of power between employers and employees. As between the Union and the cemetery defendants, the Burial Act impermissibly tilts the balance of economic power in favor of the cemetery defendants. The Union loses the effectiveness of its ability to exert economic power through striking, and accordingly, it loses the power to negotiate favorable contract terms for the employees it represents.
Machinists establishes as well that state regulations indirectly imposing additional burdens on economic weapons such as strikes or lockouts are preempted, unless the state regulations were contemplated by Congress. Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614-15, 618, 89 L. Ed. 2d 616, 106 S. Ct. 1395 (1986). Accordingly, in New York Telephone Co. v. New York State Department of Labor, 440 U.S. 519, 59 L. Ed. 2d 553, 99 S. Ct. 1328 (1979) (plurality), the Court determined that mental health care benefits and unemployment compensation provided to striking employees, although shifting the economic balance in favor of employees, was a regulation Congress contemplated to remain in the state authority. Id. at 531-32, 544 (plurality); id. at 547, 549 (Blackmun, J. and Marshall, J., concurring). Conflict existed between state and federal law because the provision of unemployment compensation to striking employees increased the willingness of striking workers to remain on strike. Because the law also increased the employer's costs during a strike through increased employer contributions to the unemployment system, the prolonged lasting-power of the strikers would work to the detriment of employers. But the court determined this was a conflict Congress intended to be endured by the federal system because Congress intended to allow states to implement an unemployment system regardless of its impact on the balance of bargaining power. Id. at 544-46; see also Baker v. General Motors, Corp., 478 U.S. 621, 637-38, 92 L. Ed. 2d 504, 106 S. Ct. 3129 (1986) (state law disqualifying from unemployment compensation employees who finance a strike that causes their unemployment is not preempted). The defendants, however, have failed to point to any evidence indicating that Congress specifically intended the conduct at issue in this case to be regulated by the states.
The plaintiffs illustrate the shift in power effectuated by the Burial Act. The cemeteries can lock-out Union employees to coerce them through unemployment to accept unattractive contract demands. The cemeteries, on the other hand, would have at their disposal a labor pool ready to perform religiously required burials as is mandated by the Burial Act. As a result, the cemeteries retain the ability to perform burials for a certain number of its customers. Those cemeteries whose patrons are nearly exclusively Jewish will experience little or no economic pressure to resume employment of the striking workers. In effect, the cemeteries can hold out until the striking members succumb to their demands -- however unreasonable the demands may be.
Additionally, the Union may prefer to engage in a partial or intermittent strike to accomplish its objectives. For example, the Union could refuse to perform interment services while accepting other tasks to perform. Because this conduct is not protected by § 7, the employer may choose to discipline the Union for this activity. See NLRB v. Blades Mfg. Corp., 344 F.2d 998 (8th Cir. 1965); 2 THE DEVELOPING LABOR LAW, THE BOARD, THE COURTS, AND THE NATIONAL LABOR RELATIONS ACT 1112 (Patrick Hardin et al. eds., 3d ed. 1992). Nonetheless, not even the National Labor Relations Board can restrict these economic weapons. See American Ship Bldg Co. v. NLRB, 380 U.S. 300, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965) (NLRB cannot restrict employer lockouts); NLRB. v. Insurance Agents', Int'l Union, 361 U.S. 477, 4 L. Ed. 2d 454, 80 S. Ct. 419 (1960) (union quickie strikes). The Burial Act, however, provides a remedy even against a union whose partial strike as illustrated above delays religious burials. Because partial strikes are neither protected nor forbidden by federal labor law, and the states possess no more authority to upset the balance of power between employers and unions than does the National Labor Relations Board, state regulation of this activity is preempted. See Machinists, 427 U.S. at 149 (concerted refusal to work overtime); Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 259-60, 12 L. Ed. 2d 280, 84 S. Ct. 1253 (1964) (Ohio law making it illegal for union to solicit employers' customers in order to persuade them to stop renting employers' trucks during labor dispute preempted). The Burial Act, thus, restricts the effectiveness of the overall economic weapons available to unions.
More importantly, because the Burial Act mandates agreement on the substantive terms of collective bargaining agreements, the bargaining process between the Union and defendant cemeteries is nearly eliminated altogether. States cannot enter into the substantive aspects of the bargaining process. Golden State, 475 U.S. at 615-16. It cannot be overemphasized that national labor law "requires an employer and a union to bargain in good faith, but it does not require them to reach agreement." Id. at 616; compare International Brotherhood of Teamsters, Local 24 v. Oliver, 358 U.S. 283, 295-97, 3 L. Ed. 2d 312, 79 S. Ct. 297 (1959) (federal law preempts application of Ohio's antitrust law to collective bargaining agreement involving minimum truck lease rate for independent truckers; because a wage rate is mandatory subject of bargaining, state laws cannot interfere with or limit range of solutions the parties could negotiate) with Washington State Nurses Ass'n v. Washington State Hosp. Comm'n, 773 F.2d 1044, 1047 (9th Cir. 1985) (commission practices not preempted where commission's use of wage guidelines and urgings to reduce hospital costs did not impose sanctions on union or employer with respect to collective bargaining negotiations and did not invalidate an actual negotiated scale), cert. denied, 475 U.S. 1120, 90 L. Ed. 2d 183, 106 S. Ct. 1637 (1986); see also 29 U.S.C. § 158(d) (obligation to bargain collectively "does not compel either party to agree to a proposal or require the making of a concession").
Defendants argue that the Supreme Court has held that state-mandated bargaining arrangements are not unconstitutional when the public interest is involved, citing Associated Builders, 122 L. Ed. 2d 565, 113 S. Ct. 1190 (1993). The defendants' "public interest" position, however, is a significant misunderstanding of the Associated Builders decision. That case involved a state authority, acting as the owner of a construction project, enforcing an otherwise lawful prehire collective bargaining agreement negotiated by private parties. As such, the case stands solely for the proposition that a state is not subject to preemption where the state is acting as a proprietor instead of as a regulator. 113 S. Ct. at 1196. "When a state owns and manages property, for example, it must interact with private participants in the marketplace." Id. Thus, "to the extent that a private purchaser may choose a contractor based upon that contractor's willingness to enter into a prehire agreement, a public entity as purchaser should be permitted to do the same." 113 S. Ct. at 1198 (emphasis in original). Acting as a proprietor is not tantamount to regulation or policymaking. 113 S. Ct. at 1197. If the state had passed a law requiring all parties involved in the construction industry to enter into prehire agreements, a very different case would have been presented.
Defendants further attempt to justify the Burial Act by stating that the labor pool agreement "would merely be a supplemental agreement to the main negotiations, made in the public interest, with no measurable effect . . . on Plaintiffs' present ability to harbor . . . economic weapons of self-help." That the unions and cemeteries are forced to agree on terms incorporated in a agreement separate from the collective bargaining agreement itself is of no moment. If the state cannot force agreement on a term in collective bargaining agreements, that a term is removed from collective bargaining and placed in a separate document does not change the invasiveness of the state's intrusion into the collective bargaining process. Contract terms that are not mandatory subjects of bargaining are left to the free-play of the economic system.
Nevertheless, the case law suggests that state laws of general application affecting terms of collective bargaining are not automatically preempted. A court must determine the impact of federal law on state law "'in light of the wider contours of federal labor policy.'" Metropolitan Life, 471 U.S. at 753 (quoting Belknap, 463 U.S. at 520 n.4 (Blackmun, J., concurring)). Because the NLRA is concerned with equitable bargaining processes, Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 20, 96 L. Ed. 2d 1, 107 S. Ct. 2211 (1987), many state regulations of general application do not interfere with this federal policy because they affect union and nonunion employees equally and they do not encourage or discourage collective bargaining. Metropolitan Life, 471 U.S. at 755. Furthermore, these laws may only have an indirect effect on self-organization policies. Id. As a result, state laws establishing minimum labor standards, for instance, do not undercut collective bargaining and survive preemption. Id. To the extent the defendants' argument can be read as being that the Burial Act is general in applicability and has no measurable effect on plaintiffs' ability to bargain collectively, the court will address this inquiry.
Unlike the regulations involved in Metropolitan Life, the Burial Act does not affect union and nonunion employees equally and has a great impact on the ability of unions to bargain collectively. Importantly, the Burial Act directly and substantially affects interests implicated in the NLRA. The Burial Act's mandate requiring the formation of a replacement labor pool for the purposes of performing religiously required burials during the duration of a strike does not form a neutral backdrop upon which unions can bargain. See Fort Halifax, 482 U.S. at 20-21 (state statute mandating severance pay for employees whose employers have relocated is not preempted because neutral). On the contrary, the Burial Act provides a hostile backdrop to fair and equal bargaining between the Union and defendant cemeteries. As such, for the state to mandate agreement on a substantive term affecting the federal labor self-help rights of management and labor is an impermissible intrusion into the collective bargaining process itself. Not only is collective bargaining discouraged, it is eliminated altogether.
In sum, Illinois does not possess authority to influence the substantive terms of collective bargaining agreements as it has attempted to do in the present case. The impact of the Burial Act -- which regulates the content of collective bargaining agreements as well as the duties of striking workers -- upon the administration of national labor policy is far too great. It is an unpermitted means of accomplishing the state's objectives for the Burial Act to condition a labor strike on the existence of a replacement labor pool, to provide a fine for the failure of a collective bargaining agreement to reflect this labor pool, or to force striking workers to perform certain burials while they are on strike. To permit the State of Illinois to provide third parties with a remedy that federal law prohibits an employer from utilizing would frustrate the federal regulatory scheme. Public concern is notably high, but it is not in the state's right to interfere with the bargaining process. Federal labor law emphatically leaves these issues to the free-play of the economic system. Accordingly, it is not only clear from the totality of circumstances that Congress intended to occupy the collective bargaining process and striking to the exclusion of the states, and intended to provide the sole conditions upon which these rights are to be exercised, but it is also clear that the Burial Act conflicts with the federal regulatory scheme significantly. The court finds the Burial Act's provisions requiring unions and cemeteries to negotiate a replacement labor pool and allowing for an injunction and fine to issue against a labor union during a strike are preempted.
For reasons stated above, the plaintiffs' motion for summary judgment is granted and the defendants' motion is denied. The Illinois Burial Rights Act, P.A. 87-1174 is preempted by the NLRA, as amended, and as such violates the Supremacy Clause of the United States Constitution, U.S. CONST., art. VI, cl. 2.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court