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February 27, 1985


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 stated that:

  "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 (1983).

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. 1984).

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 law.

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
  employment relationship.
  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 ...

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