BIRDA TROLLINGER; ROBERT MARTINEZ; TABETHA EDDINGS and DORIS JEWELL v. Tyson Foods, Inc.

*The Honorable Robert Holmes Bell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0165P (6th Cir.)
File Name: 04a0165p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BIRDA TROLLINGER; ROBERT
MARTINEZ; TABETHA
EDDINGS and DORIS JEWELL,
Plaintiffs-Appellants,
v.
TYSON FOODS, INC.,
Defendant-Appellee.
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No. 02-6020
Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 02-00023—R. Allan Edgar, Chief District Judge.
Argued: December 11, 2003
Decided and Filed: June 3, 2004
Before: BATCHELDER and SUTTON, Circuit Judges;
BELL, Chief District Judge.*
2 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
_________________
COUNSEL
ARGUED: Howard W. Foster, JOHNSON & BELL,
Chicago, Illinois, for Appellants. Virginia A. Seitz, SIDLEY,
AUSTIN, BROWN & WOOD, Washington, D.C., for
Appellee. ON BRIEF: Howard W. Foster, JOHNSON &
BELL, Chicago, Illinois, for Appellants. Virginia A. Seitz,
Mark D. Hopson, Griffith L. Green, SIDLEY, AUSTIN,
BROWN & WOOD, Washington, D.C., Christopher H.
Steger, MILLER & MARTIN, Chattanooga, Tennessee, for
Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. At issue in this case is an
application of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1961 et seq., to a
wage-related dispute between Tyson Foods, Inc. and four of
its employees. On behalf of themselves and a putative class
of similarly-situated workers, the four employees allege that
Tyson violated RICO by engaging in a scheme with several
employment agencies to depress the wages of Tyson’s hourly
employees by hiring illegal immigrants.
Soon after the action was filed, Tyson moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject-matter jurisdiction, arguing that the National
Labor Relations Act preempts the employees’ RICO claims
under the labor-preemption doctrine articulated in San Diego
Building Trades Council v. Garmon, 359 U.S. 236 (1959).
Tyson also moved to dismiss the complaint under Rule
12(b)(6) for failure to state a claim, arguing (1) that plaintiffs
lack statutory standing under RICO to pursue this case
because any injury they suffered was derivative of an injury

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 3
to their union, which served as plaintiffs’ exclusive
representative in negotiating wages, and (2) that Tyson’s
alleged misconduct did not proximately cause an injury to
plaintiffs. The district court granted the Rule 12(b)(6)
motion, denied the Rule 12(b)(1) motion, and dismissed the
case with prejudice. Because we reject the application of
Garmon preemption in this context and because we cannot
say at this early stage in the case that the allegations in the
complaint are insufficient as a matter of law to establish
statutory standing, we reverse the district court’s judgment.
I.
One of the nation’s largest poultry processors, Tyson
Foods, Inc. employs more than 120,000 workers. Tyson’s
headquarters are in Springdale, Arkansas, and it has
processing plants throughout the country. One of Tyson’s
plants is located in Shelbyville, Tennessee, a town of 15,000
people in middle Tennessee, approximately 50 miles
southeast of Nashville.
In December 2001, a federal grand jury returned a 36-count
indictment against Tyson and several individuals. In general,
the indictment charged Tyson and the individuals with
conspiring to smuggle illegal aliens into the United States
across its southern border and employing them at 15 of
Tyson’s processing plants in nine different States. In addition
to a conspiracy to violate the immigration laws in violation of
18 U.S.C. § 371, the indictment charged the defendants with
causing illegal aliens to be brought into the country, in
violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2;
causing illegal aliens to be transported, in violation of
8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i), and 18 U.S.C.
§ 2; causing the use of illegal documents, in violation of
18 U.S.C. §§ 1546(b) and 2; and causing the possession of
fraudulent documents by illegal aliens, in violation of
18 U.S.C. §§ 1546(a) and 2.
4 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
In April 2002, soon after the indictment was filed, Birda
Trollinger, Robert Martinez, Tabetha Eddings and Doris
Jewell—former hourly workers at Tyson’s Shelbyville facility
who were legally employed by Tyson—filed this civil RICO
action against Tyson based on some of the same allegedly
illegal activities underlying the criminal indictment. The
amended complaint alleges that Tyson engaged in a scheme
to depress the wages paid to its hourly employees by
knowingly hiring undocumented illegal immigrants who were
willing to work for wages well below those paid in labor
markets composed of only United States citizens. Assisting
Tyson in this scheme was a network of recruiters and
temporary employment agencies that would transport the
illegal workers to the United States, obtain housing for them
and provide them with false identification documents. As a
result of the scheme, the complaint alleges, over half of the
workers at 15 of Tyson’s facilities are illegal immigrants,
allowing Tyson to pay its legal employees wages substantially
below the wage level paid by other employers of unskilled
labor in the areas surrounding the 15 facilities. Plaintiffs seek
injunctive relief along with treble damages.
On May 24, 2002, Tyson moved to dismiss the complaint
on two grounds, each hinging in part on the role of a union in
negotiating employee wages. Tyson first moved to dismiss
under Rule 12(b)(6) for failure to state a claim, arguing that
the employees could not satisfy RICO’s statutory-standing or
proximate-cause requirements, see Holmes v. Sec. Investor
Prot. Corp., 503 U.S. 258 (1992), because the union
negotiated and agreed to the wage scale contained in the
collective bargaining agreement and because this intervening
factor made any damages to the employees speculative. If
anyone has a RICO claim, Tyson argued, it would be the
union, not the employees. Tyson also moved to dismiss the
complaint under Rule 12(b)(1) for lack of subject-matter
jurisdiction, arguing that the employees’ RICO claims fall
within the primary (and exclusive) jurisdiction of the National
Labor Relations Board under San Diego Building Trades
Council v. Garmon, 359 U.S. 236 (1959). Attached to

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 5
Tyson’s Rule 12(b)(1) motion were two collective bargaining
agreements between Tyson and the Retail, Wholesale and
Department Store Union, AFL-CIO establishing the terms and
conditions of employment for Tyson’s hourly workers at the
Shelbyville plant.
On July 16, 2002, the district court granted Tyson’s Rule
12(b)(6) motion, denied the Rule 12(b)(1) motion and
dismissed the action with prejudice. Plaintiffs failed to state
a claim, the district court held, because they could not
establish “a ‘direct relation between the injury asserted and
the injurious conduct alleged.’” D. Ct. Op. at 5 (quoting
Holmes, 503 U.S. at 268). “As the wage rates were the
product of collective bargaining,” the court explained,
“plaintiffs cannot demonstrate that those rates were ultimately
depressed by the presence of alleged illegal aliens in the work
force.” Id. at 6. The court further reasoned that “plaintiffs’
wages could have been affected by [the wages] other
employers paid, the availability of workers, the profitability
of the defendant’s businesses, and other factors that influence
any labor market,” and thus “the conclusion that Tyson’s
hiring of alleged illegal aliens depressed the plaintiffs’ wages
would require sheer speculation.” Id.
Having granted the Rule 12(b)(6) motion, the court denied
the Rule 12(b)(1) motion. In its view, the question whether
the National Labor Relations Act preempted plaintiffs’ RICO
claims was “somewhat murky” and the court was “not
prepared to say at [that] time that it lack[ed] subject matter
jurisdiction.” D. Ct. Op. at 7.
In dismissing plaintiffs’ complaint for failure to state a
claim, the district court acknowledged that it had relied on the
existence of the union and the collective bargaining
agreements negotiated by the union, even though plaintiffs
had not specifically mentioned these facts in their complaint.
Yet this omission posed no obstacle to dismissing the case,
the court held, because the collective bargaining agreements
were “properly raised” and “considered” in connection with
6 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Tyson’s Rule 12(b)(1) motion and because “[t]heir existence
may be judicially noticed” in connection with Tyson’s Rule
12(b)(6) motion. D. Ct. Op. at 7.
Plaintiffs appeal the judgment, which we review de novo.
See Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th
Cir. 2002).
II.
We begin, as we must, by asking whether the district court
had jurisdiction to hear this case. See Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 101 (1998). Plaintiffs
allege that Tyson violated a federal law (RICO), which
customarily gives rise to federal-question jurisdiction under
28 U.S.C. § 1331. Invoking the doctrine of “Garmon
preemption,” however, Tyson argues that the National Labor
Relations Act “preempts” plaintiffs’ wage-related RICO
claims and that as a result the district court lacked subject-
matter jurisdiction to hear them. We disagree.
The use of the term “preemption” in this setting, as an
initial observation, has a dissonant ring to it. To say that
federal courts lack jurisdiction to hear a claim under one
federal act (RICO) because it is “preempted” by another
federal act (the National Labor Relations Act) is not a natural
use of the term “preemption.” As federal courts generally use
the term, preemption does not describe the effect of one
federal law upon another; it refers to the supremacy of federal
law over state law when Congress, acting within its
enumerated powers, intends one to displace the other. See
U.S. Const. art. VI, cl. 2 (“[T]he Laws of the United States
. . . shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the
Constitution or Laws or any State to the Contrary
notwithstanding.”). Preemption, moreover, does not normally
concern the subject-matter jurisdiction of a court to hear a
claim, which is what is relevant to the resolution of a Rule
12(b)(1) motion. Rather, the doctrine generally concerns the

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 7
merits of the claim itself—namely, whether it is viable and
which sovereign’s law will govern its resolution. That is why
litigants typically invoke preemption as a defense to state-law
claims asserted in state or federal court, not as a jurisdictional
defect.
As these observations suggest, Garmon is more than a
preemption doctrine. “When an activity is arguably subject
to § 7 or § 8 of the [National Labor Relations] Act,” Garmon
holds that “the States as well as the federal courts must defer
to the exclusive competence of the National Labor Relations
Board if the danger of state interference with national policy
is to be averted.” Garmon, 359 U.S. at 245. Sections 7 and
8 of the National Labor Relations Act protect certain labor
practices (such as organizing or joining a labor union,
bargaining collectively, and engaging in concerted activity, or
refraining from engaging in any of these activities) and
prohibit certain others (such as interfering with a protected
activity or coercing employees to join a union). In
establishing the Garmon doctrine, two concerns motivated the
Supreme Court: (1) “the expressed congressional desire for
uniformity in the nation’s labor policy” and (2) the desire “to
make use of the Board’s expertise in the area of labor
relations.” Northwestern Ohio Adm’r, Inc. v. Walcher & Fox,
Inc., 270 F.3d 1018, 1027 (6th Cir. 2001).
Garmon is more than a traditional preemption doctrine,
then, because when properly invoked it tells us not just what
law applies (federal law, not state law) but who applies it (the
National Labor Relations Board, not the state courts or federal
district courts). See Sears, Roebuck & Co. v. San Diego
County Dist. Council of Carpenters, 436 U.S. 180, 199–200
& n.29 (1978) (distinguishing between the “constitutional”
component of the Garmon doctrine (rooted in
“[c]onsiderations of federal supremacy”) and the “primary
jurisdiction” component of the Garmon doctrine (rooted in
the exclusive competence of an expert federal agency)); id.
(distinguishing between the administrative law doctrine of
“primary jurisdiction” (which is a matter of abstention) and
8 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Garmon’s use of the term (which has jurisdictional
consequences)).
“As a general rule,” Garmon establishes that “federal
courts do not have jurisdiction over activity which is
‘arguably subject to § 7 or § 8 of the [NLRA],’ and they
‘must defer to the exclusive competence of the National
Labor Relations Board.’” Kaiser Steel Corp. v. Mullins, 455
U.S. 72, 83 (1982) (quoting Garmon, 359 U.S. at 245)
(emphasis added). Under the doctrine, as a result, a federal
district court does not have jurisdiction to determine whether
an employer violates the NLRA by refusing to make
contributions to a pension plan during contract negotiations,
which is arguably an unfair labor practice. Laborers Health
& Welfare Trust Fund v. Advanced Lightweight Concrete Co.,
484 U.S. 539, 543 n.4, 549 (1988). Nor does a federal district
court have jurisdiction to review a claim by employees that
their union violated the NLRA by charging agency fees for
nonrepresentational purposes, which also is arguably an
unfair labor practice. Communications Workers of Am. v.
Beck, 487 U.S. 735, 742–43 (1988); see also Breininger v.
Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S.
67, 74 (1989); Storey v. Local 327, Int’l Bhd. of Teamsters,
759 F.2d 517, 520 (6th Cir. 1985) (when Garmon applies,
“neither state nor federal courts have subject matter
jurisdiction”); id. at 522 (“Though state interference . . . was
involved in Garmon, the Supreme Court made it clear that
pre-emption applies to federal district courts as well.”).
Like many “general” rules, however, this one contains
exceptions, the most important of which is that “federal courts
may decide labor law questions that emerge as collateral
issues in suits brought under independent federal remedies.”
Connell Constr. Co. v. Plumbers & Steamfitters Local Union
No. 100, 421 U.S. 616, 626 (1975). Connell, for example,
held that federal courts may decide labor-law questions that
emerge as collateral issues in federal antitrust lawsuits even
though such questions would normally fall within the
exclusive jurisdiction of the NLRB under Garmon and even

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 9
though state antitrust laws are nonetheless preempted under
the same circumstances. Id. at 626, 635–36; see Beck, 487
U.S. at 743–44 (holding that a federal district court may
decide whether an activity is an unfair labor practice under the
NLRA when the matter is raised as a defense to a claim under
an independent federal remedy over which the federal district
courts do have jurisdiction); Kaiser Steel, 455 U.S. at 86
(same); Hardeman, 401 U.S. at 237–39 (holding that
Congress “referred claims under the [Labor-Management
Reporting and Disclosures Act], not to the NLRB, but to the
federal courts,” even when the conduct at issue is also an
arguably unfair labor practice); Serrano v. Jones & Laughlin
Steel Co., 790 F.2d 1279, 1288 (6th Cir. 1986) (“Federal
courts have jurisdiction under section 301 of the [Labor-
Management Relations Act] over suits to enforce collective
bargaining agreements . . . even when the employer’s conduct
is arguably covered by section 7 or 8 [of the NLRA].”).
This exception to the Garmon doctrine for independent
federal remedies takes its instruction from a cardinal principle
of statutory construction: “When there are two [federal] acts
upon the same subject, the rule is to give effect to both.”
United States v. Borden Co., 308 U.S. 188, 198 (1939).
“[A]bsent an intolerable conflict between the two statutes,”
the Supreme Court has long been “unwilling to read the [later
Act] as repealing any part of the [former Act].” Atchison,
Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 566–67
(1987); see, e.g., id. at 564 (“The fact that an injury otherwise
compensable under the [Federal Employers’ Liability Act]
was caused by conduct that may have been subject to
arbitration under the [Railway Labor Act] does not deprive an
employee of his opportunity to bring an FELA action for
damages.”); Morton v. Mancari, 417 U.S. 535, 549–50
(1974).
Consistent with this principle of construction, federal
district courts may enforce congressional remedies created by
a different federal statute so long as the statute does not
conflict with §§ 7 or 8 of the NLRA and so long as litigants
10 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
do not “circumvent the primary jurisdiction of the NLRB
simply by casting statutory claims [under §§ 7 or 8 of the
NLRA] as violations of [an independent federal law].” Beck,
487 U.S. at 743–44. The Supreme Court’s decision in
Advanced Lightweight Concrete illustrates the distinction.
Trustees of a pension plan filed a lawsuit under ERISA,
alleging that the NLRA obligated an employer to make
certain pension-plan contributions. The Court concluded that
the employer’s failure to make post-contract contributions
would be illegal, if at all, only by virtue of the NLRA because
ERISA did not require the contributions at issue and because
the NLRA arguably did. The exception to Garmon for
independent federal remedies, the Supreme Court held, did
not apply and accordingly the district court lacked jurisdiction
over the case. 484 U.S. at 543 n.4, 549.
As applied to RICO and to the NLRA, these principles
indicate that Garmon does not preclude federal courts from
adjudicating a RICO action based upon conduct that is
arguably protected or prohibited by the NLRA if under the
circumstances (1) RICO operates as an independent federal
remedy and (2) the labor questions in the case amount to no
more than collateral issues. This test, it seems to us, will
infrequently preclude a federal court from hearing RICO
claims involving labor-related issues, and only two
circumstances immediately come to mind in which a federal
RICO claim would fail this test and in which Garmon would
apply.
First, when a RICO action depends upon a predicate state
law violation and the state law itself is preempted under
Garmon, a federal RICO action will not lie because a state-
law-dependent remedy is not an independent federal remedy.
See Baker v. IBP, Inc., 357 F.3d 685, 689 (7th Cir. 2004) (“If
the predicates are state offenses that themselves would be
preempted by Garmon, then invoking those laws indirectly
through RICO” is still barred by Garmon.); see also
18 U.S.C. § 1961(1) (defining “racketeering activity” to
include “any act or threat involving murder, kidnapping,

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 11
gambling, arson, robbery, bribery, extortion, dealing in
obscene matter, or dealing in a controlled substance . . . ,
which is chargeable under State law and punishable by
imprisonment for more than one year”). A RICO claim that
depends on a Garmon-preempted state law would implicate
Garmon’s concern for uniformity in the nation’s labor policy
every bit as much as a pure-Garmon-preempted-state-law
claim.
Second, when a RICO action depends upon a federal-law
predicate offense and a violation of that predicate law may be
found only if the defendant’s conduct violates the NLRA, the
federal district courts lack jurisdiction under Garmon because
the NLRA issues in the case would be anything but collateral.
A litigant may not “cast[] statutory claims” under the NLRA
as violations of RICO, and a claim that depends entirely upon
the ability to prosecute and prove a violation of the NLRA
would represent nothing more than an NLRA claim
masquerading as a RICO one. See Tamburello v. Comm-Tract
Corp., 67 F.3d 973, 979 (1st Cir. 1995) (“Because plaintiff’s
claim hinges upon a determination of whether an unfair labor
practice has occurred, we conclude that his RICO claims are
subject to the primary jurisdiction of the NLRB.”); Talbot v.
Robert Matthews Distrib. Co., 961 F.2d 654, 662 (7th Cir.
1992) (holding that the NLRA preempts a RICO claim when
“the underlying conduct of the plaintiffs’ RICO claim is
wrongful only by virtue of the labor laws”).
Measured by these requirements, Tyson’s argument that the
district court lacked jurisdiction over this claim falls short.
Even assuming for the sake of argument that hiring illegal
aliens for the purpose of depressing employee wages is
arguably protected or prohibited by the NLRA, Garmon poses
no obstacle to the RICO claims in this case or to the district
court’s jurisdiction in this case.
For one, plaintiffs do not rely upon any state law predicates,
let alone any Garmon-preempted state law predicates, so
Tyson has no basis for invoking Garmon on that ground. For
12 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
another, plaintiffs do not need to prove a violation of the
NLRA in order to establish violations of the federal-law
predicate upon which they rely—§ 274 of the Immigration
and Nationality Act (codified at 8 U.S.C. § 1324). See 18
U.S.C. § 1961(1)(F) (making “any act indictable under . . .
section 274 (relating to bringing in and harboring certain
aliens)” a RICO predicate act if “committed for the purpose
of financial gain”).
Congress added § 274 to RICO’s list of predicate offenses
in 1996, see Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, § 433, 110 Stat. 214, and the
provision makes it a crime to hire more than ten illegal aliens
in any one-year period “with actual knowledge that the
individuals are [illegal] aliens.” 8 U.S.C. § 1324(a)(3)(A). It
is difficult to see the relevance to this claim, let alone the
necessity, of plaintiffs’ proving that hiring illegal aliens is
protected or prohibited conduct under the NLRA. If this
activity amounted to protected conduct, the NLRA might
provide a defense on the merits of the RICO claim for Tyson,
but that would be a collateral issue well within the federal
courts’ competence to decide. If the activity amounted to
prohibited conduct, plaintiffs’ union could bring a complaint
before the National Labor Relations Board under the NLRA,
but that does not alter the fact that plaintiffs may
independently prove a violation of the INA as incorporated by
RICO without raising a single NLRA issue and without
requiring the district court to interpret the NLRA. In the
absence of a federal cause of action that requires the district
court in the first instance to interpret the NLRA, it is difficult
to see how Garmon is implicated in general or how the
primary-jurisdiction concern that amplifies this aspect of the
Garmon doctrine is implicated in particular. Garmon, in
short, does not reach the RICO claims in this case.
In so holding, we are in good company, as this result
accords with a recent decision by the Seventh Circuit
involving a RICO claim based on the same alleged predicate
offense and based on comparable factual allegations. See

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 13
Baker, 357 F.3d at 688–90. “When the predicate offenses of
a particular claim under RICO are federal crimes other than
transgressions of the labor laws,” Baker holds, “no dispute
falls within the [NLRB’s] primary jurisdiction, even if labor
relations turn out to be implicated in some other fashion.” Id.
at 689.
III.
While the district court had jurisdiction to hear this case, it
remains to be seen whether the complaint states a claim upon
which relief may be granted. The district court answered that
question in the negative and dismissed the case for lack of
statutory standing because, in its view, plaintiffs neither
alleged a sufficiently direct injury nor advanced a sufficiently
plausible theory of damages. At this early stage of the case,
we disagree.
A.
RICO’s civil-suit provision grants “[a]ny person injured in
his business or property by reason of a violation of” RICO’s
substantive provisions the right to “sue [] in any appropriate
United States district court” and to “recover threefold the
damages he sustains and the cost of the suit, including a
reasonable attorney’s fee.” 18 U.S.C. § 1964(c). Because
Congress modeled this provision on similar language in the
antitrust laws (§ 4 of the Clayton Act and § 7 the Sherman
Act) and because the antitrust laws have been interpreted to
require that a private plaintiff show proximate cause in order
to have standing to sue, RICO civil claims also require
proximate cause. See Holmes v. Sec. Investor Prot. Corp.,
503 U.S. 258, 267–68 (1992); see Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 496 (1985) (A RICO plaintiff “[1] only
has standing if, and [2] can only recover to the extent that, he
has been injured in his business or property by the conduct
constituting the violation.”).
14 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Like the antitrust laws, RICO’s civil-suit provision imposes
two distinct but overlapping limitations on claimants—
standing and proximate cause. Standing poses a threshold
question involving constitutional, prudential and (as in this
case) statutory limitations on who may sue, regardless of the
merits of that person’s claim. See Allen v. Wright, 468 U.S.
737, 750–51 (1984) (“In essence the question of standing is
whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.”) (quotation
omitted). Proximate cause poses a merits question involving
common-law and prudential limitations on the consequences
for which the law will hold a defendant accountable,
regardless of the plaintiff’s standing to sue. See Holmes, 503
U.S. at 268.
To illustrate the difference between the two limitations,
consider a plaintiff who files a negligence claim. It would be
odd to say that the plaintiff lacks standing because of an
intervening cause or because the harm to the plaintiff was not
reasonably foreseeable; the plaintiff may lose on the merits as
a matter of law for lack of proximate cause, but the injured
plaintiff would have the right to file a lawsuit. If, by contrast,
the same plaintiff is a shareholder of a corporation and wants
to sue the corporation’s accountant for negligence because the
accountant’s conduct destroyed the value of the plaintiff’s
stock, it would not be odd at all to say that the plaintiff lacks
standing, regardless of the merits of the dispute; the injury
would be derivative of the injury suffered by the corporation,
and the plaintiff would have no right even to file a lawsuit.
See Gaff v. FDIC, 814 F.2d 311, 317 (6th Cir. 1987) (“[A]
shareholder does not have standing to bring a direct cause of
action under federal law when the only damage alleged is the
diminution in the value of the corporate shares.”).
But the two concepts overlap and that is particularly true in
the context of civil RICO claims. As a general matter, they
overlap because a plaintiff who lacks standing to vindicate a
derivative injury also will be unable to show proximate cause.
And as a matter of RICO law, the two concepts overlap

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because they both grow out of the “by reason of” limitation in
RICO—namely, the requirement that claimants establish that
their injury was “by reason of” a RICO predicate act
violation. The “by reason of” limitation, in other words,
bundles together a variety of “judicial tools,” some of which
are traditionally employed to decide causation questions and
some of which are employed to decide standing questions.
Holmes, 503 U.S. at 268 (“Here we use ‘proximate cause’ to
label generically the judicial tools used to limit a person’s
responsibility for the consequences of that person’s own acts.
At bottom, the notion of proximate cause reflects ideas of
what justice demands, or of what is administratively possible
and convenient.”) (quotation omitted); see Associated Gen.
Contractors, Inc. v. Cal. State Council of Carpenters, 459
U.S. 519, 532–33 (1983) (“Congress simply assumed that
antitrust damages litigation would be subject to constraints
comparable to well-accepted common-law rules applied in
comparable litigation” including “doctrines such as
foreseeability and proximate cause, directness of injury,
certainty of damages, and privity of contract.”); Desiano v.
Warner-Lambert Co., 326 F.3d 339, 346, 348 (2d Cir. 2003)
(Calabresi, J.) (noting that RICO’s “directness” requirement,
which is more stringent than that imposed under most States’
proximate-cause jurisprudence, is a matter of statutory
standing, but that RICO also incorporates traditional
proximate cause requirements like foreseeability).
On one side of the ledger, the Supreme Court’s decision in
Holmes represents a classic statutory-standing case. The
Court held that the Securities Investor Protection Corporation
(SIPC) could not sue Robert Holmes, Jr. under RICO for
losses it suffered as a result of Holmes’ stock-manipulation
scheme because the harm visited upon the SIPC was merely
derivative of an injury to two broker-dealers, who not only
could have sued Holmes but did sue him. Holmes, 503 U.S.
at 271–73; id. at 274 (“We hold not that RICO cannot serve
to right the conspirators’ wrongs, but merely that the
nonpurchasing customers, or SIPC in their stead, are not the
proper plaintiffs.”). “[A] plaintiff who complain[s] of harm
16 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
flowing merely from the misfortunes visited upon a third
person by the defendant’s acts,” the Court reasoned,
“generally . . . stand[s] at too remote a distance to recover.”
Id. at 268–69. The Court then offered three administrative
justifications for this “directness” requirement: (1) the
“difficult[y]” in “ascertain[ing] the amount of a[n] [indirect]
plaintiff’s damages attributable to the violation, as distinct
from other, independent factors”; (2) the “complicated rules”
courts would be forced to adopt to “apportion[] damages
among plaintiffs removed at different levels of injury from the
violative acts, to obviate the risk of multiple recoveries”; and
(3) the existence of a “directly injured victim[]” who “can
generally be counted on to vindicate the law” and serve the
law’s “general interest in deterring injurious conduct.” Id. at
269.
Holmes follows a course marked by a long line of Supreme
Court cases denying antitrust standing to plaintiffs who suffer
derivative or “passed-on” injuries. See, e.g., Ill. Brick Co. v.
Illinois, 431 U.S. 720, 729 (1977) (holding that an indirect
purchaser lacked standing under the antitrust laws to sue for
overcharges passed on to them by intermediaries); Associated
Gen. Contractors, 459 U.S. at 540–42 (holding that a union
lacked standing to sue for injuries passed on to it by
intermediaries).
This Court has hewed to the same path before Holmes and
since in denying RICO standing to parties who suffer
derivative or passed-on injuries. As we explained in County
of Oakland v. City of Detroit, 866 F.2d 839, 851 (6th Cir.
1989), a case involving antitrust and RICO claims, “[t]he
doctrine of privity of contract . . . was in its heyday in 1890,”
when Congress enacted the Sherman Act, and the Supreme
Court “stated a truth with which lawyers practicing in 1890
would have been totally comfortable when it said that ‘[t]he
general tendency of the law, in regard to damages at least, is
not to go beyond the first step.” Id. at 851 (quoting S. Pac.
Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533
(1918) (Holmes, J.)); see also Perry v. Am. Tobacco Co., Inc.,

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 17
324 F.3d 845, 849 (6th Cir. 2003) (holding that policy holders
lacked standing under RICO to sue tobacco companies for
increased costs of insurance passed on to them as a result of
the increased costs of treating smoking-related illnesses); Pik-
Coal Co. v. Big Rivers Elec. Corp., 200 F.3d 884, 890–91
(6th Cir. 2000) (holding that a plaintiff who did not have a
direct contractual relationship with the defendant and who
suffered injuries derivative of those realized by intermediate
parties lacked standing to sue under RICO); Firestone v.
Galbreath, 976 F.2d 279, 285 (6th Cir. 1992) (holding that
beneficiaries of an estate lacked standing under RICO to sue
for an injury derivative of the estate’s injury); Sanders
Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474,
487 (6th Cir. 1992) (holding that a RICO plaintiff alleging
destruction of the value of his stock lacks standing because
his injury is derivative of the corporation’s injury); County of
Oakland, 866 F.2d at 850–51 (holding that under the antitrust
laws and RICO counties who purchased water directly from
the defendant, not the municipalities and consumers who
purchased water from the counties, were the proper parties to
bring suit); Warren v. Mfrs. Nat’l Bank, 759 F.2d 542, 544
(6th Cir. 1985) (“In his capacity as a shareholder . . . , any
injury [plaintiff] incurred was actually one sustained by the
corporation. . . . [D]iminution in value of the corporate assets
is an insufficient direct harm to give the shareholder standing
to sue [under RICO] in his own right.”) (quotation omitted).
On the other side of the ledger, RICO not only imposes a
statutory standing limitation on claimants who seek recovery
for derivative or indirect injuries, but it also incorporates
other traditional proximate-cause limitations on claimants.
See Perry, 324 F.3d at 850 (“Though foreseeability is an
element of the proximate cause analysis, it is distinct from the
requirement of direct injury.”); Desiano, 326 F.3d at 348
(noting that RICO incorporates a directness requirement that
is more stringent than most States require and that RICO also
incorporates foreseeability). Accordingly, while a RICO
plaintiff and defendant may have a direct and not a derivative
relationship, the causal link between the injury and the
18 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
conduct may still be too weak to constitute proximate
cause—because it is insubstantial, unforeseeable, speculative,
or illogical, or because of intervening causes. See Perry, 324
F.3d at 850; Fleischhauer v. Feltner, 879 F.2d 1290, 1299
(6th Cir. 1989) (RICO plaintiffs must “set out a reasonable
and principled basis of recovery” that is “not based on mere
speculation and surmise”).
The point of all this is not just that the distinction between
statutory standing and proximate cause exists, but that
unbundling these distinct concepts has practical significance
for RICO cases in general and for this case in particular.
From a substantive standpoint, a RICO plaintiff who can
show a direct injury may still lose the case if the injury does
not satisfy other traditional requirements of proximate
cause—that the wrongful conduct be a substantial and
foreseeable cause and that the connection be logical and not
speculative.
From a procedural standpoint, a RICO case with a
derivative-injury problem is better suited to dismissal on the
pleadings than a RICO case with a traditional proximate-
cause problem (e.g., a weak or insubstantial causal link, a lack
of foreseeability, or a speculative or illogical theory of
damages). Under the familiar rules of notice pleading in
federal courts, a complaint should include merely “a short and
plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and a
district court may dismiss a complaint for failure to state a
claim “‘only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the
allegations,’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
(2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)). Under these standards for pleading and dismissing
cases, a court often finds no need to look beyond the face of
the complaint in order to determine that the plaintiff lacks
standing because the injury was passed on by another party
that had a more direct relationship with the defendant. But
since “we presume that general allegations embrace those
specific facts . . . necessary to support the claim,” other causal

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 19
weaknesses will more often be fodder for a summary-
judgment motion under Rule 56 than a motion to dismiss
under Rule 12(b)(6). NOW v. Scheidler, 510 U.S. 249, 256
(1994) (quotation omitted).
B.
With these principles in mind, we turn first to Tyson’s
argument that this is a statutory-standing (or derivative injury)
case. If anyone suffered a direct injury in connection with
this alleged illegal-hiring scheme, the argument goes, it was
the union, not the employees. See Tyson Br. at 22 (“[A]n
injury to the bargaining power of a union is no more a direct
injury to its members’ wages than an injury to a corporation
is an injury to a shareholder, or an injury to an estate is an
injury to its beneficiary, or an injury to an insured’s customer
is an injury to an insurer.”) (citations omitted). Limiting
ourselves to the allegations contained in the complaint,
however, we cannot agree that plaintiffs’ alleged injury is
exclusively derivative.
The complaint alleges that Tyson directly employed the
four plaintiffs, that Tyson directly paid them and that Tyson
directly injured plaintiffs by paying them less than they
otherwise would have paid them but for Tyson’s illegal-
immigrant-hiring-scheme. Am. Compl. ¶¶ 36, 38. At the
motion-to-dismiss stage, we presume that these general
factual allegations embrace the specific facts needed to prove
the claim. See Desiano, 326 F.3d at 350–51.
In a Rule 12(b)(6) setting, this analysis ordinarily would
end the matter with respect to Tyson’s indirect/derivative
injury defense if not for the company’s additional arguments
(1) that a third party—a union—was involved in determining
the wages plaintiffs received and (2) that the union’s injury is
more direct than the plaintiffs’ injury. Plaintiffs, in response,
argue that we should pay no attention to this additional party
behind the curtain because the amended complaint does not
directly mention the existence of a union.
20 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
In its analysis, the district court accounted for the presence
of a union, and properly so in our opinion. While the
amended complaint does not directly mention the presence of
a union by name, it specifically incorporates the criminal
indictment against Tyson (and indeed attached the indictment
to the complaint). That indictment specifically mentions the
union (a unit of the Retail, Wholesale, and Department Store
Union, AFL-CIO) and says that the union represents the
workers at the Shelbyville plant, an allegation that necessarily
encompasses the further fact that under the NLRA the union
serves as the employees’ exclusive bargaining representative
concerning wages, see 29 U.S.C. § 159(a). In view of these
allegations in the complaint and in view of the fact that the
collective bargaining agreement was properly before the
district court with respect to the Rule 12(b)(1) motion, see,
e.g., Nichols v. Muskingum Coll., 318 F.3d 674, 677 (2003),
the district court properly considered the existence of the
union (and the collective bargaining agreement) in ruling on
Tyson’s Rule 12(b)(6) motion.
Even accounting for the collective bargaining agreement
and the union’s role in negotiating it, however, this complaint
does not describe an injury that can be characterized as
exclusively derivative. The fact that the union negotiated
plaintiffs’ wages does not alter the more critical fact that
Tyson directly employed and directly paid plaintiffs. The
union served as plaintiffs’ agent for bargaining purposes, not
as their employer. The direct employment relationship
between Tyson and plaintiffs distinguishes this dispute from
the Holmes line of cases, where the plaintiffs had no
relationship with the defendants except through
intermediaries. See Holmes, 503 U.S. at 270–74
(SIPC–customers–brokers–tortfeasor); Perry, 324 F.3d at 849
(policy holders–insurance company–smokers–tortfeasors);
Pik-Coal Co., 200 F.3d at 890–91 (coal broker–coal
company–tortfeasor); Firestone, 976 F.2d at 285
(beneficiaries–estate–tortfeasors); Sanders Confectionery
P r o d s . , I n c . , 9 7 3 F . 2 d a t 4 8 7
(stockholder–corporation–tortfeasor).

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 21
This view of the employment relationship—even one
involving a union—also remains faithful to the privity-of-
contract roots of the direct-injury requirement. See County of
Oakland, 866 F.2d at 851 (“The generation of which Senator
Sherman[, sponsor of the Sherman Act,] . . . [was a]
member[] would have been unsympathetic to the view that [a
supplier] could be sued for damages . . . by any entity with
which [the supplier] did not have a direct contractual
relationship.”). While indirect purchasers lack standing under
RICO and the antitrust laws to sue for overcharges passed on
to them by middlemen, see Holmes, 503 U.S. at 268–69; Ill.
Brick, 431 U.S. at 729, direct purchasers do have standing.
And if “direct purchasers” who pay too much “obviously
assert a direct injury,” County of Oakland, 866 F.2d at 851, so
do direct employees who receive too little.
Traditional labor law principles point in the same direction.
Tyson’s argument—that the real injury is to the
union—would suggest that only a union may sue an employer
for breach of a collective bargaining agreement. If a union
and not the employee is the directly injured party when it
comes to a lawsuit concerning wage-related violations of
RICO, then presumably the union and not the employee is the
directly injured party when it comes to a lawsuit concerning
wage-related violations of a collective bargaining
agreement—a type of lawsuit that not only implicates the
union’s exclusive role in negotiating collective bargaining
agreements, but one that Congress expressly gave the union
the right to bring when it enacted § 301 of the Labor-
Management Relation Act. 29 U.S.C. § 185(a) (“Suits for
violations of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce as defined in this [Act], or between any such labor
organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without
respect to the amount in controversy or without regard to the
citizenship of the parties.”); id. § 185(b) (“Any such labor
organization may sue or be sued as an entity and in behalf of
22 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
the employees whom it represents in the courts of the United
States.”).
Yet the Supreme Court and this Court have held that an
employee may sue for breach of a collective bargaining
agreement without the union. See Groves v. Ring Screw
Works, 498 U.S. 168, 173 (1990) (“Section 301 contemplates
suits by and against individual employees as well as between
unions and employers; and contrary to earlier indications
§ 301 suits encompass those seeking to vindicate uniquely
personal rights of employees such as wages.”) (quotation
omitted); Smith v. Evening News Ass’n, 371 U.S. 195, 200
(1962) (holding that an employee may sue for breach of a
collective bargaining agreement without the union); Anderson
v. AT&T Corp., 147 F.3d 467, 474 (6th Cir. 1998) (same); see
also Int’l Union, United Auto., Aerospace & Agric. Implement
Workers of Am. v. Hoosier Cardinal Corp., 383 U.S. 696, 699
(1966). Cf. Vaca v. Sipes, 386 U.S. 171, 186 (1967) (an
employee may be contractually bound to involve the union).
If an employee has statutory standing to vindicate a wrong
within the heartland of the union’s domain (a violation of a
collective bargaining agreement), it follows that an employee
has statutory standing to vindicate a wrong outside of the
union’s domain (a violation of RICO). Indeed, until Congress
enacted § 301 of the LMRA in 1947 (twelve years after it
enacted the NLRA), unions had no standing to bring many
types of lawsuits. That task fell upon individual employees
because unincorporated associations like unions generally
were not recognized as permissible litigants at common law.
See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 510
(1962) (“A principal motive behind the creation of federal
jurisdiction in this field [under § 301] was the belief that the
courts of many States could provide only imperfect relief
because of rules of local law which made suits against labor
organizations difficult or impossible, by reason of their status
as unincorporated associations.”); Textile Workers Union of
Am. v. Lincoln Mills, 353 U.S. 448, 454 (1957) (one purpose
of § 301 was to “‘provide for suits by unions as legal entities

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 23
and against unions as legal entities in the Federal courts’”)
(quoting S. Rep. No. 80-105, at 16 (1947)).
The Supreme Court’s decision in Associated General
Contractors bolsters this analysis. Several unions sued a
multiemployer trade association alleging that the association
coerced general contractors and landowners into giving
construction business to non-union firms, which caused
unionized contractors to lose business, which in turn harmed
the unions. An eight-justice majority concluded that the
union lacked standing under the antitrust laws in large part
because it did not suffer a direct injury. One justice dissented,
arguing that the union’s injury was sufficiently direct. Most
important for present purposes, however, was that all nine
justices seemed to agree that the injury to the
employees/union members (lost wages) was both distinct
from and more direct than the injury to the union (lost union
dues and diminished power). See 459 U.S. at 541 n.46 (“[I]f
the Union contends that revenues from dues payments
declined because its members lost jobs or wages because their
unionized employers lost business . . . [t]hat harm [] is even
more indirect than the already indirect injury to its
members.”); id. at 551 (Marshall, J., dissenting) (recognizing
that the injury to the unionized contracting firms (“lost
profits”) and the injury to the union-member-employees of
those firms (“lost wages”) were distinct from the injury to the
union (“lost union dues”)).
As Associated General Contractors suggests, injuries to
employees differ in kind and degree from injuries to their
union—a difference that causes one to wonder exactly what
a union could recover in this setting. The union could not sue
for depressed wages because it does not receive wages; it
negotiates them. Nor does it make a difference that the union
perhaps could sue in an associational capacity on behalf of the
employees—an issue we address below—because that would
still be a lawsuit to recover for a direct injury to the
employees, not the union. Nor is this a case in which the
union’s property or funds were mishandled. See Adams-
24 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Lundy v. Ass’n of Prof’l Flight Attendants, 844 F.2d 245, 250
(5th Cir. 1988) (holding that a RICO action by union
members was properly dismissed where “[a]ny financial
improprieties occurred with union funds and directly injured
solely the union”).
All of this strongly suggests that the administrative and
double-recovery concerns highlighted in Holmes pose no
obstacle here—and indeed would pose a greater obstacle if we
required the union to sue for some injury to it instead of
allowing the employees to sue for an injury to them.
Damages to the employees (the difference between what they
earned and what they would have earned) would be more
easily ascertained than damages to the union (the value of lost
bargaining power? lost influence? lost dues?). See Holmes,
503 U.S. at 269. And a lawsuit by the employees presents no
problem of apportioning damages among plaintiffs removed
at different levels, as the union has not sued and it is unclear
what the union could recover if it did sue. See id. In view of
these realities, the law cannot count on a more “directly
injured victim[]” to “vindicate the law as [a] private attorney[]
general” because, unlike Holmes where the directly injured
broker-dealers could sue and did sue, the union has not sued
and it is not clear that the union could sue. Id. at 269–70.
C.
Tyson next argues that plaintiffs have failed to show
proximate cause because the “chain of reasoning” in support
of their claim “is largely speculative.” Tyson Br. at 23. In
Tyson’s view, plaintiffs’ case hinges on four speculative
premises: (1) that “there were sufficient illegal aliens in the
workforce to affect the Union’s leverage and lower the wage
scale that the Union negotiated”; (2) that “the Union would
have used any increased bargaining power to obtain increased
wages, rather than to address other issues . . . unrelated to
wages”; (3) that “Tyson is able to compete for unskilled labor
with other businesses . . . that are not affected by the presence
of illegal immigrants in the workforce”; and (4) that

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 25
“plaintiffs chose not to obtain unskilled laborer positions at
the other businesses in the region offering higher wages.” Id.
In the face of these attenuated links in the chain of causation,
Tyson asserts, plaintiffs cannot show proximate cause.
Tyson may be right—but we cannot say so at this
preliminary stage in the proceeding. Given the unadorned
allegations in the complaint, given the requirement that we
must assume plaintiffs will be able to prove them and given
the absence of any discovery (or expert reports) thus far,
Tyson’s argument requires us to do as much speculating as
plaintiffs’ multi-link chain of causation allegedly requires us
to do. There are many fact-driven questions here—e.g.,
Tyson’s ability to influence the labor market in Shelbyville
and the other cities where Tyson has a plant, the effect that
the hiring practices of other businesses in Shelbyville and the
other areas have on Tyson’s ability to depress wages, and the
effect of Tyson’s alleged smuggling and employment of
illegal aliens on the local union—and the speculativeness of
our answers to all of them counsels against resolving the
dispute as a matter of law at this early stage in the case.
It remains possible that plaintiffs may prove the following
allegations in their complaint: (1) that Tyson hired sufficient
numbers of illegal aliens to impact the legal employees’
wages; (2) that each additional illegal worker hired into the
bargaining unit by Tyson has a measurable impact on the
bargained-for wage-scale; (3) that the illegal immigrants
allegedly brought into this country through Tyson’s efforts
allowed Tyson not to compete with other businesses for
unskilled labor; and (4) that Tyson’s legal workers did not
“choose” to remain at Tyson for less money than other
businesses offered, but had no choice in the matter given the
hiring needs of the other businesses in the area and the influx
of illegal immigrants at Tyson’s facilities. While Tyson’s
proximate-cause argument may well carry the day at the
summary-judgment stage, it requires more assistance than the
complaint alone provides.
26 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
One other circuit has reached the same result on somewhat
similar facts. In Mendoza v. Zirkle Fruit Co., 301 F.3d 1163
(9th Cir. 2002), legally-authorized apple workers sued several
growers under RICO alleging violations of the immigration
laws. The district court dismissed the complaint in Mendoza
for lack of proximate cause—a decision relied upon by the
lower court in this case. In reversing, the Ninth Circuit held
that the suit was not one for a derivative or passed-on harm
and that other alleged weaknesses in the chain of causation
were matters for summary judgment, not dismissal on the
pleadings. See id. at 1171. As the Ninth Circuit put it: “[I]t
is inappropriate at this stage to substitute speculation for the
complaint’s allegations of causation . . . . [T]he workers must
be allowed to make their case through presentation of
evidence, including experts who will testify about the labor
market, the geographic market, and the effect of the illegal
scheme.” Id. True, Mendoza did not involve a union; and
although we have already held that the existence of a union
does not transform this dispute into a derivative-injury case,
the union’s role in negotiating wages may well prove to
attenuate the chain of causation to the breaking point. But
since we know nothing about those negotiations and indeed
barely know that a collective bargaining agreement exists, the
Mendoza analysis cannot be relegated to the sideline on this
ground alone.
One other point deserves mention. The district court stated
that a RICO case “cannot survive . . . if it is evident from the
pleadings that independent factors exist which had an impact
on plaintiffs’ economic loss.” D. Ct. Op. at 5. And one of the
reasons the district court gave for dismissing this case was
that “plaintiffs’ wages could have been affected by [the
wages] other employers paid, the availability of workers, the
profitability of the defendant’s businesses, and other factors
that influence any labor market,” and thus “the conclusion
that Tyson’s hiring of alleged illegal aliens depressed the
plaintiffs’ wages would require sheer speculation.” Id. at 6.
On appeal, Tyson concedes that plaintiffs need not show that
Tyson’s conduct was the sole cause of their injury in order to

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 27
establish proximate cause; they need show only that the
conduct was a substantial cause. See Schwartz v. Sun Co.,
276 F.3d 900, 904 (6th Cir. 2002) (“Where there is evidence,
as in this case, which tends to show that [plaintiff’s] losses
were a result of [defendant’s] conduct, as well as evidence
which tends to show that his losses were attributable to other
factors, it is normally up to the trier of fact to decide which is
the case.”); Cox v. Admin. United States Steel & Carnegie, 17
F.3d 1386, 1399 (11th Cir. 1994) (“A proximate cause is not
[] the same thing as a sole cause. Instead, a factor is a
proximate cause if it is a substantial factor in the sequence of
responsible causation.”) (quotation omitted); id. (holding that
union members had standing to bring RICO claims for
reduced compensation under collective bargaining
agreement). That determination will require some evidence
in this case. In the meantime, plaintiffs have met the
requirements for defeating a motion to dismiss on proximate-
cause grounds.
D.
Quite apart from the questions raised in this case regarding
Garmon preemption, statutory standing and proximate cause,
Tyson separately argues that the case was properly dismissed
because the NLRA gives the union the exclusive right to
prosecute it or at a minimum requires the union’s
participation. The union, Tyson correctly observes, is the
employees’ exclusive bargaining representative, and § 9(a) of
the NLRA makes the union the “exclusive representative[] of
all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.” 29 U.S.C.
§ 159(a). Without the entity exclusively responsible for
negotiating wages at the wheel, Tyson asserts, this case may
not proceed.
A recent Seventh Circuit decision provides some support
for this view. While holding that Garmon does not “preempt”
lost-wage claims like these, Baker v. IBP suggests that § 9 of
28 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
the NLRA effectively does. Because a suit like this one “is at
its core about the adequacy of [] wages,” and because the
union’s representation under § 9 of the NLRA “is supposed
to be ‘exclusive’ with respect to wages,” the Seventh Circuit
intimated, the suit may not proceed without the union. 357
F.3d at 690. “Individual workers,” the court explained, “may
step into the union’s shoes only if it has violated its duty of
fair representation.” Id. at 690–91 (citing Vaca v. Sipes, 386
U.S. 171, 186 (1967)). And since the complaint in that case
did not “name the union as a party” and did not “contend that
the union neglected its duty to represent the employees’
interests with respect to wages,” it should be dismissed. Id.
at 691. Indeed, “[w]ithout the union as a party,” the court
explained, “the litigants could not settle [the] suit for higher
hourly pay (or back pay)” because “that would be a real
refusal on [the company’s] part to bargain with its union [in
violation of the NLRA].” Id.
As an initial matter, Tyson did not argue in the district
court, in its appellate briefs or at oral argument that the union
is an indispensable party to this lawsuit. See Fed. R. Civ. P.
19. Relying on Baker, Tyson instead raised the issue in a
supplemental filing after oral argument. “Whether the Union
should be joined,” however, “is . . . a matter for the District
Court in the first instance,” EEOC v. MacMillan Bloedel
Containers, Inc., 503 F.2d 1086, 1096 (6th Cir. 1974), and we
leave it to the district court to address the issue on remand
should the parties or the district court wish to pursue it. To
the extent Tyson is relying on Baker to suggest that the union
is not only a necessary party, but also the only party that may
pursue these RICO claims, that issue also has not yet been
properly joined by the parties.
Nor is it clear to us that Baker’s suggestion is correct. The
principle that an employee must involve the union in a
lawsuit, by suing it or otherwise alleging that it violated its
duty of fair representation, comes from (1) § 301 of the
LMRA (which addresses lawsuits to enforce collective
bargaining agreements) and (2) the particular terms of

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 29
collective bargaining agreements (which in many cases
contain an exclusive grievance procedure). As we have
already noted, § 301 does not necessarily require the union’s
involvement in lawsuits involving wage provisions of a
collective bargaining agreement. See Office & Prof’l
Employees Int’l Union, Local 2 v. FDIC, 962 F.2d 63, 66
(D.C. Cir. 1992) (R. Ginsburg, J.) (“[W]hen a claim derives
from a collective bargaining agreement—an arrangement
negotiated by a union and to which it is a signatory—the
labor organization is an appropriate party (although not the
only appropriate party) to vindicate employees’ rights.”).
Only when a collective bargaining agreement includes an
exclusive contractual remedy must an employee involve the
union in a lawsuit, and even then only if the employee fails to
exhaust the contractual grievance process. That was the
holding of Vaca v. Sipes, 386 U.S. 171 (1967), the one case
cited by the Seventh Circuit in support of its § 9 holding.
In contrast, this case involves a damages lawsuit for
violations of RICO, not a lawsuit for breach of a collective
bargaining agreement that contains an exclusive contractual
remedy. To the extent the pertinent collective bargaining
agreements would require the participation of the union in a
dispute of this sort, no one has argued it. So far, the dispute
in this case has been about whether the district court should
have noted the mere existence of the agreements and what the
existence of those agreements means under Garmon and
RICO, not what the agreements actually require.
The historical context in which these statutes were enacted
also suggests that when Congress made unions the exclusive
representative of employees for purposes of collective
bargaining, it did not mean to establish unions as the
exclusive representative of employees for purposes of all
wage-related litigation. Section 9(a) was enacted in 1935, see
Pub. L. No. 74-198, 49 Stat. 453, 449 (1935), at a time when
unions (as unincorporated associations) could not sue in many
courts. Not until 1947, when Congress enacted § 301 of the
LMRA, did unions have standing to enforce collective
30 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
bargaining agreements. See Pub. L. No. 80-101, 61 Stat. 136,
156–57 (1947). In view of this statutory history, we fail to
see how Congress could have intended unions to be
employees’ “exclusive representatives” in all wage-related
litigation. Indeed, if only one of the two—the union or the
employees—were allowed to bring this suit, it likely would
have to be the employees, not the union. See Int’l Union,
United Auto., Aerospace & Agric. Implement Workers of Am.
v. Brock, 477 U.S. 274, 282 (1986) (associational standing is
inappropriate when “‘the relief sought . . . make[s] the
individual participation of each injured party indispensable to
proper resolution of the cause’”) (quoting Warth v. Seldin,
422 U.S. 490, 511 (1975)); id. at 287 (union had associational
standing because it was not seeking damages on behalf of its
members, just the resolution of “a pure question of law”).
IV.
Plaintiffs still face a number of obstacles in this lawsuit.
The case may not survive a summary-judgment motion if the
economic and other factual premises of plaintiffs’ claim
reveal a causal relationship that is too weak or too attenuated.
Nor do we express an opinion as to whether the case may
proceed as a class action. The district court did not have an
opportunity to address that issue because it first ruled on the
merits of the motion to dismiss. And, finally, we do not
express an opinion as to whether plaintiffs can show that
Tyson and its co-conspirators constituted an “enterprise”
within the meaning of RICO. See 18 U.S.C. § 1962(c). In
Baker, the Seventh Circuit concluded that a similar
conspiracy did not satisfy the enterprise requirement, 357
F.3d at 691–92, but since the district court did not reach that
issue below, the resolution of this question also should await
a summary-judgment motion. In this appeal, we hold only
that the district court had subject-matter jurisdiction over the
dispute and that the case should not have been dismissed on
the pleadings.

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No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 31
For the foregoing reasons, we reverse the district court’s
judgment and remand the case for further proceedings
consistent with this opinion.

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