{ "id": 3615155, "name": "THOMAS NETZEL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee", "name_abbreviation": "Netzel v. United Parcel Service, Inc.", "decision_date": "1987-11-25", "docket_number": "No. 85-1606", "first_page": "685", "last_page": "695", "citations": [ { "type": "official", "cite": "165 Ill. App. 3d 685" } ], "court": { "name_abbreviation": "Ill. 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UNITED PARCEL SERVICE, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nAfter trial in the circuit court of Cook County on plaintiff Thomas Netzel\u2019s complaint for retaliatory discharge against his employer, defendant, United Parcel Service, Inc., the jury found in his favor and awarded him $200,000 in compensatory damages. Plaintiff now appeals from the trial court\u2019s grant of defendant\u2019s motion for a new trial. Plaintiff\u2019s sole contention is that the trial court abused its discretion in granting a new trial.\nIn view of our disposition of this appeal, we need only briefly state the underlying facts. Plaintiff, a package car driver for defendant, injured his knee while on the job on June 7, 1977. Plaintiff filed a workmen\u2019s compensation claim on July 12, 1978. Plaintiff\u2019s subsequent attempts to return to work, including one on the date of his discharge, August 7, 1979, were unsuccessful because of his injury. Defendant maintained that it discharged plaintiff for disobeying a supervisor\u2019s order to remain on his route on August 7, 1979, until the supervisor met him to assist in the completion of the route. Plaintiff maintained the supervisor gave him permission to return to the distribution center with undelivered packages on that date, as had been the case on the prior occasions when he found he could not continue his route because of his injury.\nPlaintiff\u2019s employment was covered by a collective bargaining agreement between defendant and Teamster Local 705. The agreement prohibited defendant from discharging plaintiff without \u201cjust cause.\u201d The contract also included grievance arbitration procedures to resolve disputes regarding discharge for \u201cjust cause.\u201d Plaintiff did not pursue his remedies under the labor contract. Instead, he filed suit against defendant alleging he was discharged in violation of section 4(h) of the Illinois Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.4(h)) for having filed a claim for compensation under the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.).\nIn its post-trial motion, defendant requested either a directed verdict at the close of plaintiff\u2019s case, judgment notwithstanding the verdict, a new trial, or a remittitur. The trial court denied defendant a judgment notwithstanding the verdict. It did not rule on the motion for directed verdict or remittitur. The trial court granted defendant a new trial because in its opinion: (1) there was no evidence to link plaintiff\u2019s discharge \u201cwith his having filed a Workmen\u2019s Compensation Claim more than one year prior to his discharge\u201d; and (2) the damage award could not stand because of plaintiff\u2019s testimony that he could not perform the work required of a package car driver for defendant and because he was not \u201cgiven credit for some of the benefits he received\u201d by the jury. By this last remark, the trial court apparently referred to disability payments plaintiff received as a result of his injury after his discharge by defendant.\nWe believe that defendant\u2019s challenge to the trial court\u2019s and this court\u2019s subject matter jurisdiction is dispositive. As such, we do not reach the merits of plaintiff\u2019s appeal. Defendant argues that the circuit court lacked jurisdiction over the subject matter because Federal law preempts plaintiff\u2019s State law claim. Plaintiff responds that defendant waived this issue because it raised it for the first time on appeal. Plaintiff notes that defendant also failed to raise the issue on a cross-appeal and claims it cannot now assert cross-errors. We disagree with plaintiff\u2019s contention. The issue of subject matter jurisdiction can be raised at any time. Arrington v. Industrial Comm\u2019n (1983), 96 Ill. 2d 505, 509, 451 N.E.2d 866.\nDefendant maintains that claims of retaliatory discharge which are based on the filing of workmen\u2019s compensation claims are subject to the jurisdiction of the National Labor Relations Board and, therefore, preempted by Federal law. Alternatively, defendant contends that plaintiff\u2019s claim is preempted by section 301 of the Federal Labor Management Relations Act (LMRA) (29 U.S.C. \u00a7 185(a) (1976)). This section provides that suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce may be brought in any Federal district court having jurisdiction of the parties. (29 U.S.C. \u00a7 185(a) (1976).) It has been construed to allow an employee to bring a breach of contract action alleging a violation of a collective bargaining agreement after the employee has attempted to exhaust any exclusive grievance and arbitration procedures provided in the agreement. (Vaca v. Sipes (1967), 386 U.S. 171, 184, 17 L. Ed. 2d 842, 854, 87 S. Ct. 903, 914.) Defendant argues that, even though plaintiff\u2019s claim does not appear by its language to fall within section 301, it nevertheless must be treated as such a claim and plaintiff must prove exhaustion of his contract remedies. In support of its position, defendant cites Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904.\nIn Allis-Chalmers, the issue was whether section 301 of the LMRA preempted a State tort action for bad-faith delay in disability benefit payments due under a collective bargaining agreement. The Supreme Court reasoned that, to determine whether State tort claims such as that at issue were preempted by section 301, it had to be determined whether such claims conferred nonnegotiable State law rights independent of any contract rights or whether evaluation of the tort claim was \u201cinextricably intertwined\u201d with consideration of the terms of the labor contract. (471 U.S. at 213, 85 L. Ed. 2d at 216, 105 S. Ct. at 1912.) The court found that the State tort claim at issue was preempted by section 301 because \u201c[t]he duties imposed and rights established\u201d by it derived \u201cfrom the rights and obligations established by the contract.\u201d (471 U.S. at 217, 85 L. Ed. 2d at 219, 105 S. Ct. at 1914.) The Court established a general rule applicable to such cases: \u201c[W]hen resolution of a state-law claim is substantially dependent upon an analysis of\u201d the terms of a collective bargaining agreement, the claim must either be treated as a section 301 claim or dismissed as preempted by Federal law. As such, the court concluded, the plaintiffs complaint should have been dismissed by the State court because he failed to avail himself of the grievance procedure established in the collective bargaining agreement. 471 U.S. at 220-21, 85 L. Ed. 2d at 221,105 S. Ct. at 1916.\nDefendant additionally cites several lower court cases decided since Allis-Chalmers which hold that an employee covered by a collective bargaining agreement prohibiting discharge without \u201cjust cause\u201d cannot bring an action for retaliatory discharge in violation of State workers\u2019 compensation statutes. See, e.g., Lingle v. Norge Division of Magic Chef, Inc. (S.D. Ill. 1985), 618 F. Supp. 1448, aff\u2019d (7th Cir. 1987), 823 F.2d 1031, cert. granted (1987), _U.S._, 98 L. Ed. 2d 185, 108 S. Ct. 226; Johnson v. Hussman Corp. (E.D. Mo. 1985), 610 F. Supp. 757, aff\u2019d (8th Cir. 1986), 805 F.2d 795.\nIllinois case law provides that a tort action for exercising rights under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) is a remedy available to unionized employees covered by a collective bargaining agreement. (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280, cert. denied (1985), 472 U.S. 1032, 87 L. Ed. 2d 642, 105 S. Ct. 3513, cert. denied (1985), 474 U.S. 909, 88 L. Ed. 2d 243, 106 S. Ct. 278.) Our supreme court recently addressed the question whether, in light of Allis-Chalmers, section 301 of the LMRA preempted the independent State tort of retaliatory discharge as recognized in Midgett, and whether a plaintiff\u2019s failure to exhaust grievance procedures provided in a collective bargaining agreement would bar the action.\nIn Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 503 N.E.2d 308, cert. denied (1987),_U.S___ 97 L. Ed. 2d 779, 107 S. Ct. 3248, the court held that claims of retaliatory discharge fall outside the preemptive sphere of section 301. The court explained that, because the tort alleged in Allis-Chalmers was a derivative product of the labor contract without which it would not have existed, resolution of the claim was substantially dependent upon interpretation of the terms of the agreement. The tort of retaliatory discharge, in contrast, is rooted in clearly mandated public policy of the State which, regardless of the existence or the absence of a collective bargaining agreement, gives employees and employers certain nonnegotiable rights and imposes nonnegotiable duties and obligations. (115 Ill. 2d at 9.) The defendant argued that the State tort should have been preempted because an interpretation of the \u201cjust cause\u201d provision of the collective bargaining agreement was necessary for adjudication; however, the court found that the determination of whether an employee had been discharged in violation of public policy did not turn upon whether the discharge was \u201cjust\u201d under a labor agreement. Otherwise, the court declared, State public policy could become a bargaining chip to be altered or waived by the private parties to the agreement. (115 Ill. 2d at 10.) The court emphasized that, even had the labor contract incorporated the rights and obligations of the Workers\u2019 Compensation Act and provided a discharge in contravention of it would be one without \u201cjust cause,\u201d the claims still would not be preempted by section 301.115 Ill. 2d at 12.\nGonzalez also held that a unionized employee need not exhaust the contract grievance procedures prior to filing an action to redress a nonderivative tort claim which is grounded in a violation of important public policy. (115 Ill. 2d at 12-13.) Although recognizing the importance of the role of the arbitrator and the arbitration process, the court noted that the duty to arbitrate was limited to disputes arising under the agreement. Hence, because the claims of retaliatory discharge were not derived from the agreement, the court found that the company could not use plaintiffs\u2019 failure to exhaust the grievance procedures as an affirmative defense. 115 Ill. 2d at 15.\nNotwithstanding our supreme court\u2019s decision in Gonzalez, we believe that we are required to find that section 301 of the LMEA preempts Illinois law with respect to plaintiff\u2019s retaliatory discharge claim in view of the United States Court of Appeals\u2019 recent decision in Lingle v. Norge Division of Magic Chef, Inc. (S.D. Ill. 1985), 618 F. Supp. 1448, aff\u2019d (7th Cir. 1987), 823 F.2d 1031, cert. granted (1987), _U.S___ 98 L. Ed. 2d 185,108 S. Ct. 226.\nLingle affirmed the dismissal of two claims of retaliatory discharge which the plaintiffs alleged were motivated by the exercise of their rights under the Workers\u2019 Compensation Act. The Federal District Court for the Southern District of Illinois, relying on Allis-Chalmers, found that the claims were \u201cinextricably intertwined\u201d with the collective bargaining agreements covering each plaintiff which prohibited discharge without just cause and thus ruled that they were preempted by section 301. As such, the district court dismissed the actions due to the plaintiffs\u2019 failures to exhaust the grievance and arbitration procedures provided by their collective bargaining agreements. Lingle, 823 F.2d at 1034-35.\nThe court of appeals first concluded that claims for retaliatory discharge by employees covered by collective bargaining agreements prohibiting discharge without just cause \u201care actually claims for wrongful discharge under\u201d the agreement. As such, it found plaintiff\u2019s claims arose under Federal law and that their removal to Federal court had been proper. (Lingle, 823 F.2d at 1041-42.) The court next concluded that section 301 preemption required that \u201c \u2018incompatible doctrines of local law must give way to principles of federal labor law.\u2019 \u201d (Lingle, 823 F.2d at 1042.) Thirdly, the court concluded that plaintiffs\u2019 retaliatory discharge claims depended substantially on analysis of the terms of the collective bargaining agreements, since they were seeking redress of a right deriving therefrom, and that, therefore, their claims were preempted by section 301. The court disagreed with plaintiffs that a retaliatory discharge claim, as defined in Illinois, did not expressly require interpretation of collective bargaining agreements and that, therefore, the tort was not \u201cinextricably intertwined\u201d with Federal labor law. It reasoned that analyzing the claim under the State tort before doing so under the collective bargaining agreement would allow States, through the guise of their workers\u2019 compensation laws, to \u201ccircumvent the arbitration and grievance procedures envisioned by Congress as exclusive.\u201d The court next concluded that Congress clearly intended that retaliatory discharge claims be resolved by grievance procedures in collective bargaining agreements; and, as such, that those tort claims are \u201cinextricably intertwined with\u201d such agreements because they require \u201cthe same analysis of the facts as would an inquiry under the just cause provisions of the agreements.\u201d (Lingle, 823 F.2d at 1046.) Finally, the court affirmed the dismissals \u201cas a matter of federal law\u201d because plaintiffs failed to exhaust their remedies under the collective bargaining agreements. Lingle, 823 F.2d at 1050.\nLingle is fundamentally at odds with our supreme court\u2019s decision in Gonzalez. However, we believe that we must follow Lingle inasmuch as Federal court decisions control the interpretation of Federal statutes. (Boyer v. Atchison, Topeka & Sante Fe Ry. Co. (1967), 38 Ill. 2d 31, 34, 230 N.E.2d 173, cert. denied (1968), 390 U.S. 949, 19 L. Ed. 2d 1140, 88 S. Ct. 1038; Elgin, Joliet & Eastern Ry. Co. v. Industrial Comm\u2019n (1956), 9 Ill. 2d 505, 507, 138 N.E.2d 553; Ernhart v. Elgin, Joliet & Eastern Ry. Co. (1950), 405 Ill. 577, 582, 92 N.E.2d 96; Arnold v. Babcock & Wilcox Co. (1987), 154 Ill. App. 3d 863, 870, 507 N.E.2d 218; Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 620, 494 N.E.2d 581; Montefe lice v. Terminal R.R. Association (1981), 100 Ill. App. 3d 858, 860, 427 N.E.2d 370; People v. Heidelberg (1975), 33 Ill. App. 3d 574, 595, 338 N.E.2d 56.) We believe that the determination whether a State law cause of action for retaliatory discharge for filing a worker\u2019s compensation claim brought by an employee covered by a collective bargaining agreement is preempted by the LMRA is fundamentally dependent upon a construction of that Federal statute. In such cases, our supreme court has stated that Federal decisions control.\nWe recognize that two other Illinois appellate courts have decided that Gonzalez rather than Lingle is controlling (see Brazinski v. Transport Service, Inc. (1987), 159 Ill. App. 3d 1061, 513 N.E.2d 76; Byrd v. Aetna Casualty & Surety Co. (1987), 152 Ill. App. 3d 292, 504 N.E.2d 216) in this situation. But, we believe those decisions are based on an application of the rule that lower Federal court decisions are not binding on Illinois courts out of the context in which the rule is properly applicable. Brazinski cites People v. Spahr (1978), 56 Ill. App. 3d 434, 438, 371 N.E.2d 1261, for the proposition that \u201c[w]hile a Federal appeals court\u2019s decision is persuasive authority in this court, we are bound by the decision of our State supreme court in the absence of contrary authority by the United States Supreme Court.\u201d (159 Ill. App. 3d at 1066.) Byrd, which was decided before the Seventh Circuit Court of Appeals decision in Lingle, cites Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1057, 452 N.E.2d 804, for the rule that \u201c[decisions of the United States district courts will be given respectful consideration, but will be adopted only when persuasive in their rationale and reasoning.\u201d (152 Ill. App. 3d at 300.) Byrd also cites Nandorf, Inc. v. CNA Insurance Cos. (1985), 134 Ill. App. 3d 134, 479 N.E.2d 988, for a similar rule.\nIn People v. Spahr (1978), 56 Ill. App. 3d 434, 438, 371 N.E.2d 1261, the court stated:\n\u201cIllinois supreme court decisions are binding on all Illinois courts [citation], but decisions of Federal courts other than United States Supreme Court decisions concerning questions of Federal statutory and constitutional law are not binding on Illinois courts. (People v. O\u2019Neal (1976), 40 Ill. App. 3d 448, 450, 352 N.E.2d 282, 283.)\u201d (Emphasis added.)\nPeople v. O\u2019Neal (1976), 40 Ill. App. 3d 448, 450, 352 N.E.2d 282, cert. denied (1977), 431 U.S. 969, 53 L. Ed. 2d 1065, 97 S. Ct. 2929, stated:\n\u201c \u2018[Decisions of Federal Courts other than the United States Supreme Court *** are not binding on the courts of this state.\u2019 (People v. West (1971), 3 Ill. App. 3d 106, 116, 278 N.E.2d 233, 240.)\u201d\nWest cited People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431, cert. denied (1971), 404 U.S. 873, 30 L. Ed. 2d 116, 92 S. Ct. 121, for the rule quoted in O\u2019Neal.\nIn Stansberry, the defendants had argued that search warrants which led to their arrests were void under a Seventh Circuit Court of Appeals decision. Our supreme court, noting that it had taken the position opposite that of the Seventh Circuit, stated:\n\u201cThe question thus presented is whether the [Federal] case has any binding effect on this court when the issue has not been passed on by the United States Supreme Court. *** [T]he majority [of States favor] the rule that such decisions should have no binding effect until the issue is determined by the Supreme Court. This would appear to be the most logical conclusion, for oftentimes there is a conflict between decisions of the various Federal courts on constitutional matters and until finally determined by the United States Supreme Court there can be no definitive ruling by which a State court can be bound. [Citation.]\u201d (Emphasis added.) (47 Ill. 2d at 544.)\nThe court then noted the conflicting decisions by various Federal courts on the substantive issue before it and stated: \u201cUnder such circumstances decisions of the lower Federal courts can be held to be no more than persuasive and certainly not binding on State courts.\u201d 47 Ill. 2d at 545.\nThus, it is clear that the reference in Spahr to \u201cFederal statutory law\u201d is an unwarranted gloss on the rule first stated in Stansberry, which limited its refusal to follow lower Federal court decisions to those involving \u201cconstitutional matters\" because of the divergence of opinion by those courts on such issues. Properly read then, the Stansberry rule is not in conflict with the rule, also stated by the supreme court, that Federal court decisions control the interpretation of Federal statutes.\nThe cases of Skokie Gold and Nandorf, which Byrd cites for the rule that lower Federal court decisions are not binding on Illinois courts, in turn cite to City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 118, 368 N.E.2d 891, for that rule. Neither Skokie Gold, Nandorf nor Groffman involved the interpretation of a Federal statute. Groffman involved the constitutionality of a City of Chicago ordinance. In disagreeing with a Seventh Circuit Court of Appeals decision in another case that the ordinance was unconstitutional, the appellate court in Groffman had cited West, Stansberry, and United States ex rel. Lawrence v. Woods (7th Cir. 1970), 432 F.2d 1072, cert. denied (1971), 402 U.S. 983, 29 L. Ed. 2d 148, 91 S. Ct. 1658, for the rule recited in Byrd. (City of Chicago v. Groffman (1976), 42 Ill. App. 3d 139, 145, 354 N.E.2d 572.) In restating that same rule, the supreme court in Groffman relied on Stansberry and People ex rel. Illinois Federation of Teachers v. Lindberg (1975), 60 Ill. 2d 266, 326 N.E.2d 749, cert. denied (1975), 423 U.S. 839, 46 L. Ed. 2d 58, 96 S. Ct. 67.\nLindberg involved a challenge to the constitutionality of a line item veto by former Governor Walker of a State appropriation to certain teachers\u2019 pension funds. In rejecting the plaintiff\u2019s reliance on a United States First Circuit Court of Appeals decision, the supreme court cited Stansberry. (60 Ill. 2d at 277.) Thus, Lindberg did not involve the interpretation of a Federal statute but rather, as Stansberry and Groffman had, \u201ca constitutional matter.\u201d\nLawrence was a habeas corpus proceeding. The court of appeals concluded that the Illinois Supreme Court was not required to release the petitioner on the basis of another court of appeals decision holding the local ordinance under which the petitioner was convicted unconstitutional. The court stated that, because lower Federal courts exercise no appellate jurisdiction over State courts, their decisions are not conclusive on State courts. (Lawrence, 432 F.2d 1072.) Prior to so stating, the court examined the position of various States on the issue. From a New Jersey case, it quoted language that lower Federal court decisions did not bind the State\u2019s courts \u201c \u2018on federal constitutional issues.\u2019 \u201d From an Iowa case, it quoted language that until the United States Supreme Court \u201c \u2018has spoken, state courts are not precluded from exercising their own judgment upon questions of federal law.\u2019 \u201d (432 F.2d 1072, 1075.) We believe that, to the extent Lawrence relied on an Iowa case referring to \u201cfederal law\u201d as opposed to \u201cfederal constitutional law,\u201d it is, at best, questionable authority on which to conclude that the rule that Federal court decisions control the interpretation of Federal statute is no longer viable.\nIn contrast to the context of criminal \u201cconstitutional matters\u201d in which the Stansberry rule first arose is the context in which the rule we rely on arose and continues to be applied. Ernhart v. Elgin, Joliet & Eastern Ry. Co. (1950), 405 Ill. 577, 92 N.E.2d 96, and Elgin, Joliet & Eastern Ry. Co. v. Industrial Comm\u2019n (1956), 9 Ill. 2d 505, 138 N.E.2d 553, involved underlying actions brought in Illinois courts under the Federal Employer\u2019s Liability Act (FELA) (45 U.S.C. \u00a751 et seq. (1982)). In each case the issue was whether the plaintiff\u2019s employer was engaged in interstate commerce at the time of the plaintiff\u2019s injuries so as to bring him within the coverage of the Federal statute. The supreme court stated in Ernhart: \u201cWe have carefully examined the Federal cases cited, which we concede are controlling in the interpretation of a Federal act, ***.\u201d (Emphasis added.) (405 Ill. at 582.) Importantly, the court then examined nine lower Federal court decisions cited by the plaintiff. It then stated in Elgin, Joliet, without citing Ernhart: \u201cThe decisions of the Federal courts are controlling upon our court in the interpretation of a Federal statute.\u201d (9 Ill. 2d at 507.) The court then examined two United States Supreme Court cases, Ernhart and two other of its earlier cases to decide the issue. In Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d 31, 230 N.E.2d 173, cert. denied (1968), 390 U.S. 949, 19 L. Ed. 2d 1140, 88 S. Ct. 1038, an action brought under the Federal Safety Appliance Act (45 U.S.C. \u00a72 (1982)), the supreme court stated: \u201cIn construing the Federal Safety Appliance Act, as with other Federal statutes, we must look to the Federal decisions for its interpretation.\u201d (Emphasis added.) 38 Ill. 2d at 34.\nThis rule, established by our supreme court in cases arising under Federal statutes, continues to be applied by Illinois appellate courts in that context. In Montefelice v. Terminal R.R. Association (1980), 100 Ill. App. 3d 858, 860, 427 N.E.2d 370, another FELA action, the court cited Elgin for the rule and concluded that it was required to follow a decision of the United States Court of Appeals for the Eighth Circuit. More importantly, the rule has also been extended to the context of the Federal preemption of Illinois law. In Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 494 N.E.2d 581, the plaintiff employers contended the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. \u00a71001 et seq. (1982)) preempted the Illinois Department of Labor\u2019s regulation of their employee vacation plans. In disagreeing, the court stated: \u201cWe base these conclusions on Federal law because the decisions of the Federal courts are controlling upon our court in the interpretation of a Federal statute.\u201d (144 Ill. App. 3d at 619-20.) The court cited to Elgin, Joliet and Montefelice for the rule and then concluded that the trial court had properly relied on a decision of the United States District Court for the Northern District of Illinois to find no preemption. Lastly, in Arnold v. Babcock & Wilcox Co. (1987), 154 Ill. App. 3d 863, 507 N.E.2d 218, an action brought in part under ERISA, the defendant employer contended that the ERISA had superseded State law and that, under governing Federal law, its denial of termination benefits to plaintiffs, its former employees, was not arbitrary and capricious. In response, the plaintiffs relied on several Illinois contract cases. The court stated:\n\u201cPlaintiffs arguments based on State law are not well founded \u2018because the decisions of the Federal courts are controlling *** in the interpretation of a Federal statute.\u2019 \u201d (154 Ill. App. 3d at 870, quoting Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 619-20.)\nAfter citing Golden Bear for the rule, the court relied on several lower Federal court decisions to conclude that defendant\u2019s denial of termination benefits had not been arbitrary and capricious.\nWe believe this analysis reveals that we are bound, at the direction of the Illinois Supreme Court itself, to follow the Seventh Circuit\u2019s Lingle decision that the Illinois tort of retaliatory discharge is preempted by section 301 of the LMRA. Accordingly, we so hold.\nMoreover, whether we so hold or hold, alternatively, under Allis-Chalmers, that we may treat plaintiff\u2019s claim as a section 301 claim, the result would be the same. That is, if we adopt the former view, we lack subject matter jurisdiction and must dismiss the claim sua sponte. (Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 55 L. Ed. 2d 206, 105 S. Ct. 1904; Bartley v. University Asphalt Co. (1986), 111 Ill. 2d 318, 330, 489 N.E.2d 1367.) If we adopt the latter view, Lingle requires us to dismiss the claim as a matter of Federal law due to plaintiff\u2019s failure to exhaust the grievance and arbitration procedures provided by the collective bargaining agreement governing his employment \"with defendant. Additionally, as upon remand the trial court would be bound by the views expressed herein and thus bound to dismiss plaintiff\u2019s cause of action, we may dismiss the complaint without remanding the cause. Under Supreme Court Rule 366(a)(5), we may grant any relief that the case may require. (107 Ill. 2d R. 366(a)(5).) Accordingly, this appeal and the complaint for retaliatory discharge underlying it are dismissed.\nAppeal and complaint dismissed.\nMcNAMARA, P.J., and WHITE, J, concur.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Robert E. Lunz and Marvin A. Brustin, Ltd., both of Chicago, for appellant.", "John A. McDonald and Steven H. Adelman, both of Chicago, for appellee." ], "corrections": "", "head_matter": "THOMAS NETZEL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.\nFirst District (3rd Division)\nNo. 85\u20141606\nOpinion filed November 25, 1987.\n\u2014 Rehearing denied January 25, 1988.\nRobert E. Lunz and Marvin A. Brustin, Ltd., both of Chicago, for appellant.\nJohn A. McDonald and Steven H. Adelman, both of Chicago, for appellee." }, "file_name": "0685-01", "first_page_order": 707, "last_page_order": 717 }