NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0886-13T1
SALVATORE PUGLIA,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. October 10, 2014
ELK PIPELINE, INC., ELK APPELLATE DIVISION PIPELINE, INC. t/a and/or d/b/a CROWN PIPELINE CONSTRUCTION COMPANY, CROWN PIPELINE CONSTRUCTION COMPANY, THOMAS MECOUCH, individually and as the corporate alter ego,
Defendants-Respondents. _______________________________
Argued July 16, 2014 - Decided October 10, 2014
Before Judges Messano,1 Lihotz and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1046-11.
Deborah L. Mains argued the cause for appellant (Costello & Mains, P.C., attorneys; Ms. Mains, on the brief).
Douglas Diaz argued the cause for respondents (Archer & Greiner, P.C., attorneys; Mr. Diaz and Tracy Asper Wolak, on the brief).
1 Judge Messano did not participate in oral argument. He joins the opinion with counsel's consent. R. 2:13-2(b). The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Plaintiff Salvatore Puglia appeals from the Law Division's
grant of summary judgment, dismissing his complaint alleging his
former employer, defendants Elk Pipeline, Inc. (Elk) and Elk's
President Thomas Mecouch (collectively defendants) retaliated
against him for reporting Elk's alleged violations of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
to -14. Plaintiff maintained Elk failed to properly pay
overtime and remuneration at an applicable rate which violated
the New Jersey Prevailing Wage Act (PWA), N.J.S.A. 34:11-56.25
to -56.47, and his complaints resulted in his lay-off despite
his level of seniority. The Law Division rejected plaintiff's
claims as cognizable under CEPA, instead finding they were based
on an interpretation of the parties' collective bargaining
agreement (CBA), and redress was governed by federal law. We
agree and affirm.
I.
We recite the facts found in the summary judgment record
viewed in a light most favorable to plaintiff. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff was employed by Elk as a laborer from October 2, 2006
to December 16, 2010. During that time, plaintiff was assigned
2 A-0886-13T1 to work on a sewer reconstruction project located in the City of
Camden (the project). It is undisputed that the project was a
public works project as defined in the PWA.
As a member of the International Association of Machinists
and Aerospace Workers, AFL-CIO, Local Lodge S-76, plaintiff's
employment was subject to a CBA, negotiated between Elk and the
union. The CBA was effective from June 28, 2004 to February 15,
2010, but remained binding "thereafter from year to year unless
either party" gave notice prior to the expiration date of an
"intention to modify or terminate the agreement."
In January 2010, plaintiff noticed his hourly rate of pay
was reduced from what he had previously received. He believed
the rate of pay was less than the prevailing wage to which he
was entitled. Plaintiff and another laborer, Robert Barrette,
immediately challenged the reduced rate of pay by complaining to
their supervisor, Eric Larsen, who referred them to Michael
Tedesco, Elk's project manager.
Plaintiff and Barrette next complained to Tedesco about the
pay cut. Tedesco stated Mecouch directed several laborers be
paid at the apprenticeship level. Tedesco explained he
objected, telling Mecouch Elk had no approved apprenticeship
program for the project. Mecouch did not change his position.
3 A-0886-13T1 Therefore, Tedesco recommended plaintiff speak directly to
Mecouch, which he did in late January 2010.
In summer 2010, after his pay rate was not restored,
plaintiff formally filed a complaint with the New Jersey
Department of Labor. About this time, plaintiff contends
Mecouch, through Tedesco, instructed him and other employees to
"lie to state inspectors" if asked about their rate of pay.
Plaintiff then discussed the problem with Jim Takacs, the
resident engineer on the project. Takacs's role was "to enforce
the Davis-Bacon rates on the Camden [p]ublic [w]ork sites for
the Camden Sewer Reconstruction Project[.]"2 Takacs reviewed
Elk's certified payroll records and determined certain laborers
were not properly compensated, noting specifically there was no
approved apprenticeship program, making use of that pay rate
inappropriate.
Takacs told Tedesco that Elk must rectify its payroll
discrepancies. He specifically identified plaintiff as one
laborer whose pay rate was incorrect. In reference to
plaintiff, Takacs recalled Tedesco stating something "off the
2 The Davis-Bacon Act, originally 40 U.S.C.A. § 276A, and recodified as 40 U.S.C.A. § 3142, addresses federal wage rates for laborers and mechanics employees on federal public works projects. The statute requires contractors to pay the prevailing wage rate on public-bidding projects. New Jersey has adopted its own prevailing wage legislation, found at N.J.S.A. 34:11- 56.27.
4 A-0886-13T1 record" like "the owner wanted to f[---] with him and wants to
get rid of him."
Thereafter, plaintiff and the other laborers' pay rates
were restored to the prevailing wage rate. However, plaintiff
maintained he did not receive all back pay he was due. During
this time, Mecouch told him, "look, I was going to fire you,
you're just not working out, but I'm going to give you a second
chance." Plaintiff also spoke to Tedesco regarding his
entitlement to additional back pay, but was told, "be quiet and
keep your job or be laid off."
On December 16, 2010, plaintiff's employment on the project
ended. Mecouch explained to plaintiff he was being laid off as
the project neared completion and was being reassigned.
Plaintiff never reported to his newly-assigned location.
On January 13, 2011, plaintiff filed his complaint alleging
violations of the PWA, CEPA, along with individual liability
claims against Mecouch under CEPA, and equitable relief. The
parties settled the PWA claim.
After discovery, defendants moved for summary judgment
dismissal of the remaining claims. Judge Jean B. McMaster
concluded plaintiff's CEPA claim was actually a wage claim
preempted by section 301(a) of the Labor Management Relations
Act of 1947 (LMRA), 29 U.S.C.A. § 185(a), and the National Labor
5 A-0886-13T1 Relations Act of 1935 (NLRA), 29 U.S.C.A. §§ 151-166.
Plaintiff, arguing this was error, appeals from the grant of
summary judgment and dismissal of his complaint.
II.
Our review of summary judgment dismissal is de novo, Dep't
of Envt'l Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div.
2007), according no special deference to a judge's determination
as a decision to grant or deny summary judgment does not hinge
upon credibility of testimony or determinations of fact, but
instead, amounts to a ruling on a question of law. See
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995) (noting that no "special deference" applies to a
trial court's legal conclusions).
Employing the same standards used by the motion judge under
Rule 4:46, Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584
(2012), our review examines whether, affording the non-moving
party the benefit of all reasonable inferences, the movant has
demonstrated there were no genuine disputes as to material
facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.
Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104
(2006). If no genuine dispute exists, we then decide whether
the motion judge's application of law was correct. Id. at 231.
Our role is not to resolve contested factual issues, but to
6 A-0886-13T1 determine whether a genuine factual dispute exists. Agurto v.
Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). See also
Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (quoting R. 4:46-2(c)
("A court should grant summary judgment only when the record
reveals 'no genuine issue as to any material fact' and 'the
moving party is entitled to a judgment or order as a matter of
law.'")). If the court finds materially disputed facts, the
motion for summary judgment must be denied. Brill, supra, 142
N.J. at 540; see, e.g., Parks v. Rogers, 176 N.J. 491, 502
(2003). Summary judgment dismissal may be granted only when the
evidence is found to be "'so one-sided that one party must
prevail as a matter of law[.]'" Brill, supra, 142 N.J. at 540
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106
S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
On appeal, plaintiff argues the motion judge erroneously
concluded federal law preempted his CEPA claim. To successfully
prove a claim under CEPA, plaintiff must demonstrate:
(1) that he . . . reasonably believed that his . . . employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he . . . performed whistle-blowing activity described in N.J.S.A. 34:19-3a, c(1) or c(2); (3) an adverse employment action was taken against him . . . ; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action.
7 A-0886-13T1 [Mosley v. Femina Fashions, Inc. 356 N.J. Super. 118, 127 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003).]
Plaintiff asserts he suffered unlawful retaliation based on
N.J.S.A. 34:19-3, which prohibits retaliatory conduct for
disclosing unlawful activities. CEPA prohibits such conduct
stating in pertinent part:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer . . . that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or
(2) is fraudulent or criminal . . . ;
b. . . .; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation . . . ; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
8 A-0886-13T1 [N.J.S.A. 34:19-3.]
The trial judge rejected plaintiff's complaint as framed,
instead finding the substance of plaintiff's claims regarding
matters preempted by federal law. The doctrine of preemption is
based on the Supremacy Clause, which mandates "[t]he Federal
Constitution and federal laws are 'the supreme Law of the Land'
and 'Judges in every State [are] bound thereby; any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.'" Chamber of Commerce v. State, 89 N.J. 131,
141 (1982) (quoting U.S. Const., Art. VI, cl. 2). Therefore,
where Congress intends to regulate an area or subject matter,
all state legislation frustrating that objective is displaced as
constitutionally subordinate. See Malone v. White Motor Corp.,
435 U.S. 497, 504, 98 S. Ct. 1185, 1190, 55 L. Ed. 2d 443, 450
(1978) (quoting Retail Clerks Int'l Assoc., Local 1625, AFL-CIO
v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 223, 11 L. Ed.
2d 179, 184 (1963) ("The purpose of Congress is the ultimate
touchstone")).
"Preemption analysis begins with identifying the subject
matter of the state law and determining whether . . . federal
law [operates] in that field." Id. at 142 (citing Hines v.
Davidowitz, 312 U.S. 52, 64-68, 61 S. Ct. 399, 402-404, 85 L.
Ed. 581, 587 (1941)). A state law, which conflicts with federal
9 A-0886-13T1 legislation governing the same area, must yield to and is
preempted by the federal authority, thus, eliminating
inconsistent state policies. Ibid. The question examined is
whether Congress intended to preempt the subject matter which is
addressed in the state legislation. Int'l Longshoremen's Ass'n
v. Waterfront Comm'n, 85 N.J. 606, 612 (1981).
"In the labor-management field, Congress has not expressly
provided for exclusive federal jurisdiction." Chamber of
Commerce, supra, 89 N.J. at 142 (footnote omitted).
Nevertheless, Congress has exercised extensive authority as the
regulator of national labor policy and labor relations. Two such
provisions — section 301(a) of the LMRA and section 7 of the
NLRA — are cited by defendants as preempting plaintiff's alleged
state law claims.
First, section 301(a) of the LMRA, states, in part:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
[29 U.S.C.A. § 185(a).]
"[Section] 301 requires the creation of uniform federal labor
law to ensure uniform interpretation of collective bargaining
10 A-0886-13T1 agreements[.]" Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d
428, 437 (D.N.J. 2011).
Made clear by the Supreme Court of the United States
(SCOTUS) in Textile Workers Union of America v. Lincoln Mills,
353 U.S. 448, 455-56, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957),
"[section 301(a)] is not merely jurisdictional, but . . . also
. . . calls on the federal courts to create a uniform federal
common law of collective bargaining, with the primacy of
arbitral resolution of industrial disputes as its centerpiece."
Voilas v. GMC, 170 F.3d 367, 372 (3d Cir. 1999). "[S]tate laws
that might produce differing interpretations of the parties'
obligations under a collective bargaining agreement are
preempted." Ibid. Accordingly, "[w]hen resolution of a [state
law] claim is substantially dependent upon analysis of the terms
of an agreement made between the parties in a labor contract,
that claim must either be treated as a [section] 301 claim or
dismissed as [preempted.]" Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 220, 105 S. Ct. 1904, 1915, 85 L. Ed. 2d 206, 221
(1985) (internal citation omitted). SCOTUS has stressed that
the mere characterization of a claim as one "sounding in tort
rather than contract [does] not bar the operation of [section]
301 preemption and reasoned that preemption of the employee's
claim was necessary in order to avoid 'allowing parties to evade
11 A-0886-13T1 the requirements of [section] 301 by relabeling their contract
claims as claims for tortious breach of contract.'" Voilas,
supra, 170 F.3d at 373 (quoting Allis-Chalmers, supra, 471 U.S.
at 211, 105 S. Ct. at 1911, 85 L. Ed. 2d at 215).
Federal labor law also forbids state action focused on the
enforcement of collective bargaining agreements, because section
7 of the NLRA, grants employees "the right to self-organization,
to form, join, or assist labor organizations, to bargain
collectively . . . , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection." 29 U.S.C.A. § 157. Further, section 8 of the NLRA
prohibits acts constituting an unfair labor practice.3 George
Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 25-27 (1994).
Concisely, these provisions mandate that when examination
focuses on whether the alleged state law claims require
interpretation of the terms within the CBA, preemption applies.
This requirement, that terms set forth in a CBA must be
determined by federal law, avoids conflict as "[t]he possibility
that individual contract terms might have different meanings
under state and federal law would inevitably exert a disruptive
influence upon both the negotiation and administration of
3 This is commonly known as the "Garmon pre-emption" as set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959).
12 A-0886-13T1 collective agreements." Teamsters v. Lucas Flour Co., 369 U.S.
95, 103, 82 S. Ct. 571, 577, 7 L. Ed. 2d 593, 599 (1962). Were
a different result allowed, "the process of negotiating an
agreement would be made immeasurably more difficult by the
necessity of trying to formulate contract provisions in such a
way as to contain the same meaning under two or more systems of
law which might someday be invoked in enforcing the contract."
Ibid. Preemption assures the purposes driving federal law
will be frustrated neither by state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," nor by parties' efforts to renege on their arbitration promises by "relabeling" as tort suits actions simply alleging breaches of duties assumed in collective bargaining agreements[.]
[Livadas v. Bradshaw, 512 U.S. 107, 123, 114 S. Ct. 2068, 2078 (1994), 129 L. Ed. 2d 93, 109 (internal citations omitted).]
However, we do not read the provisions of the LMRA and NLRA
so broadly as "to [preempt] nonnegotiable rights conferred on
individual employees as a matter of state law[.]" Id. at 123,
114 S. Ct. at 2079, 129 L. Ed. 2d at 109.
[I]t is the legal character of a claim, as "independent" of rights under the collective bargaining agreement (and not whether a grievance arising from precisely the same set of facts could be pursued) that decides whether a state cause of action may go forward.
13 A-0886-13T1 [Ibid. (internal citation and quotation marks omitted).]
"[W]hen the meaning of contract terms is not the subject of
dispute, the bare fact that a [CBA] will be consulted in the
course of [state law] litigation plainly does not require the
claim to be extinguished[.]" Ibid. (citing Lingle v. Norge
Div. of Magic Chef, 486 U.S. 399, 413 n. 12, 108 S. Ct. 1877,
1884, 100 L. Ed. 2d 410, 423 (1988) ("A collective bargaining
agreement may, of course, contain information such as rate of
pay . . . that might be helpful in determining the damages to
which a worker prevailing in a state-law suit is entitled")).
Finally, if a plaintiff's claim implicates both federal and
state law such that "evaluation of the tort claim is
inextricably intertwined with consideration of the terms of the
labor contract," the state claim is preempted. Allis-Chambers
Corp., supra, 471 U.S. at 213, 105 S. Ct. at 1912, 85 L. Ed. 2d
at 216. It is only when resolution of the state law claim does
not require interpretation of the CBA that preemption is
inapplicable. Labree v. Mobil Oil Corp., 300 N.J. Super. 234,
239 (App. Div. 1997) (citing Leonardis v. Burns Int'l Sec.
Servs. Inc. 808 F. Supp. 1165, 1175 (D.N.J. 1992)).
In light of these principles we examine plaintiff's claimed
causes of action. In his complaint, plaintiff avers he
14 A-0886-13T1 seeks unpaid overtime compensation, the difference between actual wages paid and wages due pursuant to the PWA on public works jobs and seeks to remedy a retaliatory discharge which occurred after he made a good faith complaint of wage violations to his employer and after he disclosed wage violations to a state inspector.
The complaint further alleges plaintiff worked more hours than
he was compensated for, "was entitled to a larger differential"
than the sum actually remitted based on his proper rate of pay,
and maintains his employment ended when he was "'laid off' . . .
despite the fact he had more seniority with the company than
other employees who were not laid off and who remained employed
. . . ." Specifically as to this last issue, plaintiff argues
his seniority status should have allowed him to continue to
work, but instead, Elk ended his employment in retaliation for
his whistle-blower activities.
Provisions within the CBA address the subject of employee
wages, pay rates, overtime, and seniority. Specifically,
Article V, entitled "Wage Rate," includes the hourly rates and
classifications for all employees covered by the agreement and
Articles VI and VII address the "regular hour[s] of work and the
determination and rate of computation of overtime pay." In
addition to discussing compensation for weekends and holidays,
these sections discuss various scenarios requiring
differentiated compensation. Most apt to the asserted
15 A-0886-13T1 retaliation claim, however, is Article VIII, which governs
seniority and lay-offs. This clause defines seniority for
purposes of layoffs weighing not just objective factors, such as
length of service, but also by considering subjective factors to
determine who retains employment based upon seniority.
Specifically, Article VIII provides:
The Company agrees to base the seniority of employees on length of service. Length of Service is based on actual time spent with the Company. In all cases of promotion, demotion, lay-off, recalls and bumping, the following factors shall be considered,
1. Employee's classification.
2. Knowledge, ability, skill and efficiency, to perform the available work.
3. Qualifying tests, certification, and license.
When all factors are relatively equal, the length of continuous service shall govern.
Contrary to plaintiff's suggestion, Elk's assessment of his
seniority status, as compared to that of his colleagues who
continued working, can only be reviewed by an analysis of the
CBA's factors. Plaintiff's attempt to limit review exclusively
to whether he engaged in protected whistle-blower activities for
which he was laid off ignores that the project neared completion
causing Elk to trim labor based upon seniority, a defined term
of art under the CBA. Thus, this issue cannot be evaluated
16 A-0886-13T1 absent review, consideration, and interpretation of the CBA and
its terms.
Plaintiff, himself, confirmed this reality during his
deposition. When asked why he contacted his union
representative after his layoff, plaintiff explained "I had more
seniority than everybody on the job except for the operator, so
I should have been the last one to leave and that's a union
matter." This statement exposes plaintiff's reliance on his
rights as provided by the CBA and betrays his attempt to rebrand
the contract contention into a CEPA claim. We determine
plaintiff has injected a right created by his CBA, thereby
pleading what can only "be regarded as a federal claim."
Snyder, supra, 837 F. Supp. 2d at 445, n. 9.
We also find plaintiff's contention that his complaint does
not allege a breach of the CBA terms or even implicate the
agreement is belied by the facts. By maintaining he was wrongly
laid off and should have continued working because he had
seniority, plaintiff inherently invokes interpretation of the
CBA. Thus, preemption applies. See Snyder, supra, 837 F. Supp.
2d at 438 (holding section 301 does not apply solely to contract
violations but extends to tort action if their resolution
depends upon "the meaning of a phrase or term in a collective
bargaining agreement"). As SCOTUS noted in Livadas, federal
17 A-0886-13T1 preemption under section 301 will not be thwarted by "parties'
efforts to renege on their arbitration promises by 'relabeling'
as tort suits actions simply alleging breaches of duties assumed
in collective bargaining agreements." Livadas, supra, 512 U.S.
at 123, 114 S. Ct. at 2078, 129 L. Ed. 2d at 109.
Following our review, we cannot accede to plaintiff's
request to allow the CEPA claim to proceed. Judge McMaster
fully analyzed the facts and law applicable to this issue, and
properly determined plaintiff's complaint contained allegations
inextricably intertwined with his rights delineated in the CBA.
Therefore, the claims were properly held preempted by federal
law.
Defendant additionally asserts plaintiff's claims are
preempted by SCOTUS's holding in Garmon, supra, 359 U.S. at 244,
79 S. Ct. at 779, 3 L. Ed. 2d at 782, which considered sections
7 and 8 of the NLRA. Plaintiff disagrees, maintaining his
claims are premised on whether he was retaliated against for
complaining about wage deductions, and not for engaging in
"concerted activity" under the NLRA.
As we noted, section 7 states:
Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective
18 A-0886-13T1 bargaining or other mutual aid or protection.
[29 U.S.C.A. § 157.]
Section 8 prohibits employers from interfering with,
restraining, or coercing employees in the exercise of the rights
guaranteed in section 7, or from acting to "discharge or
otherwise discriminate against an employee because he has filed
charges or given testimony under this subsection." 28 U.S.C.
§ 158.
In Garmon, SCOTUS instructed "when it is clear or may
fairly be assumed that the activities which a State purports to
regulate are protected by section 7 of the National Labor
Relations Act, or constitute an unfair labor practice under
section 8, due regard for the federal enactment requires that
state jurisdiction must yield." Garmon, supra, 359 U.S. at 244,
79 S. Ct. at 779, 3 L. Ed. 2d at 782. The burden rests with the
party asserting preemption, who "'must [] put forth enough
evidence to enable the court to find that the [National Labor
Relations] Board reasonably could uphold a claim based on such
an interpretation.'" Voilas, supra 170 F.3d at 379 (quoting
Int'l Longshoremen's Ass'n v. Davis, 476 U.S. 380, 395, 106 S.
Ct. 1904, 1916, L. Ed. 2d 389, 405 (1986)).
[T]here is no suggestion in the legislative history of the [NLRA] that Congress intended to disturb the myriad state laws then in
19 A-0886-13T1 existence that set minimum labor standards, but were unrelated in any way to the processes of bargaining or self- organization. To the contrary, we believe that Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety . . . . States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.
[Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 756, 105 S. Ct. 2380, 2397-98, 85 L. Ed. 2d 728, 750-51 (1985), overruled in part by Ky. Ass'n of Health Plans v. Miller, 538 U.S. 329, 341, 123 S. Ct. 1471, 1479, 155 L. Ed. 2d 468, 481 (2003) (internal quotation marks omitted).]
Nevertheless, Garmon precludes "state courts from entertaining
tort actions for activities arguably subject to the protections
of [section] 7 or the prohibitions of [section] 8 of the
National Labor Relations Act." Blum v. Int. Assoc. of
Machinists, AFL-CIO, 42 N.J. 389, 398 (1964).
Centering our review of the facts underpinning plaintiff's
allegations, we do not agree the NLRA is inapplicable. An
analysis of plaintiff's retaliatory discharge claim shows it is
not limited to his report of Elk's wrongful payment practices.
The claim does not stand alone and is not unrelated to the CBA.
Rather, it is grounded on a violation of plaintiff's seniority
status, as defined in the CBA, a negotiated provision governing
20 A-0886-13T1 his employment, and thus, invoked provisions of the NLRA,
requiring administrative review by the NLRB.4
Our review concludes plaintiff's claims are preempted by
federal labor laws. Accordingly, plaintiff's complaint was
properly dismissed.
Affirmed.
4 We conclude the record is insufficient to address defendant's assertion plaintiff engaged in a concerted activity as provided in the NLRA.
21 A-0886-13T1