Turning to the second prong of the removal analysis, Makray and Sara Lee disagree as to whether Makray's action originally could have been commenced in federal court. That issue turns on whether Makray's state claim for retaliatory discharge is preempted by Section 301 of the LMRA thereby establishing the original jurisdiction of this court. The Supreme Court in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), held that "an application of state law is preempted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective bargaining agreement." The policy goal in requiring preemption of state law claims by section 301 of the LMRA is to provide consistent contract interpretation under federal law and reduce the chance "that individual contract terms might have different meanings under state and federal law." Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 7 L. Ed. 2d 593, 82 S. Ct. 571 (1962). Those policy considerations, however, do not prevent the various states from providing workers with other substantive, state-created, legal rights independent of the collective bargaining relationship. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985). Thus, the Lingle Court held that "so long as the state law claim can be resolved without interpretation of the agreement itself, the claim is "independent" of the agreement for purposes of section 301." Lingle, 108 S. Ct. at 1883.
The Seventh Circuit applied the law established in Lingle in the recent case of Bettis v. Oscar Mayer Foods Corp., 878 F.2d 192 (7th Cir. 1989). In Bettis, as in Lingle and the instant case, the state law cause of action alleged was a retaliatory discharge theory. The Bettis court held that Lingle requires an examination of the elements of the state law tort and a determination of whether resolution of the state law claim requires an interpretation of the collective bargaining agreement. Id. at 196. "To show retaliatory discharge, [the employee] must set forth sufficient facts from which it can be inferred that (1) he was discharged or threatened with discharge and (2) [the employer's] motive in discharging or threatening to discharge him was to deter him from exercising his rights under the Act or to interfere with his exercise of those rights." Id. at 196; citing Lingle, 108 S. Ct. at 1882.
Makray satisfies those elements by alleging that he was discharged for exercising his rights under the One Day Rest In Seven Act. Ill. Rev. Stat. ch. 48, para. 8 et seq. (1935). As discussed above, research reveals no Illinois cases holding that an employer's termination of an employee's employment for his exercise of rights under the One Day Rest In Seven Act is a retaliatory discharge. For the reasons set forth above, this Court will not predict whether an Illinois court would allow such a cause of action. Makray alleges a discharge in retaliation for the exercise of his rights established by an Illinois statute and those allegations satisfy this court's inquiry into whether Makray states a claim under Illinois law.
Our inquiry is not complete, however, even though Makray alleges a claim for retaliatory discharge, which precedent establishes is not preempted by Section 301. The Lingle Court's holding was limited to those cases in which the employee alleges the tort of retaliatory discharge and the employer claims that the collective bargaining agreement justifies its decision to terminate the employee. The instant case presents a slightly different issue from Lingle. Sara Lee contends not only that the collective bargaining agreement justified its actions, but also that Makray's discharge was proper because, pursuant to the union's prior practice and interpretation of the collective bargaining agreement, Makray's failure to sign the "No List" constituted a waiver of the protection of the One Day Rest In Seven Act. The Lingle Court expressly reserved decision of the issue presented by Sara Lee, that the union waived the same right on behalf of Makray, that Makray now asserts as the basis of his retaliatory discharge claim:
Whether a union may waive its members' individual, nonpreempted state-law rights, is, likewise, a question distinct from that of whether a claim is pre-empted under § 301, and is another issue we need not resolve today. We note that under Illinois law, the parties to a collective bargaining agreement may not waive the prohibition against retaliatory discharge . . . (citations omitted). Before deciding whether such a state law bar to waiver could be pre-empted under federal law by the parties to a collective bargaining agreement, we would require "clear and unmistakable" evidence, see Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983), in order to conclude that such a waiver had been intended . . . Lingle, 108 S. Ct. at 1883, n. 9.
If the union validly waived Makray's right to the protection of the One Day Rest In Seven Act, then Makray does not have a claim for retaliatory discharge and may not state one under the facts alleged. The issue of waiver, however, is not one to be determined by the state court, but rather falls within this court's original jurisdiction. That is because, as noted by the Seventh Circuit, the state court "[may] simply determine whether such a motive exists -- not whether, as a matter of law, the collective bargaining agreement justifies such a motive." Pantoja v. Texas Gas and Transmission Corporation, 890 F.2d 955, 960 n.3 (7th Cir. 1989) (citation omitted); see also Douglas v. American Information Technologies Corporation, 877 F.2d 565, 572-574 (7th Cir. 1989) (requirement of court examination and interpretation of collective bargaining agreement mandates preemption).
Therefore, the Lingle Court's footnote leads this court to conclude that any decision with respect to Makray's motion to remand must be deferred, pending the parties' submission of evidence relevant to the issue of waiver of Makray's right to the protection of the One Day Rest In Seven Act.
This court's decision with respect to Makray's motion to remand is deferred, pending the parties' submission of evidence. Both parties shall file written evidence relevant to the issue of waiver simultaneously on the date provided in this Court's minute order of the same date as this opinion.
Dated: February 20, 1990