Cosgrove v. Veolia ES Indus. Servs.

• Decision Date: 30 September 2022
• Docket Number: Civ. 18-173 (KSH) (CLW)
• Parties: ANTHONY COSGROVE, ROCCO FURFERO, THOMAS CROWLE, HOWARD HUEY, and KENDALL JOHNSTON, Plaintiffs, v. VEOLIA ES INDUSTRIAL SERVICES, INC. N/K/A CLEAN HARBORS INDUSTRIAL SERVICES, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

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ANTHONY COSGROVE, ROCCO FURFERO, THOMAS CROWLE, HOWARD HUEY, and KENDALL JOHNSTON, Plaintiffs, v. VEOLIA ES INDUSTRIAL SERVICES, INC. N/K/A CLEAN HARBORS INDUSTRIAL SERVICES, INC., Defendant.

Civ. No. 18-173 (KSH) (CLW)

United States District Court, D. New Jersey

September 30, 2022

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

I. Introduction

This action involves two claims under New Jersey prevailing wage statutes. Count I is asserted under N.J.S.A. § 34:13B-2.1, a provision requiring the payment of prevailing wages to employees of construction contractors doing construction work on a public utility. It appears in a statutory scheme that, as discussed more fully below, broadly addresses labor matters in the public utility context. The question before the Court is whether a private cause of action exists under § 34:13B-2. It does not, and Count I will be dismissed with prejudice.

Count II asserts a claim under N.J.S.A. § 48:2-29.47, which requires the payment of prevailing wages to workers performing construction undertaken in connection with financial assistance from the Board of Public Utilities. Defendant seeks dismissal of this claim under Fed R. Civ. P. 12(b)(6). The Court denies that motion, and Count II will be permitted to proceed beyond the pleadings stage.

II. Background

The factual context of this action is set forth in the Court's prior ruling, familiarity with which is presumed. (See D.E. 136, 11/30/20 Op.) Briefly, plaintiffs Anthony Cosgrove, Rocco Furfero, Thomas Crowle, Howard Huey, and Kendall Johnston allege that their former employer, defendant Veolia ES Industrial Services, Inc., now known as Clean Harbors Industrial Services, Inc. (“VESIS”), violated New Jersey wage laws-specifically N.J.S.A. § 34:13B-2.1 and N.J.S.A. § 48:2-29.47-by failing to pay prevailing wages for work plaintiffs performed at various Public Service Electric and Gas Company (“PSEG”) sites as part of PSEG's Energy Strong Program. Plaintiffs filed their complaint in state court in 2017, and it was later removed to this Court and amended several times to add, drop, or modify the parties to the action.

Once the pleadings were closed, VESIS moved for judgment under Fed.R.Civ.P. 12(c). The Court granted that motion in part and terminated the remainder, concluding that as to Count I of the then-operative third amended complaint (“TAC”), which alleged violation of N.J.S.A. § 34:13B-2.1, it was unclear whether a private cause of action existed under the statute, which necessitated additional briefing. As to Count II, which asserted violation of N.J.S.A. § 48:2-29.47, the statute requires, in relevant part, that workers be employed in performing “construction undertaken in connection with Board of Public Utilities [BPU] financial assistance, or undertaken to fulfill any condition of receiving [BPU] financial assistance,” and the TAC failed to allege facts that would satisfy the statutory definition of “BPU financial assistance.” Accordingly, the Court dismissed Count II, but did so without prejudice to plaintiffs' efforts to seek to amend that count.

Thereafter, the parties filed their supplemental briefing directed to whether a private cause of action exists under N.J.S.A. § 34:13B-2.1. (D.E. 142, Pls.' Supp. Br.; D.E. 143, Def.'s Supp. Br.). Plaintiffs also formally moved to amend the complaint to reinstate Count II, asserting that the proposed fourth amended complaint (“FAC”) would add factual allegations demonstrating that the BPU's authorization of the Energy Strong Program included accelerated rate increases that, in substance, amounted to “financial assistance” within the meaning of N.J.S.A. § 48:2-29.47. (D.E. 146.) Over VESIS's opposition (D.E. 147), Magistrate Judge Waldor granted the motion to amend, holding that (1) good cause existed under Rule 16 to permit the motion to amend to be filed beyond the deadline set forth in the scheduling order, and (2) amendment was appropriate under Rule 15 because there was no undue delay and the proposed amendment was not futile. (D.E. 154.)

In response to plaintiffs' filing of the FAC (D.E. 155), VESIS moved to dismiss the restated Count II. (D.E. 158.) VESIS contends that (1) plaintiffs are not qualifying “workers” under the statute; (2) they did not perform qualifying construction work; and (3) their work was not undertaken with BPU financial assistance, and the Court should adhere to its prior determination in that respect. (See D.E. 158-1, Moving Br.; D.E. 170, Reply Br.) Plaintiffs, opposing, disagree with VESIS's interpretation of “workers”; contend that the facts show that they did perform construction work; and assert that the amended complaint allegations do support the conclusion that BPU financial assistance was afforded here, in the form of accelerated cost recovery and incentive ratemaking.

III. Count I

The first issue for decision is the one queued up in the parties' supplemental briefing: whether a private cause of action exists under N.J.S.A. § 34:13B-2.1. Plaintiffs contend that § 34:13B-2.1 expressly incorporates a different wage statute, the New Jersey Prevailing Wage Act (NJPWA), N.J.S.A. §§ 34:11-56.25 to -47, which contains a section authorizing a private cause of action. Even if there is no express right, they continue, there is an implied cause of action because the protections afforded by the statute would otherwise be illusory. Defendants disagree that there is any express right of action or that the NJPWA is imported wholesale into § 34:13B-2.1, and argue that the three-part test New Jersey uses to assess whether an implied right of action exists has not been satisfied here.

As explained in the Court's prior opinion, N.J.S.A. § 34:13B-2.1 is part of a statutory scheme the parties refer to as the Labor Disputes in Public Utilities Act (LDPUA), which addresses labor relations and labor disputes in the public utility context. See N.J.S.A. §§ 34:13B-1 to -29. The policy underlying the act is expressly set forth in its first provision:

It is hereby declared to be the policy of the State that heat, light, power, sanitation, transportation, communication, and water are life essentials of the people; that the possibility of labor strike in utilities operating under governmental franchise is a threat to the welfare and health of the people; that utilities operating under such franchise are clothed with public interest, and the State's regulation of the labor relations affecting such public utilities is necessary in the public interest.

It is further declared to be the policy of this State that after the taking of possession of any public utility by the State pursuant to the provisions of section thirteen hereof [N.J.S.A. § 34:13B-13], such public utility shall become for purposes of production and operation a State facility and the use and operation thereof by the State in the public interest shall be considered a governmental function of the State of New Jersey.

N.J.S.A. § 34:13B-1. The act addresses the right to collectively bargain (§ 34:13B-2); addresses the form, term, and negotiation of employee-management labor agreements in the utility context (§§ 34:13B-4 to -7); provides for, under specified circumstances involving labor disputes, state seizure of public utility facilities in the public interest, during which employees may not participate in strikes “as a means of enforcing demands of employees against the State or for any other purpose contrary to the provisions of [the] act”) (§§ 34:13B-13, -19);^[1] prohibits employees from being compelled to work without their consent (§ 34B:13-15); and makes it unlawful for public utility employees or management to engage in strikes or lockouts without sixty days' prior notice (§ 34:13B-18). It makes utility management and employees subject to penalties for unlawful lockouts or strikes and certain other conduct, “such penalty to be recovered in the name of the State in an action at law in any court of competent jurisdiction” (§ 34:13B-24); makes it a misdemeanor to willfully violate, or to aid, abet, or attempt violation of, the act (§ 34:13B-25); and permits the state, through certain officials, to sue for injunctive relief to prohibit violations of the act or for declaratory relief (§ 34:13B-26). Absent from the act is any provision addressing or providing for a right to sue.

Section 34B:13-2.1 is the provision under which plaintiffs assert their claim in Count I. It was added to the law in 2008 and provides, in full, as follows:

Any construction contractor contracting with a public utility to engage in construction work on a public utility shall employ on the site only employees who have successfully completed any OSHA-certified safety training required for work to be performed on that site.

Any employee employed by a construction contractor engaged in construction work on a public utility shall be paid the wage rate for their craft or trade as determined by the Commissioner of Labor and Workforce Development pursuant to the provisions of the “New Jersey Prevailing Wage Act,” P.L.1963, c. 150 (C.34:11-56.25 et seq.).

A construction contractor who is found by the Commissioner of Labor and Workforce Development to be in violation of the provisions of this section shall be subject to the provisions of sections 11 and 12 of P.L.1963, c. 150 (C.34:11-56.35 and 34:11-56.36) which apply to an employer for a violation of P.L.1963, c. 150 (C.34:11-56.25 et seq.).

Nothing in this section shall be construed to apply to any public utility affiliate not regulated under the provisions of Title 48 of the Revised Statutes.

The Commissioner of Labor and Workforce Development shall pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), adopt regulations to effectuate the

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