International Union of Operati v. Village of Lincolnshire

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-1300 & 17-1325
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 399, et
al.,
Plaintiffs-Appellees, Cross-Appellants,
v.
VILLAGE OF LINCOLNSHIRE, et al.,
Defendants-Appellants, Cross-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 2395—Matthew F. Kennelly, Judge.
____________________
ARGUED MARCH 27, 2018 — DECIDED SEPTEMBER 28, 2018
____________________
Before WOOD, Chief Judge, and BAUER and KANNE, Circuit
Judges.
WOOD, Chief Judge. The National Labor Relations Act and
its amendments establish a national system of industrial-labor
relations. The question before us in this case is whether a mu-
nicipality—specifically, the Village of Lincolnshire, Illinois—
can add to or change that system through a local ordinance.
Lincolnshire passed an ordinance that purports to do three
2 Nos. 17-1300 & 17-1325
things: (1) forbid the inclusion of union-security or hiring-hall
provisions in collective bargaining agreements, (2) forbid the
mandatory use of hiring halls, and (3) forbid dues checkoff
arrangements. The Village asserted that it had the right to do
so under section 14(b) of the National Labor Relations Act,
29 U.S.C. § 164(b), which permits states to bar compulsory un-
ion membership as a condition of employment. Lincolnshire
contends that, as a political subdivision of Illinois, it is entitled
to exercise the state’s power in this respect.
Whether a local law, rather than a state-wide law, falls
within the scope of section 14(b) is a subject that has divided
other courts. The Sixth Circuit, in United Automobile, Aerospace
& Agricultural Implement Workers of America Local 3047 v. Har-
din County, Kentucky, 842 F.3d 407 (6th Cir. 2016), agreed with
the Village that it does, but only for union-security clauses.
The Sixth Circuit found hiring-hall and dues-checkoff provi-
sions comparable to those in the Lincolnshire ordinance to be
outside the scope of section 14(b) and thus preempted by the
NLRA. On the other side of the fence, Kentucky’s highest
court has held that section 14(b) does not permit local legisla-
tion on the topic of either union-security or mandatory use of
hiring-halls or dues-checkoffs. See Kentucky State AFL-CIO v.
Puckett, 391 S.W.2d 360 (Ky. Ct. App. 1965). 1 With all due re-
spect to our sister circuit, on the union-security clause issue
we find ourselves persuaded by the position that Kentucky
1 Until 1976, the highest court of Kentucky was the Court of Appeals
of Kentucky. Pursuant to the Amendment of May 29, 1975, effective at the
beginning of 1976, Kentucky restructured its courts, and so the highest
court now is the Supreme Court of Kentucky.
Nos. 17-1300 & 17-1325 3
took, although our reasons differ somewhat. 2 We agree with
both courts that localities may not address the subjects of hir-
ing halls or dues checkoffs. We thus conclude that the author-
ity conferred in section 14(b) does not extend to the political
subdivisions of states and affirm the judgment of the district
court holding Lincolnshire’s ordinance preempted and with-
out force.
I
In 2015 Lincolnshire adopted Ordinance Number 15-3389-
116 (“the Ordinance”). Section 4 of the Ordinance bans union-
security agreements within the Village by forbidding any re-
quirement that workers join a union, compensate a union fi-
nancially, or make payments to third parties in lieu of such
contributions. Section 4(B)–(D). Section 4 also bars any re-
quirement that employees “be recommended, approved,
2 This case reveals an interesting gap in Circuit Rule 40(e), which re-
quires circulation to the full court when a panel decision would create a
conflict with another circuit. The rule says nothing about the creation of a
conflict with the highest court of a state, notwithstanding the fact that Su-
preme Court Rule 10(a) includes cases in which a United States court of
appeals “has decided an important federal question in a way that conflicts
with a decision by a state court of last resort.” One goal of Circuit Rule
40(e) is to ensure that this court does not lightly create the type of conflict
that can be resolved only through intervention by the Supreme Court. A
conflict in the circuits is certainly one such situation, see S. Ct. Rule 10(a)
clause 1, but as just noted, so is a conflict between a court of appeals and
a state court of last resort, see S. Ct. Rule 10(a) clause 2. Given the current
language of Circuit Rule 40(e), however, because this opinion would cre-
ate a conflict with the Sixth Circuit, we are circulating it to all members of
the court in regular active service, even though it does not create the kind
of conflict described in Supreme Court Rule 10(a). No judge in regular ac-
tive service wished to hear this case en banc. Judge Flaum did not partici-
pate in consideration of this hearing en banc.
4 Nos. 17-1300 & 17-1325
referred, or cleared for employment by or through a labor or-
ganization.” Section 4(E). Finally, section 5 prohibits employ-
ers from making any payments to unions on a worker’s behalf
except pursuant to a “signed written authorization” that
“may be revoked by the employee at any time by giving writ-
ten notice.” Section 5. The Ordinance provides both civil rem-
edies and criminal penalties for its violation.
A collection of unions sued Lincolnshire, asserting that the
National Labor Relations Act of 1935 (“Wagner Act”), as
amended by the Labor Management Relations Act of 1947
(“Taft-Hartley Act”), preempts the Ordinance. (The references
in this opinion to the NLRA mean the Act as amended.) Their
complaint asserts that sections 4(B)–(D), 4(E), and 5 of the Or-
dinance violate the Supremacy Clause and 42 U.S.C. § 1983.
The district court resolved the case on motions for
summary judgment. It first found that all of the unions had
standing to challenge the membership and fee provisions of
section 4(A)–(D) and the checkoff regulation of section 5, but
that only one of the unions could challenge the prohibition of
hiring halls in section 4(E). We find the court’s analysis in this
respect to be sound, and there is no need to say more, since
neither side has appealed from these rulings. The district
court then held all three provisions to be preempted by the
NLRA. In No. 17-1300, Lincolnshire has appealed from this
determination. The district court also ruled that the unions
failed to state a claim under section 1983, because it
understood them to be asserting Garmon, rather than
Machinists, preemption claims. See Golden State Transit Corp.
v. City of L.A., 493 U.S. 103, 110–13 (1989). Relying on that
ruling, it prevented the unions from claiming attorney’s fees
Nos. 17-1300 & 17-1325 5
under 42 U.S.C. § 1988. In No. 17-1325, the unions have cross-
appealed the latter decision.
II
A
Before turning to the heart of the case, we note that the
unions’ invocation of the Supremacy Clause was proper in
this instance. Although the Supremacy Clause does not create
a freestanding private right of action, Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), a plaintiff may “sue
to enjoin unconstitutional actions by state and federal offic-
ers” in violation of supreme federal law by invoking courts’
equitable powers or through the comparable mechanisms
provided by the Declaratory Judgment Act. Restoration Risk
Retention Grp., Inc. v. Gutierrez, 880 F.3d 339, 346 (7th Cir. 2018)
(quoting Armstrong, 135 S. Ct. at 1384). That is what the unions
have done here.
B
If it were not for section 14(b), the NLRA would preempt
all three aspects of Lincolnshire’s Ordinance. State law must
give way to federal law, the Supreme Court has explained, in
a number of instances: when Congress has enacted a statute
expressly preempting state law; when there is “a framework
of regulation so pervasive ... that Congress left no room for
the States to supplement it or where there is a federal interest
... so dominant that the federal system will be assumed to pre-
clude enforcement of state laws on the same subject”; and
when state laws conflict with federal law, either because com-
pliance with both is a physical impossibility, or because “the
challenged state law stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
6 Nos. 17-1300 & 17-1325
Congress.” Arizona v. United States, 567 U.S. 387, 399 (2012)
(internal quotation marks and citations omitted); see Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
The first of these possibilities is usually called field
preemption, and we begin there. The Supreme Court has con-
firmed that section 8 of the NLRA occupies the field for any
activities that it “may fairly be assumed” fall within the ambit
of the NLRA. San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236, 244 (1959). The negotiation and adoption of the
types of provisions at issue here—union-security clauses, hir-
ing-hall rules, and dues checkoffs—are such activities. E.g.,
Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am.
v. Lockridge, 403 U.S. 274, 284 (1971); see also id. at 296 (noting
that, with respect to union-security clauses, “federal concern
is pervasive and its regulation complex”); Oil, Chem. & Atomic
Workers, Int’l Union v. Mobil Oil Corp., 426 U.S. 407, 409 (1976).
Section 8(a)(3) of the NLRA bars, as an unfair labor prac-
tice, any “discrimination in regard to … employment or any
term or condition of employment to encourage or discourage
membership in any labor organization.” It also provides that
nothing in the NLRA “or in any other statute of the United
States, shall preclude” requiring new hires to join a union
within 30 days, unless specified exceptions apply. 29 U.S.C.
§ 158(a)(3). That is enough to conclude—again, putting sec-
tion 14(b) to the side for a moment—that the union-security
provisions of the Ordinance impermissibly encroach on a
field that has been occupied by section 8 of the NLRA. See
Sweeney v. Pence, 767 F.3d 654, 661 (7th Cir. 2014) (finding
analogous provisions in an Indiana statute governed union
membership within the meaning of section 8). The same is
true of the hiring-hall and dues-checkoff provisions, although
Nos. 17-1300 & 17-1325 7
our emphasis below will be on union-security clauses, as that
is the only point of disagreement between the Sixth Circuit
and us.
The Supreme Court has recognized that laws banning un-
ion-security agreements clash with section 8(a)(3) and thus
can be saved only if they fall within the scope of section 14(b):
While § 8(a)(3) articulates a national policy that certain
union-security agreements are valid as a matter of fed-
eral law … [s]ection 14(b) allows a State or Territory to
ban agreements “requiring membership in a labor or-
ganization as a condition of employment.” We have
recognized that with respect to those state laws which
§ 14(b) permits to be exempted from § 8(a)(3)’s national
policy “[t]here is … conflict between state and federal
law; but it is a conflict sanctioned by Congress with di-
rections to give the right of way to state laws … . ”
Mobil Oil Corp., 426 U.S. at 416–17 (quoting Retail Clerks Int’l
Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103 (1963)) (al-
teration in original). The question before the Court in Mobil
Oil was whether Texas’s right-to-work laws could override an
agency-shop requirement covering unlicensed seamen who
were hired in Texas, but who spent “the vast majority of their
working hours on the high seas.” 426 U.S. at 410. The Court
concluded that Texas law did not reach this far and that “pre-
dominant job situs is the controlling factor in determining
whether, under § 14(b), a State can apply its right-to-work
laws to a given employment relationship.” Id. at 420. Most
(though not all) of the seamen’s work was done on the high
seas, “outside the territorial bounds of the State of Texas.” Id.
8 Nos. 17-1300 & 17-1325
This was enough to conclude that the exception to national
labor policy recognized in section 14(b) was not triggered.
In the absence of applicable legislation under section
14(b), the question whether to have a union-security agree-
ment constitutes a mandatory subject of bargaining under the
NLRA, and refusal to bargain may amount to an unfair labor
practice. NLRB v. Gen. Motors Corp., 373 U.S. 734, 744–45
(1963); Atlas Metal Parts Co., Inc. v. NLRB, 660 F.2d 304, 308
(7th Cir. 1981); see also Pleasantview Nursing Home, Inc. v.
NLRB, 351 F.3d 747, 759 (6th Cir. 2003); Eastex, Inc. v. NLRB,
437 U.S. 556, 569 (1978). In states that have adopted right-to-
work laws, however, the tables are turned: not only is there
no duty to bargain over these clauses; the clauses themselves
are forbidden as a matter of state law. See, e.g., Sweeney,
767 F.3d at 671.
Illinois does not have a state-wide right-to-work law. Per-
haps that is why Lincolnshire passed the Ordinance. But it is
not such a simple matter to say that the state’s power to pass
such a law has been, or may be, delegated to its subdivisions.
Sometimes that is true, and sometimes it is not. Lincolnshire
is a home-rule city, and so we assume for present purposes
that it has broad regulatory powers. Lincolnshire concedes,
however, that if Illinois were to pass a specific statute forbid-
ding the state’s political subdivisions to legislate in this area,
then it would be out of luck. We put that state-law issue to one
side, however, since the broader question is whether as a mat-
ter of federal law section 14(b) authorizes political subdivi-
sions to act in this area.
A local union-security provision would seriously under-
mine the objectives of the NLRA in any state that has not
taken advantage of section 14(b) to forbid agency shops. The
Nos. 17-1300 & 17-1325 9
NLRA “favors permitting [union-security] agreements unless
a State or Territory with a sufficient interest in the relationship
expresses a contrary policy via right-to-work laws.” Mobil Oil
Corp., 426 U.S. at 420. It does this in part to avoid free-riding.
Id. at 416. Recognition of this aim has motivated the Supreme
Court to monitor carefully the scope of states’ authority to
override that policy. See id. at 420 (holding that even though
Texas may have had more contacts than any other state with
the employment relationship at issue, its right-to-work law
did not apply because the predominant situs of the employ-
ment was not in Texas). Lincolnshire’s Ordinance undermines
that congressional goal by banning any collective bargaining
agreement designed to ensure that workers shoulder their
portion of the costs of representation. If the State of Illinois
had passed a right-to-work law, as 28 other states have done,
a different congressional goal would be implicated: the one
expressed in section 14(b) requiring deference to the state’s
choice. But as we have said, Illinois has done no such thing.
The hiring hall aspect of Lincolnshire’s ordinance also
runs into problems with preemption. Like the union-security
part, it falls within the purview of section 8. Farmer v. United
Bhd. of Carpenters & Joiners of Am., Local 25, 430 U.S. 290, 303
n.11 (1977) (“Discrimination in hiring hall referrals constitutes
an unfair labor practice under §§ 8(b)(1)(A) and 8(b)(2) of the
NLRA.”); see also Local 357, Int’l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am. v. NLRB, 365 U.S. 667, 675
(1961) (noting that section 8 permits hiring halls other than
those which are discriminatory). State regulation of hiring
halls is therefore blocked by field preemption. E.g., United
Auto., 842 F.3d at 421–22; Laborers’ Int’l Union of N. Am., Local
No. 107 v. Kunco, Inc., 472 F.2d 456, 458 (8th Cir. 1973); NLRB
v. Tom Joyce Floors, Inc., 353 F.2d 768, 770–71 (9th Cir. 1965).
10 Nos. 17-1300 & 17-1325
The use of hiring-halls routinely has been treated as a manda-
tory subject of bargaining and thus hiring-hall provisions are
affirmatively permitted by the NLRA. E.g., Clarett v. Nat’l
Football League, 369 F.3d 124, 140–41 (2d Cir. 2004); Sw. Steel &
Supply, Inc. v. NLRB, 806 F.2d 1111, 1113 (D.C. Cir. 1986);
NLRB v. Sw. Sec. Equip. Corp., 736 F.2d 1332, 1338 (9th Cir.
1984); NLRB v. Houston Chapter, Associated Gen. Contractors of
Am., Inc., 349 F.2d 449, 452 (5th Cir. 1965); Houston Chapter,
Associated Gen. Contractors of Am., Inc., 143 N.L.R.B. 409, 415
(1963). Lincolnshire’s attempt to prohibit them requires un-
ions and employers to choose between complying with na-
tional or municipal law and thus creates an actual conflict.
Finally, Lincolnshire’s dues-checkoff regulation is
preempted. Dues checkoff provisions are mandatory subjects
of bargaining. E.g., Tribune Publ’g Co. v. NLRB., 564 F.3d 1330,
1333 (D.C. Cir. 2009); NLRB v. J.P. Stevens & Co., 538 F.2d 1152,
1165 (5th Cir. 1976); United Steel Workers of Am. v. NLRB,
390 F.2d 846, 849 (D.C. Cir. 1967). Their negotiation is thus
subject to section 8, and federal law requires state law to yield.
Garmon, 359 U.S. at 244. In this respect too the Lincolnshire
Ordinance threatens an actual conflict with federal law: it per-
mits employers to remit dues only pursuant to fully revocable
checkoffs, while federal law requires employers to bargain in
good faith over checkoff proposals that bind both parties for
up to one year.
Section 302 of the Taft-Hartley Act comprehensively regu-
lates the payment of fees by employers, including payments
to unions. 29 U.S.C. § 186. This includes a provision allowing
for checkoffs to pay union fees under certain circumstances.
Id. § 186(c)(4). The statutory scheme represents a careful bal-
ancing of interests and leaves no room for regulation—
Nos. 17-1300 & 17-1325 11
complementary or otherwise—by subnational units of gov-
ernment. See United Auto., 842 F.3d at 421 (“While Hardin
County maintains that its ordinance regulation of dues
checkoff provisions does not actually conflict with that of the
LMRA [Labor Management Relations Act], the fact remains
that the activity is subject to regulation under the LMRA. Al-
lowing dual regulation under federal and state law would un-
dermine Congress’s purposes and contravene field preemp-
tion.”); SeaPAK v. Indus., Technical & Prof’l Emps., Div. of Nat’l
Mar. Union, 300 F. Supp. 1197, 1200 (S.D. Ga. 1969), summarily
aff’d 423 F.2d 1229 (5th Cir. 1970).
We conclude, therefore, that the Ordinance’s provisions
invade territory occupied by federal law. Lincolnshire can
prevail only if we accept the argument that section 14(b) au-
thorizes not just states, but also any of a state’s political sub-
divisions, to override the background federal rules in any of
the three ways set forth in the Ordinance.
III
Our starting point is the language of the statute. The Taft-
Hartley Act added section 14(b) to the NLRA in 1947. See Pub.
L. No. 86-257, Title VII, § 701(a). That provision reads as fol-
lows:
(b) Agreements requiring union membership in vio-
lation of State law
Nothing in this subchapter shall be construed as au-
thorizing the execution or application of agreements
requiring membership in a labor organization as a con-
dition of employment in any State or Territory in
12 Nos. 17-1300 & 17-1325
which such execution or application is prohibited by
State or Territorial law.
29 U.S.C. § 164(b). Section 14(b) is the exclusive source of
states’ authority to pass right-to-work laws. Mobil Oil Corp.,
426 U.S. at 413 n.7. Thus, this case does not turn on whether
states—as a domestic matter—may delegate some or all of
their own powers to localities. Rather, it depends on whether,
as a matter of statutory interpretation, Congress meant to in-
clude local laws when it referred to “State or Territorial law.”
The only serious issue before us relates to the agency-shop
aspect of the Ordinance. As the Sixth Circuit recognized, sec-
tion 14(b) does not authorize any government—state or lo-
cal—to restrict the use of hiring halls or checkoffs. United
Auto., 842 F.3d at 421–22. We noted the same thing in Sweeney
when we observed that section 14(b) “applies to post-hiring
union security arrangements,” not to “pre-hiring practices”
such as the use of hiring halls. 767 F.3d at 663 n.8. As we ex-
plained in Sweeney, using a hiring hall does “not require pro-
spective employees to do anything more than temporarily
visit union facilities during the hiring process.” Id. The appli-
cant need not make any continuing commitment to the union
if and when he secures employment. Other circuits to con-
sider the issue have come to the same conclusion. Simms v.
Local 1752, Int’l Longshoremen Ass’n, 838 F.3d 613, 618–20
(5th Cir. 2016); Kunco, Inc., 472 F.2d at 458–59; United Auto.,
842 F.3d at 421–22; Tom Joyce Floors, Inc., 353 F.2d at 771.
Checkoff provisions, though they govern relationships
with the union after hiring, are also different from “member-
ship” within the meaning of section 14(b). They do not, in and
of themselves, require employees either to join unions or to
make any payments to them. Rather, they facilitate payments
Nos. 17-1300 & 17-1325 13
once employees have themselves made the decision to con-
tribute to a union or to accept a job requiring that contribu-
tion. To state the matter differently, filling out a checkoff form
does not determine union membership either way: “The dues
checkoff section of the [Taft-Hartley] Act … far from being a
union security provision, seems designed as a provision for
administrative convenience in the collection of union dues.
An employee could revoke the dues deduction authorization,
and yet continue to pay dues personally.” NLRB v. Atlanta
Printing Specialties & Paper Prods. Union 527, 523 F.2d 783, 786
(5th Cir. 1975). In short, checkoff provisions do not compel
workers to pay anything. They thus do not constitute “agree-
ments requiring membership in a labor organization” as un-
derstood by this court in Sweeney. 767 F.3d at 660–61. Here,
too, the circuits are in agreement. NLRB v. Shen-Mar Food
Prods., Inc., 557 F.2d 396, 399 (4th Cir. 1977); see also United
Auto., 842 F.3d at 421–22; Atlanta Printing Specialties & Paper
Prods. Union 527, 523 F.2d at 786.
This takes us to the central question on appeal: does sec-
tion 14(b) permit a state to delegate to some or all of its subdi-
visions the power to ban agency shops at the local level? A
devotee of the “plain language” approach to statutory inter-
pretation might think that the answer to this question must be
“no,” because nothing in the language of section 14(b) refers
to local legislation: it speaks exclusively of “State or Territo-
rial law.” To state the obvious, municipalities are not states,
and municipal law applies only within the regulating munic-
ipality, varying from place to place. And indeed, Congress
sometimes calls out political subdivisions by name. For exam-
ple, the NLRA defines “employer” to exclude “any State or
political subdivision thereof.” 29 U.S.C. § 152(2). Elsewhere,
the Act authorizes the director of the NLRB to “establish
14 Nos. 17-1300 & 17-1325
suitable procedures for cooperation with State and local me-
diation agencies.” 29 U.S.C. § 172(c). See Dep’t of Homeland Sec.
v. MacLean, 135 S. Ct. 913, 919 (2015) (word “law” did not in-
clude regulations in statutory section that did not mention
“rules” or “regulations,” unlike other parts of the same law).
But Congress sometimes allows states to entrust matters
arising under federal laws to lower levels of government
without saying anything on the subject. In the field of anti-
trust, for instance, the Supreme Court has concluded that the
Sherman Act does not displace clearly established and ac-
tively supervised state regulations of economic activity. See
Parker v. Brown, 317 U.S. 341 (1943). But Parker does not insist
that qualifying legislation comes exclusively at the state level.
To the contrary, as cases such as Town of Hallie v. City of Eau
Claire, 471 U.S. 34 (1985), demonstrate, certain municipal leg-
islation also qualifies (with a few tweaks not pertinent here).
We prefer, therefore, not to rely on the literal terms of the
statute here. Labor law is one of the rare areas in which Con-
gress has preempted the field, and so states have no power in
the area except with respect to their own employees. True,
section 14(b) cedes some power back to the states, but it makes
no sense to say that states can re-delegate that power. As we
explain in more detail below, no one would be able to figure
out what is legal and what is not. The situation with Medicaid
is similar: states have the power to choose whether to opt into
Medicaid, but that power must be exercised by the state as a
whole and cannot be redelegated. See 42 U.S.C. § 1396a(a)(1)
(state plan for medical assistance must be in effect in all polit-
ical subdivisions of the state and be mandatory in them).
Construed the way the Village would have it, the Ordi-
nance would put employers in and around the Village in an
Nos. 17-1300 & 17-1325 15
impossible position. An employer with offices within the Vil-
lage whose workers’ predominant job situs is outside the Vil-
lage in a jurisdiction without a comparable law would risk
committing an unfair labor practice if it refused to bargain over
an agency-shop provision. The same employer would risk
civil or criminal penalties if it misjudged “predominant” job
situs and did bargain over an agency-shop rule, if most of its
work was done within the Village. Over what period should
the employer make this assessment: a week? a month? a year?
The employer’s duty to bargain or prohibition on bargaining
might shift from day to day, or month to month, or job to job.
Construing section 14(b) to permit re-delegation would
create other administrative nightmares as well. There were
38,910 general purpose governments in the United States in
2012, and more than 90,000 general and special-purpose gov-
ernments combined. Carma Hogue, Government Organization
Summary Report: 2012, U.S. CENSUS BUREAU 1 (2013),
https://www.census.gov/content/dam/Census/library/publi-
cations/2013/econ/g12-cg-org.pdf, as compared to just 50
states and a handful of territories. Illinois alone has almost
7,000 local governments. Id. Not only are these jurisdictions
more numerous than the states by several orders of magni-
tude, but they are also smaller. In many trades or industries,
the job sites of workers might bring them to numerous mu-
nicipalities every week. Even a single plant might cross mu-
nicipal lines. Lincolnshire, as of the 2010 Census, had a popu-
lation of 7,275 people, and covered an area of 4.68 square
miles in Lake County, Illinois. The idea that businesses oper-
ate exclusively within its borders strikes us as fanciful. Is an
employee subject to an agency agreement one day, when his
job takes him to nearby Chicago, and not the next day, when
he happens to be working on-site in Lincolnshire? What if
16 Nos. 17-1300 & 17-1325
neighboring Buffalo Grove has the opposite law? The sensible
conclusion is that section 14(b) operates only at the state level.
This reveals another problem with the Ordinance. It does
not limit its effect to employees whose primary work situs is
in the Village, as required by Mobil Oil. That case, as we noted
earlier, held that “under § 14(b), right-to-work laws cannot
void agreements permitted by § 8(a)(3) when the situs at
which all the employees covered by the agreement perform
most of their work is located outside of a State having such
laws.” 426 U.S. at 414. There is no reason why this principle
would not apply to political subdivisions.
Lincolnshire responds that employers already must com-
ply with separate state laws, so why assume that they could
not do the same with municipal laws? The answer is simple:
at some point a difference in degree becomes a difference in
kind. Complying with 7,000 different laws in Illinois alone is
quite different from making border adjustments between Illi-
nois and Indiana, two states with different policies governing
agency shops. It would be impossible as a practical matter for
a collective bargaining agreement to account for each jurisdic-
tion’s ordinances. Could an employer be held liable for com-
mitting an unfair labor practice for refusing to engage in a
separate round of horse-trading with workers in each locale?
Has a Lincolnshire employer who just landed a lucrative con-
tract in Chicago committed a criminal violation in Lincoln-
shire because it has agreed to join a multi-employer bargain-
ing unit with an agency-shop rule that is legal at the work si-
tus? As a practical matter, would bargaining units be limited
to individual municipalities? What happens to employees
who move regularly between job sites? Is a manufacturer pre-
cluded from shifting its employees between assembly lines if
Nos. 17-1300 & 17-1325 17
they would cross into a different municipality’s right-to-work
régime?
Permitting local legislation under section 14(b) threatens
“a crazy-quilt of regulations.” The “consequence of such di-
versity for both employers and unions would be to subject a
single collective bargaining relationship to numerous regula-
tory schemes thereby creating an administrative burden and
an incentive to abandon union security agreements.”
New Mexico Fed’n of Labor, United Food & Commercial Workers
Union Local 1564 v. City of Clovis, 735 F. Supp. 999, 1002–03
(D.N.M. 1990).
Interpreting the words “State or Territory” in section 14(b)
to permit delegation to local units of government would thus
do violence to the broad structure of labor law—a law that
places great weight on uniformity. Construing the words
“State or Territory” to preclude delegation assures that only a
limited number of these conflicts exists. It avoids adding an
onerous and ever-shifting new factual layer to the inquiry.
Similarly, it avoids introducing a new legal inquiry into the
mix: did the locality have the authority to pass the ordinance
in question as a matter of state law? Some units of local gov-
ernment have home-rule authority, others do not; some are
special-purpose, others are general-purpose. The variations
both within states and from state to state are endless.
The consequences for the uniformity of national labor law
would be catastrophic. The Supreme Court has said that Con-
gress enacted the NLRA to create national uniformity in labor
law, NLRB v. Nash–Finch Co., 404 U.S. 138, 144 (1971) (quoting
Garner v. Teamsters, Chauffeurs & Helpers Local Union, 346 U.S.
485, 490 (1953)); see also Cannon v. Edgar, 33 F.3d 880, 883 (7th
Cir. 1994), and to minimize industrial strife, see NLRB v. Jones
18 Nos. 17-1300 & 17-1325
& Laughlin Steel Corp., 301 U.S. 1, 41, 45 (1937). While section
14(b) represents a decision that some variation at the state and
territorial level is acceptable, that does not mean that national
uniformity itself has been abandoned as a goal. Notably,
while the parties cite extensively to the legislative history of
the Wagner and Taft-Hartley Acts, the congressional debates’
repeated references to safeguarding state authority contain no
mention of local autonomy.
Against these concerns, the Sixth Circuit, in United Auto.,
and Lincolnshire offer in support of the possibility of delega-
tion under section 14(b) two decisions from the Supreme
Court in other areas of law, Wisconsin Public Intervenor v.
Mortier, 501 U.S. 597 (1991), and City of Columbus v. Ours Gar-
age & Wrecker Service, Inc., 536 U.S. 424 (2002). Neither Mortier
nor Ours Garage, however, abandoned the principle that the
meaning of words in a statute “depends upon the character
and aim of the specific provision involved.” District of Colum-
bia v. Carter, 409 U.S. 418, 420 (1973) (holding that same
phrase, “State or Territory,” encompasses the District of Co-
lumbia when used in 42 U.S.C. § 1982 but excludes the District
when used in the context of a prior version of 42 U.S.C. § 1983,
id. at 421–32).
Mortier concerned the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. At that time,
FIFRA stated that “[a] State may regulate the sale or use of
any federally registered pesticide or device in the State, but
only if and to the extent the regulation does not permit any
sale or use prohibited by this subchapter.” 7 U.S.C. § 136v. It
expressly defined “State” to include states, the District of Co-
lumbia, and various U.S. territories, without any mention of
subdivisions. Id. at § 136(aa). The Court noted, however, that
Nos. 17-1300 & 17-1325 19
nothing in either the statute or its legislative history suggested
preemption of local regulation. Mortier, 501 U.S. at 607–08,
611–12, 614–16. Indeed, it found clues in the statutory lan-
guage indicating that the exclusion of local authorities would
have created tensions within the Act:
[For example,] § 136f(b) requires manufacturers to pro-
duce records … upon the request of any employee of
the EPA “or of any State or political subdivision, duly
designated by the Administrator.” Section 136u(a)(1),
however, authorizes the Administrator to “delegate to
any State ... the authority to cooperate in the enforce-
ment of this [Act] through the use of its personnel.” If
the use of “State” in FIFRA impliedly excludes subdi-
visions, it is unclear why the one provision would al-
low the designation of local officials for enforcement
purposes while the other would prohibit local enforce-
ment authority altogether.
Mortier, 501 U.S. at 608–09 (emphasis added).
Mortier concluded that for FIFRA, the failure to mention
political subdivisions was not enough to support an inference
that Congress had forbidden all local regulation. This, as we
already have noted, contrasts sharply with the scope of the
NLRA and the Court’s consistent interpretation of it. Moreo-
ver, Mortier asked not whether the mention of “State” in sec-
tion 136v authorized localities to regulate matters otherwise
beyond their remit, but rather whether that word alone for-
bade them from exercising such power. Id. at 614. In other
words, the first question in Mortier was whether FIFRA had
any preemptive effect at all. Federal statutes do not supersede
a state’s “historic police powers ... unless that was the clear
and manifest purpose of Congress,” id. at 605 (quoting Rice,
20 Nos. 17-1300 & 17-1325
331 U.S. at 230), and, as a baseline assumption, political sub-
divisions are understood as “components” of the state for
purposes of the police power. Id. at 608; see also id. at 607–08
(citing, inter alia, Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907)).
That is why the mere reference to states in section 136v gave
no reason to suspect that Congress implicitly intended to sup-
plant local regulation—let alone that this silence was a clear
and manifest statement of such a purpose.
Mortier did suggest that the Supreme Court would still
have concluded that section 136v affirmatively authorized the
delegation to local governments of the authority to imple-
ment FIFRA (an environmental law regulating pesticide use).
The ability to regulate noxious substances has been part of the
police power since time out of mind. The Supreme Court as-
sumes that “the historic police powers of the States” are not
to be superseded by federal law unless that was “the clear and
manifest purpose of Congress.” Altria Group, Inc. v. Good,
555 U.S. 70, 77 (2008). The Court found no such purpose in
Mortier. The federal labor laws, as we already have explained,
are a different matter altogether. As the Kentucky Court of
Appeals indicated, 391 S.W.2d at 362, we should construe ex-
ceptions to the NLRA carefully, with an eye both to the scope
of the exception and to its effect on the remainder of the law.
Ours Garage is also distinguishable. There an express
preemption provision in the Interstate Commerce Act gener-
ally forbade “a State, political subdivision of a State, or polit-
ical authority of 2 or more States” to adopt regulations “re-
lated to a price, route, or service of any motor carrier … with
respect to the transportation of property.” 49 U.S.C.
§ 14501(c)(1). The law said, however, that it would not “re-
strict the safety regulatory authority of a State with respect to
Nos. 17-1300 & 17-1325 21
motor vehicles.” Id. at § 14501(c)(2)(A). Despite the omission
of any reference to political subdivisions in the latter clause,
the Supreme Court held that states could delegate their pre-
served authority to localities. Ours Garage, 536 U.S. at 428–29.
As the Court wrote, “[a]bsent a clear statement to the con-
trary, Congress’ reference to the ‘regulatory authority of a
State’ should be read to preserve, not preempt, the traditional
prerogative of the States to delegate their authority to their
constituent parts.” Id. at 429.
Ours Garage acknowledged that it presented a “closer call”
than was the case in Mortier. Id. at 433. The general preemp-
tion provision (49 U.S.C. § 14501(c)(1)) “explicitly
preempt[ed] regulation both by a State and by a political sub-
division of a State.” Id. Yet there were other parts of the statute
that said nothing about political subdivisions. The Court con-
cluded as follows:
We acknowledge that § 14501(c)’s disparate inclu-
sion [and] exclusion of the words “political subdivi-
sions” support an argument of some force, one that
could not have been made in Mortier. Nevertheless,
reading § 14501(c)’s set of exceptions in combination,
and with a view to the basic tenets of our federal sys-
tem pivotal in Mortier, we conclude that the statute
does not provide the requisite clear and manifest indi-
cation that Congress sought to supplant local author-
ity.
536 U.S. at 434 (internal quotation marks omitted).
Ours Garage, like Mortier, concerned the scope of an ex-
press preemption provision and therefore (as the excerpt
above shows) was governed by the rule that the Court
22 Nos. 17-1300 & 17-1325
requires a “clear and manifest indication that Congress
sought to supplant local authority.” Id. Section 14(b) plays a
different function. It is not the source of NLRA preemption;
rather, it is an exception to the general preemption established
in the Act for the field of labor relations. The question is only
how much subnational authority does section 14(b) restore.
Ours Garage depended heavily on an extensive contextual
analysis that looked to other parts of section 14501(c)—provi-
sions that have no corollary in the NLRA. E.g., Ours Garage,
536 U.S. at 434–36. It is also significant that Ours Garage con-
cerned a local safety regulation, which is the type of law that
raises concerns about undue interference with the states’ po-
lice power. Id. at 437, 438. Although states once used their po-
lice powers to enact sweeping anti-labor laws, for nearly a
century the regulation of unions has rested with the federal,
rather than state, government. Finally, the Court emphasized
that the Interstate Commerce Act primarily concerned itself
with economic regulation, while the local ordinance ad-
dressed traditional safety concerns. Id. at 440–42. Municipali-
ties could legislate on the latter topic without directly offend-
ing the statute’s central goals. In contrast, Lincolnshire’s reg-
ulation addresses collective bargaining head-on—the central
concern of the NLRA.
Lincolnshire finally argues that, because local govern-
ments are creatures of the state, they can always exercise under
federal law any powers Congress has given to the state, if the
state in turn has delegated those powers to its subdivisions.
Hunter, 207 U.S. at 178. As we already have pointed out, how-
ever, the rule is more nuanced: sometimes Congress allows
redelegation, as in Mortier, Ours Garage, and Parker, and some-
times it does not, as in the Medicaid example we gave. The
Nos. 17-1300 & 17-1325 23
aspect of labor law governed by section 14(b) of the NLRA,
we conclude, falls in the latter category.
IV
We thus agree with the unions that the district court cor-
rectly found preemption of the Ordinance with respect to all
three of the aspects at issue: the agency shop, the hiring hall,
and the dues checkoff. This disposes of Appeal No. 17-1300.
As we noted briefly at the outset, the unions filed a cross-ap-
peal, No. 17-1325, in which they sought damages under
42 U.S.C. § 1983 for Lincolnshire’s violation of their rights.
Such a claim is possible only if the unions were able to show
preemption under the Supreme Court’s Machinists decision,
which recognizes that some state legislation is preempted be-
cause it interferes with Congress’s intention that the conduct
involved be left to the “free play of economic forces.” Int’l
Ass’n of Machinists & Aerospace Workers v. Wis. Employment Re-
lations Comm’n, 427 U.S. 132, 140–41 (1976) (internal quotation
marks omitted). Garmon preemption, in contrast, addresses
the problem of state regulation that would interfere with the
primary jurisdiction of the National Labor Relations Board.
Id. at 138. It does not involve the kind of personal right that
would support a claim under section 1983.
We conclude that the union’s attempt to bring a Machinists
claim comes too late. In the district court, the unions’ brief in
support of their own motion for summary judgment made no
mention of section 1983. While a page of their brief in opposi-
tion to Lincolnshire’s competing motion did touch on the sub-
ject, it mentioned neither Garmon nor Machinist preemption
and thus made no evident effort to situate the claim in the lat-
ter camp. “[A] party [that] fails to adequately present an issue
to the district court has waived the issue for purposes of
24 Nos. 17-1300 & 17-1325
appeal … even though the issue may have been before the dis-
trict court in more general terms.” Fednav Int’l Ltd. v. Cont’l
Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). We cannot say that
the unions fairly presented their position to the district court.
Nor can we fault the district court for failing to anticipate the
unions’ arguments for why Machinist preemption applies. We
thus see no reason to disturb the district court’s judgment in
this respect either on the merits or with regard to attorneys’
fees.
V
Section 14(b) of the NLRA does not permit local govern-
ments on their own authority to ban agency-shop, hiring hall,
or checkoff agreements. In the absence of an applicable state
law with respect to the agency-shop, as here, all three
measures are preempted by federal law. Finally, the unions
failed to properly preserve their claim under section 1983, and
so the district court did not err by dismissing it. We therefore
AFFIRM the judgment of the district court.