In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3377

520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD., d/b/a

THE CONGRESS PLAZA HOTEL & CONVENTION CENTER,

Plaintiff-Appellant,

v.

CATHERINE SHANNON, Director of the Illinois

Department of Labor, 

Defendant-Appellee,

and

UNITE HERE LOCAL 1,

Intervenor-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 4552—Joan Humphry Lefkow, Judge.

ARGUED FEBRUARY 19, 2008—DECIDED DECEMBER 15, 2008

Before MANION, KANNE, and TINDER, Circuit Judges.

MANION, Circuit Judge. 520 S. Michigan Avenue Associates, Ltd., doing business as The Congress Plaza Hotel &
2 No. 07-3377

Convention Center (“Congress Plaza”), sued the Director

of the Illinois Department of Labor (“Illinois”), seeking a

declaratory judgment that Illinois statute 820 ILCS 140/3.1,

the Hotel Room Attendant Amendment (“Attendant

Amendment”) to the One Day Rest in Seven Act, 820 ILCS

140/1 et. seq., is unconstitutional. Unite Here Local 1, a

labor union, intervened and together with Illinois moved

to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The district

court granted the defendant’s and intervenor’s motions to

dismiss, rejecting Congress Plaza’s arguments that the

Attendant Amendment was preempted by the National

Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., and

violated its due process and equal protection rights.

Congress Plaza appeals. Because the Attendant Amendment is preempted by the NLRA, we reverse.

I.

Congress Plaza is located on Michigan Avenue in

Chicago, Illinois, in Cook County. Congress Plaza, employs, among others, room attendants who clean guest

rooms. The Unite Here Local 1 union (“Unite Here”)

represents the approximately 130 room attendants working

at Congress Plaza, as well as several hundred room

attendants working at other Cook County hotels. As of the

date of oral argument, Congress Plaza and Unite Here’s

latest collective bargaining agreement (“CBA”) had expired

on December 31, 2002. Since June 2003, Unite Here members have engaged in a work stoppage while negotiating

a new CBA. Congress Plaza has continued to abide by the

terms of the expired CBA, requiring a work day of eight

productive hours and providing meals free of charge to its
No. 07-3377 3

Under current law, Illinois exempts seven categories of 1

employees from the mandated rest day: “(1) Part-time employees whose total work hours for one employer during a calendar

week do not exceed 20; and (2) Employees needed in case of

breakdown of machinery or equipment or other emergency

requiring the immediate services of experienced and competent

labor to prevent injury to person, damage to property, or

suspension of necessary operation; and (3) Employees employed in agriculture or coal mining; and (4) Employees

engaged in the occupation of canning and processing perishable

agricultural products, if such employees are employed by an

employer in such occupation on a seasonal basis and for not

more than 20 weeks during any calendar year or 12 month

period; and (5) Employees employed as watchmen or security

guards; and (6) Employees who are employed in a bonafide

executive, administrative, or professional capacity or in the

capacity of an outside salesman, as defined in Section 12 (a)(1)

of the federal Fair Labor Standards Act, as amended, and those

(continued...)

room attendants, along with clean and sanitary facilities.

Congress Plaza also customarily provides one half-hour

unpaid lunch break.

In the midst of Congress Plaza’s negotiations with Unite

Here, the Illinois legislature passed the Hotel Room

Attendant Amendment (“Attendant Amendment”) to the

One Day Rest in Seven Act. The One Day Rest in Seven

Act was originally enacted in July 1935 and currently

provides that “[e]very employer shall allow every employee except those specified in this Section at least

twenty-four consecutive hours of rest in every calendar

week in addition to the regular period of rest allowed at

the close of each working day.” 820 ILCS 140/2. The One 1
4 No. 07-3377

(...continued) 1

employed as supervisors as defined in Section 2(11) of the

National Labor Relations Act, as amended; and (7) Employees

who are employed as crew members of any uninspected towing

vessel, as defined by Section 2101(40) of Title 46 of the United

States Code, operating in any navigable waters in or along

the boundaries of the State of Illinois.” 820 ILCS 140/2.

“This Section does not apply to employees who monitor 2

individuals with developmental disabilities or mental illness,

or both, and who, in the course of those duties, are required

to be on call during an entire 8 hour work period; however,

those employees shall be allowed to eat a meal during the 8 hour

work period while continuing to monitor those individuals.”

820 ILCS 140/3.

Day Rest in Seven Act further provides: “Every employer

shall permit its employees who are to work for 7 1⁄2 continuous hours or longer, except those specified in this Section,

at least 20 minutes for a meal period beginning no later

than 5 hours after the start of the work period.” 820 ILCS 2

140/3. The section mandating a 20-minute meal period

“does not apply to employees for whom meal periods are

established through the collective bargaining process.” Id.

The Attendant Amendment to the One Day Rest in

Seven Act provides, in full:

§ 3.1. Hotel room attendants.

(a) As used in this Section, “hotel room attendant”

means a person who cleans or puts in order guest

rooms in a hotel or other establishment licensed

for transient occupancy.
No. 07-3377 5

Only one county out of the 102 counties in Illinois—Cook 3

County—has a population of more than three million people.

As of the 2000 census, Cook County’s population was

5,376,741. See http://illinoisgis.ito.state.il.us/census2000/county_

census.asp?ct=P0010001 (last visited August 15, 2008). DuPage

County has the next highest population base, but as of 2000,

not even one million people resided there. Id.

(b) This Section applies only to hotels and other

establishments licensed for transient occupancy

that are located in a county with a population

greater than 3,000,000.3

(c) Notwithstanding any other provision of law,

every hotel room attendant shall receive a minimum of two 15-minute paid rest breaks and one

30-minute meal period in each workday on which

the hotel room attendant works at least 7 hours.

An employer may not require any hotel room

attendant to work during a break period.

(d) Every employer of hotel room attendants shall

make available at all times a room on the employer’s premises with adequate seating and

tables for the purpose of allowing hotel room

attendants to enjoy break periods in a clean and

comfortable environment. The room shall have

clean drinking water provided without charge.

(e) Each employer of hotel room attendants shall

keep a complete and accurate record of the break

periods of its hotel room attendants.
6 No. 07-3377

(f) An employer who violates this Section shall pay

to the hotel room attendant 3 times the hotel room

attendant’s regular hourly rate of pay for each

workday during which the required breaks were

not provided.

(g) It is unlawful for any employer or an employer’s agent or representative to take any action

against any person in retaliation for the exercise

of rights under this Section. In any civil proceeding brought under this subsection (f), if the

plaintiff establishes that he or she was employed

by the defendant, exercised rights under this

Section, or alleged in good faith that the defendant

was not complying with this Section, and was

thereafter terminated, demoted, or otherwise

penalized by the defendant, then a rebuttable

presumption shall arise that the defendant’s action

was taken in retaliation for the exercise of rights

established by this Section. To rebut the presumption, the defendant must prove that the sole

reason for the termination, demotion, or penalty

was a legitimate business reason.

(h) In addition to the remedies provided in Sections 6 and 7, a person claiming violation of this

Section shall be entitled to all remedies available

under law or in equity, including but not limited to

damages, back pay, reinstatement, or injunctive

relief. Any person terminated in violation of this

Section shall recover treble his or her lost normal

daily compensation and fringe benefits, together
No. 07-3377 7

with interest thereon, and any consequential

damages suffered by the employee. The court

shall award reasonable attorney’s fees and costs to

a prevailing plaintiff in an enforcement action

under this Section.

820 ILCS 140/3.1

After the Illinois legislature passed the Attendant

Amendment and the governor signed it into law, the

Illinois Hotel and Lodging Association filed a declaratory

judgment action in state court against the Director of the

Illinois Department of Labor, seeking to have the Attendant Amendment declared unconstitutional. The state

trial court granted the Illinois Department of Labor summary judgment, concluding that the Attendant Amendment was not preempted, and that the Attendant Amendment did not violate the Illinois Constitution’s prohibition

on special legislation or the plaintiff’s right to equal

protection. Ill. Hotel & Lodging Ass’n v. Ludwig, No.

05CH13796, *10 (Circuit Court of Cook County, Illinois).

The Illinois appellate court affirmed. See Ill. Hotel & Lodging

Ass’n v. Ludwig, 869 N.E.2d 846 (Ill. App. Ct. 1st Dist. 2007).

The Supreme Court of Illinois declined to hear the Illinois

Hotel and Lodging Association’s appeal. Ill. Hotel &

Lodging Ass’n v. Ludwig, 875 N.E.2d 1111 (Ill. 2007).

While the Illinois Hotel and Lodging Association’s case

was making its way through the Illinois state court system,

Congress Plaza, which is not a member of that trade

organization, filed its own challenge to the Attendant

Amendment in federal court. Congress Plaza argued that

the Attendant Amendment is preempted by the National
8 No. 07-3377

Congress Plaza does not pursue its § 301 LMRA preemption 4

claim on appeal. Moreover, while Congress Plaza states in its

Statement of the Case that it “also claims the amendment

violates the special legislation provision of the Illinois Constitution and constitutes an arbitrary legislative classification,”

Appellant Br. at 2, it does not present these claims in its Issues

(continued...)

Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., and

section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185(a). Congress Plaza also alleged

that the Attendant Amendment violated its due process

and equal protection rights, as well as provisions of the

Illinois Constitution. Congress Plaza sought a permanent

injunction prohibiting enforcement of the Attendant

Amendment.

Illinois and Unite Here filed separate motions to

dismiss under Fed. R. Civ. P. 12(b)(6). Illinois also filed a

motion to dismiss under Fed. R. Civ. P. 12(b)(1), claiming

Eleventh Amendment immunity from the state claims.

The district court granted the defendants’ motions to

dismiss Congress Plaza’s preemption and equal protection

and due process claims. 520 S. Michigan Ave. Assoc., Ltd. v.

Shannon, 2007 WL 2728757 at *8-11 (N.D. Ill. 2007). The

district court then declined jurisdiction over Congress

Plaza’s state law claims. Id. at *11. Congress Plaza appeals.

II.

On appeal, Congress Plaza argues that the NLRA

preempts the Attendant Amendment. Whether the NLRA 4
No. 07-3377 9

(...continued) 4

Presented For Review. Congress Plaza also does not make any

argument in support of its state law claims. Accordingly,

Congress Plaza has waived any argument based on state law.

See Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1025 n.6

(7th Cir. 2003) (holding that when a party presents no argument in its brief with respect to a particular claim, any arguments with respect to that claim are waived).

When the question of federal preemption of state law is at 5

issue, state and federal courts, perhaps not surprisingly, may

reach starkly divergent views on the United States Constitution,

as illustrated most clearly in Geier v. American Honda Motor Co.,

529 U.S. 861 (2000). In Geier, the Supreme Court held that a state

tort claim against Honda for failing to provide a driver’s side

air bag was preempted by a federal regulation. Prior to the

Supreme Court’s ruling, every federal circuit which considered

the issue had held that the state law was preempted, while

state courts uniformly held to the contrary—that federal law

did not preempt state law. Geier, 529 U.S. at 866.

preempts the Attendant Amendment is a pure legal

question and therefore we review the district court’s

decision de novo. See Cannon v. Edgar, 33 F.3d 880, 883 (7th

Cir. 1994). Moreover, our de novo review is not limited by

the state court’s decision in Ill. Hotel & Lodging Ass’n v.

Ludwig, 869 N.E.2d 846, holding that the Attendant

Amendment is not preempted by the NLRA. We “owe[ ] no

deference to state-court interpretation of the United States

Constitution.” TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d

1175, 1181 (10th Cir. 2007) (citing Ace Cycle World, Inc. v.

Am. Honda Motor Co., 788 F.2d 1225, 1228 (7th Cir. 1986)).5
10 No. 07-3377

Our review of preemption begins with the Constitution’s

Supremacy Clause. See Cannon, 33 F.3d at 883. The Supremacy Clause provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. Thus, under Article VI of the

Constitution, federal law is the “supreme Law of the

Land,” and “it preempts state laws that ‘interfere with,

or are contrary to, federal law.’ ” Boomer v. AT & T Corp.,

309 F.3d 404, 417 (7th Cir. 2002) (quoting Hillsborough

County v. Automated Medical Laboratories, Inc., 471 U.S.

707, 712 (1985)).

In Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724

(1985), the Supreme Court summarized the task courts

face when confronted with the issue of preemption, stating:

In deciding whether a federal law pre-empts a state

statute, our task is to ascertain Congress’ intent in

enacting the federal statute at issue. Pre-emption may

be either express or implied, and is compelled whether

Congress’ command is explicitly stated in the

statute’s language or implicitly contained in its structure and purpose.

Id. at 738 (internal quotations omitted).
No. 07-3377 11

A third preemption doctrine, based on § 301 of the LMRA, 6

“pre-empts state law only insofar as resolution of the state-law

claim requires the interpretation of a collective-bargaining

agreement . . . . ” Lingle v. Norge Div. of Magic Chef, 486 U.S. 399,

410 n.8 (1988). Congress Plaza argued to the district court that

§ 301 preempts the Attendant Amendment, but as noted

above, it does not pursue that argument on appeal.

As the Supreme Court recently explained in Chambers of

Commerce v. Brown, 128 S.Ct. 2408 (2008), “the NLRA itself

contains no express preemption provision.” Id. at 2412.

Thus, the issue facing us is one of implied preemption.

With implied preemption, a state law should be sustained “unless it conflicts with federal law or would

frustrate the federal scheme, or unless the courts discern

from the totality of the circumstances that Congress

sought to occupy the field to the exclusion of the States.”

Malone v. White Motor Corp., 435 U.S. 497, 504 (1978).

Further, in the context of the NLRA, a state law is preempted by implication if it conflicts with the underlying

goals and policies of the NLRA or stands “as an obstacle to

the accomplishment and execution of the full purposes

and objectives” of Congress. Livadas v. Bradshaw, 512 U.S.

107, 120 (1994) (internal quotation omitted).

From these general preemption principles, the Supreme

Court has developed two relevant NLRA preemption

doctrines: Garmon preemption and Machinists preemption.

See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236

(1959); Machinists v. Wisconsin Employment Relations

Comm’n, 427 U.S. 132 (1976). The first doctrine, Garmon 6

preemption, seeks to prevent conflicts between state and
12 No. 07-3377

local regulation and Congress’s integrated scheme of

regulation embodied in Sections 7 and 8 of the NLRA.

Garmon, 359 U.S. at 244-45. Garmon preemption further

seeks to protect the NLRB’s primary jurisdiction in cases

involving sections 7 and 8 of the NLRA. Id. See also Livadas

v. Bradshaw, 512 U.S. 107, 117, n.11 (1994).

The second relevant NLRA preemption doctrine is

Machinists preemption. See Machinists v. Wis. Employment

Relations Comm’n, 427 U.S. 132 (1976). As the Supreme

Court explained in Metropolitan Life, 471 U.S. 724, this

“second pre-emption doctrine protects against state

interference with policies implicated by the structure of

the Act itself, by pre-empting state law and state causes

of action concerning conduct that Congress intended to

be unregulated.” Id. at 749. This preemption doctrine

governs “preemption questions that arose concerning

activity that was neither arguably protected against

employer interference by §§ 7 and 8(a)(1) of the NLRA, nor

arguably prohibited as an unfair labor practice by § 8(b) of

that Act. 29 U.S.C. § 157, 158(a)(1) and (b).” Id. Thus, in

Machinists, the Court held “that a State may not penalize

a concerted refusal to work overtime that was neither

prohibited nor protected under the NLRA, for ‘Congress

intended that the conduct involved be unregulated

because [it] left [the conduct]’ to be controlled by the free

play of economic forces.” Metropolitan Life, 471 U.S. at 750

(quoting Machinists, 427 U.S. at 140). While initially,

Machinists preemption sought “to determine whether

certain weapons of bargaining neither protected by § 7 nor

forbidden by § 8(b) could be subject to state regulation,

[i]t has been used more recently to determine the validity
No. 07-3377 13

of state rules of general application that affect the right

to bargain or to self-organization.” Metropolitan Life, 471

U.S. at 749 n.27 (internal citations omitted). As the Supreme Court recently explained in Brown, “Machinists preemption is based on the premise that Congress struck a

balance of protection, prohibition, and laissez-faire in

respect to union organization, collective bargaining, and

labor disputes.” Brown, 128 S.Ct. at 2412 (internal quotations omitted). We also elaborated on the concept of

Machinists preemption in Cannon, explaining that this

doctrine “prohibits state and municipal regulations of

areas that Congress left to the free play of economic

forces.” Cannon, 33 F.3d at 885 (internal quotations and

citations omitted).

Congress Plaza argues that the Attendant Amendment

is preempted by both Machinists preemption and Garmon

preemption. At oral argument, though, in response to our

query, Congress Plaza acknowledged that it believes

Machinists preemption the stronger of the two arguments.

We agree. See Metropolitan Life, 471 U.S. at 751 (considering

whether a state law establishing minimal mental health

benefits in insurance plans was preempted by the NLRA

and stating that “[a]ll parties correctly understand this

case to involve Machinists pre-emption”). Therefore, we

begin with Congress Plaza’s argument that Machinists

preempts the Attendant Amendment.

Congress Plaza argues Machinists preempts the Attendant Amendment because the Attendant Amendment

“intrudes on the parties’ collective bargaining process” and

alters the “free play of economic forces.” In response,
14 No. 07-3377

Illinois and Unite Here (hereinafter collectively “appellees”) argue that the Attendant Amendment is a minimum labor standard and as such is not preempted by

the NLRA, citing Metropolitan Life, 471 U.S. 724 and Fort

Halifax, 482 U.S.1.

In Metropolitan Life, 471 U.S. 724, two insurance companies (“appellants”), which issued group-health insurance

policies in Massachusetts, argued that a Massachusetts

statute requiring “any general health-insurance policy

that provides hospital and surgical coverage, or any

benefit plan that has such coverage, to provide as well a

certain minimum of mental-health protection,” was

preempted by ERISA and the NLRA. Id. at 730. The

appellants in Metropolitan Life argued that “[b]ecause

welfare benefits are a mandatory subject of bargaining

under the labor law, . . . the NLRA pre-empts any state

attempt to impose minimum-benefit terms on the parties.”

Id. at 751-52.

The Supreme Court rejected this argument, concluding

that “[t]he evil Congress was addressing [with the

NLRA] . . . was entirely unrelated to local or federal

regulation establishing minimum terms of employment.”

Id. at 754. Accordingly, the Court held that “[n]o incompatibility exists, therefore, between federal rules designed to

restore the equality of bargaining power, and state or

federal legislation that imposes minimal substantive

requirements on contract terms negotiated between

parties to labor agreements, at least so long as the purpose of the state legislation is not incompatible with

these general goals of the NLRA.” Id. at 754-55. The Court
No. 07-3377 15

further expounded on the meaning of minimum state

labor standards, stating they “affect union and nonunion

employees equally, and neither encourage nor discourage the collective-bargaining processes that are the

subject of the NLRA. Nor do they have any but the most

indirect effect on the right of self-organization established

in the Act.” Id. at 755. “Most significantly,” continued the

Court, there was “no suggestion in the legislative history

of the [NLRA] that Congress intended to disturb the

myriad state laws then in existence that set minimum

labor standards, but were unrelated in any way to the

processes of bargaining or self-organization.” Id. at 756.

Rather, the Court “believe[d] that Congress developed

the framework for self-organization and collective bargaining of the NLRA within the larger body of state law

promoting public health and safety.” Id. The Supreme

Court added:

Federal labor law in this sense is interstitial, supplementing state law where compatible, and supplanting

it only when it prevents the accomplishment of the

purpose of the federal Act. Thus the Court has recognized that it cannot declare pre-empted all local

regulation that touches or concerns in any way the

complex interrelationship between employees, employers, and unions; obviously, much of this is left to the

States. When a state law establishes a minimal employment standard not inconsistent with the general

legislative goals of the NLRA, it conflicts with none

of the purposes of the Act.

Id. at 756-57 (internal quotation omitted).
16 No. 07-3377

The Supreme Court then applied the aforementioned

principles to the case at hand and held:

Massachusetts’ mandated-benefit law is an insurance

regulation designed to implement the Commonwealth’s policy on mental-health care, and as such is a

valid and unexceptional exercise of the Commonwealth’s police power. It was designed in part to

ensure that the less wealthy residents of the Commonwealth would be provided adequate mental-health

treatment should they require it. Though [the insurance statute], like many laws affecting terms of employment, potentially limits an employee’s right to

choose one thing by requiring that he be provided with

something else, it does not limit the rights of selforganization or collective bargaining protected by the

NLRA, and is not pre-empted by the Act.

Id. at 758. Accordingly, the Supreme Court held that

Massachusetts’ mandated-benefit law is not preempted

by the NLRA. Id.

Just two years later, in Fort Halifax Packing Co. v. Coyne,

482 U.S. 1 (1987), the Supreme Court again addressed the

issue of the relationship between “minimum labor standards” and preemption. In Fort Halifax, an employer

challenged a Maine statute requiring employers to

provide severance pay to certain employees. Id. at 5.

Employees qualified if their employers laid off 100 or

more employees, or relocated more than 100 miles away,

so long as the employee had worked at the plant at least

three years. Id. Severance pay was not required if the

employee accepted employment at the new plant location
No. 07-3377 17

or if a contract with the employee addressed the issue

of severance pay. Id. Fort Halifax argued the state law was

preempted because, while it did not directly regulate

economic activity, it indirectly undercut the collective

bargaining process. Id. at 20. The Supreme Court first

noted that it had rejected in Metropolitan Life the argument “that a State’s establishment of minimum substantive labor standards undercuts collective bargaining . . . .”

Id. at 20. The Court then explained its holding in Metropolitan Life, noting, among other things “that the NLRA is

concerned with ensuring an equitable bargaining

process, not with the substantive terms that may emerge

from such bargaining.” Id.

After the Court in Fort Halifax further explained Metropolitan Life, the Court stated that

[i]t is true that the Maine statute gives employees

something for which they otherwise might have to

bargain. That is true, however, with regard to any

state law that substantively regulates employment

conditions. Both employers and employees come to

the bargaining table with rights under state law that

form a “backdrop” for their negotiations.

Id. at 21. The Court rejected the claim of preemption,

stating “the mere fact that a state statute pertains to

matters over which the parties are free to bargain cannot

support a claim of pre-emption, for there is nothing in the

NLRA . . . which expressly forecloses all state regulatory

powers with respect to those issues . . . that may be the

subject of collective bargaining.” Id. at 21-22 (internal

quotation omitted).
18 No. 07-3377

The Supreme Court in Fort Halifax concluded that the

Maine statute “is not pre-empted by the NLRA, since its

establishment of a minimum labor standard does not

impermissibly intrude upon the collective-bargaining

process.” Id. at 23.

The Supreme Court’s decisions in Metropolitan Life and

Fort Halifax stand for several propositions. First, the NLRA

is concerned primarily with establishing an equitable

process for bargaining, and not the substantive terms of

bargaining. Fort Halifax, 482 U.S. at 20; Metropolitan Life,

471 U.S. at 753-54. Second, a state law is not preempted by

the NLRA merely because it regulates a mandatory

subject of bargaining. Fort Halifax, 482 U.S. at 21; Metropolitan Life, 471 U.S. at 757. And third, the NLRA does

not preempt a state law which “establishes a minimum

labor standard that does not intrude upon the collectivebargaining process.” Fort Halifax, 482 U.S. at 7; see also

Metropolitan Life, 471 U.S. at 754-55 (“No incompatibility

exists, therefore, because federal rules designed to

restore the equality of bargaining power, and state or

federal legislation that imposes minimal substantive

requirements on contract terms negotiated between

parties to labor agreements, at least so long as the purpose

of the state legislation is not incompatible with these

general goals of the NLRA.”).

Against this backdrop, then, we return to the parties’

arguments. As noted above, Congress Plaza claims that

the Attendant Amendment is preempted by Machinists

because it “intrudes on the parties’ collective bargaining

process” and alters the “free play of economic forces.” In
No. 07-3377 19

response, based on Metropolitan Life and Fort Halifax,

appellees claim that the Attendant Amendment is a

minimum labor standard and is thus not preempted.

Congress Plaza rejects this characterization of the Attendant Amendment (as a minimum labor standard), relying

on this court’s decision in Cannon.

In Cannon, a gravediggers’ union, a union member, and

union leaders sued the State of Illinois, claiming that the

Burial Rights Act was preempted by the NLRA and

therefore violated the Supremacy Clause of the Constitution. Cannon, 33 F.3d at 881. The Burial Rights Act required cemeteries’ management and labor unions to agree

to establish a pool of workers who would provide religiously required interments during a labor dispute. Id. at

882. Additionally, the Burial Rights Act provided that

“[t]he failure of a cemetery authority or a labor union to

negotiate in good faith to establish a pool of workers as

provided [in the Act] constitutes a willful violation of

this Section,” in which case the court shall “grant appropriate relief, including . . . an award of attorney’s fees and

the imposition of a fine not to exceed $1,000 for each

interment which is found to have been delayed in violation of this Section.” Id. at 882 n.1 (quoting 820 ILCS

135/2.1). After setting forth the governing law, this court

held that the Burial Rights Act was preempted by both

Garmon preemption and Machinists preemption. Id. at 885.

We explained that “the Burial Rights Act is a direct intrusion by the state into the collective bargaining process.

The Burial Rights Act purports to regulate a particular

term of the bargaining process—that of a pool of workers—and, further requires the parties to actually agree on
20 No. 07-3377

a particular pool of workers or face sanctions at the

hands of the Illinois courts.” Id. at 884. The court in Cannon

held “the NLRA does not tolerate this kind of invasion by

a state into the collective bargaining process. . . .” Id.

Cannon further held that the Burial Rights Act was preempted by Machinists, because it “intrude[d] on the

collective bargaining process in a variety of ways; it orders

the parties to negotiate as to a specific substantive condition—that of a pool of workers to perform interments

during labor disputes. And, more invasive, the Burial

Rights Act orders the parties to agree on a pool of workers,

or face sanctions for a failure to do so.” Id. at 885.

Appellees argue in response that Cannon is distinguishable because the statute at issue in Cannon, the Burial

Rights Act,required the parties to bargain collectively over

the issue of a pool of workers, whereas the Attendant

Amendment does not mandate bargaining, but instead

establishes a minimum labor standard which does not

interfere with the collective bargaining process. However,

this is a distinction without a difference. As the Supreme

Court recently explained, “[i]n NLRA pre-emption cases,

judicial concern has necessarily focused on the nature of

the activities which the States have sought to regulate,

rather than on the method of regulation adopted.” Brown,

128 S.Ct. at 2414 (internal quotations omitted). What a

state cannot do directly, it also cannot do indirectly. Id.

at 2415.

The question then is whether the Attendant Amendment

establishes a minimum labor standard that does not

interfere with collective bargaining. If so, then the regula-
No. 07-3377 21

tion (direct or indirect) is permissible. To address whether

the Attendant Amendment establishes a minimum

labor standard, we turn again to the Supreme Court.

Unfortunately, though, the Supreme Court’s guidance is

sparse. In Metropolitan Life, the Court merely noted that

minimum labor standards “affect union and nonunion

employees equally, and neither encourage nor discourage the collective-bargaining processes that are the

subject of the NLRA.” 471 U.S. at 755. The Court added

that minimum labor standards have only “the most

indirect effect on the right of self-organization established in the Act . . . [and] are not laws designed to encourage or discourage employees in the promotion of

their interests collectively . . . .” Id. (quoting Barrentine, 450

U.S. at 739 (emphasis in the original)).

While the Attendant Amendment facially affects union

and nonunion employees equally, for several reasons

we conclude that it does not constitute a genuine minimum labor standard. First, unlike the statutes at issue in

Metropolitan Life and Fort Halifax, the Attendant Amendment is not a statute of general application. In Metropolitan

Life, the state law at issue did not regulate employment,

but rather regulated insurance policies and it applied to

all “general health-insurance polic[ies]” and “any benefit

plans.” Metropolitan Life, 471 U.S. at 730. Significantly, in

Metropolitan Life, the Court characterized the law as one

of general application, stating: “Congress apparently did

not consider the question of whether state laws of general

application affecting terms of collective-bargaining agreements subject to mandatory bargaining were to be preempted.” Id. at 753 (emphasis added). See also Livadas, 512
22 No. 07-3377

U.S. at 123 n.17 (stating that “Congress is understood to

have legislated against a backdrop of generally applicable

[state] labor standards”). In Fort Halifax, the state’s severance statute applied to all employers who laid off 100

or more employees (or relocated 100 or more miles away).

Fort Halifax, 482 U.S. at 5. While not universal in application (since it only applied to larger layoffs or distant

relocations), the statute still had a very broad application.

See, e.g., Carpenters Local Union No. 26 v. U.S. Fidelity &

Guar. Co., 215 F.3d 136, 145 (1st Cir. 2000) (stating, in the

context of ERISA preemption, that a law of general application “applies to a sufficiently broad, sufficiently

generalized universe of situations”).

Other circuits likewise characterize “minimum labor

standards” as laws of general application. See Chamber of

Commerce v. Bragdon, 64 F.3d 497, 503 (9th Cir. 1995) (“This

is also not the type of regulation of general application

that assures that certain coverage provisions be included

in all health insurance contracts, such as in Metropolitan

Life; nor is it the type of regulation seeking to alleviate a

particular hardship such as plant closings that affect the

employees and the community.”); Barnes v. Stone Container

Corp., 942 F.2d 689, 692 (9th Cir. 1991) (“The Supreme

Court has upheld state statutes which, although they

affect employees covered by collective bargaining agreements, are statutes of general applicability and do not

primarily ‘regulate relations between employees, their

union, and their employer.’ ”) (emphasis in original)

(quoting New York Tel. Co. v. New York State Dep’t. of Labor,

440 U.S. 519, 533 (1979)); Hull v. Dutton, 935 F.2d 1194, 1198

(11th Cir. 1991) (holding that Alabama’s longevity pay
No. 07-3377 23

The statute by its terms applies to any county with a popula- 7

tion of three million or more, but as noted above, out of

102 counties, only Cook county has the requisite number of

residents.

statute is not a “minimum labor standard” in part because

the “statute applies only to its own employees and not

to its citizens generally”). The Attendant Amendment,

however, does not have the general applicability seen

in these cases. Rather, it applies to only one occupation

(room attendants), in one industry (the hotel industry),

in one county (Cook county). These limitations distin- 7

guish the Attendant Amendment materially from the

statutes of general application considered in Metropolitan Life and Fort Halifax.

The appellees argue that minimum labor standards

that apply only to particular occupations, industries or

categories of employers have survived preemption challenge, citing a series of cases. See Appellee Br. at 20-21

citing among others, Fort Halifax, 482 U.S. at 5, 20 (plant

closing law that applied to layoffs with 100 or more

employees not preempted); Dillingham v. Sonoma County,

190 F.3d 1034, 1041 (9th Cir. 1999) (minimum standards

that applied only to apprentices in skilled construction

trades not preempted); Viceroy Gold Corp. v. Aubry, 75

F.3d 482, 485, 490 (9th Cir. 1996) (overtime regulation

applying only to miners not preempted); Nat. Broadcasting

Corp. v. Bradshaw, 70 F.3d 69, 71-72 (9th Cir. 1995) (California regulation applying only to broadcast employees not

preempted); and Wash. Serv. Contractors Coalition v.
24 No. 07-3377

Appellees noted parenthetically that Washington Serv. Contrac- 8

tors, 54 F.3d 811, held a “local ordinance applying only to

janitorial contractors not preempted.” Appellee Br. at 21.

Contrary to Appellees’ assertion, however, the statute at issue

in Washington Serv. Contractors, 54 F.3d 811 was not limited

to janitorial contractors, but applied to persons who performed

“food, janitorial, maintenance, or nonprofessional health care

services.” Id. at 814.

District of Columbia, 54 F.3d 811, 819 (D.C. Cir. 1995). The 8

appellees further rely on the Ninth Circuit’s decision

in Associated Builders & Contractors of So. Cal., Inc. v. Nunn,

356 F.3d 979, 990 (9th Cir. 2004), wherein the court

stated that “state substantive labor standards, including

minimum wages, are not invalid simply because they

apply to particular trades, professions, or job classifications rather than the entire labor market.”

Unlike these cases, though, the Attendant Amendment

is not just limited by trade—it is also limited by location;

the Attendant Amendment is a state statute that applies

only in one county in Illinois—Cook county. That fact

distinguishes this case from the series of cases cited by

Appellees, including Nunn; the Attendant Amendment

is not just limited to a particular trade, profession, or job

classification; it is also a state statute limited to only one

of Illinois’ 102 counties.

Moreover, we find the Ninth Circuit’s decision in

Bragdon better reasoned. In Bragdon, 64 F.3d 497, the

Chamber of Commerce sued a California county and

county officials, challenging an ordinance that required
No. 07-3377 25

employers to pay “prevailing wages” to employees on

private construction projects costing over $500,000. Id. at

498. The Ordinance stated that its purpose was “to promote safe construction, minimize the risk of accidents on

industrial projects, prevent erosion of the wage scale,

and alleviate the burden on the County’s health and

welfare services and law enforcement, caused by low-paid

workers.” Id. The “prevailing wages” were defined by

the California Department of Industrial Relations, which

determined the “prevailing wage” “by reference to established collective bargaining agreements within the locality.” Id. at 498-99. More specifically, “[t]he Director

uses formulas that average the wages and benefits for

each craft pursuant to collective-bargaining agreements

applicable in each labor market.” Id. at 502. Under the

Ordinance, construction companies were required to

agree to pay the state-determined prevailing wage

before the County would issue a building permit. Id. at 499.

The Chamber of Commerce argued that the Ordinance

was preempted by the NLRA. Id. The county responded

that the prevailing wage ordinance was a “minimum

labor standard” and as such was not preempted. After

explaining general preemption principles, the Machinists

doctrine, and summarizing the Supreme Court’s decisions

in Metropolitan Life and Fort Halifax, the Ninth Circuit

held that the Ordinance establishing the prevailing wage

for construction workers was preempted by Machinists.

Id. at 504. In so holding, the Ninth Circuit concluded that

the ordinance was “also very different from a minimum

wage law, applicable to all employees, guaranteeing a minimum hourly rate.” Bragdon, 64 F.3d at 502 (emphasis
26 No. 07-3377

While the panel in Nunn expressed disagreement with some 9

aspects of its Ninth Circuit colleagues’ earlier decision in

Bragdon, see Nunn, 356 F.3d at 990, there were two distinguishing

features in Bragdon that separated it from Nunn. As Nunn

recognized, “Congress authorized states to establish apprenticeship standards and to regulate the conditions governing the

implementation of apprenticeship programs, whether the

(continued...)

added). The Bragdon court also stressed that the

Ordinance at issue was “much more invasive . . . than

the isolated statutory provisions of general application

approved in Metropolitan Life and Fort Halifax.” Id. The

court in Bragdon reasoned:

This is also not the type of regulation of general application that assures that certain coverage provisions

be included in all health insurance contracts, such as

in Metropolitan Life; nor is it the type of regulation

seeking to alleviate a particular hardship such as

plant closings that affect the employees and the community. This Ordinance, by contrast, sets detailed

minimum wage and benefit packages, distinct for

each craft involved in certain limited construction

projects. This minimum varies from time-to-time as

new averages are calculated. The district court noted

that unlike the law upheld in Metropolitan Life, the

Ordinance is more properly characterized as an example of an interest group deal in public-interest

clothing.

Id. at 503 (internal quotation omitted).9
No. 07-3377 27

(...continued) 9

apprentices were working on public or private projects,” and

this “differentiates California’s apprenticeship regulations

from the Contra Costa County ordinance at issue in Bragdon.”

Nunn, 356 F.3d at 990-91. The court in Nunn further distinguished Bragdon, reasoning “[s]econd and equally important,

unlike in the case of the Contra Costa County ordinance at issue

in Bragdon, here contractors may completely avoid the applicability of the California apprenticeship regulations” by not

hiring apprentices. Id. at 991.

Like the Bragdon court, we find the lack of general

application in the Attendant Amendment significant. In

exempting “minimum labor standards” from the preemptive force of the NLRA, Metropolitan Life and Fort Halifax

both involved laws of general application and the

Supreme Court has characterized “minimum labor standards” as laws of general application. Metropolitan Life,

471 U.S. at 753; Fort Halifax, 482 U.S. at 5. The Attendant

Amendment’s narrow scope distinguishes it from minimum labor standards which are not subject to preemption, and places the Attendant Amendment in the “zone

protected and reserved for market freedom.” Brown, 128

S.Ct. at 2412 (quoting Building & Constr. Trades Council v.

Ass’n. Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218,

227 (1993)).

The Attendant Amendment’s narrow scope of application also serves as a disincentive to collective bargaining.

As the Supreme Court explained in Metropolitan Life, a

minimum labor standard should “neither encourage nor

discourage the collective-bargaining process that are the
28 No. 07-3377

Unite Here lobbied for the Attendant Amendment. The 10

appellees argue its lobbying is irrelevant, because “[f]ederal

preemption doctrine evaluates what legislation does, not why

legislators voted for it or what political coalitions led to its

enactment.” Appellee Br. at 27 (quoting Northern Ill. Chapter of

Assoc. Builders & Contractors v. Lavin, 431 F.3d 1004, 1007 (7th Cir.

2005)). We agree that Unite Here’s lobbying is irrelevant,

but what is relevant is that the law discourages collective

bargaining.

The legislative debate shows that several state legislators 11

recognized this incentive. See, e.g., IL S. Tran. 2005 Reg. Sess. No.

44, Senator Roskam (“These folks, if they want to win fair and

square, by golly go negotiate. Put it on the table and negotiate.

Look one another in the eye and bargain. Say we’re not going

to do this job unless you give us these fifteen minutes or twenty

minutes or have our smoke breaks or take a diet Coke break or

whatever you want to do, but we ought not do this.”); IL S. Tran.

2005 Reg. Sess. No. 45, Senator Pankau (“The main item in

this particular bill is this is a bargainable issue. It has been

bargained before. It has been presented many times before

this particular labor union. So, why are—if they can’t get it

in their own negotiations, why are they coming down here to

us to put it into law?”).

subject of the NLRA.” 471 U.S. at 755. Yet by passing a

statute with such a narrow focus (one occupation, in one

industry, in one county), there seems to be a disincentive

to collective bargaining and instead encouragement for

employers or unions to focus on lobbying at the state 10

capital instead of negotiating at the bargaining table.11

The Ninth Circuit explained this phenomenon in

Bragdon, 64 F.3d 497 (9th Cir. 1995). As noted above, in
No. 07-3377 29

Bragdon, the Ninth Circuit struck an Ordinance establishing a prevailing wage for certain private construction

projects. Id. at 498. In striking the Ordinance, the Ninth

Circuit noted that the same or similar justifications for

the exercise of police power in one business or industry

“could be advanced for most any business or industry.” Id.

at 504. The Ninth Circuit recognized the impact, stating:

A precedent allowing this interference with the free

play of economic forces could be easily applied to

other businesses or industries in establishing

particular minimum wage and benefit packages.

This could redirect efforts of employees not to

bargain with employers, but instead, to seek to set

minimum wage and benefit packages with political

bodies. This could invoke defensive action by employers seeking to obtain caps on wages in various

businesses or industries. This could be justified as an

exercise of police power on community welfare

grounds of lowering construction costs to attract

business to the area or lowering costs to consumers

so as to make products or services more available to

the general public. This substitutes the free-play of

political forces for the free play of economic forces

that was intended by the NLRA.

Id. at 504.

Additionally, while on its face this law applies to union

and non-union employees equally, the statute’s narrow

application equates more to a benefit for a bargaining unit

than an individual protection. While not all room attendants in Cook county are unionized, by regulating only one
30 No. 07-3377

county the state makes it possible to target union-heavy

counties (or union-light counties), and thus reward (or

punish) union activity. Illinois’ approach further allows

non-union employees to benefit from the bargaining of the

union which took place, not at the bargaining table, but at

the legislature. In Bragdon, the Ninth Circuit held that

Machinists preempted an Ordinance which “targets particular workers in a particular industry and is developed

and revised from the bargaining of others, affects the

bargaining process in a way that is incompatible with

the general goals of the NLRA.” Bragdon, 64 F.3d at 504.

The One Day Rest in Seven Act further shows that the

Attendant Amendment is not a true minimum labor

standard. As noted above, prior to passage of the Attendant Amendment, the One Day Rest in Seven Act already

established a minimum labor standard for breaks, requiring employers to provide one unpaid twenty-minute

meal break, although this mandate did “not apply to

employees for whom meal periods are established

through the collective bargaining process.” 820 ILCS 140/3.

That minimum labor standard still applies in Illinois, but

the Attendant Amendment sets a higher standard. Illinois

argues that there is no reason that it cannot increase the

minimum, but that is not what Illinois did. Rather, Illinois

retained its minimum labor standard and crafted a

higher standard for a specific occupation, in a specific

industry, in a specific county. In explaining minimum

labor standards, the Supreme Court spoke of the laws as

establishing a “backdrop” for their negotiations. Fort

Halifax, 482 U.S. at 21. The One Day Rest in Seven Act

established such a state-wide backdrop, while the Atten-
No. 07-3377 31

dant Amendment overrode the local bargaining process

by imposing confining requirements on one occupation,

in one industry, in one county.

Moreover, the One Day Rest in Seven Act exempts from

coverage employees covered by a collective bargaining

agreement that provides for break rooms and meal

breaks. The Attendant Amendment does not contain a

similar exemption. As the Supreme Court explained in

Fort Halifax, “[t]he fact that the parties are free to devise

their own severance pay arrangements . . . strengthens

the case that the statute works no intrusion on collective bargaining [because the State] has sought to balance

the desirability of a particular substantive labor standard

against the right of self-determination regarding the terms

and conditions of employment.” Fort Halifax, 482 U.S. at 22.

While a “statute that permits no collective bargaining on a

subject [may] escape NLRA preemption,” id., when the

parties are not free to devise their own arrangement

preemption applies because the statute intrudes on the

collective bargaining process. That is especially true

where a similar statute of general applicability allows for

such bargaining, but the narrowly targeted law does not.

Furthermore, the Attendant Amendment does not

qualify as a “minimum” labor standard. “Minimum,” as

used by the Supreme Court, implies a low threshold. In

fact, in Metropolitan Life, the Supreme Court spoke of a

state or federal legislation that imposes “minimal substantive requirements on contract terms negotiated between parties to labor agreements.” 471 U.S. at 754. The

Supreme Court also spoke of minimum labor standards
32 No. 07-3377

Specifically, 820 ILCS 140/31.(g) provides: “It is unlawful for 12

any employer or an employer’s agent or representative to take

any action against any person in retaliation for the exercise

of rights under this Section. In any civil proceeding brought

under this subsection (f), if the plaintiff establishes that he or she

was employed by the defendant, exercised rights under this

Section, or alleged in good faith that the defendant was not

(continued...)

as forming the backdrop for negotiations, Fort Halifax,

482 U.S. at 21, again indicating a low-threshold law which

serves as a floor. Our sister circuits have likewise read

“minimum labor standard” as a minimal substantive

impact on contracts. See Bragdon, 64 F.3d at 500 (stating

that “[w]hen a state law establishes a minimal employment standard not inconsistent with the general legislative

goals of the NLRA, it conflicts with none of the purposes

of the Act”) (emphasis in original); Hull, 935 F.2d at 1198

(noting that “[a]lthough the Supreme Court did not

define what it considered to be a ‘minimum labor standard,’ ” such statutes are “valid and unexceptional

exercise[s] of the [state’s] police power,” and a state

“longevity pay statute is not such a beast”) (internal

quotation omitted). The Attendant Amendment is much

more than a mere backdrop to negotiations because it

establishes terms of employment that would be very

difficult for any union to bargain for. Specifically, in

addition to the requirement for two paid fifteen-minute

breaks and an unpaid thirty-minute lunch break, the

Attendant Amendment creates a presumption of retaliation and shifts the burden of proof to the employer. See 12
No. 07-3377 33

(...continued) 12

complying with this Section, and was thereafter terminated,

demoted, or otherwise penalized by the defendant, then a

rebuttable presumption shall arise that the defendant’s action

was taken in retaliation for the exercise of rights established

by this Section. To rebut the presumption, the defendant must

prove that the sole reason for the termination, demotion, or

penalty was a legitimate business reason.” Thus, for instance,

if a hotel fired a room attendant because the room attendant

failed to clean the required daily quota of rooms, but the room

attendant alleged that the real reason for his or her termination

was that he or she had taken the statutorily mandated breaks,

820 ILCS 140/3.1(g) creates a presumption of retaliation. The

burden of proof would then shift to the hotel to prove that the

sole reason for the termination was “a legitimate business

reason.”

At oral argument, Unite Here’s attorney stated that the 13

presumption only applies if the employee is disciplined within

(continued...)

820 ILCS 140/3.1. We are aware of no law or contract

that establishes such a shifting of the burden of proof, nor

which requires proof from the employer that the “sole

reason,” id., for any disciplinary conduct was a legitimate

business reason. Moreover, this presumption and the

shifting of the burden of proof applies indefinitely; it

does not matter how long ago it was that an employee

exercised rights under the Attendant Amendment or

alleged the employer was not complying with the terms

of the Attendant Amendment. Once either occurs the

defendant-employer will from then on have the burden

of proof.13
34 No. 07-3377

(...continued) 13

ninety days of asserting that his employer is not complying

with the terms of the Attendant Amendment. However, following oral argument, Unite Here’s attorney submitted a letter to

correct this misstatement, confirming that the Attendment

Amendment in fact does not contain any time limitation on the

presumption of retaliation, as Congress Plaza’s attorney had

maintained during oral argument.

In addition to shifting the burden of proof to the employer, the Attendant Amendment provides that, along

with back pay and reinstatement, an employee

terminated in violation of the Attendant Amendment

“shall recover treble his or her lost normal daily compensation and fringe benefits, together with interest thereon,

and any consequential damages suffered by the employee.” The Attendant Amendment further mandates

the payment of costs and attorney’s fees. 820 ILCS

140/3.1(h). These statutory provisions can in no sense be

considered “minimal.” Cf. Brown, 128 S.Ct. at 2410-12, 2416,

2422 (holding that California statute which prohibited

employers that received state funds from using the funds

“to assist, promote, or deter union organizing,” was

preempted by Machinists, because the “formidable enforcement scheme,” including recovery of treble damages, attorney’s fees, and costs, “put considerable

pressure on an employer either to forgo his free speech

right to communicate his views to his employees, or else

to refuse the receipt of any state funds”) (internal quotation

omitted). This is especially true when considered in light

of what Illinois considered an appropriate minimum for
No. 07-3377 35

employers in the remaining 101 counties in the One Day

Rest in Seven Act—one unpaid twenty-minute break and

no shifting of the burden of proof.

In response, Illinois argues that “minimum” does not

imply a low threshold, but merely is whatever “minimum”

the State decides is appropriate. This argument clashes

with the Supreme Court’s terminology, i.e., “minimal

substantive requirements on contract terms negotiated

between parties to labor agreements.” Metropolitan Life,

471 U.S. at 754-55 (emphasis added). This argument also

cannot prevail in the circumstances of this case where

Illinois had adopted one truly minimal requirement of

general application, but an exponentially higher mandate

for a specific occupation, in a specific industry, in one

county.

Illinois also claims that because Machinists preemption

is concerned with the process and not the substantive

terms of the bargain, the substantive requirements of the

Attendant Amendment are irrelevant. Illinois is correct

that “[t]he NLRA is concerned primarily with establishing an equitable process for determining terms and

conditions of employment, and not with particular substantive terms of the bargain that is struck when the

parties are negotiating from relatively equal positions.”

Metropolitan Life, 471 U.S. at 753. However, merely because

a state statute establishes a substantive requirement does

not mean that it automatically avoids preemption. Rather,

to avoid preemption the state’s minimum labor standard

must not be incompatible with the goals of the NLRA.

See Metropolitan Life, 471 U.S. at 757; Fort Halifax, 482

U.S. at 23.
36 No. 07-3377

The more stringent a state labor substantive standard, the

more likely it is that the state law interferes with the

bargaining process. And as a standard becomes more

stringent, the state, at a certain point, effectively substitutes itself as the bargaining representative. As the

Ninth Circuit explained in Bragdon:

The Court has also clearly held that a state’s requirement of “minimal substantive requirements” on

contract terms is not such an interference with the bargaining process as to be pre-empted. There is no

doubt that imposing substantive requirements does

affect the bargaining process. Viewed in the extreme,

the substantive requirements could be so restricted

as to virtually dictate the results of the contract. The

objective of allowing the bargaining process “to be

controlled by the free-play of economic forces” can be

frustrated by the imposition of substantive requirements, as well as by the interference with the use of

economic weapons. The question then becomes the

extent of the substantive requirements that a state

may impose on the bargaining process.

Bragdon, 64 F.3d at 501.

In Bragdon, the Ninth Circuit concluded that “the Ordinance [establishing a prevailing wage] affects the bargaining process in a much more invasive and detailed fashion

than the isolated statutory provisions of general application approved in Metropolitan Life and Fort Halifax.” Id.

at 502. The court explained that the Ordinance is

also very different from a minimum wage law, applicable to all employees, guarantying a minimum hourly
No. 07-3377 37

rate. This Ordinance provides for specific minimum

wages and benefits to be paid to each craft and only

to those workers who are engaged in the specific

construction projects covered by the Ordinance. This

is not a wage and benefit package that has been bargained for in any fashion by these construction employers and employees, but rather is a minimum

wage and benefit package that is promulgated by the

Director of the Department of Industrial Relations of

the State of California and that is developed by averaging the bargains struck by other employers and employees.

Id. at 502-03.

Like the Ordinance at issue in Bragdon, the Attendant

Amendment “affects the bargaining process in a much

more invasive and detailed fashion than the isolated

statutory provisions of general application approved in

Metropolitan Life and Fort Halifax.” Id. at 502. As noted

above, the Attendant Amendment creates a presumption

of retaliation that shifts not the burden of production, but

the burden of proof. This shifting of the burden of proof

applies indefinitely once an employee has either exercised rights under the Attendant Amendment or alleged

in good faith that the employer is not complying with the

terms of the Attendant Amendment. This stringent measure impacts the ability of an employer to discipline or

fire employees, pursuant to the terms of a collective

bargaining agreement. Under Congress Plaza’s previous

CBA, claims of breaches had to proceed through a carefully crafted grievance procedure and if not resolved,
38 No. 07-3377

A court may “take judicial notice of historical documents, 14

documents contained in the public record, and reports of

(continued...)

required the parties to submit to arbitration. (CBA at 30-

32). By creating a private cause of action for retaliation

which shifts the burden of proof to the employer indefinitely, the Attendant Amendment further “stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives” of the NLRA. Livadas, 512 U.S.

at 120 (quoting Brown v. Hotel Employees, 468 U.S. 491, 501

(1984)). The NLRA’s purposes, as stated in the “Findings

and Declaration of Policy” in § 1 of the NLRA, 29 U.S.C.

§ 151, include, among other things, “encouraging practices

fundamental to the friendly adjustment of industrial

disputes arising out of differences as to wages, hours, or

other working conditions . . . .” The Attendant Amendment does the exact opposite, encouraging litigation

rather than resolution through the mechanism established by the CBA.

Moreover, room attendants are typically paid on an

hourly basis, but are required to complete a certain

number of rooms within that time. See Ill. Hotel & Lodging

Ass’n v. Ludwig, 869 N.E.2d at 846, 849 (Ill. App. 2007)

(“Hotel room attendants essentially work on a piece-rate

system. Both union and nonunion hotels require room

attendants to clean a quota of rooms each work shift.

Although they are paid by the hour, room attendants are

required to deliver a quantified amount of work during

their shift and can be disciplined if they fail to do so.”).14
No. 07-3377 39

(...continued) 14

administrative bodies . . . .” Menominee Indian Tribe of Wis. v.

Thompson, 161 F.3d 449, 456 (7th Cir. 1998). Thus, we may take

judicial notice of the state court decisions. In re Salem, 465 F.3d

767, 771 (7th Cir. 2006) (“We begin with the New York cases;

we take judicial notice of these dockets and opinions.”). Moreover, this court may “consider judicially noticed documents

without converting a motion to dismiss into a motion for

summary judgment.” Menominee Indian, 161 F.3d at 456.

The Illinois legislature used this as a basis to support

the Attendant Amendment, noting during the committee

hearings that the quota system impacted “all hotel room

attendants’ ability to take breaks.” Ill. Hotel & Lodging

Ass’n v. Ludwig, No. 05CH13796, *10 (Circuit Court of

Cook County, Illinois 2006) (citing Hearings on H.B. 3485

Before the House Labor Committee). Given the pay and work

structure of room attendants, mandating breaks affects

the structure of the entirety of the employment agreement. To illustrate: Assume that Congress Plaza requires

room attendants to clean and service eighteen rooms

during each shift. Congress Plaza customarily provided

room attendants one unpaid thirty-minute lunch break.

Adding another thirty minutes of break-time is likely to

prevent room attendants from completing the required

eighteen-room quota. After all, if Congress Plaza believed

that the average room attendant could clean or service

eighteen rooms in less time, it would increase the

number of rooms required to be cleaned or decrease the

shift time. Thus, the Attendant Amendment’s mandated

breaks not only increase break times, but interfere with
40 No. 07-3377

This interference might be acceptable, if the Attendant 15

Amendment was a law of general application, but because it

targets the one specific industry—the very industry which has

in place an efficiency standard setting minimal quotas—the

Attendant Amendment becomes an interference with the

collective bargaining process.

the entire quota structure of Congress Plaza’s CBA. In 15

fact, it appears from the hearings of the House Labor

Committee that the legislature intended to alter the

structure of the employment relationship between hotels,

like Congress Plaza, and their employees. See Ill. Hotel &

Lodging Ass’n v. Ludwig, No. 05CH13796 at *10 (Circuit

Court of Cook County, Illinois 2006) (“Rather, the concerns expressed by the Legislature focused generally on

all hotel room attendants’ ability to take breaks in an

industry where each individual must clean a quota of

rooms per day.”) (citing Hearings on H.B. 3485 Before the

House Labor Committee). As the Supreme Court stated in

Machinists, “[o]ur decisions . . . have made it abundantly

clear that state attempts to influence the substantive

terms of collective bargaining agreements are as inconsistent with the federal regulatory scheme as are such

attempts by the NLRB. . . .” Machinists, 427 U.S. at 153.

The Ninth Circuit in Bragdon likewise found that a state

law that impacted the broader labor agreement was

preempted by the NLRA under Machinists because “it

affects the bargaining process in a much more invasive and

detailed fashion than the isolated statutory provisions

of general application approved in Metropolitan Life and
No. 07-3377 41

Fort Halifax.” Bragdon, 64 F.3d at 502. The state law in

Bragdon, as noted above, set a prevailing wage. The prevailing wage required a minimal amount that wages and

benefits must total together, but also set the minimum

amount that must be paid in wages. Id. As the Bragdon

court aptly recognized, this ordinance interfered with

the collective bargaining process because if the employer had agreed to a total compensation package that

exceeded the Ordinance’s requirements, but had a wage

component lower than that set by the Ordinance, “[t]his

would place considerable pressure on the contractor

and its employees to revise the labor agreement to reduce

the benefit package and increase the hourly wages in

order to remain competitive and obtain the contracts and

jobs . . . .” Id. Likewise, in Bechtel Construction, Inc. v.

United Brotherhood of Carpenters & Joiners of America, 812

F.2d 1220 (9th Cir. 1987), the Ninth Circuit held that a

state law establishing a minimum wage scale for apprentices was not a minimum labor standard, in part because

“a set wage for apprentices would have required higher

pay for all levels in the trade, in order to maintain the

graded wage scale.” Id. at 1126. Thus, “[t]he right to

bargain collectively of one group or another is harmed by

the minimum wage for apprentices.” The Ninth Circuit

further explained that “[u]nlike the minimum benefit

standards in Metropolitan, the California requirements do

not affect all workers equally, but concern only apprentices.” Id. In turn, “[t]his accounts for the distorting effect

that enforcement of the [wage] Standards could have on

the bargaining process.” Id. Similarly, in this case, the

Attendant Amendment affects not just break periods, but
42 No. 07-3377

Congress Plaza also argues that the Attendant Amendment is 16

preempted because it “unilaterally alters the parties’ collective

(continued...)

interferes with both the dispute-resolution structure of

the employment relationship and with the structure of

the quota system. This interference further disqualifies

the Attendant Amendment from being a minimum

labor standard.

In sum, for numerous reasons, we conclude that the

Attendant Amendment is not a minimum labor standard

and is preempted by the NLRA. First, the Attendant

Amendment is not a law of general application. Rather,

the Attendant Amendment applies to one occupation, in

one industry, in one county. This limited scope of the

Attendant Amendment discourages collective bargaining

by encouraging lobbying for targeted legislation

applicable to the equivalent of a bargaining unit. The

Attendant Amendment is further not a true “minimum”

labor standard, as demonstrated when the statute’s

provisions are juxtaposed against the minimal standard

of general application currently in effect in Illinois, i.e., one

unpaid twenty-minute break, and when considered in

light of the formidable enforcement mechanism, including the treble damages and unprecedented shifting of

the burden of proof to the employer. The Attendant

Amendment further interferes with the objectives of the

NLRA by overriding the dispute resolution mechanisms

already in place and by interfering with the pay and quota

structure established for room attendants. For all of these

reasons, we conclude the Attendant Amendment is 16
No. 07-3377 43

(...continued) 16

bargaining agreement terms and conditions.” Appellant Reply

Br. at 1. Congress Plaza believes that a state law which forces

Congress Plaza to unilaterally change the terms and conditions

of employment during a labor dispute violates federal law

because, prior to impasse, the NLRA requires employers to

“continue to apply the terms of the expired bargaining agreement.” Appellant Reply Br. at 3. We disagree. Had the

Attendant Amendment truly represented a minimum labor

standard that did not interfere with the collective bargaining

process, the fact that the State law mandates different terms

and conditions than those contained in an expired CBA would

be irrelevant.

preempted by the Machinists doctrine. See Bragdon, 64

F.3d at 504 (“Furthermore, this type of minimum labor

standard enactment, which is not of general application,

but targets particular workers in a particular industry and

is developed and revised from the bargaining of others,

affects the bargaining process in a way that is incompatible

with the general goals of the NLRA.”). Because the Attendant Amendment is preempted by the Machinists

doctrine, we need not determine whether Garmon preemption would also apply. Likewise, we need not decide

whether the Attendant Amendment violates Congress

Plaza’s equal protection and due process rights. Accordingly, we reverse the judgment of the district court and

remand this case to the district court for proceedings

consistent with our ruling.
44 No. 07-3377

III.

For the reasons stated above, we conclude that the

Attendment Amendment is preempted by the NLRA under

the Machinists doctrine. We REVERSE and REMAND for

proceedings consistent with this opinion.

12-15-08