Maximo Fernandez v. Kerry, Inc.

In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 21-1067 MAXIMO FERNANDEZ, et al., Plaintiffs-Appellants,

v.

KERRY, INC., Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-cv-08971 — Franklin U. Valderrama, Judge. ____________________

ARGUED SEPTEMBER 14, 2021 — DECIDED SEPTEMBER 20, 2021 ____________________

Before SYKES, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges. EASTERBROOK, Circuit Judge. Five persons who used to work for Kerry, Inc., in Illinois filed this suit as a class action in state court. They seek damages under the state’s Biometric Information Privacy Act (BIPA or the Act), 740 ILCS 14/5 to 14/25. The Act requires private entities to obtain consent be- fore collecting or using biometric information, including fin- gerprints. (It has other provisions that we need not discuss.)

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In 2011 Kerry began requiring workers to use fingerprints to clock in and out. Plaintiffs say that Kerry did not obtain their consent before doing so. Kerry removed the suit to federal court under 28 U.S.C. §1453, asserting that the class’s total damages could exceed $5 million and that the statutory re- quirement of some diverse citizenship is satisfied. Plaintiffs do not deny these jurisdictional allegations. Kerry asked the district court to dismiss the suit as preempted by §301 of the Labor Management Relations Act, 29 U.S.C. §185, because resolution depends on interpretation of collective-bargaining agreements between Kerry and the union that represented plaintiffs while they worked there. Federal law prevents states from interfering in relations be- tween unions and private employers. We held in Miller v. Southwest Airlines Co., 926 F.3d 898, 903–05 (7th Cir. 2019), that provisions in the Railway Labor Act parallel to §301 prohibit workers from bypassing their unions and engaging in direct bargaining with their employers about how to clock in and out. We doubted that Illinois has aeempted to give unionized workers a privilege to bargain directly with employers—after all, the Act permits an employee’s “legally authorized repre- sentative” to consent to the collection and use of biometric in- formation. See 740 ILCS 14/15(b). If an employer asserts that a union has consented, then any dispute about the accuracy of that contention is one about the meaning of a collective-bar- gaining agreement and must be resolved between the union and the employer. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987). That means an adjustment board under the Railway Labor Act; under the LMRA it usually means arbitra- tion.

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In Miller the employers plausibly contended that the un- ions had consented. We held that this is enough to prevent suits by individual workers. Fox v. Dakkota Integrated Systems, LLC, 980 F.3d 1146, 1156 (7th Cir. 2020), suggested that the same result would obtain in litigation under the LMRA but refrained from a formal decision on the issue. In our suit the district court deemed Miller controlling when the collective- bargaining agreement is governed by the LMRA. 2020 U.S. Dist. LEXIS 223075 (N.D. Ill. Nov. 30, 2020). As a result it dis- missed plaintiffs’ complaint. Plaintiffs insist that the Railway Labor Act is “more preemptive” than the Labor Management Relations Act, but the Supreme Court has equated the two. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994). Plaintiffs also contend that, although the means of clocking in and out may be mandatory subjects of collective bargaining under the Railway Labor Act, they are only permissive subjects under the Labor Manage- ment Relations Act. We need not decide whether that is so. It is enough to recognize that, whether a topic of bargaining be mandatory (in the sense that the employer must bargain about it on the union’s demand) or permissive, the union is the workers’ agent. If labor and management want to bargain collectively about particular working conditions, they are free to do so. Workers cannot insist that management bypass the union and deal with them directly about these subjects. After all, the statute says that a certified union is each worker’s ex- clusive representative on collective issues. 29 U.S.C. §159(a). Here, as in Miller, the employer invokes a management- rights clause. We remarked in Miller: “Whether [the] unions did consent to the collection and use of biometric data, or per- haps grant authority through a management-rights clause, is

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a question for [decision under the agreement]. Similarly, the retention and destruction schedules for biometric data, and whether [employers] may use third parties to implement timekeeping and identification systems, are topics for bar- gaining between unions and management. States cannot by- pass the mechanisms of [federal law] and authorize direct ne- gotiation or litigation between workers and management.” 926 F.3d at 903 (emphasis in original). “It is not possible even in principle to litigate a dispute about how an [employer] ac- quires and uses fingerprint information for its whole work- force without asking whether the union has consented on the employees’ collective behalf.” Id. at 904. See also Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1179 (7th Cir. 1993). We held in Miller that it was for an adjustment board—as here it is for an arbitrator—to decide whether the employer properly obtained the union’s consent. Anticipating that we would find Miller controlling, plain- tiffs ask us to send this dispute to arbitration. Apart from the fact that plaintiffs did not make such a request in the district court, there is the fact that collective-bargaining agreements usually leave grievances to be worked out between the union and management. Counsel said at argument that the collec- tive-bargaining agreements in question do not permit work- ers to demand arbitration if the union is content to forego that procedure, and they added that the union—Local 781 of the Miscellaneous Warehousemen, Airline, Automotive Parts, Service, Tire and Rental, Chemical and Petroleum, Ice, Paper, and Related Clerical and Production Employees Union—has not requested arbitration. We are not authorized to usurp the union’s authority to decide whether a grievance with man- agement needs an arbitrator’s resolution (or, indeed, whether there is any grievance to resolve). And plaintiffs have not

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contended that Local 781’s choices violate its duty of fair rep- resentation, nor have they joined it as a defendant. AFFIRMED