Collective Bargaining Agreement Arbitration.

Byline: Derek Hawkins

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, 90305 (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...