IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BRYAN E. FISCHER,

 Plaintiff,

v.

G4S SECURE SOLUTIONS USA, INC.

& NUCLEAR POWER PLANT SECURITY

OFFICERS OF AMERICA,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 10-6792 (JBS/AMD)

OPINION

APPEARANCES:

James M. Carter, Esq. 

LAW OFFICES OF HOFFMAN DIMUZIO 

4270 Route 42 

Turnersville, NJ 08012 

Counsel for Plaintiff

John K. Bennett, Esq. 

JACKSON LEWIS LLP 

220 Headquarters Plaza 

East Tower, 7th Floor 

Morristown, NJ 07960 

Counsel for Defendant G4S Secure Solutions USA, Inc.

SIMANDLE, District Judge:

I. INTRODUCTION

 This employment-related matter is before the Court on a

motion to dismiss filed by Defendant G4S Secure Solutions USA,

Inc. [Docket Item 4.] The principal issues are whether

Plaintiff's two remaining claims for breach of contract and

retaliation are preempted by the Labor Management Relations Act,

29 U.S.C. § 185(a), and whether the Complaint contains sufficient

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allegations to support the latter claim. As explained below, the

breach of contract claim is preempted, and the retaliation claim

is either preempted or fails to state a claim, and either way

must be dismissed. 

II. BACKGROUND

Plaintiff, Bryan E. Fischer, brought this suit against his

former employer G4S Secure Solutions USA, Inc. and his union, the

Nuclear Power Plant Security Officers of America. Mr. Fischer

worked as a security officer at Salem-Hope Creek nuclear power

plant, a PSE&G facility in Salem County, New Jersey. He alleges

that in February 2010 he encouraged a co-worker, on whose breath

he smelled alcohol, to report his condition to a supervisor. 

Fischer claims that after experiencing increased hostility

from his union as a result of this conduct, the Union President

told him not to address his concerns to the PSE&G official in

charge of employee matters, but that Fischer did so anyway,

leading to further hostility from the Union. Compl. ¶¶ 16-17. 

It is unclear precisely what Fischer alleges he said to the PSE&G

employee; he alleges that he "complained of unfair treatment of

armed nuclear security officers, including himself." Compl. ¶

38.

Eventually, PSE&G officials reassigned Fischer to a shift at

an administrative office building because of concerns about

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Fischer's safety, Fischer claims. Compl. ¶ 19. On learning of

this transfer, the Union President objected and Plaintiff's

employer, G4S, "essentially suspended [Fischer] with pay pending

an investigation," Compl. ¶ 20, without the possibility of

overtime or other benefits. Compl. ¶ 31. 

At the conclusion of the investigation, Plaintiff was

invited to return to work but warned that his co-workers were

even more hostile toward him than when he left. Compl. ¶ 22. 

Given the option of transferring to a facility in New Hampshire

involving a pay cut, loss of seniority, and a night shift,

Plaintiff refused to return to Salem-Hope Creek and refused the

transfer, and was ultimately terminated. Compl. ¶ 25.

The Complaint initially brought seven claims against G4S and

the Union. Count I is a claim against G4S for breach of

contract, based on G4S's failure to abide by the promise in their

employee manual that concerns raised about colleagues would be

dealt with fairly and confidentially. Count II cites no

particular legal cause of action and contends that Plaintiff was

unlawfully retaliated against for complaining to the PSE&G

employee. Count III is an unspecified claim based on G4S's bad

faith and lack of fair dealing. Count IV is a similar claim

against the Union. Count V is quite unclear, but appears to be

some kind of derivative liability claim against the Union. Count

VI is a claim against G4S and the Union involving an allegation

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that Defendants stopped deducting union dues from Plaintiff's

check in an effort to interfere with his union membership. 

Finally, Count VII claims that GS4 is liable for the Union's

unlawful conduct.

Plaintiff filed suit in the Superior Court of New Jersey,

Law Division, Gloucester County, on November 16, 2010. G4S

removed the matter to this court based on alleged complete

preemption of the state law claims. See Franchise Tax Bd. of

State of Cal. v. Construction Laborers Vacation Trust for

Southern California, 463 U.S. 1 (1983) (explaining complete

preemption doctrine).

Plaintiff has conceded that he has no legitimate causes of

action against the Union, and so the Court terminated the Union

as a party and dismissed Counts IV, V, and VI as against the

Union. [Docket Item 9.] In the present motion, Defendant has

moved to dismiss Counts I, II, III, VI, and VII. Plaintiff

concedes that III, VI, and VII should be dismissed. And so the

Court addresses the remaining contested claims: Counts I and II

against GS4 only.

Defendant argues that Counts I and II are pre-empted by

Section 301 of the Labor Management Relations Act ("LMRA"), 29

U.S.C. § 185(a), since the resolution of the claims requires

interpretation of the collective bargaining agreement between G4S

USA and the Union. Defendant contends that the Court will have

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to interpret the following provision of the agreement:

This Agreement shall not be construed to

infringe upon or impair any of the normal

management rights of the Employer, which are

not inconsistent with the provisions of this

Agreement. Included among management rights

is the authority to administer and/or manage

the Employer's business, including but not

limited to . . . the right to hire, promote,

demote, transfer, discipline, suspend or

discharge employees for just cause.

Ex. to Compl. ("Agreement") Art. 4.1 at 4-5. Defendant also

argues that, as to Count II, Plaintiff fails to state a claim for

retaliation. 

III. DISCUSSION

A. Standard of Review

Rule 8(a)(2) provides that "[a] pleading that states a claim

for relief must contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief." Further,

a "complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face." 

Ashcroft v. Iqbal, --U.S.--, 129 S.Ct. 1937, 1949 (2009); Fowler

v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). 

The Third Circuit requires that a district court presented

with a motion to dismiss conduct a two-part analysis, as

explained in Iqbal: first, the factual and legal elements of a

claim should be separated. The district court may accept all the

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complaint's well-pleaded facts as true, but may disregard any

legal conclusions. Iqbal, 129 S.Ct. at 1949-50. Second, a

district court must then determine whether the facts alleged in

the complaint are sufficient to show that the plaintiff has a

"plausible claim for relief." Id. 

When considering a motion to dismiss, a district court

generally relies only upon "the complaint, attached exhibits, and

matters of public record." Sands v. McCormick, 502 F.3d 263, 268

(3d Cir. 2007). The Court may also consider documents which are

not physically attached to the pleadings but whose contents are

alleged in the complaint and whose authenticity is not contested. 

Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 560

(3d Cir. 2002).1

 

B. Preemption

In § 301 of the Labor Management Relations Act, Congress

 Defendant asks the Court to strike Plaintiff's opposition 1

as untimely. Opposition to Defendant's motion was due February

7, 2011, but not filed until February 24, 2011. However, on

February 22, 2011, Plaintiff's counsel wrote to the Court

requesting an extension until February 23, 2011. The Court's

procedure when a first request for extension is sought under

ordinary circumstances is, if the motion is granted, to inform

the moving party's counsel by telephone and instruct him or her

to file a letter on the docket confirming the extension. In this

case, the Court informed Plaintiff's counsel that it would grant

an extension to February 25, 2011. Unfortunately, Plaintiff's

counsel failed to file a letter confirming the extension as

instructed, which is why Defendant was left unaware that the

extension has been granted. But, since an extension was granted,

the Court will consider the opposition as timely. 

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vested jurisdiction in the federal courts over suits for

violation of contracts between an employer and a labor

organization representing employees in certain industries. 29

U.S.C § 185(a). By its terms the statute only provides that such

suits "may be brought" in the district courts. Id. But in

Textile Workers v. Lincoln Mills, the Supreme Court ruled that §

301 requires federal common law to govern disputes regarding

collective bargaining agreements. 353 U.S. 448, 456 (1957). 

From there, the Court reasoned in Teamsters v. Lucas Flour Co.

that this federal common law preempts inconsistent state law that

might govern such disputes. 369 U.S. 95, 103 (1962). Thus,

contract suits alleging violation of collective bargaining

agreements must be brought under § 301 and be resolved under

federal law. Id. 

In 1985, the Supreme Court further extended the scope of

this preemption, finding that "questions relating to what the

parties to a labor agreement agreed, and what legal consequences

were intended to flow from breaches of that agreement" also must

be resolved under § 301 and federal law, "whether such questions

arise in the context of a suit for breach of contract or in a

suit alleging liability in tort." Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 211 (1985). This preemption also extends to suits

by employees against employers. Angst v. Mack Trucks, Inc., 969

F.2d 1530, 1536 n.5 (3d Cir. 1992). 

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While reading § 301 quite expansively, the Supreme Court has

been careful to make clear that "not every dispute concerning

employment, or tangentially involving a provision of a

collective-bargaining agreement, is pre-empted." Lueck, 471 U.S.

at 211. Indeed, "it would be inconsistent with congressional

intent under [§ 301] to preempt state rules that proscribe

conduct, or establish rights and obligations, independent of a

labor contract." Id. Instead, § 301 preemption only applies to

"state-law rights and obligations that do not exist independently

of private agreements, and that as a result can be waived or

altered by agreement of private parties." Id. at 213; Livadas v.

Bradshaw, 512 U.S. 107, 123 (1994) ("§ 301 cannot be read broadly

to pre-empt nonnegotiable rights conferred on individual

employees as a matter of state law.").

1. Breach of Contract

Plaintiff claims that an employee manual distributed to

employees of G4S promised that concerns raised by employees would

be treated fairly and confidentially, and that G4S's treatment of

Plaintiff violated this promise. Under New Jersey law, an

employee manual can create an independent contractual obligation

apart from the employment contract. Woolley v. Hoffman LaRoche,

Inc., 99 N.J. 284, 297, 307 (1985). The question on preemption

is whether this independent contract claim is dependent upon and

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requires interpretation of the collective bargaining agreement.

In Henderson v. Merck & Co., Inc., 998 F. Supp. 532 (E.D.

Pa. 1998), the court addressed a similar preemption issue. In

that case, the plaintiff claimed that his employer breached a

promise in an employment manual. Id. at 535. Although the Court

found that no independent contract was formed for various factual

reasons, id. at 538, the Court found in the alternative that even

if the employment handbook did form an independent contract,

assessing a breach of contract claim would have required

interpretation of the collective bargaining agreement because the

agreement controlled the rights and obligations of the employer

with respect to discharge. Id. at 539. Specifically, the Court

found that it would have to construe a provision stating that "no

regular employee shall be discharged except for just cause," in

order to determine whether the alleged independent contract

conflicted with the collective bargaining agreement. Id.

Henderson's dictum is correct and applicable to this case. 

Because the contractual rights afforded by the employee manual do

not arise independently from state law, but instead are subject

to modification by Plaintiff's larger employment contract, the

employee manual must be viewed alongside the rights and duties

created (or waived) by the collective bargaining agreement. The

Court would have to determine, among other things, whether the

employee manual modified the provision of the collective

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bargaining agreement stating that the employer retained "the

right to hire, promote, demote, transfer, discipline, suspend or

discharge employees for just cause," and if not, whether "just

cause" encompasses the justification for the adverse employment

actions taken in this case. Therefore, the breach of contract

claim is preempted.

When a court determines that a state law claim is preempted

by § 301, it can either treat the claim as a § 301 claim or

dismiss such claim as preempted. See Allis-Chalmers, 471 U.S. at

220. In this case, Plaintiff has not alleged that he completed

the appropriate administrative grievance procedures prior to

filing this lawsuit, and so the Court will dismiss the claim

without prejudice to bringing the claim pursuant to LMRA, to the

extent Plaintiff has such a colorable claim under the applicable

law. See, e.g., Allis-Chalmers, 471 U.S. at 220-21. 

2. Retaliation

The legal basis for Count II is unclear from the pleadings,

but neither possible basis states a claim. Either the claim must

be dismissed for failure to make the allegations necessary to

state a claim under New Jersey's Conscientious Employee

Protection Act (CEPA), N.J. Stat. Ann. § 34:19-1, or the claim is

preempted because it attempts to state a common law retaliation

claim governed by the collective bargaining agreement. Either

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way, it must be dismissed, as explained below.

Although the Complaint does not identify CEPA as the basis

for Count II, Plaintiff explains in his opposition to this motion

that CEPA was his intended source of legal authority for his

claim. Pl.'s Br. 6. CEPA protects an employee from retaliation

by his employer when the employee complains about illegal or

improper conduct, including conduct that is contrary to the

"clear mandate of public policy," a phrase used in the Complaint. 

See Reynolds v. TCM Sweeping, Inc., 340 F. Supp. 2d 541, 545

(D.N.J. 2004).

To the extent Plaintiff intends to bring a CEPA claim, the

allegations in the present pleading do not support it. The

Complaint alleges Plaintiff spoke out "against G4S's activities,

policies, and practices," by "contacting PSEG's Employee Concerns

Manager," Compl. ¶¶ 34-35, and that G4S took retaliatory action

against him "after he contacted PSEG's Employee Concerns

Manager." However, critically, the alleged interaction with the

Employee Concerns Manager was when Plaintiff "complained of

unfair treatment of armed nuclear security officers, including

himself." Compl. ¶¶ 37-38. Without a more specific statement of

the "unfair treatment," and how such treatment offends public

policy, it is not clear that Plaintiff is alleging, "retaliation

for an employee reporting an unsafe condition, in this case, a

possibly intoxicated co-worker," as the opposition brief attempts

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to re-frame the claim. [Id. at 6.] Therefore, Plaintiff's

present Complaint has not identified a "clear mandate of public

policy," and the use of conclusory labels will not suffice. 

Iqbal, 129 S. Ct. at 1949-50. 

Plaintiff's opposition brief also repeats the

characterization of Count II as "arising from violations of New

Jersey common law." [Docket Item 8 at 2.] To the extent

Plaintiff is alleging that he complained of general matters of

workplace conduct outside the scope of CEPA and therefore

governed by the collective bargaining agreement, such a claim

would be preempted under § 301 of the LMRA, as explained above.

Although the present Count II will be dismissed, the

dismissal must be without prejudice to amend because it is

plausible that Plaintiff, if given an opportunity, could state a

CEPA claim. It is Plaintiff's obligation, if he seeks to pursue

a CEPA claim, to draft the proposed amended complaint and seek

leave to amend under Rule 15(a), Fed. R. Civ. P. However, to

demonstrate that such an amendment is not futile based on what is

currently known to the Court, the Court will briefly review

CEPA's requirements. 

CEPA claims are not preempted by § 301, because they exist

independently of private agreements, and cannot be waived or

altered by agreement of private parties. Carluccio v. Parsons

Inspection & Maintenance Corp., Civil Action No. 06-4354 (JLL),

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2007 WL 1231758, at *4-5 (D.N.J. April 24, 2007); Reynolds v. TCM

Sweeping, Inc., 340 F. Supp. 2d 541 (D.N.J. 2004); Patterson v.

Exxon Mobil Corp., 262 F. Supp. 2d 453 (D.N.J. 2003); see also

Lingle, 486 U.S. at 470 (holding that state retaliatory discharge

statute was not preempted by LMRA § 301 because adjudication of

the claim focused on the employee's conduct and the employer's

conduct and motivations, not on an interpretation of the terms of

a collective bargaining agreement).2

And while the CEPA claim is not sufficiently clearly pleaded

in the current complaint, such a claim is not inconsistent with

the current pleadings. CEPA requires a plaintiff to prove four

elements for a successful claim: (1) that the plaintiff

reasonably believed that the activity to which he or she objected

violated a law, regulation, or a clear mandate of public policy

 If the pleadings were amended to state such a claim, the 2

Court would likely have original jurisdiction over it, so remand

is not called for. With the termination of the other defendant,

the case now meets the requirements of 28 U.S.C. § 1332.

Normally, diversity jurisdiction "is to be tested by the status

of the parties at the commencement of the suit." Field v.

Volkswagenwerk AG, 626 F.2d 293, 305 (3d Cir. 1980). When this

case was removed, the only basis for removal was federal question

jurisdiction, since the Union is considered a citizen of every

state in which its members are residents. However, "the

time-of-filing rule admits exceptions in cases where the parties

change, in contrast to cases in which the circumstances attendant

to those parties change." Kaufman v. Allstate New Jersey Ins.

Co., 561 F.3d 144, 152 (3d Cir. 2009) (citing Grupo Dataflux v.

Atlas Global Group, L.P., 541 U.S. 567, 577 (2004)). Now that

the Union has been dismissed, there appears to be complete

diversity because Plaintiff is a resident of New Jersey and the

remaining Defendant is a Delaware corporation with a principal

place of business in Florida.

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concerning the public health, safety or welfare or protection of

the environment; (2) that the plaintiff performed one of the

whistle-blowing activities defined by the statute; (3) that an

adverse employment action has been taken against him or her; and

(4) that the whistle-blowing activity caused such adverse

employment action. See N.J. Stat. Ann. § 34:19-3; Ivan v. County

of Middlesex, 595 F. Supp. 2d 425, 468 (D.N.J. 2009). 

Plaintiff makes some reference to alcohol use and "safety

issues" in the Complaint, though he does not make clear precisely

what he objected to and to whom. Generally, federal regulations

require that nuclear power plants prohibit the consumption of

alcohol "[w]ithin an abstinence period of 5 hours preceding the

individual's arrival at the licensee's or other entity's

facility." 10 C.F.R. § 26.27. This regulation applies to

security officers. 10 CFR § 26.4. There is a strong public

policy of keeping nuclear power plants free of intoxicated

workers. International Broth. of Elec. Workers, Local 97 v.

Niagara Mohawk Power, 143 F.3d 704, 718 (2d Cir. 1998) ("There

can be no doubt . . . that there exists a strong public policy in

favor of promoting a safe, drug-free working environment in the

nuclear power industry.").

Moreover, CEPA's broad prohibition on retaliation applies to

retaliation against an employee who "[o]bjects to . . . any

activity," so long as the employee reasonably believes that the

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activity in question is in violation of a law, or a rule or

regulation promulgated pursuant to law, or is incompatible with a

clear mandate of public policy concerning the public health,

safety or welfare or protection of the environment. N.J. Stat.

Ann. 34:19-3. It even applies to objections about the conduct of

co-employees, Higgins v. Pascack Valley Hosp., 730 A.2d 327, 336

(N.J. 1999), and requires only that the objection be the cause of

the adverse employment action. Id.; see Young v. Schering Corp.,

645 A.2d 1238, 1245 (N.J. Super. Ct. App. Div. 1994). 

Whether Plaintiff made such objections, and whether he can

trace such objections to an adverse employment action, the Court

will not prejudge. Whether any given employment action

constitutes retaliation would also depend on the specific actions

taken by the employer and the factual context. See Burlington

Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 72–73 (2006);

Kolb v. Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div. 1999)

(noting that standards for Title VII retaliation apply to CEPA

claims); see also Prise v. Alderwoods Group, Inc., 657 F. Supp.

2d 564, 589-90 (W.D. Pa. 2009) (discussing paid suspension as

adverse employment action). 

In sum, Defendant has not persuaded the Court that a CEPA

claim would be futile, and it appears from parts of Plaintiff's

allegations that he may have such a claim if he is permitted to

amend the pleadings to make them more specific and clearer. 

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Therefore, dismissal of this Count will be without prejudice to

Plaintiff moving to amend the Complaint to plead a CEPA claim.

IV. CONCLUSION

The Labor Management Relations Act preempts claims based on

contractual rights and duties related to an employment situation

governed by a collective bargaining agreement, but it does not

preempt claims based on independent state law which cannot be

contractually waived. Consequently, Count I (breach of contract)

is preempted, and will be dismissed without prejudice to

Plaintiff bringing the claim pursuant to the LMRA, if he has a

colorable claim under the applicable law. Count II must be

dismissed as pleaded, because it either seeks to bring a

preempted common law retaliation claim, or it seeks to bring a

CEPA claim for which it does not allege a sufficient factual

basis. The claim will be dismissed without prejudice to

Plaintiff seeking leave to amend the pleadings to state a claim

under CEPA. Finally, Count III, VI, and VII will be dismissed as

stipulated. Plaintiff will have 21 days to file a motion to

amend the Complaint to bring the claims contained in Count I or

II in accordance with today's Opinion. The accompanying Order

will be entered.

August 31, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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