court does not lightly create the type of conflict

that can be resolved only through intervention by the Supreme Court. A

conflict in the circuits is certainly one such situation, see S. Ct. Rule 10(a)

clause 1, but as just noted, so is a conflict between a court of appeals and

a state court of last resort, see S. Ct. Rule 10(a) clause 2. Given the current

language of Circuit Rule 40(e), however, because this opinion would cre-

ate a conflict with the Sixth Circuit, we are circulating it to all members of

the court in regular active service, even though it does not create the kind

of conflict described in Supreme Court Rule 10(a). No judge in regular ac-

tive service wished to hear this case en banc. Judge Flaum did not partici-

pate in consideration of this hearing en banc.

4 Nos. 17-1300 & 17-1325

referred, or cleared for employment by or through a labor or-

ganization.” Section 4(E). Finally, section 5 prohibits employ-

ers from making any payments to unions on a worker’s behalf

except pursuant to a “signed written authorization” that

“may be revoked by the employee at any time by giving writ-

ten notice.” Section 5. The Ordinance provides both civil rem-

edies and criminal penalties for its violation.

A collection of unions sued Lincolnshire, asserting that the

National Labor Relations Act of 1935 (“Wagner Act”), as

amended by the Labor Management Relations Act of 1947

(“Taft-Hartley Act”), preempts the Ordinance. (The references

in this opinion to the NLRA mean the Act as amended.) Their

complaint asserts that sections 4(B)–(D), 4(E), and 5 of the Or-

dinance violate the Supremacy Clause and 42 U.S.C. § 1983.

The district court resolved the case on motions for

summary judgment. It first found that all of the unions had

standing to challenge the membership and fee provisions of

section 4(A)–(D) and the checkoff regulation of section 5, but

that only one of the unions could challenge the prohibition of

hiring halls in section 4(E). We find the court’s analysis in this

respect to be sound, and there is no need to say more, since

neither side has appealed from these rulings. The district

court then held all three provisions to be preempted by the

NLRA. In No. 17-1300, Lincolnshire has appealed from this

determination. The district court also ruled that the unions

failed to state a claim under section 1983, because it

understood them to be asserting Garmon, rather than

Machinists, preemption claims. See Golden State Transit Corp.

v. City of L.A., 493 U.S. 103, 110–13 (1989). Relying on that

ruling, it prevented the unions from claiming attorney’s fees

Nos. 17-1300 & 17-1325 5

under 42 U.S.C. § 1988. In No. 17-1325, the unions have cross-

appealed the latter decision.

II

A

Before turning to the heart of the case, we note that the

unions’ invocation of the Supremacy Clause was proper in

this instance. Although the Supremacy Clause does not create

a freestanding private right of action, Armstrong v. Exceptional

Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), a plaintiff may “sue

to enjoin unconstitutional actions by state and federal offic-

ers” in violation of supreme federal law by invoking courts’

equitable powers or through the comparable mechanisms

provided by the Declaratory Judgment Act. Restoration Risk

Retention Grp., Inc. v. Gutierrez, 880 F.3d 339, 346 (7th Cir. 2018)

(quoting Armstrong, 135 S. Ct. at 1384). That is what the unions

have done here.

B

If it were not for section 14(b), the NLRA would preempt

all three aspects of Lincolnshire’s Ordinance. State law must

give way to federal law, the Supreme Court has explained, in

a number of instances: when Congress has enacted a statute

expressly preempting state law; when there is “a framework

of regulation so pervasive ... that Congress left no room for

the States to supplement it or where there is a federal interest

... so dominant that the federal system will be assumed to pre-

clude enforcement of state laws on the same subject”; and

when state laws conflict with federal law, either because com-

pliance with both is a physical impossibility, or because “the

challenged state law stands as an obstacle to the accomplish-

ment and execution of the full purposes and objectives of

6 Nos. 17-1300 & 17-1325

Congress.” Arizona v. United States, 567 U.S. 387, 399 (2012)

(internal quotation marks and citations omitted); see Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

The first of these possibilities is usually called field

preemption, and we begin there. The Supreme Court has con-

firmed that section 8 of the NLRA occupies the field for any

activities that it “may fairly be assumed” fall within the ambit

of the NLRA. San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236, 244 (1959). The negotiation and adoption of the

types of provisions at issue here—union-security clauses, hir-

ing-hall rules, and dues checkoffs—are such activities. E.g.,

Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am.

v. Lockridge, 403 U.S. 274, 284 (1971); see also id. at 296 (noting

that, with respect to union-security clauses, “federal concern

is pervasive and its regulation complex”); Oil, Chem. & Atomic

Workers, Int’l Union v. Mobil Oil Corp., 426 U.S. 407, 409 (1976).

Section 8(a)(3) of the NLRA bars, as an unfair labor prac-

tice, any “discrimination in regard to … employment or any

term or condition of employment to encourage or discourage

membership in any labor organization.” It also provides that

nothing in the NLRA “or in any other statute of the United

States, shall preclude” requiring new hires to join a union

within 30 days, unless specified exceptions apply. 29 U.S.C.

§ 158(a)(3). That is enough to conclude—again, putting sec-

tion 14(b) to the side for a moment—that the union-security

provisions of the Ordinance impermissibly encroach on a

field that has been occupied by section 8 of the NLRA. See

Sweeney v. Pence, 767 F.3d 654, 661 (7th Cir. 2014) (finding

analogous provisions in an Indiana statute governed union

membership within the meaning of section 8). The same is

true of the hiring-hall and dues-checkoff provisions, although

Nos. 17-1300 & 17-1325 7

our emphasis below will be on union-security clauses, as that

is the only point of disagreement between the Sixth Circuit

and us.

The Supreme Court has recognized that laws banning un-

ion-security agreements clash with section 8(a)(3) and thus

can be saved only if they fall within the scope of section 14(b):

While § 8(a)(3) articulates a national policy that certain

union-security agreements are valid as a matter of fed-

eral law … [s]ection 14(b) allows a State or Territory to

ban agreements “requiring membership in a labor or-

ganization as a condition of employment.” We have

recognized that with respect to those state laws which

§ 14(b) permits to be exempted from § 8(a)(3)’s national

policy “[t]here is … conflict between state and federal

law; but it is a conflict sanctioned by Congress with di-

rections to give the right of way to state laws … . ”

Mobil Oil Corp., 426 U.S. at 416–17 (quoting Retail Clerks Int’l

Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103 (1963)) (al-

teration in original). The question before the Court in Mobil

Oil was whether Texas’s right-to-work laws could override an

agency-shop requirement covering unlicensed seamen who

were hired in Texas, but who spent “the vast majority of their

working hours on the high seas.” 426 U.S. at 410. The Court

concluded that Texas law did not reach this far and that “pre-

dominant job situs is the controlling factor in determining

whether, under § 14(b), a State can apply its right-to-work

laws to a given employment relationship.” Id. at 420. Most

(though not all) of the seamen’s work was done on the high

seas, “outside the territorial bounds of the State of Texas.” Id.

8 Nos. 17-1300 & 17-1325

This was enough to conclude that the exception to national

labor policy recognized in section 14(b) was not triggered.

In the absence of applicable legislation under section

14(b), the question whether to have a union-security agree-

ment constitutes a mandatory subject of bargaining under the

NLRA, and refusal to bargain may amount to an unfair labor

practice. NLRB v. Gen. Motors Corp., 373 U.S. 734, 744–45

(1963); Atlas Metal Parts Co., Inc. v. NLRB, 660 F.2d 304, 308

(7th Cir. 1981); see also Pleasantview Nursing Home, Inc. v.

NLRB, 351 F.3d 747, 759 (6th Cir. 2003); Eastex, Inc. v. NLRB,

437 U.S. 556, 569 (1978). In states that have adopted right-to-

work laws, however, the tables are turned: not only is there

no duty to bargain over these clauses; the clauses themselves

are forbidden as a matter of state law. See, e.g., Sweeney,

767 F.3d at 671.

Illinois does not have a state-wide right-to-work law. Per-

haps that is why Lincolnshire passed the Ordinance. But it is

not such a simple matter to say that the state’s power to pass

such a law has been, or may be, delegated to its subdivisions.

Sometimes that is true, and sometimes it is not. Lincolnshire

is a home-rule city, and so we assume for present purposes

that it has broad regulatory powers. Lincolnshire concedes,

however, that if Illinois were to pass a specific statute forbid-

ding the state’s political subdivisions to legislate in this area,

then it would be out of luck. We put that state-law issue to one

side, however, since the broader question is whether as a mat-

ter of federal law section 14(b) authorizes political subdivi-

sions to act in this area.

A local union-security provision would seriously under-

mine the objectives of the NLRA in any state that has not

taken advantage of section 14(b) to forbid agency shops. The

Nos. 17-1300 & 17-1325 9

NLRA “favors permitting [union-security] agreements unless

a State or Territory with a sufficient interest in the relationship

expresses a contrary policy via right-to-work laws.” Mobil Oil

Corp., 426 U.S. at 420. It does this in part to avoid free-riding.

Id. at 416. Recognition of this aim has motivated the Supreme

Court to monitor carefully the scope of states’ authority to

override that policy. See id. at 420 (holding that even though

Texas may have had more contacts than any other state with

the employment relationship at issue, its right-to-work law

did not apply because the predominant situs of the employ-

ment was not in Texas). Lincolnshire’s Ordinance undermines

that congressional goal by banning any collective bargaining

agreement designed to ensure that workers shoulder their

portion of the costs of representation. If the State of Illinois

had passed a right-to-work law, as 28 other states have done,

a different congressional goal would be implicated: the one

expressed in section 14(b) requiring deference to the state’s

choice. But as we have said, Illinois has done no such thing.

The hiring hall aspect of Lincolnshire’s ordinance also

runs into problems with preemption. Like the union-security

part, it falls within the purview of section 8. Farmer v. United

Bhd. of Carpenters & Joiners of Am., Local 25, 430 U.S. 290, 303

n.11 (1977) (“Discrimination in hiring hall referrals constitutes

an unfair labor practice under §§ 8(b)(1)(A) and 8(b)(2) of the

NLRA.”); see also Local 357, Int’l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers of Am. v. NLRB, 365 U.S. 667, 675

(1961) (noting that section 8 permits hiring halls other than

those which are discriminatory). State regulation of hiring

halls is therefore blocked by field preemption. E.g., United

Auto., 842 F.3d at 421–22; Laborers’ Int’l Union of N. Am., Local

No. 107 v. Kunco, Inc., 472 F.2d 456, 458 (8th Cir. 1973); NLRB

v. Tom Joyce Floors, Inc., 353 F.2d 768, 770–71 (9th Cir. 1965).

10 Nos. 17-1300 & 17-1325

The use of hiring-halls routinely has been treated as a manda-

tory subject of bargaining and thus hiring-hall provisions are

affirmatively permitted by the NLRA. E.g., Clarett v. Nat’l

Football League, 369 F.3d 124, 140–41 (2d Cir. 2004); Sw. Steel &

Supply, Inc. v. NLRB, 806 F.2d 1111, 1113 (D.C. Cir. 1986);

NLRB v. Sw. Sec. Equip. Corp., 736 F.2d 1332, 1338 (9th Cir.

1984); NLRB v. Houston Chapter, Associated Gen. Contractors of

Am., Inc., 349 F.2d 449, 452 (5th Cir. 1965); Houston Chapter,

Associated Gen. Contractors of Am., Inc., 143 N.L.R.B. 409, 415

(1963). Lincolnshire’s attempt to prohibit them requires un-

ions and employers to choose between complying with na-

tional or municipal law and thus creates an actual conflict.

Finally, Lincolnshire’s dues-checkoff regulation is

preempted. Dues checkoff provisions are mandatory subjects

of bargaining. E.g., Tribune Publ’g Co. v. NLRB., 564 F.3d 1330,

1333 (D.C. Cir. 2009); NLRB v. J.P. Stevens & Co., 538 F.2d 1152,

1165 (5th Cir. 1976); United Steel Workers of Am. v. NLRB,

390 F.2d 846, 849 (D.C. Cir. 1967). Their negotiation is thus

subject to section 8, and federal law requires state law to yield.

Garmon, 359 U.S. at 244. In this respect too the Lincolnshire

Ordinance threatens an actual conflict with federal law: it per-

mits employers to remit dues only pursuant to fully revocable

checkoffs, while federal law requires employers to bargain in

good faith over checkoff proposals that bind both parties for

up to one year.

Section 302 of the Taft-Hartley Act comprehensively regu-

lates the payment of fees by employers, including payments

to unions. 29 U.S.C. § 186. This includes a provision allowing

for checkoffs to pay union fees under certain circumstances.

Id. § 186(c)(4). The statutory scheme represents a careful bal-

ancing of interests and leaves no room for regulation—

Nos. 17-1300 & 17-1325 11

complementary or otherwise—by subnational units of gov-

ernment. See United Auto., 842 F.3d at 421 (“While Hardin

County maintains that its ordinance regulation of dues

checkoff provisions does not actually conflict with that of the

LMRA [Labor Management Relations Act], the fact remains

that the activity is subject to regulation under the LMRA. Al-

lowing dual regulation under federal and state law would un-

dermine Congress’s purposes and contravene field preemp-

tion.”); SeaPAK v. Indus., Technical & Prof’l Emps., Div. of Nat’l

Mar. Union, 300 F. Supp. 1197, 1200 (S.D. Ga. 1969), summarily

aff’d 423 F.2d 1229 (5th Cir. 1970).

We conclude, therefore, that the Ordinance’s provisions

invade territory occupied by federal law. Lincolnshire can

prevail only if we accept the argument that section 14(b) au-

thorizes not just states, but also any of a state’s political sub-

divisions, to override the background federal rules in any of

the three ways set forth in the Ordinance.

III

Our starting point is the language of the statute. The Taft-

Hartley Act added section 14(b) to the NLRA in 1947. See Pub.

L. No. 86-257, Title VII, § 701(a). That provision reads as fol-

lows:

(b) Agreements requiring union membership in vio-

lation of State law

Nothing in this subchapter shall be construed as au-

thorizing the execution or application of agreements

requiring membership in a labor organization as a con-

dition of employment in any State or Territory in

12 Nos. 17-1300 & 17-1325

which such execution or application is prohibited by

State or Territorial law.

29 U.S.C. § 164(b). Section 14(b) is the exclusive source of

states’ authority to pass right-to-work laws. Mobil Oil Corp.,

426 U.S. at 413 n.7. Thus, this case does not turn on whether

states—as a domestic matter—may delegate some or all of

their own powers to localities. Rather, it depends on whether,

as a matter of statutory interpretation, Congress meant to in-

clude local laws when it referred to “State or Territorial law.”

The only serious issue before us relates to the agency-shop

aspect of the Ordinance. As the Sixth Circuit recognized, sec-

tion 14(b) does not authorize any government—state or lo-

cal—to restrict the use of hiring halls or checkoffs. United

Auto., 842 F.3d at 421–22. We noted the same thing in Sweeney

when we observed that section 14(b) “applies to post-hiring

union security arrangements,” not to “pre-hiring practices”

such as the use of hiring halls. 767 F.3d at 663 n.8. As we ex-

plained in Sweeney, using a hiring hall does “not require pro-

spective employees to do anything more than temporarily

visit union facilities during the hiring process.” Id. The appli-

cant need not make any continuing commitment to the union

if and when he secures employment. Other circuits to con-

sider the issue have come to the same conclusion. Simms v.

Local 1752, Int’l Longshoremen Ass’n, 838 F.3d 613, 618–20

(5th Cir. 2016); Kunco, Inc., 472 F.2d at 458–59; United Auto.,

842 F.3d at 421–22; Tom Joyce Floors, Inc., 353 F.2d at 771.

Checkoff provisions, though they govern relationships

with the union after hiring, are also different from “member-

ship” within the meaning of section 14(b). They do not, in and

of themselves, require employees either to join unions or to

make any payments to them. Rather, they facilitate payments

Nos. 17-1300 & 17-1325 13

once employees have themselves made the decision to con-

tribute to a union or to accept a job requiring that contribu-

tion. To state the matter differently, filling out a checkoff form

does not determine union membership either way: “The dues

checkoff section of the [Taft-Hartley] Act … far from being a

union security provision, seems designed as a provision for

administrative convenience in the collection of union dues.

An employee could revoke the dues deduction authorization,

and yet continue to pay dues personally.” NLRB v. Atlanta

Printing Specialties & Paper Prods. Union 527, 523 F.2d 783, 786

(5th Cir. 1975). In short, checkoff provisions do not compel

workers to pay anything. They thus do not constitute “agree-

ments requiring membership in a labor organization” as un-

derstood by this court in Sweeney. 767 F.3d at 660–61. Here,

too, the circuits are in agreement. NLRB v. Shen-Mar Food

Prods., Inc., 557 F.2d 396, 399 (4th Cir. 1977); see also United

Auto., 842 F.3d at 421–22; Atlanta Printing Specialties & Paper

Prods. Union 527, 523 F.2d at 786.

This takes us to the central question on appeal: does sec-

tion 14(b) permit a state to delegate to some or all of its subdi-

visions the power to ban agency shops at the local level? A

devotee of the “plain language” approach to statutory inter-

pretation might think that the answer to this question must be

“no,” because nothing in the language of section 14(b) refers

to local legislation: it speaks exclusively of “State or Territo-

rial law.” To state the obvious, municipalities are not states,

and municipal law applies only within the regulating munic-

ipality, varying from place to place. And indeed, Congress

sometimes calls out political subdivisions by name. For exam-

ple, the NLRA defines “employer” to exclude “any State or

political subdivision thereof.” 29 U.S.C. § 152(2). Elsewhere,

the Act authorizes the director of the NLRB to “establish

14 Nos. 17-1300 & 17-1325

suitable procedures for cooperation with State and local me-

diation agencies.” 29 U.S.C. § 172(c). See Dep’t of Homeland Sec.

v. MacLean, 135 S. Ct. 913, 919 (2015) (word “law” did not in-

clude regulations in statutory section that did not mention

“rules” or “regulations,” unlike other parts of the same law).

But Congress sometimes allows states to entrust matters

arising under federal laws to lower levels of government

without saying anything on the subject. In the field of anti-

trust, for instance, the Supreme Court has concluded that the

Sherman Act does not displace clearly established and ac-

tively supervised state regulations of economic activity. See

Parker v. Brown, 317 U.S. 341 (1943). But Parker does not insist

that qualifying legislation comes exclusively at the state level.

To the contrary, as cases such as Town of Hallie v. City of Eau

Claire, 471 U.S. 34 (1985), demonstrate, certain municipal leg-

islation also qualifies (with a few tweaks not pertinent here).

We prefer, therefore, not to rely on the literal terms of the

statute here. Labor law is one of the rare areas in which Con-

gress has preempted the field, and so states have no power in

the area except with respect to their own employees. True,

section 14(b) cedes some power back to the states, but it makes

no sense to say that states can re-delegate that power. As we

explain in more detail below, no one would be able to figure

out what is legal and what is not. The situation with Medicaid

is similar: states have the power to choose whether to opt into

Medicaid, but that power must be exercised by the state as a

whole and cannot be redelegated. See 42 U.S.C. § 1396a(a)(1)

(state plan for medical assistance must be in effect in all polit-

ical subdivisions of the state and be mandatory in them).

Construed the way the Village would have it, the Ordi-

nance would put employers in and around the Village in an

Nos. 17-1300 & 17-1325 15

impossible position. An employer with offices within the Vil-

lage whose workers’ predominant job situs is outside the Vil-

lage in a jurisdiction without a comparable law would risk

committing an unfair labor practice if it refused to bargain over

an agency-shop provision. The same employer would risk

civil or criminal penalties if it misjudged “predominant” job

situs and did bargain over an agency-shop rule, if most of its

work was done within the Village. Over what period should

the employer make this assessment: a week? a month? a year?

The employer’s duty to bargain or prohibition on bargaining

might shift from day to day, or month to month, or job to job.

Construing section 14(b) to permit re-delegation would

create other administrative nightmares as well. There were

38,910 general purpose governments in the United States in

2012, and more than 90,000 general and special-purpose gov-

ernments combined. Carma Hogue, Government Organization

Summary Report: 2012, U.S. CENSUS BUREAU 1 (2013),

https://www.census.gov/content/dam/Census/library/publi-

cations/2013/econ/g12-cg-org.pdf, as compared to just 50

states and a handful of territories. Illinois alone has almost

7,000 local governments. Id. Not only are these jurisdictions

more numerous than the states by several orders of magni-

tude, but they are also smaller. In many trades or industries,

the job sites of workers might bring them to numerous mu-

nicipalities every week. Even a single plant might cross mu-

nicipal lines. Lincolnshire, as of the 2010 Census, had a popu-

lation of 7,275 people, and covered an area of 4.68 square

miles in Lake County, Illinois. The idea that businesses oper-

ate exclusively within its borders strikes us as fanciful. Is an

employee subject to an agency agreement one day, when his

job takes him to nearby Chicago, and not the next day, when

he happens to be working on-site in Lincolnshire? What if

16 Nos. 17-1300 & 17-1325

neighboring Buffalo Grove has the opposite law? The sensible

conclusion is that section 14(b) operates only at the state level.

This reveals another problem with the Ordinance. It does

not limit its effect to employees whose primary work situs is

in the Village, as required by Mobil Oil. That case, as we noted

earlier, held that “under § 14(b), right-to-work laws cannot

void agreements permitted by § 8(a)(3) when the situs at

which all the employees covered by the agreement perform

most of their work is located outside of a State having such

laws.” 426 U.S. at 414. There is no reason why this principle

would not apply to political subdivisions.

Lincolnshire responds that employers already must com-

ply with separate state laws, so why assume that they could

not do the same with municipal laws? The answer is simple:

at some point a difference in degree becomes a difference in

kind. Complying with 7,000 different laws in Illinois alone is

quite different from making border adjustments between Illi-

nois and Indiana, two states with different policies governing

agency shops. It would be impossible as a practical matter for

a collective bargaining agreement to account for each jurisdic-

tion’s ordinances. Could an employer be held liable for com-

mitting an unfair labor practice for refusing to engage in a

separate round of horse-trading with workers in each locale?

Has a Lincolnshire employer who just landed a lucrative con-

tract in Chicago committed a criminal violation in Lincoln-

shire because it has agreed to join a multi-employer bargain-

ing unit with an agency-shop rule that is legal at the work si-

tus? As a practical matter, would bargaining units be limited

to individual municipalities? What happens to employees

who move regularly between job sites? Is a manufacturer pre-

cluded from shifting its employees between assembly lines if

Nos. 17-1300 & 17-1325 17

they would cross into a different municipality’s right-to-work

régime?

Permitting local legislation under section 14(b) threatens

“a crazy-quilt of regulations.” The “consequence of such di-

versity for both employers and unions would be to subject a

single collective bargaining relationship to numerous regula-

tory schemes thereby creating an administrative burden and

an incentive to abandon union security agreements.”

New Mexico Fed’n of Labor, United Food & Commercial Workers

Union Local 1564 v. City of Clovis, 735 F. Supp. 999, 1002–03

(D.N.M. 1990).

Interpreting the words “State or Territory” in section 14(b)

to permit delegation to local units of government would thus

do violence to the broad structure of labor law—a law that

places great weight on uniformity. Construing the words

“State or Territory” to preclude delegation assures that only a

limited number of these conflicts exists. It avoids adding an

onerous and ever-shifting new factual layer to the inquiry.

Similarly, it avoids introducing a new legal inquiry into the

mix: did the locality have the authority to pass the ordinance

in question as a matter of state law? Some units of local gov-

ernment have home-rule authority, others do not; some are

special-purpose, others are general-purpose. The variations

both within states and from state to state are endless.

The consequences for the uniformity of national labor law

would be catastrophic. The Supreme Court has said that Con-

gress enacted the NLRA to create national uniformity in labor

law, NLRB v. Nash–Finch Co., 404 U.S. 138, 144 (1971) (quoting

Garner v. Teamsters, Chauffeurs & Helpers Local Union, 346 U.S.

485, 490 (1953)); see also Cannon v. Edgar, 33 F.3d 880, 883 (7th

Cir. 1994), and to minimize industrial strife, see NLRB v. Jones

18 Nos. 17-1300 & 17-1325

& Laughlin Steel Corp., 301 U.S. 1, 41, 45 (1937). While section

14(b) represents a decision that some variation at the state and

territorial level is acceptable, that does not mean that national

uniformity itself has been abandoned as a goal. Notably,

while the parties cite extensively to the legislative history of

the Wagner and Taft-Hartley Acts, the congressional debates’

repeated references to safeguarding state authority contain no

mention of local autonomy.

Against these concerns, the Sixth Circuit, in United Auto.,

and Lincolnshire offer in support of the possibility of delega-

tion under section 14(b) two decisions from the Supreme

Court in other areas of law, Wisconsin Public Intervenor v.

Mortier, 501 U.S. 597 (1991), and City of Columbus v. Ours Gar-

age & Wrecker Service, Inc., 536 U.S. 424 (2002). Neither Mortier

nor Ours Garage, however, abandoned the principle that the

meaning of words in a statute “depends upon the character

and aim of the specific provision involved.” District of Colum-

bia v. Carter, 409 U.S. 418, 420 (1973) (holding that same

phrase, “State or Territory,” encompasses the District of Co-

lumbia when used in 42 U.S.C. § 1982 but excludes the District

when used in the context of a prior version of 42 U.S.C. § 1983,

id. at 421–32).

Mortier concerned the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. At that time,

FIFRA stated that “[a] State may regulate the sale or use of

any federally registered pesticide or device in the State, but

only if and to the extent the regulation does not permit any

sale or use prohibited by this subchapter.” 7 U.S.C. § 136v. It

expressly defined “State” to include states, the District of Co-

lumbia, and various U.S. territories, without any mention of

subdivisions. Id. at § 136(aa). The Court noted, however, that

Nos. 17-1300 & 17-1325 19

nothing in either the statute or its legislative history suggested

preemption of local regulation. Mortier, 501 U.S. at 607–08,

611–12, 614–16. Indeed, it found clues in the statutory lan-

guage indicating that the exclusion of local authorities would

have created tensions within the Act:

[For example,] § 136f(b) requires manufacturers to pro-

duce records … upon the request of any employee of

the EPA “or of any State or political subdivision, duly

designated by the Administrator.” Section 136u(a)(1),

however, authorizes the Administrator to “delegate to

any State ... the authority to cooperate in the enforce-

ment of this [Act] through the use of its personnel.” If

the use of “State” in FIFRA impliedly excludes subdi-

visions, it is unclear why the one provision would al-

low the designation of local officials for enforcement

purposes while the other would prohibit local enforce-

ment authority altogether.

Mortier, 501 U.S. at 608–09 (emphasis added).

Mortier concluded that for FIFRA, the failure to mention

political subdivisions was not enough to support an inference

that Congress had forbidden all local regulation. This, as we

already have noted, contrasts sharply with the scope of the

NLRA and the Court’s consistent interpretation of it. Moreo-

ver, Mortier asked not whether the mention of “State” in sec-

tion 136v authorized localities to regulate matters otherwise

beyond their remit, but rather whether that word alone for-

bade them from exercising such power. Id. at 614. In other

words, the first question in Mortier was whether FIFRA had

any preemptive effect at all. Federal statutes do not supersede

a state’s “historic police powers ... unless that was the clear

and manifest purpose of Congress,” id. at 605 (quoting Rice,

20 Nos. 17-1300 & 17-1325

331 U.S. at 230), and, as a baseline assumption, political sub-

divisions are understood as “components” of the state for

purposes of the police power. Id. at 608; see also id. at 607–08

(citing, inter alia, Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907)).

That is why the mere reference to states in section 136v gave

no reason to suspect that Congress implicitly intended to sup-

plant local regulation—let alone that this silence was a clear

and manifest statement of such a purpose.

Mortier did suggest that the Supreme Court would still

have concluded that section 136v affirmatively authorized the

delegation to local governments of the authority to imple-

ment FIFRA (an environmental law regulating pesticide use).

The ability to regulate noxious substances has been part of the

police power since time out of mind. The Supreme Court as-

sumes that “the historic police powers of the States” are not

to be superseded by federal law unless that was “the clear and

manifest purpose of Congress.” Altria Group, Inc. v. Good,

555 U.S. 70, 77 (2008). The Court found no such purpose in

Mortier. The federal labor laws, as we already have explained,

are a different matter altogether. As the Kentucky Court of

Appeals indicated, 391 S.W. 2d at 362, we should construe ex-

ceptions to the NLRA carefully, with an eye both to the scope

of the exception and to its effect on the remainder of the law.

Ours Garage is also distinguishable. There an express

preemption provision in the Interstate Commerce Act gener-

ally forbade “a State, political subdivision of a State, or polit-

ical authority of 2 or more States” to adopt regulations “re-

lated to a price, route, or service of any motor carrier … with

respect to the transportation of property.” 49 U.S.C.

§ 14501(c)(1). The law said, however, that it would not “re-

strict the safety regulatory authority of a State with respect to

Nos. 17-1300 & 17-1325 21

motor vehicles.” Id. at § 14501(c)(2)(A). Despite the omission

of any reference to political subdivisions in the latter clause,

the Supreme Court held that states could delegate their pre-

served authority to localities. Ours Garage, 536 U.S. at 428–29.

As the Court wrote, “[a]bsent a clear statement to the con-

trary, Congress’ reference to the ‘regulatory authority of a

State’ should be read to preserve, not preempt, the traditional

prerogative of the States to delegate their authority to their

constituent parts.” Id. at 429.

Ours Garage acknowledged that it presented a “closer call”

than was the case in Mortier. Id. at 433. The general preemp-

tion provision (49 U.S.C. § 14501(c)(1)) “explicitly

preempt[ed] regulation both by a State and by a political sub-

division of a State.” Id. Yet there were other parts of the statute

that said nothing about political subdivisions. The Court con-

cluded as follows:

We acknowledge that § 14501(c)’s disparate inclu-

sion [and] exclusion of the words “political subdivi-

sions” support an argument of some force, one that

could not have been made in Mortier. Nevertheless,

reading § 14501(c)’s set of exceptions in combination,

and with a view to the basic tenets of our federal sys-

tem pivotal in Mortier, we conclude that the statute

does not provide the requisite clear and manifest indi-

cation that Congress sought to supplant local author-

ity.

536 U.S. at 434 (internal quotation marks omitted).

Ours Garage, like Mortier, concerned the scope of an ex-

press preemption provision and therefore (as the excerpt

above shows) was governed by the rule that the Court

22 Nos. 17-1300 & 17-1325

requires a “clear and manifest indication that Congress

sought to supplant local authority.” Id. Section 14(b) plays a

different function. It is not the source of NLRA preemption;

rather, it is an exception to the general preemption established

in the Act for the field of labor relations. The question is only

how much subnational authority does section 14(b) restore.

Ours Garage depended heavily on an extensive contextual

analysis that looked to other parts of section 14501(c)—provi-

sions that have no corollary in the NLRA. E.g., Ours Garage,

536 U.S. at 434–36. It is also significant that Ours Garage con-

cerned a local safety regulation, which is the type of law that

raises concerns about undue interference with the states’ po-

lice power. Id. at 437, 438. Although states once used their po-

lice powers to enact sweeping anti-labor laws, for nearly a

century the regulation of unions has rested with the federal,

rather than state, government. Finally, the Court emphasized

that the Interstate Commerce Act primarily concerned itself

with economic regulation, while the local ordinance ad-

dressed traditional safety concerns. Id. at 440–42. Municipali-

ties could legislate on the latter topic without directly offend-

ing the statute’s central goals. In contrast, Lincolnshire’s reg-

ulation addresses collective bargaining head-on—the central

concern of the NLRA.

Lincolnshire finally argues that, because local govern-

ments are creatures of the state, they can always exercise under

federal law any powers Congress has given to the state, if the

state in turn has delegated those powers to its subdivisions.

Hunter, 207 U.S. at 178. As we already have pointed out, how-

ever, the rule is more nuanced: sometimes Congress allows

redelegation, as in Mortier, Ours Garage, and Parker, and some-

times it does not, as in the Medicaid example we gave. The

Nos. 17-1300 & 17-1325 23

aspect of labor law governed by section 14(b) of the NLRA,

we conclude, falls in the latter category.

IV

We thus agree with the unions that the district court cor-

rectly found preemption of the Ordinance with respect to all

three of the aspects at issue: the agency shop, the hiring hall,

and the dues checkoff. This disposes of Appeal No. 17-1300.

As we noted briefly at the outset, the unions filed a cross-ap-

peal, No. 17-1325, in which they sought damages under

42 U.S.C. § 1983 for Lincolnshire’s violation of their rights.

Such a claim is possible only if the unions were able to show

preemption under the Supreme Court’s Machinists decision,

which recognizes that some state legislation is preempted be-

cause it interferes with Congress’s intention that the conduct

involved be left to the “free play of economic forces.” Int’l

Ass’n of Machinists & Aerospace Workers v. Wis. Employment Re-

lations Comm’n, 427 U.S. 132, 140–41 (1976) (internal quotation

marks omitted). Garmon preemption, in contrast, addresses

the problem of state regulation that would interfere with the

primary jurisdiction of the National Labor Relations Board.

Id. at 138. It does not involve the kind of personal right that

would support a claim under section 1983.

We conclude that the union’s attempt to bring a Machinists

claim comes too late. In the district court, the unions’ brief in

support of their own motion for summary judgment made no

mention of section 1983. While a page of their brief in opposi-

tion to Lincolnshire’s competing motion did touch on the sub-

ject, it mentioned neither Garmon nor Machinist preemption

and thus made no evident effort to situate the claim in the lat-

ter camp. “[A] party [that] fails to adequately present an issue

to the district court has waived the issue for purposes of

24 Nos. 17-1300 & 17-1325

appeal … even though the issue may have been before the dis-

trict court in more general terms.” Fednav Int’l Ltd. v. Cont’l

Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). We cannot say that

the unions fairly presented their position to the district court.

Nor can we fault the district court for failing to anticipate the

unions’ arguments for why Machinist preemption applies. We

thus see no reason to disturb the district court’s judgment in

this respect either on the merits or with regard to attorneys’

fees.

V

Section 14(b) of the NLRA does not permit local govern-

ments on their own authority to ban agency-shop, hiring hall,

or checkoff agreements. In the absence of an applicable state

law with respect to the agency-shop, as here, all three

measures are preempted by federal law. Finally, the unions

failed to properly preserve their claim under section 1983, and

so the district court did not err by dismissing it. We therefore

AFFIRM the judgment of the district court.