For instance, the Statement of Facts declares that from September 28, 1990 to October 4, 1990, Teamsters Local 703 and Local 707 NPWU were joint representatives of Dominick's employees. The Statement of Facts declares further that the joint representation was effected by a September, 1990 Memorandum of Agreement entered into between Dominick's and Teamsters Local 703, a memorandum which amended the collective bargaining agreement which had previously existed between them. In addition, Local 707 NPWU's brief states that prior to the execution of the Memorandum of Agreement, Dominick's was presented with petitions, signed by a majority of its employees, authorizing the amendment to the collective bargaining agreement. The Statement of Facts also asserts that on October 4, 1990, Teamsters Local 703 notified Dominick's that it was disclaiming interest in representing Dominick's employees.
All those facts will be disregarded, however. This court is not disregarding the facts because it finds them irrelevant. On the contrary, those facts seem crucial to the disposition of this case and this court anticipates their eventual reintroduction in a more appropriate context, i.e., in a subsequent motion for summary judgment or in a hearing on the merits. The introduction, however, of additional facts in Respondent Local 707 NPWU's brief was improper in a Rule 12(b)(6) motion which is strictly a procedural device to test the sufficiency of the plaintiff's pleadings. See Yeksigian v. Nappi, 900 F.2d 101 (7th Cir. 1990).
Rule 12(b) permits courts to view motions to dismiss as motions for summary judgment under Rule 56 if the motion is accompanied by matters outside the pleading. Even if this court were inclined to regard this motion as a motion for summary judgment it would be unable to do so, however. Respondent Local 707 NPWU attached no affidavits, no transcripts of depositions, no admissions, no answers to interrogatories--nothing--to create a record upon which to introduce facts not included in the Board's pleadings. Moreover, a motion for summary judgment would have to comply with General Rule 12(m) of the Northern District of Illinois requiring a movant for summary judgment to file a Statement of Material Uncontested Facts replete with references to the record.
In its memorandum in opposition to the amended 12(b)(6) motion, the Board apparently accepted the extra facts introduced and relied upon in Local 707 NPWU's brief. Why it did so is unclear. If the parties wish to argue a summary judgment motion, then one of them should make such a motion and the parties should attach the proper documentation and comply with General Rules 12(m) and 12(n). This court will not pick through the Board's brief and figure out which facts it is conceding. To do so would be contrary to the purpose of General Rules 12(m) and 12(n), see Bell. Boyd & Lloyd v. Tapy, 896 F.2d 1101 (7th Cir. 1990), and also would require the acceptance of facts not properly documented in accordance with Federal Rule 56. To do so would also be inconsistent with the procedural posture of a rule 12(b)(6) motion to dismiss.
Turning to the merits, it appears that based on the facts alleged in the complaint the Board has a likelihood of prevailing at the administrative proceedings. The administrative law judge is likely to find that Local 707 NPWU's alleged role in the elbowing out of Teamsters Local 703 (again, assuming the facts of the petition) violates § 8(b)(1)(A) of the Act. § 8(b)(1)(A) provides that:
It shall be an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title [pertaining to right of employees to organize, form and join labor unions of their own choosing].
29 U.S.C. § 158(b)(1)(A). See Haddon House Food Products, Inc. v. N.L.R.B., 764 F.2d 182 (3rd Cir. 1985), cert. denied 475 U.S. 1011, 89 L. Ed. 2d 303 , 106 S. Ct. 1187 (1986) (rival nonincumbent union committed an unfair labor practice in violation of § 8(b)(1)(A) by accepting recognition of employer even if it was unaware that its rival had filed a valid representation petition).
In addition, it is not obvious from the petition that the Board would be unable to prove that the irreparable harm it (and the public) would suffer if an injunction were wrongly denied is at least as great as the irreparable harm that Respondents (and the public) would suffer if a § 10(j) injunction were wrongly granted. The petition alleges a plausible outcome resulting in the irreparable erosion of legitimate and protected employee rights were this court to fail to issue a warranted injunction.
For the foregoing reasons, Local 707 NPWU's amended motion to dismiss is denied. In addition, this court suggests that henceforth the parties follow the analytic framework laid out in Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir. 1989)