Fernandez v. Kerry, Inc.

Fernandez v. Kerry, Inc.

Opinion

 [*645]  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 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 [**2]  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. We doubted that Illinois has attempted to give unionized workers a privilege to bargain directly with employers—after all, the Act permits an employee's "legally authorized representative" to consent to the collection and use of biometric information. See 740 ILCS 14/15(b). ] If an employer asserts that a union has consented, then any dispute about the accuracy of  [*646]  that contention is one about the meaning of a collective-bargaining agreement and must be resolved between [**3]  the union and the employer. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). That means an adjustment board under the Railway Labor Act; under the LMRA it usually means arbitration.

In Miller the employers plausibly contended that the unions 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 dismissed plaintiffs' complaint.

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