Petition for Writ of Certiorari — Village of Lincolnshire, Illinois, et al., Petitioners v. International Union of Operating Engineers Local 399, et al.

APPENDIX

1a

APPENDIX A

UNITED STATES COURT OF APPEALS,

SEVENTH CIRCUIT

_____________________

INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL 399, et al.,

Plaintiffs-Appellees, Cross-Appellants,

v.

VILLAGE OF LINCOLNSHIRE, et al.,

Defendants-Appellants, Cross-Appellees.

_____________________

Nos. 17-1300, 17-1325

_____________________

ARGUED MARCH 27, 2018

DECIDED SEPTEMBER 28, 2018

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

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

_____________________

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-

2a

labor relations. The question before us in this case is

whether a municipality—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 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 union

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 statewide 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. Hardin 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 duescheckoff provisions 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

legislation 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

3a

(Ky. Ct. App. 1965).1 With all due respect to our sister

circuit, on the union-security clause issue we find

ourselves persuaded by the position that Kentucky

took, although our reasons differ somewhat.2 We

agree with both courts that localities may not address

the subjects of hiring halls or dues checkoffs. We thus

conclude that the authority 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 without force.

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.

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

which requires 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 Supreme 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 create 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 active service wished to hear this

case en banc. Judge Flaum did not participate in consideration

of this hearing en banc.

4a

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 requirement that

workers join a union, compensate a union financially,

or make payments to third parties in lieu of such

contributions. Section 4(B)–(D). Section 4 also bars

any requirement that employees “be recommended,

approved, referred, or cleared for employment by or

through a labor organization.” Section 4(E). Finally,

section 5 prohibits employers 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

written notice.” Section 5. The Ordinance provides

both civil remedies 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 Ordinance 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

5a

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, 110 S.Ct. 444, 107

L.Ed.2d 420 (1989).

Relying on that ruling, it

prevented the unions from claiming attorney’s fees

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., –––

U.S. ––––, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471

(2015), a plaintiff may “sue to enjoin unconstitutional

actions by state and federal officers” 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.

6a

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 preclude enforcement of state laws on the same

subject”; and when state laws conflict with federal law,

either because compliance with both is a physical

impossibility, or because “the challenged state law

stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.” Arizona v. United States, 567 U.S. 387,

399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (internal

quotation marks and citations omitted); see Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.

1146, 91 L.Ed. 1447 (1947).

The first of these possibilities is usually called field

preemption, and we begin there. The Supreme Court

has confirmed 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, 79 S.Ct.

773, 3 L.Ed.2d 775 (1959). The negotiation and

adoption of the types of provisions at issue here—

union-security clauses, hiring-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, 91 S.Ct. 1909, 29

L.Ed.2d 473 (1971); see also id. at 296, 91 S.Ct. 1909

7a

(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, 96 S.Ct. 2140, 48

L.Ed.2d 736 (1976).

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

practice, 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 section 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 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 union-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 federal law … [s]ection 14(b) allows a

State or Territory to ban agreements “requiring

8a

membership in a labor organization 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 directions to give

the right of way to state laws … .”

Mobil Oil Corp., 426 U.S. at 416–17, 96 S.Ct. 2140

(quoting Retail Clerks Int’l Ass’n, Local 1625 v.

Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11

L.Ed.2d 179 (1963) ) (alteration in original). The

question before the Court in Mobil Oil was whether

Texas’s right-to-work laws could override an agencyshop 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, 96 S.Ct. 2140. The Court concluded that Texas

law did not reach this far and that “predominant 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, 96

S.Ct. 2140. 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. 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 unionsecurity agreement 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, 83 S.Ct. 1453, 10

L.Ed.2d 670 (1963); Atlas Metal Parts Co., Inc. v.

9a

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, 98 S.Ct. 2505, 57 L.Ed.2d 428 (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. Perhaps 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 forbidding 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

matter of federal law section 14(b) authorizes political

subdivisions to act in this area.

A local union-security provision would seriously

undermine the objectives of the NLRA in any state

that has not taken advantage of section 14(b) to forbid

agency shops. The NLRA “favors permitting [unionsecurity] 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, 96 S.Ct. 2140. It does this in

part to avoid free-riding. Id. at 416, 96 S.Ct. 2140.

Recognition of this aim has motivated the Supreme

10a

Court to monitor carefully the scope of states’

authority to override that policy. See id. at 420, 96 S.

S.Ct. 2140 (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

employment 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, 97

S.Ct. 1056, 51 L.Ed.2d 338 (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, 81 S.Ct. 835, 6 L.Ed.2d 11 (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). The use of hiring-

11a

halls routinely has been treated as a mandatory

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 unions and employers to choose

between complying with national or municipal law

and thus creates an actual conflict.

Finally, Lincolnshire’s dues-check-off 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, 79 S.Ct. 773. In this respect

too the Lincolnshire Ordinance threatens an actual

conflict with federal law: it permits 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 regulates 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.

12a

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

balancing of interests and leaves no room for

regulation—complementary

or

otherwise—by

subnational units of government. 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. Allowing dual regulation under federal and

state law would undermine Congress’s purposes and

contravene field preemption.”); 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) authorizes not just states,

but also any of a state’s political subdivisions, 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 follows:

(b) Agreements

requiring

union

membership in violation of State law

Nothing in this subchapter shall be construed as

authorizing the execution or application of

agreements requiring membership in a labor

organization as a condition of employment in any

13a

State or Territory in 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, 96 S.Ct. 2140.

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 include 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, section 14(b) does not authorize

any government—state or local—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 explained in Sweeney, using a hiring

hall does “not require prospective employees to do

anything more than temporarily visit union facilities

during the hiring process.” Id. The applicant need not

make any continuing commitment to the union if and

when he secures employment. Other circuits to

consider 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.

14a

Checkoff

provisions,

though

they

govern

relationships with the union after hiring, are also

different from “membership” 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

once employees have themselves made the decision to

contribute to a union or to accept a job requiring that

contribution. 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

“agreements requiring membership in a labor

organization” as understood 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

section 14(b) permit a state to delegate to some or all

of its subdivisions the power to ban agency shops at

the local level? A devotee of the “plain language”

approach to statutory interpretation might think that

the answer to this question must be “no,” because

nothing in the language of section 14(b) refers to local

15a

legislation:

it speaks exclusively of “State or

Territorial law.” To state the obvious, municipalities

are not states, and municipal law applies only within

the regulating municipality, varying from place to

place. And indeed, Congress sometimes calls out

political subdivisions by name. For example, 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 suitable procedures for

cooperation with State and local mediation agencies.”

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

MacLean, ––– U.S. ––––, 135 S.Ct. 913, 919, 190

L.Ed.2d 771 (2015) (word “law” did not include

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 actively supervised

state regulations of economic activity. See Parker v.

Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (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, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985),

demonstrate, certain municipal legislation 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 Congress has preempted the field, and so

16a

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 political

sub-divisions of the state and be mandatory in them).

Construed the way the Village would have it, the

Ordinance would put employers in and around the

Village in an impossible position. An employer with

offices within the Village whose workers’ predominant

job situs is outside the Village in a jurisdiction without

a comparable law would risk committing an unfair

labor practice if it refused to bargain over an agencyshop 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 governments combined.

Carma Hogue, Government Organization Summary

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

17a

https://www.census.gov/content/dam/

Census/library/publications/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

magnitude, but they are also smaller. In many trades

or industries, the job sites of workers might bring

them to numerous municipalities every week. Even a

single plant might cross municipal lines. Lincolnshire,

as of the 2010 Census, had a population of 7,275

people, and covered an area of 4.68 square miles in

Lake County, Illinois. The idea that businesses

operate 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 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, 96 S.Ct. 2140. There is no

reason why this principle would not apply to political

subdivisions.

Lincolnshire responds that employers already must

comply with separate state laws, so why assume that

18a

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 Illinois 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 jurisdiction’s ordinances. Could an

employer be held liable for committing 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

contract in Chicago committed a criminal violation in

Lincolnshire because it has agreed to join a multiemployer bargaining unit with an agency-shop rule

that is legal at the work situs? 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

precluded from shifting its employees between

assembly lines if they would cross into a different

municipality’s right-to-work regime?

Permitting local legislation under section 14(b)

threatens “a crazy-quilt of regulations.”

The

“consequence of such diversity for both employers and

unions would be to subject a single collective

bargaining relationship to numerous regulatory

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).

19a

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 government have

home-rule authority, others do not; some are specialpurpose, 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 Congress enacted the NLRA to create

national uniformity in labor law, NLRB v. Nash–Finch

Co., 404 U.S. 138, 144, 92 S.Ct. 373, 30 L.Ed.2d 328

(1971) (quoting Garner v. Teamsters, Chauffeurs &

Helpers Local Union, 346 U.S. 485, 490, 74 S.Ct. 161,

98 L.Ed. 228 (1953) ); see also Cannon v. Edgar, 33

F.3d 880, 883 (7th Cir. 1994), and to minimize

industrial strife, see NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 41, 45, 57 S.Ct. 615, 81 L.Ed. 893

(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

20a

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 delegation under section 14(b) two

decisions from the Supreme Court in other areas of

law, Wisconsin Public Intervenor v. Mortier, 501 U.S.

597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), and City

of Columbus v. Ours Garage & Wrecker Service, Inc.,

536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (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 Columbia v.

Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 34 L.Ed.2d 613

(1973) (holding that same phrase, “State or Territory,”

encompasses the District of Columbia 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, 93 S.Ct. 602).

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 Columbia, and various U.S. territories, without any

mention of subdivisions. Id. at § 136(aa). The Court

noted, however, that 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, 111 S.Ct. 2476. Indeed, it found clues in the

21a

statutory language indicating that the exclusion of

local authorities would have created tensions within

the Act:

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

to produce 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

enforcement of this [Act] through the use of its

personnel.” If the use of “State” in FIFRA

impliedly excludes subdivisions, it is unclear why

the one provision would allow the designation of

local officials for enforcement purposes while the

other would prohibit local enforcement authority

altogether.

Mortier, 501 U.S. at 608–09, 111 S.Ct. 2476 (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. Moreover,

Mortier asked not whether the mention of “State” in

section 136v authorized localities to regulate matters

otherwise beyond their remit, but rather whether that

word alone forbade them from exercising such power.

Id. at 614, 111 S.Ct. 2476. 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

22a

that was the clear and manifest purpose of Congress,”

id. at 605, 111 S.Ct. 2476 (quoting Rice, 331 U.S. at

230, 67 S.Ct. 1146), and, as a baseline assumption,

political subdivisions are understood as “components”

of the state for purposes of the police power. Id. at 608,

111 S.Ct. 2476; see also id. at 607–08, 111 S.Ct. 2476

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

178, 28 S.Ct. 40, 52 L.Ed. 151 (1907)). That is why the

mere reference to states in section 136v gave no reason

to suspect that Congress implicitly intended to

supplant 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 implement 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 assumes

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, 129 S.Ct. 538, 172

L.Ed.2d 398 (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 exceptions 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 generally forbade “a State, political

subdivision of a State, or political authority of 2 or

23a

more States” to adopt regulations “related 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

“restrict the safety regulatory authority of a State with

respect to 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 preserved

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

29, 122 S.Ct. 2226. As the Court wrote, “[a]bsent a

clear statement to the contrary, 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, 122 S.Ct. 2226.

Ours Garage acknowledged that it presented a

“closer call” than was the case in Mortier. Id. at 433,

122 S.Ct. 2226. The general preemption provision (49

U.S.C.

§ 14501(c)(1))

“explicitly

preempt[ed]

regulation both by a State and by a political

subdivision of a State.” Id. Yet there were other parts

of the statute that said nothing about political

subdivisions. The Court concluded as follows:

We acknowledge that § 14501(c)’s disparate

inclusion [and] exclusion of the words “political

subdivisions” 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 system pivotal in

Mortier, we conclude that the statute does not

provide the requisite clear and manifest

24a

indication that Congress sought to supplant local

authority.

536 U.S. at 434, 122 S.Ct. 2226 (internal quotation

marks omitted).

Ours Garage, like Mortier, concerned the scope of an

express preemption provision and therefore (as the

excerpt above shows) was governed by the rule that

the Court 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)—provisions that have no corollary in

the NLRA. E.g., Ours Garage, 536 U.S. at 434–36, 122

S.Ct. 2226. It is also significant that Ours Garage

concerned a local safety regulation, which is the type

of law that raises concerns about undue interference

with the states’ police power. Id. at 437, 438, 122 S.Ct.

2226. Although states once used their police 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 addressed traditional safety

concerns.

Id. at 440–42, 122 S.Ct. 2226.

Municipalities could legislate on the latter topic

without directly offending the statute’s central goals.

In contrast, Lincolnshire’s regulation addresses

25a

collective bargaining head-on—the central concern of

the NLRA.

Lincolnshire finally argues that, because local

governments 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, 28 S.Ct. 40. As we already have

pointed out, however, the rule is more nuanced:

sometimes Congress allows redelegation, as in

Mortier, Ours Garage, and Parker, and sometimes it

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

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 correctly 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-appeal,

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 because 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

Relations Comm’n, 427 U.S. 132, 140–41, 96 S.Ct.

2548, 49 L.Ed.2d 396 (1976) (internal quotation marks

omitted). Garmon preemption, in contrast, addresses

26a

the problem of state regulation that would interfere

with the primary jurisdiction of the National Labor

Relations Board. Id. at 138, 96 S.Ct. 2548. 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 opposition to

Lincolnshire’s competing motion did touch on the

subject, it mentioned neither Garmon nor Machinists

preemption and thus made no evident effort to situate

the claim in the latter camp. “[A] party [that] fails to

adequately present an issue to the district court has

waived the issue for purposes of appeal … even though

the issue may have been before the district court in

more general terms.” Fed-nav 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

Machinists 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

governments on their own authority to ban agencyshop, 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,

27a

and so the district court did not err by dismissing it.

We therefore AFFIRM the judgment of the district

court.

28a

APPENDIX B

UNITED STATES DISTRICT COURT,

N.D. 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,

v.

VILLAGE OF LINCOLNSHIRE, ILLINOIS;

Peter Kinsey, Chief of Police; Elizabeth Brandt,

Mayor; and Barbara Mastandrea, Village Clerk,

Defendants.

_____________________

Case No. 16 C 2395

Signed 01/07/2017

_____________________

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In December 2015, the Village of Lincolnshire

adopted an ordinance that imposed new restrictions on

29a

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

30a

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 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. 15–3389–116. Pls.’

Opening Br. at 1. In relevant part, the ordinance

provides:

31a

SECTION 4:

RIGHTS

GUARANTEE OF EMPLOYEE

No person covered by the NLRA shall be

required as a condition of employment or

continuation of employment with a privatesector 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.

SECTION 5:

PROTECTED

VOLUNTARY

DEDUCTIONS

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

32a

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 provisions of the Lincolnshire

33a

ordinance are preempted by federal law and that the

Unions are entitled to judgment on the merits.

Lincolnshire1 has cross-moved 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. Imple ment 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

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.

34a

defendant, and (3) that is likely to be redressed by a

favorable judicial decision.’’ Id. at 587–88 (citing

Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540,

1547, 194 L.Ed.2d 635 (2016)). In response to a motion

for 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,

AFL–CIO v. Mobil Oil Corp., 426 U.S. 407, 96 S.Ct.

2140, 48 L.Ed.2d 736 (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

35a

whose ‘‘predominant job situs’’ is located within the

jurisdiction that passed the ordinance. Id. at 412–14,

96 S.Ct. 2140. 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.

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

36a

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 Agreement, which contains

a union security clause, a hiring hall provision, and a

check-off 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

37a

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 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.

38a

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 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, 96 S.Ct.

2140.

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

39a

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

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

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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.

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.

41a

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, 110 S.Ct. 444, 107

L.Ed.2d 420 (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, 128 S.Ct. 2408, 171 L.Ed.2d

264 (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, 110 S.Ct.

444. 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 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

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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, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994)

(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 are preempted by the

NLRA. Compl. ¶¶ 32–37. They contend that the

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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, 106

S.Ct. 1057, 89 L.Ed.2d 223 (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, 96 S.Ct. 2140;

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

44a

of Illinois had adopted a statute enacting the same

provisions at issue in count 1, the provisions would not

be 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, 111 S.Ct. 2476, 115

L.Ed.2d 532 (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, 111 S.Ct. 2476 (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

45a

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 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

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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, 84 S.Ct. 219, 11 L.Ed.2d 179 (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 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, 84 S.Ct. 219. 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, 84 S.Ct. 219 (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, 84 S.Ct. 219, in light of the purpose of ‘‘avoid[ing]

federal interference with state laws in this field,’’ id. at

102, 84 S.Ct. 219 (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.

47a

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 unionsecurity agreements are valid as a matter of federal

law.’’ Mobil Oil, 426 U.S. at 417, 96 S.Ct. 2140.

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 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, 96

48a

S.Ct. 2140. 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 or device in the State.’’ Mortier, 501 U.S. at

606, 111 S.Ct. 2476 (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, 111 S.Ct. 2476. 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, 111 S.Ct. 2476.

As discussed above, Congress—in adopting the

NLRA—intended to create a federal policy in favor of

union security agreements and otherwise preempt the

49a

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, 111

S.Ct. 2476 (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, 122

S.Ct. 2226, 153 L.Ed.2d 430 (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, 122 S.Ct. 2226 (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 section 14501(c)(2) to permit local

exercise of safety regulatory authority. Id. at 439–40,

122 S.Ct. 2226. 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,

122 S.Ct. 2226. The Court then determined that the

purpose of the Interstate Commerce Act—to preempt

economic regulation—does not conflict with the

50a

statute’s exception for state safety regulation. See id.

at 441, 122 S.Ct. 2226.

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, 96 S.Ct.

2140; 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,

96 S.Ct. 2140. 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 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

51a

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

52a

security agreements, Local 150 would still be entitled

to summary judgment on count 2.

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, 96 S.Ct. 2140. 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.

53a

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

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

54a

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, 84 S.Ct. 219. 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, 84 S.Ct. 219. 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 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 checkoff 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

55a

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 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.

56a

APPENDIX C

29 U.S.C. § 158. Unfair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer—

...

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of

employment to encourage or discourage

membership in any labor organization: Provided,

That nothing in this subchapter, or in any other

statute of the United States, shall preclude an

employer from making an agreement with a labor

organization (not established, maintained, or

assisted by any action defined in this subsection

as an unfair labor practice) to require as a

condition of employment membership therein on

or after the thirtieth day following the beginning

of such employment or the effective date of such

agreement, whichever is the later, (i) if such labor

organization is the representative of the

employees as provided in section 159(a) of this

title, in the appropriate collective-bargaining unit

covered by such agreement when made, and (ii)

unless following an election held as provided in

section 159(e) of this title within one year

preceding the effective date of such agreement, the

Board shall have certified that at least a majority

of the employees eligible to vote in such election

have voted to rescind the authority of such labor

57a

organization to make such an agreement:

Provided further, That no employer shall justify

any discrimination against an employee for

nonmembership in a labor organization (A) if he

has reasonable grounds for believing that such

membership was not available to the employee on

the same terms and conditions generally

applicable to other members, or (B) if he has

reasonable grounds for believing that membership

was denied or terminated for reasons other than

the failure of the employee to tender the periodic

dues and the initiation fees uniformly required as

a condition of acquiring or retaining membership;

...

...

29 U.S.C. § 164. Construction of provisions

...

(b) Agreements requiring union membership in

violation of State law

Nothing in this subchapter shall 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.

...

58a

APPENDIX D

ORDINANCE NO. 15-3389-116

VILLAGE OF LINCOLNSHIRE, ILLINOIS

AN ORDINANCE ON ECONOMIC DEVELOPMENT

AND WORKER EMPOWERMENT BY

REGULATION OF INVOLUNTARY PAYROLL

DEDUCTIONS FOR PRIVATE SECTOR WORKERS

IN THE VILLAGE OF LINCOLNSHIRE

***

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,

59a

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.

***