DAVIS v. BENIHANA, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

AARON DAVIS,

Plaintiff,

Civ. No. 24-6569 (RMB-SAK)

v.

OPINION

BENIHANA, INC., JERRY SHOTT,

BRIAN ALVARADO, ABC

CORPORATIONS 1–5 (fictitious names

describing presently unidentified business

entities), and JOHN DOES 1–5 (fictitious

names describing presently unidentified

individuals),

Defendants.1

APPEARANCES:

MCOMBER, MCOMBER & LUBER, P.C.

Matthew A. Luber, Esq.

50 Lake Center Drive

Marlton, NJ 08053

Counsel for Plaintiff Aaron Davis

LITTLER MENDELSON, P.C.

Jedd E. Mendelson, Esq.

Bilal, Haider, Esq.

1805 Raymond Boulevard

Newark, NJ 07102

Counsel for Defendants Benihana, Inc., Jerry Shott, and Brian Alvarado

1 The Complaint’s caption incorrectly named Defendants Shott and Alvarado as

“Shot” and “Alvarez.” The Court has amended the caption for the purposes of this

Opinion.

RENÉE MARIE BUMB, Chief United States District Judge

I. INTRODUCTION

Aaron Davis (“Plaintiff”) was fired from his job as a chef at Benihana for

discussing wages with a coworker and for objecting to a demand by his supervisors to

stop discussing wages in the workplace. He sued Benihana and his supervisors

(“Defendants”) in state court under New Jersey’s whistleblower and anti-wage

discrimination statutes. Defendants removed the case to this Court and have now moved

to dismiss arguing that Plaintiff’s state law claims are preempted by the National Labor

Relations Act and must instead be heard by the National Labor Relations Board. The

Court held oral argument and ordered supplemental briefing on the issue of whether

Plaintiff’s state law claims were preempted under the Supreme Court’s decision in San

Diego Building Trades Council v. Garmon, which held that when workplace activity is

arguably protected or arguably prohibited under the National Labor Relations Act,

courts must defer to the exclusive competence of the National Labor Relations Board to

avert the danger of state interference with federal labor policy. Upon an exhaustive

consideration of the issue, the Court finds that Plaintiff’s claims are preempted by

Garmon and do not fit within Garmon’s exception for state laws “so deeply rooted in

local feeling and responsibility.” For the reasons that follow, the Court will GRANT

Defendants’ Motion to Dismiss.

II. FACTUAL BACKGROUND

Aaron Davis was a chef at the Pennsauken, New Jersey location of Defendant

Benihana, a chain of Japanese steakhouses. [Docket No. 1-1 (“Compl.”) ¶¶ 9–10.] He

quit, seeking a new line of work due to a lull in business. [Id. ¶ 9.] A few years later,

Davis’s former manager, Defendant Jerry Shott, asked him if he would consider

returning to work at the restaurant. [Id. ¶ 11.] He agreed. [Id. ¶ 12.]

About a year into Davis’s second stint at the restaurant, a newly hired chef

reached out to him for advice. [Id. ¶ 12.] The junior chef disclosed to Davis that he was

only making $12 per hour and asked Davis if he should be making more money. [Id.

¶ 13.] Davis responded that $12 per hour was too low and that the starting pay for new

chefs at the restaurant was minimum wage which, in New Jersey, is over $15 per hour.

[Id. ¶ 15.]2

The newly hired chef went to Defendant Shott to discuss his payrate and his belief

that he should be making $2 more per hour under New Jersey law. [Id. ¶ 17.] Shott then

called a meeting with all of the chefs and demanded that they not discuss pay in the

workplace, warning them that doing so was a terminable offense. [Id. ¶ 18.] Davis spoke

up. He told Shott that he was the one to disclose the proper payrate to his coworker and

that Shott could not lawfully terminate employees for discussing pay in the workplace.

2 Effective January 1, 2024, New Jersey raised its minimum wage by $1 to $15.13.

See N.J.A.C 12:56-3.1(b); New Jersey’s Minimum Wage to Surpass $15 Per Hour Target Set

by Gov. Murphy, N.J. DEP’T OF LAB. & WORKFORCE DEV. (Sept. 26, 2023),

https://www.nj.gov/labor/lwdhome/press/2023/20230926_minwage.shtml.

[Id. ¶¶ 19–20.] Shott then accused Davis of creating a hostile work environment and

threatened to terminate him for discussing pay with his coworkers. [Id. ¶ 21.]

During or shortly after the meeting, Shott called Defendant Brian Alvarado, a

Benihana regional corporate manager. [Id. ¶ 24.] Alvarado spoke to Davis and the other

chefs and instructed them to “try to avoid” discussing pay in the workplace because it

can create a hostile work environment. [Id.] About an hour after the meeting, Defendant

Shott demanded that Davis clock out of his shift early. [Id. ¶ 27.] He refused. [Id.] Shott

fired him on the spot and called the police to have Davis removed from the restaurant.

[Id. ¶ 28.]

III. PROCEDURAL BACKGROUND

Davis sued Benihana, Shott, and Alvarado in the Superior Court of New Jersey.

He alleged that they unlawfully retaliated against him in violation of New Jersey’s

Conscientious Employee Protection Act (“CEPA”), which prohibits employers from

retaliating against a whistleblower-employee who objects to or refuses to participate in

an activity, policy, or practice of the employer which the employee reasonably believes

is unlawful. N.J.S.A. 34:19-3(a)(1). [Compl. at Count I.] He also alleged that

Defendants unlawfully retaliated against him under New Jersey’s Law Against

Discrimination (“NJLAD”), section N.J.S.A. 10:5-12(r), which prohibits employers

from retaliating against an employee for discussing compensation with a coworker.

[Compl. at Count II.]3

Defendants removed the case to this Court based on the diversity of the parties

and because, they argue, the National Labor Relations Act, 29 U.S.C. § 151, et seq.

(“NLRA” or “Act”) completely preempts Plaintiff’s claims. Defendants now move to

dismiss pursuant to Federal Rules 12(b)(1) and 12(b)(6). They argue that the state law

claims are completely preempted under the NLRA and must be decided by the National

Labor Relations Board (“NLRB” or “Board”), which has exclusive jurisdiction over

activity “arguably subject” to Section 7 or Section 8 of the NLRA. San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 244–45 (1959).

IV. LEGAL STANDARD

The Court undertakes its review under Federal Rule of Civil Procedure 12(b)(1)

governing dismissals for lack of subject matter jurisdiction rather than Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim. Defendants’ defense of federal labor

preemption—known as Garmon preemption for the case that originated it, see Glacier

Northwest, Inc. v. Int’l Brotherhood of Teamsters Local Union No. 174, 598 U.S. 771, 776,

(2023)—is a jurisdictional defense. Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 393

(1986) (“A claim of Garmon pre-emption is a claim that the state court has no power to

adjudicate the subject matter of the case[.]”); Nowak v. Major League Soccer, LLC, 90 F.

3 See N.J.S.A. 10:5-12(r) (providing that it is an unlawful employment practice “for

any employer to take reprisals against any employee for … discussing with, or disclosing

to, any other employee … of the employer … rate of compensation[.]”).

Supp. 3d 382, 386 (E.D. Pa. 2015) (“Garmon preemption deprives a court of the subject

matter jurisdiction necessary to adjudicate [state law] claim[s].”).

A party may challenge subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) through a facial attack or a factual attack. Davis v. Wells Fargo, 824

F.3d 333, 346 (3d Cir. 2016). Under a facial attack, a party may not dispute the facts

alleged in the complaint, and the court must accept the alleged facts as true. Id. Under a

factual attack, a plaintiff’s allegations are not entitled to a presumption of truth and the

court may weigh and consider evidence outside the pleadings. Id. Defendants bring a

facial challenge to the Court’s jurisdiction arguing that Plaintiff’s claims, as alleged, are

completely preempted by the NLRA. See Nowak, 90 F. Supp. 3d at 385–86.

V. ANALYSIS

A. Federal Jurisdiction and Complete Preemption

Federal courts have original jurisdiction over disputes between citizens of

different states where the amount in controversy is greater than $75,000, 28 U.S.C.

§ 1332, and cases “arising under the Constitution, laws, or treaties of the United States,”

28 U.S.C. § 1331. For a federal court to properly have diversity jurisdiction, the parties

must be “completely diverse.” That means that no plaintiff can be a citizen of the same

state as any defendant. Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir.

2010) (complete diversity “requires that, in cases with multiple plaintiffs or multiple

defendants, no plaintiff be a citizen of the same state as any defendant”).

Defendants allege that the Court has original jurisdiction over this case based on

the diversity of the parties. [Notice of Removal ¶ 5 (alleging that the action is “between

citizens of different states”).] But the parties are not, as alleged, completely diverse.

Plaintiff and Defendant Shott are both allegedly citizens of New Jersey. [Compl. ¶¶ 1,

3.] And so, because Plaintiff and Defendant Shott are both allegedly citizens of New

Jersey, this Court does not have subject matter jurisdiction based on diversity of

citizenship.

But Defendants also allege that this Court has federal question jurisdiction over

this case. They argue that the NLRA, a federal statute, completely preempts Plaintiff’s

state law whistleblower and anti-wage discrimination claims, the only claims appearing

on the face of Plaintiff’s well-pleaded complaint. [Notice of Removal ¶¶ 11–16.]

Usually, federal question jurisdiction only attaches if a federal issue appears on

the face of the plaintiff’s well-pleaded complaint. See Franchise Tax Bd. of Cal. v. Constr.

Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8–10 (1983). And “[t]he existence or

expectation of a federal defense is insufficient to confer federal jurisdiction.” New Jersey

Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302

(3d Cir. 2014).

But a “narrow exception” to the well-pleaded complaint rule applies where

Congress “has expressed its intent to ‘completely pre-empt’ a particular area of law such

that any claim that falls within [that] area is ‘necessarily federal in character.’” In re U.S.

Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999) (quoting Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58, 63–64 (1987)). The complete preemption doctrine derives from the

U.S. Constitution’s Supremacy Clause which overrides state laws that “interfere with,

or are contrary to,” federal law. Gibbons v. Ogden, 9 Wheat. 1, 211 (1824) (Marshall,

C.J.); Glacier Nw., 598 U.S. at 776 (“It is a bedrock rule, of course, that federal law

preempts state law when the two conflict.”). A defense of complete preemption

“operates to confer original federal subject matter jurisdiction notwithstanding the

absence of a federal cause of action on the face of the complaint” or a lack of complete

diversity between the parties. In re U.S. Healthcare, 193 F.3d at 160. Therefore, a claim

that is completely preempted by federal law is removable to federal court even without

another independent basis for original jurisdiction. See Verdone v. Rice & Rice, PC, 724 F.

Supp. 3d 366, 379 (D.N.J. 2024) (citing Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8

(2003)).

“Congressional power to legislate in the area of labor relations, of course, is long

established.” Allis-Chalmers Corp. v. Lfiieueck, 471 U.S. 202, 208 (1985); see also NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding constitutionality of NLRA

under Congress’s Commerce Clause powers). In San Diego Building Trades Council v.

Garmon, the Supreme Court held that the States cannot regulate conduct that is arguably

protected under Section 7 of the NLRA or arguably prohibited under Section 8 of the

NLRA. 359 U.S. at 245. So, when activity is “arguably” subject to Section 7 or Section

8 of the NLRA, state law is completely preempted, and a federal court (or a state court)

must defer to the NLRB. See Glacier Nw. 598 U.S. at 776 (citing Wisconsin Dep’t. of

Industry v. Gould Inc., 475 U.S. 282, 286 (1986)).

Practically, for purposes of this Court’s jurisdiction, Defendants’ removal of this

action based on Garmon preemption means two things. First, if the Court agrees that

Plaintiff’s claims are completely preempted by Garmon, Defendants’ removal was proper

and the Court must dismiss the case for lack of subject matter jurisdiction so that it can

instead be adjudicated before the NLRB, which has exclusive jurisdiction over the

dispute. Second, if the Court finds that Plaintiff’s claims are not subject to Garmon

preemption, the Court must remand the case because there would be no other basis for

the Court’s original jurisdiction. The parties are not completely diverse and there are no

other federal claims appearing on the face of Plaintiff’s well-pleaded complaint. 28

U.S.C. § 1447 (“If at any time before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be remanded.”).

B. Garmon Preemption Under the NLRA

Passed in 1935, the NLRA “encourag[es] the practice and procedure of collective

bargaining” between labor and management to resolve “industrial disputes arising out

of differences as to wages, hours, or other working conditions.” 29 U.S.C. § 151. Section

7 of the NLRA protects employee rights to collectively bargain and “engage in other

concerted activities for the purpose of . . . mutual aid or protection.” 29 U.S.C. § 157.

Section 8 of the NLRA prohibits employers from “interfer[ing] with, restrain[ing], or

coerc[ing] employees in the exercise of the rights guaranteed in [Section 7].” 29 U.S.C.

§ 158(a)(1). Congress created the NLRB to enforce the NLRA. “The Board is authorized

‘to prevent any person from engaging in any unfair labor practice’ that ‘affect[s]

commerce’ and [i]ts authority kicks in when a person files a charge with the agency

alleging that an unfair labor practice is afoot.” Glacier Nw., 598 U.S. at 775 (first quoting

29 U.S.C. § 160, then citing 29 C.F.R. § 101.2) (first alteration in original).

Over sixty years ago in San Diego Building Trades Council v. Garmon, the Supreme

Court held that when the States regulate activity that is “arguably protected” under

Section 7 of the NLRA or “arguably prohibited” under Section 8 of the NLRA, “the

States as well as the federal courts must defer to the exclusive competence of the

[NLRB]” in order to “avert[]” “the danger of state interference with national [labor]

policy.” 359 U.S. at 245; see also Voiles v. Gen. Motors Corp., 170 F.3d 367, 378 (3d Cir.

1999) (“Garmon preemption protects the exclusive jurisdiction of the NLRB over unfair

labor practice proceedings.”). Activity is “arguably subject” to Garmon preemption if

“the party claiming preemption … demonstrate[s] that [its] case is one that the [NLRB]

could decide in [its] favor” based on “an interpretation of the [NLRA] that is not plainly

contrary to its language and that has not been ‘authoritatively rejected’ by the courts or

the Board.” Davis, 476 U.S. at 395. The party claiming preemption must demonstrate

that the NLRA arguably protects or prohibits the conduct in question under an

“interpretation of the [NLRA] that is not plainly contrary to its language and that has

not been authoritatively rejected by the courts or the Board.” Id. (internal quotation

marks and citation omitted). If the court determines that “there is an arguable case for

pre-emption,” id. at 397, “it generally must grant the party’s preemption defense and

await the Board’s resolution of the legal status of the relevant conduct”, Glacier

Northwest, 598 U.S. at 777. “[O]nly if the Board decides that the conduct is not protected

or prohibited [by the NLRA] may the court entertain the litigation.” Davis, 476 U.S. at

397.

As the Supreme Court has noted, Garmon preemption is “unusual” in its broad

sweep. Glacier Nw., 598 U.S. at 776. Normally, federal law completely preempts state

law only where it was the “clear and manifest purpose of Congress” to displace the

States’ historic police powers. Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal

quotation marks and citation omitted). But Garmon preemption casts a wider net.

Garmon provides that the NLRA preempts state labor law “even when the two only

arguably conflict.” Glacier Nw., 598 U.S. at 776 (emphasis in original). So, as long as the

party invoking Garmon preemption has “met its burden to show that ‘there is an arguable

case for pre-emption,’ [a court] generally must grant the party’s preemption defense and

await the [NLRB’s] resolution of the legal status of the relevant conduct.” Id. at 777

(quoting Davis, 476 U.S. at 397). The Garmon Court reasoned that its “prophylactic rule

of pre-emption,” Glacier Nw., 598 U.S. at 786 (Thomas, J., concurring), was necessary

to effectuate Congress’s intent to “entrus[t] administration of the labor policy for the

Nation to a centralized administrative agency, armed with its own procedures, and

equipped with its specialized knowledge and cumulative experience,” Garmon, 359 U.S.

at 242. See Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180,

187 (1978) (explaining that Garmon preemption provides “general guidelines for

deciphering the unexpressed intent of Congress regarding the permissible scope of state

regulation of activity touching upon labor-management relations”). “To leave the States

free to regulate conduct so plainly within the central aim of federal regulation,” the

Court explained, would “involve[] too great a danger of conflict between power asserted

by Congress and requirements imposed by state law.” Garmon, 359 U.S. at 244.

1. Garmon’s “Local Interest Exception”

Although Garmon is strong medicine to “reflect[] the basic federal concern with

potential state interference with national labor policy,” it does not “inflexibl[y]” or

“mechanical[ly]” apply any time state law regulates the workplace. Sears, 436 U.S. at

188–89 (citations omitted). Carving out exceptions to its broad preemption rule, the

Court in Garmon explained that preemption is inappropriate when a state law relates to

a “merely peripheral concern of the [NLRA]” or when it “touche[s] interests so deeply

rooted in local feeling and responsibility that, in the absence of compelling congressional

direction, [a court] could not infer that Congress had deprived the States of the power

to act.” Garmon, 359 U.S. at 243–44.4

Garmon’s latter exception—known as the “local interest” exception—is rooted in

concerns of federalism. “In the scheme of our federalism,” the Court in Garmon

explained, the States’ historic power to “main[tain] domestic peace” cannot be

4 Only the latter exception appears to be at issue in this case. [Docket No. 11 (“Pl.’s

Br.”) at 12 (arguing only that even if conduct at issue is arguably protected or prohibited

by the NLRA, Plaintiff’s NJPAD and CEPA claims are “so deeply rooted in local

feeling and responsibility”).]

“overridden in the absence of clearly expressed congressional direction.” Id. at 247.

Accordingly, the Supreme Court has been “unwilling to ‘declare pre-empted all local

regulation that touches or concerns in any way the complex interrelationships between

employees, employers, and unions[.]’” Farmer v. United Bhd. of Carpenters & Joiners of Am.,

Loc. 25, 430 U.S. 290, 295 (1977) (quoting Motor Coach Employees v. Lockridge, 403 U.S.

274, 289 (1971)).

As former Solicitor General Archibald Cox once wrote, “[n]o one would suggest

that, because it is an unfair labor practice for an employer to beat-up union organizers

and run them out of town, the state is deprived of power to prosecute the employer, or

[that] the organizers have no private right to recover damages under state law.”

Archibald Cox, Recent Developments in Federal Labor Law Preemption, 41 OHIO ST. L.J.

277, 281 (1980). In this vein, the Supreme Court’s cases have not extended the local

interest exception “beyond a limited number of state interests that are at the core of the

States’ duties and traditional concerns,” including laws protecting private property,

bodily security, and preservation of the public order. New York Tel. Co. v. New York State

Dep’t of Lab., 440 U.S. 519, 550–51 (1979) (Blackmun, J., concurring); Belknap, Inc. v.

Hale, 463 U.S. 491, 509–11 (1983) (collecting cases); see also Hotel Emp. & Rest. Empl.

Union, Local 57 v. Sage Hosp. Resources, LLC, 390 F.3d 206, 212 n.4 (3d Cir. 2004) (“The

local interest exception has ordinarily been applied where the conduct alleged concerned

activity traditionally recognized to be the subject of local regulation, most often

involving threats to public order such as violence, threats of violence, intimidation and

destruction of property and also to cover acts of trespass.” (internal quotation marks and

citation omitted)). These kinds of laws that maintain and regulate “domestic peace” and

public order under the States’ historic police powers, Garmon, 359 U.S. at 247, can avoid

preemption through the local interest exception because they “apply to the general

public or substantial segments thereof without regard to whether the individual is an

employer, union, or employee concerned with unionization or a labor dispute.”

Archibald Cox, Labor Law Preemption Revisited, 85 HARV. L. REV. 1337, 1355–56 (1972).

To determine whether Garmon’s local interest exception applies, a court must first

determine if adjudicating the state law claims would present a “risk of interference with

the regulatory jurisdiction of the Labor Board.” Sears, 436 U.S. at 196. Next, it must

determine whether the state law regulates “a significant state interest” “so deeply rooted

in local feeling and responsibility.” Id. at 194–95 (quoting Garmon, 359 U.S. at 244).

Finally, it must balance the two together, that is, any significant, deeply-rooted local

interest, against any risk of interference with the NLRB’s ability to adjudicate the

controversy. Belknap, 463 U.S. at 489–99 (“[T]he state’s interest in controlling or

remedying the effects of the conduct [must be] balanced against [] the interference with

the Board’s ability to adjudicate controversies committed to it by the Act[.]”); Loc. 926,

Int’l Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 676 (1983) (“The

question of whether regulation should be allowed because of the deeply-rooted nature

of the local interest involves a sensitive balancing of any harm to the regulatory scheme

established by Congress.”); Pennsylvania Nurses Ass’n v. Pa. State Educ. Ass’n, 90 F.3d 797,

803 (3d Cir. 1996) (state law must be balanced against “the risk that the exercise of state

jurisdiction over the tort claim would interfere with the regulatory jurisdiction of the

NLRB”); see also Pia v. URS Energy & Constr., Inc., 227 F. Supp. 3d 999, 1003 (S.D. Iowa

2017) (court must determine whether regulated conduct touches interests deeply rooted

in local feeling and responsibility and balance that interest against risk of interference

with the regulatory jurisdiction of the NLRB).

2. Sears and the Identical Controversies Analysis

In Sears, Roebuck & Co. v. San Diego District Council of Carpenters, the Supreme Court

refined Garmon’s local interest exception. Writing for the majority, Justice Stevens

explained that whether state law risks interference with the NLRB’s regulatory

jurisdiction depends on whether state law is regulating conduct that is arguably

protected by Section 7 of the NLRA or arguably prohibited by Section 8 of the NLRA.

Sears, 436 U.S. at 189–90.

a. Laws Regulating Arguably Protected Activity

With respect to laws regulating arguably protected conduct, the animating

concern of the local interest exception is that the state court will erroneously restrict

conduct that is actually protected under the NLRA. See id. at 200. That concern is rooted

in history. Congress passed the NLRA in no small part due to the hostility exhibited by

some Progressive Era state (and federal) courts to union organization, federal policies

concerning union organization, and collective bargaining, even though some of that

activity, like picketing, was arguably protected under the First Amendment. See Cox,

Recent Developments in Federal Labor Law Preemption, supra, at 287–88; THE DEVELOPING

LABOR LAW 3–5 (Higgins, Jr. et al., eds. 8th ed. 2023); see also Melvin I. Urofsky, State

Courts and Protective Legislation, 72 J. AM. HIST. 63 (1985) (noting the “reactionary

reputation” of Progressive Era courts). Thus, when state regulation addresses arguably

protected conduct, “there is a substantive Supremacy Clause concern that the state

tribunal could restrict or hamper federally protected rights” that the NLRA actually

protects. Healthcare Ass’n of New York State, Inc. v. Pataki, 471 F.3d 87, 96 (2d. Cir. 2006);

Sears, 436 U.S. at 203 (“To allow the exercise of state jurisdiction in certain contexts

might create a significant risk of misinterpretation of federal law and the consequent

prohibition of protected conduct.”). The local interest exception under the arguably

protected branch of Garmon focuses, therefore, on “the risk that the state will sanction

conduct that the [NLRA] [actually] protects.” Belknap, 463 U.S. at 498. And if the state

law regulates conduct actually protected by the NLRA, “pre-emption follows not as a

matter of protecting [the] jurisdiction [of the National Labor Relations Board], but as a

matter of substantive right.” Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Loc. 54,

468 U.S. 491, 503 (1984).

b. Laws Regulating Arguably Prohibited Activity

With respect to laws regulating arguably prohibited activity, the animating

concern of the local interest exception is interference with the NLRB’s “primary

jurisdiction to enforce the statutory prohibition against unfair labor practices” under the

NLRA. Sears, 436 U.S. at 198. The “critical inquiry” in determining whether there will

be a conflict of primary jurisdiction is “whether the controversy presented to the [] court

is identical to ... or different from ... that which could have been, but was not, presented

to the Labor Board.” Id. at 197. Only where the “controversy presented to the [] court

is identical to … that which could have been, but was not, presented to the Labor Board”

is there a risk that exercising jurisdiction over the state law claim will interfere with the

NLRB’s congressionally mandated unfair labor practices jurisdiction. Sears, 436 U.S. at

197–98. Although the risk of primary jurisdiction interference is more likely when the

state law relates to labor relations, generally applicable laws also may risk interference

with the Board’s jurisdiction, however, they are “less likely to … conflict with federal

labor policy[.]” Sears, 436 U.S. at 197 n.27.

c. CEPA and NJLAD Regulate Arguably Prohibited

Activity

The parties do not dispute that the preemption concern in this case is of the latter

variety—one of primary jurisdiction under the arguably prohibited branch of Garmon.

[See Pl.’s Br. at 10–12; Docket No. 12 (“Defs.’ Reply Br.”) at 11–13.] Plaintiff brings

claims under both CEPA and NJLAD, state statutes that regulate employer conduct

arguably prohibited under Section 8 of the NLRA. See Puglia v. Elk Pipeline, Inc., 141

A.3d 1187, 1207 (N.J. 2016) (applying primary jurisdiction rationale of Garmon to state

whistleblower statute); Hume v. Am. Disposal Co., 880 P.2d 988, 993 (Wash. 1994) (en

banc), cert. denied, 513 U.S. 1112 (1995) (same); Moreno v. UtiliQuest, LLC, 29 F.4th 567,

576 (9th Cir. 2022) (applying primary jurisdiction rationale of Garmon to California

whistleblower and wrongful termination statutes); Pennsylvania Nurses, 90 F.3d at 804

(applying primary jurisdiction rationale of Garmon to Pennsylvania common law tort

claims brought by nurses’ union against competing union and labor representatives); see

also Pia, 227 F. Supp. 3d at 1004–05 (applying primary jurisdiction rationale of Garmon

to Iowa common law and statutory wrongful termination claims). So, if Plaintiff’s

CEPA and NJLAD claims present “identical controversies” to an NLRA unfair labor

practice charge that he could have (but did not) bring before the NLRB, there will be a

risk of interference with the Board’s primary jurisdiction. Moreno, 29 F.4th at 576 (“In

determining whether adjudicating a state claim risks interference with the NLRB’s

jurisdiction, we inquire whether the controversy presented to the state court is identical

with that which could be presented to the Board.” (internal quotation marks and citation

omitted)). Any risk of interference must then be balanced against any significant, deeply-

rooted state interest in enforcing CEPA and NJLAD in New Jersey’s courts. See Belknap,

463 U.S. at 489–99; Jones, 460 U.S. at 676; Sears, 436 U.S. at 197.

d. When are the “Controversies Presented” Identical?

What does it mean that the “controversies presented” between the state law and

the NLRA charge have to be identical? There are two things it cannot mean. First, it

cannot mean that the NLRA charge and the state law claim must match element-for-

element or remedy-for-remedy. If that were true, as the Third Circuit has recognized,

“state claims would never be preempted” because “[a] Board proceeding and a state-law

cause of action [are], by definition, … different claims” with different elements and

different remedies. See Pennsylvania Nurses, 90 F.3d at 805. The Supreme Court’s cases,

too, have rejected that kind of rigid identity of claims. See Jones, 460 U.S. at 682, 684

(rejecting argument that controversies were not identical because state court could

award punitive damages and fees whereas NLRB could only award backpay and

explaining that controversies must only be “the same in a fundamental respect”);

Garmon, 359 U.S. at 246 (finding it “[in]significant” that the California state law at issue

provided for damages whereas the Board could only “enjoin” and “could not

compensate”); see also Pennsylvania Nurses, 90 F.3d at 805 (rejecting plaintiff’s proposed

“identical controversy” test). Second, it cannot mean that any factual overlap makes the

controversies presented identical. In most cases—and certainly in this case—the facts

underlying both the state law causes of action and any proceeding before the NLRB will

be the same. See Sears, 436 U.S. at 196–97 (citing Farmer, 430 U.S. at 305) (explaining

that, in Farmer, even though the “the arguable federal violation and the state tort arose

in the same factual setting, the respective controversies presented to the state and federal

forums would not have been the same”).

The key, instead, lies in comparing both the factual and legal proofs necessary to

establish both an unfair labor practices charge under the NLRA and the state law cause

of action. If the facts alleged in support of the state law cause of action could also support

a finding that the defendant violated the NLRA, the claims are identical and there would

be a risk of interference with the NLRB’s primary jurisdiction. See Jones, 460 U.S. at 682

(holding that because liability on state law claim was also sufficient to establish an

NLRA violation, there was a risk of interference with the Board’s jurisdiction); Moreno,

29 F.4th at 576 (state law claim was identical to NLRA charge because the “facts as

alleged in [the plaintiff’s] complaint could [also] support a finding that [the defendant]

violated the NLRA”); Pennsylvania Nurses, 90 F.3d at 804 (where “much of the conduct

forming the basis of the state tort claims also underlies the potential unfair labor practice

charges, and the same facts would need to be determined in each proceeding” there is a

“risk of conflicting rulings from the state court and the Board [which] threatens state

interference with the NLRB’s enforcement of national labor relations policy”); see also

Cox, Recent Developments in Federal Labor Law Preemption, supra at 285 (explaining that

“[t]he more widely the applicable state substantive law differs from the federal law, the

greater will be the differences in the proof required to make a case for judicial relief,”

and thus, the more likely it is that the state law claim is not preempted by Garmon). Put

simply, the identical claims analysis asks whether “the state-court tort action can be

adjudicated without resolution of the merits of the underlying labor dispute.” Farmer,

430 U.S. at 304 (internal quotation marks omitted).

Sears is a good example for this guiding inquiry. In Sears, an employer sued a

union for trespass in California state court after the union refused to comply with the

employer’s demand to cease picketing on its property. 436 U.S. at 198. The California

Supreme Court applied Garmon to preempt the employer’s trespass claim holding that

the union’s picketing was arguably prohibited under Section 8. Id. at 183–84.5 But the

United States Supreme Court reversed under the local interest exception. It held that the

trespass claim before the state court was not identical to the NLRA charge that could

have been, but was not, presented before the NLRB. Why? Because, to determine

whether there was a trespass under California law, the state court would have to

determine only the location of the picketing. Id. at 198. But the unfair labor practice

charge would have been limited to the question of “whether the picketing had a

5 It also found that the union’s picketing was arguably protected under Section 7.

Id. at 184.

recognitional or work-reassignment objective,” an issue “completely unrelated to the

simple question whether a trespass had occurred.” Id. So, because determining the

location of the picketing would play no part in establishing an unfair labor practice

charge under Section 8 of the NLRA, there was no risk of interference with the NLRB’s

primary jurisdiction under the arguably prohibited branch of Garmon’s local interest

exception. See Sears, 436 U.S. at 186.

With these background principles in mind, the Court now turns to Defendants’

arguments in support of dismissal that the CEPA and NJLAD claims in this case are

preempted under Garmon.

C. Defendants’ Conduct was Arguably Prohibited Under Section 8 of the

NLRA and Arguably Protected Under Section 7 of the NLRA

Plaintiff does not meaningfully contest that his employer’s conduct was an unfair

labor practice arguably prohibited under Section 8 of the NLRA. Nor could he in light

of the Complaint’s allegations. As set forth in the Complaint, Plaintiff alleges that he

was terminated “in direct response to [] discussing compensation with his coworker, and

communicating his reasonable belief that it [was] unlawful to prevent or retaliate against

employees from discussing the same.” [Compl. ¶ 28.] Retaliatory termination of an

employee for disobeying and objecting to an unlawful workplace rule—here, forbidding

employees from discussing wages in the workplace—is arguably (and, if established,

actually) an unfair labor practice under Section 8(a)(1) of the NLRA. See Victory II, LLC

d/b/a Victory Casino Cruises II, 363 N.L.R.B. 1578, 1580 (2016) (rules or provisions

which prohibit employees from discussing wages are unlawful) (citation omitted); Lowes

Home Centers, LLC & Amber Frare, 368 N.L.R.B. No. 133, slip op. (Dec. 12, 2019), enf’d.

850 F. App’x 886, 890 (5th Cir. 2021) (“[T]he Board has consistently held that rules or

provisions which prohibit employees from discussing wages are unlawful[.]”); Wal-Mart

Stores, Inc., 340 N.L.R.B. 220, 234 (2003) (employer violated Section 8(a)(1) by telling

employees that they were not allowed to discuss wages and benefits and that they could

be terminated for doing so); see also NLRB v. Main St. Terrace Care Ctr., 218 F.3d 531, 538

(6th Cir. 2000) (fact that workplace rule restricting employee discussions on wages was

promulgated orally rather than in writing did not preclude finding that rule violated

Section 8(a)(1) of NLRA by interfering with employees’ right to engage in protected

concerted activity).

Plaintiff argues that he never engaged in “concerted activity” within the meaning

of Section 7 of the NLRA. [Pl.’s Br. at 8–10.] Recall that Section 7 of the NLRA requires

that employee action is only protected if it was “concerted … for the purpose of

collective bargaining or other mutual aid or protection” and that Section 8(a)(1) makes

it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise

of” Section 7 protected activity. See 28 U.S.C. § § 157, 158(a)(1). And so, Plaintiff argues,

Defendants’ actions were not arguably prohibited, nor his own actions arguably

protected, because he never engaged in concerted activity necessary to sustain an unfair

labor practices charge. [Docket No. 25 (“Pl.’s Supp. Br.”) (citing Meyers Indus., Inc., 268

N.L.R.B. 493, 493 (1984) (“Once the activity is found to be concerted, an 8(a)(1)

violation will be found if, in addition, the employer knew of the concerted nature of the

employee’s activity, the concerted activity was protected by the Act, and the adverse

employment action at issue (e.g., discharge) was motivated by the employee’s protected

concerted activity.”)).

The Court disagrees. First, the Court finds that Plaintiff’s activity, as alleged, was

indeed concerted, and therefore, qualifies as arguably protected under Section 7 of the

NLRA. The Board has broadly interpreted “concerted activity” “to cover not only the

union and pre-union efforts of groups of employees seeking to protect their rights but

also certain actions undertaken by individuals in the unionized and non-unionized

workplace.” MCPC, Inc. v. NLRB, 813 F.3d 475, 483 (3d Cir. 2016) (citations omitted).

Individual conduct can be “concerted” “both where individual employees seek to

initiate or to induce or to prepare for group action and where individual employees bring

truly group complaints to the attention of management.” Id. (cleaned up).

Plaintiff privately disclosing the standard rate of pay to his colleague, [see Compl.

¶¶ 14–15], was not likely, by itself, concerted activity. See Mushroom Transportation Co. v.

NLRB, 330 F.2d 683 (3d Cir. 1964) (holding that employee who privately dispensed

advice to employees “without involving fellow workers or union representation to

protect or improve his own status or working position” did not qualify as concerted

activity). In that initial conversation, he was simply answering his colleague’s question.

But when Defendant Shott called the all-hands meeting to warn the chefs that discussing

pay in the workplace was a terminable offense, Plaintiff alleges that he spoke up on

behalf of both himself and his colleagues. As specifically alleged, Plaintiff used his

“position of leadership among his coworkers” to challenge Shott’s “generalized threat

of retaliation” and demand that Shott take “responsib[ility] for disclosing the standard

pay rate to his coworker.” [Compl. ¶ 19.] So, although Plaintiff’s challenge was not

necessarily undertaken with the imprimatur or prior coordination of the other chefs, it

was, as alleged, not a purely “individual gripe[].” Hugh H. Wilson Corp. v. NLRB, 414

F.2d 1345, 1350 (3d Cir. 1969). As in MCPC, he appears to have “expresse[d] grievances

to management about a matter of general employee interest in a group meeting context.”

813 F.3d at 475; NLRB v. Caval Tool Div., 262 F.3d 184, 190 (2d Cir. 2001) (affirming

NLRB finding that employee engaged in concerted activity when he made statements

about the company’s new break policy at an employee meeting called by the employer

to address the policy); NLRB v. Talsol Corp., 155 F.3d 785, 797 (6th Cir. 1998) (holding

that employee’s comments about safety at a group meeting attended by employees and

management constituted concerted activity and employee’s statements were “[c]learly

... not purely personal gripes”).

Second, and more importantly, even assuming that Plaintiff never engaged in

concerted activity, it makes no difference to the Garmon analysis in this case. Whether

Plaintiff engaged in concerted activity for the purposes of mutual aid or protection of his

fellow chefs is relevant to determining whether his conduct was arguably protected

under Section 7 of the NLRA. See MCPC, 813 F.3d at 482 (3d Cir. 2016) (explaining

that in determining whether conduct is protected under the NLRA, court must address

threshold question over whether conduct was concerted). But Section 7

notwithstanding, it is sufficient under Garmon that the employer’s conduct was arguably

prohibited under Section 8. Garmon, 359 U.S. at 245 (state law preempted where conduct

is arguably protected or arguably prohibited). As discussed above, there is no doubt that

Defendants’ conduct was arguably prohibited under Section 8(a)(1). [Supra, at 21–22.]

And crucially—despite the parties’ contentions, [see Pl.’s Supp. Br.; Docket No. 26

(“Defs. Supp. Br.”)]—the Board’s case law is clear that employer conduct can be

arguably prohibited as an unfair labor practice under Section 8(a)(1) of the NLRA

without the employee having engaged in any concerted activity at all. See Davis, 476 U.S. at

395 (applicability of Garmon preemption depends on interpretation of the Act that has

not been “authoritatively rejected” by the courts or the Board).

“It is beyond dispute that,” as here, “an employer violates Section 8(a)(1) by

threatening to terminate an employee in order to prevent [him] from exercising [his]

Section 7 rights, for example, by discussing wages with coworkers.” See Parexel Int’l, 356

N.L.R.B. 516, 519 (2011). That is because “enforcement of a rule against discussing

wages effectively interferes with employee rights and violates Section 8(a)(1) even if no

employee has yet engaged in protected activity and been disciplined under the rule.” Id. at

518 (emphasis added). Logically, that makes sense. “If maintenance of such a rule

violates the Act, a fortiori, the discharge of an employee to prevent [him] from engaging

in such conduct violates [Section 8(a)(1)] of the Act,” even without a specific finding of

concerted activity. Id. So, “[i]f an employer acts to prevent concerted protected

activity—to ‘nip it in the bud’—that action interferes with and restrains the exercise of

Section 7 rights and is unlawful without more.” Id. at 519; accord Central Hardware Co. v.

NLRB, 407 U.S. 539, 543 (1972) (“[O]rganization rights are not viable in a vacuum;

their effectiveness depends in some measure on the ability of employees to learn the

advantages and disadvantages of organization from others[.]”).

Here, even if Plaintiff never engaged in concerted activity for purposes of mutual

aid or protection of his fellow chefs, Defendants’ workplace rule and demand to refrain

from discussing wages in the workplace chilled the exercise of the chefs’ Section 7 rights.

Parexel Int’l, 356 N.L.R.B. at 518 (“[W]age discussions among employees are considered

to be at the core of Section 7 rights because wages, probably the most critical element in

employment, are the grist on which concerted activity feeds.”) (internal quotation marks

and citation omitted); Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976) (similar).

That workplace rule and Defendants’ demand to obey it, if proven, is an unfair labor

practice with or without concerted activity. It is enough to say, then, for purposes of

Garmon, that Defendants’ conduct was arguably prohibited as an unfair labor practice

under Section 8(a)(1) of the NLRA.

Unless Plaintiff can establish that his CEPA and NJLAD claims fall within

Garmon’s local interest exception, his claims must go before the NLRB.

D. The Local Interest Exception: Applied

To determine whether the local interest exception applies, the Court must

determine whether adjudicating the CEPA and NJLAD claims in this case presents a

risk of interference with the NLRB’s primary jurisdiction. Because laws like CEPA and

NJLAD regulate conduct arguably prohibited under Section 8 of the NLRA, there is a

risk of interference with the NLRB’s primary jurisdiction when “the controversy

presented to the state court is identical with that which could be presented to the Board.”

Belknap, 463 U.S. at 510 (citing Sears, 436 U.S. at 198). After determining the risk of

interference, if any, the Court must determine whether the CEPA and NJLAD claims

in this case “touch[] on [significant state] interests so deeply rooted in local feeling and

responsibility” and balance those interests against the risk of interference with the

NLRB’s primary jurisdiction. Garmon, 359 U.S. at 243–44; Belknap, 463 U.S. at 491.

1. Plaintiff’s CEPA Claim Presents a Risk of Interference with the

NLRB’s Primary Jurisdiction

The Court finds that Plaintiff’s CEPA claim is identical to an unfair labor

practices charge that he could have, but did not, file with the NLRB. Adjudicating the

CEPA claim in state court thus presents a serious risk of interference with the NLRB’s

primary jurisdiction.

a. Puglia v. Elk Pipeline and Preemption of State Whistleblower

Claims

This Court is not the first to have considered whether whistleblower claims under

CEPA fit within Garmon’s local interest exception. In Puglia v. Elk Pipeline, Inc., the New

Jersey Supreme Court considered the same question and unanimously held that the

NLRA did not preempt the plaintiff’s CEPA claim because it fit within Garmon’s local

interest exception.6 See 141 A.3d 1187, 1190 (N.J. 2016).

6 Defendants press this Court to not follow Puglia, which they contend was wrongly

decided. [Defs.’ Reply Br. at 11.] Of course, Puglia, as a decision of the New Jersey

Supreme Court, is not binding on this Court. A state court’s interpretation of federal

preemption law is not binding on the lower federal courts, even where the state court

decided whether its own state laws were preempted by federal law. See Robbins v. Fulton

Bank, N.A., 2018 WL 1693386, at *3 (E.D. Pa. Apr. 6, 2018) (citing Grantham v. Avondale

The plaintiff in Puglia sued his employer under CEPA alleging that he was

unlawfully terminated after he complained about his employer’s failure to pay him in

accord with New Jersey’s Prevailing Wage Act. 141 A.3d at 1190. The New Jersey

Supreme Court found that it was “beyond real dispute” that plaintiff’s conduct was

arguably protected and his employer’s conduct arguably prohibited. Id. at 1207. But in

applying the local interest exception—relying on a decision by the Washington Supreme

Court, which similarly found its state whistleblower statute covered by the local interest

exception, see Hume v. Am. Disposal Co., 880 P.2d 988, 992–93 (Wash. 1994)—the Puglia

Court held that the proofs between the plaintiff’s CEPA claim and an unfair labor

practices dispute under the NLRA were not sufficiently identical such that there was a

risk of interference with the NLRB’s primary jurisdiction. Puglia, 141 A.3d at 1208. The

“[plaintiff’s] CEPA claim,” the New Jersey Supreme Court explained, “would center

on whether he engaged in whistleblowing activity and whether that activity played a

role in his termination.” Id. “The NLRA claim,” by contrast, “would instead focus on

whether [the plaintiff] engaged in concerted activity aimed at the conditions of his

employment.” Id. And because, the court concluded, whether the plaintiff engaged in

“concerted activity would play no role in a CEPA action,” the CEPA claim would not

be identical to the NLRA charge. Id.

The New Jersey Supreme Court found that even if there was a risk of interference,

New Jersey’s interest in protecting its citizens under CEPA was deeply-rooted and more

Indus., Inc., 964 F.2d 471, 473 (5th Cir. 1992)). The Court can, however, consider Puglia

as persuasive authority.

substantial than any risk of interference. Id. (finding the risk of interference “de minimis”

balanced out against New Jersey’s “deep” interest in enforcing CEPA). That was so, the

court explained, because “CEPA does not affect the bargaining position between

management and labor—the balance that the NLRA seeks to bring into equipoise” and

because “CEPA claims are individual claims, seeking to validate an individual’s right to

be free from workplace retaliation after raising a legitimate public policy issue.” Id.

Moreover, the New Jersey Supreme Court expressed concerns that preempting CEPA

claims in the face of allegations of a retaliatory discharge in response to workplace

complaints would “leave employees with a half-baked remedy” given the remedial

differences between CEPA and the NLRA. That is because, under the NLRA, the Board

can only award equitable relief such as reinstatement and backpay. See 29 U.S.C.

§ 160(c). It cannot award compensatory damages for harms incurred as a result of an

unlawful labor practice. See NLRB v. Starbucks Corp. 125 F.4th 78, 98 (3d Cir. 2024)

(holding that NLRB exceeded its authority under NLRA by awarding, in effect,

compensatory damages for “direct or foreseeable pecuniary harms incurred as a result

of the unlawful adverse actions against [employees]” (internal quotation marks

omitted)). CEPA, by contrast, authorizes a broader array of legal remedies—in addition

to equitable remedies—including compensatory and punitive damages. N.J.S.A. 34:19-

5; Palladino ex rel. U.S. v. VNA of S. New Jersey, Inc., 68 F. Supp. 2d 455, 474 (D.N.J.

1999).

Most courts, however, have declined to find that state whistleblower statutes,

including CEPA, fall within Garmon’s local interest exception. See Moreno, 29 F.4th at

567 (applying Garmon to California whistleblower statute and finding that local interest

exception did not apply); Casumpang v. Hawaiian Comm. and Sugar Co., 712 Fed. App’x

709 (9th Cir. 2018) (applying Garmon preemption to safety claims under Hawaii

Whistleblower Protection Act and finding that local interest exception did not apply);

Platt v. Jack Cooper Transp., Co., 959 F.2d 91, 96 (8th Cir. 1992) (applying Garmon to

California whistleblower statute and finding that local interest exception did not apply);

Henry v. Laborers’ Local 1191, 848 N.W.2d 130, 145–46 (Mich. 2014) (applying Garmon

to Michigan Whistleblowers’ Protection Act and finding that local interest exception

did not apply); Smith v. Bewlay, 2000 WL 306950, at *10 (D. Conn. 2000) (applying

Garmon preemption to dismiss Connecticut state law wrongful discharge claim

notwithstanding state interest that “employers may not retaliate against employees for

lawful whistle-blowing activities”). Two courts in this District have reached the same

conclusion specifically with respect to CEPA. Shinn v. FedEx Freight, Inc., 2016 WL

7130911, at *3 (D.N.J. Dec. 7, 2016) (Hillman, J.) (holding that CEPA claim was

preempted under Garmon and did not fall within the local interest exception because

plaintiff’s claims had already been considered and dismissed by NLRB); Londono v. ABM

Janitorial Servs., 2014 WL 7146993, at *3 (D.N.J. Dec. 12, 2014) (Salas, J.) (holding that

CEPA claim was preempted under Garmon and did not fall within the local interest

exception).

Most recently, as an illustration, the Ninth Circuit in Moreno v. UltiQuest held that

the plaintiff’s whistleblowing and unlawful termination and retaliation claims were

preempted under Garmon because although California had an interest in protecting its

citizens from employers’ illegal actions—terminating the plaintiff who advocated on

behalf of his fellow employees for a promised ten percent raise—the controversies

presented by the whistleblowing/wrongful termination claims were identical to a claim

under the NLRA because “the facts as alleged in [the plaintiff’s] complaint could [also]

support a finding that [the defendant] violated the NLRA.” 29 F.4th at 576.

b. The Controversies Presented Between Plaintiff’s CEPA Claim

and an Unfair Labor Practices Charge Are Identical

For the reasons that follow, the Court finds that the facts alleged by Plaintiff here

could establish both a violation of CEPA and an unfair labor practices charge under

Section 8(a)(1) of the NLRA. Thus, adjudicating the CEPA claim presents a risk of state

interference with the NLRB’s primary jurisdiction. Puglia is unpersuasive.

Section 34:19-3(c)(1) of CEPA provides, in relevant part, that:

An employer shall not take any retaliatory action against an employee

because the employee … [o]bjects to, or refuses to participate in any

activity, policy or practice which the employee reasonably believes … is in

violation of a law, or a rule or regulation promulgated pursuant to law[.]

So, to state a claim under CEPA, the plaintiff must show: that (1) he reasonably believed

defendants were violating a law, rule, or public policy; (2) he performed a

whistleblowing activity, including objecting to or refusing to participate in, the violation

of the identified law, rule, or public policy; (3) an adverse employment action was taken

against him; and (4) a causal relationship exists between the whistleblowing activity and

the adverse employment action. Puglia, 141 A.3d at 1200.

Section 8(a)(1), of the NLRA makes it an “unfair labor practice for an employer

[] to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed

in [Section 7],” including the right to “engage in [] concerted activities for the purpose

of collective bargaining or other mutual aid or protection.” 28 U.S.C. § 157; 28 U.S.C.

§ 158.

Plaintiff’s allegations are critical to the identical controversies analysis. As alleged

here, the proofs necessary to sustain a CEPA violation in this case cannot be

disentangled from an NLRA unfair labor practices charge that Plaintiff could have, but

did not, present before the Board. Under CEPA, Plaintiff would have to show that he

was terminated for a “whistleblowing activity,” here, objecting to or refusing to obey

Defendants’ demand to not discuss wages at work. N.J.S.A. 34:19-3(c)(1); [Compl.

¶ 35]. But if Plaintiff established that he was fired for objecting to or refusing to obey

Defendants’ demand to not discuss wages at work (as he alleges), that would also be

sufficient to sustain an NLRA Section 8(a)(1) unfair labor practices charge before the

NLRB. Under the Board’s case law, a rule or provision—whether written or oral—

which prohibits employees from discussing wages is unlawful under Section 8(a)(1)).

Victory II, 363 NLRB at 1580; Triana Industries, 245 N.L.R.B. 1258 (1979) (finding

unlawful under Section 8 (a)(1) employer’s demand to new employees “not to go around

asking the other employees how much they were making”); Main St. Terrace Care Ctr.,

218 F.3d at 538 (oral rules preventing employees from discussing wages are unlawful

under Section 8(a)(1)). So, too, is firing an employee for objecting to such rules or

provisions. See NLRB v. Long Island Ass’n for AIDS Care, Inc., 870 F.3d 82 (2d Cir. 2017)

(affirming Board finding that employer violated Section 8(a)(1) by terminating employee

for objecting to confidentiality agreement which prohibited employees from discussing

wages). So, because the CEPA claim cannot be adjudicated without resolution of the

merits of the unfair labor practices charge, the controversies are identical and there is a

risk of interference with the Board’s primary jurisdiction. See Farmer, 430 U.S. at 304.

Contrast the proofs here with those in Sears where the Supreme Court applied the

local interest exception. Recall that in the state court action in Sears, the plaintiff-

employer sued the defendant-union for trespassory picketing. To determine whether

there was a trespass under California state law, the state court would have to determine

only the location of the picketing. 436 U.S. at 198. But “[t]he unfair labor practice charge

would have focused on whether the picketing had recognitional or work reassignment

objectives, issues ‘completely unrelated to the simple question whether a trespass had

occurred.’” Jones, 460 U.S. at 682–83 (quoting Sears, 436 U.S. at 198). So, because

determining the location of the picketing would not also establish an unfair labor

practices charge before the NLRB, there would be no risk of interference with the

Board’s primary jurisdiction.

In this case, however, the state court would have to determine whether Plaintiff

was terminated in retaliation for objecting to his employer’s unlawful demand under

both CEPA and Section 8 of the NLRA. And so, because “much of the conduct forming

the basis of the state tort claims also underlies the potential unfair labor practice charge[],

and the same facts would need to be determined in each proceeding,” there is “a risk of

conflicting rulings from the state court and the Board” which “threatens state

interference with the NLRB’s enforcement of national labor relations policy.”

Pennsylvania Nurses, 90 F.3d at 804 (refusing to apply local interest exception because

state law tort claims were identical to NLRA charge); see also Moreno, 29 F.4th at 576

(“[Plaintiff] alleges that [Defendant] terminated him for advocating on behalf of his

fellow employees for a promised ten percent raise. Such conduct arguably violates the

NLRA [and California law].”).

As noted, the New Jersey Supreme Court in Puglia found the CEPA and NLRA

claims sufficiently distinct because:

Puglia’s CEPA claim would center on whether he engaged in

whistleblowing activity and whether that activity played a role in his

termination. The NLRA claim would instead focus on whether Puglia

engaged in concerted activity aimed at the conditions of his employment.

Yet concerted activity would play no role in a CEPA action.

141 A.3d at 1208.

Here, the Court parts ways with the New Jersey Supreme Court. The additional

element of concerted activity under the NLRA—at least in this case—does not render it

meaningfully distinct from CEPA. There are two reasons why. First, and as described

above, [supra, at 18–19], the proofs between the state law claim and the NLRA charge

do not have to overlap with exacting precision. That is, CEPA does not need to have an

element of concerted activity to be considered “identical” to an NLRA charge. If that

were true, any difference between the state law cause of action and the NLRA charge

would be enough to avoid Garmon preemption. See Pennsylvania Nurses, 90 F.3d at 805;

Moreno, 29 F.4th at 576 (“Importantly, the claims need not be identical, but rather the

focus is on whether the “controversy presented” is identical (emphasis supplied)

(internal quotation marks and citation omitted)). And the Supreme Court has rejected

such a result, explaining that state law and NLRA controversies are still “identical” even

where only “a fundamental “part” of the state law controversy is identical to the federal

NLRA controversy. See Jones, 460 U.S. at 681–82 (emphasis added).7 Because

establishing that Plaintiff was fired for “whistleblowing activity” under CEPA—that is,

objecting to a workplace policy restricting Section 7 rights to discuss wages in the

workplace—would also be sufficient to establish an unfair labor practices claim under

Section 8(a)(1), the controversies are identical.

Second, a finding of concerted activity is not always necessary to sustain an unfair

labor practices charge under Section 8(a)(1) of the NLRA. And it is not necessary in this

case. As described above, [supra, at 24–26], an employer can be held liable for an unfair

labor practice even where there is no concerted activity on the part of the employee. In Long

Island Ass’n for AIDS Care, for example, the Second Circuit affirmed a decision of the

Board finding that the employer violated Section 8(a)(1) by terminating an employee for

objecting to and refusing to sign a confidentiality agreement prohibiting the employee

from discussing wages in the workplace. 870 F.3d at 88–89. The Board found that even

7 In Jones, Justice Rehnquist dissented from this reasoning, calling it a

“reformulation” of the Sears requirement that the state and federal controversies must

be “identical” in order for the local interest exception apply to arguably prohibited

conduct. 460 U.S. at 688 (Rehnquist, J., dissenting). “Identical,” he believed, “really

mean[t] “identical.” Id. at 689 n.5. “[T]wo items or concepts,” he argued, “are not

ordinarily thought to be identical merely because they share a common element, or, in

the Court’s words, because they are ‘the same in a fundamental respect[.]’” Id. (quoting

Jones, 460 U.S. at 682 (majority opinion)). While that argument has analytical force, it

did not carry the day in Jones.

if the employee’s objection and refusal was not concerted, his termination was still

unlawful under Section 8(a)(1) because the confidentiality agreement was facially

invalid. Id. at 86. The Second Circuit affirmed, explaining that “[a]n employer may not

require even one individual employee to agree to abide by unlawful restrictions as a

condition of employment” and “[t]hat the employees have not yet organized in order to

protest the unlawful nature of the restriction at issue does not make it any less unlawful.”

Id. at 88–89. That is because an “unchallenged unlawful [workplace rule] can cause the

chilling effect that Section 8(a)(1) seeks to prevent just as much as one that has been

challenged by concerted action.” Id. at 89. The Second Circuit found “no reason to judge

the effect of an unlawful requirement on an employee’s termination based solely on

whether the employee acted in concert or alone.” Id. Instead, it explained, the Board

must “judge the effect of the requirement on an employee’s termination based on the

lawfulness or unlawfulness of the requirement.” Id. In other words, terminating an

employee for objecting to an unlawful workplace rule can be an unfair labor practice

whether or not the employee’s objection to that rule was concerted. Parexel Int’l, 356

N.L.R.B. at 519. (“[E]nforcement of a rule against discussing wages effectively interferes

with employee rights and violates Section 8(a)(1) even if no employee has yet engaged

in protected activity and been disciplined under the rule.”).

That is what happened here. It would be an unfair labor practice under Section

8(a)(1) of the NLRA if, as alleged, Defendants fired Plaintiff for objecting to a demand

forbidding him from discussing wages in the workplace, regardless of whether his

objection to that practice was concerted for purposes of mutual aid or protection. So, at

least in this case, “concerted activity would play no role in [the] CEPA action,” Puglia,

141 A.3d at 1208, but it would also play no role in proceedings before the Board.

2. Plaintiff’s NJLAD Claim Presents a Risk of Interference with the

NLRB’s Primary Jurisdiction

Applying the same analytical framework as it did to the CEPA claim, the Court

finds that Plaintiff’s NJLAD’s anti-wage discrimination claim under Section 10:5-12(r)

is identical to an unfair labor practices charge that he could have filed with the NLRB.

Thus, there is also a risk of interference with the Board’s regulatory jurisdiction by

proceeding with the NJLAD claim.

Section 10:5-12(r) of the NJLAD makes it unlawful:

For any employer to take reprisals against any employee for requesting

from, discussing with, or disclosing to, any other employee or former

employee of the employer … regarding the … rate of compensation,

including benefits, of the employee or any other employee or former

employee of the employer[.]8

Like NJLAD Section 10:5-12(r), Section 8(a)(1) of the NLRA also makes it unlawful to

retaliate against employees for discussing wages. See Wal-Mart Stores, Inc., 340 N.L.R.B.

at 234 (employer violated Section 8(a)(1) by telling employees that they were not

allowed to discuss wages and benefits and that they could be terminated for doing so).

8 The New Jersey Legislature originally intended to enact Section 10:5-12(r) as an

amendment to CEPA but, on Governor Christie’s recommendation, instead enacted

Section 10:5-12(r) as part of the NJLAD. Governor Chris Christie, Recommendations for

Reconsideration to Assembly Bill No. 2648 (First Reprint), available at

https://pub.njleg.gov/bills/2012/A3000/2648_V1.PDF (“Because workplace

discrimination claims in New Jersey are brought under LAD, this amendment of CEPA

is inconsistent with the original intent of that law, and is more consistent with the

underlying goals of LAD.”).

Here, the identity in proofs between the NJLAD claim and the NLRA charge is even

more apparent than it was in the CEPA context. Both statutes prohibit the exact same

conduct—retaliatory termination of an employee for discussing wages in the workplace.

In both a proceeding before the Board on the NLRA charge and in state court on the

NJLAD claim, the proofs will be exactly the same. If, as alleged, Defendants terminated

Plaintiff for discussing wages in the workplace, [see Compl. ¶¶ 28–29], it would violate

both NJLAD Section 10:5-12(r) as well as Section 8(a)(1) of the NLRA. Thus, there is

a risk of interference with the Board’s regulatory jurisdiction if this action proceeds in

state court.

3. CEPA and NJLAD Are Not Statutes Deeply Rooted in Local

Feeling and Responsibility

Even if the Court were to conclude that there was little risk of interference

between the CEPA and NJLAD claims in this case, it finds that both statutes are not

deeply-rooted in local feeling and responsibility. They are not the kind of state laws the

Garmon court had in mind when it carved out the local interest exception for state

interests “deeply rooted in local feeling and responsibility.” Garmon, 359 U.S. at 244.

What the Supreme Court had in mind and specifically considered were state laws

regulating “conduct marked by violence and imminent threats to the public order.” Id.

at 247. “State jurisdiction has prevailed in these situations,” the Court explained,

“because the compelling state interest, in the scheme of our federalism, in the

maintenance of domestic peace is not overridden in the absence of clearly expressed

congressional direction.” Id.

Indeed, since Garmon, the Supreme Court has only applied the local interest

exception “in cases where the conduct alleged concerned activity traditionally

recognized to be the subject of local regulation, most often involving threats to public

order such as violence, threats of violence, intimidation and destruction of property” as

well as cases involving trespass on private property and “certain personal torts, such as

intentional infliction of emotional distress, and malicious libel.” Pennsylvania Nurses, 90

F.3d at 803 (cleaned up); see Sears, 436 U.S. at 190–98 (trespass); Farmer, 430 U.S. at

304–05 (intentional infliction of emotional distress); Linn v. United Plant Guard Workers

of Am., Local 144, 383 U.S. 53, 57–63 (1966) (malicious libel); Int’l Union, United Auto.,

Aircraft & Agr. Implement Workers of Am. (UAW-CIO) v. Russell, 356 U.S. 634, 640 (1958)

(threats of violence); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 138 (1957) (threats of

violence); United Auto., Aircraft & Agr. Implement Workers of Am. v. Wisconsin Emp. Rels.

Bd., 351 U.S. 266, 272 (1956) (violence and destruction of property); United Const.

Workers, Affiliated with United Mine Workers of Am. v. Laburnum Const. Corp., 347 U.S. 656,

668 (1954) (threats of violence). “[A] State still may exercise ‘historic powers over [these]

traditionally local matters [such as] as public safety and order and the use of streets and

highways for ‘policing of such conduct is left wholly to the states.’” Lodge 76, Int’l Ass’n

of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Emp. Rels. Comm’n, 427 U.S. 132,

137 n.2 (1976) (cleaned up) (first quoting Allen-Bradley Local v. Wisconsin Emp. Rel. Board,

315 U.S. 740, 749 (1942), then quoting International Union, U. Automobile Workers v.

Wisconsin Emp. Rel. Board, 336 U.S. 245, 253 (1949)). But the Supreme Court has not

extended the local interest exception “beyond [these] limited number of state interests

that are at the core of the States’ duties and traditional concerns.” See New York Tel. Co.,

440 U.S. at 550 (Blackmun, J., concurring). The Court declines to so in this case.

No doubt, New Jersey has a genuine interest in protecting its citizens from

unlawful employment practices under both CEPA and NJLAD Section 10:5-12(r). See

Moreno, 29 F.4th at 576 (finding that local interest exception did not apply under Sears

identical controversies analysis but acknowledging that California had a legitimate

interest in protecting its citizens under whistleblowing and wrongful termination

statutes). But so was the interest in Wisconsin Dep’t. of Industry v. Gould, 475 U.S. at 282.

In that case, the Supreme Court found that Garmon preempted a Wisconsin statute

barring repeat labor law violators from selling their products to the state. Id. at 291.

Wisconsin’s interest in punishing repeat labor law violators may have been “laudable”

but “it assume[d] for the State of Wisconsin a role Congress reserved exclusively for the

Board.” Id.

So, too, here. In this case, as alleged, the CEPA and NJLAD Section 10:5-12(r)

claims are not regulating the kind of extreme conduct under generally applicable non-

labor laws traditionally and historically committed to the States’ police powers. Instead,

they would be operating to “interfere with the ‘interrelated federal scheme of law,

remedy, and administration.’” Gould, 475 U.S. at 290 (quoting Garmon, 359 U.S. at

243)). Accordingly, the Court finds that the state laws in this case do not fit within the

local interest exception. See Andrewsikas v. Supreme Indus., Inc., 2021 WL 1090786, at *7

(D. Conn. Mar. 22, 2021) (state interest in the enforcement of employee whistleblowing

laws not sufficient to qualify for Garmon’s local interest exception); See Leonard v. FedEx

Freight, Inc., 2019 WL 4747812, at *3 (E.D. Cal. Sept. 30, 2019) (state interest in

regulating “broad [] retaliation claims” cannot qualify for Garmon’s local interest

exception); see also Idaho Bldg. & Constr. Trades Council v. Inland Pac. Chptr. & Contrs., 801

F.3d 950, 966 (9th Cir. 2015) (local interest exception does not “extend to local interests

in labor policy”).

* * *

Having found that there would be both a risk of interference in adjudicating the

state law claims and that those state laws, under the Supreme Court’s cases, do not

implicate the kinds of deeply-rooted local interests contemplated by Garmon, the Court

determines that the risk of interference with the Board’s primary jurisdiction outweighs

any state interest in adjudicating the claims.9 It does so with a few parting words.

9 In a different type of case—one, for example, where there is a deeply-rooted local

interest of the kind discussed in Garmon, but where the controversies presented are

identical—the Court might have more difficulty balancing the risk of interference

against the state interest. Freeform balancing of this kind can be challenging given the

incommensurable interests on each side of the balancing equation. Asking how much

“risk of interference with the NLRB’s primary jurisdiction” outweighs how much “state

interest in protecting its citizens” is a bit like asking “whether a particular line is longer

than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486

U.S. 888, 897 (1988) (Scalia, J., concurring). Nevertheless, applying the Supreme

Court’s cases faithfully means that the Court must undertake such an exercise in the

appropriate case. Belknap, 463 U.S. at 499 (“[T]he state’s interest in controlling or

remedying the effects of the conduct [must be] balanced against [] the interference with

the Board’s ability to adjudicate controversies committed to it by the Act[.]”).

First, the Court does not hold that all CEPA claims or all NJLAD Section 10:5-

12(r) claims are preempted by Garmon. Garmon’s local interest exception requires a fact-

sensitive application. Platt, 959 F.2d at 95. And so, the Court cabins its holding strictly

to the facts presented in this case.

Second, the Court is mindful of Garmon’s black hole-like tendency to “reduce to

the vanishing point States’ power to redress wrongful acts in the labor field and provide

any effective remedy under their own laws for tortious conduct.” Glacier Nw., 598 U.S.

at 787 (Thomas, J. concurring) (quoting Garmon, 359 U.S. at 253–54 (Harlan, J.,

concurring) (cleaned up)). That is a serious concern, one shared by Justice Harlan who

feared that Garmon’s broad rule of preemption would “cut[] deeply into the ability of

States to furnish an effective remedy under their own laws for the redress of past

nonviolent tortious conduct[.]” Garmon, 359 U.S. at 253 (Harlan, J., concurring).

Forcing New Jersey workers to settle for—in the words of the New Jersey Supreme

Court in Puglia—a “half-baked remedy” before the NLRB, 141 A.3d at 1209, an

administrative body limited to awarding reinstatement and backpay, tends to undermine

the broad remedial purposes of statutes like CEPA and NJLAD which allow a plaintiff

to seek compensatory and punitive damages in court. See Abbamont v. Piscataway Twp.

Bd. of Educ., 650 A.2d 958 (N.J. 1994) (CEPA “promotes a strong public policy of the

State” and “therefore should be construed liberally to effectuate its important social

goal”); Battaglia v. United Parcel Serv., Inc., 70 A.3d 602, 619 (N.J. 2013) (NJLAD is a

“broad[,] remedial” statute and its “overarching goal is the eradication of the cancer of

discrimination.”). But “a faithful application of Garmon” often leads to such a result. See

Alexander S. Whistler, Labor Law’s Preemption Problem: Glacier Northwest and What the

Fate of Garmon Means for American Workers, 75 UC LAW J. 853, 869 (2024). It is both a

feature and an irk of Garmon. See Henry H. Drummonds, The Sister Sovereign States:

Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace,

62 FORDHAM L. REV. 469, 567 (1993) (arguing that Garmon far exceeds the necessary

preemptive inference that arises from the protections or prohibitions of federal labor

laws). But unless and until the Supreme Court reexamines Garmon or Congress better

defines the “boundary lines defining the realm of exclusive federal control” over labor

relations, Cox, Recent Developments in Federal Labor Law Preemption, supra, at 277, Garmon

will continue to operate with the type of sweep it does in this case. See Sears, 436 U.S. at

187 (noting that Congress left unexpressed in the NLRA the “permissible scope of state

regulation of activity touching upon labor-management relations”).

VI. CONCLUSION

For the reasons stated in this Opinion, the Motion to Dismiss will be

GRANTED. Plaintiff’s claims are preempted under Garmon and must go before the

National Labor Relations Board. An appropriate Order will follow.

February 20, 2025 s/Renée Marie Bumb

Date RENÉE MARIE BUMB

Chief United States District Judge