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July 13, 1993

JAMES EDGAR, Governor of Illinois, ROLAND W. BURRIS, Attorney General of Illinois, SCHWARZBACH CEMETERY CO., BARNETT JOSEPH AND SON, INC., and SILVERMAN & WEISS, INC., Defendants.

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are cross-motions for summary judgment. For reasons explained fully below, the court grants plaintiffs' motion and denies defendants' motion.


 From December 20, 1991 until January 31, 1992, plaintiff Service Employees International Union, Local 106, AFL-CIO (the "Union") was involved in a labor dispute with twenty-six Chicago area cemeteries which delayed the performance of interment services at these cemeteries. The labor dispute began when the Union organized a strike of the cemeteries and escalated when the cemeteries responded with a lockout of all Union employees. As a consequence, the six-week labor dispute delayed many burials that otherwise would have been completed promptly as mandated by the religious tenets of some cemetery plot owners. For instance, the tenets and beliefs of many persons of the Jewish faith require burials on the first or second day after death, and defendants have identified two other religions requiring similar treatment: Islamic and Zoroastrian. During the 1991-92 labor dispute some interments were delayed for more than one month.

 The labor dispute was subsequently resolved after a battle in state court and through agreement between the striking forces and the cemeteries. *fn1" In direct response to this labor dispute, the legislative body of the State of Illinois passed the Illinois Burial Rights Act (the "Burial Act"), P.A. 87-1174, which became law on September 18, 1992 through the signature of defendant Governor James Edgar. The Illinois General Assembly sought to remedy any possibility that a future labor dispute would stand in the way of the religious faith or burial practices of Illinois citizens.

 After enactment of the Burial Act, plaintiffs Jay Cannon and Thomas Carey, the Union's Secretary-Treasurer and President, were concerned that the Burial Act would adversely affect the Union's pending negotiations over the terms of a new collective bargaining agreement. As a result, Jay Cannon, Thomas Carey, a union employee Stevie Powell, and the Union (collectively "plaintiffs") brought suit in December 1992 seeking an injunction against enforcement of the Burial Act and a declaration from this court pursuant to 28 U.S.C. § 2201 that the Burial Act was unconstitutional. The complaint alleges that the Burial Act requires the Union and all cemeteries having unions, including defendants Schwarzbach Cemetery Co., Barnett Joseph & Son, Inc., and Silverman & Weiss, Inc. ("defendant cemeteries"), to negotiate and enter into an agreement establishing a labor pool that must perform certain burials during the course of a strike or labor dispute. The complaint further maintains that the agreement establishing the labor pool must be entered into within 120 days of the effective day of the Burial Act, or by January 16, 1993. By agreed order dated January 11, 1993, the Governor and Attorney General of Illinois were enjoined from enforcing the Burial Act until this court passes on its constitutionality.

 The Union is the exclusive bargaining representative on behalf of all persons performing interments and related work at all cemeteries located in the Northern District of Illinois and is recognized by the defendant cemeteries as the exclusive bargaining representative for all of their employees who perform interment work. The Union's members also provide an array of services involving the administration, maintenance, and upkeep of cemeteries, and the office and clerical employees of the defendant cemeteries are Union members as well. Secretary-Treasurer Jay Cannon and President Thomas Carey represent the Union in all dealings with employers concerning contracts, labor disputes, wages, and other terms and conditions of employment.

 The three defendant cemeteries bargain collectively with the Union and are parties to a single collective bargaining agreement. Some of the defendant cemeteries sell interment services primarily or exclusively to families or representatives of decedents who are members of the Jewish faith. Of the approximately 172 cemeteries operated by the defendant cemeteries, forty percent of them are operated for or were founded by Jewish congregations. All of the interments at the defendant cemeteries are performed by Union members.

 Around December of 1992, the plaintiffs and defendant cemeteries began negotiations over the terms of a new collective bargaining agreement. During these negotiations, the defendant cemeteries advised the plaintiffs that they intended to abide by the provision of the Burial Act and that they insisted the labor pool established pursuant to the Burial Act be comprised exclusively of Union-represented employees. The plaintiffs advised the defendant cemeteries that they considered the Burial Act to be illegal and "intolerable," and that the Union would not comply with its requirements.

 The Burial Act reads as follows:

Sec. 2.1. Access to Interment Rights. (a) If the owner of an interment right in a cemetery or his or her legatees, executor or administrator desires to use that interment right for interment purposes, necessitated by the decedent's membership in a religious sect whose tenets and beliefs require burial within a specified period of time, and a labor dispute has resulted in a disruption of normal interment services at that cemetery, the owner of the interment right or his or her heirs and legatees, executor or administrator may arrange for the performance of the interment by notifying the cemetery authority and designating individuals to perform the interment; provided that such interment and all related work necessary to perform the interment is performed at the direction and under the supervision of the cemetery authority's management personnel and from a pool of workers established pursuant to an agreement between the cemetery authority and the appropriate labor union. An agreement establishing such pool of workers to provide for the religiously required interments as set forth in this Section shall be negotiated and entered into within 120 days of the effective date of this amendatory Act of 1992.

 P.A. 87-1174. The Burial Act further provides for sanctions which include monetary fines and injunctive relief. Specifically, the Burial Act states:

(b) In the event of a violation of this Section, a court shall enter an injunction granting appropriate relief, including, in the case of a willful violation, 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. The failure of a cemetery authority or a labor union to negotiate in good faith to establish a pool of workers as provided in subsection (a) constitutes a willful violation of this Section for purposes of this subsection (b), but only if the failure to negotiate in good faith results in the delay of a religiously required interment . . . .

 Id. Last, the Burial Act is "intended, as a matter of public policy, to apply only to burials required in a timely manner consistent with religious tenets and beliefs, and not to the labor dispute that would continue on beyond the limited scope of religiously required burials." Id. at § 2.2.

 Plaintiffs claim the Illinois statute is unconstitutional for two distinct reasons. First, plaintiffs claim the statute is preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151, et seq., as amended by the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 141, et seq., and thus violates the Supremacy Clause of the United States Constitution. They assert that the Burial Act is preempted by Congress's regulation of the collective bargaining process and the rights protected by federal labor law. Secondly, plaintiffs claim that the Burial Act violates the Establishment Clause of the First Amendment of the United States Constitution. The court finds merit in the plaintiffs' first position and ...

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