MEDLEY v. ATLANTIC EXPOSITION SERVICES, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LAMAR MEDLEY, et al.,

No. 1:20-cv-15847-NLH-KMW

Plaintiffs,

v. OPINION

ATLANTIC EXPOSITION SERVICES,

INC., et al.,

Defendants.

APPEARANCES:

TIMOTHY CHRISTOPHER ALEXANDER

HELMER, CONLEY & KASSELMAN, P.A.

111 WHITEHORSE PIKE

HADDON HEIGHTS, NJ 08035

On behalf of Plaintiffs.

EMILY J. DAHER

BALLARD SPAHR LLP

700 EAST GATE DRIVE

SUITE 330

MOUNT LAUREL, NJ 08054-0015

STEVEN W. SUFLAS

BALLARD SPAHR LLP

ONE UTAH CENTER

Suite 800

201 SOUTH MAIN STREET

SALT LAKE CITY, UT 84111-2221

On behalf of Defendant Atlantic Exposition Services, Inc.

DAVID F. WATKINS, JR

KEVIN DOUGLAS JARVIS

O'BRIEN, BELLAND & BUSHINSKY, LLC

509 S. LENOLA ROAD, BUILDING 6

MOORESTOWN, NJ 08057

On behalf of Defendant International Union of Painters, and

Allied Trades AFL-CIO CLC District Council 711, a union and

labor organization.

JUDITH SZNYTER

JENNINGS SIGMOND

1835 MARKET STREET

SUITE 2800

PHILADELPHIA, PA 19103

On behalf of Defendant International Union of Painters and

Allied Trades, Industry Pension Plan, as trustee of an

E.R.I.S.A Pension Plan.

HILLMAN, District Judge

This matter comes before the Court on motions to dismiss

filed by Defendants Atlantic Exposition Services, Inc.,

International Union of Painters, and Allied Trades AFL-CIO CLC

District Council 711 (“the Union”), and International Union of

Painters and Allied Trades, Industry Pension Plan, as trustee of

an E.R.I.S.A Pension Plan (“the Pension Fund”). In this action,

Plaintiffs, a group of union laborers, allege that Defendants,

their employer, their union, and a union pension fund, committed

a series of violations of the Labor Management Relations Act,

state common law, and the New Jersey Law Against Discrimination.

Presently pending are Defendants’ three motions to dismiss,

as well as a motion to seal filed by Plaintiffs. For the

reasons expressed below, Plaintiffs’ motion to seal will be

granted, Atlantic and the Union’s motions to dismiss will be

granted as to certain claims outlined herein, the Pension Fund’s

motion to dismiss will be denied as moot, and Plaintiffs’

remaining state law claims will be remanded to state court.

BACKGROUND

Plaintiffs Jose Luis Carreon, Luis Estrada, Charles

Greenidge,1 Rafael Flores, Matthew Chalakee, David Rolls, Lamar

Medley, and Marlon Gibbs are a group of laborers who were

previously employed by Atlantic Exposition Services and members

of the Union. Plaintiffs primarily worked as warehouse

employees for Atlantic, and each began working for the company

on or before July 2013.

Plaintiffs each identify as either African American, Latino

American, or Native American; in fact, with the exception of the

Warehouse Foreman, who was white, Plaintiffs allege that all of

Atlantic’s warehouse employees were African American, Latino

American, or Native American.

As union laborers, Plaintiffs’ employment was governed by a

collective bargaining agreement entered into by the Union on

their behalf and Atlantic, which is titled the “Trade

1 Plaintiffs have spelled the last name of Charles “Greenidge”

differently throughout their Complaint. In the caption, and on

the first page of the Complaint, his last name is spelled

“Greenidge.” Periodically throughout the rest of the Complaint,

however, his last name is spelled “Greenage.” For the purposes

of this Opinion, The Court will refer to the plaintiff by the

spelling of his name found in the caption of this case.

Show/Decorator Warehouse Agreement” (the “Warehouse Agreement”

or “CBA”). The CBA provides terms governing Plaintiffs’

employment, wages, benefits, and the process by which they

should pursue any grievances.

At some point prior to September 5, 2018, Plaintiffs

noticed a series of issues related to their wages, pensions, and

benefits. Specifically, Plaintiffs discovered that (1) Atlantic

had been deducting “three (3) to five (5) percent of Plaintiffs’

gross pay from each paycheck due from the inception of their

work with Atlantic Exposition” for either union dues or as a

“check off” fee for the Union, (2) health insurance was not made

available to them by Atlantic, (3) no pension or retirement

benefits, vacation fund, or other benefits were made available

to them by Atlantic, (4) pay for overtime was either

miscalculated or withheld, (5) “monies for retroactive pay or

increases in salary” were also withheld by Atlantic, and (6) the

Union had withheld vacation funds that had been requested.

Plaintiffs allege that unlike them, the one white warehouse

employee, the Warehouse Foreman, has received the full benefit

of his hours towards Pension and Annuity benefits.

Concerned about these issues, Plaintiffs wrote a letter on

September 5, 2018 to Atlantic, the Union, and Defendant

International Union of Painters and Allied Trades, Industry

Pension Plan, (the “Pension Fund”), an employee benefit plan as

defined under the Employment Retirement Income and Security Act

of 1974 (“ERISA”). The letter raised some or all of the issues

mentioned above, and further requested an accounting of the

hours worked by each employee and the category of work that was

done. Neither Atlantic nor the Union ever responded to the

September 2018 letter. Plaintiffs did receive a response from

the Pension Fund, which stated that Plaintiffs’ CBA did not

provide for contributions to the Pension Fund on their behalf or

for contributions to any other ERISA benefit plan.

Several months later, on January 25, 2019, Plaintiffs

Greenidge, Chalakee, Estrada, and Medley attempted to attend a

Union meeting, hoping to discuss the possibility of negotiating

a new CBA with their fellow Union members. The four Plaintiffs

were ejected from the meeting however, and told it was because

their union dues were not current; Plaintiffs assert that they

were aware that the true reason for their being denied access to

the meeting was their previous attempt to raise the issues

mentioned above to a Union lawyer.

This was not the first time something like this had

happened, as Plaintiff Greenidge had previously been denied

access to a separate Union meeting on January 2, 2018. At some

point prior to this incident, Plaintiffs appear to have retained

counsel, and through their counsel they sent a second letter to

Defendants on March 18, 2019, demanding to know why they were

being denied the opportunity to provide input on a new CBA

negotiation. No response to this letter was ever received.

While Plaintiffs allege that they all have requested that

Atlantic or the Union address their concerns, only certain of

the Plaintiffs have attempted to address these issues through

official means. Despite the clear grievance process provided

for in the CBA, Plaintiffs concede that only Medley, Greenidge,

and Estrada have filed grievances with the Union, and only state

that those grievances were related to the pension issues

described above, rather than the rest of their concerns.

Greenidge, however, went one step further: on April 27, 2018, he

filed an unfair labor practices charge with the National Labor

Relations Board, alleging that the Union had “failed and refused

to process the grievance of Charles Greenidge regarding the

employer’s failure to pay his pension, annuity, vacation, and

health benefits for reasons that are arbitrary, discriminatory,

or otherwise in bad faith.” (ECF No. 09-4, Ex. A).

Finally, on March 14, 2020, Plaintiffs were each terminated

by Atlantic. Six months later, on September 14, 2020,

Plaintiffs filed their Complaint in New Jersey Superior Court,

which the Union properly removed to this Court on November 11,

2020. (ECF No. 1). All three defendants then proceeded to

submit motions to dismiss the claims against them. (ECF No. 9,

12, and 18). Plaintiffs filed a joint brief in opposition to

the three motions, (ECF No. 24), which Defendants followed with

briefs in further support of their motions shortly after. (ECF

No. 27, 28, and 29).

A few months later, Plaintiffs filed a motion to seal a

document that was attached to the initial Complaint filed in

state court and then attached along with Defendants’ removal

papers on this docket, which they stated was accidentally

attached in lieu of the CBA Plaintiffs meant to file as their

central exhibit. That motion is unopposed, and the time to file

an opposition to it has since passed. The four pending motions

are therefore ripe for adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiff’s claims under

28 U.S.C. § 1331.

II. Standard for Motions to Dismiss

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

III. Analysis

Plaintiffs’ Complaint asserts four causes of action, which

include a series of hybrid claims under § 301 of the Labor

Relations Management Action against both Atlantic and the Union,

a claim for unjust enrichment against Atlantic, claims of

discrimination in violation of the New Jersey Law Against

Discrimination (“NJLAD”) against both Atlantic and the Union,

and finally a claim for failure to account against the Pension

Fund, seeking an order directing it to provide them an

accounting of the contributions made by Atlantic to the

Plaintiffs’ pensions. Defendants have moved to dismiss all four

claims. The Court will address the claims in the order they

appear in the Complaint.

A. Hybrid 301/Breach of C.B.A. Claim

Count I of the Complaint asserts a hybrid § 301 claim

against both Atlantic and the Union. “Such a claim is called

‘hybrid’ because the employee alleges under Section 301 of the

Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, that

the employer breached the CBA, and also alleges that that the

Union breached its duty of fair representation (“DFR”) by

failing to press the employee's grievance.” Luongo v. Village

Supermarket, Inc., 261 F. Supp. 3d 520, 526 (D.N.J. 2017)

(citing Jimenez v. GCA Servs. Grp., Inc., No. CV 16-1871, 2016

WL 6877738, at *2 (D.N.J. Nov. 21, 2016)). Specifically,

Plaintiffs here allege that Atlantic “breached its Collective

Bargaining Agreements with plaintiffs by neglecting, failing,

and/or refusing to pay wages, overtime, and benefits earned by

the plaintiffs,” and that despite Plaintiffs having requested

the Union’s representation in grievances associated with these

issues, the Union has failed to provide fair representation.

(ECF No. 1-1 at ¶¶ 2-7).

Judge Walls helpfully summarized the requirements for

stating a valid hybrid claim for breach of both a CBA and a

union’s duty of fair representation in Pagano v. Bell Atlantic–

New Jersey, Inc.:

The two claims ... are inextricably linked. “To

prevail against either the company or the Union,

... [employee-plaintiffs] must not only show that

their discharge was contrary to contract but also

carry the burden of demonstrating a breach of duty

by the Union.” DelCostello v. International Bhd. of

Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2290,

76 L.Ed.2d 476 (1983) (quoting Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554, 570–71, 96 S.Ct.

1048, 1059–60, 47 L.Ed.2d 231 (1976)). This is so

because a hybrid suit is essentially a challenge to

private settlements reached pursuant to collective

bargaining agreements. See id.

“A breach of the statutory duty of fair

representation occurs only when a union's conduct

toward a member of the collective bargaining unit

is arbitrary, discriminatory, or in bad faith.”

Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903,

916, 17 L.Ed.2d 842 (1967). If a union arbitrarily

ignores a meritorious grievance or “process[es] it

in perfunctory fashion,” the Union may be found to

have violated its implied statutory obligation. Id.

at 191, 87 S.Ct. at 917. This does not mean that an

employee has an absolute right to have his

grievance taken to arbitration. See id.; see also

Fajardo v. Foodtown Supermarkets, 702 F.Supp. 502,

506 (D.N.J. 1988). Rather, it means that an

employee will have a claim against his union for

“conduct which is so acutely perfunctory that it

fails to attain a basic level of acceptable

performance by a collective bargaining unit.” Rupe

v. Spector Freight Systems, Inc., 679 F.2d 685 (7th

Cir. 1982).

988 F. Supp. 841, 845 (D.N.J. 1997).

Atlantic and the Union put forward two central arguments in

support of their motions to dismiss this hybrid claim: that

Plaintiffs’ claims are all time-barred under the relevant

statute of limitations, and that Plaintiffs have failed to

exhaust the grievance process outlined in the CBA. The Court

turns first to Defendants’ state of limitations arguments.

1. LMRA Statute of Limitations

Defendants first contend that Plaintiffs’ hybrid LMRA

claims are time-barred. The statute of limitations for a hybrid

§ 301 claim is six months. Luongo, 261 F. Supp. 3d at 526

(citing Pagano, 988 F. Supp. at 845). Although the statute of

limitations is technically an affirmative defense which must be

pled in an answer, see Fed. R. Civ. P. 8(c)(1), a 12(b)(6)

motion may be granted on statute of limitations grounds, but

“only when the statute of limitations defense is apparent on the

face of the complaint.” Wisniewski v. Fisher, 857 F.3d 152, 158

(3d Cir. 2017) (citing Schmidt v. Skolas, 770 F.3d 241, 249 (3d

Cir. 2014)). “To be sustainable, such a dismissal must consider

the applicability of tolling doctrines.” Luongo, 261 F. Supp.

3d at 526-27 (citing Wisniewski, 857 F.3d at 158).

The employees’ knowledge that the union has failed to

pursue the requested grievance generally starts the six-month

clock running: “[t]he limitations period ‘begins to run when the

claimant discovers, or in the exercise of reasonable diligence

should have discovered, the acts constituting the alleged

violation.’” Id. at 527 (quoting Hersh v. Allen Prods. Co.,

Inc., 789 F.2d 230, 232 (3d Cir. 1986)). Specifically, the

Third Circuit has explained that for a hybrid § 301 claim,

“where an employee sues a union for breach of its duty of fair

representation, the limitations period commences when ‘the

plaintiff receives notice that the union will proceed no further

with the grievance.’” Vadino v. A. Valey Eng'rs, 903 F.2d 253,

260 (3d Cir. 1990) (quoting Hersh, 789 F.2d at 232). Moreover,

“[e]ven if there has been no explicit notice, the statute of

limitations begins to run when ‘the futility of further union

appeals became apparent or should have become apparent.’” Id.

(quoting Scott v. Local 863, Int'l Bhd. of Teamsters, 725 F.2d

226, 229 (3d Cir. 1984)).

The Union’s arguments for dismissal on this front are

straightforward: they note that Plaintiffs have simply not

alleged any actions related to their hybrid claim that took

place within the six-month period before they filed their

Complaint on September 14, 2020.2 The Union’s argument is not

entirely off-base, as the fact that Plaintiffs have not alleged

any underlying violations allegedly committed by Atlantic within

six months of the filing of their Complaint is of course

relevant to the Court’s statute of limitations analysis here.

However, the Union largely misses the central question here. As

outlined above, the statute of limitations analysis for hybrid §

301 claims focuses on when “the plaintiff receives notice that

the union will proceed no further with the grievance,” Vadino,

903 F.2d at 260, rather than on when the underlying action by

the employer that prompted the grievance occurred. See Maksin

v. United Steel Workers of America, 136 F. Supp. 2d 375, 380

(W.D. Pa. 2000) (“In a § 301 suit, a claim accrues against the

company defendant at the same time it accrues against the union

defendant, since the predicate for a § 301 action against an

employer is proof that the union breached its duty of fair

representation.”).

2 While the Complaint does allege that Plaintiffs were all

terminated by Atlantic on March 14, 2020, both Atlantic and the

Union accurately point out that Plaintiffs’ hybrid § 301 claim

is not based on their termination, but rather only on the

preceding wage, benefits, overtime, and pension issues.

Atlantic, in its separate but largely overlapping motion to

dismiss, does directly argue that Plaintiffs were sufficiently

aware that the Union was not proceeding to represent them in any

grievances related to the wage, overtime, benefits, and pension

issues outlined in the Complaint more than six months prior to

its filing. The Court agrees that based on the facts alleged in

the Complaint and in related documents that are appropriate to

consider at this stage, it is clear that Plaintiffs were

sufficiently aware, or should have been, that the Union would

not be representing them and pursuing their grievances on these

topics prior to March 14, 2020. Their claims are therefore

time-barred.

First, although this Complaint was not filed until

September 14, 2020, Plaintiff Charles Greenidge had previously

filed an unfair labor practices charge with the National Labor

Relations Board on April 27, 2018, explicitly charging that the

Union had “failed and refused to process the grievance of

Charles Greenidge regarding the employer’s failure to pay his

pension, annuity, vacation, and health benefits for reasons that

are arbitrary, discriminatory, or otherwise in bad faith.” (ECF

No. 09-4, Ex. A). In other words, Greenidge, over two years

prior to the filing of the Complaint, had explicitly accused the

Union, in a filing with the NLRB, of the exact violations he now

relies upon as the basis for his hybrid claim.

Plaintiff Greenidge’s act of filing an NLRB charge

regarding the exact violations alleged here demonstrates beyond

any doubt that he knew of the Union’s actions constituting the

alleged violation by that date, and that his claims are

therefore time-barred. See Mills v. International Union of

Operating Engineers Local Union 66, 252 F. Supp. 2d 210, 214

(W.D. Pa. 2003) (“Because [Plaintiff] filed a charge with the

NLRB regarding these actions, he clearly knew these actions

could constitute a violation at that date.”); Nicol v. United

Steelworkers of America, No. 2:04-cv-1162, 2008 WL 4138104, at

*6 (W.D. Pa. Aug. 29, 2008) (listing cases from numerous other

Circuits and District Courts holding “that a plaintiff has

discovered the grounds for his hybrid § 301 claim, and his claim

has accrued, on the date a charge of breach of the duty of fair

representation is filed with the NLRB”); Lacy v. General Elec.

Co., No. 84–5343, 1986 WL 12948, at *3 (E.D. Pa. Nov. 14, 1986)

(holding on summary judgment that “[Plaintiff] knew that the

union was not going to represent him any further when he so

stated in a sworn statement given to the National Labor

Relations Board in November, 1982 . . . For these reasons,

plaintiff's complaint against both defendants filed November 10,

1984, is untimely”). And, importantly, “the filing of an NLRB

charge does not toll the statute of limitations for a § 301

action arising out of the same nucleus of operative fact.” Love

v. Merck & Co., Inc., No. Civ.A. 04-4878, 2005 WL 146893, at *2

(E.D. Pa. Jan. 21, 2005) (listing supporting precedent).

Plaintiffs, for their part, do not directly address this

argument or the NLRB charge, or put forward any argument

opposing this basis for dismissal. They do, at one point in

their opposition brief, note that “defendant argues that the

Court ought to consider in the review of these 12(b)(6) motions

the Collective Bargaining Agreement, the Council By-Laws, the

Constitution of the Union, and various documents related to

grievances.” (ECF No. 24 at 11). However, they make no direct

argument that the Court cannot consider Plaintiff Greenidge’s

NLRB charge, nor do they contend that the copy of the charge

filed by Atlantic is inaccurate or inauthentic.

The Court is generally limited to the facts alleged in the

complaint and documents explicitly attached or referenced in the

Complaint when deciding a Rule 12(b)(6) motion to dismiss.

However, it is perfectly appropriate for the Court to consider

matters of public record in other proceedings for purposes of a

motion to dismiss, and courts in this Circuit have long taken

judicial notice of NLRB charges filed by plaintiffs in cases

like the present one. See, e.g., Mills, 252 F. Supp. 2d at 214

(“[Plaintiff’s] charge to the Regional Director of the NLRB, and

the Regional Director's correspondence indicating that a formal

complaint would not be filed are public records. Thus, we may

consider those exhibits, the validity of which plaintiff does

not dispute, without converting the motion to one for summary

judgment under Fed.R.Civ.P. 56(c).”) (citing 29 C.F.R. §

102.117(a)(2),(b)(1); Berg v. United Steelworkers of America,

Local 3733, No. 98–308, 1998 WL 165005, at *7 (E.D. Pa. Apr. 8,

1998) (“[T]he Court will take judicial notice of the charge

filed by plaintiff with the NLRB since it is a matter of public

record.”); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct.

1504, 44 L.Ed.2d 29 (1975) (holding that NLRB documents which

constitute final opinions are public record)).

Plaintiff Greenidge’s hybrid § 301 claim is therefore

unequivocally time-barred, and will be dismissed with prejudice.

Defendant Atlantic, in its supporting brief, appears to go so

far as to argue that every Plaintiffs’ hybrid claims must be

considered time-barred based solely on Greenidge’s filing of the

NLRB charge. The Court does not agree. The charge itself, on

its face, related only to the Union’s failure to represent

Greenidge himself in his grievance, and makes no mention of any

other Plaintiff or employee; nor does the Complaint itself make

any reference to this charge, or provide any factual allegations

that would demonstrate that any other Plaintiff was aware of

Greenidge’s actions or the filing of the NLRB charge. Defendant

has put forward no case law or true argument supporting the idea

that Greenidge’s knowledge demonstrated in his NLRB charge

should be attributed to the other plaintiffs, and the Court

declines to make such a finding here at the motion to dismiss

stage.

However, the Complaint nonetheless makes clear that the

other Plaintiffs similarly had sufficient knowledge that the

Union would not be representing their interests related to the

issues outlined in the Complaint prior March 14, 2020.

Plaintiffs allege that Plaintiffs Lamar Medley, Luis Estrada,

and Matthew Chalakee — along with Greenidge — ”attempted to

attend a Council 711 meeting at the Union Hall in Winslow

Township, which occurred on or about January 25, 2019,” but were

“unlawfully ejected from the meeting.” (ECF No. 1-1 at ¶¶ 35-

37). Plaintiffs, importantly, do not pretend to be unaware of

why those four individuals were removed from the Union meeting:

while the Complaint states that they were denied access “on the

pretense that their union dues were not current,” (id. at ¶ 39),

Plaintiffs explicitly allege that the Union’s actions were

direct retaliation for their complaints regarding the pension,

wage, and benefits issues, and the Union’s failure to represent

their interests in a grievance process.

In fact, Plaintiffs make clear in their Complaint that

their removal from the Union meeting was actually a direct

response to their having raised these concerns with a Union

lawyer through their own hired counsel, alleging that “All

Plaintiffs, through counsel, have escalated the pension issues

to a Council 711 attorney, which has resulted in their being

denied access to union meetings and otherwise fair

representation in retaliation for their raising concerns with

how Council 711 has represented their interests.” Id. at ¶ 67.

The only plausible reading of these allegations is that

Plaintiffs, prior to January 2019, had hired counsel and through

that counsel had specifically raised concerns that the Union was

not representing their interests regarding the issues underlying

their hybrid § 301 claim, and that in response to their having

raised these concerns with a Union lawyer, the Union denied four

of them access to the January 2019 meeting and denied them fair

representation. And although Plaintiffs only directly allege

that they were denied access to the meeting because of their

complaints regarding the pension issues without explicitly

mentioning the other conduct, this is not the end of Plaintiffs’

allegations on this front. According to the Complaint,

Plaintiffs responded to their denial of access to the meeting by

having their counsel send another letter to all Defendants in

March 2019, demanding to know why they were not being permitted

the opportunity to take part in discussions regarding

negotiation of a new CBA.

Plaintiffs cannot simultaneously allege both that (1) they

hired counsel to address the Union’s representation of them

regarding the underlying issues with Atlantic and through that

counsel raised their concerns with a Union lawyer, which

subsequently resulted in four of them being denied access to a

January 2019 Union meeting, being denied the ability to provide

input on CBA negotiations, and finally in their lawyers sending

another unanswered letter to Defendants in March 2019, and that

(2) they were unaware that the Union was not going to represent

them regarding their grievances against their employer until

after March 14, 2020. There can be no debate that, at the very

least, Plaintiffs Greenidge, Medley, Estrada, and Chalakee,

after being denied access to the January 2019 meeting, were

aware of the specific violations they are alleging against the

Union here.3

The Complaint here contains clear factual allegations that

the entire group of Plaintiffs had retained counsel for the

purposes of raising the fair representation concerns to counsel

for the Union prior to the January 2019 Union meeting, that the

Union’s actions in denying four of the Plaintiffs access to that

meeting was directly intended as retaliation for Plaintiffs’

3 To the extent that Plaintiff Greenidge’s NLRB charge against

the Union did not explicitly reference the overtime payment

concerns alleged in the Complaint and therefore may not have

started the running of the statute of limitations as to that

claim, the limitations period would at least have begun at the

same time as it did for the rest of the Plaintiffs and would

still be time-barred.

counsel having raised such concerns, and that they then further

utilized their counsel to send the unanswered March 2019 letter

to Defendants after that meeting. Faced with these clear facts,

the Court finds that the remaining Plaintiffs were also aware by

early 2019 of that the Union’s actions may constitute violations

that could sustain a valid hybrid § 301 claim, and that the six-

month statute of limitations for their claims therefore started

running at that time.

Plaintiffs, for their part, have largely failed to mount

any plausible opposition to these facts and the arguments put

forth by Defendants. Plaintiffs’ opposition brief first attacks

the additional documents that Defendants have attached to their

12(b)(6) briefs arguing that they “raise more questions than

they resolve.” The Court will not address this section of their

brief besides to note that Plaintiffs’ argument centered around

a paragraph containing 11 consecutive unanswered questions

rather than any legal arguments in no way addresses or rebuts

the statute of limitations issues raised in this Opinion.

Plaintiffs’ opposition brief then puts forward three short,

separate sections posing arguments that are only slightly more

relevant to the case at hand. First, Plaintiffs argue that the

statute of limitations “Does Not Facially Apply to Claims for

Wrongful Discharge.” (ECF No. 24 at 13). Plaintiffs are

certainly correct that Defendants’ statute of limitations

arguments do not apply to any hybrid § 301 claims for wrongful

discharge in this action, because no such claims exist. Count I

of the Complaint includes a specific list of underlying alleged

violations that serve as the bases for Plaintiffs’ hybrid § 301

claim, and their termination on March 14, 2020 is not among

them. (ECF No. 1-1 at 10-11 ¶¶ 1-8). Plaintiffs did not bring

such a claim in this action and may not amend their Complaint

now in opposition to a motion to dismiss to attempt to avoid

dismissal of Count I of the Complaint.4

Plaintiffs’ second argument is even more inapplicable than

their first. Plaintiffs’ brief includes a large block quote

from a proposed version of NLRB Final Rule 9354, which would

have required employers to provide notice to their employees of

their rights under the National Labor Relations Act by

displaying a poster and would have tolled the six-month statute

of limitations for certain claims in cases where no such notice

had been posted. (ECF No. 24 at 14). But this argument runs

into three serious, fatal issues: (1) the language Plaintiffs

emphasized in the proposed version of the rule applied only to

4 The Court assumes that Plaintiff made a strategic decision not

to raise an LMRA claim related to their termination, as the

Complaint includes no allegations that Plaintiffs attempted to

exhaust the internal union grievance process regarding their

termination, which as the Court will discuss below is a

necessary precondition to bringing such a claim. They may not

attempt to save their labor law claims now by asserting such a

claim in an opposition brief.

unfair labor practices claims and did not reference hybrid § 301

claims, (2) the final version of that rule as enacted by the

NLRB did not include the tolling language relied upon by

Plaintiffs, see 79 FR 74307(as corrected by 80 FR 19199), and

(3) even if it did, Plaintiffs raised no such claims or factual

allegations in their Complaint, and may not amend their

complaint through factual allegations first raised in an

opposition brief. Hall v. Revolt Media & TV, LLC, No. 17-2217

(JMV) (MF), 2018 WL 3201795, at *3 (D.N.J. 2018) (citing Com. Of

Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d

Cir. 1988)).

Finally, Plaintiffs’ brief includes a section titled “The

Continuous Violation Doctrine Tolls the Statute of Limitations.”

(ECF No. 24 at 14-15). Plaintiffs correctly identify the

existence of the continuing violation doctrine, and that in

certain circumstances that doctrine may result in the tolling of

a statute of limitations. Plaintiffs, however, do not actually

argue that this should be the case here. Plaintiffs’ brief

includes three short paragraphs outlining the doctrine, and

nothing else; their brief includes no application of the

doctrine, and points to no allegations of continuing violations

that would warrant this Court tolling the relevant statute of

limitations for their hybrid § 301 claim. In fact, as

Defendants accurately point out, the only factual allegations in

the entire Complaint that fall within six months of September

14, 2020 are Plaintiffs’ allegations that they were terminated

on March 14, 2020. However, as noted above, Plaintiffs hybrid §

301 claim is not related to their termination, and does not

include their termination as one of its bases.

Nor does the Court believe that Plaintiffs could have

raised a valid continuing violation argument here. As explained

above, the statute of limitations for hybrid § 301 claims begins

to run when the plaintiffs are aware that the union will not

represent their concerns or proceed with their grievance. Here,

the Court has already found that Plaintiffs either knew, or

clearly should have known, that the Union would not represent

them regarding their complaints that Atlantic had violated the

CBA by March of 2019 at the latest. Plaintiffs, in another

section of their brief, do assert that “[i]t is a reasonable

inference from the Complaint that the plaintiffs continued to

request and expect that the Union would intervene until they

lost their jobs on March 14, 2020, or thereafter.” (ECF No. 24

at 16). It should first be clarified that while the Court must

accept Plaintiffs’ facts as true and read the complaint in the

light most favorable to Plaintiff at this stage, it may not read

into complaints facts that were not pled by the plaintiffs and

which are in no way supported by the factual allegations that

were pled.

However, even had Plaintiffs made such allegations, the

Court finds that this would not constitute a continuing

violation — a finding that is directly relevant to Plaintiffs’

request to have the opportunity to amend their Complaint if the

Court grants Defendants’ motions. For the purposes of

Plaintiffs’ hybrid § 301 claims, the Union’s alleged violation

of its duty of fair representation occurred at the moment it was

clear to Plaintiffs that it would not represent them in

connection with their grievances regarding Atlantic’s alleged

underlying violation of the CBA, and the clock started running

then. To the extent that Plaintiffs continued to repeat their

request that the Union represent their interests, and the Union

continued not to do so, the Court declines to find that such

actions or omissions are sufficient to establish a continuing

violation.

The Court declines to do so for a simple reason: our courts

have repeatedly emphasized the importance of quick resolution of

labor disputes, with the Supreme Court having specifically

described the “relatively rapid disposition of labor disputes”

as a central goal of both labor law generally and of the six-

month statute of limitations governing § 301 claims in

particular. Auto Workers v. Hoosier Cardinal Corp., 383 U.S.

696, 707, 86 S. Ct. 110, 716 L.Ed.2d 192 (1966). Were the Court

to view claims like Plaintiffs’ as asserting a valid continuing

violation, it would largely erase the import of the six-month

statute of limitations in cases like this altogether, by

allowing parties to simply re-start the clock on the same

violation by repeating the same request that had already been

rejected or ignored multiple times and which they had every

reason to believe would be rejected or ignored again.

Courts around the country, faced with similar cases, have

repeatedly reached this same conclusion and rejected such

arguments. See, e.g., Ganny v. F.J.C. Security Services, Inc.,

No. 15–CV–1965 (JG)(JO), 2015 WL 4600745, at *4-5 (E.D.N.Y. July

28, 2015) (“[Plaintiff] knew as early as February 11, 2013, when

he filed his NLRB charge, that Local 32BJ would not represent

his grievance that the assignment to a non-HRA location violated

the Settlement Agreement. The statute of limitations began to

run at that point and Local 32BJ's refusal to take up the same

grievance in September 2014 would not toll or otherwise preclude

its running.”); Dudich v. United Auto Workers Local Union No.

1250, 454 F. Supp. 2d 668, 678-79 (N.D. Ohio 2006) (denying

continuing violation argument for hybrid § 301 claim based on

repeated usage of incorrect seniority date because “[o]nce the

original damage is lodged, the mere fact that the Defendants are

‘continuing’ to implement allegedly improper collective

bargaining agreements does not convert Plaintiffs' loss of jobs

into a ‘continuing violation.’”) (quoting Bloedow v. CSX

Transportation, Inc., 319 F. Supp .2d 782, 788 (N.D. Ohio

2004)); Int'l Longshoremen's Ass'n Steamship Clerks Local 1624,

AFL-CIO v. Va. Int'l Terminals, Inc., No. Civ. A. No. 2:95CV274,

1995 WL 902670, at *5 (E.D. Va. May 22, 1995) (declining to find

that the repeated application of a policy regarding timekeeping

constituted a continuing breach of a collective bargaining

agreement that would toll the statute of limitations for a

hybrid § 301 lawsuit, because “[s]uch a holding would be

contrary to the underlying policy of federal labor law of the

‘relatively rapid disposition of labor disputes’”); Flanigan v.

Int'l Bhd. of Teamsters, Truck Drivers Local No. 671, 942 F.2d

824, 827 (2d Cir. 1991) (holding that duty of fair

representation claim was time-barred because the workers had

learned that their union interpreted the CBA “to preclude the

bumping by seniority that appellants claimed as their right”

more than six months prior to filing the complaint, and any

subsequent failure to act by the union “cannot be treated as a

continuing violation that precluded the running of the

limitation period”).

Plaintiffs, whose own Complaint clearly demonstrates their

knowledge of the violations serving as the basis for their

hybrid § 301 claims, is unable to evade the statute of

limitations. It therefore finds not only that Plaintiffs have

failed to demonstrate a continuing violation and that their

hybrid § 301 claims are time-barred, but also that amendment

would be futile and such claims must be dismissed with

prejudice.

2. Exhaustion of Remedies

The Union further argues that Plaintiffs have failed to

exhaust the grievance process they are required to engage in

under their CBA before filing this action. While the Court’s

finding that Plaintiffs’ hybrid § 301 claims are time-barred is

sufficient on its own to grant Defendants’ motions to dismiss as

to those claims, the Court finds that multiple Plaintiffs’

claims would still fail even had the statute of limitations not

expired.

It has long been established that “[a]n employee seeking a

remedy for an alleged breach of the collective-bargaining

agreement between his union and employer must attempt to exhaust

any exclusive grievance and arbitration procedures established

by that agreement before he may maintain a suit against his

union or employer under § 301(a) of the Labor Management

Relations Act[.]” Kush v. United Food & Commercial Workers

Union Local 152, No. 12–2120 (FLW), 2013 WL 2096626, at *4

(D.N.J. May 14, 2013) (quoting Wheeler v. Graco Trucking Corp.,

985 F.2d 108, 112 (3d Cir. 1993). And “even if a union member

has been ‘mistreated by his bargaining representative,’ each

union member ‘must also avail himself of his intra-union

remedies before turning to the courts for relief.’” May v. Elk

Pipeline, Inc., No. 18-10311 (RBK/AMD), 2021 WL 1040509, at *3

(D.N.J. March 18, 2021) (quoting Pawlak v. Int'l Bhd. of

Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., Local

Union No. 764, 444 F. Supp. 807, 810 (M.D. Pa. 1977), aff'd, 571

F.2d 572 (3d Cir. 1978)). “If there is a manner by which the

mistreatment or mishandling of a grievance can be challenged,

the employee must avail himself of that process.” Id. (citing

Kush, 2013 WL 2096626 at *4). Finally, any allegations put

forth that a plaintiff attempted to exhaust the specific union

remedies outlined in their CBA must be “substantiated by facts

that indicate what procedures the [union member] attempted to

follow.” Id. (citing Rehm v. Quaker Oats Co., 478 F. Supp. 619,

620 (M.D. Pa. 1979) (finding that “[e]ven if the Local Union

officers did not act on Plaintiff's request, he has failed to

allege that he tried to pursue any further remedy, or that none

was available. Therefore ... the Complaint fails to allege the

requisite complete exhaustion of internal Union remedies, nor

does it allege that all efforts to pursue such procedures have

been frustrated.”)).

The CBA here provides for a specific grievance process that

Plaintiffs were required to have followed before bringing their

hybrid § 301 claims. Article XVI of the parties’ CBA includes

specific procedures for filing and pursuing a grievance. Within

fourteen days after the events that is resulting in the

complaint having occurred, the employee must “file a written

grievance that describes in general terms the nature of the

occurrence,” and a copy of that grievance “must be delivered to

the employee’s immediate supervisor and/or the Employer’s

designated labor relation supervisor and a copy must also be

forwarded to the Business Manager/Secretary-Treasurer of the

District Council.” (ECF No. 33-1 at 15). The CBA provides

additional details for further steps and arbitration of

grievances as well. Id.

Here, the Complaint only specifically alleges that

Plaintiffs Medley, Greenidge, and Estrada filed grievances

related to any of the underlying violations alleged here. While

the Court acknowledges that, at one point in the Complaint,

Plaintiffs do include a conclusory assertion that “Plaintiffs

have unsuccessfully grieved these issues,” (ECF No. 1-1 at 11, ¶

5), just one page earlier Plaintiffs specifically conceded that

“[v]arious Plaintiffs, not all, have grieved this pension issue

with Council 711 with no response to their questions,” and then

listed the three Plaintiffs named above as the only parties to

have filed such grievances. Id. at ¶¶ 65-66. Accordingly,

since the Complaint itself acknowledges that no other Plaintiff

filed a grievance and pursued their complaints through the CBA’s

specified grievance process, Plaintiffs David Rolls, Jose Lous

Carreon, Matthew Chalakee, Rafael Flores, and Marlon Gibbs have

failed to allege that they satisfactorily “followed the

mandatory grievance procedure,” which is fatal to their claims.

May, 2021 WL 1040509 at *4. And as the above quote from the

Complaint makes clear, even those Plaintiffs who did pursue

grievances are only alleged to have done so for the pension-

specific issues, not their wage, overtime pay, or other benefits

concerns. Accordingly, to the extent that these claims were not

already time-barred, they must also be dismissed for failure to

exhaust their internal union grievance process.

The closest thing to a counterargument Plaintiffs put

forward on this front is the conclusory statement, found only in

a section-heading, that “The Exhaustion of Internal Grievance

Remedies Does Not Apply Until it is Clear that Further Attempts

at Using the Existing Grievance Mechanism Would be Futile.”

(ECF No. 24 at 16). The Court assumes that Plaintiffs did not

intend to argue they only had to exhaust their internal remedies

after they determined that doing so would be futile, and in fact

intended to raise the exact opposite argument. The Supreme

Court has held that district courts have discretion to excuse

the exhaustion requirement, although they must be guided by

three factors: “(1) “whether union officials are so hostile to

the employee that he could not hope to obtain a fair hearing on

his claim;” (2) “whether the internal union appeals procedures

would be inadequate either to reactivate the employee's

grievance or to award him the full relief he seeks under § 301;”

and (3) “whether exhaustion of internal procedures would

unreasonably delay the employee's opportunity to obtain a

judicial hearing on the merits of his claim.” Clayton v. Int'l

Union, United Auto., Aerospace, & Agr. Implement Workers of Am.,

451 U.S. 679, 689 (1981). A court may properly excuse the

employee's failure to exhaust in the presence of any of these

factors. May, 2021 WL 1040509 at *4 (citing Keister v. PPL

Corp., 253 F. Supp. 3d 760, 775 (M.D. Pa. 2015)).

Plaintiffs, once again, fail to demonstrate the existence

of any of these factors. Besides the brief statement in a

section heading, Plaintiffs have failed to actually argue that

it would have been futile to attempt to exhaust their internal

grievance procedures. Nor have they put forward sufficient

allegations in their Complaint to convince this Court that it

would be appropriate to exercise its discretion and excuse the

exhaustion requirement in this case. Therefore, each of the

hybrid § 301 claims of Plaintiffs David Rolls, Jose Lous

Carreon, Matthew Chalakee, Rafael Flores, and Marlon Gibbs, as

well as the non-pension-related claims of Plaintiffs Medley,

Greenidge, and Estrada, must be dismissed for this additional

reason as well.

B. Preemption under the LMRA

With Plaintiffs’ federal claims under the LMRA being

dismissed, the only remaining claims in this action are brought

pursuant to state common law and state antidiscrimination law:

Count II of Plaintiffs’ Complaint alleges a claim for unjust

enrichment against Defendant Atlantic, Count III raises claims

under the NJLAD against both Atlantic and the Union, and Count

IV raises a claim for failure to account against the Pension

Fund. “[W]hen all federal claims against a party have been

eliminated from a case, the district court may, in its

discretion, decline to extend supplemental jurisdiction over the

remaining state law claims.” Rothman v. City of Northfield, 716

F. Supp. 2d 369, 373 (D.N.J. 2010) (citing Lentz v. Mason, 961

F. Supp 709, 717 (D.N.J. 1997)).

However, the Court recognizes that Atlantic and the Union

have both raised arguments that Plaintiffs’ unjust enrichment

and NJLAD claims are preempted by the LMRA. And as the Supreme

Court has made clear, the doctrine of complete preemption

applies in the context of claims preempted by § 301 of the LMRA,

meaning that the LMRA’s preemptive force is so “extraordinary”

that it “converts an ordinary state common-law complaint into

one stating a federal claim for purposes of the well-pleaded

complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386,

393 (1987) (quoting Metropolitan Life Insurance Co. v. Taylor,

481 U.S. 58, 65, 107 S. Ct. 1542, 1547, 95 L.Ed.2d 55 (1987)).

Accordingly, the Court will first discuss the doctrine of

federal preemption of state law claims under the NJLAD, and will

then proceed to address Defendants’ LMRA preemption arguments

regarding Plaintiffs’ state law claims, before deciding whether

any remaining claims should be remanded to state court.

1. LMRA Preemption Doctrine

Section 301(a) of the LMRA provides for federal

jurisdiction over disputes regarding collective bargaining

agreements. 29 U.S.C. § 185(a). More importantly, § 301

“mandate[s] resort to federal rules of law in order to ensure

uniform interpretation of collective-bargaining agreements, and

thus to promote the peaceable, consistent resolution of labor-

management disputes.” Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 404, 108 S. Ct. 1877, 100 L.Ed.2d 410 (1988).

“Because § 301 requires the creation of uniform federal labor

law to ensure uniform interpretation of collective bargaining

agreements, and because state laws might produce differing

interpretations of the obligations imposed by such agreements,

the Supreme Court has held that ‘a suit in state court alleging

a violation of a provision of a labor contract must be brought

under § 301 and be resolved by reference to federal law.’”

Snyder v. Dietz & Watson, Inc., 837 F.Supp.2d 428, 437-38

(D.N.J. 2011) (quoting Allis–Chalmers Corp. v. Lueck, 471 U.S.

202, 210, 105 S. Ct. 1904, 85 L.Ed.2d 206 (1985).

Therefore, “if the resolution of a state-law claim depends

upon the meaning of a collective-bargaining agreement, the

application of state law ... is preempted” by federal labor law.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406, 108

S. Ct. 1877, 100 L.Ed.2d 410 (1988). And this preemption is not

limited to contracts claims: instead, the Supreme Court has held

that “when resolution of a state-law claim is substantially

dependent upon analysis of the terms of an agreement made

between the parties in a labor contract,” even in the context of

tort claims, the claim is preempted by § 301 and must be decided

pursuant to federal labor contract law. Lueck, 471 U.S. at 220,

105 S. Ct. 1904.

However, preemption of state law claims under the LMRA is

limited in scope: “Not every dispute concerning employment, or

tangentially involving a provision of a collective-bargaining

agreement, is preempted by § 301 or other provisions of federal

labor law ... it would be inconsistent with congressional intent

under that section to pre-empt state rules that proscribe

conduct, or establish rights and obligations, independent of a

labor contract.” Id. at 211–212. The LMRA thus has no

preemptive effect where there are “state rules that proscribe

conduct, or establish rights and obligations, independent of a

labor contract,” id. at 212, or “where the state law claim can

be resolved without substantially interpreting the collective

bargaining agreement itself.” Id. at 220; see also Lingle, 486

U.S. at 409–10. The relevant inquiry is whether “resolution of

Plaintiffs claim [] require[s] ‘interpretation’ of the

[relevant] CBA,” or at least will “involve ‘a substantial issue

of construction and operation of the CBA[.]’” LaResca v. AT&T,

161 F. Supp. 2d 323, 330–31 (D.N.J. 2001). The simple fact that

a case involves “reference to or consideration of the terms of a

collective-bargaining agreement” does not warrant preemption, as

this does not signal that the litigated issues require

interpretation of the CBA. Id. at 330 (quoting Ramirez v. Fox

Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993)).

A court must, on a “case by case basis,” determine whether

the state law claims are “inextricably intertwined with

considerations of the terms of the labor contract.” Lueck, 471

U.S. at 213, 220. When a court determines that a state-law

claim is subject to preemption and arises under federal law, the

court may either treat the claim as a LMRA claim or dismiss the

claim as preempted. Id. at 220.

2. Unjust Enrichment Claim

The Court therefore must assess whether Plaintiffs’ state

law claims are preempted under this doctrine. Count II of the

Complaint specifically asserts that, based on the same

allegations underlying their claims in Count I, “Plaintiffs,

through their labor, have conferred a benefit upon defendant

Atlantic Exposition,” for which they expected renumeration, and

“[i]t would be unjust and inequitable for the defendants

Atlantic Exposition to retain the benefit conferred upon it.”

(ECF No. 1-1 at 11-12, ¶¶ 3-5). “To establish unjust

enrichment, a plaintiff must show both that defendant received a

benefit and that retention of that benefit without payment would

be unjust.” VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554,

641 A.2d 519 (N.J.1994) (citations omitted). “The unjust

enrichment doctrine requires that plaintiff show that it

expected remuneration from the defendant at the time it

performed or conferred a benefit on defendant and that the

failure of remuneration enriched defendant beyond its

contractual rights.” Id. (citations omitted).

As described above, Defendant Atlantic argues that

Plaintiffs’ unjust enrichment claim is preempted by the LMRA.

Plaintiffs, for their part, simply contend that their unjust

enrichment claim is pled “in the alternative,” and that “[t]here

is no federal interest in the common law of quasi-contract or

unjust enrichment. Thus, there can be no federal interest in

Count II.” (ECF No. 24 at 17). Once again, Plaintiffs’ fails

to address the more narrow and central point.

Plaintiffs’ unjust enrichment claim here is clearly

preempted under this doctrine, because determining whether

Plaintiffs had any reasonable expectation of remuneration beyond

that which they received for their work would necessarily

require interpretation of the CBA. In analyzing whether

Atlantic unjustly enriched itself by “neglecting, failing,

and/or refusing to pay wages, overtime, and benefits earned by

the plaintiffs” and by withholding “a ‘check-off’ of 3-5% in

return for unspecified benefits,” (ECF No. 1-1 at 10-11, ¶¶ 2-

3), a trier of fact would have to review the terms of the CBA

and determine whether Plaintiffs were due such wages, overtimes,

or benefits, or whether a “check-off” of 3-5% was improper in

this situation. Therefore, “[b]ecause resolution of the unjust

enrichment claim will require the interpretation of the terms of

the CBA . . . the Court finds that Plaintiff's unjust enrichment

claim is preempted by § 301 and is subject to dismissal without

prejudice.” Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d

428, 443 (D.N.J. 2011).

3. NJLAD Claims

Plaintiffs’ next claims, found in Count III of the

Complaint, center on a series of alleged violations of the NJLAD

by both Atlantic and the Union. Count III, while nominally

being listed as one claim for violation of the NJLAD,

incorporates numerous separate and distinct factual allegations

that Plaintiffs contend were discriminatory. From the Court’s

reading of the Complaint, Plaintiffs’ NJLAD claims, including

both those explicitly noted in Count III and those incorporated

from other sections of the Complaint, can be separated into

three general categories: (1) claims centered on the same

pension, wage, overtime pay, and benefits issues that served as

the bases for their hybrid § 301 claims; (2) claims that the

Union negotiated better collective bargaining agreements on

behalf of white Union members working for other employers than

it did for Plaintiffs, and mistreated them in a series of other

ways, due to their race, national original, color, and

ethnicity; and (3) claims that their termination on March 14,

2020 was due to the race, national origin, color, and ethnicity

of the Plaintiffs and their actions in complaining about the

previously referenced issues.

As explained above, both Atlantic and the Union argue that

Plaintiffs’ NJLAD claims are also preempted by the LMRA.

Plaintiffs, on the other hand, argue that the LMRA does not

preempt state law discrimination claims under the NJLAD like

those they have put forth here. The Court has already outlined

the general contours of federal preemption of state law claims

under the NLRA above in its analysis of Plaintiff’s unjust

enrichment claims, and as both parties acknowledge, the Third

Circuit has previously addressed the intersection of federal and

state law regarding LMRA preemption in substantial detail. See

N.J. Carpenters v. Tishman Constr. Corp., 760 F.3d 297, 306 (3d

Cir. 2014) (finding § 301 “cannot be read broadly to pre-empt

nonnegotiable rights conferred on individual employees as a

matter of state law”); Kline v. Sec. Guards, Inc., 386 F.3d 246,

256 (3d Cir. 2004) (identifying “dispositive question [in pre-

emption analysis] is whether Appellants' state claims require an

interpretation of a provision of the CBA”); Voilas v. GMC, 170

F.3d 367, 378 (3d Cir. 1999) (finding no pre-emption because

plaintiff's “claim in this case is not directly based upon the

[CBA] ... nor will the resolution of the elements ... require

the interpretation of those bargaining agreements”); Cf. Antol

v. Esposto, 100 F.3d 1111, 1117 (3d Cir. 1996) (finding pre-

emption of plaintiff's Pennsylvania Wage Payment and Collection

Law claims because the “suit [was] based ‘squarely on the terms

of the collective bargaining agreement’) (citing Wheeler v.

Graco Trucking Corp., 985 F.2d 108, 113 (3d Cir. 1993)).

The specific impact of the LMRA preemption doctrine on

NJLAD claims is also far from a topic of first impression.

Instead, as this Court itself has previously noted, “there is no

dearth of cases addressing the LMRA's lack of pre-emptive effect

on the NJLAD among New Jersey District courts. In fact,

‘District of New Jersey courts have consistently determined that

claims under the NJLAD are separate and independent from the

terms of labor contracts.’” Tarby v. B.J. McGlone & Co., Inc.,

No. 16-1367 (NLH/AMD), 2016 WL 7217596, at *4 (D.N.J. Dec. 13,

2016) (quoting Naples v. N.J. Sports & Exposition Auth., 102 F.

Supp. 2d 550, 553 (D.N.J. 2000)). See id. (collecting cases).

Given this clear line of precedent, the Court has little

difficulty in finding that Plaintiffs NJLAD claims based on the

second and third categories of Plaintiffs’ claims are not

preempted by the LMRA. Plaintiffs have directly asserted that

the Union has negotiated better CBAs for their white members

than they did for Plaintiffs, that the Union denied them access

to meetings, the ability to examine their books, and recognition

as full members of the Union on that same basis, and that

Plaintiffs were terminated by Atlantic due to their race,

national origin, color, and ethnicity and in retaliation for

their actions in raising concerns about these alleged

discriminatory acts. Plaintiffs therefore are straightforwardly

seeking only enforcement of their rights not to be discriminated

against under the state anti-discrimination law, “which defines

the right without reference to any collective bargaining

agreement.” Patterson v. ExxonMobil Corp., 262 F. Supp. 2d 453,

466 (D.N.J. 2003); N.J.S.A. 10:5-1. The Court sees no basis for

finding that analysis of any such claims would center on an

interpretation of the CBA. Simply put, if such standard

discrimination claims as these are preempted by the LMRA, then

“all discrimination actions brought by unionized employees would

be preempted because the starting point for every case would

have to be the [collective-bargaining] agreement.” Coefield v.

Jersey Cent. Power & Light Co., 532 F. Supp. 2d 685, 697 n.8

(D.N.J. 2007).

Defendants have largely failed to dispute this conclusion

regarding potential LMRA preemption of these categories of

Plaintiffs’ NJLAD claims, and instead focused their moving

briefs almost entirely on Plaintiffs’ first category of claims

related to the pension, wage, overtime pay, and benefits issues

that were mostly raised on page 13, ¶ 6 of the Complaint. Their

arguments are rather straightforward: that Plaintiffs NJLAD

claims related to these issues directly incorporate the same

factual allegations that were the basis for their nearly

identical hybrid § 301 claims, and would require the Court to

focus on interpretation of the CBA under federal labor law to

assess their validity.

Plaintiffs, unsurprisingly, point the Court to its own

prior language in Tarby, and argue that the substantial number

of cases in this district rejecting arguments that the LMRA

preempts NJLAD claims demand that this Court reject Defendants’

preemption arguments. While the Court, for the most part,

agrees with Plaintiffs, it does find that one individual claim

is subject to LMRA preemption: their claim that Atlantic’s

failure to make pension contributions was discriminatory.

The Court understands that, as a general rule, claims

asserting discrimination under the NJLAD are “derived

independently from state law, and not from the obligations

assumed by the parties under [a CBA].’” Boone v. Local Union

475 Pipefitters/Steamfitters, No. CV 16-5482 (JLL), 2016 WL

7325472, at *2 (D.N.J. Dec. 16, 2016). And the Court readily

agrees with the consistent prior holdings of the judges of this

District, including the undersigned, that discrimination claims

under the NJLAD are therefore generally not preempted by the

LMRA — in fact, the Court’s research has discovered that the

case law on this issue in the District of New Jersey has been

remarkably consistent in holding that a variety of different

NJLAD claims were not preempted by the LMRA.

However, the Court finds that Plaintiffs here have put

forth one NJLAD claim that is both uniquely dependent on their

underlying CBA and explicitly pled to incorporate contractual

interpretation in a manner that is fundamentally different from

the claims analyzed in prior cases in this District, and thus

warrants a different conclusion. First, the Court finds it

relevant to note that in this Court’s prior Opinion in Tarby, as

in many of the cases cited there and which later relied on

Tarby, the claims raised by the plaintiffs were purely state law

claims focused on discrimination; for this reason, a significant

percentage of the District of New Jersey case law on this topic

appears to have actually arisen in the context of defendants’

removal of state court actions to federal court, and has

involved courts repeatedly rejecting the argument that the LMRA

completely preempts NJLAD claims such that federal courts have

jurisdiction over complaints that raise no independent federal

causes of action. Tarby, 2016 WL 7217596, at *4 (granting

motion to remand for lack of subject matter jurisdiction since

Plaintiffs’ NJLAD claims were not completely preempted by the

LMRA). See also Anderson v. Verizon New Jersey Inc., No. 13-

4777, 2019 WL 630845 (D.N.J. Feb. 14, 2019) (remanding case

because NJLAD claims were not completely preempted by NJLAD);

Gardrie v. Verizon New Jersey Inc., No. 15-3538, 2019 WL 630849

(D.N.J. Feb. 14, 2019) (same); DiGiovacchino v. Pipefitters

Local Union No. 274, No. 2:18-cv-09000 (MCA)(CLW), 2018 WL

5115571 (D.N.J. Oct. 3, 2018), report and recommendation adopted

2018 WL 5112455 (D.N.J. Oct. 19, 2018) (granting motion to

remand for lack of subject matter jurisdiction since Plaintiffs’

NJLAD claims were not completely preempted by the LMRA); Boone,

2016 WL 7325472 (remanding case because NJLAD claims were not

completely preempted by NJLAD).

That is not the case here. Instead, a close reading of the

Complaint reveals that Plaintiffs simply cannot persuasively

argue that their NJLAD claim based on Atlantic’s failure to make

pension contributions is truly independent from their LMRA

claims and does not require a substantial interpretation of the

CBA. Unlike the plaintiffs in essentially every other District

of New Jersey case this Court has reviewed, Plaintiffs here

chose to separately allege a federal LMRA claim based on the

exact same issue and relying on the exact same factual

allegations in the same Complaint: the Complaint directly

asserts, as Count I, a hybrid § 301 claim contending that

Atlantic has breached the CBA by failing to make pension

contributions, and that the Union breached its duty of fair

representation by not assisting Plaintiffs in pursuing a

resolution to this breach of the CBA. Count III, nominally

putting forth NJLAD claims, incorporates that allegation, and

simply adds the additional assertion that Atlantic failed to

make those pension contributions because of Plaintiffs’ race,

national origin, ethnicity, and color.

But more importantly, it must be emphasized that Defendants

have in no way stretched the language of the Complaint in

arguing that it directly incorporated the question of the proper

interpretation of the CBA’s pension-contribution provisions into

Plaintiffs’ NJLAD discrimination claim. The Complaint

incontrovertibly did exactly that, alleging:

43. Article XI (a) of this Warehouse Agreement requires the

employer, i.e., Atlantic Exposition, to make contributions

to the Pension and Annuity for each hour paid by the

employer for each worker classification referenced in the

Warehouse Agreement.

44. Warehouse workers are unquestionably referenced in the

Warehouse Agreement.

45. The Warehouse Foreman, a white male who is directly

covered and subject to the terms and provisions of the

Warehouse Agreement, has received the full benefit of his

hours, towards Pension and Annuity benefits, worked under

the Warehouse Agreement.

46. Atlantic Exposition has made the requisite

contributions towards Pension and Annuity benefits for this

white Workhouse Foreman covered under the Warehouse

Agreement, but not for Plaintiffs, all of which are Black,

Latino, or Native American.

(ECF No. 1-1 at ¶¶ 43-46).

In other words, Plaintiffs have affirmatively chosen to

place the question of how the CBA’s pension-contribution

provisions should be interpreted at the core of their NJLAD

claim. And, notably, Plaintiffs’ Complaint further alleges that

the only employee to receive pension contributions, the

Warehouse Foreman, who is a white man, “has a separate agreement

which entitles him to a pension/annuity” - meaning that any

analysis of an NJLAD claim that relied on the difference in

treatment between Plaintiffs and the white Warehouse Foreman may

further require this Court to interpret that separate agreement

and any potential differences between it and the CBA. (ECF No.

1-1 at ¶ 62).

Of course, “[t]here is a difference between ‘interpreting’

the CBA and referring to it as part of a defense:”

Reference to or consideration of the terms of a

collective-bargaining agreement is not the equivalent

of interpreting the meaning of the terms. If it were,

all discrimination actions brought by unionized

employees would be preempted because the starting

point for every case would have to be the agreement.

Although the line between reference to and

interpretation of an agreement may be somewhat hazy,

merely referring to an agreement does not threaten the

goal that prompted preemption -- the desire for uniform

interpretation of labor contract terms.

Barone v. Public Service Electric and Gas Company, No. 18-cv-

16569-KM-JBC, 2019 WL 3297230, at *6 (D.N.J. July 22, 2019)

(quoting LaResca, 161 F. Supp. 2d at 326, 330). The Court

agrees with that explanation, and further agrees that, in the

vast majority of cases, an NJLAD claim will not require an

interpretation of a CBA. However, unlike every case in this

district that the Court has reviewed in its assessment of the

motions before it, Plaintiffs’ pension contribution claim

appears, on its very face, to require more than simple reference

to or consideration of the terms of their CBA.

A quick review of the elements Plaintiffs would need to

prove to succeed on their claim is illustrative. To demonstrate

the elements of prima facie case of discrimination under the

NJLAD, “a plaintiff must first establish that: (1) she is a

member of a protected class; (2) she was qualified for the

position in question; (3) she suffered an adverse employment

action; and (4) that adverse employment action gives rise to an

inference of unlawful discrimination.” Tourtellotte v. Eli

Lilly and Co., 636 F. App’x. 831, 843 (3d Cir. 2016) (citing

Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir.

1999)). Central to this analysis, therefore is the question of

whether an individual suffered an “adverse employment action”

that could plausibly give rise to an inference of unlawful

discrimination. To constitute an adverse employment action, and

employer’s conduct “must be ‘serious and tangible enough to

alter an employee's compensation, terms, conditions, or

privileges of employment.’” Tourtellotte, 636 F. App’x. at 843

(quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)).

The Court, however, sees no means of assessing whether

Plaintiffs here truly suffered an adverse employment action that

could demonstrate discrimination without first determining

whether Plaintiffs were entitled to pension contributions from

Atlantic. Plaintiffs directly allege that Atlantic was required

to make pension contributions on Plaintiffs’ behalf under the

CBA and did not do so for discriminatory reasons; their claim,

on its face, is dependent on the factual assertion that the CBA

required Atlantic to make pension contributions, and accordingly

implies that if pension contributions were not required,

Atlantic’s failure to make those contributions may not be an

adverse employment action. See Bryson v. City of Wilmington,

No. 17-133 (JFB/SRF), 2019 WL 181319, at *10 (D. Del. Jan. 11,

2019) (stating that “[b]ecause there is no right to

reinstatement, the plaintiffs arguably cannot show they suffered

an adverse employment action” in denying Title VII race

discrimination claim). Further, to the extent that Plaintiffs

were able to demonstrate a prima facie case even without

requiring an interpretation of the CBA, Defendants have made

entirely clear that their defense to such a claim would be to

directly point to the CBA’s provisions governing pension

contributions and argue that it does not provide for any such

contributions by Atlantic. One way or another, to adjudicate

this claim the Court would need to not only reference the

parties’ CBA, but to directly interpret its provisions and reach

a holding regarding their proper meaning and contractual import.

And when the Court says that resolution of Plaintiffs’

claim would require interpretation of the CBA, it is not

speaking hypothetically. There are specific provisions of the

CBA that govern potential pension contributions, which both

parties have directed the Court to: Article XI(a) affirmatively

requires that “[f]or each hour or portion of an hour for which

an employee receives pay, the Employer shall make a contribution

in the current allocation per Article V herein, to the Pension

and Annuity . . .,” (ECF No. 33-1 at 19), and Article V provides

that “[t]he hourly fringe benefit contributions for a warehouse

person shall be as above in said charts,” (id. at 16), although

the charts above which appear to be intended to provide the

rates of fringe benefit contributions to the Pension Fund are

blank. Id. at 13-16. The parties here, in the briefing for

these very motions, have directly debated whether these

provisions of the CBA should be read to require or provide for

pension contributions by Atlantic on Plaintiffs’ behalf, and in

the process of doing so have provided the Court with a clear

window into the future contractual interpretation that would be

needed to assess whether pension contributions were anticipated

or required — and therefore whether Plaintiffs had suffered an

adverse employment action or Defendants have a valid,

nondiscriminatory explanation for their actions.

Therefore, despite the consistent precedent in this

district holding that the LMRA does not preempt NJLAD claims,

the Court is faced with the unavoidable conclusion that

Plaintiffs’ NJLAD discrimination claim based on the pension

contribution issue would require this Court to substantially

interpret the CBA in order to determine whether Plaintiffs were

in fact entitled to receive pension contributions, or if

Atlantic’s actions were simply in line with the language of the

CBA. Were it presented outside the specific context of the

NJLAD, this appears to be the exact type of claim that the Third

Circuit has previously held as preempted by the LMRA. Compare

Antol, 100 F.3d at 1117 (finding pre-emption of plaintiff's

Pennsylvania Wage Payment and Collection Law claims because the

“suit [was] based ‘squarely on the terms of the collective

bargaining agreement’) (citing Wheeler, 985 F.2d at 113) with

Voilas, 170 F.3d at 378 (finding no pre-emption because

plaintiff's “claim in this case is not directly based upon the

[CBA] ... nor will the resolution of the elements ... require

the interpretation of those bargaining agreements”).

This conclusion is only further strengthened by the fact

that although courts in this district have repeatedly rejected

LMRA preemption arguments related to the NJLAD, Plaintiffs’

pension-focused discrimination claim here appears to resemble

the types of claims nominally brought under state

antidiscrimination laws which courts in other circuits have

similarly found were preempted under the LMRA. Much of the case

law in this district finding otherwise traces directly back to a

1991 opinion which surveyed the national case law to that point

and found that “courts have uniformly held that state anti-

discrimination laws are not preempted by § 301 of the LMRA

because the right not to be discriminated against ‘is defined

and enforced under state law without reference to the terms of

any collective bargaining agreement,’ even where the labor

contract itself prohibits discrimination.” Carrington v. RCA

Global Communications, Inc., 762 F. Supp. 632, 641 (D.N.J.

1991). However, as another court in this district more recently

acknowledged, that trend no longer holds, as a number of courts

across the country, faced with claims under other states’

antidiscrimination laws, “have found preemption of state law

discrimination claims . . . in cases where the CBA specifically

governed the litigated cases” and the claims required direct

contractual interpretation of the respective CBA’s terms and

provisions. Coefield, 532 F. Supp. 2d at 694. See, e.g., Fant

v. New England Power Serv. Co., 239 F.3d 8, 15 (1st Cir. 2001)

(finding state law discrimination claim preempted where

plaintiff's claim required interpretation of CBA seniority

provisions because “questions relating to qualifications and

seniority usually require recourse to details that are imbedded

in CBAs”); Reece v. Houston Lighting & Power Co., 79 F.3d 485,

487 (5th Cir. 1996) (finding preemption of state discrimination

claims when the plaintiff's discrimination claim actually

“turned on questions of promotion, seniority, and assignment to

training programs, all of which are provided for in the CBA,”

because the plaintiff would have to challenge the employer's

rights under the CBA and therefore interpretation of the CBA was

“made necessary by an employer defense”); Davis v. Johnson

Controls, Inc., 21 F.3d 866 (8th Cir. 1994) (finding state

disability discrimination claim preempted by the LMRA because

“the relocation of [Plaintiff] to a position commensurate with

his physical limitations would require an examination of the

seniority rights of both [Plaintiff] and other employees under

the collective bargaining agreement. [Plaintiff’s] contention

that the collective bargaining agreement allows for transfer

without alteration of seniority rights, even if ultimately held

to be correct, would perforce require interpretation of the

agreement. Accordingly, the district court correctly held that

[Plaintiff’s] state-law claim depends upon the meaning

ultimately given to the collective bargaining agreement and thus

is preempted under the Lueck–Lingle [preemption] doctrine”);

O'Brien v. Consolidated Rail Corp., 972 F.2d 1 (1st Cir. 1992)

(finding state discrimination claim was preempted by the LMRA

because seniority was among the litigated issues and was also

covered in the CBA, which contained explicit rules and

regulations governing an employee's fitness and ability to

perform safely the functions of a stevedore); Kroeger v. L3

Techs., Inc., No. 2:17–cv–08489–JFW–AGR, 2018 WL 1357363 (C.D.

Cal. Mar. 15, 2018) (holding that various state law statutory

discrimination and retaliation claims and a claim for

intentional infliction of emotional distress were preempted by §

301, because “Plaintiff explicitly predicates his claims ... on

a number of alleged violations of the CBA ... This alone is

sufficient for preemption ... Additionally, Plaintiff's claims

largely turn on alleged adverse actions and legal violations,

the propriety of which the CBAs govern and that are (or have

been) the subject of multiple contractual grievances by

Plaintiff”); Morrissey v. Verizon Communications Inc., No. 10

Civ. 6115(PGG), 2011 WL 2671742, at *5 (S.D.N.Y. July 7, 2011)

(“Because a critical aspect of Plaintiff's age discrimination

claims—as he chose to plead them—is his allegation that Verizon

terminated his employment in violation of its contractual

‘obligat[ion] to lay off technicians according to seniority’ . .

. ‘resolution of [Plaintiff's] state-law claim depends on an

interpretation of the collective-bargaining agreement.’ As a

result, his state law claims are pre-empted by Section 301 of

the LMRA.”); Taylor v. Am. Airlines, Inc., 738 F. Supp. 2d 940,

945 (E.D. Mo. 2010) (“Since the state law claims in this case

challenge the seniority agreement, which is explicitly

incorporated into American Airlines' CBA, a resolution of this

dispute would require this Court to interpret the labor

contract. Therefore, plaintiffs' claims are preempted....”);

Richardson v. P & O Ports Balt., No. CCB–09–631, 2009 WL

2487080, at *3 n. 3 (D. Md. Aug. 12, 2009) (“[R]eference to the

seniority provisions of the CBA and interpretation of their

terms would be necessary.... Accordingly, the state law causes

of action are preempted....”); Bachilla v. Pac. Bell Tel. Co.,

No. Civ. S–07–739 RRB KJM, 2007 WL 2825924, at *8 (E.D. Cal.

Sept. 25, 2007) (“[T]o the extent that Plaintiffs'

discrimination claim is premised on Pacific Bell's promotion of

less senior male coworkers in violation of its seniority policy,

it is preempted. This is because resolution of this claim is

substantially dependent on an analysis of the terms of the CBA.

This claim cannot be evaluated without interpreting the

seniority provisions of the CBA since the terms of Plaintiffs

employment, including their eligibility for a promotion and/or

transfer, are governed by the CBA.”).

Ultimately, the Third Circuit has clearly stated that the

“dispositive question [in pre-emption analysis] is whether

[plaintiffs’] state claims require an interpretation of a

provision of the CBA.” Kline v. Sec. Guards, Inc., 386 F.3d

246, 256 (3d Cir. 2004). And the Supreme Court has explained

that the doctrine of federal preemption of state law claims in

the labor law context is intended to refute “parties' efforts to

renege on their [] promises by ‘relabeling as tort-suits actions

simply alleging breaches of duties assumed in collective-

bargaining agreements.” Livadas v. Bradshaw, 512 U.S. 107, 122-

24 S.Ct. 2068, 129 L.Ed.2d 93 (1994). While Plaintiffs’ claims

here are raised under state antidiscrimination law rather than

as tort claims, Plaintiffs’ pension contributions-based NJLAD

claim is, at its core, simply a relabeling of the nearly

identical LMRA claim they asserted earlier in the same

Complaint, and directly references and disputes the proper

interpretation of a CBA provision. Ultimately, the true

contention on the face of the Complaint is that Atlantic

breached the CBA by failing to make pension contributions

because of Plaintiffs’ race, national origin, ethnicity, or

color. This Court has no means for assessing such a claim that

would not involve a direct and extended interpretation of the

CBA as its very first analytical step; these claims are

“inextricably intertwined with considerations of the terms of

the labor contract,” and the Court therefore finds that they are

preempted by the LMRA. Carrington, 762 F. Supp. at 640 (quoting

Lueck, 471 U.S. at 212).

The Court does not view this holding as a refutation of

prior case law or as inconsistent with the findings of other

courts in this District. Plaintiffs have put forward a

discrimination claim that is uniquely centered on their

interpretation of a disputed contractual provision, and it

should be noted that even those Courts which have asserted as a

basic principle that NJLAD claims are not preempted by the LMRA

have consistently gone forward to then analyze the specific

claims asserted in their case, rather than simply ending the

analysis with a blanket statement that LMRA preemption of an

NJLAD claim is impossible. See, e.g., Coefield, 532 F. Supp. 2d

at 695 (providing background case law rejecting LMRA preemption

of NJLAD claims, but then proceeding to state that “[w]ith this

background, the Court now turns to each of Plaintiff's claims to

determine whether they require interpretation of the CBA”);

Barone, 2019 WL 3297230 at *6 (stating that the Court agrees

with prior precedent rejecting LMRA preemption of NJLAD claims,

but then proceeding to analyze the factors and determinative

issues for plaintiff’s specific claims as alleged there);

Naples, 102 F. Supp. 2d at 554 (same).

While parties are of course the masters of their own

complaints, Plaintiffs here “virtually invited this preemption

conclusion in [their] complaint, where [they] alleged that the

[conduct] constituting the substance of [their]” claims was in

violation of their CBA. Fant, 239 F.3d at 16. Plaintiffs here

may not simply relabel an LMRA claim as an NJLAD claim in order

to evade the preemption doctrines designed to address the exact

types of claims they have raised here, and thereby evade the

LMRA’s shorter statute of limitations. Since Plaintiffs’ NJLAD

claim based on Atlantic’s failure to make pension contributions

therefore must either be considered an LMRA claim or dismissed,

the Court will dismiss it as time-barred for the same reasons

that the identical claim asserted under the LMRA was dismissed.5

However, the Court finds that Plaintiffs’ pension

5 The Court notes here, however, that this holding only applies

insofar as Plaintiffs intended to assert a claim that Atlantic

had failed to make contributions to their pensions based on

their status as members of protected classes. To the extent

that Plaintiffs intended to assert a claim that the fact that

the one white warehouse employee was given a separate agreement

providing for pension contributions, when none of the Plaintiffs

were, was discriminatory, that claim would clearly not be

preempted by the LMRA for the same reason the Court rejected

LMRA preemption of any discrimination claim based on the Union’s

alleged negotiation of better CBAs for workforces that were

predominantly white.

contribution claim under the NJLAD is the only remaining claim

that is preempted by the LMRA in this manner. The Court’s

review of the Complaint and the claims presented in it has not

discovered any similarly unique or pressing concerns regarding

the need to interpret the CBA for Plaintiffs’ discrimination

claims regarding wages, overtime pay, or other paycheck

deductions, and Defendants have not put forth sufficiently

persuasive arguments to convince the Court to further differ

from the clear line of decisions in this District.

For example, although the CBA contains a provision

governing overtime payments in Article VI, Defendants have

failed to demonstrate why an interpretation of this provision

would be central to adjudication of Plaintiffs’ NJLAD claim.

Plaintiffs’ claim is that they were not properly paid for

overtime work because of their race, ethnicity, national origin,

or color, and neither party has raised any dispute regarding the

meaning of the provision in question here. It is certainly true

that the provision for overtime pay found in Article VI may be

“relevant to the determination of certain issues of fact, but

there is no dispute about what it says, what it means, whether

it is valid, or whether [Plaintiffs are] bound by it.” Bull v.

United Parcel Service, Inc., No. 07–2291 (KM)(MCA), 2014 WL

2965696, at *14 (D.N.J. July 1, 2014).

The same is true to the extent that Plaintiffs intended to

put forth NJLAD claims related to their wages or the payment of

back pay related to wage increases: while Article V of the CBA

clearly governs the wages to be paid by Atlantic to its

warehouse employees, neither party has put in dispute the

interpretation of those specific provisions. Instead, the only

relevant issue in assessing such claims under the NJLAD is

whether Atlantic engaged in the alleged conduct, and whether

they engaged in it due to Plaintiffs’ race, ethnicity, national

origin, or color. Again, no specific dispute has been raised by

either party regarding what that provision says or means

regarding Plaintiffs’ wages. While the CBA’s provisions may be

relevant to the analysis of Plaintiffs’ claim under the NJLAD,

the Court finds that, at least on the Complaint and briefs

currently before it, no substantial interpretation of the CBA

would be required to adjudicate those claims.

Finally, the Court reaches the same conclusion regarding

Plaintiffs’ NJLAD claim based on Defendants’ act of allegedly

imposing “a 3-5% deduction from Plaintiff’s pay which has been

described variously as constituting, and not constituting union

dues . . . .” (ECF No. 1-1 at 13, ¶ 6). Defendants argue that

this claim again puts into direct question the interpretation of

labor contracts, namely the Union Constitution and Bylaws, which

they assert contain provisions governing deductions for dues or

other purposes. The Court acknowledges that “for preemption

purposes, the term ‘labor contract’ includes union

constitutions.” Brock v. Union Local No. 830, 2008 WL 2945387,

at *3 n. 4 (E.D. Pa. July 30, 2008) (quoting Wall v. Constr. &

Gen. Laborers' Union, Local 230, 224 F.3d 168, 178 (2d Cir.

2000); see also Lewis v. Int'l Bhd. of Teamsters, 826 F.2d 1310,

1314 (3d Cir.1987) (“[A] federal court has jurisdiction under

[LMRA] section 301(a) over suits brought by an individual union

member against his or her local union or the international union

for violation of a union constitution.”).

However, the Court does not agree that Plaintiffs’ NJLAD

claim on this front necessarily would require a “substantial

interpretation” of these labor contracts. Plaintiffs, in their

Complaint, directly allege that Atlantic and the Union have

provided them “varying and indefinite explanations as to what

the 3% to 5% deduction from their paychecks is actually being

used for,” therefore calling into question the actual reason why

Defendants made those deductions. The Court understands that

Defendants intend to raise, in their defense, an argument that

the Union Constitution and Bylaws provide for these deductions.

While this defense brings this claim closer to Plaintiffs’

preempted NJLAD pension-focused claim, there is a key difference

here. For their pension NJLAD claim, Plaintiffs themselves

directly put into contention the proper interpretation of the

CBA’s provisions governing pension contributions; for their

NJLAD claim focused on paycheck deductions, Plaintiffs’

Complaint, on its face, does not specifically dispute whether

certain provisions of the Union Constitution or Bylaws might

provide for deductions, but essentially alleges that Defendants’

shifting explanations for the deductions are false and that the

true explanation is discrimination based on race, ethnicity,

national origin, and color.

Such a claim may be difficult to successfully plead or to

prove, and the Court does not disagree with Defendants that

provisions of the Union Constitution and Bylaws might be

relevant to consider and reference in any such analysis. But

although this claim presents a closer call, the Court ultimately

errs on the side of not finding preemption and defers to the

strong precedent in this District finding that most NJLAD claims

are not preempted by the LMRA. Plaintiffs’ NJLAD claim based on

the paycheck deductions described above is closer to those

claims that previous courts in this District have found do not

require a “substantial interpretation” of a labor contract, and

therefore are not preempted by the LMRA.

For these reasons, the Court finds that only Plaintiffs’

pension contribution-based NJLAD claim is preempted by the LMRA

and must be dismissed as time-barred. The remainder of

Plaintiffs’ NJLAD claims are sufficiently separate and distinct

to survive Defendants’ LMRA preemption arguments. Put most

simply, Plaintiffs, through their own drafting decisions,

created a unique situation in which that specific NJLAD claim

was entirely dependent on this Court’s interpretation of the

CBA; none of their other claims go quite so far, or similarly

provide the Court with no other option for assessing their

merit. Accordingly, Plaintiffs’ NJLAD claim for Atlantic’s

failure to make pension contributions will be dismissed, and the

remaining NJLAD claims survive.

C. The Court Declines to Exercise Supplemental Jurisdiction

Over Plaintiffs’ Remaining State Law Claims

Having ruled on Plaintiffs’ LMRA preemption arguments, the

Court will remand Plaintiffs’ remaining state law claims back to

state court. The Court does recognize that the Union has put

forward two additional arguments for federal labor law

preemption of Plaintiffs’ NJLAD claims, beyond the LMRA argument

assessed above: specifically, it asserts that Plaintiffs’ NJLAD

claims are also preempted by the National Labor Relations Act

(“NLRA”) and the Labor-Management Reporting and Disclosure Act

(“LMRDA”). These arguments potentially matter here because, as

the Court previously mentioned, “[o]nce an area of state law has

been completely pre-empted, any claim purportedly based on that

pre-empted state law is considered, from its inception, a

federal claim, and therefore arises under federal law.”

Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987).

However, even were Defendants to assert that their NLRA or

LMRDA preemption arguments would grant this Court subject-matter

jurisdiction over Plaintiffs’ remaining NJLAD claims, such

arguments would fail. The law is clear that the NLRA “does not

completely preempt state law and thus provide[s] no basis for

removal jurisdiction.” Boone v. Local Union 475

Pipefitters/Steamfitters, No. CV 16-5482 (JLL), 2016 WL 7325472,

at *2 (D.N.J. Dec. 16, 2016) (quoting Briones v. Bon Secours

Health Sys., 69 F. App’x. 530, 534-35 (3d Cir. 2003)).

Similarly, “the LMRDA presents a preemptive federal defense to

state law causes of action, which is not sufficient to sustain”

subject-matter jurisdiction over a state law claim. Gerow v.

Kleinerman, No. 01–cv–138 (WGB), 2002 WL 1625417, at *4 (D.N.J.

July 2, 2002) (citing Box Tree South; Esser; Dzwonar; Morris v.

Scardelletti, No. 94–3557, 1995 WL 120224 (E.D. Pa. Mar. 14,

1995)). Although Defendants may invoke preemption under the

NLRA or LMRDA as a defense in state court, such preemption “is

not the type of complete preemption that would provide

Defendants with a basis for federal question jurisdiction.”

Kline v. Sec. Guards, Inc., 386 F.3d 246, 262–63 (3d Cir. 2004).

Therefore, with Plaintiffs’ federal LMRA claims having been

dismissed — along with their state law claims against Atlantic

for unjust enrichment and violation of the NJLAD due to failure

to make pension contributions — the Court is left with only

state common law and statutory claims remaining before it. The

removal of this case from state court, and this Court’s

jurisdiction over the action, were predicated on the presence of

the federal cause of action under the LMRA, pursuant to which

the Court had the ability to exercise supplemental jurisdiction

over any related state law claims. It does not appear that the

Court would have had original jurisdiction over Plaintiffs’

state law claims independent of the LMRA cause of action

originally asserted in the Complaint.6

“[W]hen all federal claims against a party have been

eliminated from a case, the district court may, in its

discretion, decline to extend supplemental jurisdiction over the

remaining state law claims.” Rothman v. City of Northfield, 716

F. Supp. 2d 369, 373 (D.N.J. 2010) (citing Lentz v. Mason, 961

F. Supp 709, 717 (D.N.J. 1997)). Where the federal claims are

dismissed at an early stage in litigation, courts generally

decline to exercise supplemental jurisdiction over state law

claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966); Growth Horizons, Inc. v. Delaware Cty., Pa., 983 F.2d

1277, 1284-1285 (3d Cir. 1993).

6 Neither party has asserted that this Court would have diversity

jurisdiction over the state law claims under 28 U.S.C. § 1332,

and since Plaintiffs’ Complaint pleads that each of the

Plaintiffs live in New Jersey and Atlantic is a New Jersey

corporation, it appears highly unlikely that diversity

jurisdiction would exist here.

Here, the Court is dismissing the only federal claims

asserted in the Complaint and doing so at a comparatively early

stage in this litigation. Accordingly, the Court will decline

to exercise supplemental jurisdiction over Plaintiffs’

remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3).

As the Pension Fund’s motion to dismiss is targeted entirely on

one of Plaintiffs’ state common law causes of action, it will be

denied as moot.

In cases where the claims were initially filed in state

court and then properly removed here, like this present case,

the Court has additional discretion to remand the remaining

state law claims rather than simply dismissing them. See 28

U.S.C. § 1447(c) (“If at any time before final judgment it

appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.”). Accordingly, the

Court will exercise its discretion and remand Plaintiffs’

remaining state law claims back to state court.

D. Motion to Seal

Finally, Plaintiffs have moved to seal four pages of

documents that were initially filed as Exhibit A[2] to their

complaint in state court and re-filed on the docket for this

action at pages 19-22 of ECF No. 1-1 when Defendants’ removed

this action to this Court. Local Civil Rule 5.3 governs

requests to seal documents filed with the Court. To succeed on

a motion to seal, the moving party must describe: (1) the nature

of the materials at issue; (2) the legitimate private or public

interests that warrant the relief sought; (3) the clearly

defined and serious injury that would result if the relief

sought is not granted; and (4) why a less restrictive

alternative to the relief sought is not available. L. Civ. R.

5.3(c)(3). While it is within the Court's authority to restrict

public access to information, it is well-settled that there is a

“common law public right of access to judicial proceedings and

records.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir.

2001).

The moving party bears the burden to overcome this

presumption of public access and must demonstrate that “good

cause” exists for the protection of the material at issue.

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.

1994). Good cause exists only when the moving party makes a

particularized showing that disclosure will cause a “clearly

defined and serious injury.” Id. Good cause is not established

where a party merely provides “broad allegations of harm,

unsubstantiated by specific examples or articulated reasoning.”

Id. (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108,

1121 (3d Cir. 1986)).

The Court has little difficulty in finding that Plaintiffs

have met their burden in demonstrating that good cause exists

for sealing the document in question. In support of their

motion, Plaintiffs have filed a certification from their

counsel, Timothy C. Alexander. (ECF No. 33-1). In his

certification, Mr. Alexander explains that the documents he

seeks to seal are in fact entirely unrelated to this action; due

to an apparent “clerical error” in his office, the original

complaint filed in state court attached as an exhibit four pages

from a settlement agreement pertaining to a separate matter,

rather than the Collective Bargaining Agreement he intended to

file as Exhibit A[2]. Id. at ¶¶ 3-10. The pages from the

accidentally filed settlement agreement contain a “File

No./Escrow No.” showing more than four digits.

Plaintiffs have sufficiently set forth the elements

required by Local Civil Rule 5.3. The pages sought to be sealed

are from a settlement agreement that is unrelated to this

present action. There is clearly no public interest at stake

here, as the documents are a private settlement agreement

involving unrelated parties; similarly, the parties to that

private settlement agreement have a clear interest in

maintaining their privacy, which they have taken no action to

undermine here as they did not file the documents themselves and

are not involved in this lawsuit.

Finally, the Court agrees that there is clearly no less

restrictive alternative here, as the documents themselves are

pages from an unrelated settlement agreement, and leaving them

unsealed on the docket or only redacted would expose a private

agreement between unrelated parties to the general public

through no fault or actions of their own, with no corresponding

benefit to the public.

Importantly, as Plaintiffs’ counsel notes, the pages he

seeks to have sealed include an escrow number and financial

information for the unrelated parties and their apparent

settlement agreement. The Court understands that harm may come

to these parties by the inadvertent disclosure of their

agreement and financial information, which they did not cause

and which appears to have only happened due to a mistake by

counsel’s office in an entirely separate action. Good cause

therefore exists to seal these pages of Plaintiffs’ exhibit, and

the Court will grant Plaintiffs’ motion. The documents found at

ECF No. 1-1 will remain sealed, and as Plaintiffs have since

filed the correct version of the CBA exhibit as part of their

certification for this motion, they will simply be directed to

file on this docket a certification from counsel reattaching the

Complaint in this action as an exhibit, which was the only other

document originally filed at ECF No. 1-1.

CONCLUSION

For the reasons expressed above, Defendants Atlantic and

the Union’s motions to dismiss (ECF No. 9 and 12) will be

granted as to Plaintiffs’ LMRA claims, unjust enrichment claim,

and the single preempted NJLAD claim, and Defendant Pension

Fund’s motion to dismiss will be denied as moot. Plaintiffs’

motion to seal (ECF No. 32) will be granted, and Plaintiffs’

will be directed to file a certification from their counsel

reattaching the Complaint for this action. Finally, Plaintiffs’

remaining state law claims will be remanded to state court.

An appropriate Order will be entered.

Date: July 26, 2021 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.