NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3774

____________

TERRY ROE, an Individual Pseudonym,

Appellant

v.

EDWARD DIAMOND, Individually and as Manager Cardiac 

Services of JSUMC; MERIDIAN HEALTH SYSTEMS INC.; 

MERIDIAN HEALTH INC; MERIDIAN HOSPITALS CORP.; 

MERIDIAN HEALTH; DONNA M. CUSSON, Individually and as 

Assistant Nurse Manager Invasive Cardiology of JSUMC; JERSEY 

SHORE UNIVERSITY MEDICAL CENTER, JSUMC; ERICKA D. 

CLARK DISTANISLAO, Individually and as Staff Nurse and 

Preceptor Invasive Cardiology of JSUMC; JENNIFER S. LOVEY, 

Individually and as Staff Nurse Preceptor Invasive Cardiology of 

JSUMC; HEALTH PROFESSIONALS AND ALLIED 

EMPLOYEES, AFT/AFL-CIO HPAE; HPAE LOCAL, #5058

____________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 10-cv-06798)

District Judge: Honorable Joel A. Pisano

____________

Submitted Under Third Circuit LAR 34.1(a)

April 13, 2012
2

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge

and JONES, II,* District Judge.

(Opinion Filed: March 20, 2013)

____________

OPINION 

____________

Jones, II, District Judge.

Terry Roe brought suit against Defendants Jersey Shore University Medical 

Center (―JSUMC‖), Meridian Health Systems, Inc., Meridian Health, Inc., Meridian

Hospitals Corp. and Meridian Health (collectively, ―the Hospital‖), Edward Diamond, 

Donna Cusson, Ericka Distanislao, and Jennifer Lovey (collectively, ―Individual 

Defendants‖), and Health Professionals and Allied Employees (―HPAE‖), AFT/AFLCIO, and HPAE Local #5058 (collectively, ―the Union‖), alleging numerous labor and 

employment violations. Roe appeals a decision from the United States District Court for 

the District of New Jersey granting Defendants‘ motions to dismiss Roe‘s claims under 

Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (―LMRA‖), and 

Section 7 of the National Labor Relations Act, 28 U.S.C. § 157 (―NLRA‖), following 

JSUMC‘s termination of Roe from his position as a nurse in JSUMC‘s Cardiac 

Catheterization Laboratory. The District Court declined to exercise supplemental 

jurisdiction over Roe‘s remaining state law claims. 

 

*The Honorable C. Darnell Jones, II, District Judge for the United States District 

Court for the Eastern District of Pennsylvania, sitting by designation.
3

For the reasons discussed below, we affirm-in-part and reverse-in-part and remand 

for further proceedings.

I. BACKGROUND

We write principally for the benefit of the parties and recite only the essential facts 

and procedural history. 

A. Roe‘s Employment

Terry Roe began his employment at JSUMC‘s Cardiac Catheterization Laboratory 

in August 2010. During the hospital-wide orientation program for new nurses on August 

10, 2010, Roe received a copy of the Collective Bargaining Agreement (―CBA‖) between 

the Union and JSUMC. 

Plaintiff commenced working in the Cardiac Catheterization Laboratory under 

Defendant Distanislao as part of JSUMC‘s Preceptor Program. After Roe complained 

about Distanislao, Roe was assigned Defendant Lovey as his new preceptor for the 

remainder of the Preceptor Program. Roe alleges that their relationship was positive and 

amicable until their final twenty-four hours together. At that point, Lovey‘s attitude 

suddenly changed and Lovey told Roe to perform tasks that he was not previously

required to do. That same day, Defendant Cusson informed Roe that Lovey had reported 

deficiencies in Roe‘s work. Roe was instructed that if his work did not improve, he 

would be terminated at the end of the ninety-day ―probationary period,‖ as provided in 

the CBA. 
4

JSUMC ultimately terminated Roe on October 18, 2010, during his probationary 

period. Following his termination, Roe contacted the Union representative to pursue any 

remedy under the CBA. The Union representative, Frederick DeLuca, filed a grievance 

on Roe‘s behalf, which JSUMC denied. DeLuca informed Roe that the Union would not 

pursue arbitration, and explained that the Union‘s past pattern and practice, consistent

with ―the way the Union and Corporate Defendants  ̳read‘ the CBA‖ was that ―no 

procedural nor substantive job protections apply‖ until after the ninety-day probationary 

period.

B. The CBA

JSUMC and the Union are parties to a CBA, which gives JSUMC certain rights 

regarding the discipline and discharge of covered employees. Under the CBA, the Union 

can contest any discharge or disciplinary action, and the parties consent to arbitrate any 

―grievance‖ that remains unresolved after the defined ―grievance procedure.‖ (App. 

120). Because Roe‘s claims require interpretation of the CBA, several key CBA 

provisions are discussed herein.

The CBA provides in relevant part:

1. Agreement Scope 

This Agreement covers all employees . . . and includes permanent 

full-time or permanent part-time employees as defined in Article 

Four, employed as a Graduate or Registered Nurse, Certified 

Registered Nurse Anesthetist, Clinical Nurse Specialist, Nurse 

Clinician, Nursing Education Instructor and per diem nurses (herein 

called “employee”) employed by the Hospital, excluding all other 

employees including Nurse Managers, Assistant Nurse Managers, 
5

Nurse Practitioners, Clinical Nurse Coordinators and other 

Supervisors as defined by the [NLRA].

******

4. Employee Status

. . . .

4.01 Status I- Full Time Permanent: An employee who is employed 

on a regular basis to work forty (40) hours per work week . . . .

4.02 Status II- Part Time Permanent: An employee who is employed 

on a regular basis to work twenty (20) but less than thirty-six (36) 

hours per week.

4.03 Status III- Part Time Permanent: An employee who is 

employed on a regular basis to work nineteen (19) or fewer hours 

per work week.

4.04 Status IV- Per Diem: An employee who is employed as needed 

by the Hospital and subject to the employee‘s availability with no 

guarantee of hours. Such employee shall be part of the bargaining 

unit and as such be entitled to seniority and all rights and benefits as 

outlined in the contract . . . 

4.05 Status V- Temporary: An employee who is employed full time 

or part time for a limited period of time, no greater than six (6) 

months in any calendar year . . . . 

4.08 Probationary Period: All employees regardless of status will be 

on probation for ninety (90) calendar days following employment . . 

. .

******

12. Discipline and Discharge

12.01 The Hospital shall reserve the right to discipline, suspend or 

discharge any employee only for just cause . . . .

12.02 The designated Union representative, the Union office and the 

employee involved shall be advised, in writing, of any discharge, 

suspension or disciplinary action. A copy of the notice given to the 

employee shall be mailed to the Union within twenty-four (24) hours

. . . .

******

13. Grievance Procedure
6

. . . .

13.02 Step I- Chief Nurse Executive: Grievances shall be raised by 

the employee and /or union representative with the Chief Nurse 

Executive or his/her designee in writing within ten (10) working 

days from occurrence giving rise to the grievance or within ten (10) 

working days from the time the employee should have reasonably 

been aware of such occurrence, whichever is later. If the matter is 

not resolved within five (5) working days of presentation of the 

grievance, it may be taken to Step II. The employee, at his/her 

request, shall have the right to have a Union representative present.

13.03 Step II- Vice President of Human Resources: The 

employee/Union shall forward the grievance to the Vice President of 

Human Resources or his/her designee within five (5) working days 

after the receipt of the written response from the Department 

Manager. The matter will be investigated and meeting scheduled 

within ten (10) working days after the receipt of the written appeal. 

A written response to the grievance shall be given within five (5) 

working days after the meeting and returned to the grieving party. If 

there is no resolution, the grieving party may progress to Step III. 

13.04 Step III- Arbitration: The grievance may be submitted to 

arbitration by the Union within twenty (20) working days from the 

receipt of the answer in Step II . . . .

******

20. Scope of Bargaining

The Hospital and the Union acknowledge that during the 

negotiations which resulted in this Agreement, each had the 

unlimited right and opportunity to make demands and proposals with 

respect to any subject matter not removed by law from the area of 

collective bargaining and that the understanding and agreements 

arrived at by the parties after the exercise of that right and 

opportunity are set forth in this Agreement, which constitutes the 

full and complete agreement between the parties notwithstanding 

any oral agreement or any past practices, policies or procedures . . 

. .

(Id. at 73-123 (emphasis added).)

C. Roe‘s Lawsuit
7

In Roe‘s Amended Complaint, he alleges seven causes of action: (1) a hybrid 

claim under Section 301 of the LMRA, 29 U.S.C. § 185, alleging that the Hospital 

breached the CBA and that the Union breached its duty of fair representation; (2) a claim 

under Section 7 of the NLRA, 28 U.S.C. § 157, alleging that the Hospital violated Roe‘s 

right to engage in collective bargaining; (3) a claim under the New Jersey Law Against 

Discrimination against the Hospital, Cusson, and Diamond; (4) a defamation claim 

against the Hospital and Individual Defendants; (5) breach of contract claims against the 

Hospital; (6) a claim under New Jersey‘s Conscientious Employee Protection Act against 

the Hospital, Cusson, and Diamond; and (7) a claim for tortious interference with 

prospective economic advantage against the Hospital and the Individual Defendants. 

The District Court granted Defendants‘ Motions to Dismiss on October 5, 2011. 

With respect to Roe‘s hybrid claim under the LMRA, the District Court held that Roe 

failed to state a claim under the LMRA because he had not pled sufficient facts to show 

that the Union breached its duty of fair representation. Because Roe did not demonstrate 

that the Union breached its duty of fair representation, which is a necessary predicate in a 

hybrid Section 301 claim, the District Court dismissed Roe‘s corresponding Section 301 

claim against the Hospital. The District Court also held that Roe‘s NLRA claim was 

preempted and subject to the exclusive jurisdiction of the National Labor Relations Board 

(―NLRB‖). Finally, the District Court declined to exercise supplemental jurisdiction over 

Roe‘s remaining state law claims. Roe v. Diamond, Civ. No. 10-6798, 2011 WL 

4736353, passim (D.N.J. Oct. 6, 2011). This timely appeal followed. 

II. DISCUSSION
8

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. This Court 

likewise has appellate jurisdiction under 28 U.S.C. § 1291. We review the District 

Court‘s dismissal of a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure de novo. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). 

―[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.‖ McTernan v. City 

of York, 577 F.3d 521, 530 (3d Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (internal quotation marks omitted). We accept as true all well-pled factual 

allegations and construe the complaint in the light most favorable to the non-moving 

party. See Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 405 (3d Cir. 2008).

A. Breach of the Duty of Fair Representation 

A union‘s duty of fair representation is derived from the principle that the law allows 

a ―single labor organization to represent collectively the interests of all employees within 

a unit, thereby depriving individuals in the unit of the ability to bargain individually. . . .‖ 

See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 n.14 (1983). Because a 

collective bargaining agreement otherwise divests individuals of means to protect their 

individual interests, the duty of fair representation serves as a ―bulwark to prevent 

arbitrary union conduct against individuals stripped of traditional forms of redress by the 

provisions of federal labor law.‖ See id. (citing Vaca v. Sipes, 386 U.S. 171, 182 (1967).

Individuals may sue for breach of a collective bargaining agreement under Section 301 of 

the LMRA. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 561-62 (1976). 

Ordinarily, where labor disputes are subject to a compulsory grievance/arbitration 
9

process, as in this case, an individual must exhaust all provided-for remedies in the 

collective bargaining agreement before bringing suit. See Clayton v. Int’l Union, United 

Auto., Aerospace, & Agr. Implement Workers of Am., 451 U.S. 679, 681 (1981)(citations 

omitted). Roe‘s hybrid claim under Section 301 of the LMRA, however, is an exception 

to this general rule. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64 

(1983). An employee is not required to exhaust all remedies in the collective bargaining 

agreement, when, as alleged here, a union, in its representation of the employee in a 

grievance procedure, has acted in ―such a discriminatory, dishonest, arbitrary, or 

perfunctory fashion as to breach its duty of fair representation.‖ See id. at 164. In such an 

instance, the employee may bring a ―hybrid‖ suit under the LMRA. The Supreme Court 

has described a hybrid claim as follows:

Such a suit, as a formal matter, comprises two causes of action. The suit 

against the employer rests on § 301, since the employee is alleging a breach

of the collective bargaining agreement. The suit against the union is one for 

breach of the union's duty of fair representation, which is implied under the 

scheme of the National Labor Relations Act. Yet the two claims are 

inextricably interdependent. 

Id. at 164-65 (citations and internal quotations omitted). 

A union‘s breach of the duty of fair representation is a ―necessary condition 

precedent‖ to a Section 301 claim against an employer for breach of a collective 

bargaining agreement. Albright v. Virtue, 273 F.3d 564, 576 (3d Cir. 2001). 

To demonstrate that the Union acted arbitrarily, and thus breached its duty of fair 

representation, Roe must demonstrate that ―in light of the factual and legal landscape at 

the time of [its] actions, the union‘s behavior is so far outside a  ̳wide range of 
10

reasonableness‘ as to be irrational.‖ Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67 

(1991) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). The Union 

acted ―irrationally‖ when it told Roe that it declined to pursue arbitration on his behalf 

because of a purported Union ―past practice‖ of considering ―probationary‖ employees as 

not covered by the CBA. The Union‘s reliance on its past practices was in direct 

contravention to the CBA‘s integration clause, which provides that the CBA ―constitutes 

the full and complete agreement between the parties notwithstanding any agreement or 

any past practices, policies or procedures.‖ (App. 123 (emphasis added)). Acting in 

reliance on ―past practices,‖ the Union‘s behavior fell outside of the ―wide range of 

reasonableness‖ and thus breached its duty of fair representation. The contrary findings 

by the District Court were erroneous.1 

As further justification for its refusal to take Roe‘s grievance to arbitration, the 

Union argued that a ―plain reading‖ of the CBA reveals that the CBA ―simply does not 

apply to probationary employees.‖ (Union Br. 9). The terms of the CBA, however, do 

not support such an interpretation.

2

 Although Article 4.08 of the CBA (the ―probation 

 

1

 In addition, the District Court made a factual error in concluding that the Union‘s 

reliance on its ―longstanding practice . . . as to probationary employees‖ was within the 

―wide range of reasonableness as to be []rational.‖ Roe, 2011 WL 4736353, at * 5. The 

District Court stated Roe ―acknowledges [that] JSUMC and the Union have a 

longstanding understanding and established practice that probationary employees are not 

members of the Union.‖ Id. at 4. In his Amended Complaint, however, Roe alleged that 

the Union representative merely told him about that past pattern and practice; Roe did not 

concede its existence. (App. 44). 

2

 Article One of the CBA states that the CBA ―covers all employees . . . and includes 

permanent full-time or permanent part-time employees as defined in Article Four.‖ (App. 

44). Article Four distinguishes between ―permanent,‖ ―per diem,‖ and ―temporary‖ 
11

clause‖) provides that ―[a]ll employees . . . will be on probation for ninety (90) calendar 

days following employment,‖ the CBA does not explicitly state that ―probationary‖ 

employees are not covered by the CBA. (App. 89). Even though the CBA restricts the 

rights of probationary employees in the receipt of certain fringe benefits (such as vacation 

time), it is certainly plausible to interpret the CBA as merely restricting ―probationary‖

employees‘ eligibility for fringe benefits rather than wholly excluding any rights under 

the CBA.3 Despite this plausible interpretation that the CBA does not explicitly exclude 

―probationary employees‖ from coverage, the District Court nevertheless concluded, that 

―the Union's justification for not taking Plaintiff‘s grievance to arbitration finds support 

in the explicit language of the CBA.‖ Reviewing the evidence in the light most favorable 

to Roe, as is required at this stage of the proceedings, there is satisfactory evidence to 

 

employees. (Id. at 86–87). Whereas the former two categories of employees are ―part of 

the bargaining unit,‖ Article Four does not explicitly provide CBA coverage to 

―temporary‖ employees. (Id. at 87). 

 Because ―temporary‖ employees are not covered by the CBA, the Union attempts to 

argue that all ―probationary‖ employees are ―temporary‖ employees. This is based on a 

strained and logically flawed interpretation of the CBA. Article Four states that ―All 

employees regardless of status will be on probation for ninety (90) calendar days 

following employment . . . .‖ (Id. at 89). Although ―permanent,‖ ―per diem,‖ and 

―temporary‖ employees are subject to a ninety day probation period pursuant to Article 4, 

it does not follow every employee is a ―temporary‖ employee during this probation 

period. 

3

Indeed, the District Court also made a factual error when it determined that Roe 

―concede[d] [that Union] dues were not in fact deducted from his salary during his 

employment‖ to support to Court‘s conclusion that ―the Union‘s decision not to take 

Plaintiff‘s grievance to arbitration [was] consistent with its understanding of probationary 

employees‘ rights . . . .‖ Roe, 2011 WL 4736353, at * 4. In fact, in his Amended 

Complaint, Roe alleged that the ―Hospital withheld Union dues from Roe‘s JSUMC 

paychecks during his employment.‖ (App. 33).
12

support a finding of arbitrary conduct in breach of the Union‘s duty of fair representation. 

The District Court, by reason of this decision, is now obliged to reach the second prong 

of the hybrid claim, to wit, Roe‘s Section 301 claim against the Hospital. 4 

B. Jurisdiction over NLRA Claims

The District Court properly granted the Hospital‘s Motion to Dismiss Roe‘s 

NLRA claim. ―When an activity is arguably subject to [Section] 7 or [Section] 8 of the 

[NLRA], the . . . federal courts must defer to the exclusive competence of the National 

Labor Relations Board.‖ San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 

v. Garmon, 359 U.S. 236, 245 (1959). ―Preemption . . . is designed to shield the system 

from conflicting regulation of conduct. It is the conduct being regulated, not the formal 

description of governing legal standards, that is the proper focus of concern.‖ 

Amalgamated Ass’n of Street, Elec. Railway & Motor Coach Employees v. Lockridge,

403 U.S. 274, 292 (1971). ―Garmon preemption protects the exclusive jurisdiction of the 

NLRB over unfair labor practice proceedings; accordingly, if a cause of action implicates 

protected concerted activity under Section 7 of the NLRA or conduct that would be 

prohibited as an unfair labor practice under Section 8 of the NLRA, the cause of action is 

preempted.‖ Voilas v. General Motors Corp., 170 F.3d 367, 378 (3d Cir. 1999). 

 

4

 Having determined, albeit incorrectly, that Roe failed to establish that the Union 

breached its duty of fair representation—the ―necessary predicate‖ under a Section 301 

hybrid claim—the District Court did not engage in an analysis of Roe‘s Section 301 

claim against the Hospital. Roe, 2011 WL 4736353, at * 6 (―Because the necessary 

predicate in a hybrid § 301 claim is a demonstration that the Union breached its duty of 

fair representation . . . Plaintiff‘s § 301 claim against the Hospital Defendants must be 

dismissed.‖) (citation omitted). 
13

Roe alleges that the Hospital terminated him because of his efforts to enforce CBA 

provisions that guaranteed effective Preceptors to new nurses. Because this claim alleges 

that Roe was terminated for asserting his rights guaranteed by the CBA, it is governed by 

Sections 7 and 8 of the NLRA and is preempted under Garmon. Thus, the District Court 

properly dismissed the NLRA claim. 

C. Supplemental Jurisdiction

The District Court recognized its discretion to retain jurisdiction over Roe‘s 

remaining state-law claims but, having dismissed all of the federal claims, properly 

declined to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3). Though the 

District Court correctly declined to exercise supplemental jurisdiction over the remaining 

state-law claims, because the federal LMRA claims are reinstated following remand, the 

state law claims are necessarily reinstated as well. 

III. CONCLUSION

We affirm-in-part the District Court‘s Order to the extent that it granted the 

Hospital‘s Motion to Dismiss Roe‘s NLRA claim. Because the District Court 

erroneously concluded that the Union did not breach its duty of fair representation to 

Roe, we reverse-in-part the District Court‘s Order to the extent that it granted 

Defendants‘ Motions to Dismiss Roe‘s hybrid claims under the LMRA, and we direct the 

District Court to reinstate that claim and conduct further proceedings consistent with this 

opinion.