MICHAEL MRAZ v. LOCAL 254 OF THE UNITED BROTHERHOOD OF CARPENTERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2424-13T4

MICHAEL MRAZ,

Plaintiff-Appellant,

v.

LOCAL 254 OF THE UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA,

EUSTACE EGGIE, III, and MICHAEL

CAPELLI,

Defendants-Respondents.

_____________________________________________

April 6, 2016

Argued December 2, 2014 - Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-117-13.

Steven D. Cahn argued the cause for appellant (Cahn and Parra, attorneys; Mr. Cahn, on the brief).

Raymond G. Heineman, Jr., argued the cause for respondents (Kroll Heineman Carton, attorneys; Seth Ptasiewicz, on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Plaintiff Michael Mraz, a carpenter and member of defendant Local 254 of the United Brotherhood of Carpenters and Joiners of America (Local 254 or union), appeals from the Law Division order dismissing his complaint against Local 254, and alleged Local 254 officers, Eustace Eggie, III, and Michael Capelli, (collectively defendants). Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.

I.

On March 11, April 5, and September 6, 2011, plaintiff filed complaints with the National Labor Relations Board (NLRB) alleging, among other things, that defendants were misappropriating funds to further political agendas. Thereafter, on November 23, 2011, plaintiff filed a complaint with the United States Department of Justice alleging that defendants were engaged in unlawful transfers of money.1

Meanwhile, on November 10, 2011, a fellow member of Local 254 filed internal charges accusing plaintiff and another union member of harassment and racial discrimination.2 Local 254's trial committee found plaintiff guilty and recommended him for expulsion from the union. On March 31, 2012, the Northeast Regional Counsel of Carpenters delegates unanimously voted to affirm the recommendation, and plaintiff was expelled from the union.

On December 28, 2012, plaintiff filed the present complaint against defendants alleging unlawful retaliation for his communications with the Department of Justice regarding defendants' misuse of union funds and wrongful termination in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980).3 Defendants responded by filing a notice of removal to the United States District Court of New Jersey, alleging that plaintiff's claims are preempted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C.A. 185(a), which provides the basis for an employee to sue the employer for violation of a collective bargaining agreement (CBA). However, the district court granted plaintiff's motion to remand the case back to state court, determining that plaintiff's claims were not preempted by the LMRA, as the adjudication of plaintiff's CEPA claims did not turn on the interpretation of the CBA.

Defendants, thereafter, filed a Rule 4:6-2(e) motion to dismiss the complaint arguing that plaintiff's claims were not viable under both CEPA and Pierce since plaintiff was not an "employee" of the union but employed by Area Carpentry Contractors, the entity responsible for paying his wages and controlling his work. Defendants also argued that plaintiff's claims were preempted by the National Labor Relations Act, 29 U.S.C.A. 151 to -169; and Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C.A. 401 to -531, and contended that plaintiff's statutory CEPA claim operated as a waiver of his common law Pierce claim. Plaintiff opposed the motion arguing that: (1) federal law did not preempt his claim as evidenced by the federal court's order to remand the case to state court; (2) although he was not an employee in the traditional sense, he was an employee for purposes of CEPA as his "employment was completely controlled by defendants;" and (3) he was allowed to pursue both his CEPA and Pierce claims through discovery, making an election before the commencement of trial.

Following oral argument, Judge Phillip Lewis Paley granted defendants' motion, determining that plaintiff was not an "employee" of the union for purposes of his CEPA and Pierce claims. While the judge agreed with plaintiff that under CEPA the definition of employer was broad, he noted that there was no New Jersey precedent that would allow a union member to file a CEPA claim against the union where the member was not an employee or contractor of the union. Moreover, the judge was persuaded by a federal decision, Figueroa v. City of Camden, 580 F. Supp. 2d 390, 406-07 (D.N.J. 2008), which held that union members were not considered employees of the union under CEPA. Furthermore, he relied upon the decision in D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110, 123-25 (2007), wherein our Supreme Court held that the plaintiff presented facts that supported the creation of an employment relationship for CEPA purposes, despite having been hired as an independent contractor. The judge explained that D'Annunzio "contemplate[d] a relationship in which an independent contractor works in the same field as the employer, and their work dovetails to such a degree that a separation between the two entities is difficult or even impossible to decipher." Thus, Judge Paley concluded

Here, it is clear to this [c]ourt that the plaintiff is not a[n] "employee[]" of the union. He is a carpenter who is a member of a union. His work is on behalf of the company, which employs him, not for the union. Certainly, there may be indicia of employment in any union relationship. Certainly, there may be some benefits, such as membership, that the union provides to the worker.

But I don't think that, even under D'Annunzio that allows this court to conclude that a union member is an employee just on the basis of the union membership alone.

Therefore, I am satisfied that the complaint in its present form must be dismissed for failure to state a claim.

The court made no specific findings regarding defendants' contention that plaintiff's claims were preempted by federal law. This appeal followed.

II.

Our review of a trial court's dismissal of a complaint pursuant to Rule 4:6-2(e) is de novo. Flinn v. Amboy Nat. Bank, 436 N.J. Super. 274, 287 (App. Div. 2014). Our inquiry "'is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.'" Green v. Morgan Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Accordingly, "[t]he essential test is simply 'whether a cause of action is suggested by the facts.'" Ibid. (citation omitted). Thus, we must "'search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Id. at 452 (quoting Printing Mart-Morristown, supra, 116 N.J. at 746).

Our review is "'one that is at once painstaking and undertaken with a generous and hospitable approach.'" Ibid.(quoting Printing Mart-Morristown, supra, 116 N.J. at 746). Nonetheless, dismissal is required "where the pleading does not establish a colorable claim and discovery would not develop one." State v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App. Div. 2015) (citation omitted).

Before us, plaintiff contends that the trial court erred in applying Rule 4:6-2(e) to dismiss both his CEPA and Pierce claims on the basis that Local 254 is not his employer. Specifically, he argues that the union falls within the definition of "employer" set forth in N.J.S.A. 34:19-2(a) because it controls who works on a job, and in acting on behalf of its members, it "work[s] with the employer to fill labor needs, negotiate contracts, handle employee discipline and facilitate benefits." Plaintiff also contends that his Pierce claim should not have been dismissed based upon Young v. Schering Corp., 141 N.J. 16, 32 (1995), which suggested that a plaintiff is allowed to wait until after discovery to decide whether to pursue a CEPA or Pierce claim at trial.

We begin our review with a brief analysis of CEPA. Under CEPA, an employer is prohibited from retaliating against an employee when the employee engages in protected "whistle-blowing" activity. See N.J.S.A. 34:19-3; Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 89 (2012). The employer-employee relationship is crucial to the application of CEPA. The alleged retaliator must in fact be the claimant's "employer" as defined under the statute, and the claimant must qualify under the statute as an "employee." See D'Annunzio, supra, 192 N.J. at 120.

CEPA defines an "employer" in terms of all the persons and entities that can act on behalf of an employer, N.J.S.A. 34:19-2(a), but the statutory definition does not help to resolve the dispute in this case. Instead, guidance is found in CEPA's definition of an "employee" as "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." N.J.S.A. 34:19-2(b).

Moreover, we find guidance in the Court's decision in D'Annunzio. There, the Court considered whether a plaintiff making a CEPA claim was an employee or an independent contractor and held that the following should be considered: "(1) employer control; (2) the worker's economic dependence on the work relationship; and (3) the degree to which there has been a functional integration of the employer's business with that of the person doing the work at issue." D'Annunzio, supra, 192 N.J. at 122. The Court then restated its acceptance of "[t]he test for determining those aspects of a non-traditional work relationship" that this court had set out in Pukowsky v. Caruso, 312 N.J. Super. 171, (App. Div. 1998)

(1) the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the "employer;" (10) whether the worker accrues retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties.

[D'Annunzio, supra, 192 N.J. at 122-23 (quoting Pukowsky, supra, 312 N.J. Super. at 182-83).]
 

These factors should be examined in the context of the "totality of the circumstances." Pukowsky, supra, 312 N.J. Super. at 182 (citation omitted).

Like Judge Paley, we find persuasive the analogous situation in the federal district court decision in Figueroa. There, plaintiff firefighters sued the City of Camden and the firefighters' unions, alleging in pertinent part, that the unions violated CEPA for "'acting in concert'" with the City in discriminatory practices. Figueroa, supra, 580 F. Supp. 2d at 395. The court found that "CEPA only prohibits retaliatory action against employees by their employers[,]" and although "the definition of 'employer' is broad, there is nothing in the statute that indicates it encompass[es] labor unions." Id. at 406. (citation omitted). The court rejected plaintiffs' argument that the unions were a "'group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent.'" Ibid. (quoting N.J.S.A. 34:19-2(a)). The court, therefore, dismissed their CEPA claims against the unions. Id. at 407.

Applying these principles, we discern no basis to set aside the motion judge's decision dismissing plaintiff's complaint. While Local 254 represented plaintiff and other union members in negotiating salary, work hours and a safe work environment, we are convinced that it did not take on the role of plaintiff's employer. As the collective bargaining agent for its members, Local 254 does not employ its membership. Notably, there is no "functional integration" of plaintiff's work as a carpenter and the "business" of Local 254 to qualify it as plaintiff's employer under D'Annunzio. Plaintiff also does not perform any "services for and under the control and direction" of Local 254; rather, plaintiff's employer is Area Carpentry Contractors, which paid his salary as well as controlled and directed the performance of his work. To rule otherwise would cause us to legislate and rewrite CEPA to permit an individual, who is not, under the statutory definition, an employee of the union, to pursue a claim under CEPA against his union.

Having concluded that plaintiff is not employed by defendants, his Pierce claim fails for the same reasoning. In Pierce, the Court recognized a common law cause of action by an employee against his employer for retaliatory discharge. Pierce, supra, 84 N.J. at 71. This rule served as a predecessor to the statutory remedy codified by CEPA. Donelson v. DuPont Chambers Works, 206 N.J. 243, 272 (2011). We agree with plaintiff that pursuant to Young, he has a right to wait until trial to elect whether he is going to proceed with a CEPA or Pierce claim. See Young, supra, 141 N.J. at 32 ("The meaning of 'institution of an action' could conceivably contemplate an election of remedies with restrictions in which the election is not considered to have been made until discovery is complete or the time of a pretrial conference."). See also Maw v. Advanced Clinical Commc'ns, Inc., 359 N.J. Super. 420, 441 (App. Div. 2003) ("[B]efore electing remedies, a plaintiff should have an opportunity to complete discovery. Only after gaining access to all of the facts, will a plaintiff be in a position to make a knowing and meaningful election."), rev'd on other grounds, 179 N.J. 439 (2004).4 Nevertheless, plaintiff is not employed by the union, and thus does not have a cause of action under Pierce against defendants.

Lastly, plaintiff contends that his claims are not preempted by federal law as evidenced by the federal district court's decision to remand the matter to state court when defendants attempted to remove the matter to federal court. However, like the motion court, we need not address this argument given that plaintiff cannot pursue CEPA and Pierce claims because defendants are not his employer.

Affirmed.

1 The record reflects that plaintiff filed three subsequent charges with the NLRB alleging "retaliation for my whistleblow[ing] activities" and coercion by union officers, agents, and representatives.

2

In response, plaintiff filed an unfair labor charge with the NLRB for "retaliation for his concerted protected union activities."

3 Plaintiff also alleged wrongful termination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, but subsequently withdrew this claim.

4 Notably, the Supreme Court subsequently reversed this court's decision because plaintiff's Pierce claim had been inadequately pled and not because the Appellate Division incorrectly analyzed the CEPA waiver provision. See Maw v. Advanced Clinical Comms., 179 N.J. 439, 445-46 (2004).