INTERNATIONAL ASSOCIATION OF MACHINISTS DISTRICT TEN and LOCAL LODGE 873, Plaintiff-Appellee, v. RAY ALLEN, in his capacity as Secretary of the Wisconsin Department of Workforce Development, et al., Defendants-Appellants.
No. 17-1178
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 15, 2017 — DECIDED SEPTEMBER 13, 2018
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Western District of Wisconsin. No. 16-CV-77 — William M. Conley, Judge.
HAMILTON,
A dues-checkoff authorization is a contract between an employer and employee for payroll deductions. These are “arrangements whereby [employers] would check off from employee wages amounts owed to a labor organization for dues, initiation fees and assessments.” Felter v. Southern Pacific Co., 359 U.S. 326, 330–31 (1958). By signing an authorization, the employee directs the employer to deduct union dues or fees routinely from the employee’s paycheck and to remit those funds to the applicable union. Many of these authorizations are irrevocable for a specified period—often one year—for reasons of administrative simplicity. See Dkt. 43 at 2 (Elizondo Aff.); see also N.L.R.B. v. Atlanta Printing Specialties and Paper Prods. Union 527, 523 F.2d 783, 786 (5th Cir. 1975). The union itself is not a party to the authorization, which is effective if and only if the employee wishes. Federal law has long provided, however, that unions can bargain collectively with employers over the standard terms of dues-checkoff authorizations.
The Taft-Hartley Act imposes three limits on dues-checkoff authorizations: the authorization must be (1) individual for each employee, (2) in writing, and (3) irrevocable
The district court found that Wisconsin’s attempt to impose its own time limit on dues-checkoff authorizations is preempted by federal labor law, and the court issued a permanent injunction barring enforcement of that provision. International Ass’n of Machinists District 10 v. Allen, No. 16-cv-77, 2016 WL 7475720, at *7 (W.D. Wis. Dec. 28, 2016). We affirm.
This case is controlled by the Supreme Court’s summary affirmance in a case finding a nearly identical State law preempted. Sea Pak v. Indus., Tech. & Prof. Employees, Div. of Nat’l Maritime Union, 400 U.S. 985 (1971) (mem.). We reject Wisconsin’s effort to undermine the precedential force of Sea Pak, which is fully consistent with more general federal labor law preemption principles. See, e.g., Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140–42, 153 (1976). Wisconsin’s attempt to short-circuit the collective bargaining process and to impose a different dues-checkoff standard is preempted by federal law.
I. Factual and Procedural History
A. Wisconsin Act 1
Before Act 1 was enacted in 2015, Wisconsin law had allowed so-called union security agreements in which unions and employers would agree that employees would be required either to join the union or pay fair-share fees. That changed with Act 1’s “right-to-work” provisions, which prohibit employers from requiring their employees to pay dues or fees to a union. See International Union of Operating Engineers Local 139 v. Schimel, 863 F.3d 674, 676–77 (7th Cir. 2017), excerpting
The section of Act 1 challenged in this lawsuit attempts a less dramatic change in labor law. It requires employers to terminate dues-checkoff authorizations within thirty days of receiving written notice from the employee.
(1) It shall be an unfair labor practice for an employer individually or in concert with others: …
(i) To deduct labor organization dues or assessments from an employee‘s earnings, unless the employer has been presented with an individual order therefor, signed by the employee personally, and terminable by the employee giving to the employer at least 30 days’ written notice of the termination. This paragraph applies to the extent permitted under federal law.
This case stems from a complaint filed with the Wisconsin Department of Workforce Development, the State agency that enforces Wisconsin’s wage laws. Lisa Aplin, an assembler at a John Deere plant in Wisconsin, signed a dues-checkoff authorization in November 2002. Her authorization instructed John Deere to deduct union dues from her paychecks and to remit them to the International Association of Machinists District 10 and Local Lodge 873, the plaintiffs-appellees here, which we refer to as the Machinists or the union. Aplin’s authorization said that it was “irrevocable for one (1) year or until the termination of the collective bargaining agreement … whichever occurs sooner.” It also provided that it would be automatically renewed for successive one-year periods unless the collective bargaining agreement terminated or Aplin gave notice during a fifteen-day annual period. The authorization also provided that it was “independent of, and not a quid pro quo for, union membership.” This arrangement remained in effect until 2015. As the State explains, dues-checkoff authorizations like this are a convenient way for employees to pay their union dues or fair-share fees.
In the wake of Act 1, John Deere and the Machinists updated their collective bargaining agreement, but they left in place a term making dues-checkoff authorizations irrevocable for one year. In July 2015, Aplin sent a letter to John Deere and the union invoking Act 1 and requesting the termination of her dues-checkoff authorization. The union responded that her request was untimely and could not be granted unless she renewed it during the annual cancellation period that November.
Aplin then filed a complaint with the State agency claiming that John Deere was violating State wage laws by not honoring within thirty days her attempt to revoke the dues-checkoff authorization. She sought a refund of $65.60 in union dues deducted from her pay after the cancellation would have taken effect. In November 2015, the agency sided with Aplin, finding that
C. This Federal Lawsuit
In February 2016, the Machinists filed this action in the Western District of Wisconsin and moved to enjoin the State from enforcing Act 1’s dues-checkoff provision. The union contended that the federal Labor-Management Relations Act of 1947, better known as the Taft-Hartley Act, preempted Act 1 on this score. See
To protect against corruption in the collective bargaining process, the Taft-Hartley Act, as amended, prohibits “any employer or association of employers” from giving “any money or other thing of value” to “any labor organization,”
The [prohibition] provisions of this section shall not be applicable …
(4) with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose
account such deductions are made, a written assignment which shall not be irrevoc-able for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner … .
The district court granted the union’s motion for summary judgment and permanently enjoined enforcement of
II. Analysis
We review the legal conclusions of summary judgment rulings de novo, construing all facts and drawing all reasonable inferences in favor of the non-moving parties. See Wisconsin Central Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008). Here, however, because there are no genuine issues of material fact, we must decide only whether the union is entitled to a judgment as a matter of law. Id.;
We conclude that the Taft-Hartley Act preempts Wisconsin’s attempt to set new rules for dues-checkoff authorizations governed by
A. Sea Pak’s Continuing Force
The procedural history of the Sea Pak decision was a bit unusual, but the district court correctly found that the Supreme Court’s summary affirmance in Sea Pak controls here. The Supreme Court has instructed that “the lower [federal] courts are bound by summary decisions by this Court ‘until such time as the Court informs (them) that (they) are not,’” because “votes to affirm summarily … are votes on the merits of a case,” just like those accompanied by fully reasoned Court opinions. Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (brackets and citation omitted).
To understand the effect of a summary affirmance, it is usually necessary to look closely at the decision that was summarily affirmed. In Sea Pak, the Southern District of Georgia found a Georgia law very similar to Act 1 preempted. A Georgia law required employers to treat dues-checkoff authorizations as revocable at will. The district court found that provision was “completely at odds” and “in direct conflict” with
The district court in Sea Pak also noted that Judge Noland of the Southern District of Indiana had reached the same conclusion on the same preemption question, holding that
The Sea Pak district court also had to decide whether the Taft-Hartley provision in
The Fifth Circuit affirmed per curiam, adopting the district court’s opinion. 423 F.2d 1229, 1230 (5th Cir. 1970). The Supreme Court affirmed that decision summarily, without opinion. 400 U.S. 985 (1971). Both preemption arguments advanced in this case were “presented and necessarily decided” by the Court’s summary affirmance in Sea Pak; they did not “merely lurk in the record.” See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182–83 (1979) (precedential effect of summary affirmance extends only to “the precise issues presented and necessarily decided,” not to questions that “merely lurk in the record“). Sea Pak controls this case.4
B. Whether the Georgia Statute is a valid exercise of the authority reserved to the Georgia legislature by Section 14(b) of the Labor Management Relations Act, and is, therefore not saved from preemption.
Statement as to Jurisdiction for the Appellant at 5, Sea Pak, 400 U.S. 985 (No. 70-463), 1970 WL 136846, at *4. The issues presented here are indistinguishable. The Georgia law made dues-checkoffs “revocable at the will of the employee,” Sea Pak, 300 F. Supp. 1199, while
As we explain in Part II-B, there has been no comparable sea-change in labor-law preemption or preemption more generally that would justify a lower court in departing from Sea Pak.
In addition, to agree with the State and reverse here, we would have to split with two other circuits. See United Auto., Aerospace & Agric. Implement Workers of Am. Local 3047 v. Hardin County, 842 F.3d 407, 410, 421–22 (6th Cir. 2016) (following Sea Pak to invalidate county ordinance regulating dues-checkoff authorizations); N.L.R.B. v. Shen-Mar Food Products, Inc., 557 F.2d 396, 399 (4th Cir. 1977) (agreeing with NLRB that “the check-off provision was not a Union security device which would be subject to State law under Section 14(b)” of Taft-Hartley); see also N.L.R.B. v. Atlanta Printing Specialties and Paper Prods. Union 527, 523 F.2d 783, 784, 787–88 (5th Cir. 1975) (enforcing NLRB order to employer and union to honor dues-checkoff cancellations tendered during annual escape period of fifteen days). We agree with the Sixth Circuit that Sea Pak’s “authority remains essentially unchallenged” today. Hardin County, 842 F.3d at 421.
B. Labor Law Preemption More Generally
1. Machinists and Garmon Preemption
The State urges us to decide this case under more general field- or conflict-preemption principles. We conclude, however, that Sea Pak is consistent with the Court’s other labor law preemption decisions, which provide quite clear guidance here. In Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018), the Supreme Court explained that all forms of federal preemption “work in the same way: Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal
Over the decades since enactment of the National Labor Relations Act and the Taft-Hartley Act, the Supreme Court has applied field preemption in a host of cases interpreting those laws. The resulting body of law reflects many individual applications of the general principles of preemption, and labor-law preemption cases specifically provide the most reliable guidance for us in this case, if any were needed beyond the Court’s summary affirmance in Sea Pak.
Labor law preemption applies, to put it broadly, when a State acts “as regulator of private conduct” with an “interest in setting policy” that is different from the policy of the federal government. Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U.S. 218, 229 (1993) (Boston Harbor). Most relevant here are two forms of field preemption in labor law, known as Garmon preemption and Machinists preemption. The Supreme Court has explained:
The first, known as Garmon pre-emption, see San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), “is intended to preclude state interference with the National Labor Relations Board‘s interpretation and active enforcement of the ‘integrated scheme of regulation’ established by the [National Labor Relations Act (or NLRA, also known as the Wagner Act)].” Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 613 (1986) (Golden State I). To this end, Garmon pre-emption forbids States to “regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits.” Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286 (1986). The second, known as Machinists pre-emption, forbids both the National Labor Relations Board (NLRB) and States to regulate conduct that Congress intended “be unregulated because left ‘to be controlled by the free play of economic forces.’” Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140 (1976) (quoting NLRB v. Nash–Finch Co., 404 U.S. 138, 144 (1971)). 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.’” 427 U.S., at 140, n. 4 (quoting [Archibald] Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1352 (1972)).
Chamber of Commerce v. Brown, 554 U.S. 60, 65 (2008); see also 520 South Michigan Ave. Assoc. v. Shannon, 549 F.3d 1119, 1125–26 (7th Cir. 2008) (summarizing Garmon and Machinists preemption doctrines).
Both the Garmon and Machinists doctrines apply broadly to the Wagner (NLRA) and Taft-Hartley Acts: “the object
Machinists preemption is quite broad. It recognizes that federal labor statutes “specifically conferred on employers and employees” a right to determine certain questions through bargaining and the use of other “permissible economic tactics,” and to be free from government fiat in finding solutions. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 112–13 (1989) (Golden State II) (where Machinists applies, it extends a right enforceable under
For example, we applied Machinists preemption to an Illinois law that required cemeteries and gravediggers to negotiate to establish a pool of workers who would “perform religiously required interments during labor disputes.” Cannon v. Edgar, 33 F.3d 880, 882, 885–86 (7th Cir. 1994). Despite the State law’s benign purpose to respect certain faiths’ beliefs concerning timely burial, the law impermissibly “meddle[d] with the collective bargaining process” by “directly inter-fer[ing] with the ability of” labor and management “to reach an agreement unfettered by the (labor) restrictions of state law.” Id. at 886; see also id. at 885 (finding same statute preempted under Garmon as well). Similarly, we applied Machinists preemption to an Illinois law that required hotels to give custodial workers specified break periods, rather than leave the issue to collective bargaining. We found that the law was not a minimum labor standard but a specific intrusion into collective bargaining in a particular industry. 520 S. Michigan Ave., 549 F.3d at 1121.
Even State laws with indirect effects on bargaining can be preempted under Machinists. Though Machinists itself was directed at a union’s “refusal to work overtime” and the economic pressure that the refusal placed on the employer, see 427 U.S. at 154, 155, it bars State regulation in any “zone protected and reserved for market freedom” by federal labor law. Boston Harbor, 507 U.S. at 226–27 (city governments are “preempted from conditioning renewal of a taxicab operating license upon the settlement of a labor dispute“), citing Golden State I, 475 U.S. at 618. In such zones, the Court observed in Brown, “the States have no more authority than the Board to upset the balance that Congress has struck between labor and management.” 554 U.S. at 74 (brackets omitted), quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 751 (1985).
Before turning to more specific discussion of Garmon and Machinists preemption principles as applied to dues-checkoff authorization, we address the State’s broadest argument, which is that the court should apply a much more demanding standard for preemption than was applied in Sea Pak, Garmon, or Machinists. The State cites and quotes Justice Kagan’s concurring opinion in Kurns v. Railroad Friction Products Corp., 565 U.S. 625, 638 (2012), which observes that some older preemption cases may seem anachronisms in terms of newer preemption principles and precedents.
Kurns itself provides the best answer to the argument. Both the Kurns majority and Justice Kagan followed the arguably “anachronistic” decision in Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605 (1926) (applying field preemption under Locomotive Inspection Act for railroad safety equipment). They did so because Napier had established the preemptive force of that statute decades earlier and Congress had not acted to change that law. 565 U.S. at 633 (majority); id. at 638 (Kagan, J., concurring). As in Kurns, the Supreme Court has often observed that principles of stare decisis take on “special force” on issues of statutory interpretation. They do so precisely because Congress can legislate to correct an erroneous decision by the Court. E.g., Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765 (2011) (patent law); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) (antitrust law). A case that makes that point with special force, because Congress did respond with new legislation, is Patterson v. McLean Credit Un-ion, 491 U.S. 164, 172–73 (1989) (civil rights litigation), superseded by Civil Rights Act of 1991, as stated in CBOCS West, Inc. v. Humphries, 553 U.S. 442, 450 (2008).
The State’s reliance on more general principles of preemption from other statutory contexts thus fails to engage with the doctrinal heart of this case, which is the decades of decisions deciding the preemptive force of the Wagner and Taft-Hartley Acts. The issue before us is the preemptive scope of the Taft-Hartley Act, so the most relevant guides are the Supreme Court’s decisions under that statute. Moreover, one cannot call Garmon and Machinists “anachronisms” when the Court has been citing and following them on a regular basis. See, e.g., Brown, 554 U.S. at 66 (2008 decision discussing both and applying Machinists preemption); Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 49 (1998) (applying Garmon preemption); Golden State I, 475 U.S. at 615–16 (1986 decision applying Machinists preemption).
2. Preemption for Dues-Checkoff Rules
Returning to the text of the relevant Taft-Hartley provision,
Section 186 was enacted after Congress had gained some experience with how the Wagner Act worked in practice. The provision was intended “to deal with problems peculiar to collective bargaining” and in particular “was aimed at practices which Congress considered inimical to the integrity of the collective bargaining process.” Arroyo v. United States, 359 U.S. 419, 424–25 (1959); see also Unite Here Local 355 v. Mulhall, 571 U.S. 83, 84 (2013) (Breyer, J., dissenting from denial of certiorari) (describing how
Congress did not intend, however, to outlaw dues-checkoff agreements. They are not a special opportunity for corruption but a convenient way for employees to pay their union dues. So Congress included this exception to the anti-corruption provision:
The provisions of this section shall not be applicable …
(4) with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.
This exception sets three, and only three, limits on dues-checkoff agreements, the “written assignment” referred to in the statute. Such agreements must be (1) individual and (2) in writing, and (3) they must allow an employee to revoke it at least once a year or upon expiration of the applicable collective agreement. Apart from those limits, dues-checkoff authorizations are left to collective bargaining. States are not free to mandate additional restrictions for the benefit of unions, employers, or employees.
In addition to the summary affirmance in Sea Pak, the Supreme Court reached the same conclusion in a full opinion interpreting a nearly identical provision in the Railway Labor Act,
hold today under
The Felter Court explained that when Congress added Section 2 Eleventh (b) to the Railway Labor Act:
It thus became lawful to bargain collectively for “union-shop” and “checkoff” arrangements; but this power was made subject to limitations. The limitation here pertinent is that, by force of the proviso, the authority to make checkoff arrangements does not include authority to bind individual employees to submit to the checkoff. Any agreement was to be ineffective as to an employee who did not furnish the employer with a written assignment in favor of the labor organization, and any assignment made was to be “revocable in writing after the expiration of one year ... .” This failure to authorize agreements binding employees to submit to the checkoff was deliberate on the part of Congress. Proposals to that end were expressly rejected. ... [The final bill allowed] the individual employee to decide for himself whether to submit to the checkoff, and whether to revoke an authorization after the expiration of one year.
The Supreme Court then explained how this language placed in only private hands the decisions about additional terms of dues-checkoff authorizations:
The structure of § 2 Eleventh (b) then is simple: carriers and labor organizations are authorized to bargain for arrangements for a checkoff by the employer on behalf of the organization. Latitude is allowed in the terms of such arrangements, but not past the point such terms impinge upon the freedom expressly reserved to the individual employee to decide whether he will authorize the checkoff in his case. Similarly Congress consciously and deliberately chose to deny carriers and labor organizations authority to reach terms which would restrict the employee‘s complete freedom to revoke an assignment by a writing directed to the employer after one year. Congress was specifically concerned with keeping these areas of individual choice off the bargaining table. It is plainly our duty to effectuate this obvious intention of Congress ... .
Id. at 333. In Felter itself, the Court found that the employer and the union had violated those statutory ground rules by refusing to honor a timely revocation notice because it had not been submitted on a particular form. Id. at 330.
Most relevant to this case, however, Felter explained the rules that apply as long as private agreements do not contradict the statutory ground rules:
Of course, the parties may act to minimize the procedural problems caused by Congress’ choice. Carriers and labor organizations
may set up procedures through the collective agreement for processing, between themselves, individual assignments and revocations received, and carriers may make reasonable designations, in or out of collective bargaining contracts, or agents to whom revocations may be sent.
Id. at 334–35. In other words, those matters not governed expressly by the statute were left to the collective bargaining process, just as in Sea Pak and Machinists.
3. Applying Machinists and Garman Preemption Here
Here, Wisconsin acted to give employees like Lisa Aplin an additional statutory right under State law: the ability to cancel their duly authorized dues-checkoff agreements mid-year on just thirty days’ notice.
A strong case could be made for Garmon preemption here because Act 1 can place employers under inconsistent State and federal expectations. After agreeing to a new collective bargaining agreement, employer John Deere was caught here in a federal-state bind. It had agreed, in light of federal law, to a collective bargaining agreement with the Machinists that incorporated by reference dues-checkoff agreements irrevocable for one year. Because this decision was inconsistent with Wisconsin‘s thirty-day revocability requirement, John Deere was told that it could be found responsible for committing an unfair labor practice under State law. But if, after executing the collective bargaining agreement, John Deere had decided to ignore its requirements and to comply with Act 1 instead, it could have been brought before the National Labor Relations Board by the union for committing a federal unfair labor practice. See, e.g., Metalcraft of Mayville, Inc. and District Lodge No. 10, Int‘l Assoc. of Machinists & Aerospace Workers of Am., No. 18-CA-178322, 2017 WL 956627 (N.L.R.B. Div. of Judges Mar. 10, 2017) (analyzing complaint brought by same union against different employer in wake of Act 1). Garmon preemption is supposed to prevent just this sort of conflict between State law and the NLRB‘s authority. See Brown, 554 U.S. at 65.7
The State responds that there is a simple solution that would allow an employer to resolve this conflict. In the bargaining process, the State says, the employer could simply refuse to agree to any irrevocability period longer than thirty days. That is true in theory, but this argument
As explained above, Machinists applies a rule of field preemption in areas that “Congress intended [to] be unregulated” by the NLRB or the States. See Brown, 554 U.S. at 65 (quotation marks omitted), quoting Machinists, 427 U.S. at 140. As Felter explained, the text and structure of Taft-Hartley‘s dues-checkoff provision do precisely that—employers and labor organizations “are authorized to bargain for arrangements for a checkoff by the employer on behalf of the organization,” and it is “expressly reserved to the individual employee to decide whether he will authorize the checkoff in his case.” 359 U.S. at 333. That leaves no room for Wisconsin to
Machinists provide such a clear answer to the issue presented in this case, we do not need to explore Garmon preemption in any more detail.
impose its own regulations in this same field. As in Felter, it “is plainly our duty to effectuate this obvious intention of Congress,” id., and to keep State law from invading this zone that Congress deliberately left to private actors.
C. The State‘s Arguments for an Exception
The State offers two more arguments to shield
1. Section 186‘s Preemptive Scope
First, as recounted above, Taft-Hartley‘s prohibition on employers and their agents giving “any money or other thing of value” to unions in
In addition, Machinists does not suggest that certain parts of Taft-Hartley should be treated differently in terms of preemption. Where Congress deliberately left choices to private actors, neither the State nor the NLRB may intervene. See Machinists, 427 U.S. at 140 & n.4. Even public policy and regulatory decisions in other areas of the law can be preempted under Machinists if they have an impact on the collective bargaining process. See above at 15–17.
Finally, by attempting to regulate the revocation period of dues-checkoff authorizations, Act 1 is not a “state law[] of general application” like minimum-wage laws or minimum labor standards laws, which are generally not preempted. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 753, 755 (1985). Here, Wisconsin seeks to modify a specific federal labor policy choice made in
2. The Exception for “Right-to-Work“/Union Security Agreements
The State also contends that
These arguments depend on the mistaken premise that dues-checkoff authorizations are union security agreements, i.e., “agreements requiring membership in a labor organization as a condition of employment,”
In both Sea Pak and Felter, the Supreme Court has illustrated the difference between dues-checkoff authorizations and union security agreements, i.e., union-shop or agency-shop provisions. Neither Taft-Hartley nor the Railway Labor Act in Felter equates dues-checkoffs with compulsory union membership. In fact, Felter observed:
The Act makes no formal relationship between a union-shop arrangement and a checkoff arrangement; under [the Act] the parties can negotiate either one without the other, if they are so disposed. And of course, a labor organization member who is subject to a union-shop arrangement need not subscribe to the checkoff; he can maintain his standing by paying his dues personally.
359 U.S. at 337 n.12; see also Dkt. 30–1 at 7 (collective bargaining agreement in this case provided that “if no such authorization is in effect, [a member] must pay his membership dues directly to the Union“). By summarily affirming the district court‘s
To counter these points, the State relies on Whiting, a case about federal immigration law and an Arizona business licensing statute, for the idea that it can use “appropriate tools to exercise [the] authority” granted under federal labor law in
Congress did not write
Aplin enjoyed the convenience of a payroll deduction for thirteen years. Only in the last few months of the arrangement did she seek to change it. Sea Pak specifically rejected the notion that this state of affairs amounts to compulsory union membership.
There is no such free-rider concern here. Wisconsin is seeking to modify the terms of voluntary payroll deductions involving an employer and its employee, not mandatory union- or agency-shop requirements that the employer and the union agree to impose on all employees. We know this from the terms of Act 1 itself. Its language invoking the power granted by
In Sweeney, we described the States’
Conclusion
In light of Sea Pak, Machinists, and the Supreme Court‘s other labor preemption decisions,
AFFIRMED.
MANION, Circuit Judge, dissenting. Section 302 of the Taft-Hartley Act, an amendment to the National Labor Relations Act, makes it a crime for an employer to give anything of value to a union representing, or seeking to represent, its employees.
Nearly 50 years ago, a district judge held that Taft-Hartley‘s checkoff provision preempted a state law requiring checkoff agreements be revocable at will. Although the state law did not conflict with the federal checkoff provision, the judge concluded that “[t]he area of checkoff of union dues has been federally occupied to such an extent under [Section 302] that no room remains for state regulation in the same field.” SeaPak v. Indus., Tech. & Prof‘l Emps., 300 F. Supp. 1197, 1200 (S.D. Ga. 1969). That decision was summarily affirmed first by the Fifth Circuit and then the Supreme Court, making it the law of the land. 400 U.S. 985 (1971) (mem.). As a result, states have been prohibited since 1971 from regulating checkoff agreements despite scant textual evidence of congressional intent to prevent them from doing so.
Enacted in 2015, Wisconsin‘s right-to-work law challenges this precedent. In addition to outlawing compulsory unionism, the law requires that checkoff agreements be terminable upon 30 days’ notice to the employer. John Deere employee Lisa Aplin tried to take advantage of the new law by revoking her checkoff agreement, but the union, the International Association of Machinists, was not pleased and refused to accept her revocation. Aplin charged that the union committed an unfair labor practice, and the Wisconsin Department of Workforce Development agreed. But with the Supreme Court‘s summary affirmance in hand, the union obtained an injunction in federal district court.
The court today affirms, relying not only on SeaPak, but on the doctrine of Machinists preemption, a form of labor-specific preemption that didn‘t acquire its name until five years after the SeaPak decision. See Lodge 76, Int‘l Ass‘n of Machinists & Aerospace Workers, AFL-CIO v. Wis. Emp‘t Relations Comm‘n, 427 U.S. 132 (1976). In my view, the SeaPak summary affirmance deserves a fresh look. SeaPak‘s holding that all state regulation of checkoff agreements is preempted does not fit comfortably within the Machinists doctrine. Nor does it stand up to any scrutiny under modern general preemption doctrine, which now requires much stronger textual indications of Congressional intent to displace state regulation. I conclude that developments over the last 47 years have eroded the precedential value of SeaPak to such an extent that we no longer are obliged to follow it. Therefore, I would permit Wisconsin to enforce its limitation on checkoff agreements. I respectfully dissent.
I. Background
Wisconsin‘s right-to-work law, known as Act 1, went into effect on July 1, 2015. Its main provision abolishes compulsory unionism, declaring that “[n]o person may require, as a condition of obtaining or continuing employment, an individual to ... [p]ay any dues, fees, assessments, or other charges or expenses of any kind or amount ... to a labor organization” or “any 3rd party.”
Lisa Aplin worked for John Deere. The International Association of Machinists
The union sought declaratory and injunctive relief in federal court on the ground that Wisconsin‘s restriction of checkoff agreements is preempted by federal law. The district court agreed, concluding that it was bound by the Supreme Court‘s summary affirmance in SeaPak. Int‘l Ass‘n of Machinists Dist. 10 v. Allen, No. 16-cv-77-wmc, 2016 WL 7475720 (W.D. Wis. Dec. 28, 2016). Wisconsin appealed.
II. Analysis
Preemption arises from the Constitution‘s Supremacy Clause, which says federal law “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
In implied preemption cases, we presume that “a state law should be sustained ‘unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.‘” 520 S. Mich. Ave., 549 F.3d at 1125 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)). Typically, “[i]mplied preemption analysis does not justify a ‘free-wheeling judicial inquiry into whether a state statute is in tension with federal objectives‘; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.‘” Chamber of Commerce v. Whiting, 563 U.S. 582, 607 (2011) (quoting Gade v. Nat‘l Solid Wastes Mgmt. Ass‘n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in the judgment)). Consistent with that principle, we generally “assume that ‘the historic police powers of the States’ are not su-perseded ‘unless that was the clear and manifest purpose of Congress.‘” Arizona v. United States, 567 U.S. 387, 400 (2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Most importantly, “[e]vidence of pre-emptive purpose is sought in the text and structure of the statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). In typical preemption cases, courts no longer attempt to read the tea leaves to determine congressional intent. See Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 638 (2012) (Kagan, J., concurring).
But this case concerns labor law. Must we throw general preemption principles, meant to preserve the traditional police power of the States, out the window in this context? The court thinks so. To that end, it contends that the SeaPak decision was an early application of (or at least consistent with) Machinists preemption. Machinists preemption is a species of field preemption in labor law that “forbids both the National Labor Relations Board (NLRB) and States to regulate conduct that Congress intended ‘be unregulated because left to be controlled by the free play of economic forces.‘” Brown, 554 U.S. at 65 (quoting Machinists, 427 U.S. at 140) (some internal quotation marks omitted). The rationale is that Congress’ choice to protect and prohibit certain labor practices (in Sections 7 and 8 of the NLRA) implies congressional intent that whatever it did not protect or prohibit in those sections was meant to be left to bargaining, unregulated by the States. See 520 S. Mich. Ave., 549 F.3d at 1125–26.
Because of this assumption regarding congressional intent, Machinists preemption is in some tension with general field preemption principles. As several justices have noted, “recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Kurns, 565 U.S. at 640–41 (Sotomayor, J., concurring in part and dissenting in part) (quoting Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997) (Thomas, J., dissenting)); see also id. at 638 (Kagan, J., concurring) (criticizing a 1920s application of field preemption as an “anachronism,” noting that “Congress had ‘manifest[ed] the intention to occupy the entire field of regulating locomotive equipment,’ based on nothing more than a statute granting regulatory authority over that subject matter to a federal agency.“).1 Commentators, too, have noticed the Court‘s recent move away from broad application of field preemption. See Lauren Gilbert, Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch, 33 Berkeley J. Emp. & Lab. L. 153, 160 (2012) (“Consistent with the emphasis on states’ rights in modern Commerce Clause and Tenth Amendment cases, the Court has tended over the last fifteen years to narrow the availability of field preemption and obstacle preemption, absent clear evidence of Congressional intent.” (footnote omitted)). But Machinists preemption necessarily infers congressional intent from silence. As then-Justice Rehnquist put it, “[t]he entire body of this Court‘s labor law pre-emption doctrine has been built on a series of implications as to congressional intent in the face of congressional silence, so that we now have an elab-orate pre-emption doctrine traceable not to any expression of Congress, but only to statements by this Court in its previous opinions of what Congress must have intended.” Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 623 (1986) (Rehnquist, J., dissenting).
So, while Machinists is certainly still good law, I would hesitate to extend it beyond its current boundaries. After all, even in the labor context, the Supreme Court is “reluctant to infer pre-emption.” Building & Const. Trades Council of Metro.
Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993). “Federal labor law in this sense is interstitial, supplementing state law where compatible, and supplanting it only when it prevents the accomplishment of the purposes of the federal Act.” Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985).
This leaves three main questions. First, can SeaPak be recast as a Machinists preemption case? If it cannot, can it be justified under modern general preemption doctrine? And if that does not work, must we still follow it simply because it is a merits decision of the Supreme Court and it has not been overruled? I will take these in turn.
A. SeaPak as a Machinists Case
The court contends that the Machinists preemption doctrine supports the SeaPak summary affirmance. It essentially seeks to recast SeaPak as a Machinists preemption case. Yet I cannot find any cases describing SeaPak this way.3 On the other hand, courts have interpreted SeaPak as a general field preemption case (with no mention of Machinists). Most recently, the Sixth Circuit characterized SeaPak as holding that “[a]llowing dual regulation under federal and state law would undermine Congress‘s purposes and contravene field preemption.” United Auto., Aerospace, & Agric. Implement Workers of Am. Local 3047 v. Hardin Cty., 842 F.3d 407, 421 (6th Cir. 2016).
The court held that “[t]he analysis set forth in SeaPak is not conclusive, but it bears the Supreme Court‘s imprimatur and its authority remains essentially unchallenged by any conflicting case law authority.” Id.; see also United Food & Commercial Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167, 1181–82 (D. Ariz. 2013) (“In finding that the Georgia statute was preempted, the trial judge appeared to rely on both conflict and field preemption.“).
Further, the SeaPak district court failed to mention any cases that the Supreme Court relied on to establish the Machinists preemption doctrine seven years later. Instead, it discussed both conflict and field preemption. The court first concluded that the federal and state statutes were “completely at odds” and could not “coexist.” SeaPak, 300 F. Supp. at 1200. This was plainly wrong, since Georgia‘s law requiring checkoff authorizations to be revocable at will did not violate federal law; it was possible to comply with both provisions. Second, the court found “[t]he area of checkoff of union dues has been federally occupied to such an extent under [Section 302] that no room remains for state regulation in the same field.” Id. For support, the court noted that the original version of the legislation in the House would have made it an unfair labor practice for checkoff authorizations to be irrevocable for more than 30 days, but a Senate amendment removed that provision. Id. The court rhetorically asked whether, if the legislation had included the original House version of the checkoff restriction, it would “have amounted to a clear Congressional mandate governing deduction of union dues in every state?” Id. Of course, it would have, so the court said it couldn‘t “be persuaded that Federal preemption fails merely because Congress saw fit to adopt a less liberal power of revocation and then incorporated it in a proviso.” Id. Such an analysis is not comparable to Machinists preemption, but to anachronistic field preemption cases that have fallen out of favor in recent years. I would conclude that SeaPak was decided as a general field preemption case.4
Even so, leaving SeaPak to one side, does Machinists require preemption of the Wisconsin regulation here? Admittedly, “congressional intent to shield a zone of activity from regulation is usually found only ‘implicit[ly] in the structure of the Act[.]‘” Brown, 554 U.S. at 68 (quoting Livadas, 512 U.S. at 117 n.11). This means that States cannot legislate on top of the protections of Section 7 of the
Had Congress included the language of
Further cutting against Machinists preemption is that dues checkoff is “designed as a provision for the administrative convenience in the collection of union dues.” NLRB v. Atlanta Printing Specialties and Paper Prods. Union 527, AFL-CIO, 523 F.2d 783, 786 (5th Cir. 1975). As the Fifth Circuit explained, “Section 302 generally prohibits payments from employers to unions, in order to prevent corruption, but Subsection (c)(4) makes an exception for dues deductions, provided that the employee gives voluntary written consent. The emphasis is on protection of the employee, not the union.” Id. The same is true of the one year limit on irrevocability. If
As this case demonstrates, the revocability of dues checkoff agreements can pit an individual employee, who desires to revoke her checkoff authorization, against the union, which would prefer to receive automatic dues for the remainder of the agreement. That this case is about employee freedom from the union substantially distinguishes it from the typical Machinists case dealing with “Congress’ intentional balance between the power of management and labor to further their respective interests by use of their respective economic weapons.” Cannon, 33 F.3d at 885. While management and labor may bargain over the existence and terms of checkoff agreements, neither side adequately represents the freedom of employees to revoke their agreements. It is in the union‘s interest to procure the maximum irrevocability period allowed under the law, not to bargain for the best interests of its members. Simply put, this case does not involve the same type of regulation of collective bargaining
Lastly, the court says that the Supreme Court reached the “same conclusion” as SeaPak in Felter, but I do not see how Felter helps the court. That case was about whether, under the
Felter was not a preemption case. It simply interpreted the terms of a particular statute that granted a limited authority to labor and management to bargain for checkoff agreements, subject to each employee‘s ability to revoke his agreement after a year. To be sure, the Supreme Court held that labor and management could not bargain for additional requirements beyond “a written assignment,” but it said so because it interpreted the statute as preserving employee freedom. The up-to-one-year provision in
In sum, I conclude that the Wisconsin law is not preempted under Machinists.6 Therefore, I must continue to determine whether the SeaPak district court‘s general preemption conclusions are still binding on us today.
B. SeaPak under Modern General Preemption Doctrine
Can SeaPak withstand scrutiny under modern preemption doctrine? First, a quick review of general implied preemption.
Impossibility preemption applies only where it is actually “impossible for a private party to comply with both the state and federal law.” Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1049 (7th Cir. 2013). Although the SeaPak district court said that the federal and state statutes in that case were “completely at odds” and could not “coexist,” SeaPak, 300 F. Supp. at 1200, it was plainly wrong. Like the revocable-at-will provision at issue in SeaPak, the 30-day irrevocability period now mandated by Wisconsin law does not violate federal law. Federal law makes an employer payment to a union under a checkoff agreement a crime only if such agreement is irrevocable for more than one year. The 30-day Wisconsin period falls within the safe-harbor exception granted by Section 302(c)(4) of the Taft-Hartley Act. Since a 30-day irrevocability period complies with both state and federal law, SeaPak cannot be justified under impossibility preemption.7
Regarding obstacle preemption, the SeaPak district court attempted to ascertain the purpose behind
This analysis was questionable in 1969, but it is totally untenable today. As I noted above, today‘s “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives‘; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.‘” Whiting, 563 U.S. at 607 (quoting Gade, 505 U.S. at 111 (Kennedy, J., concurring in part and concurring in the judgment)). Looking to the text and structure of the law, and keeping in mind the presumption against preemption, I would conclude that obstacle preemption is inapplicable here. That is for much the same reason that I have already concluded Machinists is inapplicable, although the finding comes easier in the general preemption
Finally, we have general field preemption. In its most sweeping conclusion, the SeaPak district court declared that “[t]he area of checkoff of union dues has been federally occupied to such an extent under [Section 302] that no room remains for state regulation in the same field.” SeaPak, 300 F. Supp. at 1200. It reached this conclusion relying entirely on legislative history. See supra at 9. But, as discussed above, “recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Kurns, 565 U.S. at 640–41 (Sotomayor, J., concurring in part and dissenting in part) (quoting Camps Newfound/Owatonna, 520 U.S. at 617 (Thomas, J., dissenting)). The preemption theory the SeaPak district court advanced was entirely atextual, based instead on words Congress rejected. SeaPak, 300 F. Supp. at 1200. While such cavalier use of legislative history to determine congressional intent was commonplace at the time, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29 (1971) (where the legislative history is ambiguous, courts should look to the statute to determine legislative intent), it has thankfully fallen out of favor, see Lamie v. U.S. Trustee, 540 U.S. 526, 534, 536 (2004) (even though a statute was “awkward” and “ungrammatical,” it was not ambiguous and so the Court could not consult legislative history). No court today would find that Congress intended to occupy an entire field based on language that failed to make it into the final bill.
Writing on a clean slate, I would conclude that Wisconsin should be permitted to enforce its limitation on dues checkoff agreements. Nevertheless, I recognize that the Supreme Court‘s summary disposition in SeaPak retains some precedential force. Thus, the final question is whether, even assuming SeaPak was wrongly decided, we should still follow it.
C. Is SeaPak Still Binding?
Unlike a denial of certiorari, a summary disposition of the Supreme Court is a decision on the merits of a case. See Hicks v. Miranda, 422 U.S. 332, 344 (1975). Therefore, “unless and until the Supreme Court should instruct otherwise,” inferior courts should treat summary dispositions as binding “except when doctrinal developments indicate otherwise.” Id. (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)).8 Not surprisingly, the scope of that “doctrinal developments” exception has been the subject of significant debate.
In Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), this court considered the constitutionality of the marriage laws of Indiana and Wisconsin. We confronted the Supreme Court‘s summary disposition in Baker v. Nelson, 409 U.S. 810 (1972) (mem.), which had dismissed an appeal from a same-sex couple
If we were willing to discard Baker in light of these cases, the same should apply here. As I have demonstrated, the Supreme Court‘s preemption jurisprudence has evolved significantly since SeaPak. The Court is now much more sensitive to federalism concerns and far less likely to imply preemption from ambiguous statutes or legislative history. The SeaPak district court‘s analysis perhaps made some sense in 1969, but it cannot stand alongside modern preemption doctrine. Therefore, under Baskin, I would no longer regard it as binding.
III. Conclusion
Wisconsin has challenged a decades-old Supreme Court summary affirmance preventing it from legislating to provide employees additional freedom to revoke agreements to check off union dues from their paychecks. I conclude that the precedential value of that case, SeaPak v. Industrial, Technical & Professional Employees, 400 U.S. 985 (1971) (mem.), has been so eroded by changes to preemption doctrine that we should no longer follow it. The court, perhaps sensing that SeaPak is on weak ground under general preemption principles, mostly defends it as an early
I do not lightly recommend declining to follow Supreme Court precedent. But the SeaPak decision cannot stand up to scrutiny under today‘s preemption doctrines. I am convinced that a court deciding this case today, writing on a clean slate, would find Wisconsin‘s law not preempted. The changes to preemption doctrine have been so significant that we need no longer follow SeaPak. Therefore, Wisconsin should be permitted to enforce its limitation on dues checkoff provisions.
I respectfully dissent.
Notes
A. Whether the Georgia Statute requiring that dues assignments be revocable at will is in conflict with or preempted by Section 302(c)(4) of the Labor Management Relations Act.
Nothing in the question presented or the limited briefing available from the SeaPak appeals demonstrates that the Fifth Circuit or the Supreme Court considered Machinists-like arguments either.Further, I would not consider a checkoff agreement to be a wage-related term of employment under Section 8(a)(5) of the
For these reasons, I would conclude that Garmon preemption is inapplicable.
I am sympathetic to Judge Sutton‘s narrower approach to the Hicks exception, but Baskin remains the law in our circuit. If it were otherwise, this dissent would take the form of an opinion concurring in the judgment.