Conclusion
For the reasons set forth above, the Union’s Rule 12(b)(6) motion to dismiss is denied.

ENTER:

UNITED STATES DISTRICT JUDGE

pate: _ (2 “(7-8 2



primary employer shares a work site with secondary employers. Though primary picketing in such
cases inevitably impacts secondary employers, the picketing is lawful unless “the union. .. intend[s}

to enmesh the secondary employer in the dispute.” RL, Coolsaet Constr. Co. v. Local 150, Int’!

Union of Operating Eng’ rs,,177 F.3d 648, 655 (7° Cir. 1999). Thus, the determination of whether
a union has engaged in unlawful secondary picketing “is a factual inquiry into the union’ s actual state
of mind.” Id.

ECS alleges that the Union picketed ECS’ work sites with the intention of “induc{ing) or
encourag[ing| neutral employees . . . to withhold their services in order to encourage the site
owner/developer to cease doing business with ECS.” (First Am, Compl. 46.) The Union says that
allegation is insufficient because ECS has alleged no facts to support it. (Union Mem, Supp. Mot.
Dismiss First Am. Compl. at 7.) But, fact pleading, which is what the Union is demanding, is not
the standard in federal court. Though the Federal Rules of Civil Procedure require certain matters,
like fraud, to be alleged “with particularity,” all other issues, including “[mfalice, infent, [and]
knowledge . .. may be averred generally.” Fen. R. Civ. P. 9(b) (emphasis added). Because ECS has
atleged that the union picketed its work sites with the intent to cause secondary impact, its claim

survives the Union’s motion to dismiss,


QQ

Minule Order Fa (06197)

United States District Court, Northern District of Hlinois

Serta | Pau E.Phnket | sda
CASE NUMBER 02 C 3938 DATE 12/19/2002
CASE ENGINEERING CONSULTING SERVICES vs, INTERNATIONAL
TITLE BROTHERHOOD ,ETC.

[In the following box (a) indicate the party tiling the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the namure
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

Q) a Bricfin support of motion due.

(3) QO Answer brief to motion due_ » Reply to answer brief duc___

(4) im Ruling/Hearingon__ set for at_

(5) im) Status hearing{hcld/continued to] [sct for/re-set for]on___eset for at
(6) Q Pretrial conference[held/continued to] [set for/re-set for]on ___—s_setfor_—at__
(7) Qo Trial[set for/re-setfor}on_—_at_

(8) im) {Bench/Jury trial] [Hearing] hcld/continued to_ ss at__

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

QFRCP4(m) Local Rule 41.1 OFRCP41(ay(1) OC FRCP41(a)(2).

qo) «sol [Other docket entry] © ENTER MEMORANDUM OPINION AND ORDER: the Union’s Rule
12(b)(6) motion to dismiss is denied. Status hearing date of 4/3/03 is stricken and reset to 5/7/03 at
9:30a.m.

adi [For further detail sce order attached to the original minute order.]

No notices required, advised in open court,

la notices required,
No notices requi ayumber of notices

GEC 2h 2007

dul dncketud

socketin t initials

Notices mailed by judge's staff.

Notified counsel by lelephone,

wv | Docketing to mail notices,

Mail AO 450 form,

Copy to judge/magistrate judge.

courtroom
VBK deputy’s
initials

Date/lime received in

central Clerk's Office mailing deputy initials



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

ENGINEERING CONSULTING
SERVICES, LTD.,

Plaintiff,

No. 02 C 3938
Paul £. Plunkett, Senior Judge

Vv.

INTERNATIONAL BROTHERHOOD OF
OPERATING ENGINEERS, LOCAL 150

wwe wee swe ew

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Engineering Consulting Services, Ltd. (“ECS”) has sued defendant International
Brotherhood of Operating Engineers, Local 150 (“the Union”) pursuant to section 303 of the Labor
Management Relations Act, 29 U.S.C. § 187 (“LMRA”), for its alleged violations of section 8 of
the National Labor Relations Act, 29 U.S.C. § 158 (“NLRA”). ‘The Union has filed a Federal Rule
of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss the complaint. For the reasons set forth

below, the motion is denied.

Facts

ECS is an engineering corporation that monitors the performance of construction contractors
on behalf of property owners. (First Am. Compl. {§ 1-2.) The Union is a labor organization that

represents employees in, among other places, Cook, Will and DuPage Countics in Illinois. (Id. 93.)


Since February J1, 2002, the Union has picketed or threatened ta picket at a number of sites
in Illinois where ECS currently works or has submitted proposals to work. (Id. 5.) At some of
these sites, the Union has picketed entrance gates used only by neutral employces, (Id. 16.) Atall
of the sites the Union’s “object has been to induce or encourage neutral employees . . . to withhold
their services in order to encourage the site owner/developer to cease doing business with ECS.”
(id)

ECS says the Union’s conduct violates the NLRA and has sued to recover the damages it has

incurred as a result of the Union’s unlawful conduct.

The Legal Standard

Ona Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’s favor. Midwest
Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir, 1992). No claim will be dismissed unless “it
is clear that no relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Discussion
The NLRA permits a union to picket an employer with whom it has dispute. BE&K Constr.

Co.v. Will & Grundy Counties Bldg. ‘Trades Council, 156 F.3d 756, 761 (7" Cir, 1998), But it

prohibits a union from trying to advance its agenda with the primary employer by picketing
unrelated, secondary employers to induce them to stop dealing with the primary. Id. The line

between lawful primary picketing and unlawful secondary picketing becomes blurred when the