NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0886-13T1

SALVATORE PUGLIA,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. October 10, 2014

ELK PIPELINE, INC., ELK APPELLATE DIVISION PIPELINE, INC. t/a and/or d/b/a CROWN PIPELINE CONSTRUCTION COMPANY, CROWN PIPELINE CONSTRUCTION COMPANY, THOMAS MECOUCH, individually and as the corporate alter ego,

Defendants-Respondents. _______________________________

Argued July 16, 2014 - Decided October 10, 2014

Before Judges Messano,1 Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1046-11.

Deborah L. Mains argued the cause for appellant (Costello & Mains, P.C., attorneys; Ms. Mains, on the brief).

Douglas Diaz argued the cause for respondents (Archer & Greiner, P.C., attorneys; Mr. Diaz and Tracy Asper Wolak, on the brief).

1 Judge Messano did not participate in oral argument. He joins the opinion with counsel's consent. R. 2:13-2(b). The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Plaintiff Salvatore Puglia appeals from the Law Division's

grant of summary judgment, dismissing his complaint alleging his

former employer, defendants Elk Pipeline, Inc. (Elk) and Elk's

President Thomas Mecouch (collectively defendants) retaliated

against him for reporting Elk's alleged violations of the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1

to -14. Plaintiff maintained Elk failed to properly pay

overtime and remuneration at an applicable rate which violated

the New Jersey Prevailing Wage Act (PWA), N.J.S.A. 34:11-56.25

to -56.47, and his complaints resulted in his lay-off despite

his level of seniority. The Law Division rejected plaintiff's

claims as cognizable under CEPA, instead finding they were based

on an interpretation of the parties' collective bargaining

agreement (CBA), and redress was governed by federal law. We

agree and affirm.

I.

We recite the facts found in the summary judgment record

viewed in a light most favorable to plaintiff. Brill v.

Guardian Life Ins. Co. of Am.,

(1995).

Plaintiff was employed by Elk as a laborer from October 2, 2006

to December 16, 2010. During that time, plaintiff was assigned

2 A-0886-13T1 to work on a sewer reconstruction project located in the City of

Camden (the project). It is undisputed that the project was a

public works project as defined in the PWA.

As a member of the International Association of Machinists

and Aerospace Workers, AFL-CIO, Local Lodge S-76, plaintiff's

employment was subject to a CBA, negotiated between Elk and the

union. The CBA was effective from June 28, 2004 to February 15,

2010, but remained binding "thereafter from year to year unless

either party" gave notice prior to the expiration date of an

"intention to modify or terminate the agreement."

In January 2010, plaintiff noticed his hourly rate of pay

was reduced from what he had previously received. He believed

the rate of pay was less than the prevailing wage to which he

was entitled. Plaintiff and another laborer, Robert Barrette,

immediately challenged the reduced rate of pay by complaining to

their supervisor, Eric Larsen, who referred them to Michael

Tedesco, Elk's project manager.

Plaintiff and Barrette next complained to Tedesco about the

pay cut. Tedesco stated Mecouch directed several laborers be

paid at the apprenticeship level. Tedesco explained he

objected, telling Mecouch Elk had no approved apprenticeship

program for the project. Mecouch did not change his position.

3 A-0886-13T1 Therefore, Tedesco recommended plaintiff speak directly to

Mecouch, which he did in late January 2010.

In summer 2010, after his pay rate was not restored,

plaintiff formally filed a complaint with the New Jersey

Department of Labor. About this time, plaintiff contends

Mecouch, through Tedesco, instructed him and other employees to

"lie to state inspectors" if asked about their rate of pay.

Plaintiff then discussed the problem with Jim Takacs, the

resident engineer on the project. Takacs's role was "to enforce

the Davis-Bacon rates on the Camden [p]ublic [w]ork sites for

the Camden Sewer Reconstruction Project[.]"2 Takacs reviewed

Elk's certified payroll records and determined certain laborers

were not properly compensated, noting specifically there was no

approved apprenticeship program, making use of that pay rate

inappropriate.

Takacs told Tedesco that Elk must rectify its payroll

discrepancies. He specifically identified plaintiff as one

laborer whose pay rate was incorrect. In reference to

plaintiff, Takacs recalled Tedesco stating something "off the

2 The Davis-Bacon Act, originally 40 U.S.C.A. § 276A, and recodified as

, addresses federal wage rates for laborers and mechanics employees on federal public works projects. The statute requires contractors to pay the prevailing wage rate on public-bidding projects. New Jersey has adopted its own prevailing wage legislation, found at N.J.S.A. 34:11- 56.27.

4 A-0886-13T1 record" like "the owner wanted to f[---] with him and wants to

get rid of him."

Thereafter, plaintiff and the other laborers' pay rates

were restored to the prevailing wage rate. However, plaintiff

maintained he did not receive all back pay he was due. During

this time, Mecouch told him, "look, I was going to fire you,

you're just not working out, but I'm going to give you a second

chance." Plaintiff also spoke to Tedesco regarding his

entitlement to additional back pay, but was told, "be quiet and

keep your job or be laid off."

On December 16, 2010, plaintiff's employment on the project

ended. Mecouch explained to plaintiff he was being laid off as

the project neared completion and was being reassigned.

Plaintiff never reported to his newly-assigned location.

On January 13, 2011, plaintiff filed his complaint alleging

violations of the PWA, CEPA, along with individual liability

claims against Mecouch under CEPA, and equitable relief. The

parties settled the PWA claim.

After discovery, defendants moved for summary judgment

dismissal of the remaining claims. Judge Jean B. McMaster

concluded plaintiff's CEPA claim was actually a wage claim

preempted by section 301(a) of the Labor Management Relations

Act of 1947 (LMRA),

(a), and the National Labor

5 A-0886-13T1 Relations Act of 1935 (NLRA),

.

Plaintiff, arguing this was error, appeals from the grant of

summary judgment and dismissal of his complaint.

II.

Our review of summary judgment dismissal is de novo, Dep't

of Envt'l Prot. v. Kafil,

(App. Div.

2007), according no special deference to a judge's determination

as a decision to grant or deny summary judgment does not hinge

upon credibility of testimony or determinations of fact, but

instead, amounts to a ruling on a question of law. See

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

(1995) (noting that no "special deference" applies to a

trial court's legal conclusions).

Employing the same standards used by the motion judge under

Rule 4:46, Murray v. Plainfield Rescue Squad,

(2012), our review examines whether, affording the non-moving

party the benefit of all reasonable inferences, the movant has

demonstrated there were no genuine disputes as to material

facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co.,

(App. Div.), certif. denied,

(2006). If no genuine dispute exists, we then decide whether

the motion judge's application of law was correct.

.

Our role is not to resolve contested factual issues, but to

6 A-0886-13T1 determine whether a genuine factual dispute exists. Agurto v.

Guhr,

(App. Div. 2005). See also

Gormley v. Wood-El,

(2014) (quoting R. 4:46-2(c)

("A court should grant summary judgment only when the record

reveals 'no genuine issue as to any material fact' and 'the

moving party is entitled to a judgment or order as a matter of

law.'")). If the court finds materially disputed facts, the

motion for summary judgment must be denied.

; see, e.g., Parks v. Rogers,

(2003). Summary judgment dismissal may be granted only when the

evidence is found to be "'so one-sided that one party must

prevail as a matter of law[.]'"

(quoting Anderson v. Liberty Lobby, Inc.,

,

,

(1986)).

On appeal, plaintiff argues the motion judge erroneously

concluded federal law preempted his CEPA claim. To successfully

prove a claim under CEPA, plaintiff must demonstrate:

(1) that he . . . reasonably believed that his . . . employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he . . . performed whistle-blowing activity described in N.J.S.A. 34:19-3a, c(1) or c(2); (3) an adverse employment action was taken against him . . . ; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action.

7 A-0886-13T1 [Mosley v. Femina Fashions, Inc.

(App. Div. 2002), certif. denied,

(2003).]

Plaintiff asserts he suffered unlawful retaliation based on

N.J.S.A. 34:19-3, which prohibits retaliatory conduct for

disclosing unlawful activities. CEPA prohibits such conduct

stating in pertinent part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer . . . that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ; or

(2) is fraudulent or criminal . . . ;

b. . . .; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation . . . ; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

8 A-0886-13T1 [N.J.S.A. 34:19-3.]

The trial judge rejected plaintiff's complaint as framed,

instead finding the substance of plaintiff's claims regarding

matters preempted by federal law. The doctrine of preemption is

based on the Supremacy Clause, which mandates "[t]he Federal

Constitution and federal laws are 'the supreme Law of the Land'

and 'Judges in every State [are] bound thereby; any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.'" Chamber of Commerce v. State,

(1982) (quoting U.S. Const., Art. VI, cl. 2). Therefore,

where Congress intends to regulate an area or subject matter,

all state legislation frustrating that objective is displaced as

constitutionally subordinate. See Malone v. White Motor Corp.,

,

,

(1978) (quoting Retail Clerks Int'l Assoc., Local 1625, AFL-CIO

v. Schermerhorn,

,

,

(1963) ("The purpose of Congress is the ultimate

touchstone")).

"Preemption analysis begins with identifying the subject

matter of the state law and determining whether . . . federal

law [operates] in that field."

at 142 (citing Hines v.

Davidowitz,

,

,

(1941)). A state law, which conflicts with federal

9 A-0886-13T1 legislation governing the same area, must yield to and is

preempted by the federal authority, thus, eliminating

inconsistent state policies.

The question examined is

whether Congress intended to preempt the subject matter which is

addressed in the state legislation. Int'l Longshoremen's Ass'n

v. Waterfront Comm'n,

(1981).

"In the labor-management field, Congress has not expressly

provided for exclusive federal jurisdiction." Chamber of

Commerce, supra,

(footnote omitted).

Nevertheless, Congress has exercised extensive authority as the

regulator of national labor policy and labor relations. Two such

provisions — section 301(a) of the LMRA and section 7 of the

NLRA — are cited by defendants as preempting plaintiff's alleged

state law claims.

First, section 301(a) of the LMRA, states, in part:

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.

[

(a).]

"[Section] 301 requires the creation of uniform federal labor

law to ensure uniform interpretation of collective bargaining

10 A-0886-13T1 agreements[.]" Snyder v. Dietz & Watson, Inc.,

(D.N.J. 2011).

Made clear by the Supreme Court of the United States

(SCOTUS) in Textile Workers Union of America v. Lincoln Mills,

,

,

(1957),

"[section 301(a)] is not merely jurisdictional, but . . . also

. . . 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. GMC,

(3d Cir. 1999). "[S]tate laws

that might produce differing interpretations of the parties'

obligations under a collective bargaining agreement are

preempted."

Accordingly, "[w]hen 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,

that claim must either be treated as a [section] 301 claim or

dismissed as [preempted.]" Allis-Chalmers Corp. v. Lueck,

,

,

(1985) (internal citation omitted). SCOTUS has stressed that

the mere characterization of a claim as one "sounding in tort

rather than contract [does] not bar the operation of [section]

301 preemption and reasoned that preemption of the employee's

claim was necessary in order to avoid 'allowing parties to evade

11 A-0886-13T1 the requirements of [section] 301 by relabeling their contract

claims as claims for tortious breach of contract.'"

(quoting

,

,

).

Federal labor law also forbids state action focused on the

enforcement of collective bargaining agreements, because section

7 of the NLRA, grants employees "the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively . . . , and to engage in other concerted activities

for the purpose of collective bargaining or other mutual aid or

protection."

. Further, section 8 of the NLRA

prohibits acts constituting an unfair labor practice.3 George

Harms Constr. Co. v. N.J. Tpk. Auth.,

(1994).

Concisely, these provisions mandate that when examination

focuses on whether the alleged state law claims require

interpretation of the terms within the CBA, preemption applies.

This requirement, that terms set forth in a CBA must be

determined by federal law, avoids conflict as "[t]he possibility

that individual contract terms might have different meanings

under state and federal law would inevitably exert a disruptive

influence upon both the negotiation and administration of

3 This is commonly known as the "Garmon pre-emption" as set forth in San Diego Building Trades Council v. Garmon,

,

,

(1959).

12 A-0886-13T1 collective agreements." Teamsters v. Lucas Flour Co.,

,

,

(1962). Were

a different result allowed, "the process of negotiating an

agreement would be made immeasurably more difficult by the

necessity of trying to formulate contract provisions in such a

way as to contain the same meaning under two or more systems of

law which might someday be invoked in enforcing the contract."

Preemption assures the purposes driving federal law

will be frustrated neither by state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," nor by parties' efforts to renege on their arbitration promises by "relabeling" as tort suits actions simply alleging breaches of duties assumed in collective bargaining agreements[.]

[Livadas v. Bradshaw,

,

(1994),

(internal citations omitted).]

However, we do not read the provisions of the LMRA and NLRA

so broadly as "to [preempt] nonnegotiable rights conferred on

individual employees as a matter of state law[.]"

,

,

.

[I]t is the legal character of a claim, as "independent" of rights under the collective bargaining agreement (and not whether a grievance arising from precisely the same set of facts could be pursued) that decides whether a state cause of action may go forward.

13 A-0886-13T1 [Ibid. (internal citation and quotation marks omitted).]

"[W]hen the meaning of contract terms is not the subject of

dispute, the bare fact that a [CBA] will be consulted in the

course of [state law] litigation plainly does not require the

claim to be extinguished[.]"

(citing Lingle v. Norge

Div. of Magic Chef,

, 413 n. 12,

,

(1988) ("A collective bargaining

agreement may, of course, contain information such as rate of

pay . . . that might be helpful in determining the damages to

which a worker prevailing in a state-law suit is entitled")).

Finally, if a plaintiff's claim implicates both federal and

state law such that "evaluation of the tort claim is

inextricably intertwined with consideration of the terms of the

labor contract," the state claim is preempted. Allis-Chambers

Corp., supra,

,

,

. It is only when resolution of the state law claim does

not require interpretation of the CBA that preemption is

inapplicable. Labree v. Mobil Oil Corp.,

(App. Div. 1997) (citing Leonardis v. Burns Int'l Sec.

Servs. Inc.

(D.N.J. 1992)).

In light of these principles we examine plaintiff's claimed

causes of action. In his complaint, plaintiff avers he

14 A-0886-13T1 seeks unpaid overtime compensation, the difference between actual wages paid and wages due pursuant to the PWA on public works jobs and seeks to remedy a retaliatory discharge which occurred after he made a good faith complaint of wage violations to his employer and after he disclosed wage violations to a state inspector.

The complaint further alleges plaintiff worked more hours than

he was compensated for, "was entitled to a larger differential"

than the sum actually remitted based on his proper rate of pay,

and maintains his employment ended when he was "'laid off' . . .

despite the fact he had more seniority with the company than

other employees who were not laid off and who remained employed

. . . ." Specifically as to this last issue, plaintiff argues

his seniority status should have allowed him to continue to

work, but instead, Elk ended his employment in retaliation for

his whistle-blower activities.

Provisions within the CBA address the subject of employee

wages, pay rates, overtime, and seniority. Specifically,

Article V, entitled "Wage Rate," includes the hourly rates and

classifications for all employees covered by the agreement and

Articles VI and VII address the "regular hour[s] of work and the

determination and rate of computation of overtime pay." In

addition to discussing compensation for weekends and holidays,

these sections discuss various scenarios requiring

differentiated compensation. Most apt to the asserted

15 A-0886-13T1 retaliation claim, however, is Article VIII, which governs

seniority and lay-offs. This clause defines seniority for

purposes of layoffs weighing not just objective factors, such as

length of service, but also by considering subjective factors to

determine who retains employment based upon seniority.

Specifically, Article VIII provides:

The Company agrees to base the seniority of employees on length of service. Length of Service is based on actual time spent with the Company. In all cases of promotion, demotion, lay-off, recalls and bumping, the following factors shall be considered,

1. Employee's classification.

2. Knowledge, ability, skill and efficiency, to perform the available work.

3. Qualifying tests, certification, and license.

When all factors are relatively equal, the length of continuous service shall govern.

Contrary to plaintiff's suggestion, Elk's assessment of his

seniority status, as compared to that of his colleagues who

continued working, can only be reviewed by an analysis of the

CBA's factors. Plaintiff's attempt to limit review exclusively

to whether he engaged in protected whistle-blower activities for

which he was laid off ignores that the project neared completion

causing Elk to trim labor based upon seniority, a defined term

of art under the CBA. Thus, this issue cannot be evaluated

16 A-0886-13T1 absent review, consideration, and interpretation of the CBA and

its terms.

Plaintiff, himself, confirmed this reality during his

deposition. When asked why he contacted his union

representative after his layoff, plaintiff explained "I had more

seniority than everybody on the job except for the operator, so

I should have been the last one to leave and that's a union

matter." This statement exposes plaintiff's reliance on his

rights as provided by the CBA and betrays his attempt to rebrand

the contract contention into a CEPA claim. We determine

plaintiff has injected a right created by his CBA, thereby

pleading what can only "be regarded as a federal claim."

.

We also find plaintiff's contention that his complaint does

not allege a breach of the CBA terms or even implicate the

agreement is belied by the facts. By maintaining he was wrongly

laid off and should have continued working because he had

seniority, plaintiff inherently invokes interpretation of the

CBA. Thus, preemption applies. See

(holding section 301 does not apply solely to contract

violations but extends to tort action if their resolution

depends upon "the meaning of a phrase or term in a collective

bargaining agreement"). As SCOTUS noted in Livadas, federal

17 A-0886-13T1 preemption under section 301 will not be thwarted by "parties'

efforts to renege on their arbitration promises by 'relabeling'

as tort suits actions simply alleging breaches of duties assumed

in collective bargaining agreements."

,

,

.

Following our review, we cannot accede to plaintiff's

request to allow the CEPA claim to proceed. Judge McMaster

fully analyzed the facts and law applicable to this issue, and

properly determined plaintiff's complaint contained allegations

inextricably intertwined with his rights delineated in the CBA.

Therefore, the claims were properly held preempted by federal

law.

Defendant additionally asserts plaintiff's claims are

preempted by SCOTUS's holding in

,

,

, which considered sections

7 and 8 of the NLRA. Plaintiff disagrees, maintaining his

claims are premised on whether he was retaliated against for

complaining about wage deductions, and not for engaging in

"concerted activity" under the NLRA.

As we noted, section 7 states:

Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective

18 A-0886-13T1 bargaining or other mutual aid or protection.

[

.]

Section 8 prohibits employers from interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed in section 7, or from acting to "discharge or

otherwise discriminate against an employee because he has filed

charges or given testimony under this subsection."

.

In Garmon, SCOTUS instructed "when it is clear or may

fairly be assumed that the activities which a State purports to

regulate are protected by section 7 of the National Labor

Relations Act, or constitute an unfair labor practice under

section 8, due regard for the federal enactment requires that

state jurisdiction must yield."

,

,

. The burden rests with the

party asserting preemption, who "'must [] put forth enough

evidence to enable the court to find that the [National Labor

Relations] Board reasonably could uphold a claim based on such

an interpretation.'"

(quoting

Int'l Longshoremen's Ass'n v. Davis,

,

, L. Ed. 2d 389, 405 (1986)).

[T]here is no suggestion in the legislative history of the [NLRA] that Congress intended to disturb the myriad state laws then in

19 A-0886-13T1 existence that set minimum labor standards, but were unrelated in any way to the processes of bargaining or self- organization. To the contrary, we believe that Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety . . . . States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.

[Metro. Life Ins. Co. v. Mass.,

,

,

(1985), overruled in part by Ky. Ass'n of Health Plans v. Miller,

,

,

(2003) (internal quotation marks omitted).]

Nevertheless, Garmon precludes "state courts from entertaining

tort actions for activities arguably subject to the protections

of [section] 7 or the prohibitions of [section] 8 of the

National Labor Relations Act." Blum v. Int. Assoc. of

Machinists, AFL-CIO,

(1964).

Centering our review of the facts underpinning plaintiff's

allegations, we do not agree the NLRA is inapplicable. An

analysis of plaintiff's retaliatory discharge claim shows it is

not limited to his report of Elk's wrongful payment practices.

The claim does not stand alone and is not unrelated to the CBA.

Rather, it is grounded on a violation of plaintiff's seniority

status, as defined in the CBA, a negotiated provision governing

20 A-0886-13T1 his employment, and thus, invoked provisions of the NLRA,

requiring administrative review by the NLRB.4

Our review concludes plaintiff's claims are preempted by

federal labor laws. Accordingly, plaintiff's complaint was

properly dismissed.

Affirmed.

4 We conclude the record is insufficient to address defendant's assertion plaintiff engaged in a concerted activity as provided in the NLRA.

21 A-0886-13T1