SANDOR RADAI and MICHAEL

O’BRIEN,

Plaintiffs,

v.

FIRST TRANSIT and FIRSTGROUP

AMERICA COMPANY, FIRSTGROUP

AMERICA and JOHN DOES (1-5),

Defendants.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 10-6810

(JEI/AMD)

OPINION

APPEARANCES:

O’BRIEN, BELLAND & BUSHINSKY, LLC.

By: Robert F. O’Brien, Esq.

1526 Berlin Road

Cherry Hill, NJ 08003

Counsel for Plaintiffs

JACKSON & LEWIS, LLP.

By: Gregory T. Alvarez, Esq.

East Tower, 7th Floor

220 Headquarters Plaza

Morristown, NJ 07960-6844

Counsel for Defendants

IRENAS, Senior District Judge:

Plaintiffs Sandor Radai and Michael O’Brien (collectively,

“Plaintiffs”) bring this action claiming wrongful termination by

their employer, First Transit, FirstGroup America Company and

FirstGroup America (collectively, “Defendants”). Pending before 1

The Complaint alleges that Plaintiffs were employed by 1

“First Transit, a division of FirstGroup America Company and

FirstGroup America.”

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the Court is Defendants’ Motion to Dismiss the Complaint pursuant

to Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, the

Motion will be granted.

I.

Plaintiffs were employed as mechanics at Defendants’

facility in Pennsauken, New Jersey. (Compl. First Count ¶ 1)

Both Plaintiffs became involved in a campaign to be represented

by a labor organization for collective bargaining purposes, and

signed union authorization cards on April 22, 2009. (Id.)

On May 19, 2009, Plaintiffs were filmed on security cameras

dismantling a wooden pallet owned by another worker. (see Exhibit

A, Report of the Independent Monitor p. 6) In addition, O’Brien

was accused of stealing a cereal bar from the same employee. 

(Id. at 9). The managers of the plant subsequently terminated

Radai on June 1, 2009 and O’Brien on June 2, 2009 because “a

level of trust had been breached”. (Exhibit A, Report of the

Independent Monitor p. 11) 

Plaintiffs filed a complaint with the Independent Monitor,

an internal factfinder created by Defendants to adjudicate such

disputes, alleging that management’s justification for their

termination was pretextual, and that Defendants terminated

Plaintiffs because of their union organizing activities. (see

Exhibit A, Report of the Independent Monitor pp. 1-2) On July

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13, 2009, the Independent Monitor found that Defendants

terminated Plaintiffs because of their union activities, and that

the termination was therefore wrongful under Defendants’ Freedom

of Association Policy (“FOA Policy”). (Compl. First Count ¶ 4) 

Though a copy of the FOA Policy is not included in the pleadings,

the Independent Monitor quotes portions of the policy in his

report. Neither party disputes that the objective of the FOA

Policy “is for the company ‘to refrain from management conduct,

whether written or verbal, which is intended to influence an

employee’s view or choice with regard to labor union

representation.’” (Exhibit A, Report of the Independent Monitor

p. 3). The Independent Monitor held that Plaintiffs should be

reinstated with full back pay and interest to their former

employment with the Defendants. (Id.) Defendants allegedly did

not comply with the order of the Independent Monitor. (Compl.

Second Count ¶ 2)

Plaintiffs’ Complaint, filed on November 12, 2010 in Camden

County Superior Court, asserts that Plaintiffs were wrongfully

terminated in violation of Defendants’ Freedom of Association

policy. (Compl. First Count ¶ 6) Plaintiffs seek to enforce the

decision of the Independent Monitor. (Compl. First Count

“whereas clause”) 

Defendants timely removed the suit to this Court, and now

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move to dismiss the Complaint.2

II. 

Federal Rule of Civil Procedure 12(b)(6) provides that a

court may dismiss a complaint “for failure to state a claim upon

which relief can be granted.” In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to

relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.

8(a)(2). 

While a court must accept as true all allegations in the

plaintiff’s complaint, and view them in the light most favorable

to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008), a court is not required to accept sweeping

legal conclusions cast in the form of factual allegations,

unwarranted inferences, or unsupported conclusions. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The

complaint must state sufficient facts to show that the legal

allegations are not simply possible, but plausible. Phillips,

515 F.3d at 234. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

 The Court exercises diversity of citizenship subject 2

matter jurisdiction pursuant to 28 U.S.C. § 1332.

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misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009).

When evaluating a Rule 12(b)(6) motion to dismiss, the Court

considers “only the allegations in the complaint, exhibits

attached to the complaint, matters of public record, and

documents that form the basis of a claim.” Lum v. Bank of

America, 361 F.3d 217, 221 n.3 (3d Cir. 2004). A document that

forms the basis of a claim is one that is “integral to or

explicitly relied upon in the complaint.” Id. (quoting In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997)).

III.

Defendants move to dismiss, asserting that the Plaintiffs’

claims are preempted by the National Labor Relations Act, 29

U.S.C. §§ 151-169, (“NLRA” or “Act”) and that this Court must

therefore defer to the exclusive jurisdiction of the National

Labor Relations Board (“NLRB” or “Board”) and dismiss the

Complaint. Plaintiffs argue that their action is based on a

breach of implied contract claim that is peripheral to the

concerns of the NLRA and is therefore not preempted. The Court

holds that Plaintiffs’ claim is preempted by the NLRA, and will

dismiss the Complaint.

In 1935, Congress enacted the NLRA in order to “prevent the

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disturbance to interstate commerce consequent upon strikes and

labor disputes induced or likely to be induced because of unfair

labor practices.” Nat’l Labor Relations Bd. v. Fainblatt, 306

U.S. 601 (1939). Section 7 of the NLRA protects the rights of

employees to participate in labor organizations and collective

bargaining. 29 U.S.C. § 157. Section 8 prohibits labor

practices that interfere with the rights enumerated in Section 7

and prohibits practices that encourage or discourage membership

in a labor organization. 29 U.S.C. § 158. 

The NLRA also created the NLRB, and gave that body

jurisdiction over labor disputes. Guss v. Utah Labor Relations

Bd., 353 U.S. 1, 2 (1957). 

It is not always clear whether a particular activity falls

under Section 7 or Section 8 of the NLRA. When such a question

is involved, in order to avoid conflicts of law, the Supreme

Court has ruled that “courts are not primary tribunals to

adjudicate such issues. It is essential to the administration of

the Act that these determinations be left in the first instance

to the [NLRB].” San Diego Building Trades Council v Garmon, 359

U.S. 236, 244-45 (1959). Thus, state claims arising out of labor

disputes covered by the Act are preempted by the NLRA.

A claim is preempted “when it is clear or may fairly be

assumed that the activities which a State purports to regulate

are protected by [§] 7 of the National Labor Relations Act, or

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constitute an unfair labor practice under [§] 8.” Garmon, 359

U.S. at 244; see also Violas v General Motors Corp., 170 F.3d

367, 378 (3d Cir. 1999)(stating that “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.”). 

As long as the activity at issue is “arguably subject” to

Sections 7 or 8, the claim is preempted. Garmon, 359 U.S. at

245.

Plaintiffs contend that they were wrongfully terminated

because of their pro-union activities. Section 7 of the NLRA

protects the right of employees to “self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage in

other concerted activities for the purpose of collective

bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

Plaintiffs’ participation in a campaign to seek labor

organization representation is clearly protected conduct under

Section 7. Plaintiffs’ claim that the termination was wrongful

because Defendants were acting to hinder labor organization

within the plant. While it appears such alleged conduct may

violate the Defendants’ FOA Policy, it also violates the NLRA.

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Section 8 of the NLRA prohibits labor practices that “interfere

with, restrain, or coerce employees in the exercise of the rights

guaranteed in section 7... or discriminat[e] in regard to hire or

tenure of employment or any term or condition of employment to

encourage or discourage membership in any labor organization.” 

29 U.S.C. § 158. Defendants’ alleged conduct is clearly conduct

prohibited under Section 8. As the Plaintiffs’ claim is subject

to sections 7 and 8 of the NLRA, the claim is preempted.

Plaintiffs argue that Defendants violated their own FOA

Policy, and that the Complaint therefore centers around a breach

of implied contract claim, rather than a wrongful termination

claim under the NLRA. (Plaintiff’s Memorandum of Law in

Opposition to Defendant’s Motion to Dismiss pp. 2-3) Plaintiffs

assert that the breach of implied contract claim is of only

peripheral concern to the NLRA because the Act does not concern

itself with contractual causes of action. Therefore, according

to the Plaintiffs, the claim should escape preemption. See

Garmon, 359 U.S. at 243-44 (finding that if the conduct in

question is of only “peripheral concern” to federal labor

relations law the NLRB does not have exclusive jurisdiction). 

However, no matter the legal theory Plaintiffs espouse, their

claim at its core, is that Defendants terminated them for their

union activities. Such conduct is clearly within the purview of

the NLRA. 

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Accordingly, Plaintiffs’ claim is preempted and Defendants’

Motion to Dismiss will be granted.

IV.

For the reasons stated above, Defendants’ Motion to Dismiss

will be granted. An appropriate Order accompanies this Opinion. 

Dated: May 25, 2011

 s/ Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

 

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