Doug Darch Quoted in Inside Counsel

The March 9, 2006 issue of Inside Counsel reports in the article "Court Rules Strikebreakers Act Invalid " that "negotiations between the Congress Plaza Hotel in Chicago and UNITE HERE Local 1 have been at a standstill for the past two years. The union, which comprises nearly 130 housekeepers, cooks, dishwashers and other hotel employees, went on strike in 2003. The sudden lack of workers left the hotel in a bind, one that the Illinois legislature only worsened with its passage of an amendment to the state’s Employment of Strikebreakers Act.  The amendment, which lawmakers passed in 2003, made it illegal for employers to contract with day-labor and temporary services agencies to meet staffing requirements during a strike. Worse, the Act made violation a criminal offence for which an individual could be fined up to $1,000 and imprisoned for up to a year. This dramatically reduced the hotel’s options for dealing with the sudden loss of its workforce."

The hotel sued (520 South Michigan Avenue Assocs. Ltd. v. Devine), claiming the amendment to the Strikebreakers Act was unconstitutional. The 7th Circuit agreed Jan. 10, holding both that it was unconstitutional and pre-empted by federal law.  Afraid that a criminal enforcement action was imminent, the hotel filed suit in the Northern District of Illinois. Although the district court dismissed the case on procedural grounds, the 7th Circuit overturned that ruling and issued a scathing opinion remanding the case with instructions to invalidate the Act. Judge Frank Easterbrook bashed the state’s legislature for passing a law that is blatantly pre-empted. Indeed, under the federal National Labor Relations Act (NLRA), employers have many options for hiring workers in the event of a strike, but the Illinois law made many of the practices illegal and forced companies to spend a lot of time and money replacing workers.

Normally, employers turned to temporary services and said, ‘Can you get me a hundred hotel maids?’” says Doug Darch, a partner at Seyfarth Shaw in Chicago. “This was an important cog in the strike contingency plan because the HR function shrinks so much.”

The article notes that "This ruling signals the death of the Strikebreakers Act. Illinois employers can once again turn to the NLRA for guidance on how to hire workers in the event of a strike. The NLRA is a 1935 federal law that governs labor relations.  With the invalidation of the short-lived Strikebreakers Act, employers can expect labor laws to return to the status quos. No longer are the options of an employer limited in the event of a strike."