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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2 No. 21-1067
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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No. 21-1067 3
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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4 No. 21-1067
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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No. 21-1067 5
contended that Local 781’s choices violate its duty of fair rep-
resentation, nor have they joined it as a defendant.
AFFIRMED

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