Date: 08-16-2016

Case Style: Salvatore Puglia v. Elk Pipeline, Inc.

Case Number: 075171

Judge: Jaynee LaVecchia

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney:

Deborah L. Mains

Ravi Sattiraju

Defendant's Attorney:

Douglas Diaz

*Tracy Asper Wolak*

John Sarno

Mark Saloman

Description: New Jersey has a significant body of statutory and
decisional law protecting employee rights -- protections that
exist whether the employee is a union member or not. Among
those are wage and hour and whistleblower protections. Facts
that can give rise to a violation of those state-law protections
can often (for union workers) also give rise to a claim based on
a collective bargaining agreement (CBA) or under the National
Labor Relations Act (NLRA). This appeal raises questions
involving federal labor-law preemption and asks whether a state
law whistleblower retaliation claim premised on an employee’s
complaints about wage and hour requirements is preempted based
on that factual overlap.
Specifically, plaintiff Salvatore Puglia filed an action
against his employer under New Jersey’s Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, claiming that
his employment was terminated after he complained about his
employer’s failure to pay him in accord with the Prevailing Wage
Act, N.J.S.A. 34:11-56.25 to -56.47. The trial court held that
the NLRA and the Labor Management Relations Act (LMRA) both
preempted Puglia’s claims. The Appellate Division affirmed that
judgment. We now reverse.
I.
A.
3
Puglia was a laborer for defendant Elk Pipeline, Inc. -- an
underground utility contractor and construction company -- from
2006 through 2010.1 During his employment with Elk, Puglia was a
union member, and a CBA governed the terms of his employment.
Puglia was working on a sewer reconstruction project for
the City of Camden during the last year of his employment with
Elk. Because the Camden project was a public works job, it was
subject to the provisions of New Jersey’s Prevailing Wage Act.
Unexpectedly for Puglia, in January 2010, Puglia’s wage rate was
cut in half, and the new, lower wage reflected Puglia’s supposed
placement in an apprenticeship program.
Other laborers also saw their wage rate reduced. When
Puglia first discovered the drop in pay, he was with another
laborer, Robert Barrette. The two men immediately brought up
the issue with their supervisor, Eric Larsen, asking why their
wages had been halved. According to Puglia, Larsen told them
that they had been placed in a fake apprenticeship program and
that they should talk to the project manager, Mike Tedesco,
about it. After Puglia approached him, Tedesco repeated the
apprenticeship explanation. According to Puglia, however,
1 The facts as recited herein are based on the summary-judgment record. As did the trial court, in our appellate review we view the facts in the light most favorable to the party resisting the motion for summary judgment, here Puglia. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
4
Tedesco admitted that an apprenticeship program did not exist
and that Elk never received approval for such a program.
Puglia and other laborers on the job site talked about the
wage cut, “trying to get to the bottom of everything.” Puglia
continued to complain about his reduced wages, first almost
daily to Larsen and eventually to Elk’s president, Thomas
Mecouch. Mecouch adhered to the apprenticeship explanation,
adding that “[the laborers] were in an apprenticeship program”
and that he could pay only “[ninety] percent of the
apprenticeship rate.” Puglia nonetheless continued to talk with
Tedesco about the issue, and Tedesco referred him to Jim Takacs,
the resident engineer on the project.
As the resident engineer on the project, Takacs’s duties
included enforcing the Davis-Bacon Act, 40 U.S.C.A. §§ 3141
3148. Puglia spoke with Takacs in August, after which Takacs
reviewed Elk’s payroll records and determined that several
employees were not being paid the required wages. Takacs told
Tedesco that Elk needed to resolve the issue and bring the
laborers’ wages up to the prevailing rate. When Takacs raised
the subject of Puglia’s pay specifically, Tedesco told him that
Puglia was in an apprenticeship program. Takacs responded that
there was no approved apprenticeship program in place at the
Camden job. Tedesco allegedly replied, purportedly off the
5
record, that “the owner wanted to [f**k] with [Puglia] and wants
to get rid of him.”
Tedesco then went to Mecouch and advised him that Elk could
pay an apprenticeship rate only if it had a State-approved
program. Elk soon resolved the payroll-rate problem, restoring
the prevailing wage rate for the laborers and paying the
affected employees back pay in September. But Puglia still
protested, believing that he was not paid the full amount of
back pay due to him. Puglia again approached Tedesco, who,
according to Puglia, told him that Mecouch said that he had to
“either be quiet and keep [his] job or be laid off.”
Puglia was laid off in December 2010. Puglia asserts that
Darren Capano, the new site supervisor, approached him, told him
that he was laid off, handed him a paycheck, and said to go
“look for a new job.” That was done, Puglia said, without
further explanation.
Elk offers a different version of the termination of
Puglia’s employment. As 2010 was ending, the Camden project was
winding down. At that time, the project employed three
laborers, and the remaining work required only two. Although
the other two laborers had less seniority than Puglia, they had
completed a training program and attained certifications --
benchmarks that Puglia had not met. Those two other laborers
were, according to Capano, “the two best laborers to do the work
6
that needed to be done.” Moreover, Mecouch asserts that Puglia
was not laid off but was instead told to report to another Elk
job site, which he did not do.
B.
Puglia filed a four-count complaint in the Superior Court
against Elk and Mecouch personally, alleging violations of the
Prevailing Wage Act and CEPA and requesting equitable relief.
The parties settled the Prevailing Wage Act claim and stipulated
to its dismissal. Puglia’s remaining CEPA claim alleged that,
by complaining about Elk’s failure to pay him the proper wages
under the Prevailing Wage Act, Puglia engaged in a
whistleblowing activity, for which he was later terminated. Elk
filed a motion for summary judgment on the CEPA claim, arguing
that Puglia’s CEPA claim was preempted by federal labor law on
multiple bases. Before turning to the trial court’s decision in
the first instance and the Appellate Division’s opinion on
appeal, we provide some basic background on the two strands of
federal preemption at issue.
1.
Section 301(a) of the LMRA is a grant of jurisdiction to
the federal courts to hear disputes arising out of labor
agreements. It states:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as
7
defined in this Act, 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.A. § 185(a).]
Besides creating federal jurisdiction for those suits,
Section 301 has been given broad substantive effect. The
Supreme Court has directed the federal courts to create a
federal common law governing the interpretation of labor
contracts. See Textile Workers Union of Am. v. Lincoln Mills of
Ala., 353 U.S. 448, 456, 77 S. Ct. 912, 918, 1 L. Ed. 2d 972,
980 (1957). Further, that federal common law prevails over any
inconsistent state law, barring “[t]he possibility that
individual contract terms might have different meanings under
state and federal law” and might thereby “exert a disruptive
influence upon both the negotiation and administration of
collective agreements.” Local 174, Teamsters v. Lucas Flour
Co., 369 U.S. 95, 103, 82 S. Ct. 571, 577, 7 L. Ed. 2d 593, 599
(1962).
Under Section 301 preemption, there can be a state-court
action, see Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 508,
82 S. Ct. 519, 523, 7 L. Ed. 2d 483, 488 (1962), but the state
court must apply federal law, see Lucas Flour, supra, 369 U.S.
at 104, 82 S. Ct. at 577, 7 L. Ed. 2d at 600. Section 301
8
applies not only to those claims that directly allege a breach
of a CBA but also to claims that, although couched in terms of
state tort law, “relat[e] to what the parties to a labor
agreement agreed, and what legal consequences were intended to
flow from breaches of that agreement.” Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 211, 105 S. Ct. 1904, 1911, 85 L. Ed. 2d
206, 215 (1985). Thus, Section 301 preemption has been
described as choice-of-law preemption.
NLRA preemption has a different focus. Section 7 of the
NLRA protects employees’ right to organize, to join labor
unions, to collectively bargain, and to “engage in other
concerted activities for the purpose of . . . mutual aid or
protection.” 29 U.S.C.A. § 157. Section 8 makes it an unfair
labor practice for an employer “to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
section 7.” 29 U.S.C.A. § 158(a)(1). Congress left for the
National Labor Relations Board (Board or NLRB), in its exclusive
jurisdiction, to determine what activity is protected by Section
7 or prohibited by Section 8. See Bldg. Trades Emp’rs’ Educ.
Ass’n v. McGowan, 311 F.3d 501, 508 (2d Cir. 2002).
In San Diego Building Trades Council v. Garmon, 359 U.S.
236, 244, 79 S. Ct. 773, 779, 3 L. Ed. 2d 775, 782 (1959), the
Supreme Court set out the following rule for NLRA preemption:
“When it is clear or may fairly be assumed that the activities
9
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.”
Preemption in this context is thus choice-of-forum preemption.
If there is preemption, then there is no state-court (or even
federal-court) jurisdiction. See Int’l Longshoremen’s Ass’n v.
Davis, 476 U.S. 380, 391, 106 S. Ct. 1904, 1912, 90 L. Ed. 2d
389, 401 (1986).
2.
In ruling on Elk’s motion for summary judgment, the trial
court addressed the two preemption theories serially.
First, the trial court addressed Section 301 preemption.
The court explained that state-law claims are “preempted [under
Section 301 of the LMRA] if the application of state law
requires the interpretation of a CBA.” The trial court focused
on paragraph 29 of Puglia’s complaint, which stated that he was
laid off despite having more seniority than other employees who
were not terminated. Based on that statement, the trial court
determined that Puglia’s claims were founded on rights created
in the CBA. Because Puglia invoked that CBA-grounded right not
only in his complaint but also in his deposition, the trial
court held that Section 301 preempted his CEPA claim.
10
Second, the trial court addressed NLRA preemption and
concluded that Puglia’s CEPA claim was preempted, based on the
United States Supreme Court’s decision in Garmon. As explained
by the trial court, Garmon holds that state-law claims that
involve conduct arguably subject to Section 7 or Section 8 of
the Act are preempted. The trial court concluded that Puglia’s
claim was the type intended to be preempted under Garmon’s
interpretation of the Act.
Puglia appealed, and the Appellate Division affirmed in a
reported decision. Puglia v. Elk Pipeline, Inc., 437 N.J.
Super. 466 (App. Div. 2014). The panel stated that when
analysis of a state-law claim requires interpretation of the
CBA, federal labor law preempts that claim. Id. at 476. The
panel examined Puglia’s complaint, noting the allegation of
retaliatory discharge and specifically highlighting Puglia’s
allegation in the complaint that his status as the more-senior
employee should have allowed him to continue working instead of
the non-laid-off laborers. Id. at 477. Turning then to the
terms of the CBA applicable here, the panel determined that the
seniority provision “weigh[ed] not just objective factors, such
as length of service, but also . . . consider[ed] subjective
factors to determine who retains employment based upon
seniority.” Id. at 478. In the panel’s view, Puglia’s
seniority status could be reviewed only by analysis of the CBA
11
identified factors and could not be “rebrand[ed]” as a CEPA
claim. Ibid. According to the panel, Puglia’s claim would
necessarily embrace more than his allegation that he was laid
off in response to engaging in protected whistleblowing because
such a truncated analysis ignored a critical fact: that the
Camden project was winding down, “causing Elk to trim labor
based upon seniority, a defined term of art under the CBA.”
Ibid.
Because the CEPA claim “cannot be evaluated absent review,
consideration, and interpretation of the CBA and its terms,” the
panel concluded that LMRA preemption applied. Ibid. The panel
added that Puglia’s claim also was subject to NLRA preemption
under Garmon’s precedent. Id. at 480-81.
We granted Puglia’s petition for certification. 220 N.J.
573 (2015). We also granted amicus curiae status to the New
Jersey Association for Justice (NJAJ) and the Employers
Association of New Jersey (EANJ).
II.
A.
Puglia argues that neither the LMRA nor the NLRA preempts
his state-law claim and urges this Court to allow his CEPA claim
to proceed in state court.
According to Puglia, Section 301 of the LMRA does not
require preemption if a plaintiff’s claims can be evaluated
12
without interpreting the CBA. He maintains that his CEPA claim
does not require interpretation of the CBA and thus sidesteps
Section 301’s preemptive reach.
Puglia contends that his CEPA claim is centered on whether
he engaged in whistleblowing activity and whether he was
terminated for engaging in that activity. Those determinations,
he reasons, do not require an analysis of the CBA’s terms. That
Elk may have deviated from the seniority schedule set out in the
CBA may provide evidence of a retaliatory motive, but it does
not provide a need to interpret the CBA. Importantly, even if
Elk did not deviate from the seniority provisions, Puglia points
out that a jury could still find a retaliatory motive sufficient
for a CEPA cause of action.2
Puglia asserts that there is no breach-of-contract claim in
his complaint, and he adds that neither Elk nor the Appellate
Division can rewrite his complaint to add a CBA-based claim when
one was not alleged by him in the first instance. In sum,
Puglia contends that to follow the Appellate Division’s
reasoning would prevent unionized employees from bringing claims
2 In oral argument before this Court, Puglia underscored this point by conceding that were he permitted to proceed with his complaint, he would jettison any reliance on his complaint’s mention of his seniority rights. See infra at ___ (slip op. at 27-28). He insists that his CEPA complaint does not require him to prove that his CBA seniority rights have been violated.
13
under CEPA simply because an adverse employment action might
also have violated the CBA’s just-cause provision.
Further, says Puglia, Garmon does not require preemption
here either. First, Puglia argues that he did not engage in
concerted activity within the meaning of Section 7. His
complaints were about his wages, not about the payment, or
nonpayment, of other employees’ wages. Puglia further asks this
Court to consider the purposes that guide preemption under the
NLRA, explaining that the Prevailing Wage Act and CEPA are
generally applicable state statutes that do not interfere with
the collective bargaining process. In this case, Puglia
emphasizes that his CEPA claim does not invoke arguably
protected activity, implicating the right to organize.
B.
Elk maintains that Puglia’s complaint rightfully was held
to be preempted under both federal statutes.
According to Elk, Garmon preempts Puglia’s CEPA claim
because Puglia’s actions after his wages were cut qualify as
concerted activity. Elk highlights the joint nature of Puglia’s
initial complaint: Puglia and another laborer opened their
paychecks at the same time and proceeded to inquire together as
to why their wages dropped. In Elk’s view, two employees
joining together to protest their wages constitutes concerted
activity and thus makes this a matter that the Board should
14
decide. Elk offers two other grounds for finding Puglia’s
actions concerted: (1) Puglia’s complaints to Elk’s management
about wages raised a group or collective concern, and (2)
Puglia’s complaints invoked rights under the CBA. Any one of
those rationales is sufficient, Elk reasons, to make Puglia’s
activity arguably concerted and thus within the Board’s
exclusive jurisdiction.
Elk also maintains that LMRA preemption precludes Puglia’s
state-law claim. Elk states that whether Puglia was properly
laid off “cannot be separated from [his] CEPA claim” and that
“[t]he two are inextricably intertwined since [Puglia] contends
as part of his CEPA claim that his layoff was improper under the
[u]nion contract.” Because Puglia affirmatively made an issue
of the CBA’s lay-off provision, Elk contends that Puglia’s
complaint “naturally implicates the CBA.”
According to Elk, the CBA seniority and lay-off provisions
are also relevant in another way: They relate to Elk’s defense.
Because Puglia inserted the CBA into his CEPA claim by alleging
that Elk strayed from the seniority provisions, Elk maintains
that it becomes necessary to interpret those provisions to see
whether Elk actually did so.
C.
The NJAJ supports Puglia’s contention that his CEPA claim
is not preempted. Concerning Section 301 preemption, the NJAJ
15
reiterates that it does not apply when a plaintiff asserts a
pure statutory claim that exists independently of rights
guaranteed under the CBA. As for Garmon preemption, the NJAJ
argues that it does not apply because Puglia did not avail
himself of the NLRA’s protections. In any event, because CEPA
is broad, remedial legislation that plays a locally critical
role in protecting New Jersey workers, the NJAJ contends that it
falls within a recognized local-concern exception to Garmon
preemption as applied to these facts.
The EANJ focuses its argument on the NLRA and supports
Elk’s position that Garmon preemption is appropriate in these
circumstances. According to the EANJ, Puglia engaged in
quintessential concerted activity: His complaint about improper
wages arose out of conditions of employment common to other
employees. Therefore, he should not be permitted to evade the
NLRB’s exclusive jurisdiction by refashioning his complaint as a
CEPA claim. The EANJ also asserts as an argument that Puglia
performed no whistleblower activity.
III.
The Supremacy Clause of the United States Constitution
provides the basis for Congress’s ability to enact laws
governing labor relations that preempt state laws. U.S. Const.
art. VI, cl. 2 (providing that federal law “shall be the supreme
Law of the Land”); see also Allis-Chalmers Corp., supra, 471
16
U.S. at 208, 105 S. Ct. at 1909, 85 L. Ed. 2d at 213 (citing
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824)). By
virtue of the Supremacy Clause, “state laws that ‘interfere
with, or are contrary to the laws of congress, made in pursuance
of the constitution’ are invalid.” Wis. Pub. Intervenor v.
Mortier, 501 U.S. 597, 604, 111 S. Ct. 2476, 2481, 115 L. Ed. 2d
532, 542 (1991) (quoting Gibbons, supra, 22 U.S. (9 Wheat.) at
211, 6 L. Ed. at 73).
Congressional intent is key in determining whether federal
law preempts state law or action. Allis-Chalmers Corp., supra,
471 U.S. at 208, 105 S. Ct. at 1909-10, 85 L. Ed. 2d at 213
(quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.
Ct. 1185, 1190, 55 L. Ed. 2d 443, 450 (1978)). Absent
preempting language in a statute, courts sustain a local
regulation “unless it conflicts with federal law or would
frustrate the federal scheme, or unless the courts discern from
the totality of the circumstances that Congress sought to occupy
the field to the exclusion of the States.” Id. at 209, 105 S.
Ct. at 1910, 85 L. Ed. 2d at 213-14 (quoting Malone, supra, 435
U.S. at 504, 98 S. Ct. at 1190, 55 L. Ed. 2d at 450).
With that background, we begin from a baseline that
recognizes that minimum labor standards set by state law, such
as minimum wages, are not preempted by the NLRA. In 1985, the
Supreme Court pronounced that conclusion in Metropolitan Life
17
Insurance Co. v. Massachusetts, 471 U.S. 724, 751, 105 S. Ct.
2380, 2395, 85 L. Ed. 2d 728, 747 (1985), albeit in the context
of analyzing a different strand of NLRA preemption than the one
in this appeal -- the so-called Machinists3 preemption doctrine,
which preempts state law in areas that Congress intended to
leave unregulated.
The Court explained that the NLRA is designed to level the
bargaining power between employers and employees, not to
establish the “particular substantive terms of the bargain that
is struck when the parties are negotiating from relatively equal
positions.” Id. at 753, 105 S. Ct. at 2396, 85 L. Ed. 2d at
749. That goal was declared fully consistent with federal and
state legislation that set a floor for certain terms subject to
collective bargaining. Id. at 754, 105 S. Ct. at 2397, 85 L.
Ed. 2d at 749-50. The Court explained that because minimum
labor standards “affect union and nonunion employees equally,”
and because they “neither encourage nor discourage the
collective-bargaining processes that are the subject of the
NLRA,” they have at most an “indirect effect on the right of
self-organization established in the Act.” Id. at 755, 105 S.
Ct. at 2397, 85 L. Ed. 2d at 750. To find otherwise, the Court
3 Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Emp’t Relations Comm’n, 427 U.S. 132, 96 S. Ct. 2548, 49 L. Ed. 2d 396 (1976).
18
stated, would exempt unionized employers from standards that
state law has set for everyone else and would penalize workers
for joining a union. Id. at 755-56, 105 S. Ct. at 2397, 85 L.
Ed. 2d at 750; see also Fort Halifax Packing Co. v. Coyne, 482
U.S. 1, 22, 107 S. Ct. 2211, 2223, 96 L. Ed. 2d 1, 18 (1987).
Thus, the New Jersey Legislature’s policy choice to set a
minimum labor standard in the Prevailing Wage Act and thereby
guarantee that certain wages be paid to workers on public works
projects is not preempted by federal law. The more refined
question here is whether complaints about violations of that
minimum labor standard, and the concomitant State interest in
curbing retaliation for such complaints, invoke preemption
concerns.
The present case requires analysis under two separate types
of preemption. We turn first to the LMRA question.
IV.
A.
The Supreme Court’s decision in Lingle v. Norge Division of
Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d
410 (1988), is at the forefront of a Section 301 preemption
analysis. In Lingle, an employee claimed that she was
discharged for filing a workers’ compensation claim. Id. at
402, 108 S. Ct. at 1879, 100 L. Ed. 2d at 416. Illinois law
provided a remedy for employees who were discharged for filing
19
workers’ compensation claims; at the same time, the employee
also was covered by a CBA, which protected her from termination
absent just cause. Id. at 401, 108 S. Ct. at 1879, 100 L. Ed.
2d at 415-16. In considering the preemption question presented,
the Seventh Circuit concluded that the employee’s state-law
retaliatory discharge claim was preempted by Section 301,
reasoning that the same facts would be involved in both the
state-law claim and the claim under the CBA. Id. at 402, 108 S.
Ct. at 1879, 100 L. Ed. 2d at 416. However, the Supreme Court
reversed that holding.
Summing up its prior cases on LMRA preemption, the Court
set out the principle that guides a Section 301 preemption
analysis:
[I]f the resolution of a state-law claim depends upon the meaning of a collectivebargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles -- necessarily uniform throughout the nation -- must be employed to resolve the dispute. [Id. at 405-06, 108 S. Ct. at 1881, 100 L. Ed. 2d at 418-19.]
With respect to Lingle’s claim, the Supreme Court observed
that Illinois law required that the plaintiff prove that she was
discharged and that “the employer’s motive . . . was to deter
[her] from exercising [her] rights under the [Illinois Workers’
20
Compensation] Act or to interfere with [her] exercise of those
rights.” Id. at 407, 108 S. Ct. at 1882, 100 L. Ed. 2d at 419
(quoting Horton v. Miller Chem. Co., 776 F.2d 1351, 1356 (7th
Cir. 1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1641, 90 L.
Ed. 2d 186 (1986)). Those questions were, said the Court,
purely factual ones. Ibid. Neither required a trial court to
construe a CBA term. Ibid. And an employer’s defense that it
had a non-retaliatory motive for the discharge was likewise a
factual question. Id. at 407, 108 S. Ct. at 1882, 100 L. Ed. 2d
at 420. The state-law claim was thus determined to be
independent of the CBA. Ibid.
Recognizing that the Illinois claim “might well involve
attention to the same factual considerations as the contractual
determination of whether [the employee] was fired for just
cause,” the Court “disagree[d] with the [Seventh Circuit’s]
conclusion that such parallelism renders the state-law analysis
dependent upon the contractual analysis.” Id. at 408, 108 S.
Ct. at 1883, 100 L. Ed. 2d at 420. That the state claim and the
CBA claim “would require addressing precisely the same set of
facts” does not alone force preemption, so long as the state
claim can be adjudicated without an interpretation of the CBA.
Id. at 410, 108 S. Ct. at 1883, 100 L. Ed. 2d at 421. Further,
the Supreme Court stated that the presence of a broad CBA
provision that protects against discriminatory or retaliatory
21
discharge -- a provision that may provide a remedy for conduct
that violates state law -- “does not make the existence or the
contours of the state-law violation dependent upon the terms of
the private contract.” Id. at 413, 108 S. Ct. at 1884, 100 L.
Ed. 2d at 423.
From Lingle, we glean that a retaliatory discharge claim
can survive a Section 301 preemption analysis. A collateral
question, however, was not so neatly resolved. It is less clear
whether a defendant’s claim that the CBA justified its negative
employment action can preempt a plaintiff’s otherwise
independent state-law action. In Lingle, the Court said that
“[i]n the typical case a state tribunal could resolve either a
discriminatory or retaliatory discharge claim without
interpreting the ‘just cause’ language of a collective
bargaining agreement.” Ibid. Some cases have touched on the
extent to which a CBA-based defense can preempt a plaintiff’s
state-law claim.
In Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107
S. Ct. 2425, 2432-33, 96 L. Ed. 2d 318, 331 (1987), the Supreme
Court held that a state-law employment contract claim could not
be removed to federal court because the defendant attempted to
use a CBA as a defense. The plaintiff employees began
employment covered under a CBA, moved to salaried or management
positions outside of the CBA, and were downgraded back to CBA
22
level positions. Id. at 388-89, 107 S. Ct. at 2427-28, 96 L.
Ed. 2d at 324-25. The employees filed a state-law action,
claiming that the employer breached the employment contract in
place during the time that the employment relationship was not
covered by the CBA. Id. at 390, 107 S. Ct. at 2428, 96 L. Ed.
2d at 325. The defendant employer removed the case to federal
court, stating a defense that the individual employment
agreements merged into the CBA thereby requiring an
interpretation of the CBA. Id. at 390, 107 S. Ct. at 2428, 96
L. Ed. 2d at 325-26.
On appeal, the Supreme Court said removal was improper and
that general federal jurisdiction principles compelled that
result. The Court explained that a defendant can remove a
state-court action to federal court “only when a federal
question is presented on the face of the plaintiff’s properly
pleaded complaint.” Id. at 392, 107 S. Ct. at 2429, 96 L. Ed.
2d at 327. A federal defense, standing alone, cannot support
removal jurisdiction. Id. at 393, 107 S. Ct. at 2430, 96 L. Ed.
2d at 327. If, however, a state-law claim is substantially
dependent on a CBA analysis, it is converted into a federal
claim, thus making removal appropriate. Id. at 394, 107 S. Ct.
at 2430, 96 L. Ed. 2d at 328.
In Caterpillar, the Supreme Court recognized that the
state-law employment contract claims in that matter were not
23
based on the CBA and held that a federal element in a defense
did not change that. Id. at 396-97, 107 S. Ct. at 2431-32, 96
L. Ed. 2d at 330. The Court stated that although a state court
may have to interpret the CBA when a defense is based on the
terms of that agreement in evaluating the state-law claim, “the
presence of a federal question, even a [Section] 301 question,
in a defensive argument does not overcome the paramount policies
embodied in the well-pleaded complaint rule.” Id. at 398, 107
S. Ct. at 2433, 96 L. Ed. 2d at 331.
Caterpillar’s pronouncement about review of a purported
CBA-based defense came in the context of a removal case. The
Court specifically left open whether the CBA-rooted defense
could preempt the state-law claim, adding in a footnote: “We
intimate no view on the merits of this or any of the pre-emption
arguments discussed above. These are questions that must be
addressed in the first instance by the state court in which [the
plaintiffs] filed their claims.” Id. at 398 n.13, 107 S. Ct. at
2433 n.13, 96 L. Ed. 2d at 331 n.13. Caterpillar thus leaves
open the possibility that a CBA-based defense might preempt a
claim but holds that such a defense cannot provide a basis for
removal jurisdiction. Although some federal courts have taken
that view, others have not, reading Caterpillar instead to
narrow “both substantive preemption under [Section] 301 and
removal jurisdiction . . . in cases in which the employer raises
24
a defense based on the collective bargaining agreement.”
Katherine Van Wezel Stone, The Legacy of Industrial Pluralism:
The Tension Between Individual Employment Rights and the New
Deal Collective Bargaining System, 59 U. Chi. L. Rev. 575, 601
02 (1992) (emphasis added) (collecting cases on both sides).
A more recent Supreme Court decision fortifies the view
that such a CBA-based defense is ordinarily insufficient to
preempt an independent state-law action. In Hawaiian Airlines,
Inc. v. Norris, 512 U.S. 246, 266, 114 S. Ct. 2239, 2251, 129 L.
Ed. 2d 203, 220 (1994), the Court explained that “Lingle teaches
that the issue to be decided in this action -- whether the
employer’s actions make out the element of discharge under
Hawaii law -- is a ‘purely factual question.’” With that, the
Court rejected the employer’s argument that the state-law claim
“require[d] a determination whether the [plaintiff employee’s]
discharge, if any, was justified by [the plaintiff’s] failure to
sign the maintenance record, as the CBA required him to do.”
Ibid. Although that determination would be necessary to sustain
a claim alleging a CBA violation (hence why such a claim was
dismissed as preempted), “[t]he state tort claims, by contrast,
require only the purely factual inquiry into any retaliatory
motive of the employer.” Ibid. It appears therefore that a
fact-based inquiry is appropriate when assessing a purported
25
CBA-based defense by an employer asserting preemption under
Section 301.4
B.
To evaluate Section 301 preemption in this matter, we turn
to Puglia’s complaint. It is there that one must look to find
the source of the right that he alleges Elk infringed. From
that, we can determine whether Puglia’s claim requires an
interpretation of the CBA.
Puglia alleged a CEPA claim. To prove a CEPA claim, Puglia
must show only that (1) he reasonably believed defendants were
violating a law, rule, or public policy; (2) that he performed a
whistleblowing activity; (3) that an adverse employment action
was taken against him; and (4) that a causal relationship exists
between the whistleblowing activity and the adverse employment
action. See Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).
Whether Puglia performed a whistleblowing activity in reporting
the alleged failure by Elk to abide by Prevailing Wage Act
requirements, and whether Elk retaliated against Puglia for
doing so are factual questions, untied to any interpretation of
4 Elk points to Maher v. New Jersey Transit Rail Operations, Inc., 125 N.J. 455, 481 (1991), in which we said that “any evaluation of [the employer’s] defense to [the plaintiff’s] [Law Against Discrimination] claims require[d] an evaluation of the terms of the collective-bargaining agreement.” That portion of Maher involved a different statute and preceded the Supreme Court’s decision in Hawaiian Airlines. We do not find it persuasive in the present matter.
26
the CBA. CEPA creates independent rights. Puglia’s CEPA cause
of action is unaffected by whether the CBA was violated; it asks
only whether Puglia’s whistleblowing activity played a role in
his termination.
That Puglia could have sought relief based on provisions of
the CBA -- perhaps under the provision that guaranteed there
would be no wage decreases without mutual agreement or perhaps
under the seniority provision -- does not change the analysis.
Mere factual parallelism between a CEPA claim and a CBA-based
claim does not make a CEPA claim dependent on the CBA. Puglia
is not asking New Jersey courts to use New Jersey law to define
the ins and outs of his bargained-for employment relationship
with Elk. He is asking our courts to enforce his rights under
CEPA, independent and apart from his bargained-for employment
conditions. That, our courts can do.
But there is an extra wrinkle in this appeal -- paragraph
29 of Puglia’s complaint. In that paragraph, Puglia alleged:
“In December of 2010, near the close of the Camden job,
plaintiff was ‘laid off’ by the defendants, despite the fact
that plaintiff had more seniority with the company than did
other employees who were not laid off and who remained employed
after plaintiff’s lay off.” The CBA’s seniority provision is
not, however, a simple first-man-in-last-man-out formula. It is
more nuanced. It provides that “[i]n all cases of promotion,
27
demotion, lay-off, recalls and bumping,” the employer would
consider a number of factors, including the employee’s
classification, his ability, and his qualifications. Then, with
all other things being equal, “the length of continuous service
shall govern.”
It is far from clear that Puglia claimed a violation of the
CBA in paragraph 29. He was making a factual allegation: He
was more senior than other employees who were not let go. That
was one piece of information, among many, to be considered in
the context of Elk’s decision to lay him off. That Puglia
mentioned seniority in his deposition does not alter the
substance of his claim. Nor does it inject a question of CBA
interpretation into the factual questions at the heart of a CEPA
claim. At his deposition, Puglia said that he was more senior
than everyone on the job, save the operator, and thus, in his
view, should have been the last one to leave. We do not know
whether he may have had a claim under the CBA’s seniority
provision because, as master of his complaint, he chose not to
pursue it. Having a claim under the CBA does not void state-law
remedies that are independent of the CBA. The employer’s
attorney cannot change that by the course of his questioning at
a deposition.
Consistent with his recognition of the proofs necessary in
a CEPA claim, Puglia’s counsel at oral argument conceded that
28
Puglia would be satisfied to proceed without any mention of the
seniority provision in his case-in-chief. We hold Puglia to
that representation in any further proceedings.
In holding Puglia’s CEPA claim preempted, the Appellate
Division here said that “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.” Puglia, supra, 437 N.J. Super. at 478. The CBA was
bound up with any CEPA claim, in the panel’s view, because the
work project was winding down, “causing Elk to trim labor based
upon seniority, a defined term of art under the CBA.” Ibid.
Puglia’s CEPA claim could not, said the panel, be reviewed
without interpretation of the CBA. Ibid. The panel’s analysis
injected the CBA’s seniority provision as a potential defense --
that Elk laid off Puglia in accordance with the seniority
provision. Then the trial court would be required to interpret
the CBA, thus preempting the claim.
We disagree with the panel’s reasoning that Elk’s potential
defense changes the preemption calculus in this matter. Again,
we look to what a plaintiff must prove in a CEPA action. Even
if Elk could establish that the CBA justified the firing, Puglia
may still prevail on his CEPA claim. See, e.g., Winters v. N.
Hudson Reg’l Fire & Rescue, 212 N.J. 67, 96 (2012) (recognizing
right to bring CEPA retaliation action based on mixed-motive
29
theory). CEPA claims focus on whether an employer acted with a
retaliatory motive -- a purely factual question. Interpretation
of the CBA to evaluate an employer’s potential defense is not
outcome determinative in such cases. See Nelson v. Cent. Ill.
Light Co., 878 F.2d 198, 202 (7th Cir. 1989) (recognizing that
in retaliatory discharge case, court does not need to determine
whether proffered non-retaliatory motive “was a legitimate
one[;] [i]t must simply determine whether such a motive exists
- not whether, as a matter of law, the collective bargaining
agreement justifies such a motive” (quoting Bettis v. Oscar
Mayer Foods Corp., 878 F.2d 192, 197 (7th Cir. 1989))).
The model jury charge for CEPA claims drives that point
home. CEPA plaintiffs must “prove that it is more likely than
not that defendant engaged in intentional retaliation against
plaintiff because plaintiff” engaged in whistleblowing activity.
See Model Jury Charges (Civil), § 2.32 “New Jersey Conscientious
Employee Protection Act” (2014). That does not mean that
retaliation has to be the only factor driving the termination.
A jury can find that the employer “had more than one reason or
motivation for its actions.” Ibid. The model charge goes on to
explain that the jury can find that the employer was motivated
by retaliatory and non-retaliatory motives. Ibid. The
plaintiff need “only prove that retaliation played a role in the
decision and that it made an actual difference in defendant’s
30
decision.” Ibid. (emphasis added). But if the employer would
have made the same decision in the absence of the plaintiff’s
whistleblowing activity, then the employer wins. Ibid. In
Puglia’s potential CEPA claim, the critical question was whether
he could “prove[] that it is more likely than not that [Elk]
unlawfully retaliated against him . . . for his . . .
[complaints about his wages].” Ibid.; see also Donofry v.
Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div. 2001)
(“Plaintiff’s ultimate burden of proof is to prove by a
preponderance of the evidence that his protected, whistleblowing
activity was a determinative or substantial, motivating factor
in defendant’s decision to terminate his employment -- that it
made a difference. Plaintiff need not prove that his
whistleblowing activity was the only factor in the decision to
fire him.”).
Employers often argue that a CBA provides a legitimate
motive for a challenged adverse employment decision. At the
most basic level, an employer can simply say that it possessed
just cause (a common provision in CBAs) to terminate an employee
asserting a wrongful termination claim under state law. If a
CBA-based defense could always drive Section 301 preemption,
employers could substantially widen the substantive sweep of
that doctrine. And they could do so simply by claiming that the
CBA provided a perfectly good reason for the negative employment
31
action. The employee could not respond because a response would
necessitate an interpretation of the CBA. See Stephanie R.
Marcus, Note, The Need for a New Approach to Federal Preemption
of Union Members’ State Law Claims, 99 Yale L.J. 209, 226-27
(1989) (recognizing that allowing employer to preempt
independent state-law claim by raising CBA-based defense “would
encourage employers to assert invalid defenses to defeat
employees’ state law claims”).
CEPA claims, like Puglia’s, turn on questions that remain
factually based in the face of an employer’s claim that it acted
lawfully under the CBA. In deciding whether an employer acted
with a retaliatory motive in a specific CEPA claim, we conclude
that it is not necessary to determine whether the employer
correctly based its action on the CBA. Other courts also
recognize that the outcome-determinative question is whether the
employer acted with a retaliatory motive. See Meyer v. Schnucks
Mkts., Inc., 163 F.3d 1048, 1051 (8th Cir. 1998); Smolarek v.
Chrysler Corp., 879 F.2d 1326, 1333-34 (6th Cir.), cert. denied,
493 U.S. 992, 110 S. Ct. 539, 107 L. Ed. 2d 537 (1989).
In so concluding in respect of Puglia’s claim, we find
support in the language of Section 301. Section 301(a) grants
the federal courts jurisdiction over “[s]uits for violations of
contracts between an employer and a labor organization
representing employees.” A complaint that alleges a violation
32
of state law is not the necessary equivalent of a suit claiming
a violation of a labor contract. A federal defense does not
change that analysis “for the very good reason that a
defendant’s defensive positions are irrelevant to the issue
whether a plaintiff’s claim is, in form or substance, one for
violation of a labor contract.” McCormick v. AT&T Tech., Inc.,
934 F.2d 531, 543 (4th Cir. 1991) (Phillips, J., dissenting),
cert. denied, 502 U.S. 1048, 112 S. Ct. 912, 116 L. Ed. 2d 813
(1992). To us, this is a fairness issue, as the facts of this
case make clear. An employer should not be permitted to rewrite
an employee’s complaint and secure preemption of that complaint
by leading that employee down the primrose path at a deposition.
Just so, an employer cannot secure preemption of a CEPA claim by
asserting as a defense that it acted in accord with the CBA’s
seniority provision -- at least not without some careful factual
analysis of that defense.
In this matter, we hold that Puglia’s claim is not
preempted under Section 301 of the LMRA.
V.
Elk also contends that Puglia’s CEPA claim is preempted by
the NLRA. The Supreme Court set out the modern contours of that
form of labor-law preemption in Garmon.
A.
1.
33
In Garmon, supra, 359 U.S. at 238-39, 79 S. Ct. at 775-76,
3 L. Ed. 2d at 778-79, a California court awarded damages to an
employer under state tort law for union picketing that the
California Supreme Court determined to be an unfair labor
practice. The decision from the California court came after the
Board declined to assert jurisdiction. Id. at 238, 79 S. Ct. at
775-76, 3 L. Ed. 2d at 779. The question presented to the
United States Supreme Court asked “whether the California court
had jurisdiction to award damages arising out of peaceful union
activity which it could not enjoin.” Id. at 239, 79 S. Ct. at
776, 3 L. Ed. 2d at 780.
The Court started with the concerns animating preemption.
Justice Frankfurter explained that in charting the extent of
preemption in the labor-law context “we have been concerned with
delimiting areas of potential conflict; potential conflict of
rules of law, of remedy, and of administration.” Id. at 241-42,
79 S. Ct. at 778, 3 L. Ed. 2d at 781. Administration of labor
policy was entrusted to the Board, “a centralized administrative
agency, armed with its own procedures, and equipped with its
specialized knowledge and cumulative experience.” Id. at 242,
79 S. Ct. at 778, 3 L. Ed. 2d at 781.
Because administration is central to regulation, the Court
recognized that the preemption analysis necessarily focuses on
the activity that states seek to regulate instead of the method
34
of regulation adopted. Id. at 243, 79 S. Ct. at 778, 3 L. Ed.
2d at 782. Accordingly, the Court announced a broad preemption
rule: When state law attempts to regulate conduct that is
arguably protected or arguably prohibited under the NLRA, state
jurisdiction must yield. Id. at 244, 79 S. Ct. at 779, 3 L. Ed.
2d at 782. That preemption rule was held to apply regardless of
whether the states acted through laws of general applicability
or laws aimed at labor relations. Ibid.
As Garmon explained, the California court based its damage
award on its view that the union conduct was an unfair labor
practice. Id. at 245, 79 S. Ct. at 779, 3 L. Ed. 2d at 783.
But that was not its call to make; nor was it a decision for the
Supreme Court. Id. at 245, 79 S. Ct. at 779-80, 3 L. Ed. 2d at
783. Because the activity was arguably protected or prohibited
by the NLRA, the Supreme Court declared that both state and
“federal courts must defer to the exclusive competence of the
National Labor Relations Board if the danger of state
interference with national policy is to be averted.” Id. at
245, 79 S. Ct. at 780, 3 L. Ed. 2d at 783.
Importantly, the Garmon Court recognized exceptions to its
preemption formula. Those exceptions allowed state courts to
retain jurisdiction when “the activity regulated was a merely
peripheral concern of the Labor Management Relations Act” or
when “the regulated conduct touched interests so deeply rooted
35
in local feeling and responsibility.” Id. at 243-44, 79 S. Ct.
at 779, 3 L. Ed. 2d at 782. Commenting on the latter, the Court
said that states have been allowed to enjoin or “to grant
compensation for the consequences, as defined by the traditional
law of torts, of conduct marked by violence and imminent threats
to the public order.” Id. at 247, 79 S. Ct. at 781, 3 L. Ed. 2d
at 784. In those cases, the state interest was compelling and
the “maintenance of domestic peace [was] not overridden in the
absence of clearly expressed congressional direction.” Ibid.
2.
Although the Act does not define “concerted activities,”
the Board and federal courts have read that term broadly. Both
individual and group activity can be “concerted.” Concerted
activity “embraces the activities of employees who have joined
together in order to achieve common goals.” NLRB v. City
Disposal Sys., Inc., 465 U.S. 822, 830, 104 S. Ct. 1505, 1511,
79 L. Ed. 2d 839, 849 (1984). So too does an employee engage in
concerted activity when he brings a group concern to
management’s attention. See Int’l Transp. Serv., Inc. v. NLRB,
449 F.3d 160, 166 (D.C. Cir. 2006).
Supreme Court decisions on the subject also go beyond those
definitions. The Supreme Court has held that individual
invocation of a right guaranteed in the CBA could qualify as
concerted activity. City Disposal Sys., supra, 465 U.S. at 831
36
32, 104 S. Ct. at 1511-12, 79 L. Ed. 2d at 849-50 (approving of
Board’s Interboro doctrine). The Court said that a right
grounded in the CBA grew out of a collective process, “beginning
with the organization of a union, continuing into the
negotiation of a collective-bargaining agreement, and extending
through the enforcement of the agreement.” Id. at 831-832, 104
S. Ct. at 1511, 79 L. Ed. 2d at 849. Without the prior
collective activity bringing about the union contract, a single
employee could not invoke rights created by that agreement. Id.
at 832, 104 S. Ct. at 1511, 79 L. Ed. 2d at 849. Accordingly,
when an employee invokes such a right, “he does not stand
alone.” Id. at 832, 104 S. Ct. at 1511, 79 L. Ed. 2d at 850.
Under a Garmon analysis, we need not be certain whether the
Board would classify activity as concerted under Section 7. It
need only be arguable; that is, there need only be a reasonable
possibility that the Board could so decide. Because of the
wide-ranging activities that could be called concerted, and
because the activity at issue need only be arguably concerted to
cut off state-court jurisdiction, Garmon casts a wide preemption
net. So, the Supreme Court has drawn the brakes on Garmon’s
broad preemption rule.
In Sears, Roebuck & Co. v. San Diego County District
Council of Carpenters, 436 U.S. 180, 182, 98 S. Ct. 1745, 1750,
56 L. Ed. 2d 209, 216 (1978), a union picketed on the property
37
of a Sears department store. The picket line was established
because some carpentry work was performed by nonunion workers.
Ibid. Sears demanded that the union picketers leave the
property, but the union refused. Id. at 182-83, 98 S. Ct. at
1750, 56 L. Ed. 2d at 216. Sears filed a complaint in a
California trial court seeking to enjoin the trespass. Id. at
183, 98 S. Ct. at 1750, 56 L. Ed. 2d at 216. The trial court
entered a temporary restraining order enjoining the picketing,
and, after hearing argument on whether the picketing was
protected by federal law, the court entered a preliminary
injunction. Id. at 183, 98 S. Ct. at 1750, 56 L. Ed. 2d at 216
17.
The California Supreme Court reversed. “[B]ecause it was
intended to secure work for [u]nion members and to publicize
Sears’ undercutting of the prevailing area standards for the
employment of carpenters,” the picketing was arguably protected
under Section 7. Id. at 184, 98 S. Ct. at 1751, 56 L. Ed. 2d at
217. The picketing was also arguably an unfair labor practice
prohibited by Section 8. Ibid. That determination would hinge
on whether “the [u]nion had engaged in recognitional picketing
subject to [Section] 8(b)(7)(C) of the Act, which could not
continue for more than [thirty] days without petitioning for a
representation election.” Ibid. (internal citation omitted).
The question before the United States Supreme Court was to what
38
extent states could enforce their trespass laws against union
picketing, which was either arguably protected or arguably
prohibited by the NLRA. Ibid.
The Court’s analysis began with the Garmon rule but
proceeded to explain that its precedents have eschewed a literal
application of that rule, focusing instead on the “‘nature of
the particular interests being asserted and the effect upon the
administration of national labor policies’ of permitting the
state court to proceed.” Id. at 189, 98 S. Ct. at 1753, 56 L.
Ed. 2d at 220 (quoting Vaca v. Sipes, 386 U.S. 171, 180, 87 S.
Ct. 903, 911, 17 L. Ed. 2d 842, 852 (1967)). Those interests,
the Court said, split based on whether a case fell on either the
arguably protected or the arguably prohibited side of Garmon
preemption. Id. at 190, 98 S. Ct. at 1754, 56 L. Ed. 2d at 221.
The concern animating federal preemption for cases that
fall on the arguably prohibited side of the line is one of
primary jurisdiction: “The conflict lies in remedies . . . .
[W]hen two separate remedies are brought to bear on the same
activity, a conflict is imminent.” Id. at 193, 98 S. Ct. at
1755, 56 L. Ed. 2d at 223 (alteration in original) (quoting
Garner v. Teamsters, 346 U.S. 485, 498-99, 74 S. Ct. 161, 170,
98 L. Ed. 228, 244 (1953)). Although that rationale carries the
most weight with “state laws regulating the relations between
39
employees, their union, and their employer,” it can also apply
to generally applicable laws. Ibid.
The “critical inquiry” is thus “whether the controversy
presented to the state court is identical to . . . or different
from . . . that which could have been, but was not, presented to
the Labor Board.” Id. at 197, 98 S. Ct. at 1757, 56 L. Ed. 2d
at 225. Importantly, the Court stated that only when the two
controversies are the same does state-court jurisdiction risk
“interfer[ing] with the unfair labor practice jurisdiction of
the Board which the arguably prohibited branch of the Garmon
doctrine was designed to avoid.” Id. at 197, 98 S. Ct. at 1757
58, 56 L. Ed. 2d at 225-26. That interference is most likely
when the state law relates to labor relations, as a generally
applicable law is “less likely to generate rules or remedies
which conflict with federal labor policy than the invocation of
a special remedy under a state labor relations law.” Id. at 197
n.27, 98 S. Ct. at 1758 n.27, 56 L. Ed. 2d at 226 n.27.
Comparing the controversy that Sears could have presented
to the Board to the trespass action before the state court, the
Court said they were not the same. Id. at 198, 98 S. Ct. at
1758, 56 L. Ed. 2d at 226. The action before the Board would
have asked “whether the picketing had a recognitional or work
reassignment objective,” and the answer to that question would
have turned on difficult factual and legal considerations.
40
Ibid. The state-law action instead would have focused on only
the location of the picketing, a different question entirely.
Ibid. The considerations that compel preemption when activity
is arguably prohibited therefore did not apply. Ibid.
Different considerations were in play for the Supreme Court
in assessing whether the arguably protected nature of the
picketing required preemption. When the states look to regulate
arguably protected conduct, the threat of interference with
federal law comes into consideration and “is the principal
concern of the second branch of the Garmon doctrine.” Id. at
203, 98 S. Ct. at 1760, 56 L. Ed. 2d at 229. The worry is that
the state court will prohibit conduct that is protected under
federal law. Id. at 203, 98 S. Ct. at 1760-61, 56 L. Ed. 2d at
229. Accordingly, the Court reasoned that “the acceptability of
‘arguable protection’ as a justification for pre-emption in a
given class of cases is, at least in part, a function of the
strength of the argument that [Section] 7 does in fact protect
the disputed conduct.” Id. at 203, 98 S. Ct. at 1761, 56 L. Ed.
2d at 229.
Because it would be the rare case in which trespassory
picketing was protected under Section 7, the Court said that
“[w]hatever risk of an erroneous state-court adjudication does
exist [was] outweighed by the anomalous consequence of a rule
which would deny the employer access to any forum in which to
41
litigate either the trespass issue or the protection issue in
those cases in which the disputed conduct is least likely to be
protected by [Section] 7.” Id. at 206-07, 98 S. Ct. at 1762, 56
L. Ed. 2d at 231.
Sears thus refined Garmon. The arguably protected or
arguably prohibited nature of conduct, by itself, is not enough
to preempt state jurisdiction. The underlying rationales that
support preemption must be present, and Sears clarified that
those rationales differ based on whether state law is attempting
to regulate conduct that is either arguably protected or
arguably prohibited. See Healthcare Ass’n of N.Y. State, Inc.
v. Pataki, 471 F.3d 87, 95 (2d Cir. 2006) (“Justice Stevens [in
Sears] separated out what Justice Frankfurter had joined,
distinguishing the substantive and remedial concerns from the
primary jurisdiction concern and prescribing different
treatments for each.”). Even if conduct is arguably protected
or prohibited, and even if the rationales supporting preemption
are present, the exceptions that Garmon carved out from its
otherwise-broad preemption doctrine provide one last step of the
preemption analysis.
3.
Within that framework, some courts from other jurisdictions
have considered a question similar to that which is presented
here: whether the NLRA preempts an employee’s claim that he was
42
terminated in retaliation for complaining about wages. We
identify them for the sake of completeness.
In Hume v. American Disposal Co., 880 P.2d 988, 991 (Wash.
1994), cert. denied, 513 U.S. 1112, 115 S. Ct. 905, 130 L. Ed.
2d 788 (1995), several employees -- drivers for the defendants,
a number of waste collection companies -- became aware that they
were entitled to overtime compensation under Washington law. In
response to an investigation by the State Department of Labor,
the employers settled the overtime claims, overhauled their
overtime policy, and began clocking employees. Ibid. But after
the investigation, “the relationship between the defendants and
their employees continued to deteriorate.” Ibid. The employees
eventually filed suit under a Washington statute that prohibited
employer retaliation against employees who assert wage claims.
Ibid.
The Washington Supreme Court was “not convinced the statute
at issue . . . attempt[ed] to regulate the employees’ ‘protected
concerted activities’ under the NLRA.” Id. at 992. Although
complaining about the lack of overtime pay may be protected
activity under the NLRA, the court said that “the Washington
statute does not attempt to regulate employee grievance
procedures.” Ibid. The statute instead “regulate[d] employer
actions by prohibiting retaliatory discharge.” Ibid. However,
the court declined to rest its holding on that basis, finding
43
that, in any event, the retaliation statute touched a deeply
rooted local concern and thus was exempted from Garmon
preemption. Ibid.
In making that determination, the court looked to the
potential for interference between the state statute and the
federal regulatory scheme. Finding such interference unlikely,
the court explained that while “an NLRB inquiry would focus on
whether the [employees’] overtime wage claims were protected
‘concerted activity,’ the state cause of action focuse[d]
instead on whether the employees were discharged in retaliation
for their overtime claims.” Id. at 993. The state cause of
action was therefore “different from that which could have been,
but was not, presented to the Labor Board.” Ibid. Next, the
court detailed that even if asserting an overtime claim is
protected concerted activity under the NLRA, the statute does
not regulate that conduct; “[i]f anything, the statute
regulate[d] employer activity prohibited by the NLRA and, thus,
[was] less likely to interfere with the federal scheme and
require preemption under the Garmon doctrine.” Ibid. Last,
because the Washington statute contained a clear legislative
condemnation of retaliation against an employee who asserts an
overtime claim, the employees’ claims were based on a statute
that “reflect[ed] a legitimate local concern rooted in a strong
and clearly articulated public policy.” Ibid.
44
Not all courts have concluded similarly. See, e.g., Henry
v. Laborers’ Local 1191, 848 N.W.2d 130, 145-46 (Mich. 2014)
(holding that NLRA preempted employees’ whistleblower claim
alleging retaliation in response to complaints about wages and
working conditions because wages and working conditions “are
prototypical issues of dispute under the NLRA” and further
holding that local-concern exception did not apply); Anco Const.
Co. v. Freeman, 693 P.2d 1183, 1185 (Kan. 1985) (preempting
employee’s claim that he was discharged for complaints about not
being paid proper wages under Davis-Bacon Act, reasoning that
“the NLRA clearly protects and covers the alleged retaliatory
discharge as an unfair labor practice in this case since it
involved a wage dispute covered by the NLRA”).
B.
Elk says that Puglia’s conduct qualifies as concerted
activity and is therefore preempted. Even if it cannot be said
that Puglia’s actions here are “concerted” with near-total
certainty, that is not what Garmon asks. Garmon asks only
whether it is arguable, for it is left to the Board to define
(subject to appellate review) with precision what activities are
protected by Section 7. The state court must give way if it is
a close question.
We think it beyond real dispute that Puglia’s conduct was
at least arguably protected under Section 7. Puglia and
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Barrette jointly complained about their wages to management.
And Puglia communicated with other employees about the wage
decrease and proceeded to further discuss the issue with
management, protesting the reduction in “our” wages. If
Garmon’s arguably protected/arguably prohibited analysis was the
last word, this would be a straightforward case. By complaining
about his wages with another worker, or by bringing a group
complaint to management, Puglia engaged in arguably protected
concerted activity. And by allegedly firing Puglia in response,
Elk arguably engaged in an unfair labor practice prohibited by
Section 8. But the Supreme Court has pulled back from Garmon’s
broad brush, refocusing the analysis on the concerns animating
labor-law preemption in the first place.
CEPA regulates employer activity -- activity that would be
arguably prohibited by the NLRA. The concern in this branch of
Garmon preemption is that state-court jurisdiction would
interfere with the Board’s primary jurisdiction. We thus ask
whether Puglia’s CEPA claim is identical to the claim that he
could have, but did not, present to the Board.
The Supreme Court’s post-Garmon decisions demonstrate the
Court’s willingness to closely examine these preemption
situations and look beyond whether the state-court dispute and
the controversy that could have been, but was not, presented to
the Board grew out of the same facts. The Court has looked to
46
the proofs required in the different actions in the different
forums. For example, in Sears, the Court said the state-court
trespass claim was not the same as the NLRA claim that could
have been presented to the Board. The trespass action cared
only about the location of picketing. Before the Board,
however, any claim would have dealt with questions about the
purposes of the picketing and interpretation of the Act. That
difference was enough to allow state-court jurisdiction without
unduly interfering with the Board’s primary jurisdiction. It
appears that what is explicit in the Section 301 preemption
context can be regarded as implicit in the NLRA realm: factual
overlap does not drive the preemption analysis; the proofs do.
In our view, a similar approach here shows enough of a gap
between the proofs in Puglia’s CEPA action and an unfair-labor
practice dispute to elude Garmon preemption. See Archibald Cox,
Recent Developments in Federal Labor Law Preemption, 41 Ohio St.
L.J. 277, 285 (1980) (“The more widely the applicable state
substantive law differs from the federal law, the greater will
be the differences in the proof required to make a case for
judicial relief.”). Puglia’s CEPA claim would center on whether
he engaged in whistleblowing activity and whether that activity
played a role in his termination. The NLRA claim would instead
focus on whether Puglia engaged in concerted activity aimed at
the conditions of his employment. Yet concerted activity would
47
play no role in a CEPA action. Because we cannot say that the
two are “identical,” we conclude that the risk of infringing on
the Board’s primary jurisdiction in this case does not demand
preemption.
That conclusion is buttressed by CEPA’s general
applicability. Garmon, supra, said that the distinction between
laws of general applicability and laws geared to regulating
labor relations was irrelevant. 359 U.S. at 244, 79 S. Ct. at
779, 3 L. Ed. 2d at 782. Sears, supra, repeated the instruction
that such a distinction was not dispositive but added that
generally applicable laws by their very nature are “less likely
to generate rules or remedies which conflict with federal labor
policy than the invocation of a special remedy under a state
labor relations law.” 436 U.S. at 197 n.27, 98 S. Ct. at 1758
n.27, 56 L. Ed. 2d at 226 n.27. We agree.
And like the Washington Supreme Court, we believe that when
the State’s interests in enforcing CEPA in a factual setting
like this one -- whistleblowing activity arising out of a
prevailing wage dispute -- are balanced against any potential
interference with the federal labor scheme, the State’s
interests win out. New Jersey’s interest in enforcing CEPA runs
deep. See Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998)
(recognizing that at the time of enactment, CEPA was described
“as the most far reaching ‘whistleblower statute’ in the
48
nation”). Any interference with the federal scheme by allowing
this CEPA claim to go forward in state court would be de
minimis. CEPA does not affect the bargaining position between
management and labor -- the balance that the NLRA seeks to bring
into equipoise. CEPA claims exist regardless of an employee’s
union membership. And, generally stated, CEPA claims are
individual claims, seeking to validate an individual’s right to
be free from workplace retaliation after raising a legitimate
public policy issue.
More pointedly for the setting and holding of this matter,
the Supreme Court has specifically held that generally
applicable state and local laws that set minimum labor standards
are not preempted by federal law. See Metro. Life Ins., supra,
471 U.S. at 756, 105 S. Ct. at 2397, 85 L. Ed. 2d at 750. If an
employee can allege a violation of those state minimum labor
standards without being preempted by federal law, then it
follows that allegations of retaliatory discharge based on
whistleblower conduct in response to a violation of those
standards should not be preempted. CEPA provides a vehicle to
fulfill compliance with those legislatively set minimum labor
standards. To find such statutes like New Jersey’s Prevailing
Wage Act are not preempted by federal law, but that allegations
of retaliatory discharge in response to complaints under those
49
statutes are, would undermine the purpose of those statutes and
leave employees with a half-baked remedy.

Outcome: