Prologue — Shannon v. 520 South Michigan Avenue Associates, Ltd. (No. 09-14)

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PETITION

FOR

WRIT OF

CERTIORARI

09-14 JUN29 2009

No. OFFICE OF THE CLERK

In the

Supreme Court of the United States

CATHERINE SHANNON, DIRECTOR OF THE ILLINOIS

DEPARTMENT OF LABOR, ET AL., PETITIONERS,

520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD.,

RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD G. MCCRACKEN

PAUL L. MORE

Davis Cowell & Bowe, LLP

595 Market St., Ste. 1400

San Francisco, California

94105

(415) 597-7200

WESLEY KENNEDY

N. ELIZABETH REYNOLDS

Allison Slutsky &

Kennedy PC

230 W. Monroe, Ste. 2600

Chicago, Illinois 60606

(312) 364-9400

LISA MADIGAN

Attorney General

of Illinois

MICHAEL A. SCODRO*

Solicitor General

JANE ELINOR NOTZ

Deputy Solicitor General

CARL J. ELITZ

Ass’t Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-3698

* Counsel of Record

Attorneys for Petitioners

nil

QUESTION PRESENTED

Whether, in conflict with other circuits and

decisions of this Court, the court of appeals incorrectly

held that a state statute cannot be a “minimum labor

standard”—and therefore cannot survive preemption by

the National Labor Relations Act, 29 U.S.C. §151 et

seq.—if the law is tailored to account for occupational

and regional differences or is “stringent” in its require-

ments.

RULE 14.1(b) STATEMENT

A list of all parties to the proceeding in the court

whose judgment is sought to be reviewed is as follows:

Defendant-Appellee/Petitioner: Catherine Shannon,

Director of the Illinois Department of Labor.

Intervenor-Appellee/Petitioner: UNITE HERE Local 1.

Plaintiff-Appellant/Respondent: 520 South Michigan

Avenue Associates, Ltd., d/b/a The Congress Plaza Hotel

& Convention Center.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....cccccccccnccenons i

FOULS 14.10) SLA TRIN ccc cee ences il

TABLES OF AUTIIURETIBS 2... cw cece eecsscns vi

PP UTM EIYY 5 occas enews eseekieevaeus 1

Per 6.65 os nek onset eee ees 2

CONSTITUTIONAL PROVISION AND

SEALE Ee PERV RIVED ow cece crews aes 2

piggy 9 0 by y+. Sarr ima ern ADs errr ene yr 3

ee ES 5 hs 0 eS a ORK e eae eee a)

REASONS FOR GRANTING THE PETITION ... 12

I. Courts Are Divided Over Whether

Targeted Minimum Labor Standards

Are Preempted By The NLRA .......... 13

Il. The Decision Below Is Incompatible

With Decisions Of This Court ......... . 23

III]. The Issue Presented Is One Of

Critical Importance, And The

Decision Below Casts Doubt On

Many Existing Workplace Protection

EMG. 56a. . OCRR SACRE ECR es 35

ee as eee gla Sma a ick Ie la

A. 520So. Mich. Ave. Assocs., Ltd., d/b/a

The Congress Plaza Hotel &

Convention Ctr. v. Shannon, 549 F.3d

RE Cr, ois ccc bs tcc vieees la

B. 520 So. Mich. Ave. Assocs., Ltd., d/b/a

The Congress Plaza Hotel &

Convention Ctr. v. Shannon,

No. 06 C 4552 (N.D. Ill. Sept. 17, 2007) . . 48a

C. 520 So. Mich. Ave. Assocs., Ltd., d/b/a

The Congress Plaza Hotel &

Conventicn Ctr. v. Shannon, No. 06 C

4552 (N.D. Ill. Apr. 20, 2009) (final

OUTENE Oe PD he ee ei ee cee seas 77a

D. 520 So. Mich. Ave. Assocs., Lid., d/b/a

The Congress Plaza Hotel &

Convention Ctr. v. Shannon, No. 06 C

4552 (N.D. Ill. Apr. 20, 2009) (order

denying injunctive relief) ............. 79a

E. 520 So. Mich. Ave. Assocs., Ltd., d/b/a

The Congress Plaza Hotel &

Convention Ctr. v. Shannon, No.

07-3377 (7th Cir. Jan. 28, 2009)

(order denying rehearingen banc) ..... 8la

F. The Room Attendant Amendment to

the Illinois One Day Rest in Seven

Act, 820 Ill. Comp. Stat. 140/3.1

(yO BER IERSISGE Caaf tani 9 eres ans Pa 82a

G. Ill. Hotel & Lodging Ass’n v. Ludwig,

869 N.E.2d 846 (Ill. App. Ct. 2007) .... 85a

TABLE OF AUTHORITIES

Page(s)

CONSTITUTIONAL PROVISIONS:

ee ee cebu a cieseaeéeees sre 2

Corpo Greet. Are. TT, 8 OGG . ww cc ccc ce ereens 41

CASES:

520 S. Mich. Ave. Assocs., Ltd., d/b/a The Congress

Plaza Hotel & Convention Ctr. v. Shannon,

549 F.3d 1119 (7th Cir. 2008) .......... passim

Associated Builders & Contractors of

S. Cal.,Inc. v. Nunn,

356 F.3d 979 (9th Cir. 2004) ....... 10-11, 15, 16

Barentine v. Ark.-Best Freight Sys., Inc.,

NE cs cv sce e ert eeneeess 25

Barnes v. Stone Container Corp..,

942 F.2d 689 (9th Cir. 1991) ............... 18

Bd. of Trs. of Carpenters Pension Fund for

N. Cal. v. Reyes, 688 F.2d 671

a SE er 21

Cal. Div. of Labor Standards Enforcement v.

Dillingham Constr., N.A., Inc.,

ee Sy 5 rer 35

vil

Chamber of Commerce v. Bragdon,

64 F.3d 497 (9th Cir. 1995) ............ passim

DeCanas v. Bica, 424 U.S. 351 (1976) ...... 3, 24, 31

Delgado v. Bd. of Election Comm’rs of City of

Chicago, 865 N.E.2d 183 (Ill. 2007) ......... 21

Dillingham Constr., N.A., Inc. v. County of

Sonoma,190 F.3d 1034

Uk 5 wh oa wk 6 dee eee eS 11, 14

Expert Elec., Inc. v. Levine,

654 F.2d 1227 (2d Cir. 1977) .... 0... cee cee 21

Exxon Corp. v. Governor of Md.,

(gt Mies. | rr

Fort Halifax Packing Co., Inc. v. Coyne,

ee OE hic kw Kees eo eae passim

Gen. Elec. Co. v. N.Y. Dep’t of Labor,

601 F.2d 36 Gd Cir. 1968)... cc ce cee 16

Gen. Elec. Co. v. N.Y. State Dep’t of Labor,

698 F. Supp. 1093 (S.D.N.Y. 1988) ....... 16, 17

Golden State Transit Corp. v. City of Los Angeles, —

ep ge Cs) ene are 8

Hearne v. Bd. of Educ. of City of Chicago,

186 F.3ea 770 (7th Cir. 1008) ...........00-. 19

Vill

Hinterlong v. Baldwin,

720 N.E.2d 315 (Ill. App. Ct. 1999) ......... 21

Holden v. Hardy, 169 U.S. 366 (1898) .......... 36

Hull v. Dutton, 935 F.2d 1194 (11th Cir. 1991) ... 18

Ill. Hotel & Lodging Ass’n v. Ludwig,

869 N.E.2d 846 (Ill. App. Ct. 2007) ..... passim

Ill. Hotel & Lodging Ass’n v. Ludwig,

yy 9 8 3 ot Ri Ry 6 rn 9

Lividas v. Bradshaw,

RE SS eran nave 3, 33

Lodge 76, Int’l Ass’n of Machinists & Aerospace

Workers v. Wis. Employment Relations

Comm'n, 427 U.S. 132 (1976) .......... passim

Malone v. White Motor Corp..,

ik ES ey). | 26, 33

Metro. Life Ins. Co. v. Massachusetts,

Fe Cr Pe CRUE six bb oa ke boas eee wa passim

Nat’l Broad. Co. v. Bradshaw,

70 F.3d 69 (9th Cir. 1995) .............. 11,15

NLRB v. Nash-Finch Co., 404 U.S. 138 (1971) .... 8

New Orleans v. Dukes. 427 U.S. 297 (1976)

N.Y. Tel. Co. v. N.Y. State Dep't of Labor,

440 Ue EE ek wesc ccc ccc eee 27

People v. Carpenter, 888 N.E.2d 105 (Ill. 2008) ... 21

Rein v. David A. Noyes & Co.,

665 N.E.2d 1199 (Tll. 1996) ................ 21

Rhoades v. Casey, 196 F.3d 592 (5th Cir. 1999) ... 21

Roundout Elec., Inc. v. NYS Dep’t of Labor,

835 F.3d 162 (2d Cir. 20038) ..............00. 16

San Diego Bldg. Trades Council v. Garmon,

SOO Ue. Mee ca we ssc cet ccc ee 7-8

S. Cal. Edison Co. v. Pub. Utils. Comm’n,

140 Cal. App. 4th 1085 (2006) .......... 18, 22

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency,

322 F.3d 1064 (9th Cir. 2003) .............. 21

The St. Thomas-St. John Hotel & Tourism

Ass’n, Inc. v. Gov’t of the United States Virgin

Islands, 218 F.3d 232 (3d Cir. 2000) ........ 18

Viceroy Gold Corp. v. Aubry,

75 F.3d 482 (9th Cir. 1996) ............. 11,15

Wash. Servs. Contractors Coalition v. District of

Columbia, 54 F.3d 811 (D.C. Cir. 1995) ... 11,17

Weiland v. Telectronics Pacing Sys., Inc.,

TOL Nee LEGS CH. BOBO) occ cccccececen 21

STATUTES, REGULATIONS, AND CODES

pie hake fo | 5} Sneed ne arte 2

got Sol oo ef” er rrr 3

Ete OR Serr eae ry rn rs 8

ee Se ae Go .6 6 ska elke de eee ee 8

43 Pa. Cons. Stat. Ann. § 1301.207(c)

SE Cas a ERD eae ee ee ES 37

210 Ill. Comp. Stat. 85/10.9(b) (2008) ........... 37

§20 Ill. Comp. Stat. 1380/1 (2008) ............... 39

820 Il]. Comp. Stat. 130/2 (2008)............... 39

820 Ill. Comp. Stat. 140/3.1 (2008) ......... passim

820 Ill. Comp. Stat. 140/6 (2008) ............... 20

Alaska Stat. § 23.10.410 (2009) ................ 38

Ariz. Rev. Stat. Ann. § 23-364(B) (2009) ........ 40

Ariz. Rev. Stat. Ann. § 23-364(G) (2009) ........ 40

Colo. Rev. Stat. Ann. § 8-13-102 (West 2009) ..... 38

Ind. Code Ann. § 5-16-7-1 (West 2009) .......... 39

Me. Rev. Stat. Ann. tit. 26, § 603(5) (2009) ...... 37

Mass. Gen. Laws. Ann. ch. 149, § 27

I 5 0 os ce pha wT ath ek ead ks 6 als es 4]

Mo. Ann. Stat. § 290.020 (West 2009)........... 38

Neb. Rev. Stat. § 48-212 (2008) ................ 37

N.J. Stat. Ann. § 34:20-9 (West 2009) ............ 40

N.Y. Lab. Law § 162 (McKinney 2009) .......... 37

R.I. Gen Laws § 23-17.20-3(b) (2009) ........... 38

Tenn. Code Ann. § 12-4-405 (West 2009) ........ 39

Tex. Gov’t Code Ann. § 2258.021(a)(1) (2009) .... 39

W. Va. Code Ann. § 21-5F-3 (West 2009) 38

Wash. Rev. Code § 49.28.140 (West 2009) ...... 38

Wis. Stat. Ann. § 103.49(d)(1) (West 2009) ...... 39

Wis. Stat. Ann. § 103.85(2) (West 2009) ......... 37

Wis. Stat. Ann. § 103.96(2) (West 2009) ......... 4]

7 Colo. Code Regs. § 1103-1(8) ................ 36

Xi}

Md. Procure. Regs. 21.11.10.01 § (B)(4), (5)

at ate ae Ct ht ee ree ae ia ag . 89

San Diego, Cal., Municipal Code § 22.4230

I ore ogre al. De uatas SP a aimare<5 gl A

Santa Fe, N.M., Municipa) Ordinance 28-1.6(B) .. 40

S.F., Cal., Admin. Code § 12W.7 ............... 40

OTHER:

http://quickfacts.census.gov/qfd/states/17/

17031.html .......... CP ares | 20

http://www.census.gov/statab/ranks/

es ss rae eae ba noe beac et _os ae

http://www.dllr.state.md.us/labor/livingwage

fagqa.shtml#15 39

http://www.no-smoke.org/pdf/100o0rdlisttabs.pdf.. 39

In the

Supreme Court of the United States

No.

——

CATHERINE SHANNON, DIRECTOR OF THE ILLINOIS

DEPARTMENT OF LABOR, ET AL., PETITIONERS,

520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD.,

RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Catherine Shannon, Director of the

Illinois Department of Labor, and UNITE HERE Local

1, respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Seventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit, App. la-47a, is reported at 549

F.3d 1119 (7th Cir. 2008). The opinion of the district

court, App. 48a-76a, is unreported.

JURISDICTION

The Seventh Circuit Court of Appeals entered

judgment on December 15, 2008, App. la-47a, and

denied rehearing en banc on January 28, 2009, App.

8la. On April 28, 2009, Justice Stevens extended the

time within which to file a petition for writ of certiorari

until June 27, 2009. The jurisdiction of this Court rests

upon 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The Supremacy Clause provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. The Room Attendant Amend-

ment to the Illinois One Day Rest in Seven Act

(“Amendment”), 820 Ill. Comp. Stat. 140/3.1 (2008), is

set forth at App. 82a-84a.

INTRODUCTION

In enacting the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 151 et seg., Congress did not

“intend|j to disturb” the States’ “‘broad authority

under their police powers to regulate the employment

relationship to protect workers within’” their borders.

Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756

(1985) (quoting DeCanas v. Bica, 424 U.S. 351, 356

(1976)). ther, “Congress developed the framework

for self-organization and collective bargaining of the

NLRA within the larger body of state law promoting

public health and s«fety.” Jbid. Accordingly, the NLRA

does not preempt “minimum labor standard[s]” created

by state law, Fort Halifax Packing Co., Inc. v. Coyne,

482 US. 1, 7 (1987), but instead “employers and

employees come to the bargaining table with rights

under state law that form a ‘backdrop’ for their

negotiations,” id. at 21 (quoting Metro. Life, 471 U.S. at

757). Applying these principles, this Court has repeat-

edly rejected claims that substantive workplace stand-

ards are preempted, see Fort Halifax, 482 U.S. at 19-23;

Metro. Life, 471 U.S. at 748-758, and has similarly

rejected a preemption challenge to suits to enforce such

standards, see Lividas v. Bradshaw, 512 U.S. 107, 121-

125 (1994).

The Court’s serial rejection of preemption chal-

lenges to state minimum labor standards should have

resulted in uniform precedent on the subject. But dif-

ferences over the proper reading of certain key terms in

the Court’s decisions have bred mischief and confusion

in the lower courts, as exemplified by the decision

below. More than twenty years after the Court’s sem-

inal preemption decisions on the subject, the Seventh

Circuit in this case bemoaned what it perceived as

“sparse” “guidance” on what constitutes a “minimum

labor standard,” App. 22a, and identified discord among

lower court decisions over the proper scope of the

States’ authority to enact workplace protection

legislation without running afoul of federal law, App.

24a-26a. Adopting the approach it deemed the “better

reasoned” among the competing lower court analyses,

App. 26a, the Seventh Circuit held that an Illinois

statute requiring hotel employers in Cook County to

provide periodic rest breaks to their room attendants is

preempted by the NLRA.

The court determined that the rest break law in

question is not a minimum labor standard because the

law’s protections are tailored to account for occupa-

tional and regional differences and are, in the court’s

view, overly “stringent.” But this view—that lowest-

common-denominator laws setting the same minimum

standards regardless of material differences are not

preempted, but that better-tailored laws are—is not

only illogical, but it conflicts with the decisions of other

federal and state courts of appeal, is impossible to

square with this Court’s precedents, and threatens a

myriad of existing state and local workplace laws. This

Court should grant certiorari to provide state and local

governments with essential guidance on the limits of

their police power to regulate the workplace.

STATEMENT

1. The Amendment went into effect in 2005. It re-

quires hotel employers to provide their room attend-

ants with two fifteen-minute paid rest breaks and one

thirty-minute unpaid meal period during each workday

in which the room attendant works at least seven hours.

See 820 Ill. Comp. Stat. 140/3.1(b), (c) (2008). Attend-

ants who fail to receive the mandated break periods

have a private cause of action for three times their

regular hourly wage for each workday in which the

breaks are not provided, and attendants are protected

against retaliation for invoking their rights under the

Amendment. See 820 Ill. Comp. Stat. 140/3.1(, (g)

(2008). The anti-retaliation provision creates a pre-

sumption of retaliation that the employer may rebut.

See 820 Ill. Comp. Stat. 140/3.1(g) (2008).

2. As originally introduced in the Illinois legis-

lature, the Amendment applied to all hotels in the State.

See Ill. Hotel & Lodging Ass’n v. Ludwig, 869 N.E.2d

846 (Ill. App. Ct. 2007) (“Ludwig”) (hereinafter, all

citations to Ludwig are to the attached appendix). After

“(llegislators from downstate areas * * * stressed the

different competitive pressures faced by hotels and

motels in their regions,” a compromise bill was intro-

duced that applied the law solely to hotels in Cook

County, where Chicago is located. App. 92a. As adopt-

ed, the Amendment applies to all hotels and other

transient occupancy establishments (union and

nonunion alike) in Cook County. See 820 Ill. Comp.

Stat. 140/3.1(b) (2008).

3. In 2007, the Illinois Appellate Court upheld the

Amendment against a constitutional challenge brought

by the Illinois Hotel and Lodging Association (“Associ-

ation”), a statewide trade organization of hotels with

members operating in Cook County. See App. 86a. The

court rejected the Association’s claims that the Amend-

ment was preempted by the NLRA, as well as claims

that the Amendment violated the Illinois Constitution’s

prohibition against special legislation and the federal

and state Equal Protection Clauses. See App. 85a-86a.

The state appellate court determined that the

Amendment “was introduced and passed to protect

hotel room attendants from overwork.” App. 87a. The

evidence demonstrated that these “attendants

essentially work on a piece-rate system,” meaning that

“(bJoth union and nonunion hotels require room attend-

” App.

86a. Thus, “[a]lthough they are paid by the hour, room

attendants are required to deliver a quantified amount

of work during their shift and can be disciplined if they

fail to do so.”

ants to clean a quota of rooms each work shift.

Ibid. The court found that many room

attendants skip rest breaks to meet their quotas, con-

tributing to physical injury. See App. 87a. And the risk

of injury has only increased in recent years, as hotels

have added heavier mattresses, more pillows, and ad-

ditional amenities to compete for travelers’ business,

resulting in an increased number and intensity of tasks

required to clean a room. See ibid.

The Illinois Appellate Court then rejected the

Association’s state law and federal equal protection

claims, which were premised on the Amendment’s

application in Cook County alone, because the ILlinois

General Assembly’s decision to treat hotels located in

Cook County differently from hotels located elsewhere

in the State was reasonable. See App. 93a-95a. As the

court explained, “Cook County has more hotel room

attendants than the rest of the State combined,” and

“the revenue per available room for all Chicago hotels

* * * was higher than any other area of the State.” App.

84a. “The legislature rationally could have concluded

from such evidence that [the Amendment] would

protect hotel room attendants from overwork in the

jurisdiction where the majority of such employees would

be impacted and in the jurisdiction best positioned to

absorb the costs of [the] new regulations.” App. 94a-

95a.

The court further rejected the Association’s claim

that the Amendment is preempted under either the

“Garmon,” see San Diego Bldg. Trades Council uv.

Garmon, 359 U.S. 236 (1959), or the “Machinists,” see

Lodge 76, Int’l Ass’n of Machinists & Aerospace

Workers v. Wis. Employment Relations Comm ’n, 427

U.S. 132 (1976), doctrine of NLRA preemption. See

App. 95a-102a.’ The court explained that because the

Amendment “‘affect[s] union and nonunion employees

equally’” and “‘neither encouragels] nor discourage|s]

the collective-bargaining processes that are the subject

of the NLRA,”’” it is “a minimum labor standard” and

thus survives under this Court’s labor preemption cases.

“ce

, Garmon preemption precludes States from regulating

activity arguably protected by section 7 of the NLRA (protecting

employees’ rights to self-organization, to bargain collectively, to

form, join, or assist labor organizations, and to “engage in other

concerted activities for the purpose of collective bargaining or

other mutual aid or protection,” as well as to refrain from these

activities, 29 U.S.C. § 157) or prohibited by section 8 (pro-

hibiting unfair labor practices by employers and labor organiz-

ations, see 29 U.S.C. § 158). See Garmon, 359 U.S. at 241-245.

Machinists preemption bars state regulation of conduct that

Congress neither protected through section 7 nor prohibited

though section 8 but instead “left ‘to be controlled by the free

play of economic forces.’” Machinists, 427 U.S. at 140 (quoting

NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)).

Machinists thus precludes States from enacting laws that

interfere with the collective bargaining process, such as laws re-

quiring employers to settle labor disputes to receive regulatory

permits. See Golden State Transit Corp. v. City of Los Angeles,

475 U.S. 608, 615-616 (1986).

App. 101la (quoting Metro. Life, 471 U.S. at 755). The

Supreme Court of Illinois declined the Association’s

request for leave to appeal. See J///. Hotel & Lodging

Ass’n v. Ludwig, 875 N.E.2d 1111 (Ill. 2007).

4. While Ludwig was pending in the Illinois courts,

respondent, which is not a member of the Association,

filed this action in federal court, raising claims similar

to the ones that would fail in that case—that the

Amendment violates due process, equal protection, and

[llinois’s prohibition against special legislation, and is

preempted by the NLRA and the Labor Management

Relations Act (““LMRA”). See App. 8a. On petitioners’

motions to dismiss, the district court upheld the

Amendment, finding the Illinois Appellate Court’s

opinion rejecting “almost identical” federal claims in

Ludwig to be “well-reasoned” and “persuasive,” and

declining jurisdiction over the supplemental state-law

claims. App. 50a, 76a.

5. On appeal, the Seventh Circuit rejected the

result reached by the state appellate court, reversed the

district court, and held that the Amendment is

preempted by the NLRA under the Machinists doctrine.

See App. 46a-47a. The court acknowledged that

Machinists preemption “is concerned with the process

and not the substantive terms of the bargain,” whereas

the Amendment “establishes a_ substantive

requirement” rather than working a direct change to

the process of bargaining and self-organization. App.

38a. And the court further recognized this Court’s

holdings that “minimum labor standards,” which are

not preempted by the NLRA, are defined as those that

“affect union and nonunion employees equally, and

neither encourage nor discourage the collective-

bargaining processes that are the subject of the NLRA.’”

App. 22a-23a (quoting Metro. Life, 471 U.S. at 755).

Finally, the court acknowledged that the Amendment

both “facially affects union and nonunion employees

equally,” App. 23a, and in practice applies to both union

and nonunion attendants because “not all room

attendants in Cook County are unionized,” App. 32a.

The court nevertheless held that the Amendment did

not qualify as a minimum labor standard.

The court reasoned that—although the Amendment

applies to union and nonunion workers alike—it cannot

set a “genuine minimum labor standard” because it “is

not a statute of general application.” App. 23a. Accord-

ing to the court, the Amendment’s “narrow scope of

application,” to room attendants in Cook County hotels,

“serves as a disincentive to collective bargaining,” App.

30a, and thereby runs afoul of the NLRA. For this

conclusion, the Seventh Circuit relied on Chamber of

Commerce v. Bragdon, 64 F.3d 497 (9th Cir. 1995). The

court acknowledged that the Ninth Circuit has since

repudiated Bragdon’s characterization of minimum

labor standards as laws “applicable to all employees,”

id. at 502. See App. 26a (noting holding of Associated

Builders & Contractors of S. Cal., Inc. v. Nunn, 356

F.3d 979, 990 (9th Cir. 2004), that “state substantive

labor standards * * * are not invalid simply because they

apply to particular trades, professions, or job classifi-

cations rather than to the entire labor market”). But

the Seventh Circuit deemed the Bragdon approach

“better reasoned” than the later decisions rejecting it.

App. 26a. The court further recognized that a “series of

cases,” including decisions of this Court, the Ninth

Circuit, and the D.C. Circuit, had upheld workplace

protection laws “that apply only to particular occu-

pations, industries or categories of employers” against

preemption challenges, but distinguished the instant

case because it addressed a law limited “by location” as

well as “by trade.” App. 25a-26a.’

In addition, the Seventh Circuit also reasoned that

the Amendment does not qualify as a minimum labor

standard because “minimum” “implies alow threshold.”

App. 34a. According to the court, the Amendment’s

protections do not comprise a “true minimum labor

The Seventh Circuit purported to distinguish Fort Halifax,

482 U.S. 1; Dillingham Construction N.A., Inc. v. County of

Sonoma, 190 F.3d 1034 (9th Cir. 1999); Viceroy Gold

Corporation v. Aubry, 75 F.3d 482 (9th Cir. 1996); National

Broadcasting Company v. Bradshaw, 70 F.3d 69 (9th Cir. 1995);

and Washington Services Contractors Coalition v. District of

Columbia, 54 F.3d 811 (D.C. Cir. 1995), on this ground. App.

25a-26a.

standard” because they are “higher” than those for

other Illinois workers, App. 32a-33a; they are too

“stringent,” App. 38a; and, in the court’s view, they

“would be very difficult for any union to bargain for,”

App. 35a. As aresu't, the court hypothesized, the man-

dated rest breaks would “interfere” with room

attendants’ pay and quota structure under respondent’s

expired collective bargaining agreement, and the

Amendment’s rebuttable presumption of retaliation

would similarly undermine the dispute-resolution

mechanisms set forth in that agreement. App. 40a-43a.

REASONS FOR GRANTING THE PETITION

In using Machinists preemption to invalidate a state

workplace law applicable to union and nonunion

employees alike, the Seventh Circuit broke from this

Court’s definition of a “minimum labor standard” in

Metropolitan Life and Fort Halifax. The Seventh

Circuit’s redefinition of a “minimum labor standard”

conflicts with both federal and state appellate court

decisions, including a ruling by the Illinois Appellate

Court rejecting the same preemption challenge to the

same Illinois law. Moreover, the Seventh Circuit’s

decision contributes significantly to uncertainty over

the scope of state and local power to enact workplace

protection laws, and it casts doubt on myriad of laws

governing the workplace already on the books. Only

this Court can impose much-needed clarity on this

critical area of state and local lawmaking, and establish

definitively—notwithstanding the Seventh Circuit’s

decision in this case, resurrecting a Ninth Circuit ruling

whose reasoning that court has disavowed—-that federal

law does not require States wishing to provide

workplace protections to do so only with untailored,

one-size-fits-all rules.

I. Courts Are Divided Over Whether Targeted

Minimum Labor Standards Are Preempted By

The NLRA. |

1. The Seventh Circuit’s determination that the

Amendment is not a “minimum labor standard” is

impossible to reconcile with decisions of the Second,

Ninth, and D.C. Circuits. These cases recognize that,

to avoid preemption, state laws need only be general in

the sense that they apply to union and nonunion

workers alike (as all agree the Amendment does). See

Metro. Life, 471 U.S. at 753; Fort Halifax, 482 U.S. at

19-20. Nothing in these cases limits the States’ ability

to tailor workplace protections based on geographical

and/or occupational differences.

Indeed, in holding that the Amendment’s “narrow

scope” prevented it from being a minimum labor

standard, App. 30a, the Seventh Circuit recognized that

“a series of cases” have held that regulations that

“apply only to particular occupations, industries or

categories of employers have survived preemption

challenge[s],” App. 25a. But the court below relied on

the Ninth Circuit’s decision in Chamber of Commerce v.

Bragdon, which it characterized as “better reasoned”

than conflicting decisions that have rejected the

Bragdon approach. App. 26a. Bragdon held that a

county ordinance prescribing wage and benefit levels for

private construction contractors was preempted under

the Machinists doctrine. See 64 F.3d at 504. The Ninth

Circuit reasoned that the ordinance was “incompatible

with the goals of the NLRA” because it “provide[d] for

specific minimum wages and benefits to be paid to each

craft and only to those workers who are engaged in the

specific construction projects covered by the

Ordinance.” Jd. at 501, 502. In line with Bragdon, it

was thus critical to the Seventh Circuit’s preemption

analysis that the Amendment “lack[ed] * * * general

application.” App. 29a. The court ultimately concluded

that to survive preemption, a minimum labor standard

must target substantially all of the labor market. See

ibid. On this point—essential to the holding below—the

Seventh Circuit’s decision is in square conflict with

other decisions of the Ninth Circuit, as well as the rule

in the Second and D.C. Circuits.

First, although downplayed by the Seventh Circuit,

see App. 28a-29a n.9, the Ninth Circuit itself has

rejected the Bragdon analysis on which the decision

below relied. Thus, in Dillingham Construction N.A.,

Inc. v. County of Sonoma, 190 F.3d 1034 (9th Cir. 1999),

the court held that a law requiring payment of

prevailing wages to apprentices on public construction

projects was a “minimum labor standard|[] immune from

NLRA preemption.” Jd. at 1039; see also Viceroy Gold

Corp. v. Aubrey, 75 F.3d 482, 489-490 (9th Cir. 1996)

(overtime law applying only to miners not preempted);

Nat’! Broad. Co., Inc. v. Bradshaw, 70 F.3d 69, 71-72

(9th Cir. 1995) (same for law applying only to broadcast

employees).

Subsequently, in Associated Builders & Contractors

of Southern Califorina, Inc. v. Nunn, 356 F.3d 979 (9th

Cir. 2004), the court expressly rejected Bragdon in

holding that a law requiring contractors to pay

registered apprentices on private construction projects

certain wage rates based on their “craft and

geographical area”—just like the ordinance challenged

in Bragdon—was not Machinists preempted. Jd. at 983,

990-991. The court warned that “Bragdon must be

interpreted in the context of Supreme Court authority

and our other, more recent rulings on NLRA pre-

emption,” which make clear that “the NLRA does not

authorize us to pre-empt minimum labor standards

simply because they are applicable only to particular

workers in a particular industry.” Jd. at 990; accord

ibid. (“It is now clear * * * that state substantive labor

standards * * * are not invalid simply because they

apply to particular trades, professions, or job classifi-

cations rather than to the entire labor market.”).°

Not only does the Seventh Circuit’s decision part

ways with current Ninth Circuit case law, but it is also

inconsistent with the rule adopted by the Second and

D.C. Circuits. In General Electric Company v. New York

Department of Labor, 891 F.2d 25 (2d Cir. 1989), the

Second Circuit upheld New York’s prevailing wage law

against a claim that it was NLRA preempted because it

was not universal in scope, applying only to public

works contracts, see id. at 26, 27-28; see also Roundout

Elec., Inc. v. NYS Dep’t of Labor, 335 F.3d 162, 169 (2d

Cir. 2003) (declining to follow Bragdon). The Second

Circuit adopted the reasoning of the district court, see

id. at 27, that it “d{id] not matter that the coverage of

the statute is limited.” Gen. Elec. Co. v. N.Y. State Dep’t

of Labor, 698 F. Supp. 1093, 1098 (S.D.N.Y. 1988). As

the district court had explained, “coverage of minimum

wage statutes is rarely universal”; accordingly, that “the

state ha[d] a rational reason for applying this statute to

the employees of private contractors engaged in

performing public work and for setting its minimum

standards at the level it has selected” was sufficient to

sustain the law. Ibid. It was similarly irrelevant that

Although Nunn rejected Bragdon’s reasoning, it did not

overrule Bragdon, see 556 F.3d at 990-991, adding to the

confusion in the lower courts.

the prevailing wage law required minimum wages in

excess of those applicable to other occupations: “The

common thread in the Supreme Court’s ‘minimum labor

standard’ concept is not a dictionary definition of

‘minimum,’ nor a requirement that the minimum

standards be neutral in their effect on the cc. ‘ective bar-

gaining process, but a judgement that the substantive

rights which the state seeks to create are consistent

with the ‘general legislative goals of the NLRA.’” Jd. at

1100 (quoting Metro. Life, 471 U.S. at 757).

Likewise, in Washington Services Contractors

Coalition v. District of Columbia, 54 F.3d 811 (D.C. Cir.

1995), the D.C. Circuit upheld labor legislation requir-

ing only “contractors who employ 25 or more persons

and perform food, janitorial, maintenance, or non-

professional health care services” to retain a pred-

ecessor’s employees for ninety days after taking over a

service contract. Jd. at 813-814. In rejecting a Machin-

ists preemption claim to this targeted iaw, the court

held that the NLRA “does not preempt local regulation

of any facet of the employment relationship, but rather

only those laws that disturb the labor dispute resolution

system established by the NLRA.” Jd. at 817 (emphasis

in original). Because the law at issue was “substantive

employee protective legislation having nothing to do

with rights to organize or bargain collectively,” Machin-

ists preemption did not apply. Jd. at 818.

Thus, the result under Bragdon and in the Seventh

Circuit would have been different in either the Second

or D.C. Circuits; the fact that legislation applied only to

certain workers would have subjected it to Machinists

preemption in those cases. The Third Circuit has

declined to follow Bragdon on this point as well, as have

the California courts. See The St. Thomas-St. Jokn

Hotel & Tourism Ass’n, Inc. v. Gov’t of the United States

Virgin Islands, 218 F.3d 232, 244 (3d Cir. 2000); S. Cal.

Edison Co. v. Pub. Utils. Comm’n, 140 Cal. App. 4th

1085, 1102-1103 (2006).*

Beyond relying on Bragdon, the Seventh Circuit supported

its view that only laws applying to substantially all of the labor

market qualify as minimum labor standards with citations to

Barnes v. Stone Container Corporation, 942 F.2d 689 (9th Cir.

1991), and Hull v. Dutton, 935 F.2d 1194 (11th Cir. 1991). See

App. 24a-25a. But Barnes did not involve a challenge to a

minimum labor standard, but rather whether an individual

could invoke Montana’s Wrongful Discharge Act during an

impasse in collective bargaining negotiations. See 942 F.2d at

693. And in Hull, the challenged Alabama statute applied only

to the State’s own employees, making it “an expression of the

state’s power as an employer to regulate relations with its

employees, rather than the state’s authority to regulate in the

interest of the health, welfare, and mores of its citizens.” 935

F.2d at 1198-1199. The Seventh Circuit’s misreading of these

cases is additional evidence of confusion over the meaning of

the term “minimum labor standard.”

2. The decision below makes an effort to

distinguish some of the cases in the foregoing line by

observing that the Amendment is limited geographically

as well as by trade, but this observation is of no legal

moment and does nothing to reconcile the Seventh

Circuit with other courts. Such geographic targeting is

a common and necessary feature of laws in Illinois and

elsewhere. The Amendment, as originally drafted,

would have applied statewide. See App. 9la. But, as

the Seventh Circuit itself has recognized, Chicago and

Cook County differ fundamentally from the rest of the

State. See Hearne v. Bd. of Educ. of City of Chicago,

185 F.3d 770, 774 (7th Cir. 1999) (“the Illinois statute

books are riddled with laws that treat communities with

more than 500,000 residents—i.e., Chicago—differently

from smaller ones”). The Amendment thus was limited

to Cook County after downstate hotels successfully de-

monstrated that Cook County’s hotel industry differed

fundamentally from that in other areas of the State.

See App. 94a-95a. The Illinois legislature appropriately

“concluded from such evidence that [the Amendment]

would protect hotel room attendants from overwork in

the jurisdiction where the majority of such employees

would be impacted and in the jurisdiction best

positioned to absorb the costs of [the Amendment’s]

new regulations.” I[bid.

Nor is Cook County merely “one of Illinois’s 102

counties,” as the Seventh Circuit described it. App. 26a.

With 5.3 million residents (forty-three percent of

Illinois’s population), Cook County is among the largest

counties in the nation and has a population exceeding

that of twenty-nine States. See http://quickfacts.cen

sus.gov/qfd/states/17/17031.htm] (last visited Jun. 26,

2009) (Cook County); http://www.census.gov/statab/

ranks/rank01.html (last visited Jun. 26, 2009) (State

rankings). Given Cook County’s substantial population

and concentration of hotels, the Seventh Circuit’s

concern about the geographic scope of the Amendment

is nonsensical. That leaves only the fact that the

Amendment does not apply statewide, but that is

logically immaterial. If state subdivisions may pass

workplace protection laws—as they routinely do, see

infra pp. 39-40, it is inconceivable that a state law

limited to an area with a larger population risks any

greater interference with federal labor law.

3. Finally, the decision below not only is irrecon-

cilable with the rulings of three circuit courts, but it also

creates a conflict between state and federal law within

the Seventh Circuit. The Seventh Circuit invalidated

the Amendment notwithstanding that the Illinois Ap-

pellate Court had recently upheld it against an identical

preemption challenge. These conflicting rulings leave

petitioner Shannon, who is charged with enforcing the

Amendment, see 820 Ill. Comp. Stat. 140/6 (2008), in an

untenable sitvation requiring this Court’s intervention.

The Illinois Appellate Court’s decision is res judi-

cata as to every hotel belonging to the Association that

brought that case. See, e.g., Rein v. David A. Noyes &

Co., 665 N.E.2d 1199, 1204 (Ill. 1996); Tahoe-Sierra

Pres. Council, Inc. v. Tahoe Reg’! Planning Agency, 322

F.3d 1064, 1082 «9th Cir. 2003); Expert Elec., Inc. v.

Levine, 554 F.2d 1227, 1233 (2d Cir. 1977).° And while

Illinois courts must follow this Court on issues of federal

preemption, they are not bound by the Seventh Circuit’s

preemption decisions, see, e.g., Weiland v. Telectronics

Pacing Sys., Inc., 721 N.E.2d 1149, 1153-1154 (ill.

1999); Hinterlong v. Baldwin, 720 N.E.2d 315, 323 (Ill.

App. Ct. 1999), meaning that even non-Association

members (other than respondent) remain subject to

enforcement actions. For these entities, Ludwig is stare

decisis in the Circuit Court of Cook County, the only

jurisdiction where the Amendment applies. See, e.g.,

People v. Carpenter, 888 N.E.2d 105, 111 (Ill. 2008);

Delgado v. Bd. of Election Comm’rs of City of Chicago,

865 N.E.2d 183, 188 (Ill. 2007). As a practical matter,

however, petitioner Shannon is reluctant to flout the

The Seventh Circuit’s rejection of Ludwig does not chang

this result. See, e.g., Rhoades uv. Casey, 196 F.3d 592, 602 (5th

Cir. 1999); Bd. of Trs. of Carpenters Pension Fund for N. Cal.

v. Reyes, 688 F.2d 671, 673 (9th Cir. 1982).

holding of the Seventh Circuit. As a result, she is

inhibited from performing her statutory duty to enforce

the Amendment.

Illinois is not the only State in which a state and

federal court are at odds over whether a law must be

broadly applicable to constitute a “minimum labor

standard.” For example, although the Ninth Circuit has

yet to overrule Bragdon expressly, that case has been

squarely rejected by California’s state appellate court.

In upholding a prevailing wage requirement limited to

workers on one type of construction project against a

Machinists challenge, the California Court of Appeal

“decline[d] to follow Bragdon,” which the court

described as “inconsistent” with this Court’s “rule * * *

that state regulation of the substantive terms of

employment * * * is not subject to Machinists pre-

emption.” S. Cal. Edison, 140 Cal. App. 4th at 1103-

1104 (citing Metro. Life, 471 U.S. at 758).

Thus state officials face a legal dilemma: is their

authority to regulate workplace standards limited to

laws applicable to substantially all of the labor

market—as Bragdon and the Seventh Circuit hold—or

may they, as their own state courts have determined,

target workplace protections to categories of workers

who really need them and employers that can best

tolerate them. This intra-State uncertainty is an

additional reason why this Court should grant certiorari

review.

II. The Decision Below Is Incompatible With

Decisions Of This Court.

After bemoaning that this Court’s “guidance” on

what constitutes a “minimum labor standard” is

“sparse,” App. 22a, the Seventh Circuit proceeded to

fundamentally alter the concept. According to the

court, the Amendment does not qualify as a “minimum

labor standard” because it is “not a statute of general

application,” App. 23a, but rather is targeted to a

particular occupation in a particular locale. The court

further sought to bolster its holding by characterizing

the statute as exceeding “a low threshold” and as

unduly “stringent.” App. 34a, 38a. But on top of

breaking from other circuits, the Seventh Circuit’s

doctrinal innovations are incompatible with this Court’s

cases, which make clear that the term “minimum labor

standard” merely denotes a substantive labor standard

applicable to union and nonunion workplaces alike.

Even the Seventh Circuit acknowledged that the

Amendment easily satisfies this definition. See App.

23a (Amendment “facially affects union and nonunion

employees equally”). The court should have gone no

further.

1. In Metropolitan Life, this Court rejected an

NLRA preemption challenge to a Massachusetts law

requiring minimum mental-healthcare benefits for all

employees, including those subject to benefit plans

negotiated pursuant to collective-bargaining agree-

ments. See 471 U.S. at 727, 758. The Court expressly

disapproved the view that required-benefit laws like

Massachusetts’s were preempted because they “in effect

mandate terms of collective-bargaining agreements,”

and thereby remove “the choice of terms” in such

agreements from “the free play of economic forces.” Id.

at 748. As the Court explained, “[t]he NLRA is concern-

ed primarily with establishing an equitable process for

determining terms and conditions of employment, and

not with particular substantive terms of the bargain

that is struck.” Jd. at 753. In addition, there generally

is “no incompatibility” “between federal! rules designed

to restore the equality of bargaining power[] and state

or federal legislation that imposes minimal substantive

requirements on contract terms negotiated between

parties to labor agreements.” Id. at 754.

This Court thus determined that Congress did not

intend the NLRA to displace state laws that are “un-

related * * * to the processes of bargaining or self-

organization.” Metro. Life, 471 U.S. at 756. Rather,

States are free to enact “minimum labor standards”

pursuant to their “‘broad authority under their police

powers to regulate the employment relationship to

protect workers.’” Jd. at 755, 756 (quoting DeCanas,

424 U.S. at 356). “Minimum labor standards,” the

Court further explained, are laws that “affect union and

nonunion employees equally,” and, thus, they are not

preempted under Machinists because they “are not laws

designed to encourage or discourage employees in the

promotion of their interests collectively” but, instead,

“‘sive specific minimum protections to individual

workers and * * * ensure that each employee * * *

receive[s]’” statutorily mandated protections. Jd. at 755

(quoting Barentine v. Ark.-Best Freight Sys., Inc., 450

U.S. 728, 739 (1981) (emphasis in original)).

2. Subsequent to Metropolitan Life’s holding that

state “minimum labor standards” are not preempted by

the NLRA, this Court in Fort Halifax made clear that a

state law need not be applicable to substantially all of

the labor market to qualify as such a standard, for the

Court in that case sustained a narrowly targeted statute

against an NLRA preemption challenge. The Court

upheld a Maine law requiring an employer that termin-

ates operations at a plant with one hundred or more

employees (or relocates those operations more than one

hundred miles away) to provide severance pay to any

employee who had worked in the plant for more than

three years. See 482 US. at 4 n.1, 5, 23. Thus, the

state statute was not broadly applicable; it applied only

to larger plant closings, distant relocations, and longer-

tenured employees.

Even though the law was limited in its application,

this Court upheld the Maine statute as a “minimum

labor standard” akin to the one sustained in

Metropolitan Life. Like the Massachusetts law, Maine’s

plant-closing law “provide[d] protections to individual

union and nonunion workers alike, and thus ‘neither

encourage([d] nor discouragel[d] the collective-bargain-

ing processes that are the subject of the NLRA.’” 482

U.S. at 20-21 (quoting Metro. Life, 471 U.S. at 755).

The Court acknowledged that “the Maine statute

glave] employees something for which they otherwise

might have to bargain,” but the same could be said for

almost any workplace law, and “‘there is nothing in the

NLRA * * * which expressly forecloses all state

regulatory power with respect to those issues * * * that

may be the subject of collective bargaining.’” Id. at 21-

22 (quoting Malone v. White Motor Corp., 435 U.S. 497,

504-505 (1978)); see also id. at 21 (“the mere fact that

a state statute pertains to matters over which the

parties are free to bargain cannot support a claim of pre-

emption”). In short, the Maine statute was “‘a valid

and unexceptional exercise of the [State’s] pclice

power.’” Id. at 22 (quoting Metro. Life, 471 U.S. at 758)

(alteration in original).

3. Notwithstanding the actual holdings of

Metropolitan Life and Fort Halifax, the Seventh Circuit,

like the Ninth Circuit in Bragdon, seems to have been

led astray by some of the more general language in

those decisions. The court below focused on the use of

the phrase “laws of general application” in Metropolitan

Life to describe minimum labor standards, App. 23a

(emphasis in original), and the description of such

standards as “minimal” and as a “backdrop” to negoti-

ations in Metropolitan Life and Fort Halifax, respect-

ively, App. 34a. Contrary to the Seventh Circuit’s

approach, however, nothing in this Court’s decisions

indicates that these references were intended to bar

States from adopting anything but “low threshold” or

untailored laws that apply broadly to all sectors of the

labor market.

As explained, Metropolitan Life itself held that

“minimum labor standards” are those that “affect union

and nonunion employees equally.” 471 U.S. at 755.

And the Court’s reference to a “law of general appli-

cation,” id. at 750 n.28, 753, was derived from New York

Telephone Company v. New York State Department of

Labor, 440 U.S. 519 (1979), where a plurality of the

Court used the phrase to distinguish laws targeting

unionized workplaces, see id. at 533 (“Section 591(1) is

not a ‘state la[w] regulating the relations between

employees, their union and their employer,’ as to which

the reasons underlying the pre-emption doctrine have

their ‘greatest force.’ Instead * * * the statute is a law

of general applicability.”) (internal citation omitted).

This view is consistent with this Court’s approval in

Fort Halifax of a narrowly-targeted law and with the

State’s recognized police power authority to regulate the

employment relationship. The Seventh Circuit sought

to distinguish the Amendment from Maine’s plant-

closing law by claiming that the latter, although

admittedly not universally applicable, “still had a very

broad application.” App. 24a. But the court made no

effort to explain why aplant-closing law targeted to only

a limited class of large businesses in a very small State

is more broadly applicable than a law targeted to one

occupation in a county that is larger than 29 States.

Rather, it reasoned merely that the Amendment’s

limitation to one Illinois county “serves as a dimin.-

centime to collective bargaining” and “makes it possible

to target union-heavy counties (or union-light counties),

and thus reward (or punish) union activit[ies].” App.

30a, 32a. But this Court rejected precisely these claims

in Fort Halifax. There, the Court noted that “[t)h[e]

argument—that a State’s establishment of minimum

substantive labor standards undercuts collective

bargaining—was considered and rejected in Metropo!-

itan Life,” 482 U.S. at 20, thus doing away with the

Seventh Circuit’s concern about “disincentivies]” to

collective bargaining. And as for the suggestion that the

Amendment might affect in practice union workplaces

more heavily than nonunion, Fort Halifax also rejected

an argument that the Maine statute was preempted

because it “dlid] not fall equally upon union and non-

union employees.” Jd. at 22 n.15.

Indeed, the idea that a workplace standard is

preempted because it affects a trade or locale meeting

some undefined threshold of unionization not only con-

flicts with this Court’s precedents but would make it

impossible for States to set workplace standards in any

industry with a significant union presence, even when

large numbers of the affected workforce were non-

unionized. This result, which “penalizes] workers who

have chosen to join a union by preventing them from

benefitting from state labor regulations imposing

minimal standards on nonunion employers,” “would

turn the policy that animated the [NLRA] on its head.”

Metro. Life, 471 U.S. at 756. The Seventh Circuit’s ap-

poach also is unworkable in practice, for it offers no

meaningful standard for determining when an industry

or locale is sufficiently “union-heavy” or “union-light”

to trigger federal preemption. Thus, the Seventh Cir-

cuit’s reliance on the phrase “law of general applica-

tion” to invalidate the Amendment because of its

targeted scope is inconsistent with this Court’s holdings

and their underlying rationales.

4. The Seventh Circuit’s decision also resulted from

a lack of clarity in the term “minimum labor standard”

itself. Pointing to this Court’s characterization of mini-

mum labor standards as involving “minimal substantive

requirements,” App. 34a, the lower court held that the

Amendment “does not qualify as a ‘minimum’ labor

standard” because “‘[mlinimum,’ * * * implies a low

threshold,” whereas the Amendment “establishes terms

of employment that would be very difficult for any

union to bargain for,” App. 34a-35a; see also App. 38a

(“[t]he more stringent a state labor substantive

standard, the more likely it is that the state law

interferes with the bargaining process”).

But this interpretation of the phrase “minimum

labor standard” is incompatible with the rationales of

Metropolitan Life and Fort Halifax. Speculation about

whether a statutorily mandated benefit would have

been “difficult” to achieve in bargaining played no role

in the Court’s analysis in these cases. In fact, the

nature of the benefits at issue refutes the Seventh

Circuit’s view that only insubstantial state regulations

may escape NLRA preemption: neither the severance-

pay provision in Fort Halifax (requiring one week’s pay

for each year of employment to all employees who had

worked more than three years, see 482 U.S. at 4n.1) nor

the mental-healthcare benefit in Metropolitan Life

(requiring coverage for “‘mental or nervous conditions’”

that provides sixty days per year in a mental hospital

and treats confinement in a general hospital “‘no

differently] than * * * any other illness,’” 471 U.S. at

730 n.11) (quoting statute), may fairly be characterized

as a law with “minimal substantive impact” on

collective bargaining agreements, App. 34a.°

Indeed, the Metropolitan Life Court cited with approval

myriad state mandated-benefit laws, none of which satisfy the

Seventh Circuit’s “low threshold” requirement. See 471 U.S.

at 730 n.10 (describing state laws requiring “alcoholism

(continued...)

Equally misplaced is the Seventh Circuit’s view that

the Amendment is not a “true minimum labor stand-

been” because the Illinois One Day Rest in Seven Act,

which the Amendment modified, “already established a

minimum labor standard for breaks.” App. 32a-33a.

Under the court’s analysis, once a State sets a labor

standard that applies broadly, it may never adopt

different standards later for occupations warranting

greater protection. This is a radical and novel limitation

on the States’ “great latitude” and “‘broad authority

under their police powers to regulate the employment

relationship to protect workers,’” including by respond-

ing to unique and changing workplace conditions.

Metro. Life, 471 U.S. at 756 (quoting DeCanas, 424 U.S.

at 356). It also is an unwise limitation, for it favors one-

size-fits-all legislation over more carefully tailored law-

making. Rather, as the Court’s endorsement of sub-

stantial state workplace regulation in Metropolitan Life

and Fort Halifax makes plain, the term “minimum labor

standard” simply means a floor from which individuals

and unions must negotiate upwards.

’ (...continued)

coverage,” “certain birth-defeci coverage,” “outpatient kidney-

dialysis coverage,” and coverage for “reconstructive surgery for

insured mastectomies”). Tosay the least, these substantial and

costly benefits might well be difficult for union negotiators to

achieve in bargaining.

Not only is the Seventh Circuit’s rule inconsistent

with this Court’s decisions, but it is unworkable. The

court set forth no standard for determining whether a

workplace law is too “stringent” or provides a benefit

that would be “very difficult for any union to bargain

for.” App. 35a-38a. As a result, the rule is an invitation

to prohibited judicial second-guessing of economic

legislation. See Exxon Corp. v. Governor of Md., 437

U.S. 117, 124 (1978); New Orleans v. Dukes, 427 US.

297, 303 (1976) (per curia).

5. The Seventh Circuit also broke from this Court’s

case law in suggesting that federal law preempts

workplace regulations without an “opt-out” for labor

agreements setting different standards. See App. 33a.

The court concluded that “when the parties are not free

to devise their own arrangement preemption applies

because the statute intrudes on the collective bargaining

process.” App. 34a. But this runs afoul of Fort Halifax,

where the Court was careful to point out that the

Massachusetts statute in Metropolitan Life “permitted]

no collective bargaining” but nevertheless “escaped]

NLRA pre-emotion.” 482 U.S. at 22 (emphasis in orig-

final).

6. Finally, the court below claimed that preemption

was necessary because the Amendment “interfered]”

with the terms of respondent’s expired collective

bargaining agreement, App. 43a, both because its cause

of action for retaliation was inconsistent with the

agreement’s dispute-resolution mechanism, and because

its mandated breaks supposediy undermined the room-

cleaning quota system established hy the agreement, see

App. 40a-43a. But this Court’s holdings create no ex-

caption based on the happenstance that some set of

employees somewhere in the jurisdiction are already

subject to a collective bargaining agreement covering

the same topic. See Fort Halifax, 482 U.S. at 21-22

(“the mere fact that a state statute pertains to matters

over which the parties are free to bargain cannot

support a claim of pre-emotion, for ‘there is nothing in

the NLRA * * * which expressly forecloses all state

regulatory power with respect to those issues * * * that

may be the subject of collective bargaining’”) (quoting

Malone, 435 U.S. at 504-505 (1978) (ellipses in orig-

final)).

In fact, such an exception would be nonsensical, for

it would effectively preclude unionized employees from

benefitting from state labor protections imposing

minimum standards on nonunion employers, something

the NLRA clearly does not contemplate. See Lividas,

512 U.S. at 130 (“Denying represented employees basic

safety protections might ‘encourage’ collective bargain-

in over that subject * * *, but we have never suggested

that labor law’s bias toward bargaining is to be served

by forcing employees or employers to bargain for what

they would otherwise be entitled to as a matter of

course.”). Rather, the fact that, in some instances, a

new state law will cause employers and unions to go

back to the bargaining table is fully consistent with the

NLRA, which envisions bargaining with the various

state workplace regulations as a floor or “backdrop.”

Metro. Life, 471 U.S. at 757.

* *K *

Thus, for several reasons, the Seventh Circuit’s

decision is impossible to reconcile with this Court’s

decisions. Its misapplication of the terms “law of

general application” and “minimum labor standard”

threaten added confusion in this important area of

federal-state relations. Worse, the decision calls into

question numerous state and local workplace standards

already on the books, seeinfra pp. 35-41, and it is likely

to chill legislatures from enacting necessary new ones.

This Court’s certiorari review is needed to resolve this

uncertainty about the States’ authority to regulate the

workplace and to clarify language used in its previous

decisions controlling this area of law.

II. The Issue Presented Is One Of Critical

Importance, And The Decision Below

Casts Doubt On Many Existing Workplace

Protection Laws.

In cases “where federal law is said to bar state

action in fields of traditional state regulation,” this

Court “always” “works] on the assumption that the

historic police powers of the States [are] not to be

superceded by [federal law] unless that was the clear

and manifest purpose of Congress.” Cal. Div. of Labor

Standards Enforcement v. Dillingham Constr., N.A.,

Inc., 519 U.S. 316, 325 (1997) (internal quotations and

citations omitted); accord Fort Halifax, 482 U.S. at 21

(“pre-emotion should not be lightly inferred * * * since

the establishment of labor standards falls within the

traditional police power of the State”). Not withstand-

in the Court’s conclusion, applying this presumption

against preemption, that Congress did not intend the

NLRA “to disturb the myriad state laws * * * that set

minimum labor standards, but were unrelated in any

way tothe processes of bargaining or self-organization,”

Metro. Life, 471 U.S. at 756, the decision below calls into

question a wide variety of state and local laws

regulating the nation’s workplaces.

The features of the Amendment on which the

Seventh Circuit relied to find preemption are common

to many workplace statutes, and the court provided no

principled basis to distinguish Illinois’s statute from

many such laws. As a result, the Seventh Circuit’s

decision, if allowed to stand, will encourage litigation

over the validity of existing laws and inhibit state and

local governments from enacting lawful reforms that

their citizens favor. It also will require state legislated-

urea to forego sensible targeting of workplace regular-

tigons to those employees most in need of certain

protections or those employers most able to bear the

additional cost of compliance. Instead, state legislatures

will be forced to craft “one-size-fits-all” regulations

rather than risk costly litigation and the possibility of

judicial invalidation.

Workplace legislation always has targeted particular

occupations and locales. See, e.g., Holden v. Hardy, 169

U.S. 366, 389-390 (1898) (upholding work hours law

covering only mine workers). Indeed, many modern

state workplace safety laws establish special protec-

tigons for particular occupations and _indus-

tries—typically, as occurred here, in response to

identified conditions peculiar to those jobs. See App.

86a-874 (noting unique workplace stresses on hotel

room attendants as result of “quota system” and

increased work intensity). On the precise issue

here—rest and meal breaks—many States have

requirements that vary by job description, reflecting

differences in the need for and feasibility of taking

breaks. See, e.g., 7 Colo. Code Regs. § 1103-1(8)

(employees in four industries—retail and _ trade,

commercial and support service, food and beverage, and

health and medical—must receive a paid ten-minute

rest break for each four-hour work period and a

thirty-minute meal break after five hours); Neb. Rev.

Stat. § 48-212 (2008) (employees in assembly plants,

workshops, and other mechanical establishments must

receive thirty-minute meal break during each eight-hour

shift and be allowed to leave the premises during this

break); N.Y. Lab. Law § 162 (McKinney 2009)

(mandating thirty-minute meal break for most

employees whose shifts exceed six hours, but requiring

sixty-minute meal break for factory workers); 43 Pa.

Cons. Stat. Ann. § 1301.207(c) (West 2009) (seasonal

farm workers may not work more than five hours

without meal or rest period); Wis. Stat. Ann. § 103.85(2)

(West 2009) (exempting janitors, security personnel,

persons involved in the manufacture or distribution of

dairy products, and “persons employed in bakeries, flour

and feed mills, hotels, and restaurants” from

Wisconsin’s One Day Rest in Seven Act).

Similarly, pretections against mandatory overtime

often target particular occupations, like nurses and

miners, seen as vulnerable to overwork. See, e.g., 210

Ill. Comp. Stat. 85/10.9(b) (2008) (barring hospitals

from requiring nurses to work mandatory overtime);

Me. Rev. Stat. Ann. tit. 26, § 603(5) (2009) (nurses

cannot be disciplined for refusing to work overtime, and

must be allowed at least ten hours of off-duty time

immediately following twelve or more consecutive hours

of worktime); R.I. Gen Laws § 23-17.20-3(b) (2009) (in

no case will nurse be required to work longer than

twelve hours except when there is an unforeseeable

emergency); Wash. Rev. Code § 49.28.140 (West 2009)

(nurses may not be required to work overtime); W. Va.

Code Ann. § 21-5F-3 (West 2009) (no nurse may be

forced to work overtime except in cases where patient’s

safety is at risk); Alaska Stat. § 23.10.410 (2009) (with

certain exceptions, miner may not be employed in

underground mine or work more than ten hours in

twenty-four hours); Colo. Rev. Stat. Ann. § 8-13-102

(West 2009) (mine workers may be forced to work more

than eight hours only if there is written work plan

outlining conditions under which longer workday would

be permitted and employees are given reasonable notice

of proposed increase in work schedule); Mo. Ann. Stat.

§ 290.020 (West 2009) (mining employees may not be

required to work longer than eight hours).

It is likewise common for state standards to apply

differently in different geographic locations. Generally,

such measures provide heightened protections for

workers in urban areas, in light of higher costs of living

or different industry or economic conditions, as was true

here. See App. 94a-95a (Amendment “protect[s] hotel

room attendants from overwork in the jurisdiction

where the majority of such employees would be

impacted and in the jurisdiction best positioned to

absorb the costs of [the] new regulations.”). The proto-

typical example is prevailing wage statutes, long used by

States to establish minimum pay for public projects on

a county-by-county (as well as trade-by-trade) basis,

with higher rates for workers in urban than rural areas.

See, e.g., 820 Ill. Comp. Stat. 130/1, 2 (2008) (setting

prevailing wage as prevailing hourly rate including

fringe benefits for work of similar character in same

locality); accord Ind. Code Ann. § 5-16-7-1 (West 2009);

Tenn. Code Ann. § 12-4-405 (West 2009); Tex. Gov’t

Code Ann. § 2258.021(a)(1) (2009); Wis. Stat. Ann.

§ 103.49(d)(1) (West 2009).’ Local ordinances also rou-

tinely provide different substantive workplace rules.

See, e.g., http://www.no-smoke.org/pdf/100ordlisttabs.

pdf (last visited Jun. 26, 2009) (chart collecting U.S.

local smoke-free workplace ordinances).

In addition, while the Seventh Circuit found fault

with the Amendment’s anti-retaliation provision, such

provisions are routinely used to promote improved

compliance in the face of limited enforcement resources.

For example, state and local laws often provide for

More recently, state “living wage” laws have set minimum

pay levels by geographic region. See, e.g., Md. Procure. Regs.

21.11.10.01 § (B)(4), (5) (2009), and http://www.dllr.state.

md.us/labor/livingwagefaqa.shtml#¥15 (last visited Jun. 26,

2009) (minimum wage for employees under certain state

services contracts is nearly three dollars an hour higher for

workers in urban counties).

rebuttable presumptions of retaliation against workers

who assert their rights. See, e.g., Ariz. Rev. Stat. Ann.

§ 23-364(B) (2009) (adverse action within ninety days of

assertion of minimum wage law rights “raise[s] a

presumption that such action was retaliation, which

may be rebutted by clear and convincing evidence that

such action was taken for other permissible reasons”);

NJ. Stat. Ann. § 34:20-9 (West 2009) (rebuttable

presumption arises upon adverse action within ninety

days of asserting rights under law protecting against

independent contractor classification in construction);

San Diego, Cal., Municipal Code § 22.4230 (2005) (same

for adverse action within ninety days of providing

information toward or cooperating in compliance

investigation); Santa Fe, N.M., Municipal Ordinance

28-1.6(B) (same for adverse action within sixty days of

asserting or communicating information regarding

rights); S.F., Cal., Admin. Code § 12W.7 (same for

adverse action within ninety days of filing complaint,

cooperating with investigation, opposing any unlawful

practice, or informing person of rights).

Likewise, while the Seventh Circuit held that the

Amendment's treble damages provision “can in no sense

be considered ‘minimal,’” App. 37a, many States require

treble damages or similarly substantial penalties to

secure compliance with their minimum wage and

workplace safety laws. See, e.g., Ariz. Rev. Stat. Ann.

§ 23-364(G) (2009) (requiring mandatory treble

damages for mini-mum wage violations plus daily

penalties for retaliation against workers seeking to

enforce their rights); Ohio Const. Art. II, § 34a (same);

Mass. Gen. Laws. Ann. ch. 149, § 27 (West 2008) (treble

damages for minimum wage violations); Wis. Stat. Ann.

§ 103.96(2) (West 2008) (triple backpay for willful

violations of anti-retaliation provisions under migrant

worker protection law).

* * *

The ruling below calls into question these and other

substantive state and local laws governing the work-

place. This Court’s intervention thus is essential to

resolve the lower courts’ uncertainty over the scope of

the States’ police power in this critical area of state

regulation.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

RICHARD G. MCCRACKEN LisA MADIGAN

PAUL L. MORE Attorney General

Davis Cowell & Bowe, LLP of Illinois

595 Market St., Ste. 1400 MICHAEL A. ScoDRO*

San Francisco, California Solicitor General

94105 JANE ELINOR NotTz

(415) 597-7200 Deputy Solicitor General

WESLEY KENNEDY CaRL J. ELITz

N. ELIZABETH REYNOLDS Ass’t Attorney General

Allison Slutsky & 100 West Randolph Street

Kennedy PC Chicago, Illinois 60601

230 W. Monroe, Ste. 2600 (312) 814-3698

Chicago, Illinois 60606

(312) 364-9400 * Counsel of Record

JUNE 2009

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3377

520 SOUTH MICHIGAN AVENUE ASSOCIATES,

LTD., d/b/a THE CONGRESS PLAZA HOTEL &

CONVENTION CENTER, Plaintiff-Appellant,

Vv.

CATHERINE SHANNON, Director of the Illinois

Department of Labor, Defendant-Appellee,

and UNITE HERE LOCAL 1, Intervenor-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 06 C 4552 — Joan Humphrey Lefkow, Judzge.

Argued Feb. 19, 2008.

Decided Dec. 15, 2008.

Rehearing En Banc Denied Jan. 28, 2009

Before MANION, KANE, and TINDER, Circuit

Judges.

MANION, Circuit Judge. 520 S. Michigan

Avenue Associates. Ltd., doing business as The

Congress Plaza Hotel & Convention Center (“Congress

Plaza”), sued the Director of the Illinois Department of

Labor (“Illinois”), seeking a declaratory judgment that

Illinois statute 820 ILCS 140/3.1, the Hotel Room

Attendant Amendment (“Attendant Amendment”) to

the One Day Rest in Seven Act, 820 ILCS 140/1 et seq.,

is unconstitutional. Unite Here Local 1, a labor union,

intervened and together with Illinois moved to dismiss

pursuant to Fed.R.Civ.P. 12(b)(6). The district court

granted the defendant’s and intervenor’s motions to

dismiss, rejecting Congress Plaza’s arguments that the

Attendant Amendment was preempted by the National

Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.,

and violated its due process and equal protection rights.

Congress Plaza appeals. Because the Attendant Am-

endment is preempted by the NLRA, we reverse.

Congress Plaza is located on Michigan Avenue in

Chicago, Illinois, in Cook County. Congress Plaza,

employs, among others, room attendants who clean

guest rooms. The Unite Here Local 1 union (“Unite

Here”) represents the approximately 130 room attend-

ants working at Congress Plaza, as well as several

hundred room attendants working at other Cook Coun-

ty hotels. As of the date of oral argument, Congress

Plaza and Unite Here’s latest collective bargaining

agreement (“CBA”) had expired on December 31, 2002.

Since June 2003, Unite Here members have engaged

in a work stoppage while negotiating a new CBA.

Congress Plaza has continued to abide by the terms of

the expired CBA, requiring a work day of eight

productive hours and providing meals free of charge to

its room attendants, along with clean and sanitary

facilities. Congress Plaza also customarily provides one

half-hour unpaid lunch break.

In the midst of Congress Plaza’s negotiations

with Unite Here, the Illinois legislature passed the

Hotel Rooin Attendant Amendment (“Attendant Am-

endment”) to the One Day Rest in Seven Act. Tire One

Day Rest in Seven Act was originally enacted in July

1935 and currently provides that “[e]very employer

shall allow every employee except those specified in this

Section at least twenty-four consecutive hours of rest in

every calendar week in addition to the regular period of

rest allowed at the close of each working day.”* 820

1 . - , os .

Under current law, Illinois exempts seven categories of

employees from the mandated rest day: “(1) Part-time

employees whose total work hours for one employer during a

calendar week do ‘not exceed 20; and (2) Employees needed in

case of breakdown of machinery or equipment or other

emergency requiring the immediate services of experienced and

competent Jabor to prevent injury to person, damage to

property, or suspension of necessary operation; and (3)

Employees employed in agriculture or coal mining; and (4)

Employees engaged in the occupation of canning and process-

ing perishable agricultural products, if such employees are

employed by an employer in such occupation on a seasonal basis

and for not more than 20 weeks during any calendar year or 12

month period; and (5) Employees employed as watchmen or

(continued...)

ILCS 140/2. The One Day Rest in Seven Act further

provides: “Every employer shall permit its employees

who are to work for 7 1/2 continuous hours or longer,

except those specified in this Section, at least 20

minutes for a meal period beginning no later than 5

hours after the start of the work period.”* 820 ILCS

140/3. The section mandating a 20-minute meal period

“does not apply to employees for whom meal periods are

established through the collective bargaining process.”

Id.

, (...continued)

security guards; and (6) Employees who are employed in a

bonafide executive, administrative, or professional capacity or

in the capacity of an outside salesman, as defined in Section

12(a)(1) of the federal Fair Labor Standards Act, as amended,

and those employed as supervisors as defined in Section 2(11)

of the National Labor Relations Act, as amended; and (7)

Employees who are employed as crew members of any

uninspected towing vessel, as defined by Section 2101(40) of

Title 46 of the United States Code, operating in any navigable

waters in or along the boundaries of the State of Illinois.” 820

ILCS 140/2.

“This Section does not apply to employees who monitor

individuals with developmental disabilities or mental illness, or

both, and who, in the course of those duties, are required to be

on cal] during an entire 8 hour work period; however, those

employees shall be allowed to eat a meal during the 8 hour work

period while continuing to monitor those individuals.” 820

ILCS 140/3.

The Attendant Amendment to the One Day Rest

in Seven Act provides, in full:

§ 3.1. Hotel room attendants.

(a) As used in this Section, “hotel room

attendant” means a person who cleans or puts

in order guest rooms in a hotel or other

establishment licensed for transient occu-

pancy.

(b) This Section applies only to hotels and

other establishments licensed for transient

occupancy that are located in a county witha

population greater than 3,900,000.°

law, every hotel room attendant shall receive

a minimum of two 15-minute paid rest breaks

and one 30-minute meal period in each

workday on which the hotel room attendant

works at least 7 hours. An employer may not

require any hotel room attendant to work

during a break period.

. Only one county out of the 102 counties in Illinois — Cook

County — has a population of more than three million people.

As of the 2000 census, Cook County’s population was 5,376,741.

See http://illinoisgis.ito.state.il.us /census2000/county_cersus.

asp?ct=PO0O010001 (last visited August 15, 2008}. DuPage

County has the next highest population base, but as of 2000,

not even one million people resided there. /d.

(d) Every employer of hotel room attendants

shall make available at all times a room on

the employer’s premises with adequate sea-

ting and tables for the purpose of allowing

hotel room atte.idants to enjoy break periods

in aclean and comfortable environment. The

room shall have clean drinking water pro-

vided without charge.

(e) Each employer of hotel room attendants

shall keep a complete and accurate record of

the break periods of its hotel room attend-

ants.

(f) An employer who violates this Section

shall pay to the hotel room attendant 3 times

the hotel room attendant’s regular hourly

rate of pay for each workday during which the

required breaks were not provided.

(g) It is unlawful for any employer or an

employer’s agent or representative to take

any action against any person in retaliation

for the exercise of mghts under this Section.

In any civil proceeding brought under this

subsection (f), if the plaintiff establishes that

he or she was employed by the defendant,

exercised rights under this Section, or alleged

in good faith that the defendant was not

complying with this Section, and was

thereafter terminated, demoted, or otherwise

penalized by the defendant, then a rebuttable

presumption shall arise that the defendant’s

action was taken in retaliation for the

exercise of rights established by this Section.

To rebut the presumption, the defendant

must prove that the sole reason for the

termination, demotion, or penalty was a

legitimate business reason.

(h) In addition to the remedies provided in

Sections 6 and 7, a person claiming violation

of this Section shall be entitled to all remedies

available under law or in equity, including but

not limited to damages, back pay, reinstate-

ment, or injunctive relief. Any person termin-

ated in violation of this Section shall recover

treble his sv her lost normal daily compen-

sation and fringe benefits, together with

interest thereon, and any consequential

damages suffered by the employee. The court

shall award reasonabie attorney’s fees and

costs to a prevailing plaintiff in an

enforcement action under this Section.

820 ILCS 140/3.1.

After the Illinois legislature passed the Atten-

dant Amendment and the governor signed it into law,

the Illinois Hotel and Lodging Association filed a

declaratory judgment action in state court against the

Director of the Illinois Department of Labor, seeking to

have the Attendant Amendment declared uncon-

stitutional. The state trial court granted the Illinois

Department of Labor summary judgment, concluding

that the Attendant Amendment was not preempted, and

that the Attendant Amendment did not violate the

Illinois Constitution’s prohibition on special legislation

or the plaintiff's right to equal protection. Ill. Hotel &

Lodging Ass’n v. Ludwig, No. 05CH13796, *10 (Circuit

Court of Cook County, Illinois). The Illinois appellate

court affirmed. See Ill. Hotel & Lodging Ass’n v. Lud-

wig, 869 N.E.2d 846 (Ill. App. Ct. lst Dist. 2007). The

Supreme Court of Illinois declined to hear the Illinois

Hotel and Lodging Association’s appeal. Ill. Hotel &

Lodging Ass’n v. Ludwig, 875 N.E.2d 1111 (Ill. 2007).

While the Illinois Hotel and Lodging Associ-

ation’s case was making its way through the Illinois

state court system, Congress Plaza, which is not a

member of that trade organization, filed its own

challenge to the Attendant Amendment in federal court.

Congress Plaza argued that the Attendant Amendment

‘s preempted by the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 151 et seqg., and section 301 of the

Labor Management Relations Act (“LMRA”), 29 U.S.C.

§ 185(a). Congress Plaza also alleged that the Attendant

Amendment violated its due process and equal

protection rights, as well as provisions of the Illinois

Constitution. Congress Plaza sought a permanent

injunction prohibiting enforcement of the Attendant

Amendment.

Illinois and Unite Here filed separate motions to

dismiss under Fed.R.Civ.P. 12(b)(6). Illinois also filed

a motion to dismiss under Fed.R.Civ.P. 12(b)(1), claim-

ing Eleventh Amendment immunity from the state

claims. The district court granted the defendants’

motions to dismiss Congress Plaza’s preemption and

equal protection and due process claims. 520 S. M:ch-

igan Ave. Assoc., Ltd. v. Shannon, 2007 WL 2728757 at

*8-11 (N.D.Ill. 2007). The district court then declined

jurisdiction over Congress Plaza’s state law claims. Id.

at *11. Congress Plaza appeals.

II.

On appeal, Congress Plaza argues that the NLRA

preempts the Attendant Amendment.* Whether the

NLRA preempts the Attendant Amendment is a pure

legal question and therefore we review the district

court’s decision de novo. See Cannon v. Edgar, 33 F.3d

880, 883 (7th Cir. 1994). Moreover, our de novo review

Congress Plaza does not pursue its §301 LMRA pre-

emption claim on appeal. Moreover, while Congress Plaza

states in its Statement of the Case that it “also claims the

amendment violates the special legislation provision of the

Illinois Constitution and constitutes an arbitrary legislative

classification,” Appellant Br. at 2, it does not present these

claims in its Issues Presented For Review. Congress Plaza also

does not make any argument in support of its state law claims.

Accordingly, Congress Plaza has waived any argument based on

state law. See Hildebrandt v. Ill. Dep’t of Natural Res., 347

F.3d 1014, 1025 n.6 (7th Cir. 2003) (holding that when a party

presents no argument in its brief with respect to a particular

claim, any arguments with respect to that claim are waived).

10a

is not limited by the state court’s decision in Ill. Hotel &

Lodging Ass’n v. Ludwig, 869 N.E.2d 846, holding that

the Attendant Amendment is not preempted by the

NLRA. We “owe[ ] no deference to state-court inter-

pretation of the United States Constitution.” TMJ

Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1181 (10th

Cir. 2007) (citing Ace Cycle World, Inc. v. Am. Honda

Motor Co., 788 F.2d 1225, 1228 (7th Cir. 1986)).°

Our review of preemption begins with the

Constitution’s Supremacy Clause. See Cannon, 33 F.3d

at 883. The Supremacy Clause provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall

be the supreme Law of the Land; and the Judges

. When the question of federal preemption of state law is at

issue, state and federal courts, perhaps not surprisingly, may

reach starkly divergent views on the United States

Constitution, as illustrated most clearly in Geier v. American

Honda Motor Co., 529 U.S. 861 (2000). In Geier, the Supreme

Court held that a state tort claim against Honda for failing to

provide a driver’s side air bag was preempted by a federal

regulation. Prior to the Supreme Court’s ruling, every federal

circuit which considered the issue had held that the state law

was preempted, while state courts uniformly held to the

contrary — that federal law did not preempt state law. Geier,

529 U.S. at 866.

lla

in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the

Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. Thus, under Article VI of the

Constitution, federal law is the “supreme Law of the

Land,” and “it preempts state laws that ‘interfere with,

or are contrary to, federal law.’” Boomer v. AT & T

Corp., 309 F.3d 404, 417 (7th Cir. 2002) (quoting

Hillsborough County v. Automated Medical Laborat-

ories, Inc., 471 U.S. 707, 712, 105S.Ct. 2371, 85 L.Ed.2d

714 (1985)).

In Metropolitan Life Ins. Co. v. Massachusetts,

471 U.S. 724 (1985), the Supreme Court summarized

the task courts face when confronted with the issue of

preemption, stating:

In deciding whether a federal law pre-empts a

state statute, our task is to ascertain Congress’

intent in enacting the federal statute at issue.

Pre-emption may be either express or implied,

and is compelled whether Congress’ command is

explicitly stated in the statute’s language or

implicitly contained in its structure and purpose.

Id. at 738 (internal quotations omitted).

As the Supreme Court recently explained in

Chamber of Commerce v. Brown, 1288S. Ct. 2408 (2008),

“the NLRA itself contains no express preemption

provision.” Jd. at 2412. Thus, the issue facing us is one

of implied preemption. With implied preemption, a state

12a

law should be sustained “unless it conflicts with federal

law or would frustrate the federal scheme, or unless whe

courts discern from the totality of the circumstances

that Congress sought to occupy the field to the exclusion

of the States.” Malone v. White Motor Corp., 435 U.S.

497 (1978). Further, in the context of the NLRA, a

state law is preempted by implication if it conflicts with

the underlying goals and policies of the NLRA or stands

“as an obstacle to the accomplishment and execution of

the full purposes and objectives” of Congress. Livadas

v. Bradshaw, 512 U.S. 107, 120 (internal quotation om-

itted).

From these general preemption principles, the

Supreme Court has developed two relevant NLRA

preemption doctrines: Garmon preemption and Mach-

inists preemption. See San Diego Bldg. Trades Council

v. Garmon, 359 U.S. 236 (1959); Machinists ov.

Wisconsin Employment Relations Comm’n, 427 U.S. 132

(1976).° The first doctrine, Garmon preemption, seeks

to prevent conflicts between state and local regulation

and Congress’s integrated scheme of regulation

embodied in Sections 7 and 8 of the NLRA. Garmon,

A third preemption doctrine, based on § 301 of the LMRA,

“pre-empts state law only insofar as resolution of the state-law

claim requires the interpretation of a collective-bargaining

agreement... .” Lingle v. Norge Div. of Magic Chef, 486 U.S.

399, 410 n. 8 (1988). Congress Plaza argued to the district court

that § 301 preempts the Attendant Amendment, but as noted

above, it does not pursue that argument on appeal

13a

359 U.S. at 244-45. Garmon preemption further seeks

to protect the NLRB’s primary jurisdiction in cases

involving sections 7 and 8 of the NLRA. Id. See also

Livadas v. Bradshaw, 512 U.S. 107, 117, n. 11 (1994).

The second relevant NLRA preemption doctrine

is Machinists preemption. See Machinists v. Wis. Emp-

loyment Relations Comm ’n, 427 U.S. 132 (1976). As the

Supreme Court explained in Metropolitan Life, 471 U.S.

724, this “second pre-emption doctrine protects against

state interference with policies implicated by the struct-

ure of the Act itself, by pre-empting state law and state

causes of action concerning conduct that Congress

intended to be unregulated.” Jd. at 749. This preemp-

tion doctrine governs “preemption questions that arose

concerning activity that was neither arguably protected

against employer interference by §§ 7 and 8(a)(1) of the

NLRA, nor arguably prohibited as an unfair labor pract-

ice by § 8(b) of that Act. 29 U.S.C. § 157, 158(a)(1) and

(b).” Id. Thus, in Machinists, the Court held “that a

State may not penalize a concerted refusal to work over-

time that was neither prohibited nor protected under

the NLRA, for ‘Congress intended that the conduct

involved be unregulated because [it] left [the conduct]’

to be controlled by the free play of economic forces.”

Metropolitan Life, 471 U.S. at 750 (quoting Machinists,

427 U.S. at 140, 96 S. Ct. 2548). While initially,

Machinists preemption sought “to determine whether

certain weapons of bargaining neither protected by § 7

nor forbidden by § 8(b) could be subject to state

regulation, [i]t has been used more recently to deter-

l4a

mine the validity of state rules of general application

that affect the right to bargain or to self-organization.”

Metropolitan Life, 471 U.S. at 749 n. 27 (internal

citations omitted). As the Supreme Court recently

explained in Brown, “Machinists preemption is based

on the premise that Congress struck a balance of

protection, prohibition, and laissez-faire in respect to

union organization, collective bargaining, and labor

disputes.” Brown, 128 S. Ct. at 2412 (internal quota-

tions omitted). We also elaborated on the concept of

Machinists preemption in Cannon, explaining that this

doctrine “prohibits state and municipal regulations of

areas that Congress left to the free play of economic

forces.” Cannon, 33 F.3d at 885 (internal quotations

and citations omitted).

Congress Plaza argues that the Attendant Am-

endment is preempted by both Machinists preemption

and Garmon preemption. At oral argument, though, in

response to our query, Congress Plaza acknowledged

that it believes Machinists preemption the stronger of

the two arguments. We agree. See Metropolitan Life,

471 U.S. at 751 (considering whether a state law estab-

lishing minimal mental health benefits in insurance

plans was preempted by the NLRA and stating that

“alll parties correctly understand this case to involve

Machinists pre-emption”). Therefore, we begin with

Congress Plaza’s argument that Machinists preempts

the Attendant Amendment.

15a

Congress Plaza argues Machinists preempts the

Attendant Amendment because the Attendant Amend-

ment “intrudes on the parties’ collective bargaining

process” and alters the “free play of economic forces.”

In response, Illinois and Unite Here (herein-after

collectively “appellees”) argue that the Attendant

Amendment is a minimum labor standard and as such

is not preempted by the NLRA, citing Metropolitan Life,

471 U.S. 724 and Fort Halifax, 482 U.S. 1.

In Metropolitan Life, 471 U.S. 724, two insurance

companies (“appellants”), which issued group-health

insurance policies in Massachusetts, argued that a

Massachusetts statute requiring “any general health-

insurance policy that provides hospital and surgical

coverage, or any benefit plan that has such coverage, to

provide as well a certain minimum of mental-health

protection,” was preempted by ERISA and the NLRA.

Id. at 730. The appellants in Metropolitan Life argued

that “[b]lecause welfare benefits are a rnandatory sub-

ject of bargaining under the labor law, .. . the NLRA

pre-empts any state attempt to impose minimum-

benefit terms on the parties.” Jd. at 751-52.

The Supreme Court rejected this argument, con-

cluding that “[t]he evil Congress was addressing [with

the NLRA]... was entirely unrelated to local or federal

regulation establishing minimum terms of employ-

ment.” Jd. at 754. Accordingly, the Court held that “[n]o

incompatibility exists, therefore, between federal rules

designed to restore the equality of bargaining power,

16a

and state or federal legislation that imposes minimal

substantive requirements on contract terms negotiated

between parties to labor agreements, at least so long as

the purpose of the state legislation is not incompatible

with these general goals of the NLRA.” Id. at 754-55.

The Court further expounded on the meaning of

minimum state labor standards, stating they “affect

union and nonunion employees equally, and neither

encourage nor discourage the collective-bargaining

processes that are the subject of the NLRA. Nor do they

have any but the most indirect effect on the right of self-

organization established in the Act.” Jd. at 755. “Most

significantly,” continued the Court, there was “no

suggestion in the legislative history of the [NLRA] that

Congress intended to disturb the myriad state laws then

in existence that set minimum labor standards, but

were unrelated in any way to the processes of bar-

gaining or self-organization.” Jd. at 756. Rather, the

Court “believe[d] that Congress developed the frame-

work for self-organization and collective bargaining of

the NLRA within the larger body of state law promoting

public health and safety.” Jd. The Supreme Court add-

ed:

Federal labor law in this sense is interstitial,

supplementing state law where compatible, and

supplanting it only when it prevents the accomp-

lishment of the purpose of the federal Act. Thus

the Court has recognized that it cannot declare

pre-empted all local regulation that touches or

concerns in any way the complex interrelation-

17a

ship between employees, employers, and unions;

obviously, much of this is left to the States.

When a state law establishes a minimal employ-

ment standard not inconsistent with the general

legislative goals of the NLRA, it conflicts with

none of the purposes of the Act.

Id. at 756-57 (internal quotation omitted).

The Supreme Court then applied the afore-

mentioned principles to the case at hand and held:

Massachusetts’ mandated-benefit law is an

insurance regulation designed to implement the

Commonwealth’s policy on mental-health care,

and as such is a valid and unexceptional exercise

of the Commonwealth’s police power. It was

designed in part to ensure that the less wealthy

residents of the Commonwealth would be

provided adequate mental-health treatment

should they require it. Though [the insurance

statute], like many laws affecting terms of

employment, potentially limits an employee’s

right to choose one thing by requiring that he be

provided with something else, it does not limit

the rights of self-organization or collective

bargaining protected by the NLRA, and is not

pre-empted by the Act.

Id. at 758. Accordingly, the Supreme Court held that

Massachusetts’ mandated-benefit law is not preempted

by the NLRA. 7d.

18a

Just two years later, in Fort Halifax Packing Co.

v. Coyne, 482 U.S. 1 (1987), the Supreme Court again

addressed the issue of the relationship between

“minimum labor standards” and preemption. In Fort

Halifax, an employer challenged a Maine statute

requiring employers to provide severance pay to certain

employees. Jd. at 5. Employees qualified if their em-

ployers laid off 100 or more employees, or relocated

more than 100 miles away, so long as the employee had

worked at the plant at least three years. Id. Severance

pay was not required if the employee accepted employ-

ment at the new plant location or if a contract with the

employee addressed the issue of severance pay. Id. Fort

Halifax argued the state law was preempted because,

while it did not directly regulate economic activity, it

indirectly undercut the collective bargaining process. Id.

at 20. The Supreme Court first noted that it had

rejected in Metropolitan Life the argument “that a

State’s establishment of minimum substantive labor

standards undercuts collective bargaining... .” Id. at

20. The Court then explained its holding in Metropol-

itan Life noting, among other things “that the NLRA is

concerned with ensuring an equitable bargaining

process, not with the substantive terms that may

emerge from such bargaining.” /d.

After the Court in Fort Halifax further explained

Metropolitan Life, the Court stated that

[ijt is true that the Maine statute gives employ-

ees something for which they otherwise might

19a

have to barg n. That is true, however, with

regard to any state law that substantively

regulates employment conditions. Both emp-

loyers and employees come to the bargaining

table with rights under state law that form a

“backdrop” for their negotiations.

Id. at 21. The Court rejected the claim of preemption,

stating “the mere fact that a state statute pertains to

matters over which the parties are free to bargain

cannot support a claim of pre-emption, for there is

nothing in the NLRA... which expressly forecloses all

state regulatory powers with respect to those issues . . .

that may be the subject of collective bargaining.” Jd. at

21-22 (internal quotation omitted).

The Supreme Court in Fort Halifax concluded

that the Maine statute “is not pre-empted by the NLRA,

since its establishment of a minimum labor standard

does not impermissibly intrude upon the collective-

bargaining process.” Id. at 23.

The Supreme Court’s decisions in Metropolitan

Life and Fort Halifax stand for several propositions.

First, the NLRA is concerned primarily with estab-

lishing an equitable process for bargaining, and not the

substantive terms of bargaining. Fort Halifax, 482 U.S.

at 20; Metropolitan Life, 471 U.S. at 753-54. Second, a

state law is not preempted by the NLRA merely because

it regulates a mandatory subject of bargaining. Fort

Halifax, 482 U.S. at 21; Metropolitan Life, 471 U.S. at

757. And third, the NLRA does not preempt a state law

20a

which “establishes a minimum labor standard that does

not intrude upon the collective-bargaining process.”

Fort Halifax, 482 U.S. at 7; see also Metropolitan Life,

471 U.S. at 754-55 (“No incompatibility exists,

therefore, because federal rules designed to restore the

equality of bargaining power, and state or federal

legislation that imposes minimal substantive require-

ments on contract terms negotiated between parties to

labor agreements, at least so long as the purpose of the

state legislation is not incompatible with these general

goals of the NLRA.”).

Against this backdrop, then, we return to the

parties’ arguments. As noted above, Congress Plaza

claims that the Attendant Amendment is preempted by

Machinists because it “intrudes on the parties’ collect-

ive bargaining process” and alters the “free play of

economic forces.” In response, based on Metropolitan

Life and Fort Halifax, appellees claim that the Atten-

dant Amendment is a minimum labor standard and is

thus not preempted. Congress Plaza rejects this char-

acterization of the Attendant Amendment (as a

minimum labor standard), relying on this court’s

decision in Cannon.

In Cannon, a gravediggers’ union, a union mem-

ber, and union leaders sued the State of Illinois, claim-

ing that the Burial Rights Act was preempted by the

NLRA and therefore violated the Supremacy Clause of

the Constitution. Cannon, 33 F.3d at 881. The Burial

Rights Act required cemeteries’ management and labor

2la

unions to agree to establish a pool of workers who would

provide religiously required interments during a labor

dispute. Jd. at 882. Additionally, the Burial Rights Act

provided that “(t]he failure of a cemetery authority or a

labor union to negotiate in good faith to establish a pool

of workers as provided [in the Act] constitutes a willful

violation of this Section,” in which case the court shall

“grant appropriate relief, including . . . an award of

attorney’s fees and the imposition of a fine not to exceed

$1,000 for each interment which is found to have been

delayed in violation of this Section.” Jd. at 882 n.1

(quoting 820 ILCS 135/2.1). After setting forth the gov-

erning law, this court held that the Burial Rights Act

was preempted by both Garmon preemption and

Machinists preemption. Id. at 885. We explained that

“the Burial Rights Act is a direct intrusion by the state

into the collective bargaining process. The Burial

Rights Act purports to regulate a particular term of the

bargaining process — that of a pool of workers — and,

further requires the parties to actually agree on a

particular pool of workers or face sanctions at the hands

of the Illinois courts.” Id. at 884. The court in Cannon

held “the NLRA does not tolerate this kind of invasion

by astate into the collective bargaining process. ...” Id.

Cannon further held that the Burial Rights Act was

preempted by Machinists, because it “intrude[d] on the

collective bargaining process in a variety of ways; it

orders the parties to negotiate as to a _ specific

substantive condition — that of a pool of workers to

perform interments during labor disputes. And, more

22a

invasive, the Burial Rights Act orders the parties to

agree on a pool of workers, or face sanctions for a failure

to do so.” Id. at 885.

Appellees argue in response that Cannon is

distinguishable because the statute at issue in Cannon,

the Burial Rights Act, required the parties to bargain

collectively over the issue of a pool of workers, whereas

the Attendant Amendment does not mandate

bargaining, but instead establishes a minimum labor

standard which does not interfere with the collective

bargaining process. However, this is a distinction

without a difference. As the Supreme Court recently

explained, “{iJn NLRA pre-emption cases, judicial con-

cern has necessarily focused on the nature of the

activities which the States have sought to regulate,

rather than on the method of regulation adopted.”

Brown, 1285S. Ct. at 2414 (internal quotations omitted).

What a state cannot do directiy, it also cannot do

indirectly. Id. at 2415.

The question then is whether the Attendant Am-

endment establishes a minimum labor standard that

does not interfere with collective bargaining. If so, then

the regulation (direct or indirect) is permissible. To

address whether the Attendant Amendment establishes

a minimum labor standard, we turn again to the

Supreme Court. Unfortunately, though, the Supreme

Court’s guidance is sparse. In Metropolitan Life, the

Court merely noted that minimum labor standards

“affect union and nonunion employees equally, and

23a

neither encourage nor discourage the collect-

ive-bargaining processes that are the subject of the

NLRA.” 471 U.S. at 755. The Court added that

minimum labor standards have only “the most indirect

effect on the right of self-organization established in the

- Act... [and] are not laws designed to encourage or

discourage employees in the promotion of their interests

collectively ....” Id. (quoting Barrentine, 450 U.S. at

739 (emphasis in the original)).

While the Attendant Amendment facially affects

union and nonunion employees equally, for several

reasons we conclude that it does not constitute a

genuine minimum labor standard. First, unlike the

statutes at issue in Metropolitan Life and Fort Halifax,

the Attendant Amendment is not a statute of general

application. In Metropolitan Life, the state law at issue

did not regulate employment, but rather regulated

insurance policies and it applied to all “general

health-insurance polic[ies]” and “any benefit plans.”

Metropolitan Life, 471 U.S. at 730. Significantly, in

Metropolitan Life, the Court characterized the law as

one of general application, stating: “Congress appar-

ently did not consider the question of whether state

laws of general application affecting terms of

collective-bargaining agreements subject to mandatory

bargaining were to be preempted.” Jd. at 753 (emphasis

added). See also Livadas, 512 U.S. at 123 n.17 (stating

that “Congress is understood to have legislated against

a backdrop of generally applicable [state] labor stan-

dards”). In Fort Halifax, the state’s severance statute

24a

applied to all employers who laid off 100 or more

employees (or relocated 100 or more miles away). Fort

Halifax, 482 U.S. at 5. While not universal in app-

lication (since it only applied to larger layoffs or distant

relocations), the statute still had a very broad app-

lication. See, e.g., Carpenters Local Union No. 26 v.

U.S. Fidelity & Guar. Co., 215 F.3d 136, 145 (1st Cir.

2000) (stating, in the context of ERISA preemption, that

a law of general application “applies to a sufficiently

broad, sufficiently generalized universe of situations”).

Other circuits likewise characterize “minimum

labor standards” as laws of general application. See

Chamber of Commerce v. Bragdon, 64 F.3d 497, 503

(9th Cir. 1995) (“This is also not the type of regulation

of general application that assures that certain coverage

provisions be included in all health insurance contracts,

such as in Metropolitan Life; nor is it the type of

regulation seeking to alleviate a particular hardship

such as plant closings that affect the employees and the

community.”); Barnes v. Stone Container Corp., 942

F.2d 689, 692 (9th Cir. 1991) (“The Supreme Court has

upheld state statutes which, although they affect

employees covered by collective bargaining agreements,

are statutes of general applicability and do not primarily

‘regulate relations between employees, their union, and

their employer.’ ”) (emphasis in original) (quoting New

York Tel. Co. v. New York State Dep't. of Labor, 440 U.S.

519, 533 (1979)); Hull v. Dutton, 935 F.2d 1194, 1198

(11th Cir. 1991) (holding that Alabama’s longevity pay

statute is not a “minimum labor standard” in part

25a

because the “statute applies only to its own employees

and not to its citizens generally”). The Attendant

Amendment, however, does not have the general

applicability seen in these cases. Rather, it applies to

only one occupation (room attendants), in one industry

(the hotel industry), in one county (Cook county).’

These limitations distinguish the Attendant Amend-

ment materially from the statutes of general app-

lication considered in Metropolitan Life and Fort

Halifax.

The appellees argue that minimum labor

standards that apply only to particular occupations,

industries or categories of employers have survived

preemption challenge, citing a series of cases. See

Appellee Br. at 20-21 citing among others, Fort Halifax,

482 U.S. at 5 (plant closing law that applied to layoffs

with 100 or more employees not preempted);

Dillingham v. Sonoma County, 190 F.3d 1034, 1041 (9th

Cir. 1999) (minimum standards that applied only to

apprentices in skilled construction trades not pre-

empted); Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 485,

490 (9th Cir. 1996) (overtime regulation applying only

to miners not preempted); Nat. Broadcasting Co. v.

Bradshaw, 70 F.3d 69, 71-72 (9th Cir. 1995) (California

regulation applying only to broadcast employees not

The statute by its terms applies to any county with a

population of three million or more, but as noted above, out of

102 counties, only Cook county has the requisite number of

residents.

26a

preempted); and Wash. Serv. Contractors Coalition v.

District of Columbia, 54 F.3d 811, 819 (D.C.Cir. 1995).*

The appellees further rely on the Ninth Circuit’s deci-

sion in Associated Builders & Contractors of So. Cal.,

Inc. v. Nunn, 356 F.3d 979, 990 (9th Cir. 2004), wherein

the court stated that “state substantive labor standards,

including minimum wages, are not invalid simply

because they apply to particular trades, professions, or

job classifications rather than the entire labor market.”

Unlike these cases, though, the Attendant Am-

endment is not just limited by trade — it is also limited

by location; the Attendant Amendment is astate statute

that applies only in one county in Illinois — Cook

county. That fact distinguishes this case from the series

of cases cited by Appellees, including Nunn; the Attend-

ant Amendment is not just limited to a particular trade,

profession, or job classification; it is also a state statute

limited to only one of Illinois’ 102 counties.

Moreover, we find the Ninth Circuit’s decision in

Bragdon better reasoned. In Bragdon, 64 F.3d 497, the

Chamber of Commerce sued a California county and

Appellees noted parenthetically that Washington Serv.

Contractors, 54 F.3d 811, held a “local ordinance applying only

to janitorial contractors not preempted.” Appellee Br. at 21.

Contrary to Appellees’ assertion, however, the statute at issue

in Washington Serv. Contractors, 54 F.3d 811 was not limited

to janitorial contractors, but applied to persons who performed

“food, janitorial, maintenance, or non-professional health care

services.” Id. at 814.

27a

county officials, challenging an ordinance that required

employers to pay “prevailing wages” to employees on

private construction projects costing over $500,000. Jd.

at 498. The Ordinance stated that its purpose was “to

promote safe construction, minimize the risk of accid-

ents on industrial projects, prevent erosion of the wage

scale, and alleviate the burden on the County’s health

and welfare services and law enforcement, caused by

low-paid workers.” Jd. The “prevailing wages” were de-

fined by the California Department of Industrial

Relations, which determined the “prevailing wage” “by

reference to established collective bargaining agree-

ments within the locality.” Jd. at 498-99. More specific-

ally, “{t]he Director uses formulas that average the

wages and benefits for each craft pursuant to collective-

bargaining agreements applicable in each labor mav-

ket.” Id. at 502. Under the Ordinance, construction

companies were required to agree to pay the state-

determined prevailing wage before the County would

issue a building permit. Jd. at 499. The Chamber of

Commerce argued that the Ordinance was pre-empted

by the NLRA. Jd. The county responded that the pre-

vailing wage ordinance was a “minimum labor stan-

dard” and as such was not preempted. After explaining

general preemption principles, the Machinists doctrine,

and summarizing the Supreme Court’s decisions in

Metropolitan Life and Fort Halifax, the Ninth Circuit

held that the Ordinance establishing the prevailing

wage for construction workers was pre-empted by

Machinists. Id. at 504. In so holding, the Ninth Circuit

28a

concluded that the ordinance was “also very different

from a minimum wage law, applicable to all employees,

guaranteeing a minimum hourly rate.” Bragdon, 64

F.3d at 502 (emphasis added). The Bragdon court also

stressed that the Ordinance at issue was “much more

invasive .. . than the isolated statutory provisions of

general application approved in Metropolitan Life and

Fort Halifax.” Id. The court in Bragdon reasoned:

This is also not the type of regulation of general

application that assures that certain coverage

provisions be included in all health insurance

contracts, such as in Metropolitan Life; nor is it

the type of regulation seeking to alleviate a

particular hardship such as plant closings that

affect the employees and the community. This

Ordinance, by contrast, sets detailed minimum

wage and benefit packages, distinct for each craft

involved in certain limited construction projects.

This minimum varies from time-to-time as new

averages are calculated. The district court noted

that unlike the law upheld in Metropolitan Life,

the Ordinance is more properly characterized as

an example of an interest group deal in public-

interest clothing.

Id. at 503 (internal quotation omitted).”

: While the panel in Nunn expressed disagreement with

some aspects of its Ninth Circuit colleagues’ earlier decision in

Bragdon, see Nunn, 356 F.3d at 990, there were two

(continued...)

29a

Like the Bragdon court, we find the lack of

general application in the Attendant Amendment

significant. In exempting “minimum labor standards”

from the preemptive force of the NLRA, Metropolitan

Life and Fort Halifax both involved laws of general

application and the Supreme Court has characterized

“minimum labor standards” as laws of general app-

lication. Metropolitan Life, 471 U.S. at 753; Fort Hali-

fax,482 U.S. at 5. The Attendant Amendment’s narrow

scope distinguishes it from minimum labor standards

which are not subject to preemption, and places the

Attendant Amendment in the “zone protected and

reserved for market freedom.” Brown, 1285S. Ct. at 2412

(quoting Building & Constr. Trades Council v. Assoc.

Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218,

227 (1993)).

: (...continued)

distinguishing features in Bragdon that separated it from

Nunn. As Nunn recognized, “Congress authorized states to

establish apprenticeship standards and to regulate the

conditions governing the implementation of apprenticeship

programs, whether the apprentices were working on public or

private projects,” and this “differentiates California’s

apprenticeship regulations from the Contra Costa County

ordinance at issue in Bragdon.” Nunn, 356 F.3d at 990-91. The

court in Nunn further distinguished Bragdon, reasoning

“{sjecond and equally important, unlike in the case of the

Contra Costa County ordinance at issue in Bragdon, here

contractors may completely avoid the applicability of the

California apprenticeship regulations” by not hiring appren-

tices. Id. at 991.

30a

The Attendant Amendment’s narrow scope of

application also serves as a disincentive to collective

bargaining. As the Supreme Court explained in

Metropolitan Life, a minimum labor standard should

“neither encourage nor discourage the collective-

bargaining process that are the subject of the NLRA.”

471 U.S. at 755. Yet by passing a statute with such a

narrow focus (one occupation, in one industry, in one

county), there seems to be a disincentive to collective

bargaining and instead encouragement for employers or

unions” to focus on lobbying at the state capital instead

of negotiating at the bargaining table.”

appellees argue its lobbying is irrelevant, because “[f]ederal pre-

emption doctrine evaluates what legislation does, not why legis-

lators voted for it or what political coalitions led to its enact-

ment.” Appellee Br. at 27 (quoting Northern Ill. Chapter of

Assoc. Builders & Contractors v. Lavin, 431 F.3d 1004, 1007

(7th Cir. 2005)). We agree that Unite Here’s lobbying is irrel-

evant, but what is relevant is that the law discourages collective

bargaining.

‘1 The legislative debate shows that several state legislators

recognized this incentive. See, e.g., ILS. Tran. 2005 Reg. Sess.

No. 44, Senator Roskam (“These folks, if they want to win fair

and square, by golly go negotiate. Put it on the table and

negotiate. Look one another in the eye and bargain. Say we’re

not going to dothis job unless you give us these fifteen minutes

ortwenty minutes or have our smoke breaks or take a diet Coke

break or whatever you want to do, but we ought not do this.”);

ILS. Tran. 2005 Reg. Sess. No. 45, Senator Pankau (“The main

(continued...)

3la

The Ninth Circuit explained this phenomenon in

Bragdon, 64 F.3d 497 (9th Cir. 1995). As noted above,

in Bragdon, the Ninth Circuit struck an Ordinance

estab-lishing a prevailing wage for certain private

construc-tion projects. Jd. at 498. In striking the

Ordinance, the Ninth Circuit noted that the same or

similar justific-ations for the exercise of police power in

one business or industry “could be advanced for most

any business or industry.” Jd. at 504. The Ninth

Circuit recognized the impact, stating:

A precedent allowing this interference with the

free play of economic forces could be easily app-

lied to other businesses or industries in estab-

lishing particular minimum wage and benefit

packages. This could redirect efforts of employees

not to bargain with employers, but instead, to

seek to set minimum wage and benefit packages

with political bodies. This could invoke defensive

action by employers seeking to obtain caps on

wages in various businesses or industries. This

could be justified as an exercise of police power

on community welfare grounds of lowering con-

struction costs to attract business to the area or

't (...continued)

item in this particular bill is this is a bargainable issue. It has

been bargained before. It has been presented many times before

this particular labor union. So, why are — if they can’t get it in

their own negotiations, why are they coming down here to us to

put it into law?”).

32a

lowering costs to consumers so as to make prod-

ucts or services more available to the gereral

public. This substitutes the free-play of poiitical

forces for the free play of economic forces that

was intended by the NLRA.

Id. at 504.

Additionally, while on its face this law applies to

union and non-union employees equally, the statute’s

narrow application equates more to a benefit for a bar-

gaining unit than an individual protection. While not

all room attendants in Cook county are unionized, by

regulating only one county the state makes it possible to

target union-heavy counties (or union-light counties),

and thus reward (or punish) union activity. Illinois’

approach further allows non-union employees to ben-

efit from the bargaining of the union which took place,

not at the bargaining table, but at the legislature. In

Bragdon, the Ninth Circuit held that Machinists

preempted an Ordinance which “targets particular

workers in a particular industry and is developed and

revised from the bargaining of others, affects the

bargaining process in a way that is incompatible with

the general goals of the NLRA.” Bragdon, 64 F.3d at

504.

The One Day Rest in Seven Act further shows

that the Attendant Amendment is not a true minimum

labor standard. As noted above, prior to passage of the

Attendant Amendment, the One Day Rest in Seven Act

already established a minimum labor standard for

33a

breaks, requiring employers to provide one unpaid

twenty-minute meal break, although this mandate did

“not apply to employees for whom meal periods are

established through the collective bargaining process.”

820 ILCS 140/3. That minimum labor standard still

applies in Illinois, but the Attendant Amendment sets

a higher standard. [Illinois argues that there is no

reason that it cannot increase the minimum, but that is

not what Illinois did. Rather, Illinois retained its

minimum labor standard and crafted a higher standard

for a specific occupation, in a specific industry, in a spec-

ific county. In explaining minimum labor standards,

the Supreme Court spoke of the laws as establishing a

“backdrop” for their negotiations. Fort Halifax, 482

U.S. at 21. The One Day Rest in Seven Act established

such a state-wide backdrop, while the Attendant Am-

endment overrode the local bargaining process by

imposing confining requirements on one occupation, in

one industry, in one county.

Moreover, the One Day Rest in Seven Act

exempts from coverage employees covered by a

collective bargaining agreement that provides for break

rooms and meal breaks. The Attendant Amendment

does not contain a similar exemption. As the Supreme

Court explained in Fort Halifax, “(t]he fact that the

parties are free to devise their own severance pay

arrangements... strengthens the case that the statute

works no intrusion on collective bargaining [because the

State] has sought to balance ‘he desirability of a

particular substantive labor standard against the nght

34a

of self-determination regarding the terms and con-

ditions of employment.” Fort Halifax, 482 U.S. at 22.

While a “statute that permits no collective bar-gaining

on asubject [may] escape NLRA preern.:ption,” id., when

the parties are not free to devise their own arrangement

preemption applies because the statute intrudes on the

collective bargaining process. That is especially true

where a similar statute of general applicability allows

for such bargaining, but the narrowly targeted law does

not.

Furthermore, the Attendant Amendment does

not qualify as a “minimum” labor standard. “Min-

imum,” as used by the Supreme Court, implies a low

threshold. In fact, in Metropolitan Life, the Supreme

Court spoke ofa state or federal legislation that imposes

“minimal substantive requirements on contract terms

negotiated between parties to labor agreements.” 471

U.S. at 754. The Supreme Court also spoke of minimum

labor standards as forming the backdrop for

negotiations, Fort Halifax, 482 U.S. at 21, again in-

dicating a low-threshold law which serves as a floor.

Our sister circuits have likewise read “minimum labor

standard” as a minimal substantive impact on contracts.

See Bragdon, 64 F.3d at 500 (stating that “[w]hen a

state law establishes a minimal employment standard

not inconsistent with the general legislative goals of the

NLRA, it conflicts with none of the purposes of the

Act”) (emphasis in origina!); Hull, 935 F.2d at 1198

(noting that “[a]lthough the Supreme Court did not

define what it considered to be a ‘minimum labor

35a

standard,’ ” such statutes are “valid and unexceptional

exercise[s] of the [state’s] police power,” and a state

“longevity pay statute is not such a beast”) (internal

quotation omitted). The Attendant Amendment is much

more than a mere backdrop to negotiations because it

establishes terms of employment that would be very

difficult for any union to bargain for. Specifically, in

addition to the requirement for two paid fifteen-minute

breaks and an unpaid thirty-minute lunch break, the

Attendant Amendment creates a presumption of retal-

iation and shifts the burden of proof to the employer.’*

2 Specifically, 820 ILCS 140/3.1(g) provides: “It is

unlawful for any employer or an employer’s agent or

representative to take any action against any person in

retaliation for the exercise of rights under this Section. In

any civil proceeding brought under this subsection (f), if the

plaintiff establishes that he or she was employed by the

defendant, exercised rights under this Section, and was

thereafter terminated, demoted, or otherwise penalized by

the defendant, then a rebuttable presumption shall arise

that the defendant’s action was taken in retaliation for the

exercise of rights established by this Section. To rebut the

presumption, the defendant must prove that the sole reason

for the termination, demotion, or penalty was a legitimate

business reason.” Thus * .nstance, if a hotel fired a room

attendant because the :oom attendant failed to clean the

required daily quota of rooms, but the room attendant

alleged that the real reason for his or her termination was

that he or she had taken the statutorily mandated breaks,

820 ILCS 140/3.1(g) creates a presumption of retaliation.

(continued...)

36a

See 820 ILCS 140/3.1. We are aware of no law or

contract that establishes such a shifting of the burden

of proof, nor which requires proof from the employer

that the “sole reason,” id., for any disciplinary conduct

was a legitimate business reason. Moreover, this

presumption and the shifting of the burden of proof

applies indefinitely; it does not matter how long ago it

was that an employee exercised rights under the

Attendant Amendment or alleged the employer was not

complying with the terms of the Attendant Amendment.

Once either occurs the defendant-employer will from

then on have the burden of proof.’®

In addition to shifting the burden of proof to the

employer, the Attendant Amendment provides that,

along with back pay and reinstatement, an employee

terminated in violation of the Attendant Amendment

2 (...continued)

The burden of proof would then shift to the hotel to prove

that the sole reason for the termination was “a legitimate

business reason.”

'S At oral argument, Unite Here’s attorney stated that the

presumption only applies if the employee is disciplined within

ninety days of asserting that his employer is not complying with

the terms of the Attendant Amendment. However, following

oral argument, United Here’s attorney submitted a letter to

correct this misstatement, confirming that the Attendant

Amendment in fact does not contain any time limitation on the

presumption of retaliation, as Congress Plaza’s attorney had

maintained during oral argument.

37a

“shall recover treble his or her lost normal daily

compensation and fringe benefits, together with interest

thereon, and any consequential damages suffered by the

employee.” The Attendant Amendment further

mandates the payment of costs and attorney’s fees. 820

ILCS 140/3.1(h). These statutory provisions can in no

sense be considered “minimal.” Cf. Brown, 1288S. Ct. at

2410-12, 2416, 2422 (holding that California statute

which prohibited employers that received state funds

from using the funds “to assist, promote, or deter union

organizing,” was preempted by Machinists, because the

“formidable enforcement scheme,” including recovery of

treble damages, attorney’s fees, and costs, “put con-

siderable pressure on an employer either to forgo his

free speech right to communicate his views to his

employees, or else to refuse the receipt of any state

funds”) (internal quotation omitted). This is especially

true when considered in light of what Illinois consider-

ed an appropriate minimum for employers in the

remaining 101 counties in the One Day Rest in Seven

Act-one unpaid twenty-minute break and no shifting of

the burden of proof.

In response, Illinois argues that “minimum” does

not imply a low threshold, but merely is whatever

“minimum” the State decides is appropriate. This

argument clashes with the Supreme Court’s

terminology, i.e., “minimal substantive requirements on

contract terms negotiated between parties to labor

agreements.” Metropolitan Life, 471 U.S. at 754-55

(emphasis added). This argument also cannot prevail in

38a

the circumstances of this case where Illinois had

adopted one truly minimal requirement of general

application, but an exponentially higher mandate for a

specific occupation, in a specific industry, in one county.

Illinois also claims that because Machinists

preemption is concerned with the process and not the

substantive terms of the bargain, the substantive

requirements of the Attendant Amendment are irrel-

evant. Illinois is correct that “[t]he NLRA is concerned

primarily with establishing an equitable process for

determining terms and conditions of employment, and

not with particular substantive terms of the bargain

that is struck when the parties are negotiating from

relatively equal positions.” Metropolitan Life, 471 U.S.

at 753. However, merely because a state statute

establishes a substantive requirement does not mean

that it automatically avoids preemption. Rather, to

avoid preemption the state’s minimum labor standard

must not be incompatible with the goals of the NLRA.

See Metropolitan Life, 471 U.S. at 757; Fort Halifax, 482

US. at 23.

The more stringent a state labor substantive

standard, the more likely it is that the state law

interferes with the bargaining process. And as a

standard becomes more stringent, the state, at a cer-

tain point, effectively substitutes itself as the bar-

gaining representative. As the Ninth Circuit explained

in Bragdon:

39a

The Court has also clearly held that a state’s

requirement of “minimal substantive require-

ments” on contract terms is not such an inter-

ference with the bargaining process as to be pre-

empted. There is no doubt that imposing

substantive requirements does affect the bar-

gaining process. Viewed in the extreme, the

substantive requirements could be so restricted

as to virtually dictate the results of the contract.

The objective of allowing the bargaining process

“to be controlled by the free-play of economic

forces” can be frustrated by the imposition of

substantive requirements, as well as by the

interference with the use of economic weapons.

The question then becomes the extent of the

substantive requirements that a state may im-

pose on the bargaining process.

Bragdon, 64 F.3d at 501.

In Bragdon, the Ninth Circuit concluded that

“the Ordinance [establishing a prevailing wage] affects

the bargaining process in a much more invasive and

detailed fashion than the isolated statutory provisions

of general application approved in Metropolitan Life and

Fort Halifax.” Id. at 502. The court explained that the

Ordinance is

also very different from a minimum wage law,

applicable to all employees, guarantying a min-

imum hourly rate. This Ordinance provides for

specific minimum wages and benefits to be paid

40a

to each craft and only to those workers who are

engaged in the specific construction projects

covered by the Ordinance. This is not a wage and

benefit package that has been bargained for in

any fashion by these construction employers and

employees, but rather is a minimum wage and

benefit package that is promulgated by the

Director of the Department of Industrial Rela-

tions of the State of California and that is devel-

oped by averaging the bargains struck by other

employers and employees.

Id. at 502-03.

Like the Ordinance at issue in Bragdon, the

Attendant Amendment “affects the bargaining process

in a much more invasive and detailed fashion than the

isolated statutory provisions of general application

approved in Metropolitan Life and Fort Halifax.” Id. at

502. As noted above, the Attendant Amendment creates

a presumption of retaliation that shifts not the burden

of production, but the burden of proof. This shifting of

the burden of proof applies indefinitely once an em-

ployee has either exercised rights under the Attendant

Amendment or alleged in good faith that the employer

is not complying with the terms of the Attendant Am-

endment. This stringent measure impacts the ability of

an employer to discipline or fire employees, pursuant to

the terms of a collective bargaining agreement. Under

Congress Plaza’s previous CBA, claims of breaches had

to proceed through a carefully crafted grievance

41a

procedure and if not resolved, required the parties to

submit to arbitration. (CBA at 30-32). By creating a

private cause of action for retaliation which shifts the

burden of proof to the employer indefinitely, the

Attendant Amendment further “stands as an obstacle to

the accomplishment and execution of the full purposes

and objectives” of the NLRA. Livadas, 512 U.S. at 120

(quoting Brown v. Hotel Employees, 468 U.S. 491, 501

(1984)). The NLRA’s purposes, as stated in the

“Findings and Declaration of Policy” in § 1 of the

NLRA, 29 U.S.C. § 151, include, among other things,

“encouraging practices fundamental to the friendly

adjustment of industrial disputes arising out of

differences as to wages, hours, or other working

conditions... .” The Attendant Amendment does the

exact opposite, encouraging litigation rather than

resolution through the mechanism established by the

CBA.

Moreover, room attendants are typically paid on

an hourly basis, but are required to complete a certain

number of rooms within that time. See Ill. Hotel &

Lodging Ass’n v, Ludwig, 869 N.F.2d at 846, 849 (LIL.

App. 2007) (“Hotel room attendants essentially work

on a piece-rate system. Both union and nonunion hotels

require room attendants to clean a quota of rooms each

work shift. Although they are paid by the hour, room

attendants are required to deliver a quantified amount

of work during their shift and can be disciplined if they

42a

fail to do so.”).'* The Illinois legislature used this as a

basis to support the Attendant Amendment, noting

during the committee hearings that the quota system

impacted “all hotel room attendants’ ability to take

breaks.” Jil. Hotel & Lodging Ass’n v. Ludwig, No.

05CH13796, *10 (Circuit Court of Cook County, Llinois

2006) (citing Hearings on H.B. 3485 Before the House

Labor Committee ). Given the pay and work structure of

room attendants, mandating breaks affects the struc-

ture of the entirety of the employment agreement. To

illustrate: Assume that Congress Plaza requires room

attendants to clean and service eighteen rooms during

each shift. Congress Plaza customarily provided room

attendants one unpaid thirty-minute lunch break.

Adding another thirty minutes of break-time is likely to

prevent room attendants from completing the required

eighteen-room quota. After all, if Congress Plaza be-

lieved that the average room attendant could clean or

service eighteen rooms in less time, it would increase

the number of rooms required to be cleaned or decrease

‘* A court may “take judicial notice of historical documents,

documents contained in the public record, and reports of admin-

istrative bodies...." Menominee Indian Tribe of Wis. v. Thomp

son, 161 F.3d 449, 456 (7th Cir. 1998). Thus, we take judicial

notice of the state court decisions. Jn re Salem, 465 F.3d 767,

771 (7th Cir. 2006) (“We begin with New York cases; we take

judicial notice of these dockets and opinions.”). Moreover, this

court may “consider judicially noticed documents without

converting a motion to dismiss into a motion for summary

judgment.” Menominee Indian, 161 F.3d at 456

43a

the shift time. Thus, the Attendant Amendment’s

mandated breaks not only increase break times, but

interfere with the entire quota structure of Congress

Plaza’s CBA.” In fact, it appears from the hearings of

the House Labor Committee that the legislature

intended to alter the structure of the employment

relationship between hotels, like Congress Plaza, and

their employees. See Ill. Hotel & Lodging Ass’n v. Lud-

wig, No. 05CH13796 at *10 (Circuit Court of Cook

County, Illinois 2006) (“Rather, the concerns expressed

by the Legislature focused generally on all hotel room

attendants” ability to take breaks in an industry where

each individual must clean a quota of rooms per day.” )

(citing Hearings on H.B. 3485 Before the House Labor

Committee). As the Supreme Court stated in Machinists,

“Lojur decisions .. . have made it abundantly clear that

state attempts to influence the substantive terms of

collective bargaining agreements are as inconsisteni

with the federal regulatory scheme as are such attempts

by the NLRB....” Machinists, 427 U.S. at 153.

The Ninth Circuit in Bragdon likewise found that

a state law that impacted the broader labor agreement

was preempted by the NLRA under Machinists because

'° This interference might be acceptable, if the Attendant

Amendment was a law of general application, but because it

targets the one specific industry — the very industry which has

in place an efficiency standard setting minimal quotas — the

Attendant Amendment becomes an interference with the

collective bargaining process.

44a

“it affects the bargaining process in a much more

invasive and detailed fashion than the isolated stat-

utory provisions of general application approved in

Metropolitan Life and Fort Halifax.” Bragdon, 64 F.3d

at 502. The state law in Bragdon, as noted above, set a

prevailing wage. The prevailing wage required a min-

imal amount that wages and benefits must total togeth-

er, but also set the minimum amount that must be paid

in wages. Id. As the Bragdon court aptly recognized,

this ordinance interfered with the collective bargaining

process because if the employer had agreed to a total

compensation package that exceeded the Ordinance’s

requirements, but had a wage component lower than

that set by the Ordinance, “[t]his would place consid-

erable pressure on the contractor and its employees to

revise the labor agreement to reduce the benefit

package and increase the hourly wages in order to

remain competitive and obtain the contracts and

jobs....” Id. Likewise, in Bechtel Construction, Inc. v.

United Brotherhood of Carpenters & Joiners of Amer-

ica, 812 F.2d 1220 (9th Cir. 1987), the Ninth Circuit

held that a state law establishing a minimum wage scale

for apprentices was not a minimum labor standard, in

part because “a set wage for apprentices would have

required higher pay for all levels in the trade, in order

to maintain the graded wage scale.” Jd. at 1226. Thus,

“(t]he right to bargain collectively of one group or

another is harmed by the minimum wage for

apprentices.” The Ninth Circuit further explained that

“fuJnlike the minimum benefit standards in Metro-

45a

politan, the California requirements do not affect all

workers equally, but concern only apprentices.” Jd. In

turn, “{t]his accounts for the distorting effect that

enforcement of the [wage] Standards could have on the

bargaining process.” Jd. Similarly, in this case, the At-

tendant Amendment affects not just break periods, but

interferes with both the dispute-resolution structure of

the employment relationship and with the structure of

the quota system. This interference further disqualifies

the Attendant Amendment from being a minimum labor

standard.

In sum, for numerous reasons, we conclude that

the Attendant Amendment is not a minimum labor

standard and is preempted by the NLRA. First, the

Attendant Amendment is not a law of general applica-

tion. Rather, the Attendant Amendment applies to one

occupation, in one industry, in one county. This limited

scope of the Attendant Amendment discourages col-

lective bargaining by encouraging lobbying for targeted

legislation applicable to the equivalent of a bargaining

unit. The Attendant Amendment is further not a true

“minimum” labor standard, as demonstrated when the

statute’s provisions are juxtaposed against the minimal

standard of general application currently in effect in

Illinois, i.e., one unpaid twenty-minute break, and when

considered in light of the formidable enforcement

mechanism, including the treble damages and unpre-

cedented shifting of the burden of proof to the employer.

The Attendant Amendment further interferes with the

objectives of the NLRA by overriding the dispute

46a

resolution mechanisms already in place and by

interfering with the pay and quota structure established

for room attendants. For all of these reasons,’® we

conclude the Attendant Amendment is preempted by

the Machinists doctrine. See Bragdon, 64 F.3d at 504

(“Furthermore, this type of minimum labor standard

enactment, which is not of general application, but

targets particular workers in a particular industry and

is developed and revised from the bargaining of others,

affects the bargaining process in a way that is

incompatible with the general goals of the NLRA.”).

Because the Attendant Amendment is preempted by the

Machinists doctrine, we need not determine whether

Garmon preemption would also apply. Likewise, we

need not decide whether the Attendant Amendment

violates Congress Plaza’s equal protection and due

process rights. Accordingly, we reverse the judgment of

Congress Plaza also argues that the Attendant Amendment

is preempted because it “unilaterally alters the parties’

collective bargaining agreement terms and conditions.”

Appellant Reply Br. at 1. Congress Plaza believes that a state

law which forces Congress Plaza to unilaterally change the

terms and conditions of employment during a labor dispute

violates federal law because, prior to impasse, the NLRA

requires employers to “continue to apply terms of the expired

bargaining agreement.” Appellant Reply Br. at 3. We disagree.

Had the Attendant Amendment truly represented a minimum

labor standard that did not interfere with the collective

bargaining process, the fact that the State law mandates

different terms and conditions than those contained in an

expired CBA would be irrelevant.

47a

the district court and remand this case to the district

court for proceedings consistent with our ruling.

IIT.

For the reasons stated above, we conclude that

the Attendant Amendment is preempted by the NLRA

under the Machinists doctrine. We Reverse and Remand

for proceedings consistent with this opinion.

48a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

520 S. MICHIGAN AVENUE

ASSOCIATES, LTD., d/b/a

THE CONGRESS PLAZA

HOTEL & CONVENTION

CENTER,

v. Judge Joan H.

Lefkow

CATHERINE SHANNON,

DIRECTOR OF THE

ILLINOIS DEPARTMENT

OF LABOR,’

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff 520 S. Michigan Avenue Associates, Ltd.,

doing business as The Congress Plaza Hotel & Con-

vention Center (“the Hotel”), filed this declaratory

judgment action against the Director of the Illinois

Catherine Shannon has replaced Art Ludwig as the

Director of the Illinois Department of Labor. Ms. Shannon has

been automatically substituted under Fed. R. Civ. P. 25(d)(1).

49a

Department of Labor (“the Director”) seeking a

declaration that 820 Ill. Comp. Stat. 140/3.1, the Hotel

Room Attendant Amendment (“the Amendment”) to

the One Day Rest in Seven Act, 820 Ill. Comp. Stat.

140/1 et seg., is unconstitutional. The Hotel alleges that

the Amendment violates the Supremacy Clause of the

United States Constitution, U.S. Const. art. VI, cl. 2,

because it is preempted by the National Labor Relations

Act (““NLRA”), 29 U.S.C. § 151 et seq., and section 301

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

U.S.C. § 185(a). The Hotel also claims that the Am-

endment violates the Hotel’s federal constitutional

rights to due process and equal protection as well as cer-

tain provisions of the Illinois Constitution. It requests

a permanent injunction prohibiting enforcement of the

Amendment. The court has jurisdiction under 28 U.S.C.

§§ 1331, 2201, and 2202 and 42 U.S.C. § 1983.

Unite Here Local] 1 (“Unite Here”), a labor union

representing hotel room attendants in Cook County,

including employees of the Hotel, was granted leave to

intervene as a defendant. Dkt. No. 31. Before the court

are motions to dismiss filed by the Director and Unite

Here (collectively, “the defendants”). Both defendants

move to dismiss under Fed. R. Civ. P. 12(b)(6) for failure

to state a claim upon which relief may be granted. The

Director also moves to dismiss for lack of subject matter

jurisdiction based on Fed. R. Civ. P. 12(b)(1) and her

argument that under the Eleventh Amendment this

court lacks subject matter jurisdiction to decide a

state-law injunction claim against a state official sued in

50a

his official capacity. For the reasons stated below, the

motions to dismiss [# 25, # 29] are granted.

This case is almost identical to one filed in 2005

in the Circuit Court of Cook County where the Illinois

Hotel and Lodging Association raised substantially the

same claims that the Hotel has raised in this ccurt.

Circuit Judge James Henry granted summary judgment

to the defendants, finding that the Amendment was not

preempted by the NLRA and that it did not violate the

special legislation clause of the Illinois Constitution or

plaintiffs’ right to equal protection. See Jll. Hotel &

Lodging Ass’n v. Ludwig, 869 N.E.2d 846, 374 Ill. App.

3d 193 (Ill. App. Ct. 1st Dist. 2007). Plaintiffs appealed.

The appellate court denied their request for a stay and

indicated that there was no significant possibility of

reversal. Four days after that, the Hotel filed this case.”

On May 18, 2007, Judge Henry’s holding was affirmed.

Ill. Hotel & Lodging Ass’n v. Ludwig, 869 N.E.2d at

855. The appellate court’s opinion is well-reasoned and

this court finds it to be persuasive.

STANDARD FOR A MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(6) chal-

lenges the complaint on the basis of a failure to state a

claim on which relief can be granted. In ruling on the

motion, the court accepts as true all well-pleaded facts

. To avoid the preclusive effect of the Illinois case, the Hotel

alleges that it is not a member of the Illinois Hotel and Lodging

Association. Complaint, at { 7.

POPE iL! OTD. 4 Dili SS ite nl ltl at A a SE in SI cs i ah NN I ATONE le tS hi eS Lh le il GI FO OBI NS ETE I I IS LE TN LE ROP EES ET A oe eh

5la

alleged in the complaint and draws all reasonable

inferences from those facts in favor of the plaintiff.

Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir.

1999). The complaint must allege “enough facts to state

a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 1278. Ct. 1955, 1974, 167 L.

Ed. 2d 929 (2007).

ALLEGATIONS FROM THE COMPLAINT

The Hotel is located at 520 S. Michigan Avenue

in Chicago, Illinois, in Cook County. The Hotel and

Unite Here have been involved in collective bargaining

since their most recent agreement expired on December

31, 2002. Starting in June of 2003 and continuing

through the present, Unite Here has been engaged in a

work stoppage while negotiations continue. The Hotel

continues to fulfill the terms of the expired agreement,

which include the following: a work day of eight

productive hours, one free meal to room attendants

during a customary half-hour unpaid break, and clean

and sanitary facilities in which the room attendants

may eat their meals, which the attendants are obligated

to cooperate in maintaining.

The Amendment provides as follows:

§ 3.1. Hotel room attendants.

(a) As used in this Section, “hotel room atten-

dant” means a person who cleans or puts in order

guest rooms in a hotel or other establishment

licensed for transient occupancy.

52a

(b) This Sect’ »n applies only to hotels and other

establishments licensed for transient occupancy

that are located in a county with a population

greater than 3,000,000.

every hotel room attendant shall receive a

minimum of 2 15-minute paid rest breaks and

one 30-minute meal period in each workday on

which the hotel room attendant works at least 7

hours. An employer may not require any hotel

room attendant to work during a break period.

(d) Every employer of hotel room attendants

shall make available at all times a room on the

employer's premises with adequate seating and

tables for the purpose of allowing hotel room

attendants to enjoy break periods in a clean and

comfortable environment. The room shall have

clean drinking water provided without charge.

(e) Each employer of hotel room attendants shall

keep a complete and accurate record of the break

periods of its hotel room attendants.

(f) An employer who violates this Section shall

pay to the hotel room attendant 3 times the hotel

room attendant’s regular hourly rate of pay for

each workday during which the required breaks

were not provided.

(g) It is unlawful for any employer or an em-

ployer’s agent or representative to take any act-

53a

ion against any person in retaliation for the

exercise of rights under this Section. In any civil

proceeding brought under this subsection (f), if

the plaintiff establishes that he or she was

employed by the defendant, exercised rights

under this Section, or alleged in good faith that

the defendant was not complying with this

Section, and was thereafter terminated, demoted,

or otherwise penalized by the defendant, then a

rebuttable presumption shall arise that the def-

endant’s action was taken in retaliation for the

exercise of rights established by this Section. To

rebut the presumption, the defendant must prove

that the sole reason for the termination,

demotion, or penalty was a legitimate business

reason.

(h) In addition to the remedies provided in Sec-

tions 6 and 7, a person claiming violation of this

Section shall be entitled to all remedies available

under law or in equity, including but not limited

to damages, back pay, reinstatement, or injunct-

ive relief. Any person terminated in violation of

this Section shall recover treble his or her lost

normal daily compensation and fringe benefits,

together with interest thereon, and any con-

sequential damages suffered by the employee.

The court shall award reasonable attorney’s fees

54a

and costs to a prevailing plaintiff in an enforce-

ment action under this Section.

820 Ill. Comp. Stat. 140/3.1

NATIONAL LABOR RELATIONS ACT

The Constitution’s Supremacy Clause states, in

pertinent part, that “the Laws of the United States

which shall be made in Pursuance [of the Constitution]

... Shall be the supreme Law of the Land.” U.S. Const.

art. VI, cl. 2. Any state law that conflicts with acts of

Congress, such as the NLRA, is invalidated by this prov-

ision. Rose v. Ark. State Police, 479 U.S. 1, 3, 1075S. Ct.

334, 93 L. Ed. 2d 183 (1986). Since the NLRA does not

contain an explicit preemption clause, the governing

rule is that the state law should be sustained “unless it

conflicts with federal law or would frustrate the federal

scheme, or unless the courts discern from the totality of

the circumstances that Congress sought to occupy the

field to the exclusion of the States.” Malone v. White

Motor Corp., 435 U.S. 497, 504, 98S. Ct. 1185, 55 L. Ed.

2d 443 (1978). With respect to the NLRA, Congress’s

declared purpose was “to remedy ‘[tJhe inequality of

bargaining power between employees who do not

possess full freedom of association or actual liberty of

contract, and employers who are organized in the

corporate or other forms of ownership association.’”

Metropolitan Life Ins. Co. v. Mass. Travelers Ins. Co.,

471 U.S. 724, 753, 105 S. Ct. 2380, 85 L. Ed. 2d 728

(1985) (citing 29 U.S.C. § 151). The NLRA is therefore

“concerned primarily with establishing an equitable

55a

process for determining terms and conditions of

employment, and not with particular substantive terms

of the bargain that is struck when the parties are

negotiating from relatively equal positions.” /d.

Two NLRA preemption doctrines have develop-

ed. The first, found in San Diego Bldg. Trades Council,

Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236,

79 S. Ct. 773, 3 L. Ed. 2d 775 (1959), forbids state

regulation of activities that the NLRA protects or pro-

hibits. Id. at 244-45. Garmon preemption is designed

to “prevent conflict between state and local regulation

and Congress’ integrated scheme of regulation.”

Cannon v. Edgar, 33 F.3d 880, 884 (7th Cir. 1994). It

applies when the matter the state seeks to regulate is

“arguably within the compass of [section seven] or

[section eight] of the [National Labor Relations] Act.”

Garmon, 359 U.S. at 246. Section seven of the NLRA

explicitly sanctions activities that union employees may

engage in, such as,

the right to self-organization, to form, join, or

assist labor organizations, to bargain collectively

through representatives of their own choosing,

and to engage in other concerted activities for the

purpose of collective bargaining or other mutual

aid or protection, and... to refrain from any or

all of such activities except to the extent that

such right may be affected by an agreement

requiring membership in a labor organization as

56a

a condition of employment as authorized in

section 158(a)(3) of this title.

29 U.S.C. § 157. Section eight declares certain activities

to be forbidden as unfair labor practices, such as an

employer’s interfering with the rights guaranteed by

section seven or discriminating in hiring between union

and nonunion employees, or, in the case of labor unions,

forcing individuals to join unions or refusing to bargain

collectively with an employer. See 29 U.S.C. § 158.

Section eight also articulates the obligation of both

employers and unions to bargain collectively but notes

that that obligation does not compel eitner party to

agree to a proposal or make a concession. Id. Garmon

preemption protects the National Labor Relations

Board’s primary jurisdiction in cases involving the

above sections. Livadas v. Bradshaw, 512 U.S. 107,117

n. 11, 1148S. Ct. 2068, 129 L. Ed. 2d 93 (1994).°

The Supreme Court established another form of

preemption in Lodge 76, Int’l Ass’n Machinists &

Aerospace Workers, AFL-CIO v. Wis. Employment

Relations Comm’n, 427 U.S. 132, 96S. Ct. 2548, 49 L.

Garmon preemption has two exceptions, namely when

the challenged activity is “of only peripheral concern to the

federal law or touches interests deeply rooted in local feeling

and responsibility.” Belknap, Inc. v. Hale, 463 U.S. 491, 498,

103 S. Ct. 3172, 77 L. Ed. 2d 798 (1983) (citing Garmon, 359

U.S. at 243-44); see also Kolentus v. Avco Corp., 798 F.2d 949,

961 (7th Cir. 1986). Neither exception has been argued to be

at issue here.

57a

Ed. 2d 396 (1976). Machinists preemption prohibits

state and municipal regulation of areas that Congress

left to the free play of economic forces. Id. at 140. The

Court recognized that “Congress’ decision to prohibit

certain forms of economic pressure while leaving others

unregulated represent[ed] an intentional balance”

between the powers of management and labor. Golden

State Transit Corp. v. City of L.A., 475 U.S. 608, 614,

1068. Ct. 1395, 89 L. Ed. 2d 616 (1986). Machinists pre-

emption applies to restrictions by states on those

methods of economic pressure that Congress has left to

the parties. States are not allowed to make such

methods illegal. See Garner v. Teamsters, Chauffeurs &

Helpers Local Union No. 776 (A.F.L.), 346 U.S. 485, 501,

748. Ct. 161, 98 L. Ed. 228 (1953) (the state does not

have the ability to enjoin union picketing); 520

Michigan Ave. Assoc., Ltd. v. Devine, 433 F.3d 961, 965

(7th Cir. 2006) (the state may not criminalize an

employer’s act of hiring replacement workers). Thus,

both forms of preemption are interested in the process

of collective bargaining, not with specific terms.

The complaint appears to assert that both

Garmon and Machinist preemption apply to the

Amendment. The Hotel alleges that the Amendment

interferes with the collective bargaining process and

upsets the balance of economic power between it and

Unite Here. It complains that the Amendment requires

it to unilaterally alter the terms of the collective

bargaining agreement by implementing the terms of the

Amendment in place of those in the agreement. In other

58a

words, the legislature’s action has forced the Hotel to

accede to a contract term that it was in the midst of

negotiating with Unite Here.

This argument is similar to the one that the

Supreme Court rejected in Metropolitan Life. There, a

Massachusetts statute required that specified mental

health care benefits be provided to a Massachusetts

resident insured under a general! insurance policy or an

employee health care plan. 471 U.S. at 728. Because

the terms of benefit plans were the subject of collective

bargaining agreements between unions and employers

or insurers, the appellants in Metropolitan Life argued

that the statute was in effect mandating terms of

collective bargaining agreements and should be

preempted. /d. at 748. Furthermore, their position was

that the NLRA intended to prevent states from

determining standards “that labor and management

would otherwise have been required to negotiate from

their federally protected bargaining positions, and

would otherwise have been permitted to set at a lower

level than that mandated by state law.” Jd. at 751.

Similarly, in Fort Halifax Packing Co., Inc. v. Coyne,

482 U.S. 1, 3, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987),

Maine implemented a statute requiring employers to

provide a one-time severance payment to employees in

the event of a plant closing. The appellant argued that

although the state was not directly regulating the

economic activity of the parties, it was indirectly

undercutting the collective bargaining process. Id. at

20.

59a

The Supreme Court ruled that neither statute

was preempted and explained that “the mere fact that

a state statute pertains to matters over which the

parties are free to bargain cannot support a claim of

pre-emption, for ‘there is nothing in the NLRA ...

which expressly forecloses all state regulatory power

with respect to those issues... that may be the subject

of collective bargaining.’” Fort Halifax, 482 U.S. at

21-22 (quoting Malone, 435 U.S. at 504-05).

Furthermore, the fact that a matter is the subject of

negotiations does not prevent a state from passing

“legislation that imposes ritinimal substantive

requirements on contract terms negotiated between

parties to labor agreements.” Beckwith v. United Parcel

Service, Inc., 889 F.2d 344, 348 (1st Cir. 1989) (citing

Metropolitan Life, 471 U.S. at 754-55). These minimum

substantive requirements, also termed minimum labor

standards, allow “both employers and employees to

come to the bargaining table with rights under state law

that form a ‘backdrop’ for their negotiations.” Fort

Halifax, 482 U.S. at 21 (citing Metropolitan Life, 471

U.S. at 757). “No incompatibility exists, therefore,

between federal rules designed to restore the equality of

bargaining power, and state or federal legislation that

imposes minimal substantive requirements on contract

terms negotiated between parties to labor agreements,

at least so long as the purpose of the state legislation is

not incompatible with these general goals of the NLRA.”

Metropolitan Life, 471 U.S. at 754-55. Therefore, while

a state is not allowed to dictate the actual terms of

60a

collective bargaining agreements, Commonwealth Edi-

son v. Int’l Bhd. Elec. Workers, 961 F. Supp. 1169, 1180

(N.D. Ill. 1997), minimum labor standards do not con-

stitute specific terms that the parties must write into

their agreements. Instead, they determine a baseline

below which the negotiations may not fall.

This point is illustrated by comparison to cases in

which courts have found that states have impermissibly

intruded into the collective bargaining process by

requiring parties to agree to a specific term. In Cannon

v. Edgar, 33 F.3d 880, 882 (7th Cir. 1994), the Illinois

Burial Rights Act required cemeteries and gravediggers

to negotiate and agree on the establishment of a pool of

workers designed to perform religiously required

interments during labor disputes. If the parties did not

agree on such a pool by a specified date, they would be

in violation of the statute. Id. The Seventh Circuit

affirmed the district court’s holding that the statute was

preempted. Jd. at 885. It found the statute preempted

under both Garmon and Machinists, explaining that the

“Burial Rights Act intrudes on the collective bargaining

process in a variety of ways; it orders the parties to

negctiate as to a specific substantive condition .. .

And more invasive, the Burial Rights Act orders the

parties to agree on a pool of workers, or face sanctions

for a failure todoso.... It directly interferes with the

ability of the cemeteries and gravediggers to reach an

agreement unfettered by the (labor) restrictions of state

law.” Id. at 885-86.

6la

In Commonwealth Edison, the Illinois Successor

Statute provided that when a collective bargaining

agreement contains a “successor clause,” a new

employer would be required to honor the obligations of

its predecessor’s agreement. 961 F. Supp. at 1171.

Judge Andersen found that the statute was preempted

by Garmon, because it “eliminate[d] the bargaining

process altogether by forcing a new employer to honor

a collective bargaining agreement it neither bargained

for nor assumed. We have no doubt that such

compulsion violates the NLRA’s mandate that the

parties not be compelled to agree to a proposal or make

a concession.” Jd. at 1181.

In both Cannon and Commonwealth Edison, the

state statutes required the parties to incorporate spec-

ific substantive terms into their agreements. These were

not merely baselines, which would have allowed the

parties to negotiate what the actual terms would be, but

instead made the parties’ decisions for them, leaving no

room for continued negotiation. Therefore, both

statutes were preempted.

The court in Chamber of Commerce of the United

States v. Bragdon, 64 F.3d 497, 501 (9th Cir. 1995),

provided the following helpful framework for analyzing

state statutes:

The [United States Supreme] Court has clearly

held that state legislation, which interferes with

the economic forces that labor or management

can employ in reaching agreements, is pre-

62a

emptied by the NLRA because of its interference

with the bargaining process. See, e.g., Mach-

inists; Golden State Transit Corp. v. Los Angeles,

475 U.S. 608, 106 S. Ct. 1395, 89 L. Ed. 2d 616

(1986). The Court has also clearly held that a

state’s requirement of “minimal substantive

requirements” on contract terms is not such an

interference with the bargaining process as to be

pre-empted. There is no doubt that imposing

substantive requirements does affect the bar-

gaining process. Viewed in the extreme, the sub-

stantive requirements could be so restrictive as

to virtually dictate the results of the contract.

The objective of allowing the bargaining process

“to be controlled by the free-play of economic

forces” can be frustrated by the imposition of

substantive requirements, as well as by the

interference with the use of economic weapons.

See Barnes v. Stone Container Corp., 942 F.2d

689, 693 (9th Cir.1991); Bechtel Const. v. United

Brotherhood of Carpenters, 812 F.2d 1220, 1226

(9th Cir. 1987). The question then becomes the

extent of the substantive requirements that a

state may impose on the bargaining process.

The state statute at issue in that case required

that employers pay “prevailing wages” to their employ-

ees on certain types of private industrial construction

projects costing over $500,000. Jd. at 498. Those

prevailing wages were to be ascertained by reference to

established collective-bargaining agreements within the

63a

locality in which the public work was to be performed.

Id. at 499. An employer seeking to engage in construct-

ion c

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