This week, the Seventh Circuit Court of Appeals gave labor groups and their political cronies in Illinois a good, swift kick in their collective behinds. In 520 South Michigan Ave. Assoc., Ltd. v. Devine, the court reversed the district court’s dismissal of an employer’s challenge to an amendment to an Illinois law prohibiting the use of temporary workers during a strike. The court ventured well beyond its limited holding in order to smack the amendment, known as the Strikebreakers Act, on constitutional grounds.
Illinois law makes it a crime to employ “professional strikebreakers.” A few years ago, the state broadened this prohibition to criminalize the hiring of day laborers and temporary staff during strikes. After the amendment was enacted, the plaintiff, who was in the midst of a strike and facing probing inquiries from the local Illinois states attorney for Cook County, sought a declaratory judgment that the Strikebreakers Act is preempted by federal law. The district court found that the employer lacked standing, but the Seventh Circuit disagreed and remanded the case for decision on the merits.
Rather than stop there, the Seventh Circuit then launched into a biting critique of the constitutionality of the amendment. According to the court, the Strikebreakers Act places an impermissible limit on the employer’s use of an economic tactic that is protected by federal law. Indeed, “[t]he state’s effort to make the hiring of replacement workers a crime is so starkly incompatible with federal labor law . . . that we do not understand how a responsible state legislature could pass, a responsible Governor sign, or any responsible state official contemplate enforcing, such legislation”(emphasis mine). The Seventh Circuit, which resides in Chicago, can't really be serious here. Anyone who lives in this area knows full well that the party in control of Cook County (and the state legislature and the governor's office) has been in the hip pocket of organized labor for decades.
Though the matter now is in the hands of the district court, the Strikebreakers Act doesn’t have long to live. I would not be surprised if such a forceful and persuasive decision had influence beyond the Seventh Circuit, or at least beyond Cook County, Illinois.