Salvatore Puglia v. Elk Pipeline, Inc.

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.

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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).

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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statutes are, would undermine the purpose of those statutes and

leave employees with a half-baked remedy.