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11/02/87 Raymond Taylor, v. Ted Tsekeris

November 2, 1987

RAYMOND TAYLOR, PLAINTIFF-APPELLANT

v.

TED TSEKERIS, D/B/A DAMEN AVENUE GROCERLAND, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

516 N.E.2d 562, 163 Ill. App. 3d 195, 114 Ill. Dec. 407 1987.IL.1628

Appeal from the Circuit Court of Cook County; the Hon. John J. O'Toole, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

The plaintiff, Raymond Taylor, was employed by Damen Avenue Grocerland, Inc., whose president is the defendant, Ted Tsekeris. On April 9, 1984, Taylor was injured on the job while lifting meat, and the next day, Taylor informed Tsekeris that he would be unable to work for an indeterminate period of time due to his injury. Furthermore, he advised Tsekeris that he planned to file a worker's compensation claim. The following day, Taylor was discharged by the defendant.

On May 14, 1984, Taylor filed a claim with the Illinois Industrial Commission under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) and on May 17, 1985, he filed an action in tort in the circuit court of Cook County against Ted Tsekeris, d/b/a Damen Avenue Grocerland, Inc., alleging that his discharge was in retaliation for his stated intention of filing a worker's compensation claim under the Illinois Workers' Compensation Act.

On January 6, 1986, the defendant's motion to dismiss the complaint, filed pursuant to section 2-619(a)(1) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(1)), was granted and this appeal follows. The defendant maintains on this appeal that the trial court lacked jurisdiction since the National Labor Relations Board has exclusive primary jurisdiction over the subject matter. He contends, moreover, that Federal labor law preempted Taylor's tort claim because of his failure to utilize the contractual grievance procedures set forth in the collective bargaining agreement.

In effect at the time of the discharge was a collective bargaining agreement between Damen Avenue Grocerland and Local 546 of the United Food and Commercial Workers Union which provided that "after an employee has completed the probationary period such employee shall not be discharged or otherwise disciplined without just cause." It is defendant's position that disputes concerning the application of this provision are resolved through established grievance procedures which are "binding upon the grievant employee, the union and the employer." The record is devoid of any suggestion that the plaintiff ever filed a grievance with the union, although defendant alleges that the plaintiff was represented by Local 546.

The issues presented for review are: (1) whether the trial court erred in dismissing this complaint for lack of subject matter jurisdiction, and (2) whether the plaintiff's cause of action was preempted by Federal law, i.e., section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (1982)).

In the instant case, the plaintiff contends that the trial court erroneously held that it lacked subject matter jurisdiction over this complaint. We agree. Under section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (1982)), Federal district courts are vested with jurisdiction over complaints alleging a breach of contract between an employer and union. (Bartley v. University Asphalt Co. (1986), 111 Ill. 2d 318, 321, 489 N.E.2d 1367.) However, Illinois has a strong public policy to insure that workers covered by the Workers' Compensation Act are protected. Ill. Rev. Stat. 1981, ch. 48, par. 138.6; Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, 473 N.E.2d 1280, cert. denied (1985), 474 U.S. 909, 88 L. Ed. 2d 243, 106 S. Ct. 278, cert. denied (1985), 472 U.S. 1032, 87 L. Ed. 2d 642, 105 S. Ct. 3513.

In Kelsey v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the Illinois Supreme Court recognized a tort action for retaliatory discharge under the Illinois Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) as a remedy available to at-will employees. The court held that an employer who discharges an employee at will in retaliation for filing a worker's compensation claim has committed a tort under Illinois law and can be assessed both compensatory and punitive damages. Kelsey v. Motorola, Inc. (1978), 74 Ill. 2d 172, 189, 384 N.E.2d 353.

In Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, 473 N.E.2d 1280, cert. denied (1985), 474 U.S. 909, 88 L. Ed. 2d 243, 106 S. Ct. 278, cert. denied (1985), 472 U.S. 1032, 87 L. Ed. 2d 642, 105 S. Ct. 3513, the Illinois Supreme Court extended the tort of retaliatory discharge to include unionized employees covered by collective bargaining agreements with grievance procedures requiring "just cause" for discharge.

The defendant contends that the retaliatory discharge cause of action is within the exclusive primary jurisdiction of the National Labor Relations Board . We disagree. The NLRB has held that an individual who files a worker's compensation claim is not engaged in activity protected by section 7 of the National Labor Relations Act . Therefore, an employer that discharges such employee does not commit an unfair labor practice ...


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