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October 29, 1991


James B. Moran, Chief United States District Judge.

The opinion of the court was delivered by: MORAN

Plaintiff, National Labor Relations Board (NLRB), brings this action against defendant, State of Illinois Department of Employment Security (IDES), for injunctive relief, pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, declaratory relief, pursuant to 28 U.S.C. §§ 2201 and 2202, and costs, claiming Section 900(D) of the State of Illinois Insurance Act (Ill. Rev. Stat., ch. 48, para. 490D) (Section 900D) is preempted by plaintiff's exclusive jurisdiction to remedy unfair labor practices as prescribed in the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151, et. seq. For the reasons set forth herein, plaintiff's relief is granted.


 This controversy arose after the Southern Illinois Laborers' District Council filed a charge with Region 14 of the NLRB against Special Mine Services, Inc. (SMS) for alleged violations of the NLRA in connection with the discharge and layoff of six SMS employees. On September 28, 1990, plaintiff's Region 14 director approved an informal settlement agreement for the six discriminatees in the amount of $ 6,130.47 (NLRB Case No. 14-CA-20897). Pursuant to Section 900D, SMS made 78 per cent of the backpay funds (the amount of unemployment benefits the discriminatees received while out of work) jointly payable to the discriminatees and the Illinois Director of Employment Security. *fn1" The NLRB rejected the joint checks as an infringement on its exclusive right to redress unfair labor practices and demanded reissuance of the checks in the name of the discriminatees only. SMS refused, citing the possibility of criminal liability for noncompliance with Section 900D *fn2" and on November 27, 1990, reissued the checks jointly.


 A. Injunctive Relief

 The NLRB claims that Section 900D is preempted by the NLRA, 29 U.S.C. § 160(c), insofar as the Illinois statute interferes with the NLRB's remedial authority. As such, plaintiff requests a preliminary and permanent injunction pursuant to Fed.R.Civ.P. 65(a), a declaration of rights pursuant to 28 U.S.C. §§ 2201 and 2202, and costs. IDES counters that there is no preemption issue because it is not attempting to regulate conduct that is either protected or prohibited by the NLRA but is, instead, ensuring the fiscal integrity of public funds. Both parties agree that there are no facts in dispute and both invite this court, pursuant to Rule 65(a)(2), to reach the merits of this case. This court agrees that only legal questions are involved and therefore accepts the parties' invitation.

 B. Merits

 The preemption doctrine, which is rooted in the Supremacy Clause of the United States Constitution, Article VI, Clause 2, dictates that federal law overrides or preempts any conflicting state regulation. The key to any preemption analysis is to determine if Congress has expressly intended to preempt a particular area of federal occupation or whether such intent is implicit in a pervasive federal regulatory scheme, in the need for national uniformity or because of potential conflict between concurrent state and federal regulations. See Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477, 100 L. Ed. 640 (1956); Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399, 85 L. Ed. 581 (1941). If congressional intent to preempt is found, the state regulation must yield.

 In labor matters Congress has delegated to the NLRB the exclusive authority to enforce the provisions of the NLRA. See S.Rep. No. 573, 74th Cong., 1st Sess., p.15 ("this bill is paramount over other laws that might touch upon similar subject matters"); H.Rep. No. 972, 74th Cong., 1st Sess., p.21 ("This power is vested exclusively in the Board and is not to be affected by any other means of adjustment or prevention"). The rationale is that "Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies. . . ." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 242-43, 3 L. Ed. 2d 775, 781-82, 79 S. Ct. 773, 778 (1959) (quoting Garner v. Teamsters, Chauffeurs & Helpers Local Union, 346 U.S. 485, 490-91, 98 L. Ed. 228, 239, 74 S. Ct. 161, 165). In Garmon, the Court considered whether a California court had jurisdiction to award damages arising out of peaceful union activity. In rejecting jurisdiction, the Court explained that "to the National Labor Relations Board and to Congress must be left those precise and closely limited demarcations that can be adequately fashioned only by legislation and administration." Garmon, 359 U.S. at 242, 3 L. Ed. 2d at 781, 79 S. Ct. at 778.

 In the instant case the NLRB asserts that Section 900D "frustrates the purpose" and "impairs the efficiency" of the NLRB in its remedial authority under § 10(c) of the NLRA *fn3" and therefore is preempted (quoting Nash v. Florida Indus. Comm'n., 389 U.S. 235, 240, 19 L. Ed. 2d 438, 443, 88 S. Ct. 362, 366 (1967)). More specifically, the NLRB contends that any remedy it attempts to effectuate would be at jeopardy if the remedy was subject to third party assignments, garnishments or, as here, recoupment by a state before the backpay is actually in the hands of the wronged employee. The NLRB further contends that if enforcement of Section 900D is allowed, it will be subject to any number of similar state regulations, thereby upsetting the much needed national uniformity of labor law administration. Considered together, the NLRB argues, these adverse consequences would detract from what Congress intended when it created the exclusive centralized administration of the NLRB.

 The NLRB also adds that its position is a well-established policy, as evident in several administrative decisions denying third party assignments, garnishments and unemployment recoupment, before the backpay award is in the hands of the employee (pl. memo in support, p.9), citing Monroe Feed Store, 122 NLRB 1479, 1487, 1488 (1959); Yama Woodcraft Inc., 221 NLRB 1244 (1975); Amshu Associates, Inc., 234 NLRB 791, 792 n.5 (1978); Sioux Falls Stock Yards Co., 236 NLRB 543 n.4 (1978)). *fn4"

 After careful consideration of the NLRB's charges, this court agrees. If the NLRB is exclusively responsible for redressing unfair labor practices, which it is, this must necessarily include ensuring that the remedy prescribed is administered to its conclusion. By giving IDES, as joint payee, a direct ownership interest in certain backpay awards, Section 900D threatens this very process. The NLRB is put smack in the middle of any dispute between IDES and the discriminatee regarding the amount of unemployment compensation which the discriminatee received. If and when any dispute arose, the NLRB would either have to accept on its face that the joint check accurately reflects the proper amount or it would have to determine the actual amount of unemployment benefits received for the period covered by the backpay award. This clearly would have a debilitating effect on the NLRB in terms of cost and efficiency. Simply put, IDES may not realize a gain in administrative efficiency by shifting a burden to the NLRB in a way that detracts from the NLRB's objective of remedying unfair labor practices.

 IDES argues that Section 900D does not come within the purview of the NLRA, thus making a preemption analysis improper. It is suggested that recouping unemployment benefits does not involve regulating conduct which is either protected or prohibited under Section 7 or Section 8 of the NLRA. This ...

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