O'Connor v. Local 881 United Food and Commercial

• Decision Date: 08 February 2005
• Docket Number: No. 04 C 5636.,04 C 5636.
• Citation: 393 F.Supp.2d 649
• Parties: Mary O'CONNOR and Timothy Connolly, Plaintiffs, v. LOCAL 881 UNITED FOOD AND COMMERCIAL WORKERS and Local 1546 United Food and Commercial Workers Union, AFL-CIO, CLC, Defendants.
• Court: U.S. District Court — Northern District of Illinois

393 F.Supp.2d 649

Mary O'CONNOR and Timothy Connolly, Plaintiffs, v. LOCAL 881 UNITED FOOD AND COMMERCIAL WORKERS and Local 1546 United Food and Commercial Workers Union, AFL-CIO, CLC, Defendants.

No. 04 C 5636.

United States District Court, N.D. Illinois, Eastern Division.

February 8, 2005.

Janice A. Wegner, Jeremy Antoine Damitio, Lisa Kane, Kevin R. Vodak, Lisa Kane & Associates, Chicago, IL, for Plaintiffs.

Jonathan D. Karmel, Mindy L Kallus, Karmel & Gilden, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

Plaintiffs Mary O'Connor and Timothy Connolly are full-time employees of Treasure Island Foods, Inc., a grocery store chain. As of 2004, O'Connor was the head bookkeeper at the Treasure Island located on Broadway in Chicago, Illinois. As of 2004, Connolly was the Deli Manager at the Treasure Island located on Wells Street in Chicago. Both had previously worked at other locations as well. Named as defendants are two locals of the United Food and Commercial Workers Union ("UFCW"), both of which were or are the collective bargaining representative for Treasure Island employees at particular stores. Both plaintiffs were members of the UFCW. As of 2004, defendant Local 881 represented workers at the Broadway and Wells Street stores, as well as some other stores in the Chicago area. Defendant Local 1546 represented employees at the Treasure Island located in Wilmette, Illinois, a Chicago suburb. O'Connor had previously worked at the Wilmette store but apparently not as of 2004.¹ Plaintiffs contend that defendants breached their duty of fair representation.

Defendants have moved to dismiss the Complaint, raising two grounds for dismissal. Defendants contend that plaintiffs are actually alleging a violation of § 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158, which defendants contend is within the exclusive jurisdiction of the National Labor Relations Board ("NLRB"). Alternatively, if the case is not dismissed on this jurisdictional ground, defendants contend that a breach of the fair duty of representation has not been adequately alleged.

On a Rule 12(b)(6) motion to dismiss, plaintiffs' well-pleaded allegations of fact are taken as true and all reasonable inferences are drawn in plaintiffs' favor. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Dixon v. Page, 291 F.3d 485, 486 (7th Cir.2002); Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir.2000). A complaint need not set forth all relevant facts or recite the law; all that is required is a short and plain statement showing that the party is entitled to relief. Fed.R.Civ.P. 8(a)(2); Boim v. Quranic Literacy Institute, 291 F.3d 1000, 1008 (7th Cir.2002); Anderson v. Simon, 217 F.3d 472, 474 (7th Cir.2000), cert. denied, 531 U.S. 1073, 121 S.Ct. 765, 148 L.Ed.2d 666 (2001); Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir.1999). Plaintiffs in a suit in federal court need not plead facts; conclusions may be pleaded as long as the defendants have at least minimal notice of the claim. Fed.R.Civ.P. 8(a)(2); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Scott, 195 F.3d at 951; Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir.1997); Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.1995). Even if not required to plead specific facts, plaintiffs can plead themselves out of court by alleging facts showing there is no viable claim. See Slaney v. The International Amateur Athletic Federation, 244 F.3d 580, 597 (7th Cir.), cert. denied, 534 U.S. 828, 122 S.Ct. 69, 151 L.Ed.2d 35 (2001); Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 669-70 n. 14 (7th Cir.1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999); Jackson, 66 F.3d at 153-54. Ordinarily, as long as they are consistent with the allegations of the complaint, a plaintiff may assert additional facts in his or her response to a motion to dismiss. Brokaw v. Mercer County, 235 F.3d 1000, 1006 (7th Cir.2000); Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.2000); Albiero, 122 F.3d at 419; Gutierrez v. Peters, 111 F.3d 1364, 1367 n. 2 (7th Cir.1997). Also, documents that are referred to in the complaint and that are central to a claim that is made may be considered to be part of the complaint even if not actually attached to the complaint. Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir.2002); Duferco Steel Inc. v. M/V Kalisti, 121 F.3d 321, 324 n. 3 (7th Cir.1997); Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir.1993). Where the document may properly be considered, the actual document will override inconsistent descriptions of the document alleged in the body of the complaint. See Rosenblum, 299 F.3d at 661 (quoting 5 Wright & Miller, Federal Practice & Procedure: Civil 2d § 1327 at 766 (1990)); In re Wade, 969 F.2d 241, 249 (7th Cir.1992); Beam v. IPCO Corp., 838 F.2d 242, 244-45 (7th Cir.1988).

In the complaint itself, it is unnecessary to specifically identify the legal basis for a claim as long as the facts alleged would support relief. Forseth, 199 F.3d at 368; Scott, 195 F.3d at 951; Albiero, 122 F.3d at 419; Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992); Dodaro v. Village of Glendale Heights, 2003 WL 1720030 *8 (N.D.Ill. March 31, 2003). A plaintiff is not bound by legal characterizations of the claims contained in the complaint. Forseth, 199 F.3d at 368; Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir.1999). However, in response to a motion to dismiss that raises the issue, the plaintiff must identify a legal basis for a claim and make adequate legal arguments in support of it. Kirksey, 168 F.3d at 1041-42; Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir.1995); Levin v. Childers, 101 F.3d 44, 46 (6th Cir.1996); Gilmore v. Southwestern Bell Mobile Systems, L.L.C., 224 F.Supp.2d 1172, 1175 (N.D.Ill.2002); Carpenter v. City of Northlake, 948 F.Supp. 759, 765 (N.D.Ill.1996).

To the extent defendants raise jurisdictional grounds for dismissal, the motion to dismiss is pursuant to Rule 12(b)(1), not Rule 12(b)(6). On the jurisdictional issue, the court may consider allegations and proof outside the complaint and resolve factual issues. See English v. Cowell, 10 F.3d 434, 437 (7th Cir.1993); Weidner Communications, Inc. v. H.R.H. Prince Bandar Al Faisal, 859 F.2d 1302, 1310 n. 11 (7th Cir.1988); Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir.1986); United States ex rel. Bidani v. Lewis, 1998 WL 1820753 *3 (N.D.Ill.Dec.29, 1998). Any rational mode of inquiry will suffice; the court has the discretion to hold a hearing to resolve factual disputes if circumstances dictate, but also has the discretion to resolve disputes on the papers that are presented. See Crawford, 796 F.2d at 928-29; Bidani, 1998 WL 1820753 at *3.

Plaintiffs' allegations are as follows. O'Connor became a member of Local 881 in 1982 and Connolly became a member of Local 881 in 1988. They remained members in good standing until May 2004. It is alleged that both participated in Local 881's pension and health plans from the beginning of their Treasure Island careers until April 2004. There is no allegation that either plaintiff was ever a member of Local 1546. It is alleged that O'Connor worked at the Wilmette store at one time, but there is no allegation or indication that she worked at the Wilmette store during 2004.

Local 881 had a collective bargaining agreement with Treasure Island that ran from July 24, 2001 through March 7, 2004 and which was extended one additional week to March 14, 2004 (the "881 CBA"). The 881 CBA covered various stores including the two Chicago stores at which plaintiffs were employed in 2004. All employees were in the bargaining unit except store managers. Local 1546 had a similar collective bargaining agreement that covered the Wilmette store from July 24, 2001 through March 7, 2004.

Under the 881 CBA, Treasure Island made contributions to Local 881 health and pension plans. Treasure Island paid all contributions and employees were not required to pay any portion. The pension plan did not include any type of 401(k) benefits.

In December 2003, Treasure Island began negotiations with both Locals regarding renewing the applicable bargaining agreements. In February 2004, citing economic hardship, Treasure Island proposed modifying the health and pension benefits provisions of both agreements. Treasure Island proposed using a private health plan instead of the Locals' health plans, limiting health benefits to employees who worked at least 32 hours per week, and requiring that covered employees pay a portion of the premiums. Treasure Island also proposed establishing 401(k) plans in place of the Locals' pension plans, but still making contributions that were equal to or greater than those required under the already existing bargaining agreements.²

In February 2004, O'Connor and other employees requested that Local 881 provide specific information regarding the status of negotiations with Treasure Island. No information was provided in response to the query. On March 7, 2004, the date the two bargaining agreements were originally scheduled to expire, both Locals held a membership meeting. No details about the pending negotiations were provided and Local officials would not respond to questions about the status of negotiations.

Because of the failure to respond to queries, plaintiffs and some other employees believed both Locals were failing to act in the employees' best interests. Plaintiffs and other employees began circulating petitions to decertify both Locals as their exclusive bargaining representatives.

On Saturday March 13, 2004, O'Connor discovered a notice in the break room at the Broadway store. The notice stated that, the next day (Sunday), Local 881 would be...