JOHNSON v. LANGER TRANSPORT CORPORATION

Filing 10

OPINION. Signed by Judge Jose L. Linares on 5/13/15. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHARLES A. JOHNSON, individually, and
on behalf of all others similarly situated

Civil Action No. 15-1256 (JLL) (JAD)

Plaintiffs,
OPINION
V.

LANGER TANSPORT CORPORATION,
Defendant.
LINARES, District Judge.
This matter comes before the Court by way of Defendant Langer Transport Company
(“Defendant”)’ motion to dismiss Plaintiff Charles A. Johnson (“Plaintiff’)’s Complaint (ECF
No. 1) pursuant to Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6). (ECF No. 6). The
Court has considered the parties’ submissions in support of and in opposition to the instant
motion and decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78. For the reasons set forth below, the Court GRANTS Defendant’s motion.
I. BACKGROUND
1

Plaintiff, a New York resident and truck driver, began working for Defendant on
February 12, 2012. (Comp. at ¶ 4-6). Defendant is a New Jersey Distribution Company that
facilitates the intrastate and interstate transportation of chemicals. (Id. at
¶J 9-10). Defendant
allegedly promised to compensate Plaintiff no less than $23.76 per hour for all hours worked
in a

The following is taken as true solely for the purposes

of this motion.

workweek. (Id. at ¶ 35). For each day that Plaintiff did not have a trip scheduled, he was require
d
to work for at least eight hours at Langer Transport Corp. headquarters, at a rate of $23.76 per
hour. (Id. at ¶ 36). Plaintiff was also promised certain premium pay when he performed trips
where the round trip was would be in excess of 190 miles. (Id. at 37). Defendant was also to
¶
compensate Plaintiff at a rate of $23.76 per hour for time spent preparing for trips, loading and
unloading cargo, and performing maintenance upon his return from trips. (Id. at 38).
¶
Accordingly, in a workweek where he did not perform any trips that were in excess of 190 miles,
Plaintiff was required to be paid overtime, for every hour he worked over 40 in a workweek,
at a
rate of $35.64. (Id. at ¶J 39).
Despite this, Plaintiff alleges that Defendant routinely and systematically failed, and
continue to fail to pay Plaintiffs their earned and owed regular and overtime wages. (Id. at 42).
¶1
For example, when Plaintiff affirmatively requested payment for five hours worked (as reflected
in both Langer Transport Corp.’s and his own records), he was only compensated for two hours
of work. (Id. at 1 44). Plaintiff contends that Defendant knowingly and intentionally failed to
accurately record all hours worked by Plaintiffs. (Id. at 47). Defendant never provided Plainti
ffs
with information regarding their right to receive overtime compensation under the New Jersey
Wage and Hour Law, New Jersey Administrative Code, and the Fair Labor Standards Act. (Id.
at
¶1 56-69).
As a result of Defendant repeatedly failing to pay Plaintiff his earned and due regular and
overtime wages, Plaintiff frequently confronted Defendant about its problematic pay practic
es in
an attempt to receive his earned and owed compensation. (Id. at 1 71). On October 6,
2014,
Plaintiff confronted Steve Wunderbaum [sic], a Langer Transport Corp. accountant,
and Evin
Katt [sic], a Langer Transport Corp. dispatcher, about Defendant’s failure to compe
nsate him for

approximately forty five hours of work. (Id. at l 73). Katt responded to Plaintiffs confrontation
by allegedly assaulting Plaintiff. (Id. at ¶1 74). Plaintiff alleges that as retaliation for the incident,
his employment with Defendant was terminated on October 6, 2014. (Id. at
¶J 7, 75). Plaintiff
asserts the following Counts against Defendant: (1) Violation of the New Jersey Wage and Hour
Law (“NJWHL”); (2) Unpaid Wages—Violation of the New Jersey Administrative Code; (3)
Breach Of Contract; (4) Unjust Enrichment; and (5) Retaliatory Termination.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)

“Federal Rule of Civil Procedure 12(b)(1) provides that a party may bring a motion to
dismiss for lack of subject matter jurisdiction.” Ballentine v. United States, 486 F.3d 806, 810
(3d Cir.2007). “A motion to dismiss for want of standing is also properly brought pursuant to
Rule l2(b)(1), because standing is a jurisdictional matter.” Id. “The party invoking federal
jurisdiction bears the burden of establishing the elements of standing, and each element must be
supported in the same way as any other matter in which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
Focus v. Allegheny Cnty. Court of Common Pleas, 75 F.3d 834, 838 (3d Cir.l996) (quoting
LLUan v. Defenders of Wildlife, 504 U.s. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))

“When standing is challenged on the basis of the pleadings, [courts must] accept as true all
material allegations in the complaint, and

...

construe the complaint in favor of the complaining

party.” Id. (quoting Pennell v. City ofSan Jose, 485 U.S. 1, 7, 108 5.Ct. 849, 99 L.Ed.2d 1
(1988)). However, when the challenging party presents a factual challenge, “the trial court is free
to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Petruska v. Gannon Univ., 462 F.3d 204, 302 n. 3 (3d Cir.2006).

in considering a factual attack on a 1 2(b)( 1) motion, “no presumptive truthfulness
attaches to plaintiffs allegations,” and “the plaintiff will have the burden of proof that
jurisdiction does in fact exist.” Id. at n. 3 (quoting Mortenson v. First Fed. Say. & Loan Ass’n,
549 F.2d 884, 891 (3d Cir.l977)). “In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.” Storino v.
Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.2003) (quoting Warth v. Seldin,
422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “It is axiomatic that, in addition to
those requirements imposed by statute, plaintiffs must also satisfy Article III of the
Constitution.” Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 455 (3d Cir.2003)
(citation omitted). As the Third Circuit has articulated, the requirements of Article III standing
are as follows:
(1) the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) there must be a
causal connection between the injury and the conduct complained of—the
injury has to be fairly traceable to the challenged action of the defendant
and not the result of the independent action of some third party not before
the court; and (3) it must be likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Taliaferro v. Darby Twp. Zoning Rd., 458 F.3d 181, 188 (3d Cir.2006).
B. Federal Rule of Civil Procedure 12(b)(6)
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[cjourts
are required to accept all well-pleaded allegations in the complaint as true and to draw all
reasonable inferences in favor of the non-moving party.” Phillzs v. County ofAllegheny, 515
F.3d 224, 231 (3d Cir.2008). But, “[fJactual allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). Courts are not required to credit bald assertions or legal conclusions draped

in the guise of factual allegations. See In re Burlington Coat Factory Sec. Litig., 114 F.3d at
1429 (3d Cir.1997). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of
the elements of a cause of action will not do.’ “Ashcroft v. Iqbal, 556 U.S. 662, 6782, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). Thus, a complaint will
survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’ “Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Determining whether the allegations
in a complaint are ‘plausible’ is a ‘context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.’ “Young v. Speziale, No. 07—3129, 2009 U.S. Dist.
LEXIS 105236, *7, 2009 WL 3806296 (D.N.J. Nov. 10, 2009) (quoting Iqbal, 556 U.S. at
679). The movant on a Rule 12(b)(6) motion “bears the burden of showing that no claim has
been presented.” Henderson v. Equable Ascent Fin., LLC, 2011, No. 11—3576, 2011 U.S. Dist.
LEXIS 127662, at *2, 2011 WL 5429631 (D.N.J. Nov. 4, 2011)(quoting Hedges v. United
States, 404 F.3d 744, 750 (3d Cir.2005)).
III. DISCUSSION

A. Motions Before the Court
1. Defendant’s Motion

Defendant contends that Plaintiff’s Complaint should be dismissed based upon the
following grounds: (1) The Court lacks subject matter jurisdiction over Plaintiff’s Complaint
pursuant to Rule 1 2(b)( 1) because the claims must be arbitrated under the LMRA; (2) The
Court

lacks subject matter jurisdiction over Plaintiff’s wrongful discharge/retaliation claim pursuant to
rule l2(b)(l) because the claim is preempted by the NLRA; (3) Even if the Court has
jurisdiction, which it does not, Plaintiff fails to state a viable claim under Rule 1 2(b)(6); (4)
Plaintiff’s retaliation and common law claims should be dismissed under the principles of
collateral estoppel; and (5) Plaintiff’s irrelevant and inflammatory allegations should be stricken
from the Complaint pursuant to Rule 12(f).
2. Plaintiff’s Opposition

Plaintiff responds to Defendant’s arguments by stating: (1) Plaintiff’s Counts I and II are
not preempted by the LMRA; (2) Plaintiff’s statutory retaliation Count is not preempted by the
LMRA; and (3) Plaintiff voluntarily dismisses Count III (Breach of Contract) and Count IV
(Unjust enrichment).
B. Counts I and!!

Section 301 of the Labor Management Relations Act (“LMRA”) provides for complete
preemption of disputes between employers, unions, and employees that are parties to a collective
bargaining agreement. 29 U.S.C.

§ 185(a) “{Tjhis provision is not merely jurisdictional, but is

also one that 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. Gen. Motors Corp., 170 F.3d 367, 372 (3d Cir. 1999) (citing Textile Workers Union of
Am. v. Lincoln Mills, 353 U.S. 448, 455-56 (1957)). “[A] suit in state court alleging a violation of
a provision of a labor contract must be brought under

§ 301 and be resolved by reference to

federal law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985); (citing Teamsters v.
Lucas Flour Co., 369 U.S. 95, 103-104 (1962)). The Supreme Court has held that “when
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,” the claim is preempted by Section 301
and must be decided pursuant to federal labor contract law. Id. at 220. Preemption is also
appropriate where the state-based cause of action is “inextricably intertwined” with the collective
bargaining agreement. Antol v. Esposto, 100 F.3d 1111, 1117 (3d Cir. 1996).
Defendant argues that Plaintiffs claims for unpaid wages under the NJWHL are
preempted under the LMRA because such claims, at their core, require an analysis and
interpretation of the CBA and, therefore, are preempted by the LMRA. Defendant states that
Plaintiffs allegations that he was not paid regular or overtime wages, that Defendant failed to
accurately record wages and hours, and that Defendant retaliated against him when he made
complaints regarding unpaid wages allegations will necessarily require the Court to examine and
interpret the CBA to determine Plaintiff’s pay rate, how hours are reported and tracked,
Defendant’s timekeeping policies, and its policies for reporting errors in pay. Defendant cites
Third Circuit case law for the proposition that Plaintiff “cannot circumvent the necessity of
complying with the LMRA procedure to get a determination of his or her right to the wages
claimed.” Vadino v. A. Valey Engineers, 903 F.2d 253, 266 (3d Cir. 1990).
Defendant also cites case law for the proposition that prior to bringing suit seeking to
vindicate personal rights under a collective bargaining agreement, the employee must first
attempt to exhaust any mandatory or exclusive grievance procedures provided in the agreement.
Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1537 (3d Cir. 1992) (“Under federal labor law,

aggrieved employees must exhaust their CBA’s grievance and arbitration procedures before
filing a complaint in federal court ‘unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage.”). Defendant argues that the extensive fact analysis and

interpretation of the CBA required to determine whether plaintiff is in fact owed any unpaid
wages, Plaintiff was required to exhaust his administrative remedies by bringing his claims to the
Union and pursuing it as a grievance under the CBA’s procedure.
Plaintiff responds to Defendant’s contention by stating that there is no dispute about the
CBA, what it says, or anyone’s rights therein. Instead, Plaintiff says he was not paid for hours he
worked because Defendant “manipulated” the time clock and refused to pay him. Plaintiff argues
that this does not require an analysis of the CBA. Plaintiff cites Bell v. SEPTA , for the
proposition that one makes “a factual determination” of the amount of time worked, and the
“legal determination” regarding whether this time is compensable under the applicable wage law,
and “neither of these determinations depends on the resolution of a disputed reading of the
CBA.” Plaintiff states that he has no problem with any provision of the CBA, or how he is to be
paid under it. Rather, Plaintiff contends, his grievance is with manipulating the time records and
then as a result, being underpaid.
The Court agrees with Defendant that Plaintiff’s claims for unpaid wages under the
NJWHL are preempted under the LMRA because such claims, at their core, require an analysis
and interpretation of the CBA and, therefore, are preempted by the CBA. Both Plaintiff and
Defendant are parties to a collective bargaining agreement (“CBA”), which sets forth the
comprehensive terms and conditions of Plaintiffs employment with Defendant, including his
salary and grievance and arbitration procedures. (ECF No. 6-2; Ex. B; CBA, Arts. VIII, XVII
2
and XVIII). Plaintiff’s allegations that he was not paid regular or overtime wages and that
Defendant failed to accurately record wages and hours necessarily require the Court to examine

2

In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “the court may
consider “evidence outside the pleadings.” Gould Elecs. Inc. v. Us., 220 F. 3d 169, 176 (3d Cir. 2000).

and interpret the CBA to determine Plaintiffs pay rate, how hours are reported and tracked,
Defendant’s timekeeping policies and its policies for reporting errors in pay.
A state-law claim is preempted by

§ 301 if the claim is (1) “founded directly on rights

created by collective-bargaining agreements” or (2) “substantially dependent on analysis of a
collective bargaining agreement.” Caterpillar v. Williams, 482 U.S. 386, 394 (1987); see also
Lueck, 471 U.S. at 214, 105 S.Ct. 1904 (The question is “whether the [state-law claim] is
sufficiently independent of federal contract interpretation to avoid pre-emption.”). Plaintiff
alleges that various provisions of the CBA require Defendant to pay Plaintiff certain wages and
that Defendant failed to pay him for certain regular and overtime hours worked. (See Compl.

¶J

42-46, 117-22.) These core allegations of Plaintiffs Counts I and II are founded directly on
rights created by the CBA, specifically Plaintiffs right to be paid in accordance with the CBA’s
provisions. While the Court is cognizant that “not every dispute concerning employment, or
tangentially involving a provision of a collective bargaining agreement, is pre-empted
[because] it would be inconsistent with congressional intent

...

to preempt state rules that

establish rights and obligations independent of a labor contract[,j” these allegations made by
Plaintiff fall directly in the first category articulated by the Supreme Court in Caterpillar. Lueck,
471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Plaintiffs reliance on Bell is misgui
ded,
as Defendant correctly notes, because the Court in that case held that the plaintiffs’ FLSA
claims
were not arbitrable because they did not allege, nor did they claim, that they were entitled
to any
payments under the CBA. Here, Plaintiff has alleged that his claims rest entirely on provisi
ons he
is afforded under the CBA. (See Compl. ¶J35-39; 125-129). Therefore, because Plainti
ffs
claims under the New Jersey Administrative Code are founded directly on rights created
by the
CBA, Counts I and II are dismissed due to the Court’s lack of subject matter jurisdiction.

C. Count V
Section 7 of the NLRA protects the right of employees to “assist labor organizations” and
“to engage in other concerted activities.” 29 U.S.C.

§ 157. Section 8 of the NLRA makes it an

unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed” in section 7, and “to discharge or otherwise discriminate
against an employee because he has filed charges or given testimony under this subsection.” Id.

§ 158(a)(l), (4). If an “activity is arguably subject to § 7 or § 8 of the [NLRA], the States as
well as the federal courts must defer to the exclusive competence of the National Labor Relations
Board if the danger of state interference with national policy is to be averted.” San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Stated alternatively, “state regulations and
causes of action are presumptively preempted if they concern conduct that is actually or arguab
ly
either prohibited or protected by the [NLRA].” Belknap v.. Hale, 463 U.S. 491, 498 (1983). The
party claiming preemption bears the burden of proof. Count V will only be preempted if it
“implicates protected concerted activity under section 7 of the NLRA or conduct that would be
prohibited as an unfair labor practice under section 8 of the NLRA.” Voilas v. General Motors
Corp., 170 F.3d 367, 378 (3d Cir.1999).
Defendant argues that Plaintiffs retaliation claim is also preempted because it is deeply
rooted in the alleged loss of rights afforded to him by the CBA. As a result, Defendant contends,
the wrongful discharge claim cannot be adjudicated without interpreting the CBA and compa
ring
the “rights, benefits and entitlements there guaranteed” with Plaintiffs position after his alleged
whistle-blowing activity. Defendant asserts that there is no way to detennine whethe Plainti
r
ff
was indeed the victim of retaliation without first interpreting the CBA to see if Defend
ant acted
properly or in fact deprived plaintiff of the rights he claims to have lost. Moreover, Defend
ant

states that Plaintiff’s retaliatory claim concerns purported concerted activity and, therefore, is
preempted by

§ § 7 and 8 of the NLRA. Thus, Plaintiff argues, the National Labor Relations

Board (“NLRB”), and not this Court, has exclusive subject matter jurisdiction over Plaintiff’s
wrongful discharge/retaliation claim.
Plaintiff responds by stating that Plaintiff’s retaliation claim is not preempted for the
same reasoning his wage claims are not, i.e., the interpretation of the CBA is not needed. In this
case, plaintiff argues that he is suing Defendant under a state law which prohibits retaliatory
discharge of an employee because the employee “made any complaint to his former employer
.that he has not been paid wages.” Plaintiff explains that he “confronted” Defendant about the
“failure to compensate him for approximately forty-five hours.” Then, as a “direct and proximate
result of Plaintiffs confrontation, Defendant discriminated against Plaintiff by assaulting and
then terminating his employment with Defendant. No part of this factual scenario requires an
interpretation of any collective bargaining agreement.
This Court lacks subject matter jurisdiction over Plaintiffs retaliation claim pursuant to
Federal Rules of Civil Procedure 12(b)(l) because such a claim, which concerns purported
concerned activity, is preempted by the National Labor Relations Act. 29 U.S.C.

§ 151, et seq.

Plaintiff alleges that Defendant wrongfully discharged him because he complained to Defendant
about its conduct in withholding substantial wages from him and others similarly situated.
(Compi.

¶ 139-40.) Such a claim “implicates protected concerted activity under section 7 of the

NLRA or conduct that would be prohibited as an unfair labor practice under section 8 of the
NLRA,” The NLRA strictly prohibits retaliation against employees for engaging in
whistleblower claims brought by union employees who allege that they suffered retaliation
because of their union activity. Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d 428, 453 (D.N.J.

201 1). Plaintiff’s claim does not stand alone and is not unrelated to the CBA. Rather, it is
grounded on a violation of Plaintiffs rights, as defined in the CBA, a negotiated provision
governing his employment, and, thus, invokes provisions of the NLRA, requiring administrative
review by the NLRB. Therefore, because this Court lacks subject matter jurisdiction over
Plaintiffs retaliation claim, because such a claim is preempted by the National Labor Relations
Act. 29 U.S.C.

§

151, count v is dismissed.
IV. CONCLUSION

For the reasons set forth above, the Court GRANTS Defendant’s motion to dismiss
Plaintiffs Complaint under Rule 12(b)(1). Plaintiff’s Complaint is dismissed with prejudice.
An appropriate Order accompanies this Opinion.

DATED:

/3

of May, 2015
strict Judge