FISCHER v. G4S SECURE SOLUTIONS USA, INC.
Filing
13
OPINION. Signed by Judge Jerome B. Simandle on 08/31/2011. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRYAN E. FISCHER,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 10-6792 (JBS/AMD)
v.
OPINION
G4S SECURE SOLUTIONS USA, INC.
& NUCLEAR POWER PLANT SECURITY
OFFICERS OF AMERICA,
Defendants.
APPEARANCES:
James M. Carter, Esq.
LAW OFFICES OF HOFFMAN DIMUZIO
4270 Route 42
Turnersville, NJ 08012
Counsel for Plaintiff
John K. Bennett, Esq.
JACKSON LEWIS LLP
220 Headquarters Plaza
East Tower, 7th Floor
Morristown, NJ 07960
Counsel for Defendant G4S Secure Solutions USA, Inc.
SIMANDLE, District Judge:
I.
INTRODUCTION
This employment-related matter is before the Court on a
motion to dismiss filed by Defendant G4S Secure Solutions USA,
Inc.
[Docket Item 4.]
The principal issues are whether
Plaintiff's two remaining claims for breach of contract and
retaliation are preempted by the Labor Management Relations Act,
29 U.S.C. § 185(a), and whether the Complaint contains sufficient
allegations to support the latter claim.
As explained below, the
breach of contract claim is preempted, and the retaliation claim
is either preempted or fails to state a claim, and either way
must be dismissed.
II.
BACKGROUND
Plaintiff, Bryan E. Fischer, brought this suit against his
former employer G4S Secure Solutions USA, Inc. and his union, the
Nuclear Power Plant Security Officers of America.
Mr. Fischer
worked as a security officer at Salem-Hope Creek nuclear power
plant, a PSE&G facility in Salem County, New Jersey.
He alleges
that in February 2010 he encouraged a co-worker, on whose breath
he smelled alcohol, to report his condition to a supervisor.
Fischer claims that after experiencing increased hostility
from his union as a result of this conduct, the Union President
told him not to address his concerns to the PSE&G official in
charge of employee matters, but that Fischer did so anyway,
leading to further hostility from the Union.
Compl. ¶¶ 16-17.
It is unclear precisely what Fischer alleges he said to the PSE&G
employee; he alleges that he "complained of unfair treatment of
armed nuclear security officers, including himself."
Compl. ¶
38.
Eventually, PSE&G officials reassigned Fischer to a shift at
an administrative office building because of concerns about
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Fischer's safety, Fischer claims.
Compl. ¶ 19.
On learning of
this transfer, the Union President objected and Plaintiff's
employer, G4S, "essentially suspended [Fischer] with pay pending
an investigation," Compl. ¶ 20, without the possibility of
overtime or other benefits.
Compl. ¶ 31.
At the conclusion of the investigation, Plaintiff was
invited to return to work but warned that his co-workers were
even more hostile toward him than when he left.
Compl. ¶ 22.
Given the option of transferring to a facility in New Hampshire
involving a pay cut, loss of seniority, and a night shift,
Plaintiff refused to return to Salem-Hope Creek and refused the
transfer, and was ultimately terminated.
Compl. ¶ 25.
The Complaint initially brought seven claims against G4S and
the Union.
Count I is a claim against G4S for breach of
contract, based on G4S's failure to abide by the promise in their
employee manual that concerns raised about colleagues would be
dealt with fairly and confidentially.
Count II cites no
particular legal cause of action and contends that Plaintiff was
unlawfully retaliated against for complaining to the PSE&G
employee.
Count III is an unspecified claim based on G4S's bad
faith and lack of fair dealing.
against the Union.
Count IV is a similar claim
Count V is quite unclear, but appears to be
some kind of derivative liability claim against the Union.
Count
VI is a claim against G4S and the Union involving an allegation
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that Defendants stopped deducting union dues from Plaintiff's
check in an effort to interfere with his union membership.
Finally, Count VII claims that GS4 is liable for the Union's
unlawful conduct.
Plaintiff filed suit in the Superior Court of New Jersey,
Law Division, Gloucester County, on November 16, 2010.
G4S
removed the matter to this court based on alleged complete
preemption of the state law claims.
See Franchise Tax Bd. of
State of Cal. v. Construction Laborers Vacation Trust for
Southern California, 463 U.S. 1 (1983) (explaining complete
preemption doctrine).
Plaintiff has conceded that he has no legitimate causes of
action against the Union, and so the Court terminated the Union
as a party and dismissed Counts IV, V, and VI as against the
Union.
[Docket Item 9.]
In the present motion, Defendant has
moved to dismiss Counts I, II, III, VI, and VII.
Plaintiff
concedes that III, VI, and VII should be dismissed.
Court addresses the remaining contested claims:
And so the
Counts I and II
against GS4 only.
Defendant argues that Counts I and II are pre-empted by
Section 301 of the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185(a), since the resolution of the claims requires
interpretation of the collective bargaining agreement between G4S
USA and the Union.
Defendant contends that the Court will have
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to interpret the following provision of the agreement:
This Agreement shall not be construed to
infringe upon or impair any of the normal
management rights of the Employer, which are
not inconsistent with the provisions of this
Agreement. Included among management rights
is the authority to administer and/or manage
the Employer's business, including but not
limited to . . . the right to hire, promote,
demote, transfer, discipline, suspend or
discharge employees for just cause.
Ex. to Compl. ("Agreement") Art. 4.1 at 4-5.
Defendant also
argues that, as to Count II, Plaintiff fails to state a claim for
retaliation.
III.
DISCUSSION
A.
Standard of Review
Rule 8(a)(2) provides that "[a] pleading that states a claim
for relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief."
Further,
a "complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, --U.S.--, 129 S.Ct. 1937, 1949 (2009); Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
The Third Circuit requires that a district court presented
with a motion to dismiss conduct a two-part analysis, as
explained in Iqbal: first, the factual and legal elements of a
claim should be separated.
The district court may accept all the
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complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
Iqbal, 129 S.Ct. at 1949-50.
Second, a
district court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff has a
"plausible claim for relief."
Id.
When considering a motion to dismiss, a district court
generally relies only upon "the complaint, attached exhibits, and
matters of public record."
(3d Cir. 2007).
Sands v. McCormick, 502 F.3d 263, 268
The Court may also consider documents which are
not physically attached to the pleadings but whose contents are
alleged in the complaint and whose authenticity is not contested.
Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 560
(3d Cir. 2002).1
B.
Preemption
In § 301 of the Labor Management Relations Act, Congress
1
Defendant asks the Court to strike Plaintiff's opposition
as untimely. Opposition to Defendant's motion was due February
7, 2011, but not filed until February 24, 2011. However, on
February 22, 2011, Plaintiff's counsel wrote to the Court
requesting an extension until February 23, 2011. The Court's
procedure when a first request for extension is sought under
ordinary circumstances is, if the motion is granted, to inform
the moving party's counsel by telephone and instruct him or her
to file a letter on the docket confirming the extension. In this
case, the Court informed Plaintiff's counsel that it would grant
an extension to February 25, 2011. Unfortunately, Plaintiff's
counsel failed to file a letter confirming the extension as
instructed, which is why Defendant was left unaware that the
extension has been granted. But, since an extension was granted,
the Court will consider the opposition as timely.
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vested jurisdiction in the federal courts over suits for
violation of contracts between an employer and a labor
organization representing employees in certain industries.
U.S.C § 185(a).
29
By its terms the statute only provides that such
suits "may be brought" in the district courts.
Id.
But in
Textile Workers v. Lincoln Mills, the Supreme Court ruled that §
301 requires federal common law to govern disputes regarding
collective bargaining agreements.
353 U.S. 448, 456 (1957).
From there, the Court reasoned in Teamsters v. Lucas Flour Co.
that this federal common law preempts inconsistent state law that
might govern such disputes.
369 U.S. 95, 103 (1962).
Thus,
contract suits alleging violation of collective bargaining
agreements must be brought under § 301 and be resolved under
federal law.
Id.
In 1985, the Supreme Court further extended the scope of
this preemption, finding that "questions relating to what the
parties to a labor agreement agreed, and what legal consequences
were intended to flow from breaches of that agreement" also must
be resolved under § 301 and federal law, "whether such questions
arise in the context of a suit for breach of contract or in a
suit alleging liability in tort."
471 U.S. 202, 211 (1985).
Allis-Chalmers Corp. v. Lueck,
This preemption also extends to suits
by employees against employers.
Angst v. Mack Trucks, Inc., 969
F.2d 1530, 1536 n.5 (3d Cir. 1992).
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While reading § 301 quite expansively, the Supreme Court has
been careful to make clear that "not every dispute concerning
employment, or tangentially involving a provision of a
collective-bargaining agreement, is pre-empted."
at 211.
Lueck, 471 U.S.
Indeed, "it would be inconsistent with congressional
intent under [§ 301] to preempt state rules that proscribe
conduct, or establish rights and obligations, independent of a
labor contract."
Id.
Instead, § 301 preemption only applies to
"state-law rights and obligations that do not exist independently
of private agreements, and that as a result can be waived or
altered by agreement of private parties."
Id. at 213; Livadas v.
Bradshaw, 512 U.S. 107, 123 (1994) ("§ 301 cannot be read broadly
to pre-empt nonnegotiable rights conferred on individual
employees as a matter of state law.").
1.
Breach of Contract
Plaintiff claims that an employee manual distributed to
employees of G4S promised that concerns raised by employees would
be treated fairly and confidentially, and that G4S's treatment of
Plaintiff violated this promise.
Under New Jersey law, an
employee manual can create an independent contractual obligation
apart from the employment contract.
Woolley v. Hoffman LaRoche,
Inc., 99 N.J. 284, 297, 307 (1985).
The question on preemption
is whether this independent contract claim is dependent upon and
8
requires interpretation of the collective bargaining agreement.
In Henderson v. Merck & Co., Inc., 998 F. Supp. 532 (E.D.
Pa. 1998), the court addressed a similar preemption issue.
In
that case, the plaintiff claimed that his employer breached a
promise in an employment manual.
Id. at 535.
Although the Court
found that no independent contract was formed for various factual
reasons, id. at 538, the Court found in the alternative that even
if the employment handbook did form an independent contract,
assessing a breach of contract claim would have required
interpretation of the collective bargaining agreement because the
agreement controlled the rights and obligations of the employer
with respect to discharge.
Id. at 539.
Specifically, the Court
found that it would have to construe a provision stating that "no
regular employee shall be discharged except for just cause," in
order to determine whether the alleged independent contract
conflicted with the collective bargaining agreement.
Id.
Henderson's dictum is correct and applicable to this case.
Because the contractual rights afforded by the employee manual do
not arise independently from state law, but instead are subject
to modification by Plaintiff's larger employment contract, the
employee manual must be viewed alongside the rights and duties
created (or waived) by the collective bargaining agreement.
The
Court would have to determine, among other things, whether the
employee manual modified the provision of the collective
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bargaining agreement stating that the employer retained "the
right to hire, promote, demote, transfer, discipline, suspend or
discharge employees for just cause," and if not, whether "just
cause" encompasses the justification for the adverse employment
actions taken in this case.
Therefore, the breach of contract
claim is preempted.
When a court determines that a state law claim is preempted
by § 301, it can either treat the claim as a § 301 claim or
dismiss such claim as preempted.
220.
See Allis-Chalmers, 471 U.S. at
In this case, Plaintiff has not alleged that he completed
the appropriate administrative grievance procedures prior to
filing this lawsuit, and so the Court will dismiss the claim
without prejudice to bringing the claim pursuant to LMRA, to the
extent Plaintiff has such a colorable claim under the applicable
law.
See, e.g., Allis-Chalmers, 471 U.S. at 220-21.
2.
Retaliation
The legal basis for Count II is unclear from the pleadings,
but neither possible basis states a claim.
Either the claim must
be dismissed for failure to make the allegations necessary to
state a claim under New Jersey's Conscientious Employee
Protection Act (CEPA), N.J. Stat. Ann. § 34:19-1, or the claim is
preempted because it attempts to state a common law retaliation
claim governed by the collective bargaining agreement.
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Either
way, it must be dismissed, as explained below.
Although the Complaint does not identify CEPA as the basis
for Count II, Plaintiff explains in his opposition to this motion
that CEPA was his intended source of legal authority for his
claim.
Pl.'s Br. 6.
CEPA protects an employee from retaliation
by his employer when the employee complains about illegal or
improper conduct, including conduct that is contrary to the
"clear mandate of public policy," a phrase used in the Complaint.
See Reynolds v. TCM Sweeping, Inc., 340 F. Supp. 2d 541, 545
(D.N.J. 2004).
To the extent Plaintiff intends to bring a CEPA claim, the
allegations in the present pleading do not support it.
The
Complaint alleges Plaintiff spoke out "against G4S's activities,
policies, and practices," by "contacting PSEG's Employee Concerns
Manager," Compl. ¶¶ 34-35, and that G4S took retaliatory action
against him "after he contacted PSEG's Employee Concerns
Manager."
However, critically, the alleged interaction with the
Employee Concerns Manager was when Plaintiff "complained of
unfair treatment of armed nuclear security officers, including
himself."
Compl. ¶¶ 37-38.
Without a more specific statement of
the "unfair treatment," and how such treatment offends public
policy, it is not clear that Plaintiff is alleging, "retaliation
for an employee reporting an unsafe condition, in this case, a
possibly intoxicated co-worker," as the opposition brief attempts
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to re-frame the claim.
[Id. at 6.]
Therefore, Plaintiff's
present Complaint has not identified a "clear mandate of public
policy," and the use of conclusory labels will not suffice.
Iqbal, 129 S. Ct. at 1949-50.
Plaintiff's opposition brief also repeats the
characterization of Count II as "arising from violations of New
Jersey common law."
[Docket Item 8 at 2.]
To the extent
Plaintiff is alleging that he complained of general matters of
workplace conduct outside the scope of CEPA and therefore
governed by the collective bargaining agreement, such a claim
would be preempted under § 301 of the LMRA, as explained above.
Although the present Count II will be dismissed, the
dismissal must be without prejudice to amend because it is
plausible that Plaintiff, if given an opportunity, could state a
CEPA claim.
It is Plaintiff's obligation, if he seeks to pursue
a CEPA claim, to draft the proposed amended complaint and seek
leave to amend under Rule 15(a), Fed. R. Civ. P.
However, to
demonstrate that such an amendment is not futile based on what is
currently known to the Court, the Court will briefly review
CEPA's requirements.
CEPA claims are not preempted by § 301, because they exist
independently of private agreements, and cannot be waived or
altered by agreement of private parties.
Carluccio v. Parsons
Inspection & Maintenance Corp., Civil Action No. 06-4354 (JLL),
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2007 WL 1231758, at *4-5 (D.N.J. April 24, 2007); Reynolds v. TCM
Sweeping, Inc., 340 F. Supp. 2d 541 (D.N.J. 2004); Patterson v.
Exxon Mobil Corp., 262 F. Supp. 2d 453 (D.N.J. 2003); see also
Lingle, 486 U.S. at 470 (holding that state retaliatory discharge
statute was not preempted by LMRA § 301 because adjudication of
the claim focused on the employee's conduct and the employer's
conduct and motivations, not on an interpretation of the terms of
a collective bargaining agreement).2
And while the CEPA claim is not sufficiently clearly pleaded
in the current complaint, such a claim is not inconsistent with
the current pleadings.
CEPA requires a plaintiff to prove four
elements for a successful claim: (1) that the plaintiff
reasonably believed that the activity to which he or she objected
violated a law, regulation, or a clear mandate of public policy
2
If the pleadings were amended to state such a claim, the
Court would likely have original jurisdiction over it, so remand
is not called for. With the termination of the other defendant,
the case now meets the requirements of 28 U.S.C. § 1332.
Normally, diversity jurisdiction "is to be tested by the status
of the parties at the commencement of the suit." Field v.
Volkswagenwerk AG, 626 F.2d 293, 305 (3d Cir. 1980). When this
case was removed, the only basis for removal was federal question
jurisdiction, since the Union is considered a citizen of every
state in which its members are residents. However, "the
time-of-filing rule admits exceptions in cases where the parties
change, in contrast to cases in which the circumstances attendant
to those parties change." Kaufman v. Allstate New Jersey Ins.
Co., 561 F.3d 144, 152 (3d Cir. 2009) (citing Grupo Dataflux v.
Atlas Global Group, L.P., 541 U.S. 567, 577 (2004)).
Now that
the Union has been dismissed, there appears to be complete
diversity because Plaintiff is a resident of New Jersey and the
remaining Defendant is a Delaware corporation with a principal
place of business in Florida.
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concerning the public health, safety or welfare or protection of
the environment; (2) that the plaintiff performed one of the
whistle-blowing activities defined by the statute; (3) that an
adverse employment action has been taken against him or her; and
(4) that the whistle-blowing activity caused such adverse
employment action.
See N.J. Stat. Ann. § 34:19-3; Ivan v. County
of Middlesex, 595 F. Supp. 2d 425, 468 (D.N.J. 2009).
Plaintiff makes some reference to alcohol use and "safety
issues" in the Complaint, though he does not make clear precisely
what he objected to and to whom.
Generally, federal regulations
require that nuclear power plants prohibit the consumption of
alcohol "[w]ithin an abstinence period of 5 hours preceding the
individual's arrival at the licensee's or other entity's
facility."
10 C.F.R. § 26.27.
security officers.
This regulation applies to
10 CFR § 26.4.
There is a strong public
policy of keeping nuclear power plants free of intoxicated
workers.
International Broth. of Elec. Workers, Local 97 v.
Niagara Mohawk Power, 143 F.3d 704, 718 (2d Cir. 1998) ("There
can be no doubt . . . that there exists a strong public policy in
favor of promoting a safe, drug-free working environment in the
nuclear power industry.").
Moreover, CEPA's broad prohibition on retaliation applies to
retaliation against an employee who "[o]bjects to . . . any
activity," so long as the employee reasonably believes that the
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activity in question is in violation of a law, or a rule or
regulation promulgated pursuant to law, or is incompatible with a
clear mandate of public policy concerning the public health,
safety or welfare or protection of the environment.
Ann. 34:19-3.
N.J. Stat.
It even applies to objections about the conduct of
co-employees, Higgins v. Pascack Valley Hosp., 730 A.2d 327, 336
(N.J. 1999), and requires only that the objection be the cause of
the adverse employment action.
Id.; see Young v. Schering Corp.,
645 A.2d 1238, 1245 (N.J. Super. Ct. App. Div. 1994).
Whether Plaintiff made such objections, and whether he can
trace such objections to an adverse employment action, the Court
will not prejudge.
Whether any given employment action
constitutes retaliation would also depend on the specific actions
taken by the employer and the factual context.
See Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 72–73 (2006);
Kolb v. Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999)
(noting that standards for Title VII retaliation apply to CEPA
claims); see also Prise v. Alderwoods Group, Inc., 657 F. Supp.
2d 564, 589-90 (W.D. Pa. 2009) (discussing paid suspension as
adverse employment action).
In sum, Defendant has not persuaded the Court that a CEPA
claim would be futile, and it appears from parts of Plaintiff's
allegations that he may have such a claim if he is permitted to
amend the pleadings to make them more specific and clearer.
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Therefore, dismissal of this Count will be without prejudice to
Plaintiff moving to amend the Complaint to plead a CEPA claim.
IV.
CONCLUSION
The Labor Management Relations Act preempts claims based on
contractual rights and duties related to an employment situation
governed by a collective bargaining agreement, but it does not
preempt claims based on independent state law which cannot be
contractually waived.
Consequently, Count I (breach of contract)
is preempted, and will be dismissed without prejudice to
Plaintiff bringing the claim pursuant to the LMRA, if he has a
colorable claim under the applicable law.
Count II must be
dismissed as pleaded, because it either seeks to bring a
preempted common law retaliation claim, or it seeks to bring a
CEPA claim for which it does not allege a sufficient factual
basis.
The claim will be dismissed without prejudice to
Plaintiff seeking leave to amend the pleadings to state a claim
under CEPA.
Finally, Count III, VI, and VII will be dismissed as
stipulated.
Plaintiff will have 21 days to file a motion to
amend the Complaint to bring the claims contained in Count I or
II in accordance with today's Opinion.
The accompanying Order
will be entered.
August 31, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
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