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07/29/87 Ronald Perkins, v. Pepsi-Cola General

July 29, 1987





511 N.E.2d 901, 158 Ill. App. 3d 893, 110 Ill. Dec. 724 1987.IL.1087

Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.


The plaintiff, Ronald Perkins, appeals from the judgment of the circuit court which granted the motions of the defendant, Pepsi-Cola General Bottlers, Inc. (Pepsi), for summary judgment of his wrongful discharge claim and to dismiss his libel claim. On appeal the plaintiff argues, first, that the lower court's decision to grant the defendant's motion for summary judgment promotes fraud and intentional misconduct. Additionally, the plaintiff contends that the trial court's decision to dismiss his libel claim violates section 2-616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(b)).

The following facts are relevant to this appeal. On October 15, 1982, the plaintiff worked as a mechanic in the defendant's Aurora facility. He belonged to the Automobile Mechanics Local No. 701, International Association of Machinists & Aerospace Workers, AFL-CIO (union). A bargaining agreement between the union and Pepsi governed the relationship of all union members at Pepsi. This agreement was in effect on October 15, 1982. Article XI provided that no employee could be discharged except for "just cause." Article XVIII set forth the specific grievance and arbitration procedures whereby any employee discharged or otherwise disgruntled by any employment-related decision of Pepsi's could seek to have the matter resolved.

On October 15, 1982, the plaintiff left work without permission from Pepsi and without having punched his time card. This action violated Pepsi's "General Rules of Conduct." According to these rules, the prescribed discipline for the plaintiff's act was termination. Accordingly, on October 18, 1982, the defendant discharged the plaintiff.

On that same day, Gene Staniszewski, the plaintiff's union business representative under the collective-bargaining agreement, called a meeting at which the plaintiff and Pepsi's representatives were present to discuss the plaintiff's discharge. At the meeting the plaintiff admitted leaving work without permission and further conceded asking someone else to punch out his time card. Staniszewski then advised the plaintiff that the union would institute a formal grievance and arbitration proceeding if the plaintiff requested. He expressed pessimism, however, in view of the plaintiff's admitted fault. The plaintiff never requested the institution of any formal grievance.

On December 18, 1982, the plaintiff filed a complaint seeking compensatory and punitive damages based on his allegedly wrongful discharge. Specifically the plaintiff alleged that his discharge resulted from a "set-up," as well as the defendant's arbitrary and fraudulent enforcement of unpromulgated work rules contrary to the defendant's customary practice and procedure.

On June 14, 1985, the plaintiff filed an amended complaint containing a second count that for the first time charged Pepsi with libel. On September 13, 1985, the plaintiff filed a second amended count II which added specificity to his libel allegations.

On August 29, 1986, the court granted Pepsi's motion for summary judgment on count I, the discharge claim, and its motion to dismiss the plaintiff's claim for libel. Specifically, the court found the plaintiff's discharge claim barred by his failure to exhaust grievance and arbitration remedies provided in the agreement. The count also found the plaintiff's libel claim barred by section 13-201 of the Code of Civil Procedure, the one-year statute of limitations applicable to libel actions. (Ill. Rev. Stat. 1985, ch. 110, par. 13-201.) The plaintiff then filed this appeal.

On appeal the plaintiff argues that the court granted the defendant's motion for summary judgment with regard to count I, the discharge claim, on the erroneous basis that the collective-bargaining agreement and section 301 of the Labor Management Relations Act (29 U.S.C.A. sec. 185 (West 1978)) preempted his State court action alleging intentional tortious misconduct. It is the plaintiff's position that the contractual rights available to him under the collective-bargaining agreement are not the only remedy, but rather are merely additional, alternative remedies to those already available under State tort law. Our first concern in this appeal then is whether the plaintiff's alleged State law claim is preempted by the LMRA.

The preemption doctrine has its basis in the supremacy clause of the United States Constitution (U.S. Const., art. VI, cl. 2). Federal law, under this doctrine, is deemed to override or preempt State laws on the same subject in some instances. (See generally Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 229-31, 91 L. Ed. 1447, 1458-59, 67 S. Ct. 1146, 1151-53.) The question of whether State action is preempted by Federal law is one of ...

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