Federal law trumps strikebreakers law

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The Seventh Circuit held on Jan. 10 that the National Labor Relations Act preempts state laws criminalizing the employment of “professional strikebreakers.”

Illinois state law has long made it a crime to employ a “professional strikebreaker” — someone who repeatedly works during strikes. 820 ILCS 30/2. In 2003, the state extended the prohibition to the acquisition of strike-breaking labor from any “day or professional labor service agency”

At the time the amendment took effect, workers of the Congress Hotel in Chicago were on strike, and the hotel was operating with replacement workers. The Illinois Department of Labor asked the hotel for information about the origins of its labor force.

The hotel’s owner filed a preemptive suit in Illinois federal court under 42 U.S.C. 1983, seeking a declaratory judgment that the Strikebreakers Act is preempted by the NLRA. The district court dismissed the complaint, finding that there was no case or controversy under Article III, because the hotel could not demonstrate that prosecution was “imminent.” 520 South Michigan Avenue Associates, Ltd. v. Devine, 366 F.Supp.2d 683 (N.D.Ill.2005).

The hotel appealed, and the Seventh Circuit reversed in a decision by Judge Frank H. Easterbrook.

The court concluded, “Courts occasionally say that one or another plaintiff has standing because a threat of prosecution is imminent, but that is a far cry from holding that only an imminent criminal prosecution suffices. … Standing depends on the probability of harm, not its temporal proximity. When injury has occurred or is likely in the future, the fact that state litigation may be deferred does not prevent federal litigation now. The hotel’s use of replacement workers that may have been referred by employment agencies is enough to show that a genuine controversy exists, because it is caught between the need to comply with the state law and the desire to reduce the cost of its operations (cites omitted).”

Citing Younger v. Harris, 401 U.S. 37 (1971), the court noted that, if criminal prosecution of the hotel was actually imminent, federal courts would probably have to abstain on comity grounds.

The court explained, “It is precisely because the State’s Attorney does not promise to offer the Hotel a prompt opportunity to resolve the dispute in state court that it is entitled to turn to a federal tribunal. Otherwise the risk of prosecution, and the costs of complying with or transacting around the Strikebreakers Act, will continue.

As the Supreme Court observed in [Babbitt v. United Farm Workers, 442 U.S. 289 (1979)], ‘[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably [protected by federal law], but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await a criminal prosecution as the sole means of seeking relief.’ 442 U.S. at 298.”

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Turning to the merits, the court held the Strikebreakers Act preempted, and did so in a very dismissive manner.

The court wrote, “Resolution should not be difficult. [Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132 (1976)] holds that states are forbidden to regulate on any subject that federal labor law reserves for the play of economic forces. Under federal labor law, just as workers are free to withhold their labor, so employers are free to hire either temporary or permanent replacements — though employers can’t give them superseniority (cites omitted).”

The court concluded, “The state’s effort to make the hiring of replacement workers a crime is so starkly incompatible with federal labor law, which prevails under the Constitution’s Supremacy Clause, that we do not understand how a responsible state legislature could pass, a responsible Governor sign, or any responsible state official contemplate enforcing, such legislation.”

Accordingly, the court reversed.

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David Ziemer can be reached by email.