520 South Michigan v. Shannon, Catherine ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3377
520 S OUTH M ICHIGAN A VENUE A SSOCIATES, L TD., d/b/a
T HE C ONGRESS P LAZA H OTEL & C ONVENTION C ENTER,
Plaintiff-Appellant,
v.
C ATHERINE S HANNON, Director of the Illinois
Department of Labor,
Defendant-Appellee,
and
U NITE H ERE L OCAL 1,
Intervenor-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 4552—Joan Humphry Lefkow, Judge.
A RGUED F EBRUARY 19, 2008—D ECIDED D ECEMBER 15, 2008
Before M ANION, K ANNE, and T INDER, Circuit Judges.
M ANION, Circuit Judge. 520 S. Michigan Avenue Associ-
ates, Ltd., doing business as The Congress Plaza Hotel &
2 No. 07-3377
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 Amend-
ment is preempted by the NLRA, we reverse.
I.
Congress Plaza is located on Michigan Avenue in
Chicago, Illinois, in Cook County. Congress Plaza, em-
ploys, among others, room attendants who clean guest
rooms. The Unite Here Local 1 union (“Unite Here”)
represents the approximately 130 room attendants working
at Congress Plaza, as well as several hundred room
attendants working at other Cook County 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 mem-
bers 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
No. 07-3377 3
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 Room
Attendant Amendment (“Attendant Amendment”) to the
One Day Rest in Seven Act. The One Day Rest in Seven
Act was originally enacted in July 1935 and currently
provides that “[e]very employer shall allow every em-
ployee 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.” 1 820 ILCS 140/2. The One
1
Under current law, Illinois exempts seven categories of
employees from the mandated rest day: “(1) Part-time employ-
ees 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
labor to prevent injury to person, damage to property, or
suspension of necessary operation; and (3) Employees em-
ployed in agriculture or coal mining; and (4) Employees
engaged in the occupation of canning and processing 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 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
(continued...)
4 No. 07-3377
Day Rest in Seven Act further provides: “Every employer
shall permit its employees who are to work for 7 ½ contin-
uous 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.” 2 820 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.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 occupancy.
1
(...continued)
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.
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 call 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.
No. 07-3377 5
(b) This Section applies only to hotels and other
establishments licensed for transient occupancy
that are located in a county with a population
greater than 3,000,000.3
(c) Notwithstanding any other provision of law,
every hotel room attendant shall receive a mini-
mum 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.
(d) Every employer of hotel room attendants shall
make available at all times a room on the em-
ployer’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.
3
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_
census.asp?ct=P0010001 (last visited August 15, 2008). DuPage
County has the next highest population base, but as of 2000,
not even one million people resided there. Id.
6 No. 07-3377
(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 action
against any person in retaliation for the exercise
of rights under this Section. In any civil pro-
ceeding 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 presump-
tion, 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 injunctive
relief. Any person terminated in violation of this
Section shall recover treble his or her lost normal
daily compensation and fringe benefits, together
No. 07-3377 7
with interest thereon, and any consequential
damages suffered by the employee. The court
shall award reasonable 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 Attendant
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 Atten-
dant Amendment declared unconstitutional. The state
trial court granted the Illinois Department of Labor sum-
mary judgment, concluding that the Attendant Amend-
ment was not preempted, and that the Attendant Amend-
ment 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. Ludwig, 869 N.E.2d 846 (Ill. App. Ct. 1st 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 Association’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 is preempted by the National
8 No. 07-3377
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). 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), claiming
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. Michigan 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.4 Whether the NLRA
4
Congress Plaza does not pursue its § 301 LMRA preemption
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 Constitu-
tion and constitutes an arbitrary legislative classification,”
Appellant Br. at 2, it does not present these claims in its Issues
(continued...)
No. 07-3377 9
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 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 interpretation 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)).5
4
(...continued)
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 argu-
ment in its brief with respect to a particular claim, any argu-
ments with respect to that claim are waived).
5
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.
10 No. 07-3377
Our review of preemption begins with the Constitution’s
Supremacy Clause. See Cannon, 33 F.3d at 883. The Su-
premacy 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. 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 Laboratories, Inc., 471 U.S.
707, 712 (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 struc-
ture and purpose.
Id. at 738 (internal quotations omitted).
No. 07-3377 11
As the Supreme Court recently explained in Chambers of
Commerce v. Brown, 128 S.Ct. 2408 (2008), “the NLRA itself
contains no express preemption provision.” Id. at 2412.
Thus, the issue facing us is one of implied preemption.
With implied preemption, a state law should be sus-
tained “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 (1978).
Further, in the context of the NLRA, a state law is pre-
empted 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 (1994) (internal quotation omitted).
From these general preemption principles, the Supreme
Court has developed two relevant NLRA preemption
doctrines: Garmon preemption and Machinists preemption.
See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236(1959); Machinists v. Wisconsin Employment Relations
Comm’n, 427 U.S. 132 (1976).6 The first doctrine, Garmon
preemption, seeks to prevent conflicts between state and
6
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.
12 No. 07-3377
local regulation and Congress’s integrated scheme of
regulation embodied in Sections 7 and 8 of the NLRA.
Garmon, 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. Employment
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 structure of
the Act itself, by pre-empting state law and state causes
of action concerning conduct that Congress intended to
be unregulated.” Id. at 749. This preemption 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 practice 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 overtime 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). 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 determine the validity
No. 07-3377 13
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 Su-
preme Court recently explained in Brown, “Machinists pre-
emption 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 Amendment
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 establishing minimal mental health
benefits in insurance plans was preempted by the NLRA
and stating that “[a]ll parties correctly understand this
case to involve Machinists pre-emption”). Therefore, we
begin with Congress Plaza’s argument that Machinists
preempts the Attendant Amendment.
Congress Plaza argues Machinists preempts the Atten-
dant Amendment because the Attendant Amendment
“intrudes on the parties’ collective bargaining process” and
alters the “free play of economic forces.” In response,
14 No. 07-3377
Illinois and Unite Here (hereinafter collectively “appel-
lees”) argue that the Attendant Amendment is a mini-
mum 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 compa-
nies (“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]ecause
welfare benefits are a mandatory subject of bargaining
under the labor law, . . . the NLRA pre-empts any state
attempt to impose minimum-benefit terms on the parties.”
Id. at 751-52.
The Supreme Court rejected this argument, concluding
that “[t]he evil Congress was addressing [with the
NLRA] . . . was entirely unrelated to local or federal
regulation establishing minimum terms of employment.”
Id. at 754. Accordingly, the Court held that “[n]o incompat-
ibility 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 pur-
pose of the state legislation is not incompatible with
these general goals of the NLRA.” Id. at 754-55. The Court
No. 07-3377 15
further expounded on the meaning of minimum state
labor standards, stating they “affect union and nonunion
employees equally, and neither encourage nor dis-
courage 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.” Id. 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 bargaining or self-organization.” Id. at 756.
Rather, the Court “believe[d] that Congress developed
the framework for self-organization and collective bar-
gaining of the NLRA within the larger body of state law
promoting public health and safety.” Id. The Supreme
Court added:
Federal labor law in this sense is interstitial, supple-
menting state law where compatible, and supplanting
it only when it prevents the accomplishment of the
purpose of the federal Act. Thus the Court has recog-
nized that it cannot declare pre-empted all local
regulation that touches or concerns in any way the
complex interrelationship between employees, employ-
ers, and unions; obviously, much of this is left to the
States. When a state law establishes a minimal em-
ployment 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).
16 No. 07-3377
The Supreme Court then applied the aforementioned
principles to the case at hand and held:
Massachusetts’ mandated-benefit law is an insurance
regulation designed to implement the Common-
wealth’s policy on mental-health care, and as such is a
valid and unexceptional exercise of the Common-
wealth’s police power. It was designed in part to
ensure that the less wealthy residents of the Common-
wealth would be provided adequate mental-health
treatment should they require it. Though [the insur-
ance statute], like many laws affecting terms of em-
ployment, 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. Id.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 stan-
dards” and preemption. In Fort Halifax, an employer
challenged a Maine statute requiring employers to
provide severance pay to certain employees. Id. at 5.
Employees qualified if their employers 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 employment at the new plant location
No. 07-3377 17
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 argu-
ment “that a State’s establishment of minimum substan-
tive labor standards undercuts collective bargaining . . . .”
Id. at 20. The Court then explained its holding in Metropoli-
tan 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.” Id.After the Court in Fort Halifax further explained Metro-
politan Life, the Court stated that
[i]t is true that the Maine statute gives employees
something for which they otherwise might have to
bargain. That is true, however, with regard to any
state law that substantively regulates employment
conditions. Both employers 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.” Id. at 21-22 (internal
quotation omitted).
18 No. 07-3377
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 establishing 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; Metro-
politan Life, 471 U.S. at 757. And third, the NLRA does
not preempt a state law 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
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.”).
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’ collective bargaining
process” and alters the “free play of economic forces.” In
No. 07-3377 19
response, based on Metropolitan Life and Fort Halifax,
appellees claim that the Attendant Amendment is a
minimum labor standard and is thus not preempted.
Congress Plaza rejects this characterization of the Atten-
dant Amendment (as a minimum labor standard), relying
on this court’s decision in Cannon.
In Cannon, a gravediggers’ union, a union member, and
union leaders sued the State of Illinois, claiming that the
Burial Rights Act was preempted by the NLRA and
therefore violated the Supremacy Clause of the Constitu-
tion. Cannon, 33 F.3d at 881. The Burial Rights Act re-
quired cemeteries’ management and labor unions to agree
to establish a pool of workers who would provide reli-
giously required interments during a labor dispute. Id. 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 appro-
priate 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 viola-
tion of this Section.” Id. at 882 n.1 (quoting 820 ILCS
135/2.1). After setting forth the governing 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 intru-
sion 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 work-
ers—and, further requires the parties to actually agree on
20 No. 07-3377
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
a state into the collective bargaining process. . . .” Id.Cannon further held that the Burial Rights Act was pre-
empted 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 condi-
tion—that of a pool of workers to perform interments
during labor disputes. And, more 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 distinguish-
able 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, “[i]n NLRA pre-emption cases,
judicial concern 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,
128 S.Ct. at 2414 (internal quotations omitted). What a
state cannot do directly, it also cannot do indirectly. Id.
at 2415.
The question then is whether the Attendant Amendment
establishes a minimum labor standard that does not
interfere with collective bargaining. If so, then the regula-
No. 07-3377 21
tion (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 neither encourage nor dis-
courage the collective-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 estab-
lished in the Act . . . [and] are not laws designed to en-
courage 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 mini-
mum labor standard. First, unlike the statutes at issue in
Metropolitan Life and Fort Halifax, the Attendant Amend-
ment 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 apparently did
not consider the question of whether state laws of general
application affecting terms of collective-bargaining agree-
ments subject to mandatory bargaining were to be pre-
empted.” Id. at 753 (emphasis added). See also Livadas, 512
22 No. 07-3377
U.S. at 123 n.17 (stating that “Congress is understood to
have legislated against a backdrop of generally applicable
[state] labor standards”). In Fort Halifax, the state’s sever-
ance statute 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 applica-
tion (since it only applied to larger layoffs or distant
relocations), the statute still had a very broad application.
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 ap-
plication “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 agree-
ments, 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
No. 07-3377 23
statute is not a “minimum labor standard” in part 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).7 These limitations distin-
guish the Attendant Amendment materially from the
statutes of general application considered in Metro-
politan 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 chal-
lenge, citing a series of cases. See Appellee Br. at 20-21
citing among others, Fort Halifax, 482 U.S. at 5, 20 (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 preempted); Viceroy Gold Corp. v. Aubry, 75
F.3d 482, 485, 490 (9th Cir. 1996) (overtime regulation
applying only to miners not preempted); Nat. Broadcasting
Corp. v. Bradshaw, 70 F.3d 69, 71-72 (9th Cir. 1995) (Califor-
nia regulation applying only to broadcast employees not
preempted); and Wash. Serv. Contractors Coalition v.
7
The statute by its terms applies to any county with a popula-
tion of three million or more, but as noted above, out of
102 counties, only Cook county has the requisite number of
residents.
24 No. 07-3377
District of Columbia, 54 F.3d 811, 819 (D.C. Cir. 1995).8 The
appellees further rely on the Ninth Circuit’s decision
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 classifica-
tions rather than the entire labor market.”
Unlike these cases, though, the Attendant Amendment
is not just limited by trade—it is also limited by location;
the Attendant Amendment is a state 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 Attendant 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
county officials, challenging an ordinance that required
8
Appellees noted parenthetically that Washington Serv. Contrac-
tors, 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 nonprofessional health care
services.” Id. at 814.
No. 07-3377 25
employers to pay “prevailing wages” to employees on
private construction projects costing over $500,000. Id. at
498. The Ordinance stated that its purpose was “to pro-
mote safe construction, minimize the risk of accidents 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.” Id. The “prevailing wages” were defined by
the California Department of Industrial Relations, which
determined the “prevailing wage” “by reference to estab-
lished collective bargaining agreements within the local-
ity.” Id. at 498-99. More specifically, “[t]he Director
uses formulas that average the wages and benefits for
each craft pursuant to collective-bargaining agreements
applicable in each labor market.” 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. Id. at 499.
The Chamber of Commerce argued that the Ordinance
was preempted by the NLRA. Id. The county responded
that the prevailing wage ordinance was a “minimum
labor standard” 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 preempted by Machinists.
Id. at 504. In so holding, the Ninth Circuit concluded that
the ordinance was “also very different from a minimum
wage law, applicable to all employees, guaranteeing a mini-
mum hourly rate.” Bragdon, 64 F.3d at 502 (emphasis
26 No. 07-3377
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 appli-
cation 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 com-
munity. 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 ex-
ample of an interest group deal in public-interest
clothing.
Id. at 503 (internal quotation omitted).9
9
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 distinguishing
features in Bragdon that separated it from Nunn. As Nunn
recognized, “Congress authorized states to establish apprentice-
ship standards and to regulate the conditions governing the
implementation of apprenticeship programs, whether the
(continued...)
No. 07-3377 27
Like the Bragdon court, we find the lack of general
application in the Attendant Amendment significant. In
exempting “minimum labor standards” from the preemp-
tive force of the NLRA, Metropolitan Life and Fort Halifax
both involved laws of general application and the
Supreme Court has characterized “minimum labor stan-
dards” as laws of general application. Metropolitan Life,
471 U.S. at 753; Fort Halifax, 482 U.S. at 5. The Attendant
Amendment’s narrow scope distinguishes it from mini-
mum labor standards which are not subject to preemp-
tion, and places the Attendant Amendment in the “zone
protected and reserved for market freedom.” Brown, 128
S.Ct. at 2412 (quoting Building & Constr. Trades Council v.
Ass’n. Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218,
227 (1993)).
The Attendant Amendment’s narrow scope of applica-
tion 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
9
(...continued)
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 distin-
guished Bragdon, reasoning “[s]econd and equally important,
unlike in the case of the Contra Costa County ordinance at issue
in Bragdon, here contractors may completely avoid the ap-
plicability of the California apprenticeship regulations” by not
hiring apprentices. Id. at 991.
28 No. 07-3377
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 unions1 0 to focus on lobbying at the state
capital instead of negotiating at the bargaining table.1 1
The Ninth Circuit explained this phenomenon in
Bragdon, 64 F.3d 497 (9th Cir. 1995). As noted above, in
10
Unite Here lobbied for the Attendant Amendment. The
appellees argue its lobbying is irrelevant, because “[f]ederal
preemption doctrine evaluates what legislation does, not why
legislators voted for it or what political coalitions led to its
enactment.” 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 irrelevant,
but what is relevant is that the law discourages collective
bargaining.
11
The legislative debate shows that several state legislators
recognized this incentive. See, e.g., IL S. 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 do this job unless you give us these fifteen minutes or twenty
minutes or have our smoke breaks or take a diet Coke break or
whatever you want to do, but we ought not do this.”); IL S. Tran.
2005 Reg. Sess. No. 45, Senator Pankau (“The main 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?”).
No. 07-3377 29
Bragdon, the Ninth Circuit struck an Ordinance estab-
lishing a prevailing wage for certain private construction
projects. Id. at 498. In striking the Ordinance, the Ninth
Circuit noted that the same or similar justifications for
the exercise of police power in one business or industry
“could be advanced for most any business or industry.” Id.
at 504. The Ninth Circuit recognized the impact, stating:
A precedent allowing this interference with the free
play of economic forces could be easily applied to
other businesses or industries in establishing
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 em-
ployers 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 construction costs to attract
business to the area or lowering costs to consumers
so as to make products or services more available to
the general public. This substitutes the free-play of
political 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 bargaining unit
than an individual protection. While not all room atten-
dants in Cook county are unionized, by regulating only one
30 No. 07-3377
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 benefit 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 partic-
ular 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 Atten-
dant Amendment, the One Day Rest in Seven Act already
established a minimum labor standard for breaks, requir-
ing 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 specific 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 Atten-
No. 07-3377 31
dant Amendment 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 collec-
tive bargaining [because the State] has sought to balance
the desirability of a particular substantive labor standard
against the right of self-determination regarding the terms
and conditions of employment.” Fort Halifax, 482 U.S. at 22.
While a “statute that permits no collective bargaining on a
subject [may] escape NLRA preemption,” 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. “Minimum,” as
used by the Supreme Court, implies a low threshold. In
fact, in Metropolitan Life, the Supreme Court spoke of a
state or federal legislation that imposes “minimal sub-
stantive requirements on contract terms negotiated be-
tween parties to labor agreements.” 471 U.S. at 754. The
Supreme Court also spoke of minimum labor standards
32 No. 07-3377
as forming the backdrop for negotiations, Fort Halifax,
482 U.S. at 21, again indicating 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 employ-
ment standard not inconsistent with the general legislative
goals of the NLRA, it conflicts with none of the purposes
of the Act”) (emphasis in original); Hull, 935 F.2d at 1198(noting that “[a]lthough the Supreme Court did not
define what it considered to be a ‘minimum labor stan-
dard,’ ” 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 retalia-
tion and shifts the burden of proof to the employer. 1 2 See
12
Specifically, 820 ILCS 140/31.(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, or alleged in good faith that the defendant was not
(continued...)
No. 07-3377 33
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.13
12
(...continued)
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.” Thus, for instance,
if a hotel fired a room attendant because the room 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. The
burden of proof would then shift to the hotel to prove that the
sole reason for the termination was “a legitimate business
reason.”
13
At oral argument, Unite Here’s attorney stated that the
presumption only applies if the employee is disciplined within
(continued...)
34 No. 07-3377
In addition to shifting the burden of proof to the em-
ployer, the Attendant Amendment provides that, along
with back pay and reinstatement, an employee
terminated in violation of the Attendant Amendment
“shall recover treble his or her lost normal daily compensa-
tion and fringe benefits, together with interest thereon,
and any consequential damages suffered by the em-
ployee.” 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, 128 S.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 en-
forcement scheme,” including recovery of treble dam-
ages, attorney’s fees, and costs, “put considerable
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 considered an appropriate minimum for
13
(...continued)
ninety days of asserting that his employer is not complying
with the terms of the Attendant Amendment. However, follow-
ing oral argument, Unite Here’s attorney submitted a letter to
correct this misstatement, confirming that the Attendment
Amendment in fact does not contain any time limitation on the
presumption of retaliation, as Congress Plaza’s attorney had
maintained during oral argument.
No. 07-3377 35
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 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 irrelevant. Illinois is correct
that “[t]he NLRA is concerned primarily with estab-
lishing an equitable process for determining terms and
conditions of employment, and not with particular sub-
stantive 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
U.S. at 23.
36 No. 07-3377
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 certain point, effectively sub-
stitutes itself as the bargaining representative. As the
Ninth Circuit explained in Bragdon:
The Court has also clearly held that a state’s require-
ment of “minimal substantive requirements” on
contract terms is not such an interference with the bar-
gaining process as to be pre-empted. There is no
doubt that imposing substantive requirements does
affect the bargaining 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 require-
ments, 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 impose on the bargaining process.
Bragdon, 64 F.3d at 501.
In Bragdon, the Ninth Circuit concluded that “the Ordi-
nance [establishing a prevailing wage] affects the bargain-
ing process in a much more invasive and detailed fashion
than the isolated statutory provisions of general applica-
tion 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, applica-
ble to all employees, guarantying a minimum hourly
No. 07-3377 37
rate. This Ordinance provides 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. This
is not a wage and benefit package that has been bar-
gained for in any fashion by these construction em-
ployers and employees, but rather is a minimum
wage and benefit package that is promulgated by the
Director of the Department of Industrial Relations of
the State of California and that is developed by averag-
ing the bargains struck by other employers and em-
ployees.
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 employee has either exer-
cised rights under the Attendant Amendment or alleged
in good faith that the employer is not complying with the
terms of the Attendant Amendment. This stringent mea-
sure 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 care-
fully crafted grievance procedure and if not resolved,
38 No. 07-3377
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 indefi-
nitely, 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 Amend-
ment does the exact opposite, encouraging litigation
rather than resolution through the mechanism estab-
lished 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.E.2d at 846, 849 (Ill. 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 fail to do so.”).1 4
14
A court may “take judicial notice of historical documents,
documents contained in the public record, and reports of
(continued...)
No. 07-3377 39
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.” Ill. Hotel & Lodging
Ass’n v. Ludwig, No. 05CH13796, *10 (Circuit Court of
Cook County, Illinois 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 structure of the entirety of the employment agree-
ment. 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 believed
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 the
shift time. Thus, the Attendant Amendment’s mandated
breaks not only increase break times, but interfere with
14
(...continued)
administrative bodies . . . .” Menominee Indian Tribe of Wis. v.
Thompson, 161 F.3d 449, 456 (7th Cir. 1998). Thus, we may take
judicial notice of the state court decisions. In re Salem, 465 F.3d
767, 771 (7th Cir. 2006) (“We begin with the New York cases;
we take judicial notice of these dockets and opinions.”). More-
over, 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.
40 No. 07-3377
the entire quota structure of Congress Plaza’s CBA.1 5 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. Ludwig, No. 05CH13796 at *10 (Circuit
Court of Cook County, Illinois 2006) (“Rather, the con-
cerns 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, “[o]ur decisions . . . have made it abundantly
clear that state attempts to influence the substantive
terms of collective bargaining agreements are as incon-
sistent 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 “it
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
15
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.
No. 07-3377 41
Fort Halifax.” Bragdon, 64 F.3d at 502. The state law in
Bragdon, as noted above, set a prevailing wage. The prevail-
ing wage required a minimal amount that wages and
benefits must total together, 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 em-
ployer 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 considerable 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 America, 812
F.2d 1220 (9th Cir. 1987), the Ninth Circuit held that a
state law establishing a minimum wage scale for appren-
tices 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.” Id. at 1126. 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 “[u]nlike the minimum benefit
standards in Metropolitan, the California requirements do
not affect all workers equally, but concern only appren-
tices.” Id. In turn, “[t]his accounts for the distorting effect
that enforcement of the [wage] Standards could have on
the bargaining process.” Id. Similarly, in this case, the
Attendant Amendment affects not just break periods, but
42 No. 07-3377
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 application. Rather,
the Attendant Amendment applies to one occupation, in
one industry, in one county. This limited scope of the
Attendant Amendment discourages collective 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, in-
cluding the treble damages and unprecedented shifting of
the burden of proof to the employer. The Attendant
Amendment further interferes with the objectives of the
NLRA by overriding the dispute resolution mechanisms
already in place and by interfering with the pay and quota
structure established for room attendants. For all of these
reasons, 1 6 we conclude the Attendant Amendment is
16
Congress Plaza also argues that the Attendant Amendment is
preempted because it “unilaterally alters the parties’ collective
(continued...)
No. 07-3377 43
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 Atten-
dant Amendment is preempted by the Machinists
doctrine, we need not determine whether Garmon preemp-
tion would also apply. Likewise, we need not decide
whether the Attendant Amendment violates Congress
Plaza’s equal protection and due process rights. Accord-
ingly, we reverse the judgment of the district court and
remand this case to the district court for proceedings
consistent with our ruling.
16
(...continued)
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 the terms of the expired bargaining agree-
ment.” 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.
44 No. 07-3377
III.
For the reasons stated above, we conclude that the
Attendment Amendment is preempted by the NLRA under
the Machinists doctrine. We R EVERSE and R EMAND for
proceedings consistent with this opinion.
12-15-08