AARON DAVIS v. BENIHANA, INC., JERRY SHOTT, BRIAN ALVARADO, ABC CORPORATIONS 1-5 (fictitious names describing presently unidentified business entities), and JOHN DOES 1-5 (fictitious names describing presently unidentified individuals)
Civ. No. 24-6569 (RMB-SAK)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE
Filed 02/20/25
[Docket No. 9]
APPEARANCES:
MCOMBER, MCOMBER & LUBER, P.C.
Matthew A. Luber, Esq.
50 Lake Center Drive
Marlton, NJ 08053
Counsel for Plaintiff Aaron Davis
LITTLER MENDELSON, P.C.
Jedd E. Mendelson, Esq.
Bilal, Haider, Esq.
1805 Raymond Boulevard
Newark, NJ 07102
Counsel for Defendants Benihana, Inc., Jerry Shott, and Brian Alvarado
1I. INTRODUCTION
Aaron Davis (“Plaintiff“) was fired from his job as a chef at Benihana for discussing wages with a coworker and for objecting to a demand by his supervisors to stop discussing wages in the workplace. He sued Benihana and his supervisors (“Defendants“) in state court under New Jersey‘s whistleblower and anti-wage discrimination statutes. Defendants removed the case to this Court and have now moved to dismiss arguing that Plaintiff‘s state law claims are preempted by the National Labor Relations Act and must instead be heard by the National Labor Relations Board. The Court held oral argument and ordered supplemental briefing on the issue of whether Plaintiff‘s state law claims were preempted under the Supreme Court‘s decision in San Diego Building Trades Council v. Garmon, which held that when workplace activity is arguably protected or arguably prohibited under the National Labor Relations Act, courts must defer to the exclusive competence of the National Labor Relations Board to avert the danger of state interference with federal labor policy. Upon an exhaustive consideration of the issue, the Court finds that Plaintiff‘s claims are preempted by Garmon and do not fit within Garmon‘s exception for state laws “so deeply rooted in local feeling and responsibility.” For the reasons that follow, the Court will GRANT Defendants’ Motion to Dismiss.
Aaron Davis was a chef at the Pennsauken, New Jersey location of Defendant Benihana, a chain of Japanese steakhouses. [Docket No. 1-1 (“Compl.“) 9-10.] He quit, seeking a new line of work due to a lull in business. [Id. ¶ 9.] A few years later, Davis‘s former manager, Defendant Jerry Shott, asked him if he would consider returning to work at the restaurant. [Id. ¶ 11.] He agreed. [Id. ¶ 12.]
About a year into Davis‘s second stint at the restaurant, a newly hired chef reached out to him for advice. [Id. ¶ 12.] The junior chef disclosed to Davis that he was only making $12 per hour and asked Davis if he should be making more money. [Id. ¶ 13.] Davis responded that $12 per hour was too low and that the starting pay for new chefs at the restaurant was minimum wage which, in New Jersey, is over $15 per hour. [Id. ¶ 15.]2
The newly hired chef went to Defendant Shott to discuss his payrate and his belief that he should be making $2 more per hour under New Jersey law. [Id. ¶ 17.] Shott then called a meeting with all of the chefs and demanded that they not discuss pay in the workplace, warning them that doing so was a terminable offense. [Id. ¶ 18.] Davis spoke up. He told Shott that he was the one to disclose the proper payrate to his coworker and that Shott could not lawfully terminate employees for discussing pay in the workplace.
During or shortly after the meeting, Shott called Defendant Brian Alvarado, a Benihana regional corporate manager. [Id. ¶ 24.] Alvarado spoke to Davis and the other chefs and instructed them to “try to avoid” discussing pay in the workplace because it can create a hostile work environment. [Id.] About an hour after the meeting, Defendant Shott demanded that Davis clock out of his shift early. [Id. ¶ 27.] He refused. [Id.] Shott fired him on the spot and called the police to have Davis removed from the restaurant. [Id. ¶ 28.]
III. PROCEDURAL BACKGROUND
Davis sued Benihana, Shott, and Alvarado in the Superior Court of New Jersey. He alleged that they unlawfully retaliated against him in violation of New Jersey‘s Conscientious Employee Protection Act (“CEPA“), which prohibits employers from retaliating against a whistleblower-employee who objects to or refuses to participate in an activity, policy, or practice of the employer which the employee reasonably believes is unlawful.
Defendants removed the case to this Court based on the diversity of the parties and because, they argue, the National Labor Relations Act,
IV. LEGAL STANDARD
The Court undertakes its review under
A party may challenge subject matter jurisdiction under
V. ANALYSIS
A. Federal Jurisdiction and Complete Preemption
Federal courts have original jurisdiction over disputes between citizens of different states where the amount in controversy is greater than $75,000,
Defendants allege that the Court has original jurisdiction over this case based on the diversity of the parties. [Notice of Removal ¶ 5 (alleging that the action is “between citizens of different states“).] But the parties are not, as alleged, completely diverse. Plaintiff and Defendant Shott are both allegedly citizens of New Jersey. [Compl. ¶¶ 1, 3.] And so, because Plaintiff and Defendant Shott are both allegedly citizens of New Jersey, this Court does not have subject matter jurisdiction based on diversity of citizenship.
But Defendants also allege that this Court has federal question jurisdiction over this case. They argue that the NLRA, a federal statute, completely preempts Plaintiff‘s state law whistleblower and anti-wage discrimination claims, the only claims appearing on the face of Plaintiff‘s well-pleaded complaint. [Notice of Removal ¶¶ 11-16.]
Usually, federal question jurisdiction only attaches if a federal issue appears on the face of the plaintiff‘s well-pleaded complaint. See Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8-10 (1983). And “[t]he existence or expectation of a federal defense is insufficient to confer federal jurisdiction.” New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
But a “narrow exception” to the well-pleaded complaint rule applies where Congress “has expressed its intent to ‘completely pre-empt’ a particular area of law such that any claim that falls within [that] area is ‘necessarily federal in character.‘” In re U.S. Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999)
“Congressional power to legislate in the area of labor relations, of course, is long established.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985); see also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding constitutionality of NLRA under Congress‘s Commerce Clause powers). In San Diego Building Trades Council v. Garmon, the Supreme Court held that the States cannot regulate conduct that is arguably protected under Section 7 of the NLRA or arguably prohibited under Section 8 of the NLRA. 359 U.S. at 245. So, when activity is “arguably” subject to Section 7 or Section 8 of the NLRA, state law is completely preempted, and a federal court (or a state court)
Practically, for purposes of this Court‘s jurisdiction, Defendants’ removal of this action based on Garmon preemption means two things. First, if the Court agrees that Plaintiff‘s claims are completely preempted by Garmon, Defendants’ removal was proper and the Court must dismiss the case for lack of subject matter jurisdiction so that it can instead be adjudicated before the NLRB, which has exclusive jurisdiction over the dispute. Second, if the Court finds that Plaintiff‘s claims are not subject to Garmon preemption, the Court must remand the case because there would be no other basis for the Court‘s original jurisdiction. The parties are not completely diverse and there are no other federal claims appearing on the face of Plaintiff‘s well-pleaded complaint.
B. Garmon Preemption Under the NLRA
Passed in 1935, the NLRA “encourag[es] the practice and procedure of collective bargaining” between labor and management to resolve “industrial disputes arising out of differences as to wages, hours, or other working conditions.”
Over sixty years ago in San Diego Building Trades Council v. Garmon, the Supreme Court held that when the States regulate activity that is “arguably protected” under Section 7 of the NLRA or “arguably prohibited” under Section 8 of the NLRA, “the States as well as the federal courts must defer to the exclusive competence of the [NLRB]” in order to “avert[]” “the danger of state interference with national [labor] policy.” 359 U.S. at 245; see also Voiles v. Gen. Motors Corp., 170 F.3d 367, 378 (3d Cir. 1999) (”Garmon preemption protects the exclusive jurisdiction of the NLRB over unfair labor practice proceedings.“). Activity is “arguably subject” to Garmon preemption if “the party claiming preemption ... demonstrate[s] that [its] case is one that the [NLRB] could decide in [its] favor” based on “an interpretation of the [NLRA] that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board.” Davis, 476 U.S. at 395. The party claiming preemption must demonstrate that the NLRA arguably protects or prohibits the conduct in question under an “interpretation of the [NLRA] that is not plainly contrary to its language and that has not been authoritatively rejected by the courts or the Board.” Id. (internal quotation marks and citation omitted). If the court determines that “there is an arguable case for pre-emption,” id. at 397, “it generally must grant the party‘s preemption defense and
As the Supreme Court has noted, Garmon preemption is “unusual” in its broad sweep. Glacier Nw., 598 U.S. at 776. Normally, federal law completely preempts state law only where it was the “clear and manifest purpose of Congress” to displace the States’ historic police powers. Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks and citation omitted). But Garmon preemption casts a wider net. Garmon provides that the NLRA preempts state labor law “even when the two only arguably conflict.” Glacier Nw., 598 U.S. at 776 (emphasis in original). So, as long as the party invoking Garmon preemption has “met its burden to show that ‘there is an arguable case for pre-emption,’ [a court] generally must grant the party‘s preemption defense and await the [NLRB‘s] resolution of the legal status of the relevant conduct.” Id. at 777 (quoting Davis, 476 U.S. at 397). The Garmon Court reasoned that its “prophylactic rule of pre-emption,” Glacier Nw., 598 U.S. at 786 (Thomas, J., concurring), was necessary to effectuate Congress‘s intent to “entrus[t] administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience,” Garmon, 359 U.S. at 242. See Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 187 (1978) (explaining that Garmon preemption provides “general guidelines for
1. Garmon‘s “Local Interest Exception”
Although Garmon is strong medicine to “reflect[] the basic federal concern with potential state interference with national labor policy,” it does not “inflexibl[y]” or “mechanical[ly]” apply any time state law regulates the workplace. Sears, 436 U.S. at 188-89 (citations omitted). Carving out exceptions to its broad preemption rule, the Court in Garmon explained that preemption is inappropriate when a state law relates to a “merely peripheral concern of the [NLRA]” or when it “touche[s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [a court] could not infer that Congress had deprived the States of the power to act.” Garmon, 359 U.S. at 243-44.4
Garmon‘s latter exception—known as the “local interest” exception—is rooted in concerns of federalism. “In the scheme of our federalism,” the Court in Garmon explained, the States’ historic power to “main[tain] domestic peace” cannot be
As former Solicitor General Archibald Cox once wrote, “[n]o one would suggest that, because it is an unfair labor practice for an employer to beat-up union organizers and run them out of town, the state is deprived of power to prosecute the employer, or [that] the organizers have no private right to recover damages under state law.” Archibald Cox, Recent Developments in Federal Labor Law Preemption, 41 OHIO ST. L.J. 277, 281 (1980). In this vein, the Supreme Court‘s cases have not extended the local interest exception “beyond a limited number of state interests that are at the core of the States’ duties and traditional concerns,” including laws protecting private property, bodily security, and preservation of the public order. New York Tel. Co. v. New York State Dep‘t of Lab., 440 U.S. 519, 550-51 (1979) (Blackmun, J., concurring); Belknap, Inc. v. Hale, 463 U.S. 491, 509-11 (1983) (collecting cases); see also Hotel Emp. & Rest. Empl. Union, Local 57 v. Sage Hosp. Resources, LLC, 390 F.3d 206, 212 n.4 (3d Cir. 2004) (“The local interest exception has ordinarily been applied where the conduct alleged concerned activity traditionally recognized to be the subject of local regulation, most often involving threats to public order such as violence, threats of violence, intimidation and destruction of property and also to cover acts of trespass.” (internal quotation marks and
To determine whether Garmon‘s local interest exception applies, a court must first determine if adjudicating the state law claims would present a “risk of interference with the regulatory jurisdiction of the Labor Board.” Sears, 436 U.S. at 196. Next, it must determine whether the state law regulates “a significant state interest” “so deeply rooted in local feeling and responsibility.” Id. at 194-95 (quoting Garmon, 359 U.S. at 244). Finally, it must balance the two together, that is, any significant, deeply-rooted local interest, against any risk of interference with the NLRB‘s ability to adjudicate the controversy. Belknap, 463 U.S. at 489-99 (“[T]he state‘s interest in controlling or remedying the effects of the conduct [must be] balanced against [] the interference with the Board‘s ability to adjudicate controversies committed to it by the Act[.]“); Loc. 926, Int‘l Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 676 (1983) (“The question of whether regulation should be allowed because of the deeply-rooted nature of the local interest involves a sensitive balancing of any harm to the regulatory scheme established by Congress.“); Pennsylvania Nurses Ass‘n v. Pa. State Educ. Ass‘n, 90 F.3d 797, 803 (3d Cir. 1996) (state law must be balanced against “the risk that the exercise of state jurisdiction over the tort claim would interfere with the regulatory jurisdiction of the
2. Sears and the Identical Controversies Analysis
In Sears, Roebuck & Co. v. San Diego District Council of Carpenters, the Supreme Court refined Garmon‘s local interest exception. Writing for the majority, Justice Stevens explained that whether state law risks interference with the NLRB‘s regulatory jurisdiction depends on whether state law is regulating conduct that is arguably protected by Section 7 of the NLRA or arguably prohibited by Section 8 of the NLRA. Sears, 436 U.S. at 189-90.
a. Laws Regulating Arguably Protected Activity
With respect to laws regulating arguably protected conduct, the animating concern of the local interest exception is that the state court will erroneously restrict conduct that is actually protected under the NLRA. See id. at 200. That concern is rooted in history. Congress passed the NLRA in no small part due to the hostility exhibited by some Progressive Era state (and federal) courts to union organization, federal policies concerning union organization, and collective bargaining, even though some of that activity, like picketing, was arguably protected under the First Amendment. See Cox, Recent Developments in Federal Labor Law Preemption, supra, at 287-88; THE DEVELOPING LABOR LAW 3-5 (Higgins, Jr. et al., eds. 8th ed. 2023); see also Melvin I. Urofsky, State
b. Laws Regulating Arguably Prohibited Activity
With respect to laws regulating arguably prohibited activity, the animating concern of the local interest exception is interference with the NLRB‘s “primary jurisdiction to enforce the statutory prohibition against unfair labor practices” under the NLRA. Sears, 436 U.S. at 198. The “critical inquiry” in determining whether there will be a conflict of primary jurisdiction is “whether the controversy presented to the [] court is identical to or different from ... that which could have been, but was not, presented to the Labor Board.” Id. at 197. Only where the “controversy presented to the [] court
c. CEPA and NJLAD Regulate Arguably Prohibited Activity
The parties do not dispute that the preemption concern in this case is of the latter variety—one of primary jurisdiction under the arguably prohibited branch of Garmon. [See Pl.‘s Br. at 10-12; Docket No. 12 (“Defs.’ Reply Br.“) at 11-13.] Plaintiff brings claims under both CEPA and NJLAD, state statutes that regulate employer conduct arguably prohibited under Section 8 of the NLRA. See Puglia v. Elk Pipeline, Inc., 141 A.3d 1187, 1207 (N.J. 2016) (applying primary jurisdiction rationale of Garmon to state whistleblower statute); Hume v. Am. Disposal Co., 880 P.2d 988, 993 (Wash. 1994) (en banc), cert. denied, 513 U.S. 1112 (1995) (same); Moreno v. UtiliQuest, LLC, 29 F.4th 567, 576 (9th Cir. 2022) (applying primary jurisdiction rationale of Garmon to California whistleblower and wrongful termination statutes); Pennsylvania Nurses, 90 F.3d at 804 (applying primary jurisdiction rationale of Garmon to Pennsylvania common law tort claims brought by nurses’ union against competing union and labor representatives); see also Pia, 227 F. Supp. 3d at 1004-05 (applying primary jurisdiction rationale of Garmon
d. When are the “Controversies Presented” Identical?
What does it mean that the “controversies presented” between the state law and the NLRA charge have to be identical? There are two things it cannot mean. First, it cannot mean that the NLRA charge and the state law claim must match element-for-element or remedy-for-remedy. If that were true, as the Third Circuit has recognized, “state claims would never be preempted” because “[a] Board proceeding and a state-law cause of action [are], by definition, ... different claims” with different elements and different remedies. See Pennsylvania Nurses, 90 F.3d at 805. The Supreme Court‘s cases, too, have rejected that kind of rigid identity of claims. See Jones, 460 U.S. at 682, 684 (rejecting argument that controversies were not identical because state court could award punitive damages and fees whereas NLRB could only award backpay and explaining that controversies must only be “the same in a fundamental respect“);
The key, instead, lies in comparing both the factual and legal proofs necessary to establish both an unfair labor practices charge under the NLRA and the state law cause of action. If the facts alleged in support of the state law cause of action could also support a finding that the defendant violated the NLRA, the claims are identical and there would be a risk of interference with the NLRB‘s primary jurisdiction. See Jones, 460 U.S. at 682 (holding that because liability on state law claim was also sufficient to establish an NLRA violation, there was a risk of interference with the Board‘s jurisdiction); Moreno, 29 F.4th at 576 (state law claim was identical to NLRA charge because the “facts as alleged in [the plaintiff‘s] complaint could [also] support a finding that [the defendant] violated the NLRA“); Pennsylvania Nurses, 90 F.3d at 804 (where “much of the conduct forming the basis of the state tort claims also underlies the potential unfair labor practice charges, and the same facts would need to be determined in each proceeding” there is a
Sears is a good example for this guiding inquiry. In Sears, an employer sued a union for trespass in California state court after the union refused to comply with the employer‘s demand to cease picketing on its property. 436 U.S. at 198. The California Supreme Court applied Garmon to preempt the employer‘s trespass claim holding that the union‘s picketing was arguably prohibited under Section 8. Id. at 183-84.5 But the United States Supreme Court reversed under the local interest exception. It held that the trespass claim before the state court was not identical to the NLRA charge that could have been, but was not, presented before the NLRB. Why? Because, to determine whether there was a trespass under California law, the state court would have to determine only the location of the picketing. Id. at 198. But the unfair labor practice charge would have been limited to the question of “whether the picketing had a
recognitional or work-reassignment objective, and issue completely unrelated to the simple question whether a trespass had occurred. Id. So, because determining the location of the picketing would play no part in establishing an unfair labor practice charge under Section 8 of theWith these background principles in mind, the Court now turns to Defendants’ arguments in support of dismissal that the CEPA and NJLAD claims in this case are preempted under Garmon.
C. Defendants’ Conduct was Arguably Prohibited Under Section 8 of the NLRA and Arguably Protected Under Section 7 of the NLRA
Plaintiff does not meaningfully contest that his employer‘s conduct was an unfair labor practice arguably prohibited under Section 8 of the
Plaintiff argues that he never engaged in “concerted activity” within the meaning of Section 7 of the
The Court disagrees. First, the Court finds that Plaintiff‘s activity, as alleged, was indeed concerted, and therefore, qualifies as arguably protected under Section 7 of the
Plaintiff privately disclosing the standard rate of pay to his colleague, [see Compl. ¶¶ 14–15], was not likely, by itself, concerted activity. See Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964) (holding that employee who privately dispensed advice to employees “without involving fellow workers or union representation to protect or improve his own status or working position” did not qualify as concerted activity). In that initial conversation, he was simply answering his colleague‘s question. But when Defendant Shott called the all-hands meeting to warn the chefs that discussing pay in the workplace was a terminable offense, Plaintiff alleges that he spoke up on behalf of both himself and his colleagues. As specifically alleged, Plaintiff used his “position of leadership among his coworkers” to challenge Shott‘s “generalized threat of retaliation” and demand that Shott take “responsib[ility] for disclosing the standard
Second, and more importantly, even assuming that Plaintiff never engaged in concerted activity, it makes no difference to the Garmon analysis in this case. Whether Plaintiff engaged in concerted activity for the purposes of mutual aid or protection of his fellow chefs is relevant to determining whether his conduct was arguably protected under Section 7 of the
“It is beyond dispute that,” as here, “an employer violates Section 8(a)(1) by threatening to terminate an employee in order to prevent [him] from exercising [his] Section 7 rights, for example, by discussing wages with coworkers.” See Parexel Int‘l, 356 N.L.R.B. 516, 519 (2011). That is because “enforcement of a rule against discussing wages effectively interferes with employee rights and violates Section 8(a)(1) even if no employee has yet engaged in protected activity and been disciplined under the rule.” Id. at 518 (emphasis added). Logically, that makes sense. “If maintenance of such a rule violates the Act, a fortiori, the discharge of an employee to prevent [him] from engaging in such conduct violates [Section 8(a)(1)] of the Act,” even without a specific finding of concerted activity. Id. So, “[i]f an employer acts to prevent concerted protected activity—to ‘nip it in the bud‘—that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.” Id. at 519; accord Central Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972) (“[O]rganization rights are not viable in a vacuum;
Here, even if Plaintiff never engaged in concerted activity for purposes of mutual aid or protection of his fellow chefs, Defendants’ workplace rule and demand to refrain from discussing wages in the workplace chilled the exercise of the chefs’ Section 7 rights. Parexel Int‘l, 356 N.L.R.B. at 518 (“[W]age discussions among employees are considered to be at the core of Section 7 rights because wages, probably the most critical element in employment, are the grist on which concerted activity feeds.“) (internal quotation marks and citation omitted); Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976) (similar). That workplace rule and Defendants’ demand to obey it, if proven, is an unfair labor practice with or without concerted activity. It is enough to say, then, for purposes of Garmon, that Defendants’ conduct was arguably prohibited as an unfair labor practice under Section 8(a)(1) of the
Unless Plaintiff can establish that his CEPA and NJLAD claims fall within Garmon‘s local interest exception, his claims must go before the NLRB.
D. The Local Interest Exception: Applied
To determine whether the local interest exception applies, the Court must determine whether adjudicating the CEPA and NJLAD claims in this case presents a risk of interference with the NLRB‘s primary jurisdiction. Because laws like CEPA and NJLAD regulate conduct arguably prohibited under Section 8 of the
1. Plaintiff‘s CEPA Claim Presents a Risk of Interference with the NLRB‘s Primary Jurisdiction
The Court finds that Plaintiff‘s CEPA claim is identical to an unfair labor practices charge that he could have, but did not, file with the NLRB. Adjudicating the CEPA claim in state court thus presents a serious risk of interference with the NLRB‘s primary jurisdiction.
a. Puglia v. Elk Pipeline and Preemption of State Whistleblower Claims
This Court is not the first to have considered whether whistleblower claims under CEPA fit within Garmon‘s local interest exception. In Puglia v. Elk Pipeline, Inc., the New Jersey Supreme Court considered the same question and unanimously held that the
The plaintiff in Puglia sued his employer under CEPA alleging that he was unlawfully terminated after he complained about his employer‘s failure to pay him in accord with New Jersey‘s Prevailing Wage Act. 141 A.3d at 1190. The New Jersey Supreme Court found that it was “beyond real dispute” that plaintiff‘s conduct was arguably protected and his employer‘s conduct arguably prohibited. Id. at 1207. But in applying the local interest exception—relying on a decision by the Washington Supreme Court, which similarly found its state whistleblower statute covered by the local interest exception, see Hume v. Am. Disposal Co., 880 P.2d 988, 992–93 (Wash. 1994)—the Puglia Court held that the proofs between the plaintiff‘s CEPA claim and an unfair labor practices dispute under the
The New Jersey Supreme Court found that even if there was a risk of interference, New Jersey‘s interest in protecting its citizens under CEPA was deeply-rooted and more
Most courts, however, have declined to find that state whistleblower statutes, including CEPA, fall within Garmon‘s local interest exception. See Moreno, 29 F.4th at 567 (applying Garmon to California whistleblower statute and finding that local interest exception did not apply); Casumpang v. Hawaiian Comm. and Sugar Co., 712 Fed. App‘x 709 (9th Cir. 2018) (applying Garmon preemption to safety claims under Hawaii Whistleblower Protection Act and finding that local interest exception did not apply); Platt v. Jack Cooper Transp., Co., 959 F.2d 91, 96 (8th Cir. 1992) (applying Garmon to California whistleblower statute and finding that local interest exception did not apply); Henry v. Laborers’ Local 1191, 848 N.W.2d 130, 145–46 (Mich. 2014) (applying Garmon to Michigan Whistleblowers’ Protection Act and finding that local interest exception did not apply); Smith v. Bewlay, 2000 WL 306950, at *10 (D. Conn. 2000) (applying Garmon preemption to dismiss Connecticut state law wrongful discharge claim notwithstanding state interest that “employers may not retaliate against employees for lawful whistle-blowing activities“). Two courts in this District have reached the same conclusion specifically with respect to CEPA. Shinn v. FedEx Freight, Inc., 2016 WL 7130911, at *3 (D.N.J. Dec. 7, 2016) (Hillman, J.) (holding that CEPA claim was preempted under Garmon and did not fall within the local interest exception because plaintiff‘s claims had already been considered and dismissed by NLRB); Londono v. ABM Janitorial Servs., 2014 WL 7146993, at *3 (D.N.J. Dec. 12, 2014) (Salas, J.) (holding that CEPA claim was preempted under Garmon and did not fall within the local interest exception).
Most recently, as an illustration, the Ninth Circuit in Moreno v. UtiliQuest held that the plaintiff‘s whistleblowing and unlawful termination and retaliation claims were
b. The Controversies Presented Between Plaintiff‘s CEPA Claim and an Unfair Labor Practices Charge Are Identical
For the reasons that follow, the Court finds that the facts alleged by Plaintiff here could establish both a violation of CEPA and an unfair labor practices charge under Section 8(a)(1) of the
Section 34:19-3(c)(1) of CEPA provides, in relevant part, that:
An employer shall not take any retaliatory action against an employee because the employee ... [o]bjects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes ... is in violation of a law, or a rule or regulation promulgated pursuant to law[.]
So, to state a claim under CEPA, the plaintiff must show: that (1) he reasonably believed defendants were violating a law, rule, or public policy; (2) he performed a whistleblowing activity, including objecting to or refusing to participate in, the violation of the identified law, rule, or public policy; (3) an adverse employment action was taken against him; and (4) a causal relationship exists between the whistleblowing activity and the adverse employment action. Puglia, 141 A.3d at 1200.
Plaintiff‘s allegations are critical to the identical controversies analysis. As alleged here, the proofs necessary to sustain a CEPA violation in this case cannot be disentangled from an
Contrast the proofs here with those in Sears where the Supreme Court applied the local interest exception. Recall that in the state court action in Sears, the plaintiff-employer sued the defendant-union for trespassory picketing. To determine whether there was a trespass under California state law, the state court would have to determine only the location of the picketing. 436 U.S. at 198. But “[t]he unfair labor practice charge would have focused on whether the picketing had recognitional or work reassignment objectives, issues ‘completely unrelated to the simple question whether a trespass had occurred.‘” Jones, 460 U.S. at 682-83 (quoting Sears, 436 U.S. at 198). So, because determining the location of the picketing would not also establish an unfair labor practices charge before the NLRB, there would be no risk of interference with the Board‘s primary jurisdiction.
In this case, however, the state court would have to determine whether Plaintiff was terminated in retaliation for objecting to his employer‘s unlawful demand under both CEPA and Section 8 of the
As noted, the New Jersey Supreme Court in Puglia found the CEPA and
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 play no role in a CEPA action.
Here, the Court parts ways with the New Jersey Supreme Court. The additional element of concerted activity under the
Second, a finding of concerted activity is not always necessary to sustain an unfair labor practices charge under Section 8(a)(1) of the
That is what happened here. It would be an unfair labor practice under Section 8(a)(1) of the
2. Plaintiff‘s NJLAD Claim Presents a Risk of Interference with the NLRB‘s Primary Jurisdiction
Applying the same analytical framework as it did to the CEPA claim, the Court finds that Plaintiff‘s NJLAD‘s anti-wage discrimination claim under Section 10:5-12(r) is identical to an unfair labor practices charge that he could have filed with the NLRB. Thus, there is also a risk of interference with the Board‘s regulatory jurisdiction by proceeding with the NJLAD claim.
Section 10:5-12(r) of the NJLAD makes it unlawful:
For any employer to take reprisals against any employee for requesting from, discussing with, or disclosing to, any other employee or former employee of the employer ... regarding the ... rate of compensation, including benefits, of the employee or any other employee or former employee of the employer[.]8
Like NJLAD Section 10:5-12(r), Section 8(a)(1) of the
3. CEPA and NJLAD Are Not Statutes Deeply Rooted in Local Feeling and Responsibility
Even if the Court were to conclude that there was little risk of interference between the CEPA and NJLAD claims in this case, it finds that both statutes are not deeply-rooted in local feeling and responsibility. They are not the kind of state laws the Garmon court had in mind when it carved out the local interest exception for state interests “deeply rooted in local feeling and responsibility.” Garmon, 359 U.S. at 244. What the Supreme Court had in mind and specifically considered were state laws regulating “conduct marked by violence and imminent threats to the public order.” Id. at 247. “State jurisdiction has prevailed in these situations,” the Court explained, “because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction.” Id.
No doubt, New Jersey has a genuine interest in protecting its citizens from unlawful employment practices under both CEPA and NJLAD Section 10:5-12(r). See Moreno, 29 F.4th at 576 (finding that local interest exception did not apply under Sears identical controversies analysis but acknowledging that California had a legitimate interest in protecting its citizens under whistleblowing and wrongful termination statutes). But so was the interest in Wisconsin Dep‘t. of Industry v. Gould, 475 U.S. 282. In that case, the Supreme Court found that Garmon preempted a Wisconsin statute barring repeat labor law violators from selling their products to the state. Id. at 291. Wisconsin‘s interest in punishing repeat labor law violators may have been “laudable” but “it assume[d] for the State of Wisconsin a role Congress reserved exclusively for the Board.” Id.
So, too, here. In this case, as alleged, the CEPA and NJLAD Section 10:5-12(r) claims are not regulating the kind of extreme conduct under generally applicable non-labor laws traditionally and historically committed to the States’ police powers. Instead, they would be operating to “interfere with the ‘interrelated federal scheme of law, remedy, and administration.‘” Gould, 475 U.S. at 290 (quoting Garmon, 359 U.S. at 243)). Accordingly, the Court finds that the state laws in this case do not fit within the local interest exception. See Andrewsikas v. Supreme Indus., Inc., 2021 WL 1090786, at *7 (D. Conn. Mar. 22, 2021) (state interest in the enforcement of employee whistleblowing
* * *
Having found that there would be both a risk of interference in adjudicating the state law claims and that those state laws, under the Supreme Court‘s cases, do not implicate the kinds of deeply-rooted local interests contemplated by Garmon, the Court determines that the risk of interference with the Board‘s primary jurisdiction outweighs any state interest in adjudicating the claims.9 It does so with a few parting words.
Second, the Court is mindful of Garmon‘s black hole-like tendency to “reduce to the vanishing point States’ power to redress wrongful acts in the labor field and provide any effective remedy under their own laws for tortious conduct.” Glacier Nw., 598 U.S. at 787 (Thomas, J. concurring) (quoting Garmon, 359 U.S. at 253–54 (Harlan, J., concurring) (cleaned up)). That is a serious concern, one shared by Justice Harlan who feared that Garmon‘s broad rule of preemption would “cut[] deeply into the ability of States to furnish an effective remedy under their own laws for the redress of past nonviolent tortious conduct[.]” Garmon, 359 U.S. at 253 (Harlan, J., concurring). Forcing New Jersey workers to settle for—in the words of the New Jersey Supreme Court in Puglia—a “half-baked remedy” before the NLRB, 141 A.3d at 1209, an administrative body limited to awarding reinstatement and backpay, tends to undermine the broad remedial purposes of statutes like CEPA and NJLAD which allow a plaintiff to seek compensatory and punitive damages in court. See Abbamont v. Piscataway Twp. Bd. of Educ., 650 A.2d 958 (N.J. 1994) (CEPA “promotes a strong public policy of the State” and “therefore should be construed liberally to effectuate its important social goal“); Battaglia v. United Parcel Serv., Inc., 70 A.3d 602, 619 (N.J. 2013) (NJLAD is a “broad[,] remedial” statute and its “overarching goal is the eradication of the cancer of
VI. CONCLUSION
For the reasons stated in this Opinion, the Motion to Dismiss will be GRANTED. Plaintiff‘s claims are preempted under Garmon and must go before the National Labor Relations Board. An appropriate Order will follow.
February 20, 2025
Date
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge