BRIAN TREMATORE PLUMBING & HEATING, INC. v. INTERNATIONAL SHEET METAL WORKERS INTERNATIONAL ASSOCIATION. LOCAL UNION NO. 25
OPINION and ORDER denying 5 defendants motion to dismiss, etc. Signed by Judge John Michael Vazquez on 11/17/2021. (lag, )
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Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRIAN TREMATORE PLUMBING & HEATING
Civil Action No. 21-5285
OPINION & ORDER
INTERNATIONAL SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION, LOCAL
UNION NO. 25,
John Michael Vazquez, U.S.D.J.
In this matter, Plaintiff Brian Trematore Plumbing & Heating Inc. (“Trematore”) seeks a
declaration that it is no longer bound by a collective bargaining agreement with Defendant Sheet
Metal Workers Local Union 25 (“Local 25”). Presently before the Court is Defendant’s amended
motion to dismiss the Verified Complaint (“Compl.”) for lack of subject-matter jurisdiction. D.E.
5. The Court reviewed the parties’ submissions 1 and decided the motion without oral argument
pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below,
Defendant’s motion to dismiss is DENIED.
Plaintiff Trematore is a New Jersey corporation in the plumbing construction industry.
Compl. ¶ 1. Defendant Local 25 is a labor organization within the meaning of Section 2(5) of the
The submissions consist of Defendant’s brief in support of its motion to dismiss, D.E. 5-1 (“Br.”);
Plaintiff’s opposition brief, D.E. 8 (“Opp.”); and Defendant’s reply brief, D.E. 9.
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NLRA, 29 U.S.C. § 152(5), headquartered in New Jersey. Id. ¶¶ 4-5. On or about April 11, 2017,
as part of the settlement of an unfair labor practice charge against Trematore, Plaintiff and
Defendant entered into a collective bargaining agreement (the “2015/2018 CBA”), the terms of
which expired on May 31, 2018. Id. ¶¶ 14-16; D.E. 1-1 at 94. The 2015/2018 CBA contains a
clause stating that the 2015/2018 CBA “shall continue in force from year to year [after May 31,
2018] unless written notice of reopening is given not less than ninety (90) days prior to the
expiration date.” Id. The parties refer to this clause as the “Evergreen Provision,” Compl ¶¶ 2122, or the “Evergreen Clause,” Br. at 4.
On May 9, 2019, Local 25 sent Trematore a copy of the successor CBA (the “2018/2021
CBA”). Compl. ¶ 19. Trematore’s counsel subsequently informed Local 25’s counsel that
Trematore would not be signing the 2018/2021 CBA. 2 Id. ¶ 20. Local 25’s counsel then responded
that Trematore was bound by the 2018/2021 CBA even though he had not signed it because the
2015/2018 CBA contained the Evergreen Provision. Id. ¶ 21. On or about February 16, 2021,
Trematore was served with a grievance by Local 25 alleging violations of the 2018/2021 CBA.
Id. ¶ 25. Trematore responded that he was not bound by the 2018/2021 CBA. Id. ¶ 30.
On March 15, 2021, Plaintiff commenced this action seeking a declaration that the CBA
with Defendant had been effectively terminated. Compl. ¶ 45. Plaintiff also seeks to enjoin
Defendant from proceeding with grievance and arbitration proceedings and from forcing Plaintiff
to negotiate a successor CBA. Id. ¶ 54. Plaintiff alleges that he repudiated the 2018/2021 CBA
and is not bound by its terms because he has not engaged in the HVAC construction business for
over two and a half years, has not employed any Local 25 members during this time, and has no
According to Defendant, Trematore signed a new CBA on May 23, 2018 but omitted this fact
from the Complaint. Br. at 4.
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intent to re-engage in this business in the future. Id. ¶¶ 36-37, 43-44. Subsequently, before it was
served with the Verified Complaint, Local 25 filed an unfair labor practice charge with the NLRB
alleging that Trematore had violated Section 8 of the NLRA. Br. at 7; D.E. 5-7. The current
motion followed. D.E. 5.
Defendant argues that the Verified Complaint should be dismissed pursuant to Fed. R. Civ.
P. 12(b)(1) for lack of subject-matter jurisdiction. Pursuant to Fed. R. Civ. P. 12(h)(3), a complaint
must be dismissed whenever a court determines that it lacks subject-matter jurisdiction. Iwanowa
v. Ford Motor Co., 67 F. Supp. 2d 424, 437 (D.N.J. 1999). To decide a Rule 12(b)(1) motion, a
court must first determine whether the party presents a facial or factual attack against a complaint.
A facial attack contests “subject matter jurisdiction without disputing the facts alleged in the
complaint, and it requires the court to ‘consider the allegations of the complaint as true.’” Davis
v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v. Gannon Univ., 462 F.3d
294, 302 n.3 (3d Cir. 2006)). A factual attack challenges “the factual allegations underlying the
complaint’s assertion of jurisdiction, either through the filing of an answer or ‘otherwise presenting
competing facts.’” Id. at 346 (quoting Constitution Party v. Aichele, 757 F.3d 347, 358 (3d Cir.
2014)). “When a factual challenge is made, the plaintiff will have the burden of proof that
jurisdiction does in fact exist, and the court is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Id. (internal citations omitted).
Here, Defendant challenges the veracity of allegations made in the Verified Complaint and
additionally submits documentation in support of its jurisdictional arguments. See, e.g., Br. at 3,
5; D.E. 5-3. Thus, Defendant mounts a factual attack, and this Court may consider the evidence
submitted in support of the motion.
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Defendant first argues that Section 301 of the National Labor Relations Act, 29 U.S.C. §
185, does not provide the Court with subject-matter jurisdiction. Br. at 8. “Section 301 ‘confers
jurisdiction on a district court to determine the existence of a collective bargaining agreement.’”
Util. Workers United Ass’n, Loc. 537 by Booth v. Pennsylvania Am. Water Co., 838 F. App’x 686,
688 (3d Cir. 2020) (quoting Mack Trucks, Inc. v. Int’l Union, UAW, 856 F.2d 579, 590 (3d Cir.
1988)). Section 301 “specifically encompasses actions in which ‘a declaratory judgment plaintiff
accused of violating a collective-bargaining agreement ... ask[s] a court to declare the agreement
invalid.’” Stanker & Galetto, Inc. v. New Jersey Reg'l Council of Carpenters of United Bhd. of
Carpenters & Joiners of Am., No. Civ. 12-5447 (RBK/KMW), 2013 WL 4596947, at *2 (D.N.J.
Aug. 28, 2013) (quoting Textron Lycoming Reciprocating Engine Div., Avco Corp. v. United
Automobile, Aerospace, Agricultural Implement Workers of America, Int'l Union, 523 U.S. 653,
Here, Local 25 alleged that Trematore violated the 2018/2021 CBA, Compl. ¶¶ 25-26, D.E.
5-7, and Trematore now seeks a declaratory judgment that this CBA has been effectively
terminated so that he is no longer bound by it, Compl. ¶ 45. As in Stanker & Galetto, “this is
exactly the type of action contemplated by the Textron Court over which a federal court may
properly exercise subject matter jurisdiction.” 2013 WL 4596947, at *2. Thus, the Court has
jurisdiction over Plaintiff’s claims pursuant to Section 301.
Defendant further contends that even if Section 301 confers subject-matter jurisdiction, the
Court “must nevertheless yield to the NLRB’s primary jurisdiction” because Plaintiff’s claim is
governed by NLRB decisions and Local 25’s unfair labor practice charge is currently pending
before the NLRB. Br. at 9. Under the primary jurisdiction rationale, “state and federal courts must
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defer to the primary jurisdiction of the NLRB if a matter is arguably subject to section 7 or section
8 of the National Labor Relations Act.” Mack Trucks, 856 F.2d at 590; see also Sears, Roebuck
& Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 202 (1978). However,
the Third Circuit has made clear that “[t]he NLRB's primary jurisdiction does not preempt a court's
jurisdiction over § 301 actions, even if the matter is arguably subject to § 7 or § 8 of the NLRA.”
Mack Trucks, 856 F.2d at 590. “Thus, a district court retains independent jurisdiction to decide a
case properly brought under § 301, even if the claim may also constitute an unfair labor practice
under the NLRA.” Id.
Other circuits have determined that even when Section 301 confers concurrent jurisdiction
upon the NLRB and federal courts, district courts can only exercise jurisdiction over claims that
are primarily contractual rather than primarily representational. 3 At least one court within the
Third Circuit has applied this “primarily representational or primarily contractual” test to
See, e.g., Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1156 (9th Cir. 2000) (“[An] end
run around [the NLRA] ... under the guise of contract interpretation ... cannot be countenanced,
and we have drawn the jurisdictional line by asking whether the major issues to be decided ... can
be characterized as primarily representational or primarily contractual.” (internal quotation marks
and citations omitted) (ellipses in original)); Paper, Allied–Indus., Chem. & Energy Workers Int’l
Union v. Air Prods. & Chems., Inc., 300 F.3d 667, 675 (6th Cir. 2002) (“[S]imply referring to the
claim as a ‘breach of contract’ [is] insufficient for purposes of § 301 federal courts’ jurisdiction”;
instead the test is whether a claim is “primarily representational”); United Food & Commercial
Workers Union, Local 400 v. Shoppers Food Warehouse Corp., 35 F.3d 958, 961 (4th Cir. 1994)
(finding that a court is without jurisdiction if “a dispute is so primarily representational, that it falls
solely within the Board's jurisdiction” (internal quotation marks omitted)); Copps Food Ctr., Inc.
v. United Food & Commercial Workers Union, Local 73-A, No. 90-1905, 1991 WL 135508, at *2
(7th Cir. 1991) (“In answering the question of whether the federal court has jurisdiction to hear a
contract-based dispute between a union and an employer, the court generally has to employ a
difficult process of determining whether a particular dispute is primarily contractual—hence suited
for § 301 federal court jurisdiction—or representational, requiring preliminary NLRB
determination of the matter.”); Local Union 204, Int’l Bhd. of Elec. Workers v. Iowa Elec. Light
& Power Co., 668 F.2d 413, 419 (8th Cir. 1982) (“[T]he appropriate line between those cases
where the district court has jurisdiction under section 301 and those in which it does not is to be
determined by examining the major issues to be decided as to whether they can be characterized
as primarily representational or primarily contractual.”).
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determine whether its jurisdiction was preempted by the NLRB’s primary jurisdiction. See Joseph
W. Davis, Inc. v. Int’l Union of Operating Engineers, Loc. 542, 636 F. Supp. 2d 403, 415-16 (E.D.
Pa. 2008). However, the Court is not aware of any Third Circuit decisions adopting this test. Thus,
the Court applies the Third Circuit standard set forth in Mack Trucks.
Here, Defendant argues that the resolution of Plaintiff’s claims requires interpretation of
Sections 7, 8, and 9 of the NLRA and thus the Court should yield to the NLRB’s primary
jurisdiction. Br. at 10-11. Plaintiff counters that federal courts have jurisdiction over suits arising
under collective bargaining agreements even if the conduct at issue is arguably subject to the
provisions of the NLRA. Opp. at 14. The court in Healthcare Res. Corp. v. Dist. 1199C, Nat.
Union of Hosp. & Health Care Emps., AFSCME, AFL-CIO, 878 F. Supp. 732 (E.D. Pa. 1995)
considered a factually analogous situation. There, the defendant filed unfair labor practice charges
against the plaintiff with the NLRB. Id. at 734. Subsequently, the plaintiff filed an action in
district court seeking a declaration that the collective bargaining agreement between the parties
was invalid. Id. The defendant argued that the court was required to defer to the primary
jurisdiction of the NLRB, and the plaintiff countered that the court could properly consider the
issues brought pursuant to Section 301. Id. The court rejected the defendant’s jurisdictional
argument, holding that in light of the “clear precedent” set by Mack Trucks, it could “properly
examine the issue of the validity of the collective bargaining agreement pursuant to [its] section
301(a) jurisdiction.” Id.
Similarly, here, Plaintiff has been accused of engaging in unfair labor practices and seeks
a declaration that the operative collective bargaining agreement with Defendant is no longer
binding. Even if Defendant is correct that the resolution of Plaintiff’s claim implicates the NLRA,
and despite the pending unfair labor practices charge before the NLRB, “[t]he NLRB's primary
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jurisdiction does not preempt a court’s jurisdiction over § 301 actions.” Mack Trucks, 856 F.2d at
590. Thus, the Court finds that it has subject-matter jurisdiction over this matter.
For the foregoing reasons, and for good cause shown,
IT IS on this 17th day of November 2021 hereby
ORDERED that Defendant’s amended motion to dismiss, D.E. 5, is DENIED.
_ _ _
John Michael Vazquez, U.S.D.J.
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