JOHN J. THARP, Jr., District Judge.
In this personal injury action removed from Illinois state court, the plaintiff asserts claims of strict product liability, negligence, and breach of implied warranty against the manufacturer of an auto hauling rig from which he fell in January 2011. Among other things, Poulter alleges that that the rig was defective in that it lacked reasonably safe walkways, footings, and "tractions, " and was not equipped with adequate handholds, guardrails, or "other feasible fall protection devices." At the time of his accident, the plaintiff was working for Cassens Transport Company in Louisville, Kentucky, and was a member of a collective bargaining unit represented by the International Brotherhood of Teamsters.
Defendant Cottrell moves to dismiss Poulter's complaint, arguing that Section 301 of the Labor Management Relations Act, 28 U.S.C. § 185(a),  completely preempts Poulter's claims because they are substantially dependent on the interpretation of the collective bargaining agreement ("CBA") between the Teamsters and Cassens. Cottrell points in particular to provisions in the CBA that, it says, directly imposes the only safety standards governing the rigs (regardless of who manufacturers them), to the exclusion of any common law or statutory standards. Specifically, in Article 6, section 1, the employer agrees "that all conditions of employment relating to wages, hours of work, overtime differentials and general working conditions shall be maintained at not less than the minimum standards in effect at the time of the signing of this Agreement, and the conditions of employment shall be improved whenever specific provisions for improvement are made elsewhere in this Agreement." Cottrell says that among the relevant provisions "elsewhere in the agreement" is Article 30, section 8, which provides that a joint committee of the employer and the union "shall... review safety considerations relating to proper steps, handholds, [and] catwalks... and shall further review safety considerations relating to feasibility of handrails and cables on headrack ramps, swing decks and upper decks of tractors and trailers." Furthermore, Cottrell posits that because union members are required to file grievances relating to "unsafe workplace conditions, " decisions on such grievances, which are binding upon the employer and the union members under Article 30, section 2(b)(6), provide the only "law of the shop" governing safety standards.
Citing these provisions, Cottrell contends that Poulter's union bargained for standards for the rigs, and "agreed to forego certain state-law claims" in exchange for "uniform enforceability of their agreement." Br., Dkt. # 43 at 3. Allowing an injured worker to litigate tort claims against the manufacturer-which is not a party to the CBA-would, according to Cottrell, impermissibly intrude upon federal labor law because the CBA, not state law, provides the "agreed-to standard of care for all CBA rigs." See id. at 2.
Cottrell has made the same argument in at least sixteen prior cases involving similar tort claims, including others by employees of Cassens. As Poulter notes in his brief, and as Cottrell concedes, no court has accepted Cottrell's theory of preemption. Undeterred, Cottrell insists that a more recent LMRA preemption case, Duerson v. NFL, Inc., No. 12 C 2513, 2012 WL 1658353 (N.D. Ill. 2012) (Holderman, J.), changes the preemption landscape and compels a different result this time. Cottrell concedes that its argument about the effect of Duerson also has been rejected, see Hernandez v. Cottrell, No. 10 C 1522, 2012 WL 4009696 (N.D. Ill. 2012) (Dow, J.), but insists that the analysis in Hernandez, despite its ultimate conclusion that there was no preemption, compels a finding of preemption in this case.
Cottrell is wrong. Nothing in Duerson, Hernandez, or the Supreme Court's recent decision in Kurns v. R.R. Friction Products Corp., 132 S.Ct. 1261, 1264 (2012), a non-LMRA case that Cottrell also submitted as supplemental authority, changes the essential framework for analyzing LMRA preemption, and none of these cases suggests that preemption should be found here. Preemption occurs only when resolution of the claim requires interpretation of the collective bargaining agreement, and in this case, there is little need to refer to the agreement, let alone to parse its meaning, in addressing the injured plaintiff's claim against the manufacturer of the equipment.
A. The motion is converted to a summary judgment motion under Rule 56(d).
Poulter urges the Court to deny the motion to dismiss on the grounds that it does not attack his pleading, but rather sets forth a substantive defense predicated on extrinsic evidence, such as the collective bargaining agreement and Poulter's deposition testimony, that is not mentioned or alluded to in the complaint. Poulter contends that this is a summary judgment motion in disguise but does not comport with the procedural requirements for such a motion. In reply, Cottrell argues that its motion should be addressed "as filed" and considered in the style of a "failure to exhaust grievance procedures or a forum motion."
Cottrell's motion is not properly brought under Rule 12(b)(6) as it is not directed at the insufficiency of the pleadings, but on its affirmative defense of preemption. Both parties attach and rely upon material outside the complaint in making their arguments-although, apart from the CBA itself, the relevance of most of these hundreds of pages of material remains unclear. Because the Court does consider the CBA, however, the motion must be treated as one for summary judgment. See Fed.R.Civ.P. 56(d). Poulter has responded to the motion on the merits, submitted its own evidence, and has not suggested that any additional discovery is needed in order to oppose the motion. And the parties' submissions reveal no disputes of fact that are material to the question of preemption-a purely legal issue. Accordingly, both sides have had an adequate opportunity to submit the materials on which they seek to rely, and neither side will be prejudiced by the Court's conversion of the motion into one for summary judgment even without prior notice. See generally Cincinnati Ins. Co. v. Leighton, 403 F.3d 879, 885-86 (7th Cir. 2005); Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 626-27 (7th Cir. 2003).
B. The LMRA does not preempt the state-law claims against the manufacturer.
Because § 301 "not only provides the federal courts with jurisdiction over controversies involving collective-bargaining agreements but also authorizes the courts to fashion a body of federal law for the enforcement of" those agreements, state law is preempted by § 301 "in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements." United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 368 (1990). Section 301 preempts not only contract claims but also tort claims "if the duty to the employee of which the tort is a violation is created by a collective-bargaining agreement and without existence independent of the agreement." Rawson, 495 U.S. at 369; see In re Bentz Metal Products Co., Inc., 253 F.3d 283, 286 (7th Cir. 2001) ( en banc ) ("What has become clear is that preemption can extend beyond contract disputes to other state law claims if resolution of those claims is sufficiently dependent on an interpretation of a CBA."). However, "the Supreme Court has often cautioned that not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law.'" In re Bentz Metal Products Co., Inc., 253 F.3d 283 at 286 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985)).
One factor to consider when preemption is asserted is whether the controversy is between employee and employer, as is most often the case when § 301 preemption is an issue, " or whether it is asserted by a third party. Id. at 287. A third party's defense of the federal labor policy underlying preemption can "turn the policy behind federal labor laws on its head, " when what that third party is really arguing is that it should benefit, at a plaintiff-employee's expense, from the employee's collective bargaining agreement with his employer. See id.
Another consideration is the nature of the state-law right the plaintiff seeks to vindicate. If that right exists independently of any labor agreement-if it would apply equally to unionized and non-unionized workers-then section 301 does not preempt the claim. See id. at 288. That is, "it is the legal character of a claim, as independent' of rights under the collective-bargaining agreement that decides whether a state cause of action may go forward." Livadas v. Bradshaw, 512 U.S. 107, 123-24 (1994); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988).
These factors clearly carry great weight, but the Court agrees with Judge Dow's analysis in Hernandez that whether the defendant is party to the CBA and whether the right in question was created by state law are not alone dispositive. See 2012 WL 4009696, at * 2-3. Indeed, the Seventh Circuit has made plain that the courts must examine all relevant facts and decide on a ...