Reynolds v. Tcm Sweeping, Inc., Civil Action No. 04-3791(JEI).

• Decision Date: 12 October 2004
• Docket Number: Civil Action No. 04-3791(JEI).
• Citation: 340 F.Supp.2d 541
• Parties: Gary REYNOLDS, Plaintiff, v. TCM SWEEPING, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

340 F.Supp.2d 541

Gary REYNOLDS, Plaintiff, v. TCM SWEEPING, INC., Defendant.

Civil Action No. 04-3791(JEI).

United States District Court, D. New Jersey.

October 12, 2004.

Ross Begelman, Esq., Cherry Hill, NJ, for Plaintiff.

Daniel J. Brennan, Esq., Mount Holly, NJ, for Defendant.

OPINION

IRENAS, Senior District Judge.

Before this Court is Defendant's Motion to Dismiss pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6).¹ Defendant argues that Plaintiff's state law claim under the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq., is preempted by § 301 of the federal Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185. Plaintiff argues that the LMRA does not extend to his claims.²

For the reasons that follow, the Court holds that § 301 of the LMRA does not preempt Plaintiff's CEPA claim. In light of our decision this matter will be remanded to the New Jersey Superior Court Burlington County, Law Division, because this Court lacks subject matter jurisdiction over Plaintiff's CEPA claim.

I. Background

The Plaintiff, Gary Reynolds (hereinafter "Plaintiff"), was employed by the Defendant, TCM Sweeping (hereinafter "Defendant"), from June 29, 1999 through August 26, 2003 as a mechanic and operator. (Cmpl. at ¶ 3.) The Plaintiff, along with other employees of the Defendant, were members of, and collectively bargained through, International Union of Operating Engineers, Local 825 (hereinafter "Union"). (Cmpl. at ¶ 3.) The Defendant and the Union were parties to a collective bargaining contract effective from November 1, 2000 through October 31, 2003 (hereinafter "CBA"). Article 5 of the CBA set forth the following condition for wage rates:

When working on these construction projects and/or Davis Bacon Act prevailing projects, the company agrees to pay in accordance with the Independent I.U.O.E. Local 825 agreement.

(Cmpl. at ¶ 7.)

Prior to March 2003, the Plaintiff was earning $20.84 per hour on Davis Bacon Act³ jobs and $15.00 per hour for non-rate operator jobs. (P. Brief at 1.) In December 2002, the Plaintiff became aware that the correct wage for Davis Bacon Act jobs was $27.74 per hour. (Id.) The Plaintiff complained to his supervisors regarding the wage discrepancy and was subsequently informed that he would receive the proper rate, which began in March 2003. (Id.)

On or about May 23, 2003, twelve employees, including the Plaintiff, signed a grievance seeking back pay they alleged was owed to them under the CBA for the discrepancy in wage rates with respect to Davis Bacon Act jobs. (P. Brief at 2.) However, eleven of the twelve employees who initially signed the grievance withdrew their names, leaving only the signature of the Plaintiff. (Id.) The Plaintiff alleges that he witnessed the vice president of the Defendant company, Joseph Glassmire (hereinafter "Glassmire"), practicing a pattern of intimidation and harassment, which led the eleven other employees to withdraw their signatures. (Cmpl. at ¶ 15.)

Plaintiff alleges that his refusal to withdraw the grievance resulted in increasing pressure from Glassmire. (P. Brief at 2.) According to Plaintiff, Glassmire approached him in the company parking lot one evening, handed him a paper, and told him that he needed to sign it. The paper stated that the Plaintiff was removing his name from the grievance. (Id.) When the Plaintiff responded with a refusal to sign, Glassmire stated, "What do you mean you can't sign it. Everyone signed off on it and you are the only one." (Cmpl. at ¶ 16.) When the Plaintiff indicated that he was prepared to stand alone, Glassmire stated, "I guess I am going to have to fire you." (Id.)

On August 22, 2003, the Operations Manager for Defendant, Shaun Glassmire, and his sister reportedly each received two telephone calls complaining that trucks belonging to Defendant were speeding on Route 130. Plaintiff belonged to the crew⁴ of one of those trucks. (Arbitration Opinion and Award at 3, attached as Exh. B to D. Brief (hereinafter "Award").) The reports complained that the crew members were "barreling down" the road, "drafting" each other and playing "grab ass." (Id.)

On August 26, 2003, Todd Richardson ("Richardson") was driving his tractor trailer when he became involved in a confrontation with Defendant's crew members. (Award at 4.) Allegedly, a crash truck, driven by employee Jeremy Wolk ("Wolk") wedged in front of Richardson and permitted Plaintiff to pull in front. (Id.) Richardson claimed that when he indicated his displeasure with a hand gesture towards Plaintiff and Wolk, they boxed him in on the freeway while the Plaintiff blasted Richardson's truck with road debris. (Award at 5.) The windshield of Richardson's truck was damaged and he reported the incident to Glassmire, who instructed him to meet another truck operated by Defendant at the next exit and follow it to the Defendant's business location ("the Yard").

Glassmire confronted the employees, including Plaintiff, about the incident when they returned to the Yard. (Id.) Although Plaintiff denied damaging the truck, he subsequently approached Richardson at the yard and threatened him with violence. (Award at 5-6.)

The Plaintiff's employment, along with Wolk's, was terminated following the verbal assault on August 26, 2004.⁵ (Award at 7; Cmpl. at ¶ 22.)

Pursuant to the CBA, on January 9, 2004, the Plaintiff participated in a binding arbitration before Arbitrator Michael A. Berzansky (hereinafter "Arbitrator").⁶ The Plaintiff and the Union were represented by counsel and afforded a full opportunity to present evidence in support of their positions. (Award at 1.) The Arbitrator found that the Plaintiff had engaged in reckless behavior while driving company trucks, which could have resulted in a major accident. (Award at 18.) Furthermore, the Arbitrator found that the Plaintiff's testimony was "less than credible" and that the Defendant "... had just cause to discharge him." (Opinion at 18.)

On or about June 17, 2004, the Plaintiff filed a Complaint against the Defendant in the Superior Court of New Jersey, Burlington County, Law Division. Pursuant to 28 U.S.C. § 1441, 28 U.S.C. § 1446, and Federal Rule of Civil Procedure 81(c), on or about August 5, 2004, the Defendant removed the action to the United States District Court of New Jersey, Trenton. The action was later transferred to United States District Court of New Jersey, Camden. The Defendant now files a Motion to Dismiss the Complaint, under Fed.R.Civ.P. 12(b)(6), or in the alternative, a Motion for Summary Judgment, under Fed.R.Civ.P. 56.

II. Discussion

A. Relevant Law

1. State Law: The Conscientious Employee Protection Act ("CEPA")

The Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq., is remedial legislation that protects an employee from employer retaliation in cases where the employee `blows the whistle' on illegal or unethical activity. Hernandez v. Montville Twp. Bd. of Educ., 354 N.J.Super. 467, 808 A.2d 128 (2002). A successful plaintiff under CEPA must show four elements: (1) He reasonably believed that an activity, policy or practice of defendant, his employer, was in violation of a law, rule or regulation promulgated pursuant to law or was fraudulent or criminal; (2) He objected to or complained about the activity, policy or practice; (3) Retaliatory action was taken against him (i.e. adverse employment action occurred); and (4) There was a causal link between the plaintiff's action and the retaliatory or adverse action of the defendant employer. McCullough v. Atlantic City, 137 F.Supp.2d 557, 573 (D.N.J.2001).

CEPA includes a waiver provision, which provides in part that if an employee chooses to file a claim under CEPA, he may be precluded from obtaining a remedy under a collective bargaining agreement, other contract, other state law, state rule, state regulation or common law. N.J.S.A. 34:19-8.

The waiver provision of CEPA can prevent a former employee from pursuing both a CEPA claim and other causes of action for retaliatory discharge⁷ under law or under a CBA. See, e.g., Young v. Schering Corp., 141 N.J. 16, 28-29, 660 A.2d 1153, 1159-60 (1995). The waiver provision, however, does not apply until after CEPA claim is "instituted." Id. at 29, 660 A.2d at 1160.⁸

2. Federal Law: Section 301 of the Labor Management and Relations Act ("LMRA")

Section 301 of the LMRA provides federal subject matter jurisdiction in cases involving a violation of a contract provision between certain employers and labor organizations. 29 U.S.C. § 185(a). The Supreme Court held that § 301 "also `authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements.'" Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (citation omitted). Moreover, "in order to ensure uniform interpretation of collective-bargaining agreements," the Court has interpreted § 301 to mandate the preemption of state law when "a state-law claim depends upon the meaning of a collective-bargaining agreement." Id. at 404-06, 108 S.Ct. 1877; see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (finding that the interest in uniform interpretation required that the definitions of certain contract terms and phrases be subject to interpretation under federal law, and not state law).

The Court has noted, however, that "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law." Id. Indeed, "it would be inconsistent with congressional intent under that section to preempt state rules that proscribe conduct, or establish rights and obligations independent of a labor contract." Id. at 212, 105 S.Ct. 1904; see also Lingle, 486 U.S. at 412, 108 S.Ct. 1877. In determining whether § 301 preempts or not, the...