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November 2, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Steven Flick ("Flick") sued General Host Corporation d/b/a Milk Specialties ("General Host") in the Circuit Court of McHenry County, Illinois on a retaliatory discharge claim.*fn1 General Host removed that action to this Court on the basis of diversity jurisdiction. It now moves to dismiss under Fed.R.Civ.P. ("Rule") 12(b)(1) for lack of subject matter jurisdiction, asserting Flick's cause of action is preempted by the National Labor Relations Act (the "Act"), 29 U.S.C. § 151 et seq., and thus is within the exclusive primary jurisdiction of the National Labor Relations Board ("NLRB"). For the reasons stated in this memorandum opinion and order, the motion is denied.


Flick was hired by General Host September 23, 1982 under an oral contract of employment. On November 15, 1982 Flick was injured while lifting a bag of feed during the course of his employment. Throughout the period (over two months) Flick was unable to work, General Host or its insurer paid his hospital and medical expenses, and General Host paid Flick temporary total disability wages.

Beginning February 2, 1983 Flick returned to work on light duty assignments and was subjected to continuous harassment. On February 4 Flick's attorneys notified General Host Flick had filed a worker's compensation claim. When on February 8 Flick reminded his supervisor about a doctor's appointment scheduled that day, Flick was fired solely because of his having filed for worker's compensation.

Flick has been unable to find employment since his discharge and has sustained actual damages in excess of $15,000. Flick also requests $100,000 in punitive damages.

NLRB Preemption Vel Non

General Host argues Flick's cause of action is preempted by NLRB's exclusive primary jurisdiction over activities protected for employees by Act § 7, 29 U.S.C. § 157 ("Section 7"), or prohibited to employers by Act § 8, 29 U.S.C. § 158 ("Section 8"). More specifically, General Host contends filing a worker's compensation claim is a protected "concerted activity" under Section 7,*fn3 so that discharging an employee for filing such a claim is an unfair labor practice prohibited by Section 8(a)(1).*fn4

If General Host is correct, Flick must instead present his claim to NLRB under the preemption principle initially stated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-45, 79 S.Ct. 773, 779-80, 3 L.Ed.2d 775 (1959) and reaffirmed only last Term in Local 926, International Union of Operating Engineers v. Jones, ___ U.S. ___, 103 S.Ct. 1453, 1458-59, 75 L.Ed.2d 368 (1983). That principle requires this Court to determine whether the conduct at issue here is "actually or arguably protected [under Section 7] or prohibited [by Section 8 of] the NLRA." Jones, 103 S.Ct. at 1458.

At least one NLRB decision*fn5 supports General Host, for NLRB held in Krispy Kreme Doughnut Corp., 245 N.L.R.B. 1053, 1061 (1979) that one employee's filing of a worker's compensation claim is concerted activity because such a claim involves "matters of common interest to other employees" — this on the theory other employees might be faced with a similar situation in the future. However, the Fourth Circuit rejected NLRB's over-expansive definition of concerted activity*fn6 and denied enforcement of that order. Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 309 (4th Cir. 1980). Indeed the only other Court of Appeals to have dealt with the issue (this time in the direct context of a retaliatory discharge action) has also rejected the NLRB preemption argument after a detailed consideration of the entire subject. Peabody Galion v. Dollar, 666 F.2d 1309, 1316-19 (10th Cir. 1981).

Because our own Court of Appeals has not yet faced the issue,*fn7 this Court must decide whether Flick's filing of his worker's compensation claim is "actually or arguably" concerted activity and thus "actually or arguably" protected by Section 7. Although some deference may be given an agency's interpretation of the statute it is charged with administering, agency interpretations of law are generally subject to de novo review by the courts. Brown v. United States Department of Interior, 679 F.2d 747, 749 (8th Cir. 1982); First National Bank in Sioux Falls v. National Bank of South Dakota, 667 F.2d 708, 711 (8th Cir. 1981). This Court is clearly not bound by the NLRB construction of the term "concerted activities" in Krispy Kreme — especially when that construction has met with uniform (albeit limited) judicial disapproval.

Our Court of Appeals has consistently taken a narrower (and more literal) view of "concerted activity" than the strained version articulated by NLRB in Krispy Kreme. As recently put in NLRB v. Town & Country LP Gas Service Co., 687 F.2d 187, 191 (7th Cir. 1982), quoting language used in two of the same Court's earlier decisions:

  [I]n order to prove a concerted activity under
  Section 7 of the Act, it is necessary to demonstrate
  that the activity was for the purpose of inducing or
  preparing for group action to correct a grievance or
  a complaint.

Indeed the Fourth Circuit (Krispy Kreme, 635 F.2d at 307) relied on precisely that definition and on the very same two earlier Seventh Circuit decisions in refusing to enforce NLRB's order. Under our Court of Appeals' concept "concerted activity" requires some "group" ...

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