Daniel Sarauer v. International Association of M

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐3142
DANIEL SARAUER, et al.,
Plaintiffs‐Appellants,
v.
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT NO. 10, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16‐cv‐00361‐DEJ — David E. Jones, Magistrate Judge.
____________________
ARGUED APRIL 15, 2020 — DECIDED JULY 20, 2020
____________________
Before MANION, HAMILTON, and BARRETT, Circuit Judges.
HAMILTON, Circuit Judge. Private labor relations in this
country are governed almost exclusively by federal law. This
case is about the “almost.” Under federal law, unions and em‐
ployers may enter into collective bargaining agreements with
“union security” clauses, which require employees either to
become union members after being hired or, if they do not
join, to pay fees to the union for representing them, as federal
2 No. 19‐3142
law requires of the union. Congress has allowed states to take
a different view of such clauses, however. More than half the
states today have “right to work” laws prohibiting unions and
employers from entering into union security agreements.
Wisconsin’s Act 1 enacted in 2015 is a right‐to‐work law.
Plaintiffs are ten Wisconsin employees who contend that Act
1 invalidated the union security clause in the 2015–2018 col‐
lective bargaining agreement between their employer and
their bargaining unit’s union, both defendants here. Plaintiffs
filed this suit in a Wisconsin state court, and defendants re‐
moved to federal district court. The district court held that re‐
moval was proper because the case arises under federal law,
not state law. The court then held as a matter of federal law
that defendants’ collective bargaining agreement was formed
before Act 1 took effect so that plaintiffs are not entitled to re‐
lief. The court granted summary judgment for the defense. We
affirm as to both jurisdiction and the merits.
I. Background
The material facts are not disputed. Defendant Maysteel
Industries is a sheet metal fabricator in Wisconsin. Maysteel
employees are represented by defendant Machinists Union.
Plaintiffs are ten employees of Maysteel who do not want to
join the union and pay dues or even make fair‐share pay‐
ments. From March 2012 to March 2015, the company and the
union were parties to a collective bargaining agreement that
contained a union security clause. It required Maysteel em‐
ployees as a condition of employment either to become union
members or to pay a “service fee for representation” to the
union. Under the agreement’s dues check‐off provision,
No. 19‐3142 3
Maysteel, with an employee’s authorization, deducted the un‐
ion’s dues or fees from the employee’s paycheck and sent the
money to the union.
In January 2015, the company and the union began nego‐
tiating a new collective bargaining agreement. Working from
the 2012–2015 agreement as a baseline, the parties kept a writ‐
ten tally of proposed changes as they were agreed upon. By
February 27 the new agreement had been fully negotiated ex‐
cept for the timing of breaks, a point on which the old agree‐
ment had been silent and which the new agreement provided
would be settled by the parties by April without further con‐
tracting. On February 28 the new agreement (that is, the old
agreement plus all agreed upon changes) was presented to the
union membership for ratification. The membership ratified
the new agreement the same day. The new agreement was to
take effect on March 5, the day after the old agreement ex‐
pired, but the parties agreed to implement it on March 2 to
line up its new wage rates with the start of a new pay period.
The new agreement was actually signed on March 18, a point
that is at the heart of plaintiffs’ claims, which depend on when
the new agreement took effect.
On March 11, Wisconsin’s Act 1 took effect. It applied “to
a collective bargaining agreement containing provisions in‐
consistent with this act upon renewal, modification, or exten‐
sion of the agreement occurring on or after” that date. 2015
Wis. Act 1 § 13. Three plaintiffs began objecting to the fee de‐
ductions and demanded that Maysteel stop them. These
plaintiffs also demanded copies of their signed check‐off au‐
thorizations. Neither the company nor the union was forth‐
coming. The three plaintiffs filed charges with the National
Labor Relations Board complaining of unfair labor practices.
4 No. 19‐3142
The Board negotiated a settlement of the charges that did not
require reimbursement of the deductions or invalidation of
the union security clause.
In 2016, plaintiffs then filed this lawsuit in a Wisconsin
state court. The complaint alleged two claims for unfair labor
practices under state law as amended by Act 1. It alleged that
plaintiffs had been unlawfully required to pay union fair‐
share fees as a condition of employment in violation of Wis.
Stat. § 111.04(3)(a). The complaint added a third claim for vi‐
olation of the state wage payment statute, alleging on behalf
of those plaintiffs whose written check‐off authorizations
could not be found (six at the time of filing, five after discov‐
ery in this case) that Maysteel had unlawfully withheld their
wages without authorization.
Defendants removed the case to federal court. Plaintiffs
moved to remand, arguing that they had pleaded only state
law claims and could not be forced into the federal forum. De‐
fendants countered that plaintiffs themselves had raised an
issue of federal labor law (specifically, of labor contract for‐
mation) by alleging that defendants had “backdated” the new
collective bargaining agreement to evade the new require‐
ments of Act 1.
The parties consented to the jurisdiction of the magistrate
judge under 28 U.S.C. § 636(c). The judge denied remand and
later granted defendants’ motion for summary judgment. The
court held that as a matter of federal law, the new collective
bargaining agreement had not been renewed, modified, or ex‐
tended on or after the effective date of Act 1. The union secu‐
rity clause of the new agreement was therefore valid. The dis‐
trict court held further that plaintiffs’ wage payment claims
were within the exclusive jurisdiction of the National Labor
No. 19‐3142 5
Relations Board. We have jurisdiction over plaintiffs’ appeal
from that final judgment. 28 U.S.C. § 1291.
II. Analysis
Plaintiffs appeal both the district court’s denial of their
motion to remand to state court and the grant of summary
judgment to defendants. Plaintiffs also ask us to certify ques‐
tions of Wisconsin law to the Wisconsin Supreme Court under
Circuit Rule 52. We conclude that the district court correctly
denied remand and granted summary judgment. Also, there
is no controlling issue of state law to certify.
A. Federal Jurisdiction
We review de novo the district court’s denial of a motion
to remand. Schur v. L.A. Weight Loss Centers, 577 F.3d 752, 758
(7th Cir. 2009). A motion to remand must be granted if the
case removed from state court could not have been brought in
federal court originally for lack of subject‐matter jurisdiction.
28 U.S.C. §§ 1441(a), 1447(c). Jurisdiction in this case is based
on the district court’s jurisdiction over actions “arising under”
federal law. § 1331. Plaintiffs argue that they assert rights only
under state law, but two paths may support “arising under”
federal jurisdiction over such claims here: so‐called “com‐
plete” preemption and an “embedded” federal question. The
district court took the complete preemption path, holding
principally that this case necessarily arises under § 301 of the
Labor Management Relations (Taft–Hartley) Act of 1947,
29 U.S.C. § 185. We agree with the district court’s ultimate
conclusion that it had jurisdiction and with much of its rea‐
soning. We do not follow the significant expansion of § 301
6 No. 19‐3142
arguably implied by the district court’s ruling and instead fol‐
low the “embedded question” path.1
1. Complete Preemption?
For purposes of 28 U.S.C. § 1331, a case generally “arises
under” the law that creates the plaintiff’s cause of action.
Franchise Tax Board v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 8–9 (1983). As a result, a state law claim ordinarily
cannot be removed, even if it is necessarily defeated by a fed‐
eral defense, because the federal question supporting jurisdic‐
tion must appear on the face of the plaintiff’s properly or
1 It may be helpful to clarify our terms. Our cases occasionally refer to
“complete” and “field” preemption interchangeably, see, e.g., Boomer v.
AT&T Corp., 309 F.3d 404, 417 (7th Cir. 2002) (“the doctrine of field (also
known as complete) preemption”), or suggest there is an essential connec‐
tion between them. See Lehmann v. Brown, 230 F.3d 916, 919 (7th Cir. 2000)
(“‘complete preemption’ is a misnomer, having nothing to do with
preemption and everything to do with federal occupation of a field”).
There is, however, a difference that is helpful to keep in mind. We have
distinguished complete preemption, which is a jurisdictional doctrine per‐
mitting removal, from “ordinary,” defensive preemption as a matter of the
applicable substantive federal law that does not provide a basis for federal
jurisdiction. See, e.g., Smart v. Local 702 IBEW, 562 F.3d 798, 803–04 (7th
Cir. 2009) (“A logical first step in [the complete preemption] analysis is
determining whether the state claim is displaced by federal law under an
ordinary preemption analysis.”); see also 14C Charles Alan Wright and
Arthur R. Miller et al., Federal Practice and Procedure § 3722.2 (4th ed. 1998
& supp. 2020) (“In recent years, federal courts have drawn an important
distinction between what have come to be called the ‘complete’ preemp‐
tion and the ‘ordinary’ preemption by federal law of a claim that appears
to be based on state law.”). In this opinion we use “complete” preemption
to refer to the doctrine that supports federal jurisdiction over claims seem‐
ingly framed as state law claims. That is the term used by the Supreme
Court in discussing removability on the basis of federal labor law. See Cat‐
erpillar Inc. v. Williams, 482 U.S. 386, 393 (1987).
No. 19‐3142 7
“well‐pleaded” complaint. Caterpillar Inc. v. Williams, 482 U.S.
386, 392–93 (1987). Congressional intent to prohibit a state law
cause of action is thus not sufficient to create federal subject‐
matter jurisdiction. Franchise Tax Board, 463 U.S. at 12. But con‐
gressional intent to displace a state law cause of action—such
that there is “no such thing as a state‐law claim” for violation
of the right asserted, Beneficial Nat’l Bank v. Anderson, 539 U.S.
1, 11 (2003), only a federal one—is sufficient to create jurisdic‐
tion. Franchise Tax Board, 463 U.S. at 23. The state law claim is
then said to be “completely pre‐empted” and “is considered,
from its inception, a federal claim.” Williams, 482 U.S. at 393.
Only a small number of federal statutes have completely
preemptive effect. See Retail Property Trust v. United Brother‐
hood of Carpenters and Joiners of Am., 768 F.3d 938, 946–49 & n.5
(9th Cir. 2014). First among them is § 301 of the Taft–Hartley
Act. Williams, 482 U.S. at 393–94 (complete preemption was
first recognized and “applied primarily” in context of § 301);
Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968) (first
recognizing complete preemption under § 301). That statute
supplies the exclusive cause of action for all claims, no matter
how denominated, having a sufficiently close connection to a
collective bargaining agreement governed by federal law.
Williams, 482 U.S. at 393–94; Baker v. Kingsley, 387 F.3d 649, 657
(7th Cir. 2004).
a. § 301 of the Taft–Hartley Act
Section 301 is a multifaceted instrument of federal labor
policy. Complete preemption is only one of its three faces.
First, § 301 contains a narrow grant of subject‐matter jurisdic‐
tion to district courts over suits “for violation” of collective
bargaining agreements. Textron Lycoming Reciprocating Engine
Div. v. United Auto Workers, 523 U.S. 653, 657 (1998) (“a suit
8 No. 19‐3142
‘for violation of a contract’… is one filed because a contract has
been violated”). Second, as a consequence of the first, § 301
broadly authorizes federal courts to develop a common law
of labor contracts to be applied exclusively in both state and
federal court. Allis‐Chalmers Corp. v. Lueck, 471 U.S. 202, 209
(1985) (§ 301 is “a congressional mandate to the federal courts
to fashion a body of federal common law”); Local 174, Team‐
sters v. Lucas Flour Co., 369 U.S. 95, 103 (1962) (“substantive
principles of federal labor law must be paramount in the area
covered by” § 301). Third, as a consequence of the second,
§ 301 completely preempts state law claims “founded directly
on rights created by collective‐bargaining agreements, and
also claims substantially dependent on analysis of a collec‐
tive‐bargaining agreement.” Williams, 482 U.S. at 394 (quota‐
tion marks omitted). In fewer words, “When the ‘heart of the
state law complaint is a clause in the collective bargaining
agreement,’” the complaint necessarily arises under § 301.
Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495, 499 (7th
Cir. 1996) (brackets and ellipsis omitted), quoting Williams,
482 U.S. at 394.
The capacity of § 301 to displace state law claims depend‐
ent on collective bargaining agreements flows from the com‐
plete predominance of federal law in interpreting and enforc‐
ing those agreements. The “negotiation and administration”
of labor contracts would be substantially impeded absent the
certainty that is derived from exclusive application of uniform
federal rules, Lucas Flour, 369 U.S. at 103–04, and that is pro‐
tected by parties’ ability to remove such cases to federal court.
Avco Corp., 390 U.S. at 560; see also Baker, 387 F.3d at 657 (“the
federal statute will displace the state‐law claim to ensure uni‐
form interpretation of collective bargaining agreements”), cit‐
ing Atchley, 101 F.3d at 498. But there is precisely one point of
No. 19‐3142 9
labor contract law that is by congressional design not subject
to a mandate of national uniformity: the enforceability of un‐
ion security agreements under § 14(b) of the National Labor
Relations or Wagner Act of 1935, as amended by the Taft–
Hartley Act, 29 U.S.C. § 164(b).
b. § 14(b) of the Wagner Act
Section 8(a)(3) of the Wagner Act permits unions and em‐
ployers to negotiate for “union shop” and “agency shop”
agreements under specified conditions while prohibiting
“closed shop” agreements as an unfair labor practice. See
29 U.S.C. § 158(a)(3); Oil, Chem. and Atomic Workers Int’l Union
v. Mobil Oil Corp., 426 U.S. 407, 409 n.1 (1976) (distinguishing
treatment of union, agency, and closed shops under § 8(a)(3)).
As amended by the Taft–Hartley Act, § 14(b) expressly de‐
prives § 8(a)(3) of any preemptive force in its permissive as‐
pect:
Nothing in this subchapter shall be construed as
authorizing the execution or application of
agreements requiring membership in a labor or‐
ganization as a condition of employment in any
State or Territory in which such execution or ap‐
plication is prohibited by State or Territorial
law.
29 U.S.C. § 164(b).
We have construed “agreements requiring membership in
a labor organization” to mean agreements requiring the pay‐
ment of money to a labor organization, encompassing all
forms of union security agreements. Sweeney v. Pence, 767 F.3d
654, 661 (7th Cir. 2014). As to all such agreements, therefore,
Congress “chose to abandon any search for uniformity” and
10 No. 19‐3142
“decided to suffer a medley of attitudes and philosophies on
the subject.” Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn,
375 U.S. 96, 104–05 (1963).
As the federal interest served by complete preemption
wanes over state laws within § 14(b), the state interest subor‐
dinated by it waxes. Schermerhorn held that an action to en‐
force Florida’s right‐to‐work law did not allege an arguable
unfair labor practice within the exclusive jurisdiction of the
National Labor Relations Board under the broad and distinct
preemption doctrine called Garmon preemption. Schermer‐
horn, 375 U.S. at 103–04, declining to apply San Diego Building
Trades Council v. Garmon, 359 U.S. 236 (1959). On the Supreme
Court’s reading of § 14(b), Congress could not have intended
to grant the states “overriding authority” to pass laws prohib‐
iting union security agreements while withholding from them
“the power to enforce those laws.” Id. at 102–03.
c. Interpreting Defendants’ Union Security Clause
In this case, plaintiffs alleged that the company and the
union subjected them to unfair labor practices and wrongfully
withheld their wages in violation of Wisconsin law. The heart
of plaintiffs’ complaint was a clause in the collective bargain‐
ing agreement: the union security clause. If that clause re‐
quired Maysteel employees to “Pay any dues, fees, assess‐
ments, or other charges or expenses of any kind or amount, or
provide anything of value, to a labor organization” as a con‐
dition of employment, Wis. Stat. § 111.04(3)(a), then defend‐
ants engaged in unfair labor practices and wrongfully with‐
held wages. See id. §§ 111.04(3)(b), 111.06(1)(a), 109.03(1).2 If it
2
This was the characterization of plaintiffs’ wage payment claims
adopted by the district court. Plaintiffs dispute it on appeal. We assume
No. 19‐3142 11
did not, they did not. In recognition of this fact, plaintiffs three
times pleaded a “real, actual and justiciable controversy … as
to the Plaintiffs’ and the Defendants’ rights and obligations
under” defendants’ collective bargaining agreement. In any
other context, these allegations about the collective bargain‐
ing agreement would establish complete preemption under
§ 301.
But this context is different. First, uniquely when applying
state right‐to‐work laws, there is no federal reason why even
identical union security clauses need to be interpreted uni‐
formly in different states. States are free to prohibit as much
or as little as they will when it comes to union security agree‐
ments as long as they stay within the bounds set by § 14(b).
See, e.g., Oil Workers, 426 U.S. at 414 (application of Texas law
fell outside § 14(b)); Sweeney, 767 F.3d at 661 (application of
Indiana law fell within § 14(b)). Second, as with Garmon
preemption, see Sears, Roebuck & Co. v. San Diego Cty. Dist.
Council of Carpenters, 436 U.S. 180, 192 (1978), complete
preemption under § 301 deprives the plaintiff not only of a
state forum but also of state remedies. Claims completely
preempted under § 301 are remitted first of all to the remedial
scheme (usually arbitration) provided by the collective bar‐
gaining agreement. See, e.g., Lueck, 471 U.S. at 220–21; Atchley,
101 F.3d at 501–02; Brazinski v. Amoco Petrol. Additives Co.,
6 F.3d 1176, 1179–81 (7th Cir. 1993). To find complete preemp‐
tion of claims based on a union security clause allegedly pro‐
hibited by a state law within § 14(b) would thus, contrary to
Schermerhorn, deny the states “the power to enforce” laws
its correctness for the sake of this discussion and address the point more
fully below.
12 No. 19‐3142
Congress has expressly authorized them to make. 375 U.S. at
102.
d. Determining the Time Defendants’ Agreement Was
Formed
Defendants counter that the heart of plaintiffs’ complaint
depends on the law of § 301 in a second sense. They argue the
complaint depends not so much on the meaning of a clause in
a collective bargaining agreement as on the agreement’s exist‐
ence at a given point in time—the effective date of the Wis‐
consin Act 1. Specifically, if defendants’ 2015−2018 collective
bargaining agreement was not “renewed, modified, or ex‐
tended” after March 10, 2015, the prohibitions of Act 1 did not
apply to it. See 2015 Wis. Act 1 § 13 (“upon the renewal, mod‐
ification, or extension of the agreement”). So plaintiffs’ claim
depends on a question that, as it happens, has long been rec‐
ognized as being governed by a uniform rule of federal law.
Deciding whether and when a collective bargaining agree‐
ment is formed and binding calls for a uniform federal rule.
Mohr v. Metro East Mfg. Co., 711 F.2d 69, 71 (7th Cir. 1983) (“the
Supreme Court has opted for uniform rules for questions of
[labor] contract formation”).
Whether the federal interest in uniform contract formation
rules under § 301 is enough, under the doctrine of complete
preemption, to displace entirely Wisconsin’s interest in en‐
forcing the right‐to‐work provisions of Act 1 by the remedial
scheme of its choice is a difficult question. We do not need to
decide it here. We follow instead the district court’s insight
that appears in its opinion as an alternative or additional
ground for removal and federal arising‐under jurisdiction.
The controlling importance of the contract formation question
embedded in plaintiffs’ claims evokes the “embedded federal
No. 19‐3142 13
question” doctrine recognized by Grable & Sons Metal Prod‐
ucts., Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308
(2005), among other cases.
Before turning to Grable, we note that Oil Workers, relied
on by defendants, does not compel a different preemption
analysis. In that case, the employer sued the union in federal
court “under § 301” for a declaratory judgment that the union
security provision in the parties’ collective bargaining agree‐
ment violated Texas’s right‐to‐work law. 426 U.S. at 410. The
district court’s jurisdiction went unquestioned in the Supreme
Court’s opinion. The Court has taught that such unquestioned
assumptions of jurisdiction “have no precedential effect.”
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91
(1998). Further, jurisdiction in Oil Workers could be explained
equally well by the rule that the natural defendant to a hypo‐
thetical coercive suit may bring an action in federal court for
declaratory relief if the natural plaintiff’s suit would arise un‐
der federal law, see NewPage Wis. Sys. Inc v. United Steel Work‐
ers, 651 F.3d 775, 777–78 (7th Cir. 2011)—assuming it was im‐
minent that the employer would be sued by the union in a
coercive suit arising under § 301 for the employer’s breach of
the union security provision. Cf. Textron, 523 U.S. at 661. Ei‐
ther way, the silent assumption of jurisdiction in Oil Workers
tells us nothing about complete preemption in this case. Oil
Workers is not controlling.
2. Embedded Federal Question
The “creation test” first articulated in American Well Works
Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (“A suit
arises under the law that creates the cause of action”), “ac‐
counts for the vast bulk of suits that arise under federal law.”
Gunn v. Minton, 568 U.S. 251, 257 (2013), citing Franchise Tax
14 No. 19‐3142
Board v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9
(1983). For nearly a century, however, the Supreme Court has
decided a “special and small category” of cases allowing ju‐
risdiction where the plaintiff’s claim arises under state law
but depends upon an embedded question of federal law.
Gunn, 568 U.S. at 258. See, e.g., Grable & Sons Metal Prods., Inc.
v. Darue Eng’g and Mfg., 545 U.S. 308 (2005); Smith v. Kansas
City Title & Trust Co., 225 U.S. 180 (1921). One of the enduring
challenges in the law of federal jurisdiction is to navigate the
boundary between this line of cases and the more general
standards of arising‐under law.
State law claims that are not displaced by federal law may
still arise under federal law for purposes of § 1331 if they “im‐
plicate significant federal issues.” Grable, 545 U.S. at 312. A
plaintiff’s complaint is said to present an “embedded” federal
issue supporting federal‐question jurisdiction if it raises a fed‐
eral issue that is “(1) necessarily raised, (2) actually disputed,
(3) substantial, and (4) capable of resolution in federal court
without disrupting the federal‐state balance approved by
Congress.” Gunn, 568 U.S. at 258. Plaintiffs’ complaint in this
case satisfied all four elements of this test.
a. Federal Issue
The federal question at the heart of plaintiffs’ complaint
was, as they twice pleaded, whether “the Defendants’ 2012
CBA was renewed, modified, [or] extended on or after March
11, 2015.” This language was taken from Wisconsin’s Act 1,
leading plaintiffs to argue that it raises a question of only state
law: whether the state statute applies to defendants’ 2015–
2018 collective bargaining agreement. The problem for plain‐
tiffs is that that question necessarily asks when defendants’
agreement became binding in all other respects, in whole (by
No. 19‐3142 15
renewal or extension) or in part (by modification). That is a
question of federal labor law. Application of the state statute
must depend on this question of federal law if the state statu‐
tory language is to serve its apparent purpose of avoiding an
unconstitutional impairment of contracts. See Sweeney v.
Pence, 767 F.3d 654, 666–67 (7th Cir. 2014).
Wisconsin is not entitled to give an independent answer to
this question, different from federal law. Mohr v. Metro East
Mfg. Co., 711 F.2d 69, 71 (7th Cir. 1983) (“the Supreme Court
has opted for uniform rules for questions of [labor] contract
formation”); see also, e.g., Operating Engineers Local 139 Health
Benefit Fund v. Gustafson Constr. Corp., 258 F.3d 645, 649 (7th
Cir. 2001); Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495,
500 n.2 (7th Cir. 1996). Wisconsin law could not give a differ‐
ent answer on when a labor contract begins to bind the parties
without threatening the certainty and uniformity guaranteed
by § 301 of the Taft–Hartley Act. See Local 174, Teamsters v. Lu‐
cas Flour Co., 369 U.S. 95, 103–04 (1962). Federal law controls.
b. Necessarily Raised
We proceed to Grable’s four‐part test. First, the federal is‐
sue in this case is necessarily raised on the face of plaintiffs’
complaint. Plaintiffs’ claims for unfair labor practices and
wrongful wage withholding could succeed only if Act 1 inval‐
idated defendants’ union security clause.3 And Act 1 invali‐
dated defendants’ union security clause only if defendants’
collective bargaining agreement was renewed, modified, or
extended after March 10, 2015. See Gunn, 568 U.S. at 259 (“To
prevail on his legal malpractice claim … Minton must show
3 Regarding plaintiffs’ wage withholding claims, see n.2, supra.
16 No. 19‐3142
that he would have prevailed in his federal patent infringe‐
ment case”).
c. Actually Disputed
Second, the federal issue is actually disputed. “[I]ndeed,
on the merits, it is the central point of dispute.” Gunn, 568 U.S.
at 259. Plaintiffs said a collective bargaining agreement is re‐
newed, modified, or extended (that is, formed) upon execu‐
tion; defendants said it can be formed upon ratification. In
fact, this is the only disputed question.
d. Substantial
Third, the federal issue is substantial “in the relevant
sense.” Gunn, 568 U.S. at 260. The relevant sense of substanti‐
ality is not the importance of the federal issue to the lawsuit.
“The substantiality inquiry under Grable looks instead to the
importance of the issue to the federal system as a whole.” Id.
In Grable, the substantial federal issue in a state action to quiet
title was whether a federal agency’s sale of the contested
property had been valid under federal law. “The Govern‐
ment’s ‘direct interest in the availability of a federal forum to
vindicate its own administrative action’ made the question
‘an important issue of federal law that sensibly belonged in a
federal court.’” Id. at 260–61 (brackets omitted), quoting Gra‐
ble, 545 U.S. at 315. In Smith v. Kansas City Title & Trust Co., the
substantial federal issue in a state shareholder suit was
whether certain classes of federal bonds were void because
issued under an unconstitutional federal statute. 225 U.S. 180,
195 (1921), discussed in Gunn, 568 U.S. at 261.
In this case, the importance of the contract formation issue
to the federal system as a whole is the very reason federal law
applies to begin with: the “negotiation and administration” of
No. 19‐3142 17
collective bargaining agreements would be substantially im‐
peded, contrary to federal labor policy, if employers doing
business in Wisconsin could not be certain when their collec‐
tive bargaining agreements become enforceable because two
different legal regimes might apply. Lucas Flour, 369 U.S. at
103.
e. Capable of Resolution Without Disruption
Fourth and finally, the federal issue can be resolved in fed‐
eral courts without disturbing the congressionally approved
“balance of federal and state judicial responsibilities.” Gunn,
568 U.S. at 264, quoting Grable, 545 U.S. at 314. Any claim suf‐
ficiently dependent on a collective bargaining agreement is
removable, period, apart from § 14(b) of the Wagner Act. But
state power under § 14(b) “begins only with actual negotia‐
tion and execution of the type of agreement described by
§ 14(b).” Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn,
375 U.S. 96, 105 (1963). That threshold issue is decisive in this
case. And unlike complete preemption, removal under Grable
does not displace state law or preclude state remedies; it
leaves intact the states’ legitimate enforcement interests under
§ 14(b). See Schermerhorn, 375 U.S. at 102. Removal here thus
fits precisely the congressional division of labor.
3. Conclusion on Jurisdiction
Plaintiffs’ complaint was not completely preempted under
§ 301 only because it required interpretation of defendants’
union security clause. Without deciding whether it was com‐
pletely preempted because it required determining when de‐
fendants’ collective bargaining agreement was formed, we
conclude this federal issue was sufficient to support arising‐
under jurisdiction and removal under the embedded question
18 No. 19‐3142
theory in the Grable line of cases. The district court properly
denied remand to state court.
B. Motion for Summary Judgment
On the merits, we review de novo the district court’s de‐
termination that there were no genuine disputes of material
fact and defendants were entitled to judgment as a matter of
law. Riley v. City of Kokomo, 909 F.3d 182, 187–88 (7th Cir.
2018); see Fed. R. Civ. P. 56(a). Here, we may be briefer. Wis‐
consin’s Act 1 did not apply to defendants’ 2015−2018 collec‐
tive bargaining agreement because the agreement was not re‐
newed, modified, or extended after March 10, 2015. To show
the contrary, plaintiffs would need to point to some contrac‐
tually significant event occurring after that date which ef‐
fected a change in either the meaning or duration of the rights
and obligations under the agreement. They have not done so.
1. Unfair Labor Practice Claims
Federal law allows a collective bargaining agreement to
take effect before the parties have formally executed a written
document. “All that is required” to make a collective bargain‐
ing agreement binding is “conduct manifesting an intention
to abide and be bound by the terms of [the] agreement.” Brick‐
layers Local 21 of Ill. Apprenticeship and Training Program v. Ban‐
ner Restoration, Inc., 385 F.3d 761, 766 (7th Cir. 2004) (alteration
omitted), quoting Gariup v. Birchler Ceiling & Interior Co.,
777 F.2d 370, 373 (7th Cir. 1985), and citing Operating Engineers
Local 139 Health Benefit Fund v. Gustafson Constr. Corp.,
258 F.3d 645, 650 (7th Cir. 2001), and Atchley v. Heritage Cable
Vision Assocs., 101 F.3d 495, 500 n.2 (7th Cir. 1996), among oth‐
ers. This rule is implicit in, if not mandated by, § 8(d) of the
Wagner Act. See 29 U.S.C. § 158(d) (requiring “execution of a
No. 19‐3142 19
written contract incorporating any agreement reached if re‐
quested by either party” as part of duty to bargain collec‐
tively). The parties may not even be able to contract around it.
See NLRB v. South Fla. Hotel & Motel Ass’n, 751 F.2d 1571, 1581
n.14 (11th Cir. 1985) (“This clause [providing that the contract
would become effective upon execution] notwithstanding,
the Union and the Association created a valid and enforceable
contract upon rank and file ratification.”).
In this case, the union’s February 28, 2015 ratification vote
manifested its acceptance of the proposed agreement that had
been concluded by the parties’ negotiators the previous day.
The ratification was “the last act necessary” to make the agree‐
ment binding. Mack Trucks, Inc. v. United Auto Workers,
856 F.2d 579, 592 (2d Cir. 1988). Plaintiffs point to no renego‐
tiation of the agreement’s terms between the date of ratifica‐
tion and the date of execution (March 18) or any other day on
or after the effective date of Act 1 (March 11). The execution
in itself did not add to or subtract from defendants’ agree‐
ment. As between the parties, its terms had the same force and
effect on March 19 as they had on March 17.
We agree with the district court that plaintiffs’ heavy reli‐
ance on Appalachian Shale Products Co., 121 N.L.R.B. 1160
(1958), is not persuasive. The National Labor Relations Board
held in that case that an unsigned collective bargaining agree‐
ment did not bar a competing union’s petition to represent the
employer’s employees. Id. at 1161–62. This was a specific ap‐
plication of the “contract bar rule,” a discretionary procedure
adopted by the Board for reconciling the Wagner Act’s “goals
of promoting industrial stability and employee freedom of
choice” in the context of representation petitions. NLRB v.
Dominick’s Finer Foods, Inc., 28 F.3d 678, 683 (7th Cir. 1994).
20 No. 19‐3142
The Appalachian Shale rule represents the Board’s judgment of
how best to serve “the effectiveness of its contract bar poli‐
cies.” 121 N.L.R.B. at 1161. It says nothing about when a col‐
lective bargaining agreement begins to bind the parties to it.
We agree as well with the district court that plaintiffs do
no better to rely on Board decisions applying the rule against
retroactively enforcing union security clauses, see Namm’s
Inc., 102 N.L.R.B. 466, 469 (1953), overruled on other grounds,
Kaiser Steel Corp., 125 N.L.R.B. 1039, 1041 n.2 (1959), or the ex‐
emption from the prohibition on closed shops for any collec‐
tive bargaining agreement “entered into” before the Taft–
Hartley Act’s effective date unless “renewed or extended” af‐
terward. See United Hoisting Co., 92 N.L.R.B. 1642, 1643 n.2
(1951).
None of these decisions required execution of a written
document to make a collective bargaining agreement binding.
Decisions in the latter line proceeded from the unremarkable
and uncontested assumption that execution is often a reliable
marker of contract formation, but they did not hold that exe‐
cution is required. See United Hoisting Co., 92 N.L.R.B. at 1644;
Spiegel, Inc., 91 N.L.R.B. 647, 662 (1950); Salant & Salant, Inc.,
87 N.L.R.B. 215, 216–218 (1949).
Decisions in the retroactivity line prohibited unions from
retroactively demanding dues or fees for any period before
the collective bargaining agreement was formed even if new
wage rates were made effective as of an earlier date. Plaintiffs
note the Board’s use of “execution” in International Chemical
Workers: “It also is well established that the date of execution,
not the effective date, of a collective‐bargaining agreement
governs the validity of such a [union security] clause.” Inter‐
national Chemical Workers, Local No. 112, 237 N.L.R.B. 864, 865
No. 19‐3142 21
(1978), citing Local No. 25, Teamsters, 220 N.L.R.B. 76, 77 (1975).
The Board in that case referred to “execution” in distinguish‐
ing between contract formation and retroactive effective dates
where no collective bargaining agreement had been in place
for a time. The Board was not distinguishing between for‐
mation by ratification on one hand and formation by written
execution on the other. The same was true in the cited Local
No. 25, Teamsters. These retroactivity decisions simply did not
address when labor contract formation happens. On that ques‐
tion, the Board continues to adhere to the rule we follow here,
that offer and acceptance, not execution, make a labor con‐
tract. See, e.g., YWCA of Western Mass., 349 N.L.R.B. 762, 763
& n.8 (2007).
Applying established law on contract formation, defend‐
ants’ collective bargaining agreement here was thus formed
upon ratification on February 28, 2015. Neither execution on
March 18 nor any contractual event before or after disturbed
its terms. Because defendants’ agreement was thus not re‐
newed, modified, or extended after March 10, Act 1 did not
invalidate its union security clause. Defendants were entitled
to judgment as a matter of law.
2. Wage Payment Claim
We noted above that the correct characterization of plain‐
tiffs’ wage payment claim is contested. See nn. 2–3, supra. The
Wisconsin wage payment statute generally requires employ‐
ers every month to pay “all wages earned by the employee to
a day not more than 31 days prior to the date of payment.”
Wis. Stat. § 109.03(1). State law provides a private right of ac‐
tion to recover the amount of wages due and unpaid and up
to double damages. § 109.11(2)(a)–(b). The statute does not
apply to employees who are “covered under a valid collective
22 No. 19‐3142
bargaining agreement establishing a different frequency for
wage payments, including deferred payments exercised at the
option of employees.” § 109.03(1)(a).
In this case, plaintiffs complained that Maysteel wrong‐
fully withheld the union’s dues or fair share fees from their
paychecks “without authorization.” If that claim depended
on holding invalid the union security term of the collective
bargaining agreement—as the district court thought it did, at
least in part—it failed because the union security clause was
valid for the reasons explained above.
Any other framing of the claim is self‐defeating, since it
assumes the union was entitled to the fees deducted from
plaintiffs’ paychecks and leaves no room to recover wages
that were “due” but “unpaid.” Contra Wis. Stat.
§ 109.11(2)(a)–(b). And any other framing of the claim, though
not depending on the embedded federal question supporting
jurisdiction of the unfair labor practice claims, would be
within the district court’s sound and unchallenged assertion
of supplemental jurisdiction. See 28 U.S.C. § 1367.
But we agree with the district court that the assertion of
supplemental jurisdiction was redundant. Plaintiffs were
“covered under a valid collective bargaining agreement estab‐
lishing a different frequency for wage payments, including
deferred payments exercised at the option of employees.”
Wis. Stat. § 109.03(1)(a). Plaintiffs therefore needed to invoke
the collective bargaining agreement (either the old or the new
agreement, depending on the claim). Construed as a claim for
unauthorized deduction in violation of the agreement’s
check‐off provision, plaintiffs’ wage payment claim arose un‐
der § 301 and failed on the merits for failure to exhaust the
agreed private remedies. See Allis‐Chalmers Corp. v. Lueck,
No. 19‐3142 23
471 U.S. 202, 220–21 (1985). Construed as based specifically on
the employer’s failure to keep records of plaintiffs’ check‐off
authorizations while continuing to make deductions, the
claim alleged an arguable unfair labor practice within the
Board’s exclusive jurisdiction under San Diego Building Trades
Council v. Garmon, 359 U.S. 236 (1959); see 29 U.S.C. § 186(c).
Plaintiffs basically conceded as much by filing unfair labor
practice charges with the Board before bringing this lawsuit.
And because the Board would not order the damages remedy
sought by plaintiffs on these facts, see Mode O’Day Co., 290
N.L.R.B. 1234, 1234 (1988) (“This approach results in the par‐
ties being placed in the posture they would have been in had
no unfair labor practices occurred”), any state damages rem‐
edy was preempted. Wisconsin Dep’t of Industry v. Gould Inc.,
475 U.S. 282, 286 (1986) (“the Garmon rule prevents States …
from providing their own regulatory or judicial remedies for
conduct prohibited or arguably prohibited by” the Wagner
Act). That is so, anything in Act 1 or elsewhere in Wisconsin
law notwithstanding. Machinists District Ten v. Allen, 904 F.3d
490, 503–07 (7th Cir. 2018). On any theory of the wage pay‐
ment claim, therefore, dismissal was proper.
C. Motion to Certify
Under Circuit Rule 52, plaintiffs filed a motion asking us
to certify two questions to the Wisconsin Supreme Court:
whether Act 1 applies to defendants’ collective bargaining
agreement and whether Maysteel’s dues check‐offs without
written records of authorization violated the Wisconsin wage
payment statute. As explained above, state law does not con‐
trol either question here. States are not authorized to regulate
the formation of a collective bargaining agreement simply be‐
cause it is alleged to contain a prohibited union security
24 No. 19‐3142
clause. Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn,
375 U.S. 96, 105 (1963) (state power under § 14(b) “begins only
with actual negotiation and execution of the type of agree‐
ment described by § 14(b)”). And whether Maysteel’s dues
check‐offs were “without authorization” is a matter for either
the arbitrator under § 301 or the National Labor Relations
Board under Garmon. The motion to certify is denied.
Accordingly, the district court correctly held that plain‐
tiffs’ claims arose under federal law and that plaintiffs were
not entitled to a judicial remedy on the merits. The court’s
judgment of dismissal is AFFIRMED.