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August 22, 2003


The opinion of the court was delivered by: Arlander Keys, Magistrate Judge


Currently before the Court are Defendant Production Workers of Chicago and Vicinity Local 707's (the "Union") Motion in Limine and Motion for a Protective Order. Plaintiffs, all current or former employees of Randall Industries, Inc. or Randall Rents of Indiana (collectively "Randall"), allege that the Union breached its duty of fair representation in handling their grievances against Randall. In support of this claim, Plaintiffs seek to introduce expert testimony to illuminate the Union's duty in this regard. For the reasons set forth below, the Court recommends that Defendants' Motions be granted in part and denied in part. [ Page 2]


Randall is an Illinois corporation engaged in both the wholesale and retail rental, sale, and service of aerial lift and other construction equipment. Randall has facilities located in Elmhurst, Illinois and Portage, Indiana.

The Union is a labor organization, which represents heavy equipment operators, and other affiliated employees, that service aerial lift and heavy equipment employers throughout northwest Indiana, northern Illinois, and northeast Iowa. Although the Union has represented Randall employees for years, the International Union of Operating Engineers, Local 150 ("Local 150") sought to organize the Randall employees and become their exclusive bargaining representative on more than one occasion. In 1999, Local 150 challenged the Union for exclusive representation of the Randall employees, and lost the election by an 8 to 1 margin. The National Labor Relations Board (the "NLRB") certified the Union as the Randall employees' exclusive bargaining representative. Shortly thereafter, Randall and the Union negotiated a collective bargaining agreement ("CBA"), which was executed on June 18, 1999.

In February of 2002, Local 150 sought to oust the Union and become the exclusive representative of the Randall employees. Plaintiffs were all employed by Randall at the time, and each openly supported Local 150 in its campaign against the Union. [ Page 3]

Once again, the Union defeated Local 150 and was certified by the NLRB as the Randall employees' representative.

Following the election, Randall laid off or terminated three of the Plaintiffs. Plaintiffs complained that Randall took the adverse job actions in retaliation for Plaintiffs' open support of Local 150. Plaintiffs filed grievances with the Union, and sought the Union's support in pursuing their grievances. Plaintiffs allege that the Union failed to pursue their grievances in accordance with the terms of the CBA and breached its duty of fair representation to Plaintiffs.


On September 20, 2002, Plaintiffs, with the assistance of Local 150, filed suit against Defendants, alleging breach of contract against Randall, and breach of the duty of fair representation against the Union. The case was assigned to Judge James F. Holderman. Defendants filed a joint motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the NLRB had exclusive jurisdiction over Plaintiffs' claims, and that Plaintiffs had failed to state claims upon which relief could be granted.

Judge Holderman dismissed Plaintiffs' claims relating to Section 8 of the National Labor Relations Act (the "NLRA"), which prohibits employers from interfering with restraining or coercing employees in the exercise of their NLRA rights. State and [ Page 4]

federal courts lack subject matter jurisdiction over such claims. Pease v. Production Workers Union Local 707 et al., No. 02 C 6756 (Jan. 10, 2003 Order) quoting Vaca v. Sipes, 386 U.S. 171, 179 (1967) ("as 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.'") See also Communications Workers of AM. v. Beck, 487 U.S. 735, 743 (1988) ("Employees, 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.) However, the court denied Defendants' Motion with respect to the bulk of Plaintiffs' claims. The court conceded that Defendants' argument that Plaintiffs' breach of contract and fair representation claims were truly § 8 claims in disguise was strong, but found that Plaintiffs had sufficiently alleged a § 301 violation.

Plaintiffs filed their Amended Complaint on January 21, 2003. Judge Holderman referred the case to this Court on February 13, 2003, to supervise settlement and discovery. On August 5, 2003, the instant motions were referred to this Court.

Federal Rules of Evidence

Before addressing Defendants' Motions, the Court will set forth the Federal Rules of Evidence implicated in this matter. [ Page 5]

1. Rule 702

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, "a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed.R.Evid. 702. Courts should only admit expert testimony where "1) the testimony is based upon sufficient facts or data; 2) the testimony is the product of reliable principles and methods; and 3) the witness has applied the principles and methods reliably to the facts . . ." Id. 2. Rules 401 & 402

Relevant evidence is defined by the Federal Rules as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. This is a broad definition which allows background evidence to be "universally offered and admitted as an aid to understanding." FED. R. EVID. 401 advisory committee's note.

Relevant evidence contains two components: materiality and probative value. McCORNICK, § 185 at 773. Material evidence is that evidence which helps prove a matter at issue. Id. Probative value is the material evidence's ability to establish the proposition it is offered to prove, and that which helps [ Page 6]

establish probability of a fact. Id. at 774. An example of the breadth of Rule 401's definition is that evidence which supports a provable fact will never be irrelevant. Id. However, any evidence that does not fit into this broad definition is irrelevant and will not be admissible at trial. FED. R. EVID. 402. 3. Rule 403

Rule 403 provides that evidence, though relevant, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403. An example of when evidence should be excluded occurs where it is likely to induce a jury decision on an emotional, as opposed to a legal, basis. FED. R. EVID. 403 advisory committee's note. In deciding whether or not to exclude evidence based ...

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