### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1178

I NTERNATIONAL A SSOCIATION OF M ACHINISTS D ISTRICT

T EN and L OCAL L ODGE 873,

Plaintiff

‐ Appellee

,

v.

R AY A LLEN

, in his capacity as Secretary of the Wisconsin

Department of Workforce Development, et al.,

Defendants

‐ Appellants

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 16

‐ CV

‐ 77

— William M. Conley

, Judge

.

____________________

A RGUED S EPTEMBER 15, 2017

— D ECIDED S EPTEMBER 13, 2018

____________________

Before M ANION

, R OVNER

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Wisconsin’s Act 1 of 2015, codi

‐

fi ed at Wis. Stat. § 111.01 et seq., changed many provisions of

that State’s labor laws. This case deals with a narrow provi

‐

sion of Act 1 that a tt empts to change the rules for payroll de

‐

ductions that allow employees to pay union dues through

dues

‐ checko ff authorizations.2 No. 17

‐ 1178

A dues

‐ checko ff authorization is a contract between an

employer and employee for payroll deductions. These are

“arrangements whereby [employers] would check o ff from

employee wages amounts owed to a labor organization for

dues, initiation fees and assessments.” Felter v. Southern Paci fi c

Co.

, 359 U.S. 326, 330–31 (1958). By signing an authorization,

the employee directs the employer to deduct union dues or

fees routinely from the employee’s paycheck and to remit

those funds to the applicable union. Many of these authoriza

‐

tions are irrevocable for a speci fi ed period—often one year—

for reasons of administrative simplicity. See Dkt. 43 at 2 (Eli

‐

zondo A ff .); see also N.L.R.B. v. Atlanta Printing Specialties and

Paper Prods. Union 527

, 523 F.2d 783, 786 (5th Cir. 1975). The

union itself is not a party to the authorization, which is e ff ec

‐

tive if and only if the employee wishes. Federal law has long

provided, however, that unions can bargain collectively with

employers over the standard terms of dues

‐ checko ff authori

‐

zations.

The Taft

‐ Hartley Act imposes three limits on dues

‐

checko ff authorizations: the authorization must be (1) indi

‐

vidual for each employee, (2) in writing, and (3) irrevocable

for no longer than one year. See 29 U.S.C. § 186(a)(2), (c)(4).

Wisconsin’s Act 1 a tt empts to shorten this maximum period

to thirty days. See 2015 Wis. Act 1, § 9, codi fi ed at Wis. Stat.

§ 111.06(1)(i).

The district court found that Wisconsin’s a tt empt to im

‐

pose its own time limit on dues

‐ checko ff authorizations is

preempted by federal labor law, and the court issued a per

‐

manent injunction barring enforcement of that provision. In

‐

ternational Ass’n of Machinists District 10 v. Allen

, No. 16

‐ cv

‐ 77,

2016 WL 7475720, at *7 (W.D. Wis. Dec. 28, 2016). We a ffi rm.No. 17

‐ 1178 3

This case is controlled by the Supreme Court’s summary af

‐

fi rmance in a case fi nding a nearly identical State law

preempted. Sea Pak v. Indus., Tech. & Prof. Employees, Div. of

Nat’l Maritime Union

, 400 U.S. 985 (1971) (mem.). We reject

Wisconsin’s e ff ort to undermine the precedential force of Sea

Pak

, which is fully consistent with more general federal labor

law preemption principles. See, e.g., Machinists v. Wisconsin

Employment Relations Comm ʹ n

, 427 U.S. 132, 140–42, 153 (1976).

Wisconsin’s a tt empt to short

‐ circuit the collective bargaining

process and to impose a di ff erent dues

‐ checko ff standard is

preempted by federal law.

I. Factual and Procedural History

A. Wisconsin Act 1

Before Act 1 was enacted in 2015, Wisconsin law had al

‐

lowed so

‐ called union security agreements in which unions

and employers would agree that employees would be re

‐ quired either to join the union or pay fair

‐ share fees. That

changed with Act 1’s “right

‐ to

‐ work” provisions, which pro

‐

hibit employers from requiring their employees to pay dues

or fees to a union. See International Union of Operating Engi

‐

neers Local 139 v. Schimel

, 863 F.3d 674, 676–77 (7th Cir. 2017),

excerpting 2015 Wis. Act 1, § 5, codi fi ed at Wis. Stat.

§ 111.04(3)(a). Act 1 provides in part: “No person may require,

as a condition of obtaining or continuing employment, an in

‐

dividual to

... Pay any dues, fees, assessments, or other

charges

... to a labor organization.” § 111.04(3)(a)(3). This also

meant that Wisconsin employers and unions could no longer

enter into an enforceable mandatory union security agree

‐

ment—a term in a collective bargaining agreement where an

employer promises the union that, as a condition of employ

‐

ment, it will require its employees to maintain membership in4 No. 17

‐ 1178

the union. We held in Schimel that this “right

‐ to

‐ work”/man

‐ datory union security agreement portion of Act 1 is not

preempted by federal law. 863 F.3d at 677. 1

The section of Act 1 challenged in this lawsuit a tt empts a

less dramatic change in labor law. It requires employers to

terminate dues

‐ checko ff authorizations within thirty days of

receiving wri tt en notice from the employee. 2015 Wis. Act 1,

§ 9, codi fi ed at Wis. Stat. § 111.06(1)(i). This challenged provi

‐

sion reads:

(1) It shall be an unfair labor practice for an em

‐ ployer individually or in concert with others:

...

(i) To deduct labor organization dues or assess

‐

ments from an employee ʹ s earnings, unless the

employer has been presented with an individ

‐

ual order therefor, signed by the employee per

‐ sonally, and terminable by the employee giving

to the employer at least 30 days’ wri tt en notice

of the termination. This paragraph applies to

the extent permi tt ed under federal law.

B. The Dispute at the John Deere Plant

This case stems from a complaint fi led with the Wisconsin

Department of Workforce Development, the State agency that

enforces Wisconsin’s wage laws. Lisa Aplin, an assembler at a

John Deere plant in Wisconsin, signed a dues

‐ checko ff au

‐

thorization in November 2002. Her authorization instructed

John Deere to deduct union dues from her paychecks and to

1 Schimel followed our decision in Sweeney v. Pence

, 767 F.3d 654 (7th

Cir. 2014), where a divided panel upheld an identical Indiana law, and

rehearing en banc was denied by an equally divided court.No. 17

‐ 1178 5

remit them to the International Association of Machinists Dis

‐

trict 10 and Local Lodge 873, the plainti ff s

‐ appellees here,

which we refer to as the Machinists or the union. Aplin’s au

‐

thorization said that it was “irrevocable for one (1) year or un

‐

til the termination of the collective bargaining agreement

... whichever occurs sooner.” It also provided that it would be

automatically renewed for successive one

‐ year periods unless

the collective bargaining agreement terminated or Aplin gave

notice during a fi fteen

‐ day annual period. The authorization

also provided that it was “independent of, and not a quid pro

quo for, union membership.” This arrangement remained in

e ff ect until 2015. As the State explains, dues

‐ checko ff authori

‐

zations like this are a convenient way for employees to pay

their union dues or fair

‐ share fees.

In the wake of Act 1, John Deere and the Machinists up

‐

dated their collective bargaining agreement, but they left in

place a term making dues

‐ checko ff authorizations irrevocable

for one year. In July 2015, Aplin sent a le tt er to John Deere and

the union invoking Act 1 and requesting the termination of

her dues

‐ checko ff authorization. The union responded that

her request was untimely and could not be granted unless she

renewed it during the annual cancellation period that Novem

‐

ber.

Aplin then fi led a complaint with the State agency claim

‐ ing that John Deere was violating State wage laws by not hon

‐ oring within thirty days her a tt empt to revoke the dues

‐

checko ff authorization. She sought a refund of $65.60 in union

dues deducted from her pay after the cancellation would have

taken e ff ect. In November 2015, the agency sided with Aplin,

fi nding that Wis. Stat. § 111.06(1)(i) applied and that John

Deere had to honor Aplin’s cancellation and refund request,6 No. 17

‐ 1178

or face enforcement action. The company then reimbursed

Aplin for the $65.60 deducted from her paycheck. Around the

same time, the agency handled another similar dues

‐ checko ff

complaint invoking Wis. Stat. § 111.06(1)(i) and concluded

that it “must enforce the statute in its current form” unless

and until it was found preempted.

C. This Federal Lawsuit

In February 2016, the Machinists fi led this action in the

Western District of Wisconsin and moved to enjoin the State

from enforcing Act 1’s dues

‐ checko ff provision. The union

contended that the federal Labor

‐ Management Relations Act

of 1947, be tt er known as the Taft

‐ Hartley Act, preempted Act

1 on this score. See Pub. L. No. 80–101, § 302(a), (c)(4), 61 Stat.

157, codi fi ed at 29 U.S.C. § 186(a), (c)(4).

To protect against corruption in the collective bargaining

process, the Taft

‐ Hartley Act, as amended, prohibits “any em

‐ ployer or association of employers” from giving “any money

or other thing of value” to “any labor organization,”

§ 186(a)(2), unless one of a long list of exceptions applies.

§ 186(c). The exception relevant here provides:

The [prohibition] provisions of this section shall

not be applicable

...

(4) with respect to money deducted from the

wages of employees in payment of membership

dues in a labor organization: Provided

, That the

employer has received from each employee, on

whose account such deductions are made, a

wri tt en assignment which shall not be irrevoc

‐No. 17

‐ 1178 7

able for a period of more than one year, or be

‐ yond the termination date of the applicable col

‐

lective agreement, whichever occurs sooner

... .

§ 186(c)(4). The union argued that this year

‐ long dues

‐

checko ff exception in federal labor law is incompatible with,

and thus preempts, the corresponding thirty

‐ day provision of

Wisconsin’s Act 1.

The district court granted the union’s motion for summary

judgment and permanently enjoined enforcement of Wis.

Stat. § 111.06(1)(i). 2016 WL 7475720, at *7–8. The district court

found that this issue was “relatively straightforward, since its

resolution is controlled by the United States Supreme Court’s

decision” in Sea Pak. Id

. at *3, citing 400 U.S. 985 (1971).

II. Analysis

We review the legal conclusions of summary judgment

rulings de novo

, construing all facts and drawing all reason

‐

able inferences in favor of the non

‐ moving parties. See Wis

‐

consin Central Ltd. v. Shannon

, 539 F.3d 751, 756 (7th Cir. 2008).

Here, however, because there are no genuine issues of mate

‐

rial fact, we must decide only whether the union is entitled to

a judgment as a ma tt er of law. Id. ; Fed. R. Civ. P. 56(c). The

main issue in this appeal is whether Wis. Stat. § 111.06(1)(i) is

preempted by Taft

‐ Hartley’s § 302(c)(4), codi fi ed at 29 U.S.C.

§ 186(c)(4). We also must address whether Taft

‐ Hartley’s

§ 14(b) exception to preemption for State “right

‐ to

‐ work”

laws—codi fi ed at 29 U.S.C. § 164(b)—allows Wisconsin to do

what it a tt empted to do here.

We conclude that the Taft

‐ Hartley Act preempts Wiscon

‐

sin’s a tt empt to set new rules for dues

‐ checko ff authorizations

governed by § 186(c)(4). Because the challenged portion of8 No. 17

‐ 1178

Act 1 regulates an employee’s optional dues

‐ checko ff author

‐

ization rather than an employee’s obligation to pay dues as a

condition of employment, it falls outside the scope of the

§ 164(b) “right

‐ to

‐ work”/union security agreement exception.

We explain in Part II

‐ A that we agree with the district court

that the Supreme Court’s summary a ffi rmance in Sea Pak con

‐

trols this case. In Part II

‐ B, we explain why Sea Pak fi ts com

‐ fortably with broader preemption principles of labor law. In

Part II

‐ C, we address and reject further arguments by the State

for recognizing an exception from those principles here.

A. Sea Pak’s Continuing Force

The procedural history of the Sea Pak decision was a bit

unusual, but the district court correctly found that the Su

‐

preme Court’s summary a ffi rmance in Sea Pak controls here.

The Supreme Court has instructed that “the lower [federal]

courts are bound by summary decisions by this Court ‘until

such time as the Court informs (them) that (they) are not,’”

because “votes to a ffi rm summarily

... are votes on the merits

of a case,” just like those accompanied by fully reasoned

Court opinions. Hicks v. Miranda

, 422 U.S. 332, 344–45 (1975)

(brackets and citation omi tt ed).

To understand the e ff ect of a summary a ffi rmance, it is

usually necessary to look closely at the decision that was sum

‐ marily a ffi rmed. In Sea Pak

, the Southern District of Georgia

found a Georgia law very similar to Act 1 preempted. A Geor

‐ gia law required employers to treat dues

‐ checko ff authoriza

‐

tions as revocable at will. The district court found that provi

‐

sion was “completely at odds” and “in direct con fl ict” with 29

U.S.C. § 186(c)(4), which, as noted, permits dues

‐ checko ff s to

be irrevocable for up to one year. 300 F. Supp. 1197, 1200 (S.D.No. 17

‐ 1178 9

Ga. 1969). 2 “A union is thus permi tt ed to bargain for and re

‐

ceive a checko ff of dues under authorizations which may be

irrevocable for as long as one year.” Id. This Taft

‐ Hartley pro

‐

vision meant “that no room remains for state regulation in the

same fi eld.” Id. 3

The district court in Sea Pak also noted that Judge Noland

of the Southern District of Indiana had reached the same con

‐

clusion on the same preemption question, holding that

§ 186(c)(4) preempted an Indiana wage assignment law re

‐ quiring assignments to be revocable at will. Id. at 1198–99, cit

‐ ing International B’hood of Operative Po tt ers v. Tell City Chair Co.

,

295 F. Supp. 961, 965 (S.D. Ind. 1968) (§ 186 “speci fi es the con

‐

ditions necessary for a valid check

‐ o ff

, and

... is su ffi ciently

2 The district court also noted that the original House

‐ passed version

of § 186(c)(4) would have made dues

‐ checkoffs “revocable by the em

‐ ployee at any time upon thirty days written notice to the employer,” Sea

Pak

, 300 F. Supp. at 1200—the same policy Wisconsin has attempted to

impose here. The final version of § 186(c)(4) allowed the maximum period

to be as long as a full year. The district court concluded: “I cannot be per

‐

suaded that Federal preemption fails merely because Congress saw fit to

adopt a less liberal power of revocation” in setting ground rules for dues

‐

checkoff authorizations. Id.

3 In so holding, the Sea Pak district court interpreted § 186(c)(4) the

same way the Supreme Court had already read a nearly identical provi

‐

sion in the Railway Labor Act in Felter

, see 359 U.S. at 330–31, discussed

below at 20–23. The Sea Pak district court’s reasoning also correctly antici

‐ pated the Supreme Court’s decision seven years later in Machinists

, 427

U.S. at 153, where the Court found that certain aspects of the “federal reg

‐ ulatory scheme” of labor

‐ management relations “leave the parties free”

from “state attempts to influence the substantive terms of collective bar

‐ gaining agreements” and from such attempts by the National Labor Rela

‐

tions Board.10 No. 17

‐ 1178

pervasive and encompassing” to preempt State wage assign

‐

ment laws).

The Sea Pak district court also had to decide whether the

Taft

‐ Hartley provision in 29 U.S.C. § 164(b), which permi tt ed

States to outlaw “agreements requiring union membership as

a condition of employment,” also allowed a State to enact

check

‐ o ff provisions contrary to what is provided in

§ 186(c)(4). 300 F. Supp. at 1199–1200. The court found that the

State’s dues

‐ checko ff regulation was not saved by § 164(b):

“Checko ff authorizations irrevocable for one year after [their

authorization] date do not amount to compulsory unionism

as to employees who wish to withdraw from membership

prior to that time.” Id. at 1201.

The Fifth Circuit a ffi rmed per curiam

, adopting the district

court’s opinion. 423 F.2d 1229, 1230 (5th Cir. 1970). The Su

‐

preme Court a ffi rmed that decision summarily, without opin

‐

ion. 400 U.S. 985 (1971). Both preemption arguments ad

‐

vanced in this case were “presented and necessarily decided”

by the Court’s summary a ffi rmance in Sea Pak ; they did not

“merely lurk in the record.” See Illinois State Bd. of Elections v.

Socialist Workers Party

, 440 U.S. 173, 182–83 (1979) (preceden

‐

tial e ff ect of summary a ffi rmance extends only to “the precise

issues presented and necessarily decided,” not to questions

that “merely lurk in the record”). Sea Pak controls this case. 4

4 The employer

‐ appellant in Sea Pak presented the following questions

to the Supreme Court, invoking mandatory appellate jurisdiction under

28 U.S.C. § 1254(2) (1970):

A. Whether the Georgia Statute requiring that dues assignments

be revocable at will is in con fl ict with or preempted by Section

302(c)(4) of the Labor Management Relations Act.No. 17

‐ 1178 11

The State argues, though, that even if Sea Pak applies, sub

‐

sequent developments in the Supreme Court’s case law on

preemption mean that Sea Pak is no longer binding. Language

in Hicks v. Miranda may o ff er a small opening for lower courts

to depart from summary decisions “when doctrinal develop

‐

ments indicate otherwise.” 422 U.S. at 344, quoting Port Au

‐ thority Bondholders Protective Comm. v. Port of New York Auth

.,

387 F.2d 259, 263 n.3 (2d Cir. 1967) (addressing dismissals for

lack of substantial federal questions), and citing Doe v. Hodg

‐

son

, 478 F.2d 537, 539 (2d Cir. 1973) (lower courts should fol

‐

low summary decisions until Supreme Court says otherwise).

We found such an opening in Baskin v. Bogan

, 766 F.3d 648,

659 (7th Cir. 2014), fi nding that a 1972 summary dismissal for

want of a substantial federal question rejecting a constitu

‐

tional claim for same

‐ sex marriage was no longer binding in

light of a consistent series of more recent Supreme Court de

‐

cisions recognizing certain sexual orientation rights under the

Constitution. To the extent there might be any theoretical

room for departing from the summary a ffi rmance in Sea Pak

,

it would take much stronger signals from the Court to do so.

B. Whether the Georgia Statute is a valid exercise of the authority

reserved to the Georgia legislature by Section 14(b) of the Labor

Management Relations Act, and is, therefore not saved from

preemption.

Statement as to Jurisdiction for the Appellant at 5, Sea Pak

, 400 U.S. 985

(No. 70

‐ 463), 1970 WL 136846, at *4. The issues presented here are indis

‐ tinguishable. The Georgia law made dues

‐ checkoffs “revocable at the will

of the employee,” Sea Pak

, 300 F. Supp. 1199, while Wis. Stat. § 111.06(1)(i)

grants an at

‐ will cancellation right to employees, to take effect in thirty

days. This thirty

‐ day delay is a distinction without a difference. Both stat

‐

utes operate to shorten considerably the irrevocability period of dues

‐

checkoff agreements otherwise permitted under Taft

‐ Hartley.12 No. 17

‐ 1178

As we explain in Part II

‐ B, there has been no comparable sea

‐ change in labor

‐ law preemption or preemption more gener

‐ ally that would justify a lower court in departing from Sea Pak

.

In addition, to agree with the State and reverse here, we

would have to split with two other circuits. See United Auto.,

Aerospace & Agric. Implement Workers of Am. Local 3047 v. Har

‐

din County

, 842 F.3d 407, 410, 421–22 (6th Cir. 2016) (following

Sea Pak to invalidate county ordinance regulating dues

‐

checko ff authorizations); N.L.R.B. v. Shen

‐ Mar Food Products,

Inc.

, 557 F.2d 396, 399 (4th Cir. 1977) (agreeing with NLRB that

“the check

‐ o ff provision was not a Union security device

which would be subject to State law under Section 14(b)” of

Taft

‐ Hartley); see also N.L.R.B. v. Atlanta Printing Specialties

and Paper Products Union 527

, 523 F.2d 783, 784, 787–88 (5th

Cir. 1975) (enforcing NLRB order to employer and union to

honor dues

‐ checko ff cancellations tendered during annual es

‐

cape period of fi fteen days). We agree with the Sixth Circuit

that Sea Pak ’s “authority remains essentially unchallenged”

today. Hardin County

, 842 F.3d at 421.

B. Labor Law Preemption More Generally

1. Machinists and Garmon Preemption

The State urges us to decide this case under more general

fi eld

‐ or con fl ict

‐ preemption principles. We conclude, how

‐

ever, that Sea Pak is consistent with the Court’s other labor law

preemption decisions, which provide quite clear guidance

here. In Murphy v. National Collegiate Athletic Ass’n

, 138 S. Ct.

1461, 1480 (2018), the Supreme Court explained that all forms

of federal preemption “work in the same way: Congress en

‐

acts a law that imposes restrictions or confers rights on private

actors; a state law confers rights or imposes restrictions thatNo. 17

‐ 1178 13

con fl ict with the federal law; and therefore the federal law

takes precedence and the state law is preempted.” Most rele

‐

vant for this case, “ fi eld preemption” occurs “when federal

law occupies a ‘ fi eld’ of regulation ‘so comprehensively that

it has left no room for supplementary state legislation.’” Id

., quoting R.J. Reynolds Tobacco Co. v. Durham County

, 479 U.S.

130, 140 (1986). Federal statutes that preempt a fi eld “re fl ect[]

a congressional decision to foreclose any state regulation in

the area, even if it is parallel to federal standards.” Murphy

,

138 S. Ct. at 1481, quoting Arizona v. United States

, 567 U.S.

387, 401 (2012).

Over the decades since enactment of the National Labor

Relations Act and the Taft

‐ Hartley Act, the Supreme Court

has applied fi eld preemption in a host of cases interpreting

those laws. The resulting body of law re fl ects many individ

‐

ual applications of the general principles of preemption, and

labor

‐ law preemption cases speci fi cally provide the most re

‐

liable guidance for us in this case, if any were needed beyond

the Court’s summary a ffi rmance in Sea Pak

.

Labor law preemption applies, to put it broadly, when a

State acts “as regulator of private conduct” with an “interest

in se tt ing policy” that is di ff erent from the policy of the fed

‐

eral government. Building & Constr. Trades Council v. Associ

‐

ated Builders & Contractors of Mass./R. I., Inc.

, 507 U.S. 218, 229

(1993) ( Boston Harbor ). Most relevant here are two forms of

fi eld preemption in labor law, known as Garmon preemption

and Machinists preemption. The Supreme Court has ex

‐ plained:

The fi rst, known as Garmon pre

‐ emption, see

San Diego Building Trades Council v. Garmon

, 35914 No. 17

‐ 1178

U.S. 236 (1959), “is intended to preclude state in

‐

terference with the National Labor Relations

Board ʹ s interpretation and active enforcement

of the ‘integrated scheme of regulation’ estab

‐

lished by the [National Labor Relations Act (or

NLRA, also known as the Wagner Act)].” Golden

State Transit Corp. v. Los Angeles

, 475 U.S. 608,

613 (1986) ( Golden State I ). To this end, Garmon

pre

‐ emption forbids States to “regulate activity

that the NLRA protects, prohibits, or arguably

protects or prohibits.” Wisconsin Dept. of Indus

‐

try v. Gould Inc.

, 475 U.S. 282, 286 (1986). The sec

‐

ond, known as Machinists pre

‐ emption, forbids

both the National Labor Relations Board

(NLRB) and States to regulate conduct that Con

‐

gress intended “be unregulated because left ‘to

be controlled by the free play of economic

forces.’” Machinists v. Wisconsin Employment Re

‐

lations Comm ʹ n

, 427 U.S. 132, 140 (1976) (quoting

NLRB v. Nash–Finch Co.

, 404 U.S. 138, 144

(1971)). Machinists pre

‐ emption is based on the

premise that “‘Congress struck a balance of pro

‐

tection, prohibition, and laissez

‐ faire in respect

to union organization, collective bargaining,

and labor disputes.’” 427 U.S., at 140, n. 4 (quot

‐ ing [Archibald] Cox, Labor Law Preemption Re

‐

visited, 85 Harv. L. Rev. 1337, 1352 (1972)).

Chamber of Commerce v. Brown

, 554 U.S. 60, 65 (2008); see also

520 South Michigan Ave. Assoc. v. Shannon

, 549 F.3d 1119, 1125–

26 (7th Cir. 2008) (summarizing Garmon and Machinists

preemption doctrines).No. 17

‐ 1178 15

Both the Garmon and Machinists doctrines apply broadly

to the Wagner (NLRA) and Taft

‐ Hartley Acts: “the object of

labor pre

‐ emption analysis,” according to the Court, is “giv

‐ ing e ff ect to Congress’ intent in enacting” provisions of “the

Wagner and Taft

‐ Hartley Acts” as statements of national la

‐

bor

‐ management policy. Brown

, 554 U.S. at 73; see also Bel

‐ knap, Inc. v. Hale

, 463 U.S. 491, 524–25 (1983) (referring to “the

Wagner and Taft

‐ Hartley Acts” as a cohesive whole), citing

N.L.R.B. v. Insurance Agents

, 361 U.S. 477, 489 (1960); Machin

‐

ists

, 427 U.S. at 141 (same).

Machinists preemption is quite broad. It recognizes that

federal labor statutes “speci fi cally conferred on employers

and employees” a right to determine certain questions

through bargaining and the use of other “permissible eco

‐

nomic tactics,” and to be free from government fi at in fi nding

solutions. Golden State Transit Corp. v. City of Los Angeles

, 493

U.S. 103, 112–13 (1989) ( Golden State II ) (where Machinists ap

‐ plies, it extends a right enforceable under 42 U.S.C. § 1983).

Although “the rule of the Machinists case is not set forth in the

speci fi c text of an enumerated section of the NLRA,” that stat

‐

ute’s “language and structure” o ff er “a guarantee of freedom

for private conduct that the State may not abridge.” Id. at 111–

12. Machinists instructs that both the NLRB and the States “are

without authority to a tt empt to introduce some standard of

properly balanced bargaining power” or to impose “an ideal

or balanced state of collective bargaining” because Congress

intended to leave such balancing to labor and management.

Machinists

, 427 U.S. at 149–50 (quotations and citations omit

‐ ted). “[T]he legislative purpose” as determined from the text

and structure of the Wagner and Taft

‐ Hartley Acts “may

... dictate that certain activity neither protected nor prohibited”

by federal labor law may “be deemed privileged against state16 No. 17

‐ 1178

regulation.” See id. at 141, quoting Hanna Mining Co. v. Marine

Engineers

, 382 U.S. 181, 187 (1965).

For example, we applied Machinists preemption to an Illi

‐

nois law that required cemeteries and gravediggers to negoti

‐

ate to establish a pool of workers who would “perform reli

‐ giously required interments during labor disputes.” Cannon

v. Edgar

, 33 F.3d 880, 882, 885–86 (7th Cir. 1994). Despite the

State law’s benign purpose to respect certain faiths’ beliefs

concerning timely burial, the law impermissibly “meddle[d]

with the collective bargaining process” by “directly inter

‐ fer[ing] with the ability of” labor and management “to reach

an agreement unfe tt ered by the (labor) restrictions of state

law.” Id. at 886; see also id

. at 885 ( fi nding same statute

preempted under Garmon as well). Similarly, we applied Ma

‐

chinists preemption to an Illinois law that required hotels to

give custodial workers speci fi ed break periods, rather than

leave the issue to collective bargaining. We found that the law

was not a minimum labor standard but a speci fi c intrusion

into collective bargaining in a particular industry. 520 S. Mich

‐ igan Ave.

, 549 F.3d at 1121.

Even State laws with indirect e ff ects on bargaining can be

preempted under Machinists

. Though Machinists itself was di

‐

rected at a union’s “refusal to work overtime” and the eco

‐

nomic pressure that the refusal placed on the employer, see

427 U.S. at 154, 155, it bars State regulation in any “zone pro

‐

tected and reserved for market freedom” by federal labor law.

Boston Harbor

, 507 U.S. at 226–27 (city governments are “pre

‐ empted from conditioning renewal of a taxicab operating li

‐

cense upon the se tt lement of a labor dispute”), citing Golden

State I

, 475 U.S. at 618. In such zones, the Court observed in

Brown

, “the States have no more authority than the Board toNo. 17

‐ 1178 17

upset the balance that Congress has struck between labor and

management.” 554 U.S. at 74 (brackets omi tt ed), quoting Met

‐ ropolitan Life Ins. Co. v. Massachuse tt s

, 471 U.S. 724, 751 (1985).

Before turning to more speci fi c discussion of Garmon and

Machinists preemption principles as applied to dues

‐ checko ff

authorization, we address the State’s broadest argument,

which is that the court should apply a much more demanding

standard for preemption than was applied in Sea Pak

, Garmon

,

or Machinists

. The State cites and quotes Justice Kagan’s con

‐ curring opinion in Kurns v. Railroad Friction Products Corp.

, 565

U.S. 625, 638 (2012), which observes that some older preemp

‐

tion cases may seem anachronisms in terms of newer preemp

‐

tion principles and precedents.

Kurns itself provides the best answer to the argument.

Both the Kurns majority and Justice Kagan followed the argu

‐ ably “anachronistic” decision in Napier v. Atlantic Coast Line

Railroad Co

., 272 U.S. 605 (1926) (applying fi eld preemption

under Locomotive Inspection Act for railroad safety equip

‐

ment). They did so because Napier had established the

preemptive force of that statute decades earlier and Congress

had not acted to change that law

. 565 U.S. at 633 (majority); id

. at

638 (Kagan, J., concurring). As in Kurns

, the Supreme Court

has often observed that principles of stare decisis take on “spe

‐

cial force” on issues of statutory interpretation. They do so

precisely because Congress can legislate to correct an errone

‐

ous decision by the Court. E.g., Global

‐ Tech Appliances, Inc. v.

SEB S.A.

, 563 U.S. 754, 765 (2011) (patent law); Illinois Brick Co.

v. Illinois

, 431 U.S. 720, 736 (1977) (antitrust law). A case that

makes that point with special force, because Congress did re

‐ spond with new legislation, is Pa tt erson v. McLean Credit Un

‐18 No. 17

‐ 1178

ion

, 491 U.S. 164, 172–73 (1989) (civil rights litigation), super

‐

seded by Civil Rights Act of 1991, as stated in CBOCS West,

Inc. v. Humphries

, 553 U.S. 442, 450 (2008).

The State’s reliance on more general principles of preemp

‐

tion from other statutory contexts thus fails to engage with

the doctrinal heart of this case, which is the decades of deci

‐

sions deciding the preemptive force of the Wagner and Taft

‐ Hartley Acts. The issue before us is the preemptive scope of

the Taft

‐ Hartley Act, so the most relevant guides are the Su

‐

preme Court’s decisions under that statute. Moreover, one

cannot call Garmon and Machinists “anachronisms” when the

Court has been citing and following them on a regular basis.

See, e.g., Brown

, 554 U.S. at 66 (2008 decision discussing both

and applying Machinists preemption); Marquez v. Screen Actors

Guild, Inc

., 525 U.S. 33, 49 (1998) (applying Garmon preemp

‐

tion); Golden State I

, 475 U.S. at 615–16 (1986 decision applying

Machinists preemption).

2. Preemption for Dues

‐ Checko ff Rules

Returning to the text of the relevant Taft

‐ Hartley provi

‐

sion, 29 U.S.C. § 186(c)(4), federal labor law imposes only min

‐

imal rules for collective bargaining on dues

‐ checko ff authori

‐

zation. Federal law leaves other details for resolution by pri

‐

vate actors—employers, unions, and employees—through the

collective bargaining and dues

‐ checko ff authorization pro

‐

cesses.

Section 186 was enacted after Congress had gained some

experience with how the Wagner Act worked in practice. The

provision was intended “to deal with problems peculiar to

collective bargaining” and in particular “was aimed at prac

‐

tices which Congress considered inimical to the integrity ofNo. 17

‐ 1178 19

the collective bargaining process.” Arroyo v. United States

, 359

U.S. 419, 424–25 (1959); see also Unite Here Local 355 v. Mulhall

,

571 U.S. 83, 84 (2013) (Breyer, J., dissenting from denial of cer

‐

tiorari) (describing how § 186 operates to discourage corrup

‐

tion of bargaining process). The backers of § 186 “were con

‐

cerned with corruption of collective bargaining through brib

‐

ery of employee representatives by employers” and with

other related fi nancial risks. Arroyo

, 359 U.S. at 425–26. The

Taft

‐ Hartley Act thus made it unlawful for employers to de

‐

liver “any money or other thing of value

... to any labor or

‐ ganization.” § 186(a), (a)(2).

Congress did not intend, however, to outlaw dues

‐

checko ff agreements. They are not a special opportunity for

corruption but a convenient way for employees to pay their

union dues. So Congress included this exception to the anti

‐ corruption provision:

The provisions of this section shall not be appli

‐

cable

...

(4) with respect to money deducted from the

wages of employees in payment of membership

dues in a labor organization: Provided

, That the

employer has received from each employee, on

whose account such deductions are made, a

wri tt en assignment which shall not be irrevoc

‐

able for a period of more than one year, or be

‐ yond the termination date of the applicable col

‐

lective agreement, whichever occurs sooner.

§ 186(c)(4).

This exception sets three, and only three, limits on dues

‐

checko ff agreements, the “wri tt en assignment” referred to in20 No. 17

‐ 1178

the statute. Such agreements must be (1) individual and (2) in

writing, and (3) they must allow an employee to revoke it at

least once a year or upon expiration of the applicable collec

‐

tive agreement. Apart from those limits, dues

‐ checko ff au

‐

thorizations are left to collective bargaining. States are not free

to mandate additional restrictions for the bene fi t of unions,

employers, or employees.

In addition to the summary a ffi rmance in Sea Pak

, the Su

‐

preme Court reached the same conclusion in a full opinion

interpreting a nearly identical provision in the Railway Labor

Act, 45 U.S.C. § 152 Eleventh (b), which was modeled on

§ 186(c)(4). Felter v. Southern Paci fi c Co.

, 359 U.S. 326, 332–33

n.10 (1959). 5 The RLA provision permits dues

‐ checko ff agree

‐

ments in railroad employee unions under the same conditions

set forth in § 186(c)(4). 6 In Felter

, the Supreme Court inter

‐ preted those terms to mean what Sea Pak held and what we

5 Where RLA and NRLA provisions “are in all material respects iden

‐

tical,” the Supreme Court has used RLA cases as a guide to the NLRA and

vice versa. See Communications Workers of Am. v. Beck

, 487 U.S. 735, 745

(1988) (applying RLA analysis to materially identical NLRA provision),

citing Ellis v. B’hood of Railway, Airline & Steamship Clerks

, 466 U.S. 435, 452

n.13 (1984) (applying NLRA analysis to “equivalent provision” of the

RLA).

6 Notwithstanding any other provisions

... a labor organization

... shall be permitted to make agreements providing for the de

‐

duction

... from the wages of its or their employees

... any peri

‐

odic dues

... Provided

, That no such agreement shall be effective

with respect to any individual employee until he shall have fur

‐

nished the employer with a written assignment to the labor or

‐ ganization of such membership dues, initiation fees, and assess

‐

ments, which shall be revocable in writing after the expiration of

one year or upon the termination date of the applicable collective

bargaining agreement, whichever occurs sooner.No. 17

‐ 1178 21

hold today under § 186(c)(4)—Congress left to private actors

whether, and if so, how, to formulate a dues

‐ checko ff agree

‐

ment within the basic parameters set forth in the federal stat

‐

ute. The individual employee must agree to the dues

‐

checko ff

, in writing, and it must be revocable at least once

every year or at the expiration of the collective bargaining

agreement, whichever occurs sooner.

The Felter Court explained that when Congress added Sec

‐

tion 2 Eleventh (b) to the Railway Labor Act:

It thus became lawful to bargain collectively

for “union

‐ shop” and “checko ff ” arrangements;

but this power was made subject to limitations.

The limitation here pertinent is that, by force of

the proviso, the authority to make checko ff ar

‐

rangements does not include authority to bind

individual employees to submit to the checko ff

. Any agreement was to be ine ff ective as to an

employee who did not furnish the employer

with a wri tt en assignment in favor of the labor

organization, and any assignment made was to

be “revocable in writing after the expiration of

one year

... .” This failure to authorize agree

‐

ments binding employees to submit to the

checko ff was deliberate on the part of Congress.

Proposals to that end were expressly rejected.

... [The fi nal bill allowed] the individual employee

to decide for himself whether to submit to the

Pub. L. No. 81–914, ch. 1220, 64 Stat. 1238 (1951), codified at 45 U.S.C. § 152

Eleventh (b).22 No. 17

‐ 1178

checko ff

, and whether to revoke an authoriza

‐

tion after the expiration of one year.

359 U.S. at 331–32.

The Supreme Court then explained how this language

placed in only private hands the decisions about additional

terms of dues

‐ checko ff authorizations:

The structure of § 2 Eleventh (b) then is sim

‐ ple: carriers and labor organizations are author

‐

ized to bargain for arrangements for a checko ff

by the employer on behalf of the organization.

Latitude is allowed in the terms of such arrange

‐

ments, but not past the point such terms im

‐ pinge upon the freedom expressly reserved to

the individual employee to decide whether he

will authorize the checko ff in his case. Similarly

Congress consciously and deliberately chose to

deny carriers and labor organizations authority

to reach terms which would restrict the em

‐ ployee’s complete freedom to revoke an assign

‐

ment by a writing directed to the employer after

one year. Congress was speci fi cally concerned

with keeping these areas of individual choice o ff

the bargaining table. It is plainly our duty to ef

‐

fectuate this obvious intention of Congress

... .

Id. at 333. In Felter itself, the Court found that the employer

and the union had violated those statutory ground rules by

refusing to honor a timely revocation notice because it had not

been submi tt ed on a particular form. Id. at 330.No. 17

‐ 1178 23

Most relevant to this case, however, Felter explained the

rules that apply as long as private agreements do not contra

‐

dict the statutory ground rules:

Of course, the parties may act to minimize the

procedural problems caused by Congress’

choice. Carriers and labor organizations may set

up procedures through the collective agreement

for processing, between themselves, individual

assignments and revocations received, and car

‐

riers may make reasonable designations, in or

out of collective bargaining contracts, or agents

to whom revocations may be sent.

Id. at 334–35. In other words, those ma tt ers not governed ex

‐ pressly by the statute were left to the collective bargaining

process, just as in Sea Pak and Machinists

.

3. Applying Machinists and Garman Preemption Here

Here, Wisconsin acted to give employees like Lisa Aplin

an additional statutory right under State law: the ability to

cancel their duly authorized dues

‐ checko ff agreements mid

‐

year on just thirty days’ notice. Wis. Stat. § 111.06(1)(i). The

problem is that the Taft

‐ Hartley Act leaves it to private ac

‐

tors—and not the State—to decide how long the dues

‐

checko ff authorization should last, as long as the authoriza

‐

tion is individual, in writing, and not irrevocable for longer

than one year. 29 U.S.C. § 186(c)(4). The State’s a tt empt to add

additional regulatory requirements for dues

‐ checko ff s, and

thus to change the scope of permissible collective bargaining,

is preempted.

A strong case could be made for Garmon preemption here

because Act 1 can place employers under inconsistent State24 No. 17

‐ 1178

and federal expectations. After agreeing to a new collective

bargaining agreement, employer John Deere was caught here

in a federal

‐ state bind. It had agreed, in light of federal law, to

a collective bargaining agreement with the Machinists that in

‐ corporated by reference dues

‐ checko ff agreements irrevoc

‐

able for one year. Because this decision was inconsistent with

Wisconsin’s thirty

‐ day revocability requirement, John Deere

was told that it could be found responsible for commi tt ing an

unfair labor practice under State law. But if, after executing

the collective bargaining agreement, John Deere had decided

to ignore its requirements and to comply with Act 1 instead,

it could have been brought before the National Labor Rela

‐

tions Board by the union for commi tt ing a federal unfair labor

practice. See, e.g., Metalcraft of Mayville, Inc. and District Lodge

No. 10, Int’l Assoc. of Machinists & Aerospace Workers of Am.

, No.

18

‐ CA

‐ 178322, 2017 WL 956627 (N.L.R.B. Div. of Judges Mar.

10, 2017) (analyzing complaint brought by same union against

di ff erent employer in wake of Act 1). Garmon preemption is

supposed to prevent just this sort of con fl ict between State law

and the NLRB’s authority. See Brown

, 554 U.S. at 65. 7

7 Another argument in favor of Garmon preemption is that the precise

terms of dues

‐ checkoff agreements might be considered a wage

‐ related

term of employment, and thus a mandatory subject of bargaining under

the NLRA. 29 U.S.C. § 158(a)(5), (d); Garmon

, 359 U.S. at 245 (“When an

activity is arguably subject to § 7 or § 8 of the Act, the States as well as the

federal courts must defer to the exclusive competence of the National

Labor Relations Board”). We have equated the two before. See Office &

Prof. Employees Int’l. Union, Local 95 v. Wood Cty. Tel. Co.

, 408 F.3d 314, 317

(7th Cir. 2005) (distinguishing “between dues checkoffs and other terms

and conditions of employment,” but only with respect to the “express

‐

contractual

‐ authorization requirement” for checkoffs). Since Sea Pak andNo. 17

‐ 1178 25

The State responds that there is a simple solution that

would allow an employer to resolve this con fl ict. In the bar

‐ gaining process, the State says, the employer could simply re

‐

fuse to agree to any irrevocability period longer than thirty

days. That is true in theory, but this argument shows clearly

why the State law is preempted under Machinists

. Under the

Taft

‐ Hartley Act, the State simply is not allowed to impose its

own view of how best to balance the interests of labor and

management in zones that Congress deliberately left for reso

‐

lution by collective bargaining. Machinists

, 427 U.S. at 149–50

(both NLRB and States “are without authority to a tt empt to

introduce some standard of properly balanced bargaining

power” in such areas) (quotation marks omi tt ed), quoting

N.L.R.B. v. Insurance Agents

, 361 U.S. 477, 497 (1960). Wiscon

‐

sin’s Act 1 tries to short

‐ circuit the bargaining process by tell

‐ ing John Deere and the union they must use a dues

‐ checko ff

irrevocability period much shorter than federal law would

otherwise permit.

As explained above, Machinists applies a rule of fi eld

preemption in areas that “Congress intended [to] be unregu

‐

lated” by the NLRB or the States. See Brown

, 554 U.S. at 65

(quotation marks omi tt ed), quoting Machinists

, 427 U.S. at 140.

As Felter explained, the text and structure of Taft

‐ Hartley’s

dues

‐ checko ff provision do precisely that—employers and la

‐

bor organizations “are authorized to bargain for arrange

‐

ments for a checko ff by the employer on behalf of the organi

‐

zation,” and it is “expressly reserved to the individual em

‐ ployee to decide whether he will authorize the checko ff in his

case.” 359 U.S. at 333. That leaves no room for Wisconsin to

Machinists provide such a clear answer to the issue presented in this case,

we do not need to explore Garmon preemption in any more detail.26 No. 17

‐ 1178

impose its own regulations in this same fi eld. As in Felter

, it

“is plainly our duty to e ff ectuate this obvious intention of

Congress,” id.

, and to keep State law from invading this zone

that Congress deliberately left to private actors.

C. The State’s Arguments for an Exception

The State o ff ers two more arguments to shield Wis. Stat.

§ 111.06(1)(i) from preemption. It fi rst argues that preemption

analysis should not apply to State dues

‐ checko ff laws because

29 U.S.C. § 186(c)(4), is only an exception to a criminal prohi

‐

bition against bribery and corruption. Second, the State ar

‐

gues that Taft

‐ Hartley’s preemption exemption for State

“right

‐ to

‐ work”/mandatory union security agreement laws,

§ 164(b), applies not only to the kind of agreements men

‐

tioned in its text, but also to State laws regulating the terms of

dues

‐ checko ff authorizations. Neither argument fi nds sup

‐

port in the statute or in the Supreme Court’s labor law deci

‐

sions.

1. Section 186’s Preemptive Scope

First, as recounted above, Taft

‐ Hartley’s prohibition on

employers and their agents giving “any money or other thing

of value” to unions in § 186(a) was designed to fi ght corrup

‐

tion. The exception in § 186(c)(4) goes further, though. It also

sets regulatory terms and conditions for lawful dues

‐

checko ff s: “ Provided

, That the employer has received from

each employee, on whose account such deductions are made,

a wri tt en assignment which shall not be irrevocable for a pe

‐No. 17

‐ 1178 27

riod of more than one year[.]” This proviso shows a regula

‐

tory intent, not just a narrowing of the scope of § 186(a)’s crim

‐

inal liability. 8

Section 186 is not a generic criminal statute applicable

across many di ff erent potential contexts, comparable to say,

mail or wire fraud. Next to Taft

‐ Hartley’s other provisions,

the scope, exceptions, and location of § 186 show that it seeks

primarily to regulate the interaction between employers and

employee representatives, including some key terms of dues

‐

checko ff authorizations. The fact that some violations of these

policies may be felonies, see § 186(d), re fl ects the depth of

Congress’s commitment to these policy choices. It does not

show a choice to limit this section’s preemptive e ff ect.

In addition, Machinists does not suggest that certain parts

of Taft

‐ Hartley should be treated di ff erently in terms of

preemption. Where Congress deliberately left choices to pri

‐

vate actors, neither the State nor the NLRB may intervene. See

Machinists

, 427 U.S. at 140 & n.4. Even public policy and reg

‐ ulatory decisions in other areas of the law can be preempted

under Machinists if they have an impact on the collective bar

‐ gaining process. See above at 15–17.

Finally, by a tt empting to regulate the revocation period of

dues

‐ checko ff authorizations, Act 1 is not a “state law[] of

general application” like minimum

‐ wage laws or minimum

8 The exception that immediately follows, § 186(c)(5), regarding union

trust funds, provides another example of regulatory choices made in this

fashion. Its “ Provided ” language lists permissible uses for trust funds, sets

forth a process for approving trust fund plans, and even empowers district

courts to appoint “an impartial umpire” to settle certain kinds of disputes.

This structure is used elsewhere in federal labor law. See, e.g., § 158(a)(3)

(union security agreements and unfair labor practices).28 No. 17

‐ 1178

labor standards laws, which are generally not preempted. See

Metropolitan Life Ins. Co. v. Massachuse tt s

, 471 U.S. 724, 753, 755

(1985). Here, Wisconsin seeks to modify a speci fi c federal la

‐

bor policy choice made in 29 U.S.C. § 186(c)(4), not to enact

generally applicable health insurance standards, as in Metro

‐ politan Life

, see 471 U.S. at 727, or to impose “a minimum labor

standard which does not interfere with the collective bargain

‐ ing process,” as described in Shannon

, 549 F.3d at 1129. This

public policy decision in Wis. Stat. § 111.06(1)(i)—to narrow

the scope of bargaining between the employer and the un

‐

ion—is preempted.

2. The Exception for “Right

‐ to

‐ Work”/Union Security

Agreements

The State also contends that Wis. Stat. § 111.06(1)(i) is per

‐

missible because Taft

‐ Hartley’s § 14(b) expressly permits

States to outlaw mandatory union security agreements in

“right

‐ to

‐ work” laws. 29 U.S.C. § 164(b); see also Sweeney v.

Pence

, 767 F.3d 654, 658–59 (7th Cir. 2014) (describing history

of § 164(b)). Whether to allow “agreements requiring mem

‐ bership in a labor organization as a condition of employment”

is a policy choice that Congress reserved to the States in that

provision. § 164(b). 9 Wisconsin contends that the dues

‐

checko ff authorization at issue here is a “maintenance of

membership” device best thought of as a union security

9 § 164(b) reads in full:

Nothing in this subchapter shall be construed as authorizing

the execution or application of agreements requiring mem

‐ bership in a labor organization as a condition of employment

in any State or Territory in which such execution or applica

‐

tion is prohibited by State or Territorial law.No. 17

‐ 1178 29

agreement subject to § 164(b)’s preemption exception. Alter

‐ natively, the State contends that § 111.06(1)(i)’s thirty

‐ day

maximum is one of the “appropriate tools” the State can use

in asserting the policy freedom granted by Taft

‐ Hartley. See

Chamber of Commerce of United States v. Whiting

, 563 U.S. 582,

600–01 (2011) (plurality opinion).

These arguments depend on the mistaken premise that

dues

‐ checko ff authorizations are union security agreements,

i.e., “ agreements requiring membership in a labor organization as

a condition of employment ,” as set forth in the text of § 164(b)

(emphasis added). They are not. Dues

‐ checko ff authoriza

‐

tions are optional payroll deduction contracts between em

‐ ployers and individual employees, similar to health insurance

premium payroll deductions or retirement savings arrange

‐

ments. Checko ff s can be mentioned in a collective bargaining

agreement, but they need not be. See Columbia College Chicago

v. N.L.R.B.

, 847 F.3d 547, 552–53 (7th Cir. 2017) (explaining

that NLRA requires bargaining but not speci fi c contractual

outcomes). Unlike public

‐ sector employees subject to collec

‐

tive bargaining agreements, private sector employees cannot

be forced to agree to these payroll deductions. Compare Dav

‐

enport v. Washington Educ. Ass’n

, 551 U.S. 177, 181–82 (2007),

citing Wash. Rev. Code § 41.59.100 (2006) (“the employer shall

enforce it by deducting from the salary” of employees), with

29 U.S.C. § 186(c)(4) (requiring employer to have “received

from each employee

... a wri tt en assignment”).

In both Sea Pak and Felter

, the Supreme Court has illus

‐

trated the di ff erence between dues

‐ checko ff authorizations

and union security agreements, i.e., union

‐ shop or agency

‐ shop provisions. Neither Taft

‐ Hartley nor the Railway Labor30 No. 17

‐ 1178

Act in Felter equates dues

‐ checko ff s with compulsory union

membership. In fact, Felter observed:

The Act makes no formal relationship between

a union

‐ shop arrangement and a checko ff ar

‐

rangement; under [the Act] the parties can ne

‐ gotiate either one without the other, if they are

so disposed. And of course, a labor organization

member who is subject to a union

‐ shop arrange

‐

ment need not subscribe to the checko ff ; he can

maintain his standing by paying his dues per

‐ sonally.

359 U.S. at 337 n.12; see also Dkt. 30–1 at 7 (collective bargain

‐ ing agreement in this case provided that “if no such authori

‐

zation is in e ff ect, [a member] must pay his membership dues

directly to the Union”). By summarily a ffi rming the district

court’s § 164(b) discussion in Sea Pak

, the Supreme Court en

‐

dorsed the conclusion that § 164(b) “reaches no further” than

its terms. 300 F. Supp. at 1201. “Checko ff authorizations irrev

‐

ocable for one year after [their e ff ective] date do not amount

to compulsory unionism as to employees who wish to with

‐

draw from membership prior to that time.” Id. 10

10 On the facts of this case, Aplin’s dues

‐ checkoff authorization cannot

reasonably be considered a union security device. She would not have

faced any consequences from the union or her employer if she had never

authorized it. It was also, by its express terms, “not a quid pro quo for

...

union membership.” Dkt. 30

‐ 3. The dues

‐ checkoff authorization might

have become a term of her employment once Aplin signed it, but it was

never “a condition of employment” as that term is used in § 164(b)—the

authorization was a freely adopted optional contractual arrangement with

her employer, with its own cancellation terms and conditions that fully

complied with federal law. See Dkt. 30

‐ 1 at 7; Dkt. 30

‐ 3; 29 U.S.C.No. 17

‐ 1178 31

To counter these points, the State relies on Whiting

, a case

about federal immigration law and an Arizona business li

‐ censing statute, for the idea that it can use “appropriate tools

to exercise [the] authority” granted under federal labor law in

§ 164(b). 563 U.S. at 600–01 (plurality opinion) (discussing 8

U.S.C. § 1324a(h)(2), which permits States to impose “civil or

criminal sanctions” on “those who employ

... unauthorized

aliens” provided this is done “through licensing and similar

laws”).

Congress did not write § 164(b) nearly as broadly as it

wrote the statute in Whiting

. Courts have rejected reliance on

§ 164(b) to save State statutes that veered beyond the provi

‐

sion’s express scope: agreements between labor and manage

‐

ment designed to prevent workers from free

‐ riding on a un

‐

ion’s services. See Idaho Bldg. & Const. Trades Council v. Inland

Paci fi c Chapter of Assoc. Builders & Contractors

, 801 F.3d 950,

954, 958 (9th Cir. 2015), citing Oil, Chem. & Atomic Workers Int’l

Union v. Mobil Oil Corp.

, 426 U.S. 407, 409 & nn.1 & 2, 416–17

(1976) (explaining free

‐ rider problem solved by union

‐ shop

and agency

‐ shop agreements); see also Beck

, 487 U.S. at 744,

746, 748–49 (explaining that under Taft

‐ Hartley’s nationwide

policy, which outlawed closed

‐ shop agreements where union

membership was a pre

‐ condition for employment, “Congress

authorized compulsory unionism only to the extent necessary

to ensure that those who enjoy union

‐ negotiated bene fi ts con

‐

tribute to their cost”).

§ 186(c)(4). Aplin enjoyed the convenience of a payroll deduction for thir

‐

teen years. Only in the last few months of the arrangement did she seek to

change it. Sea Pak specifically rejected the notion that this state of affairs

amounts to compulsory union membership.32 No. 17

‐ 1178

There is no such free

‐ rider concern here. Wisconsin is

seeking to modify the terms of voluntary payroll deductions

involving an employer and its employee, not mandatory un

‐

ion

‐ or agency

‐ shop requirements that the employer and the

union agree to impose on all employees. We know this from

the terms of Act 1 itself. Its language invoking the power

granted by § 164(b) came in the “right

‐ to

‐ work”/union secu

‐ rity agreements provision. 2015 Wis. Act 1, § 5, codi fi ed at

Wis. Stat. § 111.04(3)(a).

In Sweeney

, we described the States’ § 164(b) freedom as

“extensive,” 767 F.3d at 660, but the Supreme Court has made

clear that before that freedom can apply, there must actually

be a proper union security agreement in dispute: “state

power, recognized by § 14(b), begins only with actual negotia

‐

tion and execution of the type of agreement described by § 14(b)

. Absent such an agreement, conduct arguably an unfair labor

practice would be a ma tt er for the National Labor Relations

Board under Garmon .” Retail Clerks Int’l Ass’n Local 1625 v.

Schermerhorn

, 375 U.S. 96, 105 (1963) ( Retail Clerks II ) (empha

‐

sis in original). This § 164(b) authority also applies “only

where State and federal power are concurrent.” Algoma Ply

‐

wood & Veneer Co. v. Wis. Employment Relations Bd.

, 336 U.S.

301, 315 (1949); 29 U.S.C. §§ 158(a)(3), 164(b). That is not the

case here with respect to dues

‐ checko ff authorizations. Sec

‐

tion 164(b) does not authorize States to regulate other ar

‐

rangements not covered by its terms, such as dues

‐ checko ff

authorizations.

Conclusion

In light of Sea Pak

, Machinists

, and the Supreme Court’s

other labor preemption decisions, 29 U.S.C. § 186(c)(4)

preempts Wis. Stat. § 111.06(1)(i). The judgment of the districtNo. 17

‐ 1178 33

court reaching that conclusion and enjoining enforcement of

the State statute is

AFFIRMED.34 No. 17

‐ 1178

M ANION

, Circuit Judge

, dissenting. Section 302 of the Taft

‐ Hartley Act, an amendment to the National Labor Relations

Act, makes it a crime for an employer to give anything of

value to a union representing, or seeking to represent, its em

‐ ployees. 29 U.S.C. § 186(a). But the law speci fi cally exempts

so

‐ called “checko ff agreements,” wherein an employee agrees

to set o ff a portion of each paycheck for union dues, so long

as the employee submits a wri tt en assignment not irrevocable

for more than one year. Id. § 186(c)(4). Thus, federal law pro

‐

hibits checko ff agreements irrevocable for more than one

year, but permits those with revocability periods of a year or

less.

Nearly 50 years ago, a district judge held that Taft

‐ Hartley’s checko ff provision preempted a state law requiring

checko ff agreements be revocable at will. Although the state

law did not con fl ict with the federal checko ff provision, the

judge concluded that “[t]he area of checko ff of union dues has

been federally occupied to such an extent under [Section 302]

that no room remains for state regulation in the same fi eld.”

SeaPak v. Indus., Tech. & Prof’l Emps.

, 300 F. Supp. 1197, 1200

(S.D. Ga. 1969). That decision was summarily a ffi rmed fi rst by

the Fifth Circuit and then the Supreme Court, making it the

law of the land. 400 U.S. 985 (1971) (mem.). As a result, states

have been prohibited since 1971 from regulating checko ff

agreements despite scant textual evidence of congressional

intent to prevent them from doing so.

Enacted in 2015, Wisconsin’s right

‐ to

‐ work law challenges

this precedent. In addition to outlawing compulsory union

‐

ism, the law requires that checko ff agreements be terminable

upon 30 days’ notice to the employer. John Deere employee

Lisa Aplin tried to take advantage of the new law by revokingNo. 17

‐ 1178 35

her checko ff agreement, but the union, the International As

‐

sociation of Machinists, was not pleased and refused to accept

her revocation. Aplin charged that the union commi tt ed an

unfair labor practice, and the Wisconsin Department of Work

‐

force Development agreed. But with the Supreme Court’s

summary a ffi rmance in hand, the union obtained an injunc

‐

tion in federal district court.

The court today a ffi rms, relying not only on SeaPak

, but on

the doctrine of Machinists preemption, a form of labor

‐ speci fi c

preemption that didn’t acquire its name until fi ve years after

the SeaPak decision. See Lodge 76, Int’l Ass’n of Machinists &

Aerospace Workers, AFL

‐ CIO v. Wis. Emp’t Relations Comm.

, 427

U.S. 132 (1976). In my view, the SeaPak summary a ffi rmance

deserves a fresh look. SeaPak ’s holding that all state regulation

of checko ff agreements is preempted does not fi t comfortably

within the Machinists doctrine. Nor does it stand up to any

scrutiny under modern general preemption doctrine, which

now requires much stronger textual indications of Congres

‐

sional intent to displace state regulation. I conclude that de

‐ velopments over the last 47 years have eroded the preceden

‐

tial value of SeaPak to such an extent that we no longer are

obliged to follow it. Therefore, I would permit Wisconsin to

enforce its limitation on checko ff agreements. I respectfully

dissent.

I. Background

Wisconsin’s right

‐ to

‐ work law, known as Act 1, went into

e ff ect on July 1, 2015. Its main provision abolishes compulsory

unionism, declaring that “[n]o person may require, as a con

‐

dition of obtaining or continuing employment, an individual

to

... [p]ay any dues, fees, assessments, or other charges or

expenses of any kind or amount

... to a labor organization” or36 No. 17

‐ 1178

“any 3rd party.” W IS

. S TAT

. § 111.04(3)(a)3 & 4. Further, when

an employee chooses to pay dues to a union via a checko ff

from the employee’s paycheck, such checko ff agreement must

be “terminable by the employee giving to the employer at

least 30 days’ wri tt en notice of the termination.” Id.

§ 111.06(1)(i). The limitation on checko ff agreements permits

employees more fl exibility, allowing them to easily stop de

‐

ductions from their paychecks.

Lisa Aplin worked for John Deere. The International Asso

‐

ciation of Machinists had a collective bargaining agreement

with John Deere to represent the employees at Aplin’s plant,

but Aplin never agreed to join the union. Nevertheless, she

was still obligated before the right

‐ to

‐ work law went into ef

‐

fect to pay dues to the union. She had a checko ff agreement to

facilitate that payment. But when her obligation to pay ceased

on July 1, 2015, she sought to revoke the checko ff agreement

as of July 31. The union refused to honor her revocation re

‐

quest because, according to the union, the request didn’t com

‐ ply with the collective bargaining agreement. Aplin fi led a

complaint with the Wisconsin Department of Workforce De

‐ velopment, and that agency agreed that the union had com

‐

mi tt ed an unfair labor practice by refusing to accept a revoca

‐

tion deemed lawful under state law.

The union sought declaratory and injunctive relief in fed

‐

eral court on the ground that Wisconsin’s restriction of

checko ff agreements is preempted by federal law. The district

court agreed, concluding that it was bound by the Supreme

Court’s summary a ffi rmance in SeaPak

. Int’l Ass’n of Machin

‐

ists Dist. 10 v. Allen

, No. 16

‐ cv

‐ 77

‐ wmc, 2016 WL 7475720

(W.D. Wis. Dec. 28, 2016). Wisconsin appealed.No. 17

‐ 1178 37

II. Analysis

Preemption arises from the Constitution’s Supremacy

Clause, which says federal law “shall be the supreme Law of

the Land

... any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

Since state law may not contradict federal law, sometimes the

la tt er will render the former unenforceable. Preemption “may

be either express or implied,” Fidelity Fed. Savings & Loan

Ass’n v. de la Cuesta

, 458 U.S. 141, 152–53 (1982), but this case

concerns implied preemption because “the [National Labor

Relations Act] contains no express pre

‐ emption provision,”

Chamber of Commerce v. Brown

, 554 U.S. 60, 65 (2008); see also

520 S. Mich. Ave. Assocs., Ltd. v. Shannon

, 549 F.3d 1119, 1125

(7th Cir. 2008).

In implied preemption cases, we presume that “a state law

should be sustained ‘unless it con fl icts with federal law or

would frustrate the federal scheme, or unless the courts dis

‐

cern from the totality of the circumstances that Congress

sought to occupy the fi eld to the exclusion of the States.’” 520

S. Mich. Ave.

, 549 F.3d at 1125 (quoting Malone v. White Motor

Corp.

, 435 U.S. 497, 504 (1978)). Typically, “[i]mplied preemp

‐

tion analysis does not justify a ‘free

‐ wheeling judicial inquiry

into whether a state statute is in tension with federal objec

‐

tives’; such an endeavor ‘would undercut the principle that it

is Congress rather than the courts that preempts state law.’”

Chamber of Commerce v. Whiting

, 563 U.S. 582, 607 (2011) (quot

‐ ing Gade v. Nat’l Solid Wastes Mgmt. Ass’n

, 505 U.S. 88, 111

(1992) (Kennedy, J., concurring in part and concurring in the

judgment)). Consistent with that principle, we generally “as

‐

sume that ‘the historic police powers of the States’ are not su

‐ perseded ‘unless that was the clear and manifest purpose of38 No. 17

‐ 1178

Congress.’” Arizona v. United States

, 567 U.S. 387, 400 (2012)

(quoting Rice v. Santa Fe Elevator Corp.

, 331 U.S. 218, 230

(1947)). Most importantly, “[e]vidence of pre

‐ emptive pur

‐

pose is sought in the text and structure of the statute at issue.”

CSX Transp., Inc. v. Easterwood

, 507 U.S. 658, 664 (1993). In typ

‐

ical preemption cases, courts no longer a tt empt to read the tea

leaves to determine congressional intent. See Kurns v. R.R.

Friction Prods. Corp.

, 565 U.S. 625, 638 (2012) (Kagan, J., con

‐ curring).

But this case concerns labor law. Must we throw general

preemption principles, meant to preserve the traditional po

‐

lice power of the States, out the window in this context? The

court thinks so. To that end, it contends that the SeaPak deci

‐

sion was an early application of (or at least consistent with)

Machinists preemption. Machinists preemption is a species of

fi eld preemption in labor law that “forbids both the National

Labor Relations Board (NLRB) and States to regulate conduct

that Congress intended ‘be unregulated because left to be con

‐

trolled by the free play of economic forces.’” Brown

, 554 U.S.

at 65 (quoting Machinists

, 427 U.S. at 140) (some internal quo

‐

tation marks omi tt ed). The rationale is that Congress’ choice

to protect and prohibit certain labor practices (in Sections 7

and 8 of the NLRA) implies congressional intent that what

‐

ever it did not protect or prohibit in those sections was meant

to be left to bargaining, unregulated by the States. See 520 S.

Mich. Ave.

, 549 F.3d at 1125–26.

Because of this assumption regarding congressional in

‐

tent, Machinists preemption is in some tension with general

fi eld preemption principles. As several justices have noted,

“recent cases have frequently rejected fi eld pre

‐ emption in the

absence of statutory language expressly requiring it.” Kurns

,No. 17

‐ 1178 39

565 U.S. at 640–41 (Sotomayor, J., concurring in part and dis

‐ senting in part) (quoting Camps Newfound/Owatonna, Inc. v.

Town of Harrison

, 520 U.S. 564, 617 (1997) (Thomas, J., dissent

‐ ing)); see also id. at 638 (Kagan, J., concurring) (criticizing a

1920s application of fi eld preemption as an “anachronism,”

noting that “Congress had ‘manifest[ed] the intention to oc

‐

cupy the entire fi eld of regulating locomotive equipment,’

based on nothing more than a statute granting regulatory au

‐ thority over that subject ma tt er to a federal agency.”). 1 Com

‐

mentators, too, have noticed the Court’s recent move away

from broad application of fi eld preemption. See Lauren Gil

‐

bert, Immigrant Laws, Obstacle Preemption and the Lost Legacy of

McCulloch

, 33 Berkeley J. Emp. & Lab. L. 153, 160 (2012)

(“Consistent with the emphasis on states ʹ rights in modern

Commerce Clause and Tenth Amendment cases, the Court

has tended over the last fi fteen years to narrow the availability

of fi eld preemption and obstacle preemption, absent clear ev

‐

idence of Congressional intent.” (footnote omi tt ed)). But Ma

‐

chinists preemption necessarily infers congressional intent

from silence. As then

‐ Justice Rehnquist put it, “[t]he entire

body of this Court’s labor law pre

‐ emption doctrine has been

built on a series of implications as to congressional intent in

the face of congressional silence, so that we now have an elab

‐

orate pre

‐ emption doctrine traceable not to any expression of

1 The court points out that the Supreme Court in Kurns still followed

the arguably anachronistic preemption holding. But the Court’s commit

‐

ment to stare decisis is far stronger when it has issued an opinion on the

merits than when the prior case is only a summary disposition. Ill. State

Bd. of Elections v. Socialist Workers Party

, 440 U.S. 173, 180–81 (1979). So

while stare decisis could have justified the result in Kurns (especially in a

statutory case), the same might not be true were the Court to reevaluate

SeaPak

.40 No. 17

‐ 1178

Congress, but only to statements by this Court in its previous

opinions of what Congress must have intended.” Golden State

Transit Corp. v. City of Los Angeles

, 475 U.S. 608, 623 (1986)

(Rehnquist, J., dissenting).

Despite this tension, the Court has given no indication that

Machinists is in danger of being overruled. See Brown

, 554 U.S.

at 68–69. Yet the 2008 Brown decision, holding that a Califor

‐

nia law restricting certain speech about unions was

preempted by the NLRA, relied in part on an express provi

‐

sion of the NLRA, Section 8(c), which “expressly precludes

regulation of speech about unionization ‘so long as the com

‐

munications do not contain a threat of reprisal or force or

promise of bene fi t.’” Id. at 68 (quoting NLRB v. Gissel Packing

Co.

, 395 U.S. 575, 618 (1969)). The Court said the existence of

Section 8(c) (codi fi ed at 29 U.S.C. § 158(c)) made that case

“easier” than the typical NLRA preemption case “because it

does not require us ‘to decipher the presumed intent of Con

‐

gress in the face of that body’s steadfast silence.’” Id. (quoting

Sears, Roebuck & Co. v. Carpenters

, 436 U.S. 180, 188 n.12

(1978)). And before Brown

, the Court hadn’t found a state law

preempted under Machinists since Golden State in 1986. 2

So, while Machinists is certainly still good law, I would

hesitate to extend it beyond its current boundaries. After all,

even in the labor context, the Supreme Court is “reluctant to

infer pre

‐ emption.” Building & Const. Trades Council of Metro.

2 In Livadas v. Bradshaw

, 512 U.S. 107, 117 n.11 (1994), the Court men

‐

tioned Machinists preemption in a footnote, saying that in that particular

case the difference between typical conflict preemption and Machinists

was “entirely semantic, depending on whether Livadas ʹ s right is charac

‐

terized as implicit in the structure of the Act (as was the right to self

‐ help

upheld in Machinists ) or as rooted in the text of § 7.”No. 17

‐ 1178 41

Dist. v. Associated Builders & Contractors of Mass./R.I., Inc.

, 507

U.S. 218, 224 (1993). “Federal labor law in this sense is inter

‐

stitial, supplementing state law where compatible, and sup

‐ planting it only when it prevents the accomplishment of the

purposes of the federal Act.” Metro. Life Ins. Co. v. Massachu

‐

se tt s

, 471 U.S. 724, 756 (1985).

This leaves three main questions. First, can SeaPak be re

‐

cast as a Machinists preemption case? If it cannot, can it be jus

‐

ti fi ed under modern general preemption doctrine? And if that

does not work, must we still follow it simply because it is a

merits decision of the Supreme Court and it has not been

overruled? I will take these in turn.

A. SeaPak as a Machinists Case

The court contends that the Machinists preemption doc

‐

trine supports the SeaPak summary a ffi rmance. It essentially

seeks to recast SeaPak as a Machinists preemption case. Yet I

cannot fi nd any cases describing SeaPak this way. 3 On the

other hand, courts have interpreted SeaPak as a general fi eld

preemption case (with no mention of Machinists ). Most re

‐ cently, the Sixth Circuit characterized SeaPak as holding that

“[a]llowing dual regulation under federal and state law

would undermine Congress’s purposes and contravene fi eld

preemption.” United Auto., Aerospace, & Agric. Implement

3 The district court in Georgia State AFL

‐ CIO v. Olens

, 194 F. Supp. 3d

1322, 1330–31 n.5 (N.D. Ga. 2016), noted in a footnote that “[d]espite reg

‐

ulation determining the boundaries of bargaining in this regard, the

NLRA left a window between revocable checkoff authorizations and ir

‐

revocable authorizations up to a year that would appear susceptible to a

challenge under Machinist [sic] preemption as well.” But the court did not

characterize SeaPak as a Machinists case. Rather, it said that even putting

SeaPak to one side, Machinists preemption might also apply.42 No. 17

‐ 1178

Workers of Am. Local 3047 v. Hardin Cty.

, 842 F.3d 407, 421 (6th

Cir. 2016). The court held that “[t]he analysis set forth in

SeaPak is not conclusive, but it bears the Supreme Court’s im

‐ primatur and its authority remains essentially unchallenged

by any con fl icting case law authority.” Id. ; see also United Food

& Commercial Workers Local 99 v. Benne tt

, 934 F. Supp. 2d 1167,

1181–82 (D. Ariz. 2013) (“In fi nding that the Georgia statute

was preempted, the trial judge appeared to rely on both con

‐

fl ict and fi eld preemption.”).

Further, the SeaPak district court failed to mention any

cases that the Supreme Court relied on to establish the Ma

‐

chinists preemption doctrine seven years later. Instead, it dis

‐

cussed both con fl ict and fi eld preemption. The court fi rst con

‐

cluded that the federal and state statutes were “completely at

odds” and could not “coexist.” SeaPak

, 300 F. Supp. at 1200.

This was plainly wrong, since Georgia’s law requiring

checko ff authorizations to be revocable at will did not violate

federal law; it was possible to comply with both provisions.

Second, the court found “[t]he area of checko ff of union dues

has been federally occupied to such an extent under [Section

302] that no room remains for state regulation in the same

fi eld.” Id. For support, the court noted that the original ver

‐

sion of the legislation in the House would have made it an

unfair labor practice for checko ff authorizations to be irrevo

‐

cable for more than 30 days, but a Senate amendment re

‐

moved that provision. Id. The court rhetorically asked

whether, if the legislation had included the original House

version of the checko ff restriction, it would “have amounted

to a clear Congressional mandate governing deduction of un

‐

ion dues in every state?” Id. Of course, it would have, so the

court said it couldn’t “be persuaded that Federal preemption

fails merely because Congress saw fi t to adopt a less liberalNo. 17

‐ 1178 43

power of revocation and then incorporated it in a proviso.” Id.

Such an analysis is not comparable to Machinists preemption,

but to anachronistic fi eld preemption cases that have fallen

out of favor in recent years. I would conclude that SeaPak was

decided as a general fi eld preemption case. 4

Even so, leaving SeaPak to one side, does Machinists re

‐ quire preemption of the Wisconsin regulation here? Admit

‐ tedly, “congressional intent to shield a zone of activity from

regulation is usually found only ‘implicit[ly] in the structure

of the Act[.]’” Brown

, 554 U.S. at 68 (quoting Livadas

, 512 U.S.

at 117 n.11). This means that States cannot legislate on top of

the protections of Section 7 of the NLRA or the prohibitions

of Section 8, on the theory that Congress intended everything

else to be left to bargaining. See Cannon v. Edgar

, 33 F.3d 880,

885 (7th Cir. 1994); 520 S. Mich. Ave.

, 549 F.3d at 1125–26.

Had Congress included the language of Section 302(c)(4)

of Taft

‐ Hartley alongside the prohibitions of Section 8 of the

NLRA, I might be persuaded that the rationale of Machinists

required preemption of state regulations mandating shorter

periods of irrevocability for checko ff s. Yet, that is not what

happened. Instead, the language appears as an exception to a

criminal law otherwise barring employers from giving any

‐ thing of value to unions. 5 29 U.S.C. § 186(a). And as Wisconsin

4 Nothing in the question presented or the limited briefing available

from the SeaPak appeals demonstrates that the Fifth Circuit or the Su

‐

preme Court considered Machinists

‐ like arguments either.

5 The court says that Section 302(c)(4)’s placement as a criminal law,

rather than, say, an unfair labor practice prohibited under Section 8 of the

NLRA, simply means that Congress was really committed to the issue.

Surely, Congress was concerned with the extended irrevocability of44 No. 17

‐ 1178

points out, the Department of Justice, not the NLRB, enforces

Section 302’s criminal prohibition. Section 302(c)(4)’s position

as a safe

‐ harbor exception to a criminal law, rather than as a

regulation of the collective bargaining process under Sections

7 and 8 of the NLRA, counsels against a fi nding of preemp

‐

tion. Moreover, Congress does not “hide elephants in mouse

‐

holes.” Whitman v. Am. Trucking Ass’ns

, 531 U.S. 457, 468

(2001). If Congress intended to grant unions an a ffi rmative

right to bargain for checko ff agreements irrevocable for a

year, it seems highly unlikely it would have placed the lan

‐

guage of Section 302(c)(4) in a “provided that” clause of an

exception to an anti

‐ bribery statute. Cf. City of Chicago v. Ses

‐

sions

, 888 F.3d 272, 285 (7th Cir. 2018) (noting that “[a] clause

in a catch

‐ all provision at the end of a list of explicit powers

would be an odd place indeed to put a sweeping power to

impose any conditions on any grants”).

Further cu tt ing against Machinists preemption is that dues

checko ff is “designed as a provision for the administrative

convenience in the collection of union dues.” NLRB v. Atlanta

Printing Specialties and Paper Prods. Union 527, AFL

‐ CIO

, 523

F.2d 783, 786 (5th Cir. 1975). As the Fifth Circuit explained,

“Section 302 generally prohibits payments from employers to

unions, in order to prevent corruption, but Subsection (c)(4)

makes an exception for dues deductions, provided that the

checkoff agreements. But Section 302 is primarily a prohibition of em

‐ ployer payments to unions, not a regulation of the collective bargaining

process. Checkoffs are only permitted in the first instance as an exception

to this general rule, and generally because they are convenient. The struc

‐

ture of the section thus indicates that Congress likely intended simply to

place a limit, for the benefit of employees, on its allowance of checkoff

agreements. I do not believe we can infer preemption from such a statu

‐

tory structure.No. 17

‐ 1178 45

employee gives voluntary wri tt en consent. The emphasis is on

protection of the employee, not the union.” Id. The same is

true of the one year limit on irrevocability. If Section 302(c)(4)

grants rights to anyone (and it does not appear to do so), it is

the employee, who is entitled to exercise his or her free choice

to revoke checko ff agreements. See id. at 786–87; Felter v. S.

Pac. Co.

, 359 U.S. 326, 333 (1959) (limitations on checko ff

agreements are a ma tt er of the “employee’s freedom of deci

‐ sion”). In light of this, I cannot agree that Section 302(c)(4)

grants unions the right to bargain for one year of irrevocabil

‐ ity. Nor can I conclude that Congress, in permi tt ing limited

checko ff agreements for convenience, intended to prevent the

States from further preserving an employee’s right to freedom

of choice.

As this case demonstrates, the revocability of dues

checko ff agreements can pit an individual employee, who de

‐

sires to revoke her checko ff authorization, against the union,

which would prefer to receive automatic dues for the remain

‐

der of the agreement. That this case is about employee free

‐

dom from the union substantially distinguishes it from the

typical Machinists case dealing with “Congress’ intentional

balance between the power of management and labor to fur

‐

ther their respective interests by use of their respective eco

‐

nomic weapons.” Cannon

, 33 F.3d at 885. While management

and labor may bargain over the existence and terms of

checko ff agreements, neither side adequately represents the

freedom of employees to revoke their agreements. It is in the

union’s interest to procure the maximum irrevocability pe

‐

riod allowed under the law, not to bargain for the best inter

‐

ests of its members. Simply put, this case does not involve the

same type of regulation of collective bargaining that has jus

‐

ti fi ed Machinists preemption in the past.46 No. 17

‐ 1178

Lastly, the court says that the Supreme Court reached the

“same conclusion” as SeaPak in Felter

, but I do not see how

Felter helps the court. That case was about whether, under the

Railway Labor Act’s checko ff provision, a union could require

an employee to submit his revocation on a particular form fur

‐

nished by the union. The provision at issue stated that no

checko ff agreement “shall be e ff ective with respect to any in

‐

dividual employee until he shall have furnished the employer

with a wri tt en assignment to the labor organization

... which

shall be revocable in writing after the expiration of one year

... .” Id. at 327. The Supreme Court held that Congress in

‐

tended employees to be able to freely revoke their agreements

after the year was up. It saw “no authority given by the Act to

carriers and labor organizations to restrict the employee’s in

‐

dividual freedom of decision” in collective bargaining. Id. at

333.

Felter was not a preemption case. It simply interpreted the

terms of a particular statute that granted a limited authority

to labor and management to bargain for checko ff agreements,

subject to each employee’s ability to revoke his agreement af

‐

ter a year. To be sure, the Supreme Court held that labor and

management could not bargain for additional requirements

beyond “a wri tt en assignment,” but it said so because it inter

‐ preted the statute as preserving employee freedom. The up

‐

to

‐ one

‐ year provision in Section 302(c)(4) is similar in that it

protects employees from certain bargaining decisions. In

some ways, that makes these provisions counter

‐ examples for

Machinists preemption. Rather than reserving a zone of free

‐

dom for bargaining, the statutes in Felter and here reserve a

zone of freedom for employee choice. I cannot conclude that

Machinists precludes States from expanding that zone.No. 17

‐ 1178 47

In sum, I conclude that the Wisconsin law is not

preempted under Machinists

. 6 Therefore, I must continue to

determine whether the SeaPak district court’s general preemp

‐

tion conclusions are still binding on us today.

B. SeaPak under Modern General Preemption Doctrine

Can SeaPak withstand scrutiny under modern preemption

doctrine? First, a quick review of general implied preemption.

It “comes in two types: (1) fi eld preemption, which arises

when the federal regulatory scheme is so pervasive or the fed

‐

eral interest so dominant that it may be inferred that Congress

6 The court also suggests that the Wisconsin law might be preempted

under San Diego Building Trades Council v. Garmon

, 359 U.S. 236 (1959). In

Garmon

, “the Court held that ‘[w]hen an activity is arguably subject to § 7

or § 8 of the Act, the States as well as the federal courts must defer to the

exclusive competence of the National Labor Relations Board if the danger

of state interference with national policy is to be averted.’” NLRB v. State

of Ill. Dep’t of Emp’t Sec.

, 988 F.2d 735, 738 (7th Cir. 1993) (quoting Garmon

,

359 U.S. at 245). This case does not concern activity even arguably pro

‐

tected by Section 7 or prohibited by Section 8 of the NLRA. Moreover,

Garmon preemption “seeks to protect the NLRB ʹ s primary jurisdiction in

cases involving sections 7 and 8 of the NLRA.” 520 S. Mich. Ave.

, 549 F.3d

at 1125. But the NLRB has no jurisdiction here; it does not enforce Section

302 of the Taft

‐ Hartley Act.

Further, I would not consider a checkoff agreement to be a wage

‐

related term of employment under Section 8(a)(5) of the NLRA. A checkoff

is a device of convenience that allows an employee to more easily pay

union dues. It has no effect on the employee’s wages or work conditions.

Even where the union and management bargain for the existence of

checkoffs, employees need not take advantage of them. It is hard to see

how a voluntary agreement to pay union dues out of one’s paycheck

would constitute a term of employment at all.

For these reasons, I would conclude that Garmon preemption is inap

‐ plicable.48 No. 17

‐ 1178

intended to occupy the entire legislative fi eld; and (2) con fl ict

preemption, which arises when state law con fl icts with fed

‐

eral law to the extent that ‘compliance with both federal and

state regulations is a physical impossibility,’ or the state law

‘stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.’” Planned

Parenthood of Ind., Inc., v. Comm’r of Ind. State Dep’t of Health

,

699 F.3d 962, 984 (7th Cir. 2012) (quoting Arizona

, 567 U.S. at

399). So we have three types of preemption: fi eld preemption

and two species of con fl ict preemption known as impossibil

‐ ity and obstacle preemption. Importantly, preemption analy

‐

sis “begins with a presumption against preemption and fo

‐

cuses fi rst on the text of the statute.” Id

.

Impossibility preemption applies only where it is actually

“impossible for a private party to comply with both the state

and federal law.” Patriotic Veterans, Inc. v. Indiana

, 736 F.3d

1041, 1049 (7th Cir. 2013). Although the SeaPak district court

said that the federal and state statutes in that case were “com

‐ pletely at odds” and could not “coexist,” SeaPak

, 300 F. Supp.

at 1200, it was plainly wrong. Like the revocable

‐ at

‐ will pro

‐

vision at issue in SeaPak

, the 30

‐ day irrevocability period now

mandated by Wisconsin law does not violate federal law. Fed

‐

eral law makes an employer payment to a union under a

checko ff agreement a crime only if such agreement is irrevo

‐

cable for more than one year. The 30

‐ day Wisconsin period

falls within the safe

‐ harbor exception granted by Section

302(c)(4) of the Taft

‐ Hartley Act. Since a 30

‐ day irrevocabilityNo. 17

‐ 1178 49

period complies with both state and federal law, SeaPak can

‐

not be justi fi ed under impossibility preemption. 7

Regarding obstacle preemption, the SeaPak district court

a tt empted to ascertain the purpose behind Section 302(c)(4),

noting that Senate debate revealed “deep concern about

checko ff s and the period during which they may be irrevoca

‐

ble.” Id. The court theorized that “Congress ‘was not indi ff er

‐

ent to that subject, but on the contrary, was so vitally inter

‐

ested therein, that it established certain conditions precedent

which an employer must meet before he may ‘check

‐ o ff ’

membership dues.’” Id. (quoting State v. Montgomery Ward &

Co.

, 233 P.2d 685, 688 (Utah 1951)). That fi nding was enough

for the district court to hold Georgia’s checko ff restriction

preempted for creating an obstacle to the enforcement of fed

‐

eral law.

This analysis was questionable in 1969, but it is totally un

‐

tenable today. As I noted above, today’s “[i]mplied preemp

‐

tion analysis does not justify a ‘freewheeling judicial inquiry

into whether a state statute is in tension with federal objec

‐

tives’; such an endeavor ‘would undercut the principle that it

is Congress rather than the courts that preempts state law.’”

Whiting

, 563 U.S. at 607 (quoting Gade

, 505 U.S. at 111 ((Ken

‐ nedy, J., concurring in part and concurring in the judgment)).

Looking to the text and structure of the law, and keeping in

mind the presumption against preemption, I would conclude

that obstacle preemption is inapplicable here. That is for

7 The text of Section 8 of the NLRA provides no indication that a 30

‐ day period of irrevocability would constitute an unfair labor practice un

‐

der federal law, so I do not see how the NLRB could possibly sanction any

private parties for complying with Wisconsin law.50 No. 17

‐ 1178

much the same reason that I have already concluded Machin

‐

ists is inapplicable, although the fi nding comes easier in the

general preemption context since we need not worry about

the inferences drawn from congressional silence that perme

‐

ate Machinists cases. In short, nothing in the text of the NLRA,

Taft

‐ Hartley generally, or Section 302(c)(4) speci fi cally indi

‐

cates any federal objective that would be frustrated by Wis

‐

consin’s regulation.

Finally, we have general fi eld preemption. In its most

sweeping conclusion, the SeaPak district court declared that

“[t]he area of checko ff of union dues has been federally occu

‐ pied to such an extent under [Section 302] that no room re

‐

mains for state regulation in the same fi eld.” SeaPak

, 300 F.

Supp. at 1200. It reached this conclusion relying entirely on

legislative history. See supra at 9. But, as discussed above, “re

‐

cent cases have frequently rejected fi eld pre

‐ emption in the

absence of statutory language expressly requiring it.” Kurns

,

565 U.S. at 640–41 (Sotomayor, J., concurring in part and dis

‐ senting in part) (quoting Camps Newfound/Owatonna

, 520 U.S.

at 617 (Thomas, J., dissenting)). The preemption theory the

SeaPak district court advanced was entirely atextual, based in

‐

stead on words Congress rejected

. SeaPak

, 300 F. Supp. at 1200.

While such cavalier use of legislative history to determine

congressional intent was commonplace at the time, see Citi

‐

zens to Preserve Overton Park, Inc. v. Volpe

, 401 U.S. 402, 412 n.29

(1971) (where the legislative history is ambiguous, courts

should look to the statute to determine legislative intent), it

has thankfully fallen out of favor, see Lamie v. U.S. Trustee

, 540

U.S. 526, 534, 536 (2004) (even though a statute was “awk

‐

ward” and “ungrammatical,” it was not ambiguous and so

the Court could not consult legislative history). No court to

‐ day would fi nd that Congress intended to occupy an entireNo. 17

‐ 1178 51

fi eld based on language that failed to make it into the fi nal

bill.

Writing on a clean slate, I would conclude that Wisconsin

should be permi tt ed to enforce its limitation on dues checko ff

agreements. Nevertheless, I recognize that the Supreme

Court’s summary disposition in SeaPak retains some prece

‐

dential force. Thus, the fi nal question is whether, even assum

‐ ing SeaPak was wrongly decided, we should still follow it.

C. Is SeaPak Still Binding?

Unlike a denial of certiorari, a summary disposition of the

Supreme Court is a decision on the merits of a case. See Hicks

v. Miranda

, 422 U.S. 332, 344 (1975). Therefore, “unless and

until the Supreme Court should instruct otherwise,” inferior

courts should treat summary dispositions as binding “except

when doctrinal developments indicate otherwise.” Id. (quot

‐ ing Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth.

,

387 F.2d 259, 263 n.3 (2d Cir. 1967)). 8 Not surprisingly, the

scope of that “doctrinal developments” exception has been

the subject of signi fi cant debate.

In Baskin v. Bogan

, 766 F.3d 648 (7th Cir. 2014), this court

considered the constitutionality of the marriage laws of Indi

‐

ana and Wisconsin. We confronted the Supreme Court’s sum

‐

mary disposition in Baker v. Nelson

, 409 U.S. 810 (1972)

8 As I noted above, the Supreme Court has said “that summary affir

‐

mances have considerably less precedential value than an opinion on the

merits.” Socialist Workers Party

, 440 U.S. at 180–81. However, this appears

to apply only to the Supreme Court’s decisions whether to overrule its own

cases. As a lower court, we are bound by summary affirmances unless the

Hicks doctrinal developments exception applies.52 No. 17

‐ 1178

(mem.), which had dismissed an appeal from a same

‐ sex cou

‐ ple challenging Minnesota’s marriage laws “for want of a sub

‐

stantial federal question.” That decision was no longer bind

‐ ing on the lower courts, we said, because subsequent doctri

‐

nal developments in cases like Romer v. Evans

, 517 U.S. 620

(1996), Lawrence v. Texas

, 539 U.S. 558 (2003), and United States

v. Windsor

, 133 S. Ct. 2675 (2013), “make clear that Baker is no

longer authoritative.” Baskin

, 766 F.3d at 660. We so concluded

even though none of those cases had questioned Baker ’s con

‐

clusion that no federal constitutional right to same

‐ sex mar

‐ riage existed. Indeed, on the same day it decided Windsor

, the

Supreme Court also ruled in Hollingsworth v. Perry

, 570 U.S.

693 (2013), that it lacked jurisdiction to address the marriage

question. See also Lawrence

, 539 U.S. at 585 (O’Connor, J., con

‐ curring in the judgment) (“Texas cannot assert any legitimate

state interest here, such as national security or preserving the

traditional institution of marriage .” (emphasis added)). The

Court ultimately addressed that question in Obergefell v.

Hodges

, 135 S. Ct. 2584 (2015), but we didn’t think it necessary

to wait for the Court to overrule its summary disposition in

Baker before we invalidated the Indiana and Wisconsin laws. 9

9 Not everyone shares our willingness to “jump the gun” on “overrul

‐ ing” the Supreme Court’s supposedly “outdated” cases. In the same mar

‐ riage context, the Sixth Circuit insisted that Baker was still binding on

lower courts. Judge Sutton wrote that circuit courts may only “ignore a

Supreme Court decision” in two circumstances: “when the Court has

overruled the decision by name (if, say, Windsor had directly overruled

Baker ) or when the Court has overruled the decision by outcome (if, say,

Hollingsworth had invalidated the California law without mentioning

Baker ).” DeBoer v. Snyder

, 772 F.3d 388, 401 (6th Cir. 2014), rev’d on other

grounds sub nom. Obergefell v. Hodges

, 135 S. Ct. 2584 (2015). In his view,

“[a]ny other approach returns us to a world in which the lower courts may

anticipatorily overrule all manner of Supreme Court decisions based onNo. 17

‐ 1178 53

If we were willing to discard Baker in light of these cases,

the same should apply here. As I have demonstrated, the Su

‐

preme Court’s preemption jurisprudence has evolved signi fi

‐ cantly since SeaPak

. The Court is now much more sensitive to

federalism concerns and far less likely to imply preemption

from ambiguous statutes or legislative history. The SeaPak dis

‐

trict court’s analysis perhaps made some sense in 1969, but it

cannot stand alongside modern preemption doctrine. There

‐

fore, under Baskin

, I would no longer regard it as binding.

III. Conclusion

Wisconsin has challenged a decades

‐ old Supreme Court

summary a ffi rmance preventing it from legislating to provide

employees additional freedom to revoke agreements to check

o ff union dues from their paychecks. I conclude that the prec

‐

edential value of that case, SeaPak v. Industrial, Technical & Pro

‐ fessional Employees

, 400 U.S. 985 (1971) (mem.), has been so

eroded by changes to preemption doctrine that we should no

longer follow it. The court, perhaps sensing that SeaPak is on

weak ground under general preemption principles, mostly

defends it as an early application of labor

‐ speci fi c Machinists

preemption. But not only was SeaPak not a Machinists case,

Machinists is inapplicable to the Wisconsin law as a ma tt er of

fi rst impression. Nor can the result be justi fi ed under modern

preemption doctrine, which grants the States far more lati

‐

tude to legislate alongside federal law than they once had.

counting

‐ to

‐ five predictions, perceived trajectories in the caselaw, or,

worst of all, new appointments to the Court.” Id.

I am sympathetic to Judge Sutton’s narrower approach to the Hicks

exception, but Baskin remains the law in our circuit. If it were otherwise,

this dissent would take the form of an opinion concurring in the judgment.54 No. 17

‐ 1178

I do not lightly recommend declining to follow Supreme

Court precedent. But the SeaPak decision cannot stand up to

scrutiny under today’s preemption doctrines. I am convinced

that a court deciding this case today, writing on a clean slate,

would fi nd Wisconsin’s law not preempted. The changes to

preemption doctrine have been so signi fi cant that we need no

longer follow SeaPak

. Therefore, Wisconsin should be permit

‐

ted to enforce its limitation on dues checko ff provisions.

I respectfully dissent.