The opinion of the court was delivered by: Mihm, District Judge.
In this action, which was removed to federal court by the
Defendant on the basis of diversity jurisdiction, 28 U.S.C. § 1332,
the Plaintiff brings a state law claim for wrongful
discharge based on her alleged discharge from employment by the
Defendant for filing a workers' compensation claim. The Defendant
moves to dismiss the Plaintiff's complaint on the basis that this
Court lacks subject matter jurisdiction over the state law action
because it is preempted by applicable federal labor law.*fn1
The State of Illinois has recognized the existence of a cause
of action in tort enabling an employee to state a claim for
discharge which was in retaliation for pursuing a workers'
compensation claim. Kelsay v. Motorola, Inc., 74 Ill.2d 172,
384 N.E.2d 353, 23 Ill.Dec. 559 (1978). The Defendant asserts,
however, that the workers' compensation claim is a federally
protected right under the Labor Management Relations Act,
29 U.S.C. § 185(a) ("LMRA"), and that the LMRA provides for an
administrative mechanism to safeguard statutory employee rights.
29 U.S.C. § 151-168.
In San Diego Building Trades Council v. Garmon, 359 U.S. 236,
244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), the Supreme Court
"When it is clear or may fairly be assumed that the
activities which a state purports to regulate are
protected by section 7 of the Taft-Hartley Act, or
constitute an unfair labor practice under section 8,
due regard for the federal enactment requires that
state jurisdiction must yield."
Accord, Motor Coach Employees v. Lockridge, 403 U.S. 274, 91
S.Ct. 1909, 29 L.Ed.2d 473 (1971), Local 926, International Union
of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75
L.Ed.2d 368 (1983). The fact that the ultimate goal of the state
is in accord with that of the National Labor Relations Board
(NLRB) is irrelevant in considering the issue of preemption.
California State Counsel of Carpenters v. Associates General
Contractors, Inc., 648 F.2d 527, 540 (9th Cir. 1980), rev'd. on
other grounds, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723
"Labor preemption is a complex and confused area of
the law. Preemption is a matter of congressional
intent, but the labor statutes provide little or no
guidance as to what aspects of state law Congress
intended to preempt. (Citations omitted).
Essentially, in any preemption case the court must
attempt to weigh the state's interests against those
of federal labor policy. See Garibaldi v. Lucky Food
Stores, Inc., 726 F.2d 1367, 1372-73 (9th Cir.
Olguin v. Inspiration Copper Co., 740 F.2d 1468, 1473 (9th Cir.
In Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir.
1983), cert. denied ___ U.S. ___, 104 S.Ct. 1000, 79 L.Ed.2d 233
(1984), the Seventh Circuit held that a state claim for
retaliatory discharge was preempted by the Railway Labor Act,
45 U.S.C. § 153 (1976). In addressing the question of preemption,
the court considered the state interest in regulating the conduct
in question and the potential for interference with the federal
regulatory scheme. 717 F.2d at 1053. The Jackson court relied
heavily on the approach taken by the Supreme Court in Farmer v.
Brotherhood of Carpenters, Local 25, 430 U.S. 290, 297, 97 S.Ct.
1056, 1061, 51 L.Ed.2d 338 (1977), in which it was held that the
National Labor Relations Act did not preempt a tort action for
intentional infliction of emotional distress under California
The Farmer analysis was also used in Garibaldi v. Lucky Food
Stores, 726 F.2d 1367 (9th Cir. 1984). In that case the Ninth
Circuit allowed an employee to bring suit in state court alleging
that he was discharged for reporting to local health authorities
that his employer had ordered him to deliver a load of spoiled
milk. The court held that the state's interest in enforcing its
local health regulations was strong, and that California could
use private tort actions to enforce these regulations without
interfering with federal labor policy. The court stated that:
"It is clear that California's interest in providing
a cause of action for a violation of public policy or
a statute is the enforcement of the underlying
statute or policy, not the regulation of the
A claim grounded in state law for wrongful
termination for public policy reasons poses no
significant threat to the collective bargaining
process; it does not alter the economic relationship
between the employer and employee. The remedy is in
tort distinct from any contractual remedy an employee
might have under the collective bargaining contract.
It furthers the state's interest in protecting ...