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Collective Bargaining Agreement – Arbitration

By: Derek Hawkins//November 17, 2021//

Collective Bargaining Agreement – Arbitration

By: Derek Hawkins//November 17, 2021//

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7th Circuit Court of Appeals

Case Name: Maximo Fernandez, et al., v. Kerry, Inc.,

Case No.: 21-1067

Officials: SYKES, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges.

Focus: Collective Bargaining Agreement – Arbitration

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 before collecting or using biometric information, including fingerprints. (It has other provisions that we need not discuss.)

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 requirement 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 between 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.

Anticipating that we would find Miller controlling, plaintiffs 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 collective-bargaining agreements in question do not permit workers 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 management needs an arbitrator’s resolution (or, indeed, whether there is any grievance to resolve). And plaintiffs have not contended that Local 781’s choices violate its duty of fair representation, nor have they joined it as a defendant.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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