ODDO et al v. BIMBO BAKERIES U.S.A. INC. et al

Filing 18

OPINION. Signed by Judge Kevin McNulty on 05/17/2017. (ek)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHRISTOPHER ODDO, PHILLIP
BRUCATO and MICHAEL LENNON, on
behalf of themselves and those similarly
situated,

Civ. No. 2: 16-cv--04267-KM-JBC

OPINION

Plaintiffs,
v.
BIMBO BAKERIES USA, INC.,
Defendant.

MCNULTY, District Judge
The plaintiffs, Christopher Oddo, Phillip Brucato, and Michael Lennon,
filed an individual, collective, and class action civil complaint, seeking, on
behalf of themselves and other similarly situated, lost wages, damages, and
other relief for the alleged failure of defendant Bimbo Bakeries USA, Inc.
(hereinafter “BBUSA”) to pay overtime compensation, in violation of the Fair
Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law
(“NJWHL”). BBUSA brings a motion to dismiss on the grounds that: (1) the
plaintiffs’ claims are completely preempted by Section 301 of the Labor
Management Relations Act (“LMRA”); and (2) the plaintiffs have not adequately
pleaded a LMRA Section 301 claim. For the reasons discussed below, I will
deny BBUSA’s motion to dismiss.
I.

BACKGROUND
The plaintiffs are Route Sales Representatives (“RSRs”) for BBUSA. As

such, their “primary duties are driving delivery trucks along established routes
and delivering and stocking [BBUSA’s] products at national chain, local chain,

1

and independent retailers.” (Compi.

¶

33)1

The plaintiffs (hereinafter, the

“RSRs”) allege that BBUSA pays them each “a base salary of $110.00 per week
plus a 12% commission on proceeds generated from sales to retailers along
[theirj delivery route[s].” (Id. ¶35—37) They allege that, “[d]uring at least one
workweek within the last three (3) years, [they and the putative class membersi
worked over 40 hours.
(Id. ¶ 48) The RSRs claim the NJWHL and FLSA
.

.

.“

require BBUSA to pay them and putative class members additional
compensation for hours worked beyond 40 hours per week—i.e., “overtime”
pay, but that BBUSA does not. (Id.

¶J

38, 50) They also allege that BBUSA has

failed to implement an hours tracking system. (Id.

¶

59)

The RSRs allege they are “employees” within the meaning of the FLSA
and NJWHL and that they have suffered damages as a result of the BBUSA’s
unlawful failure to pay overtime wages. (Id.

¶J

67, 73) They also aver, with

respect to their FLSA claim, that BBUSA’s failure is willful and not based in a
reasonable interpretation of the law. (Id. ¶f 66) The RSRs seek: (i) injunctive
relief to prohibit BBUSA from continuing its illegal policy and practice; (ii)
compensation and reimbursement “for any and all pay and benefits they would
have received” but for BBUSA’s allegedly unlawful actions; (iii) liquidated
damages in an amount equal to actual damages under the FLSA; (iv) costs and
expenses; and (v) any other relief this Court deems just and proper. (Id. p. 11)
Certain record items repeatedly cited are abbreviated as follows:
Compl. = Complaint, ECF No. 1
Br. = Memorandum of Law in Support of Defendant’s Motion to Dismiss, ECF
No. 7-1

Opp.
11

=

Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss, ECF No.

Reply = Reply Memorandum of Law in Further Support of Defendant’s Motion to
Dismiss, ECF No. 16
CBA = Exhibit A to the Declaration of Sean P. Lynch (hereinafter, “Lynch Decl.”)
in Support of Defendant’s Motion to Dismiss, ECF No. 7-2, “Agreement between
Bimbo Bakeries USA, Inc., Entenmann’s (#7008-80) and Bakery Drivers Union
Local 802, January 1, 2015 through December 29, 2018” (the Collective
Bargaining Agreement)

2

BBUSA’s motion to dismiss hinges on a series of collective bargaining
agreements (collectively, the “CBA”) that BBUSA says are grounds for
preemption of the RSRs’ NJWHL and FLSA claims. The CBA, effective January
2015 through December 2018, is significant because BBUSA claims the RSRs
are members of the International Brotherhood of Teamsters Local No. 802
union (the “Union”), which bargains with BBUSA for the terms and conditions
of its members’ employment and memorializes those terms and conditions in
the CBA. (Br. 1, 4) The RSRs do not deny that the CBA governs the terms and
conditions of their employment. (See, e.g., Lynch Deci. C p.2 (Oddo’s claim filed
with the New Jersey Division of Wage and Hour Compliance, alleging “[BBUSA]
and Teamsters Local 802 have a collective bargaining agreement.
.

.

BBUSA points to eight provisions in the CBA that purportedly govern the
RSRs’ pay. (Br. 4—6 (citing CBA Arts. 3,4, 8, 16, 27, 31, and Letter of
Agreement) These provisions describe if and how RSRs are paid during
vacation, holidays, birthdays, funeral leave, and service time, and also set forth
a basic wage and overtime pay formula and scale. The CBA provides for an
“alternative compensation program” for the RSRs, which incorporates the basic
wage and overtime formula as an alternative to commission-based pay:
RSRs shall receive for each week the higher of (i)
compensation calculated at the regular hourly
rate of $21.00 for all hours worked in any 5-day
regular work week and $31.50 for all overtime
hours worked (not counting ½ hour daily for
mandatory meal break) and (ii) their base pay
plus commissions at the negotiated rates set
forth in Article 27 of the CBA.
(Br. 5 (paraphrasing CBA Art. 27(b)—(c) & (i)(2)—(4)) The “negotiated rate” since
January 3, 2016, has been $110 base pay with a 12% net commission—i.e.,
what the RSRs allege they receive in the complaint. (See Compi. 37)
¶
Before setting forth the alternative compensation program, the CBA
states: “The Company and the Union agree that the base pay and commission
provisions of the parties’ [CBA] compensate fully [RSRs] under federal and state
overtime pay laws because of their job duties as outside salespersons and

3

because the U.S. Secretary of Transportation has the power to regulate the
[RSRs] in the performance of their duties. (CBA Art. 27(i)(1))
The CBA also requires BBUSA to institute a time recording system and to
record RSR’s hours. (CBA, Art. 27(i)(5)) Additionally, the CBA lays out a
mandatory grievance and arbitration procedure, through which “all disputes,”
including disputes regarding pay, are to be resolved. (See CBA Arts. 9—10,
27(i) (2)) 2
II.

LEGAL STANDARDS
A. Whether Rule 12(b)(1) or Rule 12(b)(6) Governs BBUSA’s Motion
BBUSA moves to dismiss the RSRs’ complaint for lack of subject matter

jurisdiction, asserting a factual challenge based on the CBA. (See Defs. Br. 10)
BBUSA fails to explain why its challenge should be jurisdictional, rather than
merits-based. Some courts in this district have applied only a 12(b)(6) standard
to determine LMRA preemption issues, see, e.g., Carluccio v. Parsons Inspection
& Maint. Corp., No. CIV A 06-4354 JLL, 2007 WL 1231758, at *2 (D.N.J. Apr.
24, 2007), while others have applied Rule 12(b)(1), see, eg., Johnson v. Langer
Transp. Corp., No. CIV.A. 15-1256 JLL J, 2015 WL 2254671, at *3 (D.N.J. May
13, 2015). From its moving papers, I presume BBUSA reasons that because the
LMRA preempts the RSRs’ claims, the RSRs’ only recourse is to bring suit
against BBUSA for breach of the CBA. And, to bring a breach of CBA claim, the
RSRs would be required to exhaust the CBA’s grievance and arbitration
procedures before suing in federal court unless they can state a “hybrid” claim

2
The defendants submit the transcript from an October 28, 2015 hearing on a
claim Oddo filed with the Wage and Hour Division of the New Jersey Department of
Labor and Workforce Development on May 24, 2015. (See Lynch Deci. Ex. C (wage
claim), Ex. D (hearing transcript)) In the matter before the Wage and Hour Division, a
Wage Collection Referee dismissed Oddo’s claim as preempted by virtue of the CI3A.
The referee explained: “[T]his claim would involve an interpretation of the CBA. And
New Jersey is preempted by federal case law from doing that. Meaning we do not have
jurisdiction to hear this claim. The CBA sets forth a grievance procedure that you
should follow.
The defendants point out that despite this history, the RSRs fail to
acknowledge the existence of the CBA in the complaint, which the RSRs filed on July
13, 2016.
.

.

.“

4

against BBUSA and the Union. DelCostello v. Int’l Bhd. of Teamsters, 462 U.s.
3
151, 163, 103 S. Ct. 2281, 2290 (1983) (“It has long been established that an
individual employee may bring suit against his employer for breach of a
collective bargaining agreement. Ordinarily, however, an employee is required
to attempt to exhaust any grievance or arbitration remedies provided in the
collective bargaining agreement.” (citation omitted)).
Because, BBUSA argues, the RSRs have not stated a hybrid claim, the
RSRs must seek relief pursuant to the CBA’s grievance and arbitration
provisions. The RSRs contest the enforceability of these provisions.
Nevertheless, “[ijt is a long-standing tenet of law that an employee must
attempt to exhaust the grievance and arbitration procedures set forth in the
collective bargaining agreement between his employer and his union before he
has standing to maintain an action under Section 301 of the [LMRA].” Monacelli
v. Revlon, No. CIV. 89-4369 (CSF), 1990 WL 105760, at *4 (D.N.J. July 2,
1990); see also Shaffer v. Mitchell Transport, Inc., 635 F.2d 261, 264 (3d Cir.
1980) (citations omitted) (“[I]f [aj collective bargaining agreement provide[s] for
resolution of [a] dispute through arbitration, the court ha[sJ no jurisdiction to
address the merits.”). With the RSRs’ very ability to maintain a suit up for
debate, I am satisfied that Rule 12(b)(1) is an appropriate rule to apply here.
The United States Supreme Court explained in DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 164, 103 5. Ct. 2281 (1983) that because the requirement
that an employee exhaust any grievance or arbitration remedies provided in a CBA
before bringing suit against his employer may “work[j an unacceptable injustice” if the
union representing the employee acts in a way that breaches its duty of fair
representation,
3

an employee may bring suit against both the employer and
the union, notwithstanding the outcome or finality of the
grievance or arbitration proceeding. Such a suit, as a
formal matter, comprises two causes of action. The suit
against the employer rests on § 301, since the employee is
alleging a breach of the collective bargaining agreement.
The suit against the union is one for breach of the unions
duty of fair representation, which is implied under the
scheme of the National Labor Relations Act.
Id. (citations omitted).

5

B. Rule 12(b)(1)
Motions to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(l) may be raised at any time. Iwanowa v. Ford Motor Co.,
67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). “[B]ecause subject matter
jurisdiction is non-waivable, courts have an independent obligation to satisfy
themselves of jurisdiction if it is in doubt. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 278, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977). A
necessary corollary is that the court can raise sua sponte subject-matter
jurisdiction concerns.” Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76—77 (3d
Cir. 2003).
Rule 12(b) (1) challenges may be either facial or factual attacks. See 2
Moore’s Federal Practice § 12.30[4] (3d ed. 2007); Mortensen v. First Fed. Say. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that
the complaint does not allege sufficient grounds to establish subject matter
jurisdiction. Iwanowa, 67 F. Supp. 2d at 438. A court considering such a facial
challenge assumes that the allegations in the complaint are true, and may
dismiss the complaint only if it nevertheless appears that the plaintiff will not
be able to assert a colorable claim of subject matter jurisdiction. Cardio—Med.
Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983);
Iwanowa, 67 F. Supp. 2d at 438. A factual attack, on the other hand, permits
the Court to consider evidence extrinsic to the pleadings. Gould Elecs. Inc. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modifIed on other
grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus “Rule
12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6),
such as assuming the truth of the plaintiff’s allegations.” CNA v. United States,
535 F.3d 132, 144 (3d Cir. 2008).
The burden of establishing federal jurisdiction rests
with the party asserting its existence. [citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3,
126 S. Ct. 1854, 164 L.Ed.2d 589 (2006).] “Challenges
to subject matter jurisdiction under Rule 12(b)(1) may
be facial or factual.” [citing Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009)
6

(quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d
181, 188 (3d Cir. 2006)).] A facial attack “concerns ‘an
alleged pleading deficiency’ whereas a factual attack
concerns ‘the actual failure of [a plaintiffs] claims to
comport [factually] with the jurisdictional
prerequisites.” [citing CNA v. United States, 535 F.3d
132, 139 (3d Cir. 2008) (alterations in original)
(quoting United States ex rel. Atkinson v. Pa.
Shzbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
“In reviewing a facial attack, the court must only
consider the allegations of the complaint and
documents referenced therein and attached thereto, in
the light most favorable to the plaintiff.” [citing Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, “the
court must permit the plaintiff to respond with
rebuttal evidence in support of jurisdiction, and the
court then decides the jurisdictional issue by weighing
the evidence. If there is a dispute of a material fact, the
court must conduct a plenary hearing on the contested
issues prior to determining jurisdiction.” [citing
McCann v. Newman Irrevocable Trust, 458 F.3d 281,
290 (3d Cir. 2006) (citations omitted).]
Lincoln Ben. Lfe Co. v. AEILfe, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes
omitted; case citations in footnotes inserted in text). I consider BBUSA’s
jurisdictional challenge a factual attack and therefore, will consider the CBA as
extrinsic evidence. In the end, it may matter little; the authenticity of the CBA,
which is integral to the parties’ relationship, is not disputed, and even on a
Rule 12(b)(6) standard it would likely be considered. See Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014) (“However, an exception to the general rule is that
a ‘document integral to or explicitly relied upon in the complaint’ may be
considered ‘without converting the motion to dismiss into one for summary
judgment.’

“)

(quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997)); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993) (“We now hold that a court may consider an
undisputedly authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiffs claims are based on the document.”).

7

C. Rule 12(b)(6)
In Sections III.C & D, I briefly consider in the alternative the issue of
failure to state a claim under Federal Rule of Civil Procedure 12(b) (6). Rule
12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails
to state a claim upon which relief can be granted. The defendant, as the moving
party, bears the burden of showing that no claim has been stated. Animal
Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9 (3d Cir.
2011). For the purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences are drawn in favor
of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const.
Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft u. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’.
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
III.

DISCUSSION

A. Whether The LMRA Preempts The RSRs’ NJWHL Claim
BBUSA argue that the RSRs’ NJWHL claim fails because it is completely
preempted by the LMRA. Specifically, BBUSA argues the NJWHL claim arises

8

from the CBA, or alternatively, depends upon the court’s interpretation of the
4
CBA.
Section 30 1(a) of the LMRA provides: “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.

§

185(a).

Although section 301 refers only to jurisdiction, it has
been interpreted as authorizing federal courts to
fashion a body of common law for the enforcement of
collective bargaining agreements. Textile Workers
Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S. Ct.
912, 917, 1 L.Ed.2d 972 (1957). An underlying reason
for the development of federal law in this area is the
need for uniform interpretation of contract terms to aid
both the negotiation and the administration of
collective bargaining agreements. See Local 174,
Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82
S. Ct. 571, 576-77, 7 L.Ed.2d 593 (1962) (differing
Here is the NJWHL overtime guarantee:
Every employer shall pay to each of his employees wages at a rate of not
less than.
$7.15 per hour for 40 hours of working time in any week
and 1 ‘/2 times such employee’s regular hourly wage for each hour of
working time in excess of 40 hours in any week...
.

.

N.J. Stat. Ann. § 34:11-56a4 (West).
Elsewhere, I have held that, although the New Jersey Supreme Court has not
definitively ruled on the question, it would likely find that “a private cause of action
exists under the NJWHL to recover unpaid overtime compensation.” Thompson v. Real
Estate Mortg. Network, Inc., 106 F. Supp. 3d 486, 492 (D.N.J. 2015). As for what a
plaintiff must allege to state a claim for unpaid overtime under the NJWHL, “[b]ecause
the NJWHL overtime compensation and minimum wage requirements are modeled
after and nearly identical to their analogous Fair Labor Standards Act regulations,
judicial interpretations construing the FLSA are applicable.” Harris v. Scrttfleet Inc.,
No. CIV.A. 11-4561 SRC, 2011 WL 6072020, at *4 (D.N.J. Dec. 6, 2011); see also
Thompson, 106 F. Supp. at 491 (“The FLSA includes a right of action to recover
withheld overtime payments; the principle of parallel construction suggests that the
NJWHL be interpreted the same way.”). To successfully state a claim for overtime
under Section 7(a) of the FLSA, and therefore to state an NJWHL overtime claim, a
plaintiff need only show “a failure to pay overtime compensation.
to covered
employees.” Harris, 2011 WL 6072020, at *2; see also 29 U.S.C.A. § 207.
.

9

.

interpretations would stimulate and prolong labor
disputes).
Antol v. Esposto, 100 F.3d 1111, 1115 (3d Cir. 1996), amended, (3d Cir. Jan.
20, 1997).
In furtherance of this purpose,
LMRA § 301 completely preempts a state cause of
action
when the resolution of said action is
“substantially dependent upon analysis of the terms of
an agreement made between the parties in a labor
contract.” Allis—Chalmers Corp. v. Lueck, 471 U.S. 202,
220, 105 S. Ct. 1904, 85 L.Ed.2d 206 (1985); see also
Lingle v. Norge Div. of Magic Chef Inc., 486 U.S. 399,
413, 108 S. Ct. 1877, 100 L.Ed.2d 410 (1988) (“[Ajn
application of state law is pre-empted by § 301 of the
Labor Management Relations Act of 1947 only if such
application requires the interpretation of a collectivebargaining agreement.”). By contrast, when resolution
of the state law claim is “independent” of a CBA and
does not require construing one, the state law claim is
not preempted by § 301. Lingle, 486 U.S. at 410, 108
S. Ct. 1877; accord Antol v. Esposto, 100 F.3d 1111,
1117 (3d Cir. 1996).
.

.

.

New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New
Jersey, 760 F.3d 297, 305—06 (3d Cir. 2014).
Whether a claim requires a court to construe or interpret a CBA to the
point that the claim depends on interpretation of the CBA is a question riddled
with nuance and exception. Merely considering the terms of a collectivebargaining agreement—looking to undisputed terms in a CBA or interpreting a
CBA solely to compute damages, for example—does not warrant preemption.
See Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S. Ct. 2068 (1994) (“[W]hen
the meaning of contract terms is not the subject of dispute, the bare fact that a
collective-bargaining agreement will be consulted in the course of state-law
litigation plainly does not require the claim to be extinguished.”); Lingle v.
Norge Div. of Magic Chef Inc., 486 U.S. 399, 413 n. 12, 108 S. Ct. 1877 (1988)
(“Although federal law would govern the interpretation of the agreement to
determine the proper damages, the underlying state-law claim, not otherwise

10

pre-empted, would stand.”); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
261—62, 114 S. Ct. 2239, 2248 (1994) (“[P]urely factual questions’ about an
employee’s conduct or an employer’s conduct and motives do not ‘requirje] a
court to interpret any term of a collective-bargaining agreement.” (citing Lingle,
486 U.S. at 407)); see also Bull v. United Parcel Serv., Inc., No. CIV. 07-229 1 KM
MCA, 2014 WL 2965696, at *13_14 (D.N.J. July 1, 2014) (“The CBA may have
been relevant to the determination of certain issues of fact, but there is no
dispute about what it says, what it means, whether it is valid, or whether [the
plaintiff] is bound by it.

.

.

.

[The defendant] cites the CBA to bolster its case

and justify its actions. That is perfectly permissible, but it does not transform
this case into one about, or arising from, the CBA.”), affd in part, appeal
dismissed in part, 620 F. App’x 103 (3d Cir. 2015).
Article 27 of the CBA provides that the RSRs are to be paid the higher of
(a) $21.00/hour and $31.50/overtime hour or (b) a given week’s commissionbased income. From that provision, BBUSA draws the implication that the
RSRs’ demand for overtime compensation is necessarily grounded in, or arises
from, the CBA. (See Br. 13) And even if the RSRs’ NJWHL claim is not directly
based on the CBA, BBUSA argues, it is still preempted because it substantially
depends on analyzing the CBA—that is, it “requires the Court to interpret how
the CBA’s pay and time reporting provisions apply to [the RSRs’] compensation,
and [to] interpret how that compensation is viewed under the NJWHL.” (Br. 14)
BBUSA relies chiefly on three cases. In Johnson v. Langer Trarisp. Corp.,
a court in this district determined that the LMRA preempted a plaintiff’s
NJWHL claim where the plaintiff sought overtime wages. WL 2254671, at *5
(D.N.J. May 13, 2015). There, however, the plaintiff specifically alleged that his
employer’s failure to pay these wages breached provisions of a CBA. See

id.

(“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.

.

.

.

These core allegations of Plaintiffs Counts I

and II are founded directly on rights created by the CBA.”) Here, the face of the

11

Complaint alleges a violation of the NJWHL only; it does not refer to the CBA at
all.
The defendants characterize this as artful pleading—i.e., the strategic
omission of an allegation that is nevertheless essential. I do not think, however,
that the plaintiffs here have exceeded the bounds of the principle that a
plaintiff is master of his complaint. Taking guidance from courts that have
recognized under the well-pleaded complaint rule in the removal context a
plaintiff’s right “to endeavor to establish a basic right under the state statute
regardless of the language in the CBA,” I reject defendants’ characterization.
O’Keefe v. Hess Corp., No. CIV.A. 10-2598 WJM, 2010 WL 3522088, at *5
(D.N.J. Sept. 1, 2010), report and recommendation adopted, No. 2:10-CV-2598WJM-MF, 2010 WL 4102848 (D.N.J. Oct. 15, 2010).5
The defendants also cite Firestone v. S. California Gas Co., which found
preemption. 219 F.3d 1063, 1066 (9th Cir. 2000). There, however, the
California statute under which the plaintiffs sued exempted from its coverage
“any employee covered by a collective bargaining agreement if said agreement
provides premium wage rates for overtime work.
Reg.

.

.

.“

Id. (quoting 8 Cal. Code

§ 1 1040(3)(D)). The CBA, then, was explicitly incorporated by statute. No

such factor is at play here.
6

See also Caterpillar Inc. v. Williams, 482 U.S. 386, 399, 107 S. Ct. 2425, 2433
(1987) (“[T]he plaintiff may, by eschewing claims based on federal law, choose to have
the cause heard in state court. When a plaintiff invokes a right created by a collectivebargaining agreement, the plaintiff has chosen to plead what we have held must be
regarded as a federal claim, and removal is at the defendants option. But a defendant
cannot, merely by injecting a federal question into an action that asserts what is
plainly a state-law claim, transform the action into one arising under federal law,
thereby selecting the forum in which the claim shall be litigated.”); Voilas v. Gen.
Motors Corp., 170 F.3d 367, 373—74 (3d Cir. 1999) (“Thus, under Caterpillar,
employees have the option of vindicating their interests by means of either a section
301 action or an action brought under state law, as long as the state-law action as
pleaded does not require interpretation of the collective bargaining contract.”).
BBUSA also cites two cases from the Third Circuit in which the court
determined that a state law overtime claim was preempted because it depended on a
CBA. (See Br. 20—21) But in both cases, the preempted claim was made, not under the
NJWHL, which creates an independent right of action, but under the Pennsylvania
Wage Payment and Collection Law, which “does not create a right to compensation.
6

12

Finally, the defendants rely on Hayes v. Aramark Sports, LLC, No. 0810700-RWZ, 2009 U.S. Dist. LEXIS 133646, at *6 (D. Mass. Mar. 30, 2009).
The plaintiffs there, like the RSRs here, alleged violation of a state overtime
law. Those plaintiffs were also covered by a CBA that required overtime pay
pursuant to an “array of pay rate provisions.” Id. at *8. The Hayes court
determined that “an interpretation of the payment requirements of [the] CBA
[wasi necessary for an understanding of how many hours each employee
worked and how that employee was paid for the actual hours worked,” rejecting
the plaintiffs’ argument that their state law overtime claim could be resolved
simply by “using all of their pay earned in a given week and dividing by the
number of hours worked.” Id. The RSRs argue that Hayes is distinguishable
because the pay provisions of that CBA were “far more complex” than those
here. (Opp. 11) Alternatively, they argue that Hayes is out-of-circuit and
wrongly decided. (IcL n.2)
Disparate CBA provisions and disparate state laws may produce
disparate results in

§ 301 preemption cases. See Antol v. Esposito, 100 F.3d

1111, 1115 (3d Cir. 1996), as amended (3d Cir. Jan. 20, 1997) (observing that
section 301 preemption case law “has not been completely consistent,
particularly when state law may affect the outcome.”). Still, I am not persuaded
that Hayes is distinguishable on those grounds. The Massachusetts statute
cited in Hayes contains certain formulas and exclusions not present in the
7
NJWHL itself. But the NJWHL’s implementing regulations, cited by neither
party, narrow the gap.
8

Rather, it provides a statutory remedy when the employer breaches a contractual
obligation to pay earned wages. The contract between the parties governs in
determining whether specific wages are earned.” Harris v. Healthcare Serus. Grp., Inc.,
No. CIV.A. 06-2903, 2008 WL 2789534, at *5 (E.D. Pa. July 18, 2008) (quoting Weldon
v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990)); see also Antol v. Esposto, 100 F.3d
1111, 1117 (3d Cir. 1996), as amended, (3d Cir. Jan. 20, 1997).
Except as otherwise provided in this section, no employer in
the commonwealth shall employ any of his employees in an
occupation, as defined in section two, for a work week
longer than forty hours, unless such employee receives
13

compensation for his employment in excess of forty hours
at a rate not less than one and one half times the regular
rate at which he is employed. Sums paid as commissions,
drawing accounts, bonuses, or other incentive pay
based on sales or production, shall be excluded in
computing the regular rate and the overtime rate of
compensation under the provisions of this section.
Mass. Ann. Laws ch. 151, § 1A (emphasis added).
8
(a) The “regular hourly wage” is a rate per hour.
(b) The act does not require employers to compensate
employees on an hourly rate basis. Their earnings may be
determined on a piece-rate, salary, bonus, commission or
other basis, but the overtime compensation due to
employees shall be paid on the basis of the hourly rate
derived therefrom. Therefore, the regular hourly wage of
an employee is determined by dividing his or her total
remuneration for employment, exclusive of overtime
premium pay, in any workweek, by the total number of
hours worked in that workweek for which such
compensation was paid.
(c) If an employee is remunerated solely on the basis of a
single hourly rate, the hourly rate shall be his or her
“regular hourly wage”.
N.J. Admin. Code § 12:56-6.5 (emphasis added). And further,
(a) The “regular hourly wage” shall not be deemed to
include:
1. Payments in the nature of gifts made on holidays or on
other special occasions or as a reward for service, the
amounts of which are not measured by or dependent on
hours worked, production or efficiency;
2. Payments made for occasional periods when no work
is performed due to vacation, holiday or other similar
cause;
3. Reasonable payments for traveling or other expenses
incurred by aii employee in the furtherance of his or her
employer’s interests and properly reimbursable by the
employer which are not made as compensation for
employment;
4. Sums paid in recognition of services performed during
a given period if either:
i. Both the fact that payment is to be made and
the amount of payment are determined at the sole
discretion of the employer at or near the end of the
14

I think the Hayes court, in my shoes, might well hold that application of
the regulatory exclusions from the definition of “regular hourly wage” would
demand interpretation of the CBA’s holiday, vacation, birthday, and funeral
pay provisions. So I do not find Hayes distinguishable; I must decide squarely
whether I agree with its reasoning. I do not agree with Hayes, for the following
reasons.
To draw connections between the pay provisions in the CBA and the
regulatory exclusions, see supra, does not, in my view, actually require
interpretation of the CBA. To be sure, the analysis requires that I refer to the
CBA. The application, however, seems straightforward: holiday, vacation,
birthday, and funeral pay are to be excluded from the “total remuneration”
making up the “regular hourly wage.” The defendants argue that the Court
would also have to analyze the “Splitting Routes Pay Provision” and resolve
factual issues concerning its effect on the RSRs’ pay. But looking to the
Complaint, the CBA, and the language of the NJWHL, I see no indication that
the Splitting Routes Pay Provision is even on the table. The Complaint does not
allege that the plaintiffs receive split route pay and BBUSA submits nothing to
period and not pursuant to any prior contract,
agreement or promise causing the employee to
expect such payments regularly; or
ii. The payments are made pursuant to a bona
fide profit-sharing plan or trust, or thrift or
savings plan to the extent to which the amounts
paid to the employee are determined without regard
to hours of work, production or efficiency; or
5 Contributions irrevocably made by an employer to a
trustee or third person pursuant to a bona fide plan
providing for old age, retirement, life, accident, or health
insurance or similar benefits for employees; or
6. Additional premium compensation for hours worked
in excess of eight hours per day, or for work on
Saturdays, Sundays, holidays, or regular days of rest; or
7. Overtime premiums.
N.J. Admin. Code § 12:56-6.6 (emphasis added).

15

indicate that they do. Even assuming arguendo that they do, under the plain
meaning of the NJWHL and its effectuating regulations, I see no reason why
split route pay would be excluded from the “regular hourly wage” calculation.
Nor do the defendants alert me to any live interpretational dispute as to
specific terms in the CBA that I would need to resolve in order to adjudicate the
RSRs’ NJWHL claim. See Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S. Ct.
2068, 2078 (1994) (“[W]hen the meaning of contract terms is not the subject of
dispute, the bare fact that a collective-bargaining agreement will be consulted
in the course of state-law litigation plainly does not require the claim to be
extinguished.”) BBUSA says that it is not necessary to identify such a dispute
to find preemption, but it does not supplement that contention with convincing
argument or citation to on-point authority. (See Reply 2) I believe that this is an
important factor. Cf Bell v. Se. Pennsylvania Transp. Auth., 733 F.3d 490, 495
(3d Cir. 2013) (rejecting defendants’ position that the LMRA requires the
plaintiffs to arbitrate its FLSA claim “[b]ecause there exists no dispute over the
interpretation or application of any of the provisions of the CBAs that has any
impact on the [plaintiffs’] FLSA claim.

. . .“)

(emphasis added); see also Basa v.

Rizza Chevrolet, Inc., 750 F. Supp. 2d 987, 988—89 (N.D. Ill. 2010) (“[W]ithout
an identification of a dispute between the parties concerning terms or
provisions in the CBA, it [is] premature for the district court to find
preemption.” (citing Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 760 (7th
Cir. 2008) (“Because preemption.

. .

will only occur if the parties dispute the

CBAs’ terms, and even then, arguably only if the dispute is relevant as to
liability as opposed to damages, the record is not sufficiently developed

. . .

.“))).

I also see no reason why, in the first place, I necessarily must rely on the
CBA to adjudicate the RSRs’ NJWHL claim. I would think that whatever form of
documentation or electronic pay system BBUSA uses to disburse the RSRs’
wages could be produced in discovery. Such discovery could be used to
calculate the “regular hourly wage” according to the NJWHL’s regulatory
definitions—i.e., without resort to the CBA. Cf Snyder v. Dietz & Watson, Inc.,

16

837 F. Supp. 2d 428, 45 1—52 (D.N.J. 2011) (“Resolution of [a New Jersey’s
Minimum Wage Act] claim will involve consideration of the number of hours
Plaintiff worked, the statutory minimum hourly rate that Plaintiff was entitled
to be paid, and the amount that Plaintiff was actually paid, and will not require
a factfinder to consult or interpret the CBA to determine if the amounts due
were paid. Consequently, the Court finds that the claim under the New Jersey
Minimum Wage Act is not preempted under Section 301.”).
A couple of hypothetical examples may further clarify my point. Imagine,
for example, that BBUSA was completely disregarding the CBA and
categorizing pay by some arbitrary method. In such a case, interpretation of
the CBA might be beside the point. Or imagine that BBUSA was satisfying its
obligations under the CBA completely, but still violating the NJWHL’s overtime
requirements. Again, interpretation of the CBA would be beside the point.
I say “beside the point” for the following reason: In any case, the NJWHL
imposes a duty on employers to pay their employees overtime wages—a duty
that is independent of any contractual obligations. That duty, moreover, is not
vitiated by the LMRA:

“

301 does not grant the parties to a collective-

bargaining agreement the ability to contract for what is illegal under state law.”
Allis-Chalmers Corp., 471 U.S. at 212—13. See also Snyder v. Dietz & Watson,
Inc., 837 F. Supp. 2d 428, 448 (D.N.J. 2011) (“Plaintiff chose not to frame his
complaint in terms of an illegal CBA provision, but instead challenges the
actions of his employer. The right to be paid the wages earned, without
deductions for unauthorized purposes, exists independently of the CBA and
cannot be eviscerated by a collective bargaining agreement.”).
A NJWHL claim may overlap factually with a hypothetical LMPA claim.
But it is nevertheless independent; “[e]ven if resolution of a state-law claim
‘involves attention to the same factual considerations as the contractual
determination.

.

.

such parallelism [does not mandate preemption].”’ Polanco v.

Brookdale Hosp. Med. Ctr., 819 F. Supp. 2d 129, 133 (E.D.N.Y. 2011) (quoting
Lingle, 486 U.S. at 408, 108 S. Ct. 1877)).

17

For all of these reasons, then, I decline to follow the reasoning of Hayes.
BBUSA also argues that because the RSRs allege that BBUSA failed to
track its employees’ hours, and because the CBA specifically provides for
implementation of a time-tracking system, the RSRs necessarily allege breach
of a right that arises directly from the CBA. (Br. 13) In the first instance, the
question of whether BBUSA tracks RSRs’ hours may be resolved without
reference to the CBA. Setting that aside, it is not even clear that RSRs seek to
recover under the NJWHL or FLSA for this alleged failure; the allegation that
BBUSA does not track time appears only in the general allegations of the
Complaints—not in the specific “Count 1” or ‘Count 2” allegations that set forth
the RSRs’ NJWHL and FLSA causes of action. (See Compl.

¶J

1, 59; cf id.

¶J

60—73) I thus decline to read the RSRs’ claims as arising from the CBA.
Accordingly, Section 301 of the LMRA does not preempt the RSRs’ NJWHL
claim.
B. Whether The LMRA Precludes The RSRs’ FLSA Claim
I proceed to consider the RSRs’ FLSA claim. The defendants argue that
9
the FLSA claim is also “preempted” by the LMRA. The Third Circuit has
explained that because “[tjhe enforcement provision of the FLSA is limited to
employee suits seeking enforcement of their rights under the statute,” and “the
FLSA contains no language suggesting that an action filed thereunder would be
an appropriate vehicle for the interpretation of a disputed provision of the
collective bargaining agreement

.

.

.

.

claims which rest on interpretations of

the underlying collective bargaining agreement must be resolved pursuant to
the procedures contemplated under the LMRA, specifically grievance,
arbitration, and, when permissible, suit in federal court under section 301.”
Vadino v. A. Valey Engineers, 903 F.2d 253, 266 (3d Cir. 1990) “In other words,
The term “preemption” commonly refers to a federal law’s taking precedence
over state law. Courts have sometimes used a separate term, “preclusion,” to refer to
the doctrine for which BBUSA argues here—i.e., one federal law taking precedence
over another federal law. See, e.g., Johnson v. D.M. Rothman Co., 861 F. Supp. 2d 326,
332 (S.D.N.Y. 2012) (“ 301 precludes claims brought under the FLSA which involve
interpretation of a CBA”).

18

if a FLSA claim depends on the disputed interpretation of a CBA provision, an
employee must first go to arbitration—through the representative union—
before vindicating his or her rights in federal court under the FLSA.” Bell v. Se.
Pennsylvania Transp. Auth., 733 F.3d 490, 494 (3d Cir. 2013).
Therefore,
[i]t follows that in the event of a dispute as to the
correct wage rate under a collective bargaining
agreement and a consequential claim under the
overtime provision of the FLSA, the procedure [the U.S.
Court of Appeals for the Third Circuit] envision[s] is to
decide the contract interpretation issue through the
grievance procedure to arbitration. If exhaustion can
be excused, then the employee may file a[n] [LMRA]
claim
Concurrent with that, the employee may
bring a FLSA claim, but the FLSA overtime claim
would be dependent upon the resolution in the [LMRA]
claim of the contract interpretation issue.
.

.

.

.

Vadino, 903 F.2d at 266.
The converse is also true. Where an overtime claim rests independently
on FLSA statutory rights, as opposed to contractual rights under a CBA, and
where no interpretation of the CBA is necessary to adjudicate the FLSA claim,
the plaintiff may proceed on its FLSA claim without first seeking arbitration.
See Bamello v. AGC Chemicals Americas, Inc., No. C1VA208CV03505 WJMMF,
2009 WL 234142, at *3 (D.N.J. Jan. 29, 2009) (The LMRA did not preempt
plaintiffs’ FLSA overtime claim where the “[p]laintiffs [did] not seek a
determination as to the appropriate wage rate under the CBA. Instead,
Plaintiffs focus[ed] on their statutory right to compensation under the FLSA.
Not only d[id] the Complaint lack any direct reference to the CBA, Plaintiffs
explicitly state[d] in their moving papers that “Plaintiffs do not claim that they
are owed compensation pursuant to the CBA” and further emphasize[d] that
their ‘claims stem solely from their alleged statutory right to compensation for
time worked under the FLSA.
FLSA.

.

.

.“‘);

.

.,

and if applicable, to over time provided by the

Polanco v. Brookdale Hosp. Med. Ctr., 819 F. Supp. 2d 129, 133—

34 (E.D.N.Y. 2011) (“Employees’ rights to minimum wage and overtime pay

19

under the FLSA are separate and distinct from employees’ contractual rights
arising out of an applicable collective bargaining agreement. The distinctly
separate nature of these contractual and statutory rights is not vitiated merely
because both were violated as a result of the same factual occurrence. And
certainly no inconsistency results from permitting both rights to be enforced in
their respectively appropriate forums.’”) (quoting Barrentine v. Arkansas-Best
Freight Sys., Inc., 450 U.S. 728, 745, 101 S. Ct. 1437, 1447, 67 L. Ed. 2d 641
(1981) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 50, 94 S. Ct.
1011, 1020, 39 L. Ed. 2d 147 (1974))); Moeck v. Gray Supply Corp., No. 031950 (WGB), 2006 WL 42368, at *2 (D.N.J. Jan. 6, 2006) (“Although the law is
unsettled as to whether the FLSA preempts state common law causes of action,
most courts have held that claims directly covered by the FLSA (such as
overtime), must be brought under the FLSA.”).
BBUSA chiefly relies on the Third Circuit’s decision in Vadino to argue
that the RSRs’ FLSA claim substantially depends on the CBA. (Br. 21-23) See
Vadino v. A. Valey Engineers, 903 F.2d 253 (3d Cir. 1990). There, the Court of
Appeals found that the plaintiff’s FLSA overtime claim rested on interpretation
of his collective bargaining agreement (and that any LMRA Section 301 claim
would be time-barred). id. at 266—267. But in Vadino, the plaintiff did not
simply claim that his employer failed to pay him overtime wages at a rate of 1.5
times his regular rate; he insisted that his employer was not using the correct
“regular rate” to calculate his overtime wages. He claimed that his union card
designated him a “journeyman,” a class of worker described only in the CBA—
not in the FLSA. And the complaint specifically alleged that the employer had
“breached the collective bargaining agreement by paying Vadino less than the
journeyman’s rate.” Id. at 257. These facts led the Court of Appeals to
characterize the case as “a dispute concerning the amount of wages that
should have been paid under the terms of the collective bargaining agreement,”
which “rest[ed] on interpretations of the underlying collective bargaining

20

agreement,” as opposed to a dispute “resting on the language of section 7(a).”
Id. at 266.

BBUSA says the RSRs here allege “that BBUSA violated the F’LSA by
paying them in accordance with the express provisions of the CBA—at a rate
that [the RSRs] allege is less than the overtime rate to which they believe they
were entitled.” But the Complaint contains no reference to the CBA at all. The
RSRs allege only that BBUSA’s “violations of the FLSA include, but are not
limited to, failing to pay.

.

.

overtime compensation for hours worked over 40

per workweek,” and that “Defendants’ conduct in failing to pay.

.

.

was and is

willful and was and is not based upon any reasonable interpretation of the
law.” (Compl.

¶J 65—66) That is reasonably interpreted as an independent claim

under the F’LSA.’°
As established above, to state a claim for unpaid overtime under the
FLSA, the RSRs need only plead—plausibly, of course’ ‘—that they are covered
employees under the FLSA and that BBUSA failed to pay them overtime
compensation. Like the NJWHL, the FLSA sets forth an independent formula
for computing overtime wages based on the employee’s “regular rate,” and it
describes certain types of compensation that are excluded from this rate. See
29 U.S.C.A.

§ 207(a), (e). The FLSA provides for certain broad exemptions

rooted in collective bargaining agreements, but BBUSA has not argued that any
of these apply. (And if they did, they might not require any significant
J consider arguendo whether a claim under the CBA was necessarily implied.
Vadino itself, however, distinguished earlier necessary-implication cases in terms that
apply here. One such case was Minizza v. Stone Container Corp., 842 F.2d 1456 (3d
Cir. 1988) (discussed in Vaclino, 903 F.2d at 265). In Minizza, the Court of Appeals
was called upon to determine whether, under FLSA Section 207(e)’s language
exempting certain types of payment from the “regular rate” calculation, certain bonus
payments provided for in a collective bargaining agreement should be construed as
part of covered employees’ “regular rate.” 842 F.2d at 1460—63. That determination is
closely parallel to the one that BBUSA claims this Court must undertake with respect
to the FLSA and the NJWHL. (See Br. 4—6, 18—20, 23; Reply 3—4) Yet the Court of
Appeals in Minizza did not even address LMRA preemption as a possibility, and the
Vadino court considered the Minizza analysis “vastly different from the task” at hand.
903 F.2d at 265.
10

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

21

interpretation of the CBA.)
In short, I find no basis on which to conclude that the RSRs’ FLSA
overtime claim arises from, or will require me to interpret, the CBA. It follows
that the RSRs may litigate their FLSA claim before this Court directly, without
using the vehicle of LMRA Section 301. Therefore, they need not fulfill the
LMRA-related precondition of exhausting the administration and grievance
procedures in the CBA.
C. Whether The RSRs Are Exempt from The NJWHL and FLSA
I proceed to a related issue, which has both a both a Rule 12(b)(1)
jurisdiction/preemption component, and a Rule 12(b)(6) merits component. I
consider it under both standards.
In a footnote, BBUSA submits that “[the RSRs’j sales duties and their
operation of large commercial delivery trucks render them exempt from federal
and state overtime requirements under the outside sales, motor carrier, and/or
combination of exemptions.” (Br. 4 (citing 29 U.S.C.

§ 213(a)(1), (b)(1) and

N.J.A.C. 12:56-7. 1))12 This, they say, implicates the CBA, which (to reiterate)
states:
The Company and the Union agree that the base pay
and commission provisions of the parties’ [CBA]
29 U.S.C. § 213(a)(1) exempts from the FLSA’s minimum wage and maximum
hour requirements, inter alia, employees employed “in the capacity of outside
salesman (as such terms are defined and delimited.
by regulations of the Secretary
and 29 U.S.C. § 213(b)(1) exempts from its maximum hour requirements “any
.)“
employee with respect to whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to the provisions of sections
31502 of Title 49.”
12

.

.

N.J. Admin. Code § 12:56-7.1 provides: “Any individual employed in a bona fide
executive, administrative, professional or outside sales capacity shall be exempt from
the overtime requirements of N.J.A.C. 12:56—6.1.” N.J. Admin. Code § 12.56-7.2,
which defines and delimits these exemptions, adopts by reference 29 CFR Part 541, a
provision of the FLSA that sets forth the requirements for exemptions. “Drivers who
deliver products and also sell such products” are included among exempt employees,
29 C.F.R. § 54 1.504(a) (cf (Compl. ¶j 33 (“Named Plaintiffs’ primary duties are driving
delivery trucks along established routes and delivering and stocking Defendant
Bimbo’s products at national chain, local chain, and independent retailers.”)), but the
regulations also list “[s]everal factors [thatj should be considered in determining if a
driver has a primary duty of making sales. . . ,“ 29 C.F.R. § 54 1.504(b).
22

compensate fully Route Salespersons under federal
and state overtime pay laws because of their job duties
as outside salespersons and because the U.S.
Secretary of Transportation has the power to regulate
the Route Salespersons in the performance of their
duties.
(CBA Art. 27(i)(1)).
The RSRs respond that whether they fall within the cited overtime
exemptions depends on the duties they actually perform—not the CBA’s
characterization of those duties. (Opp. 7) Additionally, they cite 29 C.F.R.
541.4, a regulation which provides that “[t]he Fair Labor Standards Act
provides minimum standards that may be exceeded, but cannot be waived or
reduced.” I am not convinced that this particular provision disposes of the
defendants’ exemption argument.
I am persuaded, however, by another regulation, which defines and
delimits certain jobs that are exempt from the FLSA’s overtime guarantee, and
which is incorporated by reference in the NJWHL for the same purpose: “A job
title alone is insufficient to establish the exempt status of an employee. The
exempt or nonexempt status of any particular employee must be determined on
the basis of whether the employee’s salary and duties meet the requirements of
the regulations in this part.” 29 C.F.R.

§ 541.2. See also n. 12, supra. I read this

provision as supporting the RSRs’ position that Article 27(i)(1) of the CBA,

supra, is not enough to exempt the RSRs from the explicit overtime guarantees
of the FLSA and NJWHL. The application of those provisions and the
exemptions from them will depend on the RSRs’ salaries and duties. The
defendants do not argue that the CBA defines the RSRs’ duties. And even if the
CBA purported to do so, I think the RSRs’ duties would still be defined largely
by their actual on-the-job conduct.
Given the fact-bound question of job duties, as well as the extensive
regulatory scheme defining and delimiting the scope of exemptions, I think the
plaintiff has presented a merits issue that is not preempted, and that the issue

23

is not appropriate for resolution on the current record (let alone on a Rule
12(b) (6) standard).
As the Third Circuit explained in Dooley u. CPR Restoration & Cleaning
Servs. LLC, addressing the defendant’s motion for summary judgment,
“Congress did not define the term ‘outside salesman,’
but it delegated authority to the DOL to issue
regulations ‘from time to time’ to ‘defin[e] and delimi[tj’
the term.” Christopher v. SmithKline Beecham Corp.,
, 132 S. Ct. 2156, 2162, 183 L.Ed.2d 153
—U.S.
(2012) (all alterations in original). Pursuant to this
authority, the DOL classifies a worker as “employed in
the capacity of outside salesman” if, in relevant part,
(1) the employee’s primary duty is “obtaining orders or
contacts for services,” and (2) the employee is
“customarily and regularly engaged away from the
employer’s place or places of business in performing
such primary duty.” 29 C.F.R. § 54 1.500(a).
—

The term “primary duty” is defined in the regulations
as “the principal, main, major or most important duty
that the employee performs.” 29 C.F.R. § 54 1.700(a).
“Determination of an employee’s primary duty must be
based on all the facts in a particular case, with the
major emphasis on the character of the employee’s job
as a whole.” Id. The employee’s “job title alone is
insufficient to establish the exempt status of an
employee.” 29 C.F.R. § 541.2. Rather, an employee’s
status “must be determined on the basis of whether
the employee’s salary and duties meet the
requirements” for exemption. Id.
591 F. App’x 74, 76 (3d Cir. 2014) (emphasis added; applying Rule 56
standard). See also Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d 428, 452
(D.N.J. 2011) (holding on a Rule 12(b)(6) motion to dismiss that court could not
determine whether the plaintiffs were exempt as outside sales employees from
FLSA wage requirements, because plaintiff’s primary duty was not apparent
from the face of the CBA, and the other fact-based factors needed to be
assessed);Monroe Firefighters Ass’n v. City of Monroe, 600 F. Supp. 2d 790, 794
(W.D. La. 2009) (on motion for partial summary judgment, holding that “[t]he
decision whether an employee is exempt from the FLSA’s overtime

24

compensation provisions under 29 U.S.C.
fact

.

.

.

§ 213(a)(1), is primarily a question of

However, the ultimate decision whether the employee is exempt from

the FLSA’s overtime compensation provisions is a question of law.”) (quoting
Lott v. Howard Wilson Chrysler—Plymouth, Inc., 203 F.3d 326, 330—3 1 (5th Cir.
2000)).
Therefore, I will deny the motion to dismiss to the extent it is based on
defendants’ affirmative defense that plaintiffs are exempt from the overtime
guarantees they seek to enforce. Whether the plaintiffs fall within an exemption
must be determined by the facts brought out through ordinary discovery. I hold
further that the issue of exemption does not turn on my interpretation of the
CBA and that the plaintiffs’ claims are not preempted or precluded by the
3
LMRA.’
D. Whether The RSRs Have Stated NJWHL and FLSA Claims for
Overtime Wages
BBUSA asks me in the alternative to apply Fed. R. Civ. P. 12(b)(6),
although it does not explicitly argue that the RSRs have failed to state NJWHL
or FLSA claims. Nevertheless, for the avoidance of doubt, I will briefly state that
I am satisfied that the RSRs have stated NJWHL and FLSA claims for overtime
wages. As discussed, under both statutes, what the RSRs must plead is
straightforward: that BBUSA has failed to pay the plaintiffs overtime wages
that they are owed and that the statutes recognize the plaintiffs as covered
employees. See n.4, supra; see also Lundy v. Catholic Health Sys. of Long Island
Inc., 711 F.3d 106, 114 (2d Cir. 2013) (Concluding that to state a plausible
FLSA claim for overtime wages, plaintiffs “must allege sufficient factual matter
to state a plausible claim that they worked compensable overtime in a
workweek longer than 40 hours,” and “some uncompensated time in excess of
the 40 hours”). The RSRs have adequately alleged NJWHL and FLSA claims for
13
In anticipation of a possible ruling that their claims are preempted, the RSRs
argue that the grievance and arbitration provisions of their CBA are unenforceable.
(Opp. 11—13) Because I find that the RSRs’ claims are not preempted and therefore,
the RSRs have standing to bring this action in this federal forum and need not
exhaust the grievance and arbitration procedures, I do not reach this argument.

25

overtime wages. (See Compi. ¶j 33—34, 38—39, 45, 48, 50—51, 57—58, 6 1—73)
And, as established in the preceding section, resolution of BBUSA’s exemptionbased affirmative defense is not appropriate for a motion to dismiss brought
under Rule 12(b)(6). See Snyder, supra.
IV.

CONCLUSION
For the reasons stated above, I am satisfied that this Court has subject

matter jurisdiction to hear these claims under the NJWHL and FLSA, which are
not preempted, and that the complaint states a claim. Accordingly, BBUSA’s
motion to dismiss will be denied.
Dated: May 17, 2017

KEVIN MCNULTY
United States District Judge

26