Recently, Southwest Airlines won a second major victory when Northern District of Illinois Judge Seeger granted its motion to dismiss claims brought under Illinois’ unique Biometric Information Privacy Act (“BIPA”). Crooms v. Southwest Airlines Co., Case No. 19-cv-2149.

Plaintiffs alleged Southwest violated BIPA by requiring them to scan their fingers when clocking in and out of work without giving them the written notice or receiving their consent as required by BIPA. When initially employed, three of the plaintiffs were represented by the Transportation Workers Union of America, AFL-CIO Local 555 (“TWU”) and were covered by a collective bargaining agreement (“CBA”). The CBAs at issue provided Southwest had the “right to manage and direct the work force” and included a mandatory four-step grievance and arbitration procedure for resolution of disputes. Plaintiffs were later promoted to Ramp Supervisors, a non-union position and agreed to comply with Southwest’s Alternative Dispute Resolution (“ADR”) Program.  The fourth named plaintiff was never covered by a CBA but was always a party to the ADR Program.

After Plaintiffs filed their complaint, the Seventh Circuit ruled in Miller v. Southwest Airlines, 926 F.3d 898 (7th Cir. 2019) that “persons who contend that air carriers have violated state law by using biometric identification in the workplace must present these contentions to an adjustment board under the Railway Labor Act (RLA).” The Seventh Circuit reasoned that any dispute about the interpretation or applicable of a CBA must be brought before an adjustment board, not a federal court.

Relying heavily on Miller, Southwest moved to dismiss plaintiffs’ lawsuit, contending that because the RLA preempted state law claims, it required plaintiffs to seek relief before an adjustment board. Southwest also argued that all four plaintiffs – not just those represented by TWU – had agreed to arbitrate all employment-related disputes when they became Ramp Supervisors and accepted Southwest’s ADR Program.

Judge Seeger agreed. “Southwest has raised a non-frivolous question whether the collective bargaining agreement authorized the union to consent on behalf of all employees, even if some of them later left the bargaining unit,” his opinion stated, “so the answer must come from the adjustment board, not this court.”

Plaintiffs tried to argue that their proposed class was limited to non-union members, but this argument fell flat, as their complaint defined the proposed class as “all individuals working for Southwest,” which logically included both union and non-union members.

Judge Seeger acknowledged that arguments could be made that the CBA did not authorize the union to consent to fingerprint scanning or that BIPA requires re-notice and re-consent. “But the punchline is the same,” he wrote, “the proper forum to hear that argument is an adjustment board, not this court.”

Judge Seeger also upheld Southwest’s ADR Program and ordered the fourth plaintiff to arbitrate his claim before an AAA arbitrator. Notably, Judge Seeger stated, “If it were not for the Railway Labor Act, the other three Plaintiffs would be headed to arbitration, too.”

Crooms is now the second court opinion to hold that Southwest’s arbitration agreement with non-union employees is enforceable as against BIPA claims and that current or former union represented employees may only pursue BIPA claims before an adjustment board. This ruling will likely extend to other airline companies as well as employers in the railway industry who are subject to similar CBAs or who extend similar ADR programs to their employees.

For more information, please contact your Baker McKenzie attorney.