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Dean, et al. v. Eclipse

September 26, 2012

DEAN, ET AL.
v.
ECLIPSE, ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Ronald A. Guzman than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons stated below, the motion to compel the plaintiffs to respond to questions about the Warehouse Workers for Justice [61-1] is denied without prejudice. The plaintiffs' motion for leave to file a sur-reply [67-1] is granted. The plaintiffs' request to allow the filing of amicus briefs is denied as is their request for in camera inspection of certain documents. The parties shall follow the meet and confer procedure as detailed below.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Defendant Eclipse moves to compel testimony of the plaintiffs in this putative class action. For the reasons stated below, the motion to compel is denied without prejudice as discussed below.

The plaintiffs brought suit on behalf of themselves and others who are similarly situated alleging violations of state and federal wage and hour laws including the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), the Illinois Wage Payment and Collection Act ("IWPCA"), and the Illinois Day and Temporary Labor Services Act ("IDTLSA"). In the depositions of several plaintiffs, the defendants asked questions about the plaintiffs' affiliation with an organization called the Warehouse Workers for Justice ("WWJ"), which bills itself as an "independent workers center" founded by the United Electrical Workers ("UE") and financially supported by the UE Research and Education Fund. The plaintiffs' counsel objected to questions about the WWJ based on a First Amendment associational privilege and the protections afforded by the National Labor Relations Act ("NLRA"). Eclipse moves to compel the plaintiffs to respond to their questions.

Before addressing the merits of the asserted privilege, the Court notes that Eclipse states that it does not seek to discover the following information: (1) the plaintiffs' activities in the WWJ unrelated to this lawsuit; (2) the WWJ's organizational or advocacy activities beyond this litigation; (3) who, beyond the named plaintiffs/putative class representatives, are connected with, paid by, participate in or are members of the WWJ; or (4) the plaintiffs' concerted activities while employed by Eclipse because Eclipse is no longer a contractor at the Schneider warehouse at issue and the plaintiffs are no longer employed by Eclipse or Schneider, the company that runs the warehouse at issue.

However, Eclipse contends that it has a right to know: (1) whether the plaintiffs are on the WWJ payroll or are being otherwise compensated for this litigation; (2) whether the plaintiffs have agreed to pay their attorneys for their efforts and/or for the costs of this litigation and, if not, whether the WWJ is paying for those efforts in furtherance of its institutional objectives; (3) whether the plaintiffs supplied information to the WWJ which may conflict with their claims in this litigation; and (4) whether the plaintiffs have agreed to reimburse or pay the WWJ in any fashion for the proceeds of recovery. According to the defendants, these inquiries affect the credibility of the plaintiffs and the status of the plaintiffs as proper class representatives.

A. Protections Under the NLRA

The plaintiffs assert that questions about their affiliation with the WWJ or their organizing activity within the WWJ violate Section 7 of the NLRA, which "gives employees the right to keep confidential their union activities, including their attendance at union meetings." In re Guess?, Inc., 339 NLRB 432, 432 (2003).

Eclipse asserts that the matter of whether certain questioning is prohibited by the NLRA is within the exclusive initial jurisdiction of the NLRB. Apparently, Eclipse contends that the plaintiffs' argument regarding protections afforded under the NLRA can only be raised in an unfair labor practices complaint in front of the NLRB. Indeed, the plaintiffs rely solely on proceedings before the NLRB in support of their contention that the defendants questions violate Section 7 of the NLRA. Regardless, the plaintiffs assert that an order compelling their answers to the defendants' questions about the WWJ would constitute a court-sanctioned violation of the NLRA.

But Eclipse's inquiries, to the extent that they have been generally outlined in its brief, do not appear to implicate concerns protected by the NLRA. Eclipse does not seek information regarding the union organizing activities of the plaintiffs. The plaintiffs have made known their affiliation with the WWJ and indeed, as Eclipse notes, some wore WWJ t-shirts to their depositions. Thus, any protections provided to the plaintiffs by the NLRA regarding their WWJ membership has been waived. Moreover, Eclipse contends that it does not seek the names of any other WWJ members or any information regarding ...


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