United States District Court, Central District of Illinois, Peoria Division
February 27, 1985
JOSEPHINE DAUGHTERY, PLAINTIFF,
LUCKY STORES, INC., AND EAGLES FOOD STORE, DEFENDANT.
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
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
It has been stated that:
"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 the
general public — an interest which transcends the
employment relationship (citation omitted)."
726 F.2d at 1374, 1375. (Emphasis in original).
In Kelsay v. Motorola, Inc., supra, the Illinois Supreme Court,
in establishing the tort of wrongful discharge for filing of a
workers' compensation claim, repeatedly highlighted the purpose
of the Workers' Compensation Act, Ill.Rev.Stat. Ch. 48, § 138.1
et seq. (1983). The court stated that the Workers' Compensation
Act is a humane law of a remedial nature providing for efficient
remedies for and protection of employees by providing them with
prompt and equitable compensation for work related injuries. As
such, the Act promotes the general welfare of the state. 384
N.E.2d at 356-57, 23 Ill.Dec. at 562-63. The court stated that:
"(T)he legislature enacted the workmen's compensation
law as a comprehensive scheme to provide for
efficient and expeditious remedies for injured
employees. This scheme would be seriously undermined
if employers were permitted to abuse their power to
terminate by threatening to discharge employees for
seeking compensation under the Act. We cannot ignore
the fact that when faced with such a dilemma many
employees, whose common law rights have been
supplanted by the Act, would choose to retain their
jobs, and thus, in effect, would be left without a
remedy either common law or statutory."
The Kelsay decision evidences that in recognizing a cause of
action for wrongful discharge for the filing of a workers'
compensation claim, the State of Illinois sought to ensure that
employees will be provided with a remedy for work related
injuries. The state interest is not in regulation of the
employment relationship. A claim grounded in state law for
wrongful termination for this public policy reason furthers the
state interest in protecting the general public, an interest
which, as in Garibaldi, transcends the employment relationship.
See Garibaldi, 726 F.2d at 1375.
This conclusion is buttressed by the fact that pursuit of the
state cause of action allows for little potential interference
with the federal regulatory scheme. In Wabco Construction and
Mining Equipment Group, 270 N.L.R.B. 126 (1984), the NLRB held
that an employer's refusal to rehire a former employee who filed
a workers' compensation claim more than one year after he
voluntarily quit his position with the respondent did not
constitute an unfair labor practice because the individual had
not engaged in concerted activity protected under § 7 of the
LMRA. The General Counsel in Wabco had relied upon the NLRB's
decision in Krispy Kreme Donut Corp., 245 N.L.R.B. 1053 (1979),
635 F.2d 304 (4th Cir. 1980), which held that the filing of a
workers' compensation claim by an individual is protected
concerted activity. In Wabco, however, the NLRB found that the
employee's conduct did not constitute concerted activity, stating
"In Meyers Industries, 268 NLRB No. 73, slip op. at
12 (Jan. 6, 1984), we held that `(i)n general, to
find an employee's activity to be "concerted", we
shall require that it be engaged in with or on the
authority of other employees, and not solely by and
on behalf of the employee himself.' In so doing, we
overrule the precedent on which the General Counsel
relies in this case.
The record establishes that (the employee) acted
alone and solely on his own behalf when he filed his
worker's compensation claim. Thus, the facts of the
case do not support a finding that (the employee)
engaged in concerted activity as defined in Meyers.
Accordingly, we shall dismiss the complaint."
Wabco, slip op. at 3. The Wabco decision was rendered subsequent
to the decisions *fn2
cited by the Defendant in support of the
proposition that the filing of a workers' compensation claim
under state law is an activity protected by § 7 of the LMRA and
that any retaliatory action based upon such activity is an unfair
The instant case is distinguishable from Olguin v. Inspiration
Consolidated Copper Co., supra, relied upon by the Defendants. In
that case, the court upheld the dismissal of plaintiff's state
law tort action for wrongful discharge because it was preempted
by federal labor law. The plaintiff had complained that he was
discharged for complaining about mine safety conditions and
engaging in concerted labor activity. Mine safety, the Ninth
Circuit noted, is governed by the Federal Coal Mine Health and
Safety Act, 30 U.S.C. § 801-962, and concerted activity is
protected by the federal labor laws. 740 F.2d at 1475. In the
case at bar, however, there is no federal statute governing the
Plaintiff's claim, and the NLRB has held that the action of a
single employee filing a workers' compensation claim on his or
her own behalf is not concerted activity protected by federal
Similarly, Jackson v. Consolidated Rail Corp., supra, is
distinguishable from the case at bar. In holding that a state
claim for retaliatory discharge was preempted by the Railway
Labor Act, 45 U.S.C. § 153 (1976), the Seventh Circuit stated
that the Railway Labor Act provides a stronger case for
preemption than does the NLRA. The Railway Labor Act has made any
grievance arising out of the collective bargaining agreement
subject to the exclusive arbitral remedies contained in the Act,
and thus a state claim is more likely to impinge on an area of
exclusive administrative jurisdiction under that Act than under
the NLRA. 717 F.2d at 1052.
Accordingly, the Court holds that Plaintiff's claim of wrongful
discharge for filing a workers' compensation claim is not
preempted by federal labor law. Defendant's Motion to Dismiss is