In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3554

WISCONSIN CENTRAL, LTD.,

Plaintiff-Appellee,

v.

CATHERINE SHANNON and NANCY MCDONALD,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 994—Ruben Castillo, Judge.

____________

ARGUED MAY 14, 2008—DECIDED AUGUST 26, 2008

____________

Before BAUER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge. Wisconsin Central, LTD. (“WCL”),

an interstate railroad company, brought a suit seeking

declaratory and injunctive relief in federal court after

the Illinois Department of Labor (“the IDOL”) began

investigating claims that WCL had violated overtime

regulations under the Illinois Minimum Wage Law, 820

ILL. COMP. STAT. 105/4a. The basis for WCL’s suit was

that the State’s overtime provisions were preempted by
2 No. 07-3554

federal law. This preemption argument was based on two

separate grounds: (1) that enforcing the Illinois law would

require interpreting provisions in WCL’s collective bargaining agreements (“CBAs”) and was thus preempted

by the federal Railway Labor Act (“RLA”), 45 U.S.C.

§§ 151-188, which required that all CBA disputes be

resolved in arbitration; and (2) that Congress’s regulation of the railways was so vast that field preemption

applied. On cross-motions for summary judgment, the

district court found for WCL on the first preemption claim,

and thus did not address the field preemption issue. For

the following reasons, we find that the issue of preemption under the RLA was not ripe for consideration, but

that Congress has so occupied the field of railway regulation that Illinois’s overtime law is preempted as applied

to the railways.

I. Background

WCL is a railroad that operates in Wisconsin, Minnesota,

Michigan, and Illinois. In 2005, the IDOL received complaints from five WCL “signal maintainers” claiming they

had been denied overtime wages owed under Illinois law.

See 820 ILL. COMP. STAT. 105/4a. As signal maintainers,

these employees fell within one of the four categories of

WCL employees (which includes communications and

signal employees, conductors, locomotive engineers, and

maintenance-of-way employees) that work in Illinois and

have entered into CBAs with the railway concerning the

terms and conditions of employment.

Defendant Nancy McDonald, an IDOL compliance

officer, was assigned to investigate these claims. McDonald
No. 07-3554 3

sought to verify and corroborate the claimants’ allegations.

After speaking with some of the claimants, McDonald sent

a letter to WCL’s Illinois office on August 22, 2006, requesting the company’s payroll records from September 2003

to the present for all signal maintainers. On September 5,

WCL replied by letter, explaining its position that, because

the signal maintainers were employed pursuant to a CBA

entered into under the RLA, 45 U.S.C. § 151 et seq., that Act

preempted the State’s overtime law. WCL received a

response to this letter on January 29, 2007, in which

McDonald explained that she was proceeding with her

investigation since there was currently no Chief Counsel

at the IDOL able to review WCL’s preemption claim.

McDonald also stated that if WCL did not voluntarily

comply with her records request, she would subpoena the

railway to compel the payroll records’ production. See

820 ILL. COMP. STAT. 105/7(c). Moreover, McDonald noted

that the IDOL would bring enforcement proceedings

against WCL under 820 ILL. COMP. STAT. 105/12 if, after

her investigation, it was determined that the Illinois

Minimum Wage Law’s overtime provisions had been

violated.

This prompted WCL to file, on February 21, 2007, a twocount suit in federal court seeking declaratory and injunctive relief. The suit, brought against McDonald and

Catherine Shannon, the then-Acting Director and now

Director of the IDOL, in their official capacities, claimed

that enforcement of the State’s overtime law against WCL

was preempted by federal law. Five days later, on

February 26, the IDOL issued a subpoena to WCL, seeking

the time and payroll records not only for the signal
4 No. 07-3554

maintainers, but for every WCL employee at the company

from September 1, 2003 to February 28, 2007. The IDOL

subsequently agreed to extend the deadline for responding to the subpoena until after the resolution of

WCL’s lawsuit.

On March 29, 2007, WCL amended its complaint to its

present version. Count 1 sought declaratory relief, claiming

that based on Congress’s vast regulation of the railway

industry, field preemption applied, thus barring the

Illinois Minimum Wage Law’s applicability to WCL. Count

2 sought to enjoin the IDOL from enforcing the Illinois

Minimum Wage Law against WCL on the same grounds.

Counts 3 and 4 sought the same relief as Counts 1 and 2,

but on the basis that the RLA preempted Illinois’s overtime law from being enforced with respect to those workers employed pursuant to a CBA.

The IDOL filed a motion to dismiss WCL’s complaint

on April 23, 2007. The district court converted the motion

to dismiss to a motion for summary judgment, which

WCL responded to with a cross-motion for summary

judgment. On September 21, 2007, the district court issued

a memorandum opinion and order, granting summary

judgment for WCL and denying it for the IDOL. The

district court found for WCL on the basis of the RLA’s

preemptive force, reasoning that determining whether

WCL had violated Illinois’s overtime provisions would

require interpreting the applicable CBAs, something

which the RLA mandates occur through an arbitration

process outside the state or federal courts. See Hawaiian

Airlines v. Norris, 512 U.S. 246, 252-53 (1994). Having found
No. 07-3554 5

for WCL on this ground, the district court did not need

to determine whether field preemption also precluded the

IDOL from enforcing the Illinois Minimum Wage Law

against the railway. The IDOL then brought this appeal,

with WCL, in its response brief, contending that this

Court, if reversing the district court, could still find for

the railway on the basis of field preemption.

II. Discussion

This appeal raises two preemption issues: (1) whether

the IDOL’s investigation and enforcement of Illinois’s

overtime law is preempted by the RLA; and (2) whether

field preemption precludes the State’s overtime provision’s applicability to the railway, on the basis of Congress’s comprehensive regulation of the rail industry.

Because this appeal comes to this Court from cross-motions

for summary judgment, we review the district court’s

findings de novo, Aux Sable Liquid Prods. v. Murphy, 526

F.3d 1028, 1032 (7th Cir. 2008). As with any summary

judgment motion, this Court reviews these cross-motions

“construing all facts, and drawing all reasonable inferences from those facts, in favor of . . . the non-moving

party.” Automobile Mechanics Local 701 Welfare & Pension

Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 748

(7th Cir. 2007) (quoting Hall v. Bodine Elec. Co., 276 F.3d 345,

352 (7th Cir. 2002)). Here, however, because there are no

genuine issue of material fact, “we need decide only

whether either party ‘is entitled to a judgment as a

matter of law.’ ” Id. (quoting FED. R. CIV. P. 56(c)).
6 No. 07-3554

In 1936, the RLA was amended to expand the Act’s applicabil- 1

ity to the airline industry, in addition to the railroads. Hawaiian

Airlines, 512 U.S. at 248 (citing Act of Apr. 10, 1936, ch. 166,

49 Stat. 1189 (codified as amended at 45 U.S.C. §§ 181-188)).

A. Preemption Under the Railway Labor Act

The IDOL’s appeal focuses upon the district court’s

finding that, “because the overtime claims being investigated by the [I]DOL involve interpretation and application

of various provisions of the CBAs, the claims are preempted by the Railway [Labor] Act.” Wis. Cent. Ltd. v.

Shannon, 516 F. Supp. 2d 917, 925 (N.D. Ill. 2007). The

Supreme Court addressed the RLA’s preemptive scope

most recently in Hawaiian Airlines v. Norris, 512 U.S. 246

(1994), where the Court explained the Act in the 1

following manner:

Congress’ purpose in passing the RLA was to promote

stability in labor-management relations by providing

a comprehensive framework for resolving labor disputes. To realize this goal, the RLA establishes a

mandatory arbitral mechanism for “the prompt and

orderly settlement” of two classes of disputes. The first

class, those concerning “rates of pay, rules or working

conditions,” are deemed “major” disputes. . . . The

second class of disputes, known as “minor” disputes,

“grow out of grievances or out of the interpretation

or application of agreements covering rates of pay,

rules, or working conditions.” Minor disputes involve

“controversies over the meaning of an existing collective bargaining agreement in a particular fact situa-
No. 07-3554 7

This Court has found “the preemption question sufficiently 2

similar to the preclusion question to make the analysis employed in the RLA preemption cases applicable” in preclusion

cases as well. Brown v. Ill. Cent. R.R., 254 F.3d 654, 662 (7th Cir.

2001).

tion.” Thus, “major disputes seek to create contractual

rights, minor disputes to enforce them.”

512 U.S. at 252-53 (internal citations omitted). Accordingly,

because the RLA requires that all “minor” disputes be

resolved through “a mandatory arbitral mechanism,” if the

alleged overtime violations under Illinois law are in

essence a “minor” dispute involving the CBAs, then the

IDOL’s state overtime claims are preempted. Id. at 253.

Despite this mandatory arbitration process, however, the

Court made clear in Hawaiian Airlines that “substantive

protections provided by state law, independent of whatever labor agreement might govern, are not pre-empted

under the RLA.” Id. at 257. Instead, the Court reaffirmed

its prior decision in Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988), reiterating that “where the resolution

of a state-law claim depends on an interpretation of the

CBA, the claim is preempted,” but explaining that certain

claims may involve “ ‘purely factual questions’ . . . [that] do

not ‘require a court to interpret any term of a collective-bargaining agreement,’ ” and thus are not preempted.

Id. at 261-62 (quoting Lingle, 486 U.S. at 407).

In keeping with Hawaiian Airlines, this Court has affirmed, on a number of occasions, that preemption (or

“preclusion” if a federal claim is brought) under the RLA 2

exists when “the success of the claim is dependent upon an
8 No. 07-3554

interpretation of the collective bargaining agreement’s

terms.” Miller v. Am. Airlines, Inc., 525 F.3d 520, 524 (7th

Cir. 2008) (citing Brown v. Ill. Cent. R.R., 254 F.3d 654, 664

(7th Cir. 2001) (“[T]he best way to harmonize these two

statutes [the RLA and the ADA] is to allow a plaintiff

employee to bring an ADA claim in federal court against

his employer (even if his employment is governed by a

collective bargaining agreement which is subject to the

RLA), unless the resolution of his ADA claim requires

the court to interpret the collective bargaining agreement’s terms as a potentially dispositive matter.”) and Tice

v. Am. Airlines, Inc., 288 F.3d 313, 318 (7th Cir. 2002)

(“providing that dismissal is appropriate where ‘a particular interpretation of the collective bargaining agreement

is potentially dispositive of a the plaintiff’s claim’ ”)); see

also In re Bentz Metal Prods. Co., 253 F.3d 283, 285 (7th

Cir. 2001) (holding, with respect to the parallel preemption provision in § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a),“that a state law

claim is not preempted if it does not require interpretation of the CBA even if it may require reference to the

CBA”). Accordingly, this Court has identified many

scenarios where CBAs may be implicated as part of a

state or federal cause of action, but preemption/preclusion

of the claim is unnecessary. Such examples include:

(1) when “the particular contractual provision is so clear

as to preclude all possible dispute over its meaning,” Baker

v. Kingsley, 387 F.3d 649, 658 (7th Cir. 2004) (quoting

Metalcrafters v. McNeil, 784 F.2d 817, 824 (7th Cir. 1986));

(2) if “the parties d[o] not dispute the interpretation of

the relevant CBA provisions,” Brown, 254 F.3d at 668; or
No. 07-3554 9

The overtime provision in Illinois’s Minimum Wage Law 3

provides that:

[N]o employer shall employ any of his employees for a

workweek of more than 40 hours unless such employee

receives compensation for his employment in excess of

the hours above specified at a rate not less than 11/2 times

the regular rate at which he is employed.

820 ILL. COMP. STAT. 105/4a(1). In determining whether this

overtime law has been violated, it is necessary to calculate the

“hours worked,” which is defined as:

all the time an employee is required to be on duty, or on the

employer’s premises, or at other prescribed places of

work, and any additional time he or she is required or

permitted to work for the employer,

(continued...)

(3) where reference to the CBA is only necessary for

computing damages. See In re Bentz Metal Prods. Co., 253

F.3d at 286-87 (discussing Livadas v. Bradshaw, 512 U.S. 107

(1994)).

The district court, in its analysis, focused upon whether

resolving an overtime claim brought by the IDOL against

WCL “would require the application or interpretation of

the CBAs.” Wisconsin Central, LTD., 516 F. Supp. 2d at 922.

The court found that such interpretation would be necessary, observing that computing overtime under Illinois

law requires ascertaining the number of “hours worked”

and the “regular rate of pay”; figures that could only be

calculated by turning to the CBAs, and were not so

clear under those agreements that they could be determined through a “mere ‘glance’ ” without interpretation.3
10 No. 07-3554

(...continued) 3

ILL. ADMIN. CODE tit. 56, § 210.110, as well as the “regular rate”

of pay, the formula for which varies depending upon the

manner in which the employee is compensated, ILL. ADMIN.

CODE tit. 56, § 210.430 (differing calculations for employees

paid on an hourly rate, “piece-rate” employees, salaried

employees, and others), and includes multiple exclusions. ILL.

ADMIN. CODE tit. 56, § 210.410 (such as “when no work is

performed due to a vacation, holiday, illness, failure of employer to provide sufficient work, or other similar cause”). The

CBAs at issue in this case contain numerous provisions potentially relevant to calculating the “hours worked” and “regular

rate” of pay, such as clauses pertaining to meal periods, on-call

time, and travel time, among others.

The main thrust of the IDOL’s appeal is that the district

court failed to take the extra step of determining whether,

at this stage of the proceedings, it was evident that an

interpretation of WCL’s CBAs would be “dispositive” of

liability in an overtime claim brought under Illinois law.

Referencing the examples given above where this Court

has noted that preemption/preclusion would be unnecessary, the IDOL argues that, particularly since as of right

now, at the investigation stage, there is no dispute between the parties as to the CBAs’ terms as applied to the

Illinois Minimum Wage Law, the district court’s judgment was premature and overbroad. This argument is

strikingly similar to a claim that this suit is not ripe for

review, but the IDOL specifically argued in its brief to this

Court that this suit is ripe for adjudication. This Court,

however, is “obligated to consider [its] jurisdiction at any

stage of the proceedings,” Wisconsin v. Ho-Chunk Nation,
No. 07-3554 11

512 F.3d 921, 935 (7th Cir. 2008) (quoting Enahoro v.

Abubakar, 408 F.3d 877, 883 (7th Cir. 2005)), and ripeness,

when it implicates the possibility of this Court issuing an

advisory opinion, is a question of subject matter jurisdiction under the case-or-controversy requirement. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 538 (7th Cir. 2006).

Ripeness is predicated on the “central perception . . . that

courts should not render decisions absent a genuine need

to resolve a real dispute,” Lehn v. Holmes, 364 F.3d 862, 867

(7th Cir. 2004) (quoting 13A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3532.1, at 114 (2d ed. 1984)), and

“[c]ases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to

actual, concrete conflicts.” Id. (quoting Hinrichs v. Whitburn,

975 F.2d 1329, 1333 (7th Cir. 1992)). The inquiry into

ripeness is made more complicated when suit is brought

under the Declaratory Judgment Act, 28 U.S.C. § 2201,

and hence seeks preemptive relief, but the ability to

bring suit under that Act does not vitiate the constitutional requirement that the claim address “a case of actual

controversy.” Deveraux v. City of Chicago, 14 F.3d 328,

330-31 (7th Cir. 1994). This Court has acknowledged that

“the distinction between a ‘controversy’ in the Article III

sense and an abstract question of law ‘is necessarily one

of degree, and it would be difficult, if it would be possible,

to fashion a precise test for determining in every case

whether there is such a controversy.’ ” Id. at 330 (quoting

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,

273 (1941)). The Supreme Court, however, has tried to

clarify this standard, recently reiterating that, “[b]asically,
12 No. 07-3554

the question in each case is whether the facts alleged,

under all the circumstances, show that there is a substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.”

MedImmune, Inc. v. Genentech, Inc., 127 S. Ct. 764, 771 (2007)

(quoting Maryland Casualty Co., 312 U.S. at 273).

In trying to ascertain whether WCL’s preemption suit

under the RLA is of “sufficient immediacy and reality” to

warrant review by this Court at this time, we are guided

by the Supreme Court’s decision in Abbott Labs, where the

Court stated that “ripeness determinations depend on ‘the

fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ”

Metro. Milwaukee Ass’n of Commerce v. Milwaukee County,

325 F.3d 879, 882 (7th Cir. 2003) (quoting Abbott Labs v.

Gardner, 387 U.S. 136, 149 (1967)). With respect to the

first requirement, whether this issue is fit for judicial

review, this is not the case here, based upon the nature

of WCL’s preemption claim under the RLA. Issues of

express or field preemption are generally purely legal

questions, where the matter can be resolved solely on the

basis of the state and federal statutes at issue. See, e.g., id. at

882 (issue ripe for consideration where “almost purely

legal issues” raised regarding whether a county ordinance

was preempted by the National Labor Relations Act, 29

U.S.C. §§ 151 et seq.); Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983)

(noting, in finding a preemption claim ripe for review,

that “[t]he question of pre-emption is predominantly

legal”). This is not the case, however, for preemption
No. 07-3554 13

questions under the RLA, or its parallel provision in § 301

of the Labor Management Relations Act, 29 U.S.C. § 185.

See Hawaiian Airlines, 512 U.S. at 260 (describing these

standards as “virtually identical”). As explained by this

Court in In re Bentz Metal Prods Co., the question of whether

a state law is preempted by virtue of a CBA, “requires [a]

case-by-case factual analysis to determine the extent to

which a state law claim will require interpretation of a

CBA.” 253 F.3d at 285 (discussing preemption under § 301

of the LMRA).

Here, the record is not sufficiently developed for this

Court to engage in this “case-by-case factual analysis.” This

Court’s precedent reflects that state law is only preempted

if the resolution of the claim “is dependent upon an

interpretation of the collective bargaining agreement’s

terms.” Miller, 525 F.3d at 524. At this stage of the proceedings, all that is clear is that the CBAs will have to be

consulted to calculate the “hours worked” and “regular

rate” of pay under the Illinois Minimum Wage Act. While

this information was sufficient for the district court to

determine that computing these values “requires interpretation and application of various provisions contained

in the CBAs,” Wis. Cent. LTD., 516 F. Supp. 2d at 924, the

parties have not yet staked out a position for the record as

to what these CBA provisions mean, making it impossible

to determine at this stage of the proceedings whether a

disagreement will exist that will require an arbitrator,

under the terms of the RLA, to engage in this CBA interpretation.

As part of its finding that Illinois’s overtime provision

was preempted, the district court incorrectly placed
14 No. 07-3554

reliance upon language in In re Bentz Metal Prods. Co.,

which states that, “[i]f the entitlement to wages (or other

employee pay) or the amount due were at issue, the CBA

would control; almost certainly, interpretation of the

agreement would be necessary and would be subject to the

arbitration procedures in the contract.” 253 F.3d at 289.

What the district court did not take into account is that

the reason the entitlement to wages and the amount

due were not at issue in that case was because “that sum

[was] undisputed” between the parties. Id. at 287. Here, the

IDOL’s investigation of WCL’s overtime practices has

not progressed to a point where it can be determined what

dispute, if any, the parties will have over the CBAs’ terms.

Because preemption under the RLA will only occur if

the parties dispute the CBAs’ terms, and even then,

arguably only if the dispute is relevant as to liability

as opposed to damages, the record is not sufficiently

developed for this Court to engage in the case-by-case

factual analysis required by In re Bentz Metal Prods. Co.

The second requirement under Abbott Labs for determining ripeness—“the hardship to the parties of withholding court consideration,” Abbott Labs, 387 U.S. at 149—is

similarly not met in this case. As a general matter, it is

typically no bar to ripeness if the government has only

threatened enforcement, rather than actually brought a

lawsuit. See MedImmune, Inc., 127 S. Ct. at 772 (“where

threatened action by government is concerned, we do not

require a plaintiff to expose himself to liability before

bringing suit to challenge the basis for the threat”); see

also Nat’l Metalcrafters v. McNeil, 784 F.2d 817, 822 (7th

Cir. 1986). This situation is unique, however, since the
No. 07-3554 15

preemptive sweep of the RLA is focused upon “providing

a comprehensive framework for resolving labor disputes,”

Hawaiian Airlines, 512 U.S. at 252, and does not reach

“substantive protections provided by state law, independent of whatever labor agreement might govern.” Id. at 257.

Thus, the hardship to WCL is not its need to comply

with the State’s overtime requirements or the current

investigation, but is rather the possibility that it will need

to defend itself in an enforcement action ultimately preempted due to the need for an arbitrator, rather than a

court, to interpret the CBAs, in accord with the RLA. Of

course, as our sister Circuit has observed, “if it is evident

that the result of a process must lead to . . . preemption, it

would defy logic to hold that the process itself cannot be

preempted and that a complaint seeking that result

would not raise a ripe issue.” NE Hub Partners, L.P. v. CNG

Transmission Corp., 239 F.3d 333, 348 (3rd Cir. 2001). That

court, however, was quick to note that:

We are not holding that any claim of process preemption necessarily is ripe so that the court should consider the preemption claim before the process is

completed. It well may be that in a particular case

when conflict preemption is implicated the court may

conclude that it reasonably can be anticipated that

the process will yield a result that is not preempted.

Id. at 349 n.18. Here, the claim that the IDOL’s investigation should be halted based upon the preemptive scope

of the RLA is not ripe for consideration, since this is not a

circumstance where the IDOL’s investigation and subsequent enforcement of the State’s overtime laws would
16 No. 07-3554

invariably lead to a finding of preemption. As discussed

above, even if the IDOL brought suit against WCL under

the Illinois Minimum Wage Act, scenarios exist where

it would be unnecessary for the CBAs to be interpreted

in order to resolve the claim. Accordingly, the district

court lacked jurisdiction to rule on WCL’s counts concerning preemption under the RLA.

B. Field Preemption

This Court “may affirm the district court’s grant of

summary judgment on a ground other than that relied

upon by the district court below, so long as the alternative basis finds adequate support in the record.” Bombard

v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. 1996)

(citing Meredith v. Allsteel, Inc., 11 F.3d 1354, 1358 (7th

Cir. 1993)). Thus, even though the district court only ruled

on whether the RLA preempted the Illinois Minimum

Wage Law as applied to WCL, we turn to examine WCL’s

alternate claim—that field preemption bars the states

from regulating railroad overtime wages.

Ripeness does not pose an obstacle to this Court hearing

this claim. See Abbott Labs, 387 U.S. at 149 (whether an

issue is ripe for review depends upon “the fitness of the

issues for judicial decision and the hardship to the parties

of withholding court consideration”). Unlike the factual,

case-by-case analysis required for determining preemption under the RLA, In re Bentz Metal Prods. Co., 253 F.3d

at 285, field preemption is a purely legal question, see Pac.

Gas & Elec. Co., 461 U.S. at 201, limited to an analysis of

the Illinois Minimum Wage Law and federal statutes
No. 07-3554 17

governing the railways. Furthermore, in addition to the

record being sufficiently developed for review on this

issue, there is also a hardship to WCL if this Court does not

hear this claim at this time. The IDOL has threatened to

enforce Illinois’s overtime law against WCL—enforcement

that would be completely barred if this Court were to find

field preemption to exist. Moreover, even if the IDOL

ultimately did not bring suit against WCL, its investigation alone drains WCL’s resources, and there would be

no basis for the IDOL to investigate these overtime

claims if field preemption is applicable.

The preemption doctrine is grounded in the Constitution’s Supremacy Clause, which provides that, “This

Constitution, and the Laws of the United States which

shall be made in Pursuance thereof . . . shall be the Supreme Law of the land.” Hoagland v. Town of Clear Lake,

415 F.3d 693, 696 (7th Cir. 2005) (quoting U.S. Const., art.

VI, cl. 2). Field preemption does not rest on an express

congressional provision, or a conflict between federal

and state law, see id., but instead occurs “if federal law so

thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the

States to supplement it.’ ” Cipollone v. Liggett Group, Inc.,

505 U.S. 504, 516 (1992) (quoting Fidelity Fed. Sav. & Loan

Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982)).

The long history of pervasive congressional regulation

over the railway industry is undeniable, and the Supreme

Court has observed that, “[r]ailroads have been subject to

comprehensive federal regulation for nearly a century.”

United Transp. Union v. Long Island R.R. Co., 455 U.S. 678,
18 No. 07-3554

Pacific Railroad Act of 1862, ch. 120, 12 Stat. 489 (granting 4

rights of way to construct a rail line).

Interstate Commerce Act of 1887, 24 Stat. 379 (creating the 5

Interstate Commerce Commission (ICC) to regulate rail shipping).

Railway Labor Act of 1926, 44 Stat. 577 (codified as amended 6

at 45 U.S.C. §§ 151-188).

This includes the Hours of Service Act of 1907, 34 Stat. 1415 7

(codified as amended at 49 U.S.C. §§ 21101-21108) and the

Adamson Act of 1916, 39 Stat. 721 (codified as amended at 49

U.S.C. § 28301). The purpose of the Hours of Service Act was “to

promote safety in operating trains by preventing the excessive

mental and physical strain which usually results from remaining

too long at an exacting task,” Chicago & A. R. Co. v. United States,

247 U.S. 197, 199 (1918), while the Adamson Act was passed in

response to a threatened strike and permanently set eight hours

as a day’s work, while temporarily limiting wage adjustments.

Wilson v. New, 243 U.S. 332 (1917).

Safety Appliance Act of 1893, 27 Stat. 531 (codified as 8

amended in scattered sections of 49 U.S.C.); Boiler Inspection

Act of 1911, 36 Stat. 913 (codified as amended in scattered

sections of 49 U.S.C.); Federal Railroad Safety Act of 1970, 84

Stat. 971 (codified as amended at 49 U.S.C. § 20101 et seq.).

687 (1982). These laws have touched on nearly every

aspect of the railway industry, including property rights,4

shipping, labor relations, hours of work, safety,

5 6 7 8
No. 07-3554 19

49 U.S.C. § 20106 (“regulations, and orders related to railroad 9

security shall be nationally uniform to the extent practicable”).

Railroad Retirement Act of 1974, 88 Stat. 1305 (codified as 10

amended at 45 U.S.C. § 231 et seq.).

Railroad Unemployment Insurance Act of 1938, 52 Stat. 1094 11

(codified as amended at 45 U.S.C. § 351 et seq.).

Regional Rail Reorganization Act of 1973, 87 Stat. 985 (codified

12

as amended at 45 U.S.C. § 701 et seq.) (combined bankrupt

railroads into the Consolidated Rail Corporation).

security, retirement, unemployment, and preserving 9 10 11

the railroads during financial difficulties, as was well- 12

documented by the Sixth Circuit in its decision addressing

the very issue now before this Court. R.J. Corman R.R. Co.

v. Palmore, 999 F.2d 149, 151-52 (6th Cir. 1993).

Moreover, much of this federal legislation has been

found to preclude state regulation over the railways. For

example, as has already been discussed, the RLA’s goal

of “providing a comprehensive framework for resolving

labor disputes,” preempts state-law actions that would

require interpreting a CBA. Hawaiian Airlines, 512 U.S. at

252-53. Congress has also expressly preempted state laws

relating to railroad safety and security, unless the

specific subject-matter has not yet been regulated by a

federal agency, or if such a regulation is necessary to

address a uniquely local hazard. 49 U.S.C. § 20106. Going

farther back in history, the Supreme Court, in 1914, held

that the Hours of Service Act, which was intended to limit

the number of consecutive hours worked by railway

employees out of safety concerns, see Chicago & A. R. Co. v.
20 No. 07-3554

United States, 247 U.S. 197, 199 (1918), preempted state

regulation in this area. Erie R. Co. v. New York, 233 U.S. 671,

683 (1914) (“[T]he ‘Hours of Service’ law of March 4,

1907, is the judgment of Congress of the extent of the

restriction necessary. It admits of no supplement; it is the

prescribed measure of what is necessary and sufficient

for the public safety and of the cost and burden which

the railroad must endure to secure it.”).

The IDOL acknowledges that there is a great quantity

of federal railway legislation and that certain railroadrelated laws have a preemptive effect, but maintains that

Congress has not sufficiently expressed its “clear and

manifest” intent that Illinois’s overtime law be preempted

as applied to the railroads, particularly since wages are

an area traditionally left to state regulation. See English v.

General Elec. Co., 496 U.S. 72, 79 (1990) (“ ‘Where . . . the

field which congress is said to have pre-empted’ includes

areas that have ‘been traditionally occupied by the

States,’ congressional intent to supersede state laws must

be ‘clear and manifest.’ ”) (quoting Jones v. Rath Packing

Co., 430 U.S. 519, 525 (1977)); see also Frank Bros. v. Wis.

DOT, 409 F.3d 880, 887 (7th Cir. 2005) (“establishment

of prevailing wage rates and labor standards for indigenous workers is an area of traditional state regulation”). In

support of its position, the IDOL primarily relies upon

the Supreme Court’s decision in Terminal Railroad Association v. Brotherhood of Railroad Trainmen, where the Court

determined that a state requirement that all trains have

cabooses (for the “health, safety, and comfort of the

rear switchmen”) was not preempted by the Boiler Inspection Act, the Safety Appliance Act, the Interstate Com-
No. 07-3554 21

merce Act, or the RLA. 318 U.S. 1, 3-6 (1943). The IDOL

contends that WCL’s field preemption argument is foreclosed by the Court’s holding that “the enactment by

Congress of the Railway Labor Act was not a preemption

of the field of regulating working conditions themselves

and did not preclude the State of Illinois from making the

order in question.” Id. at 7. As WCL correctly points out,

however, the fact that the RLA “does not undertake

governmental regulation of wages, hours, or working

conditions,” id. at 6, does not mean that Congress has not

manifested its intent to preclude states from enforcing

its overtime laws against the railroads in other statutes.

The question then, is whether, by examining Congress’s

expansive regulation of the railways and the preemptive

force of particular laws, it can be said that Congress has

manifested its intent that states be precluded from

enacting and enforcing overtime provisions against the

railroads. We find that this is the case.

Despite Congress’s comprehensive federal regulation of

the railways and the preemptive sweep of many of these

laws, the IDOL tries to defeat WCL’s claim by arguing

that Congress has never sought to preempt state laws

concerning wages, and instead has limited its preemptive

intent to the resolution of labor disputes, Hawaiian Airlines,

512 U.S. at 252-53, matters of rail safety, see Hours of

Service Act of 1907, 34 Stat. 1415 (codified as amended at

49 U.S.C. §§ 21101-21108); see also Federal Railroad Safety

Act of 1970, 84 Stat. 971 (codified as amended at 49 U.S.C.

§ 20101 et seq.), and unemployment insurance, 45 U.S.C.

§ 363(b). While WCL counters that this “broad panoply” of

federal legislation evinces a similar intent on Congress’s
22 No. 07-3554

part to preempt state regulation of overtime wages, the

IDOL is correct that Congress’s preemptive intent is more

readily apparent with respect to these other subject matters

than it is with respect to overtime wages. This, however,

is unsurprising, given that the preemptive statutes referenced above all sought to affirmatively impose a

uniform federal standard over a specific area, while with

overtime wages, the contention is that Congress intended to leave that matter completely unregulated, and

left solely to private negotiations between the railroads

and its employees.

Of course, the mere absence of federal legislation with

respect to overtime wages is not enough to find a congressional intent to preempt this field, since “[t]here is

no federal pre-emption in vacuo, without a constitutional

text or a federal statute to assert it.” Puerto Rico Dep’t of

Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503

(1988). But, “[w]here a comprehensive federal scheme

intentionally leaves a portion of the regulated field without

controls, then the pre-emptive inference can be drawn—not

from federal inaction alone, but from inaction joined with

action.” Id. Such is the case here. In 1916, Congress passed

the Adamson Act, which permanently established the

eight-hour work day for determining the compensation

for railroad employees, while leaving the matter of compensation to private negotiations following a temporary

wage-freeze. Adamson Act of 1916, 39 Stat. 721 (codified

as amended at 49 U.S.C. § 28301). As discussed by the

Supreme Court in Wilson v. New, a case decided the year

after the Adamson Act was enacted, this law was passed
No. 07-3554 23

This wage freeze provision stated: 13

That pending the report of the commission herein provided

for and for a period of thirty days thereafter the compensation of railway employees subject to this Act for a standard

eight-hour workday shall not be reduced below the present

standard day’s wage, and for all necessary time in excess

of eight hours such employees shall be paid at a rate not

less than the pro rata rate for such standard eight-hour

workday. 

Wilson, 243 U.S. at 344 (quoting the Adamson Act of September

3, 5, 1916, 39 Stat. 721, c. 436).

after the President petitioned Congress to take legislative

action to avert a country-wide strike by all railroad employees. 243 U.S. 332, 340-43 (1917). The impetus for the

threatened strike was a demand by employees that the

completion of 100-mile tasks be reduced from a standard

ten-hour day plus extra pay for additional time, to an

eight-hour day with overtime wages at time and a half. Id.

at 340. The law passed by Congress permanently established the eight-hour workday for railroad employees,

while freezing wages for a maximum of ten months,

pending a commission’s report on the eight-hour workday’s impact on the railways. Id. at 343-46 (citing the 13

Adamson Act of September 3, 5, 1916, 39 Stat. 721, c. 436).

In Wilson, the Supreme Court, in affirming the constitutionality of this temporary wage freeze, observed that

Congress intended the wage provision to be “not permanent but temporary, leaving the employers and employees
24 No. 07-3554

free as to the subject of wages to govern their relations

by their own agreements after the specified time.” Id.

at 345-46.

Based on this precedent, the issue of overtime wages for

railroad employees is not an area where Congress has

simply neglected to act or “withdrawn from all substantial

involvement.” See Puerto Rico Dept. of Consumer Affairs, 485

U.S. at 503. Instead, the Supreme Court has found that it

was Congress’s intent that railroad employers and employees negotiate the issue of wages, including overtime

pay beyond the eight-hour mark, “free” from regulation,

following Congress’ temporary restraint on wage adjustments.

The IDOL argues that this reading of the Adamson Act

is too broad, and fails to appreciate that the law was

passed in response to a unique and particularized threat

to railway operations. While we recognize that the threatened strike was the catalyst for passing the law, the Act’s

scope now reaches beyond the dispute giving rise to its

enactment, as evidenced by the fact that the law remains

in effect nearly a century later. See Act of Oct. 11, 1996, Pub.

L. No. 104-287, Oct. 11, 1996, 110 Stat. 3394 (codifying

the Adamson Act, without substantive changes, at 49

U.S.C. § 28301). Accordingly, Congress’s intent to leave

the matter of wages subject to private negotiations, as

articulated by the Court in Wilson, particularly when

placed against the backdrop of Congress’s pervasive

regulation of the railways and its clear intent that much

of this regulation allow for no state supplement, leads us

to conclude that Illinois’s overtime regulations, as
No. 07-3554 25

Our decision is consistent with the Sixth Circuit’s opinion 14

fifteen years ago in R.J. Corman Railroad Co., which “h[e]ld that

the congressional purpose behind the Adamson Act and Congress’s longstanding decision to regulate railroads on a national

level make it reasonable to infer that Congress has impliedly

preempted the area of overtime regulation for railroad employees.” 999 F.2d at 154. Although we recognize that arguments

of congressional acquiescence are generally deserving of little

weight, see Leal-Rodriguez v. INS, 990 F.2d 939, 951 n.16 (7th Cir.

1993) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 175

n.1 (1989)), that is not exclusively the case, see United States v.

Sanapaw, 366 F.3d 492, 495 (7th Cir. 2004) (“Congress’s

thirty-year acquiescence to a definition of marijuana that

includes all Cannabis containing THC indicates that the

courts have properly interpreted the Act.”), and we thus note

that for fifteen years, the Sixth Circuit’s opinion has persisted

without meriting a response by Congress. In fact, three years

after our sister Circuit found that the Adamson Act provided

the primary basis for finding state overtime regulation of the

railways preempted, Congress, rather than clarifying or

revising the preemptive scope of the Adamson Act, instead

codified that law at 49 U.S.C. § 28301, as part of an Act “[t]o

codify without substantive change laws related to transportation

and to improve the United States Code.” Act of Oct. 11, 1996,

Pub. L. No. 104-287, Oct. 11, 1996, 110 Stat. 3388. 

Recent congressional action to clarify the preemptive sweep of

other railway laws also indicates that Congress’s seeming

acquiescence to the Sixth Circuit’s opinion was not merely the

result of an oversight on Congress’s part. In 2007, Congress

(continued...)

applied to interstate railways, are preempted.14
26 No. 07-3554

(...continued) 14

amended the Federal Railroad Safety Act’s preemption provision in order to clarify that state-law causes of action seeking

damages for injuries stemming from a violation of railway

safety or security standards were not preempted. 49 U.S.C.

§ 20106(b). This amendment was passed in response to the

Eighth Circuit’s conclusion that the Federal Railroad Safety Act

preempted state law personal injury claims related to a train

derailment in Minot, North Dakota. Lundeen v. Canadian Pacific

Railway Co., 07-1656, 2008 U.S. App. LEXIS 14210, *6-*12 (8th Cir.

July 2, 2008) (discussing this history, including that Court’s

earlier decision in Lundeen v. Canadian Pacific Railway Co., 447

F.3d 606, 615 (8th Cir. 2006)). As already noted, no similar

action followed the Sixth Circuit’s opinion.

Although we have arrived at our conclusion that federal law

preempts the applicability of Illinois’s overtime law to interstate railroads independent of Congress’s apparent

acquiescence to R.J. Corman Railroad Co., Congress’s actions

subsequent to that opinion reaffirm our decision to join our

sister Circuit in holding that field preemption is applicable

in this circumstance. 

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment for WCL and denial of summary judgment for the IDOL on the alternate ground

that federal law preempts 820 ILL. COMP. STAT. 105/4a’s applicability to interstate railroads like WCL, and

REMAND for the district court to dismiss Counts 3 and 4
No. 07-3554 27

for want of jurisdiction and issue an injunction and declaration consistent with this opinion as to Counts 1 and 2.

8-26-08