the union against the employer to compel arbitration of the employee’s grievance, the adjudication
of the claim by the arbitrator, or a suit to enforce the resulting arbitration award.” Id. at 184. The
Court has cautioned, though, that “[e]mployees, of course, may not circumvent the primary

jurisdiction of the NLRB simply by casting statutory claims as violations of the union's duty of fair

representation” or an employer’s breach of contract. Communications Workers of Am. v. Beck, 487
U.S. 735, 743 (1988). In Marquez v. Screen Actors Guild, Inc., 525 U.S. 33 (1998), the Court held
that the primary jurisdiction of the National Labor Relations Board (“NLRB”) ousted the federal
courts of jurisdiction to consider a claim, brought as an action for breach of duty of fair
representation, that a 30-day grace period contained in a collective bargaining agreement was
unlawful. The Court found that the claim was simply an assertion that the challenged provision
violation Section 8(a)(3) of the Act, which only the NLRB should consider. See id. at 49-52.
Paragraph 21 of plaintiffs’ complaint alleges that defendants “conspired to rid the company
of Local 150 supporters.” To the extent this allegation refers to any or all of the plaintiffs, like
Marquez, it is clearly an unfair labor practice allegation and thus within the exclusive jurisdiction
of the NLRB. Plaintiffs do not allege that Pease or any other plaintiff was laid off or terminated, in
violation of the CBA, as a result of this conspiracy. As such, because it contains no allegation of a
breach of contract with respect to the conspiracy, paragraph 21 is dismissed with prejudice.
Defendants assert that paragraphs 12, 13, 20, 25, 29, 33, and 38 of the complaint must be
dismissed for lack of jurisdiction. Although defendants advance a strong argument, this court finds
that plaintiffs have sufficiently alleged a § 301 violation over which this court has jurisdiction.
These paragraphs allege that Pease, Viti, and Berge were terminated in retaliation for their support

of arival union. Although such retaliation is prohibited by the NLRA and thus arguably Garmon-



requirements, such allegations are sufficient to overcome a motion to dismiss.* Moreover, with
respect to Pease, plaintiffs make further allegations which if substantiated could constitute a breach
of the duty of fair representation. (Compl 16.) Accordingly, except to the extent discussed above,
Local 707’s motion to dismiss is denied.
CONCLUSION

Based on the foregoing, defendants’ motion to dismiss is granted in part and denied in part.
Plaintiffs are given until January 21, 2003, to file and serve an amended complaint. Defendants are
ordered to file an answer to plaintiffs’ complaint or amended complaint on or before February 5,
2003. Counsel are to confer pursuant to Rule 26(f) and file a jointly completed Form 35 signed by
counsel for each party on or before February 11, 2003. This case is set for a report on status and the
entry of a scheduling order at 9:00 a.m. on February 13, 2003. The parties are strongly urged to

discuss settlement.

ENTER:

eres Able

MES F. HOLDERMAN
tinted States District Judge

DATE: January 10, 2003

> Many of the arguments that Local 707 makes may be appropriate at summary judgment;
however, at the motion to dismiss stage, they are not relevant. See Local 707 Reply at 9-11.

6 Again, Local 707’s arguments at page 10 of its reply may be appropriate in conjunction
with a motion for summary judgment but not at this point in the litigation.

9



defendants attached to their motion to dismiss.” Further, Pease has sufficiently alleged breaches of
Article XII, relating to dismissal, and Article XIII, regarding seniority and bids. (Compl. 13.)
Finally, plaintiffs allege that Randall violated its CBA with Local 707 “in the numerous other regards
included in Mr. Pease’s grievances.” (Compl. § 20.) This court finds that this allegation fails to
meet the pleading requirements of Rule 8. Rule 8(a) of the Federal Rules of Civil Procedure states
that a complaint must identify the basis of jurisdiction and contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Bartholet, 953 F.2d at 1077-78 (7th Cir.
1992). Complaints can be “short and simple, giving the adversary notice while leaving the rest to
further documents.” Id. at 1078. Here, however, Pease’s allegation is nebulous at best and fails to
give Randall notice of how it allegedly breached the CBA. As-such, this portion of paragraph 20 is
dismissed without prejudice. Plaintiffs are given until January 21, 2003, to file and serve an
amended complaint setting forth with the requisite notice required under the Rules the “numerous
other regards.”

B. Viti

With respect to Viti, to the extent he claims that Randall or Local 707 violated the CBA by
not filing or allowing a grievance on his behalf, such claims are dismissed with prejudice. Article
IJ, Section 5 of the CBA states that “[a] new employee shall be on probation for the first ninety (90)

days of employment. During that time, his discharge shall not be subject to the grievance procedure,

2 Although 16 of the complaint does reference an arbitrator’s decision, this paragraph
appears to relate to the defendants’ alleged misconduct at the arbitration hearing, not the merits
of what the arbitrator decided. To the extent Pease alleges breach of contract, the arbitrator’s
decision may be relevant and admissible at summary judgment. However, this court can, and
has, considered the “Labor Contract & Working Agreement” attached as Exhibit A.1 to Randall’s
motion to dismiss and to Local 707’s reply. See Rosenblum y. Travelbyus.com Ltd., 299 F.3d
657, 661 (7th Cir. 2002).



preempted, plaintiffs have alleged that these terminations breached Randall’s labor agreement with
Local 707. (Compl. ff 13, 20, 29, 38.) Plaintiffs allege that Randall violated Article XV of the
CBA, which obligates Randall to comply with all federal and state employment laws. Plaintiffs have
thus alleged a breach of the contract even though Randall’s conduct “may be an unfair labor
practice.” Vaca, 386 U.S. at 184. Therefore, with respect to these paragraphs, defendants’ motion
is denied.

IL. 12(b)(6) Failure to State a Claim

A. Pease

With respect to Pease, defendants argue that he fails to state a claim because an arbitrator has
already determined that there was no breach of contract. Defendants assert that Pease has failed to
allege any basis to vacate the arbitrator’s award. Defendants may ultimately prevail on this point at
the summary judgment stage, but at this point in the proceedings, documents that a defendant
attaches to a motion to dismiss, like the arbitrator’s decision, may be considered only if they are
referred to in the plaintiffs complaint and are central to the plaintiff's claim. Levenstein v. Salafsky,

164 F.3d 345, 347 (7th Cir. 1998). Thus, this court cannot consider currently the documents that

' Article X of the CBA provides a grievance-arbitration procedure as the means to address
alleged breaches of the CBA. However, an employee may seek judicial enforcement of his or her
contractual rights when, as here, “the union has sole power under the contract to invoke the
higher stages of the grievance procedure, and if, as is alleged here [in 4 22, 30, 39 of plaintiffs’
complaint], the employee-plaintiff has been prevented from exhausting his contractual remedies
by the union’s wrongful refusal to process the grievance.” Vaca, 386 U.S. at 185. Thus, a
“wrongfully discharged employee may bring an action against his employer in the face of a
defense based upon the failure to exhaust contractual remedies, provided the employee can prove
that the union as bargaining agent breached its duty of fair representation in its handling of the
employee’s grievance. Id. at 186. As detailed below, plaintiffs so allege that Local 707 breached
its duty of fair representation.



and other evidence to rebut Berge’s claims. Again, however, this court cannot consider this evidence
in deciding this motion to dismiss. Such evidence may be considered if presented in conjunction
with a motion for summary judgment, but not now. Therefore, defendants’ motion with respect to
Berge is granted in part and denied in part.

D. — Gear

Similarly, Gear alleges that Randall violated the CBA by failing to pay him for thirty-two
hours a week of work. (Compl. 4] 48.). Randall disputes this allegation with affidavits and other
evidence. This court may consider this evidence at summary judgment, not with this motion to
dismiss. As explained below, Gear’s claims against Local 707 also remain. Thus, defendants’
motion to dismiss with respect to Gear is denied.

E. Claims Against Local 707

As to Local 707, plaintiffs have sufficiently alleged a claim for breach of the duty of fair
representation. The Supreme Court has held that a union, as the exclusive representative of
employees in a bargaining unit, has a duty to represent all members fairly. See Marquez, 525 U.S.
at 44. “[A] union breaches the duty of fair representation when its conduct toward a member of the
bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. “[U]nder the ‘arbitrary’ prong, a
union’s actions breach the duty of fair representation ‘only if [the union’s conduct] can be fairly
characterized as so far outside a ‘wide range of reasonableness’ that it is wholly ‘irrational’ or
‘arbitrary.’” Id. at 45. Here, plaintiffs allege that Local 707 failed to represent plaintiffs “in bad

faith, arbitrarily, and to discriminate.” (Compl. 22, 30, 39, 49.) Under federal notice pleading

in breach of the CBA. As such, he has failed to state a claim under § 301 of the LMRA. These
four “allegations” are dismissed without prejudice. Plaintiffs are given until January 21, 2003, to
file and serve an amended complaint.



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James F. Holderman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 6756 DATE 1/10/2003
CASE PEASE et al vs. PRODUCTION WORKERS UNION LOCAL 707 et al
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) o Answer brief to motion due___._ Reply to answer brief due.

(4) Oo Ruling/Hearingon____setfor__at

(5) Oo Status hearing[held/continued to] {set for/re-set for]on__——_ssetfor__—_ att

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__——sat__
(7) a Trial[set for/re-set for] on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto____at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCP4(m) (C)Local Rule 41.1 OC)FRCP41(a)(1) [ FRCP41(a)(2).

(do) 4 [Other docket entry] Pursuant to Memorandum Opinion and Order entered this day, defendants’
motion to dismiss is granted in part and denied in part. Plaintiffs are given to January 21, 2003 to file and
serve an amended complaint. Defendants are ordered to file their answer to the amended complaint by
February 5, 2003. The parties are to conduct an FRCP 26(f) conference and file a form 35 by February
11,2003. Status hearing is set for February 13, 2003 at 9:00 am. All lead counsel are directed to appear
on February 13, 2003 at 9:00 am.

al @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,

number of notices

V | Notices mailed by judge’s staff.

N 13.28

Notified counsel by telephone, . date docketed
Docketing to mail notices,
Mail AO 450 form. qynod \Oh leputy initials
Copy to judge/magistrate judge. Se
vtor2003
courtroom nog i CL ia) date mailed note

IS a deputy’s 7
initials aerate

Dathhiine eaived it)? -

central Clerk’s Office ily deputy itls



Article X.” The complaint states that Viti was hired in December 2001 and fired on or about
February 22, 2002. (Compl. {f 24, 25.) Taking such allegations as true, as this court must at this
stage, Viti was still a probationary employee, with no grievance or arbitration rights, at the time of
his discharge. Thus, claims in count JI remain to the extent that Randall breached the CBA by
terminating Viti in retaliation for his support of Local 150 (Compl. {{ 25, 29) and, as explained
below, that Local 707 breached its duty of fair representation by failing to enforce the CBA to protect
Viti’s rights (Compl. { 30).? However, any allegation in paragraph 30 that Local 707 failed to
present or pursue grievances pursuant to Article X of the CBA on Viti’s behalf is dismissed with
prejudice. Plaintiffs are correct that Local 707 has a duty of fair representation to probationary
employees; however, because Viti was a probationary employee with no grievance or arbitration
rights under the CBA, Local 707 had no duty to present or pursue Viti’s grievance through the
grievance procedure set forth in Article X.

C. Berge

As discussed above, Berge’s claims of retaliation against Randall (Compl. {ff 33, 38) and,
as detailed below, breach of duty of fair representation against Local 707 (Compl. 4 39) are
cognizable. Berge further alleges that Randall failed to pay him the contractually-guaranteed thirty-

two hours per week of work.* (Compl. § 34.) Randall attaches to its motion to dismiss affidavits

> Although he was not entitled to the grievance procedure, all other contractual provisions
were applicable to Viti, including Article XV, which requires compliance with federal and state
laws. Article II, Section 5 states: “The [probationary] employee shall be entitled to receive all
the wages, benefits and conditions of employment set forth in this Agreement during his
probation period.”

* Berge also asserts general, vague allegations that he filed grievances relating to his
layoff/termination, his availability for that position, cutting of hours, and violations of a
severance fund. (Compl. § 34.) It is not clear whether Berge is alleging that these actions were

7


ANALYSIS
Plaintiffs’ complaint is by no means a model of clarity. This court has struggled to try to
discern exactly what claims plaintiffs assert. Contrary to appropriate practice, the complaint is
organized by plaintiff into four counts, with multiple claims against defendants in each count. See
Feb. R. Civ. P. 10(b); Selep v. City of Chicago, 842 F. Supp 1068, 1070 (N.D. ILL. 1993) (noting that
multiple claims in a single count is not condoned).

I. 12(b)(1) Lack of Subject Matter Jurisdiction

Initially, this court must determine if it has subject matter jurisdiction over plaintiffs’ claims.
Section 8(a)(1), 29 U.S.C. § 158(a)(1), of the National Labor Relations Act (“NLRA”) prohibits an
employer from interfering with, restraining, or coercing employees in the exercise of their NLRA-
rights. The Act also prohibits an employer from interfering with the formation of any labor
organization, 29 U.S.C. § 158(a)(2), and discriminating “in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage membership in any labor
organization.” 29 U.S.C. § 158(a)(3). The Supreme Court has made clear that “[w]hen an activity
is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer
to the exclusive competence of the National Labor Relations Board . .. .” San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 245 (1959). “[A]s a general rule, neither state nor federal courts
have jurisdiction over suits directly involving ‘activity (which) is arguably subject to § 7 or § 8 of
the Act.’” Vaca v. Sipes, 386 U.S. 171, 179 (1967). However, where the collective bargaining
agreement (“CBA”) contains grievance and arbitration provisions, such as Article X of the Randall-

Local 707 agreement, “[i]f an employee is discharged without cause in violation of such an

agreement, that the employer’s conduct may be an unfair labor practice does not preclude a suit by



STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(1), this court can dismiss a case over
which it does not have subject matter jurisdiction. In determining whether this court has subject
matter jurisdiction, this court is not required to accept plaintiffs’ allegations as true. A “district court
ha{s] not only the right, but the duty to look beyond the allegations of the complaint to determine that
it ha[s] jurisdiction... .” Hay v. Indiana State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir.
2002).

Rule 12(b)(6) allows this court to dismiss a complaint that fails to state a claim upon which
relief can be granted. Unlike a Rule 12(b)(1) motion, in considering the merits of a motion made
pursuant to Rule 12(b)(6), the well-pled allegations of the complaint must be accepted as true.
Thompson v. Illinois Dep’t of Prof’] Regulation, 300 F.3d 750, 753 (7th Cir. 2002). In addition, all
ambiguities will be construed in favor of the non-moving party. Id. A court generally should only
dismiss a complaint where it is clear that no relief could be granted consistent with the allegations.
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The Rules do not require a plaintiffto plead
any facts in order to survive a 12(b)(6) motion to dismiss; a plaintiff may plead conclusions. See
McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). In deciding a Rule 12(b)(6)
motion to dismiss, this court must ask whether relief is possible under any set of facts that could be

established consistent with the allegations in the complaint. See Bartholet v. Reishauer A.G.

Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992).



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Christopher Pease, Vince Viti,
Willard Berge, and Mike Gear

Plaintiffs,
v. No. 02 C 6756
Production Workers Union of Chicago

and Vicinity Local 707, Randall Industries, Inc.,
and Randall Rents of Indiana

DOCKETED

JAN 13 2003

Defendants.

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

On September 20, 2002, plaintiffs Christopher Pease (“Pease”), Vince Viti (“Viti”), Willard
Berge (“Berge”), and Mike Gear (“Gear”) filed a four-count complaint against Production Workers
Union of Chicago and Vicinity Local 707 (“Local 707”), Randall Industries, Inc., and Randall Rents
of Indiana (collectively “Randall”) alleging violations of Section 301 of the Labor Management
Relations Act (““LMRA”), 29 U.S.C. § 185. Randall, on November 25, 2002, moved this court,
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss plaintiffs’ complaint
for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
On December 10, 2002, this court granted Local 707’s motion to adopt Randaill’s motion to dismiss
(collectively “defendants’ motion”). For the following reasons, defendants’ motion is granted in part

and denied in part.