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MAKRAY v. SARA LEE CORP.

February 20, 1990

GORDON MAKRAY, Plaintiff,
v.
SARA LEE CORPORATION, Defendant


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 In this action the plaintiff, Gordon Makray ("Makray"), alleges that the defendant, Sara Lee Corporation ("Sara Lee") wrongfully terminated Makray's employment on or about October 21, 1987. Makray originally filed an action in the Chancery Division of the Circuit Court of Cook County, Illinois on December 30, 1988. (88 CH 11922). Service on Sara Lee was obtained on January 26, 1989 and, on February 22, 1989, Sara Lee filed a Notice of Removal in this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446. Makray's motion to remand this action to state court is now before the Court. For the reasons stated in this order, Makray's motion is deferred and the parties are directed to submit written evidence relating to the issue of the union's waiver of Makray's rights under the Illinois One Day Rest In Seven Act. Ill. Rev. Stat. ch. 48, para. 8a et seq. (1935).

 I. FACTS

 Makray alleges that Sara Lee discharged him in retaliation for his exercise of his statutory right to "One Day Rest in Seven." Ill. Rev. Stat. ch. 48, para. 8a et seq. (1935). Makray further alleges that Sara Lee ordered him to work on October 18, 1987 and that working on that date would have required Makray to work seven days in a row. Makray also alleges that Sara Lee terminated him for his failure to appear at work on that date.

 Sara Lee argues that Makray's claim is preempted by Section 301 of the Labor Management Relations Act ("LMRA"). 29 U.S.C. § 185. *fn1" Sara Lee contends that Makray's dismissal was proper pursuant to the terms of an existing labor contract between Sara Lee and the International Association of Machinists and Aerospace Workers, AFL-CIO, District 8, the recognized collective bargaining unit for various Sara Lee employees, including Makray. Section 6(b) of Article XII of the collective bargaining agreement concerns the volunteering of union employees to work on what would otherwise be their days off. Sara Lee argues that although the collective bargaining agreement provision requires those employees who want to volunteer their days off to sign a list, it was the past practice of the union and Sara Lee to have union employees who did not want to be volunteered to work on their days off, sign a "No List". Sara Lee argues that because Makray did not sign the "No List", the past practice of the union and Sara Lee was to interpret the failure to sign the list as the employee's acquiescence in volunteering his days off. Pursuant to Sara Lee's reasoning, Makray could be ordered to work on October 18, 1987 and be validly terminated for his failure to appear under the collective bargaining agreement. Thus, Sara Lee argues, this dispute is governed by the collective bargaining agreement and therefore, any state cause of action is preempted by the LMRA because the federal courts have original jurisdiction of labor disputes arising under the LMRA by virtue of 29 U.S.C. Section 185(a) of the LMRA. *fn2"

 II. DISCUSSION

 Before addressing the preemption issue, we must determine whether this action was properly removed from the state court.

 A. Removal

 There are two prerequisites for removal to a district court. First, the action must have been properly commenced in the state court. Second, the action must be one that could have originally been commenced in federal court. People v. Kerr-McGee Chem. Corp., 677 F.2d 571 (7th Cir. 1982); Nuclear Engineering Co. v. Scott, 660 F.2d 241 (7th Cir. 1981), cert. denied, 455 U.S. 993, 71 L. Ed. 2d 855, 102 S. Ct. 1622 (1982). We address each element in turn.

 Although the parties have not raised any issue with respect to the first element of the removal analysis, the Court notes that whether Makray properly alleged a claim under Illinois law is an issue of first impression. The tort of retaliatory discharge has been narrowly construed by Illinois courts. A thorough history of the tort and the various Illinois decisions appears in Lambert v. City of Lake Forest, 186 Ill. App. 3d 937, 542 N.E.2d 1216, 134 Ill. Dec. 709 (2d Dist. 1989), petition for leave to appeal granted, 128 Ill. 2d 664 (1989). Illinois courts have recognized the tort only where it is alleged that the employer discharged the employee in retaliation for filing a workers' compensation claim or in anticipation of the worker's filing of a claim and in retaliation for "whistle blowing", i.e. reporting illegal conduct. Lambert, 542 N.E.2d at 1219. Research reveals no Illinois decisions addressing facts similar to those alleged here, i.e. a discharge in retaliation for the exercise of rights under the One Day Rest in Seven Act.

 Research reveals no Seventh Circuit case law addressing this issue. The Fourth Circuit, however, analyzed a related issue in Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir. 1989). In Union Carbide, the employee brought an action in federal court raising the claim that he was discharged in retaliation for filing grievances reporting his employer's alleged safety violations under the collective bargaining agreement, as well as other claims alleged against both the union and the employer arising under the district court's subject matter jurisdiction. All of the claims were dismissed except the retaliatory discharge claim. The district court entered summary judgment in favor of the employer on the retaliatory discharge claim, basing its ruling on section 301 preemption and, or alternatively, "that there was no right of action premised on West Virginia public policy protecting [plaintiff] from discharge for filing safety complaints." Union Carbide, 870 F.2d at 959.

 The question on appeal was which issue should be addressed first, the merits of the plaintiff's state law allegations or the preemption issue. The Union Carbide majority held that in some circumstances, it may be appropriate for the district court to address the merits of the state law claim prior to addressing the preemption issue and that the decision of the order in addressing the issues should be left to the discretion of the district court. Id. at 960. The Union Carbide dissent argued that it is never appropriate for the district court to address the merits of the state law claim prior to addressing the preemption issue. The majority and dissent agreed, ...


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