                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                  No. 11-2560
                                 _____________

                               SANDOR RADAI;
                              MICHAEL O'BRIEN,

                                                 Appellants
                                        v.

            FIRST TRANSIT; FIRSTGROUP AMERICA COMPANY;
                FIRSTGROUP AMERICA; JOHN DOES (1-5).
                             _____________

                  On Appeal from the United States District Court
                          for the District of New Jersey
                            (D.C. No. 1-10-cv-06810)
                      District Judge: Hon. Joseph E. Irenas
                                 _____________

                   Submitted Under Third Circuit L.A.R. 34.1(a),
                                March 08, 2012

     BEFORE: McKEE, Chief Judge, and SCIRICA, AMBRO, Circuit Judges

                          (Opinion Filed: April 30, 2012)
                                 _____________

                           OPINION OF THE COURT
                                _____________

McKEE, Chief Judge.

     Sandor Radai and Michael O’Brien appeal the District Court’s order dismissing




                                         1
the claim they brought against the defendant/employer for wrongful termination. For the

reasons set forth below, we will affirm. 1

                                               I.

       As we write primarily for the parties, we need not discuss the factual background

or procedural history of this appeal.

       First Transit argues that Radai and O’Brien’s claim is preempted by Sections 7

and 8 of the NLRA based on the Supreme Court’s decision in San Diego Building Trades

Council v. Garmon, 359 U.S. 236 (1959). The rule of Garmon—known as “Garmon

preemption”—precludes a claim where “it is clear or may fairly be assumed that the

activities which a State purports to regulate are protected by [§] 7 of the National Labor

Relations Act, or constitute an unfair labor practice under [§] 8.” Id. at 244. Section 7 of

the NLRA protects the right of employees to “self-organization, to form, join, or assist

labor organizations, to bargain collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of collective bargaining or

other mutual aid or protection.” 29 U.S.C. § 157. Similarly, Section 8 of the NLRA

prohibits labor practices that “interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in section 7 . . . or discriminat[e] in regard to hire or tenure of


1
  The District Court had jurisdiction over this action based on diversity of citizenship
subject matter jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291.
    We exercise plenary review of a grant of a motion to dismiss. We therefore accept all
allegations in the Complaint as true and draw all reasonable inferences in the light most
favorable to the plaintiff. United States v. Occidental Chem. Corp., 200 F.3d 143 (3d Cir.
1999).

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employment or any term or condition of employment to encourage or discourage

membership in any labor organization.” 29 U.S.C. § 158.

       We have stated that “Garmon preemption protects the exclusive jurisdiction of the

NLRB over unfair labor practice proceedings; accordingly, if a cause of action implicated

protected concerted activity under Section 7 of the NLRA or conduct that would be

prohibited as an unfair labor practice under Section 8 of the NLRA, the cause of action is

preempted.” Voilas v. General Motors Corp., 170 F.3d 367, 378 (3d Cir. 1999). Radai

and O’Brien have alleged that they were involved in organizing a labor union and their

employers terminated them in order to discourage labor organization within the plant.

They attempt to dodge the Garmon bullet that is fatal to their claim by arguing that they

are seeking recovery for the employers’ breach of an implied contract, rather than

recovery for a wrongful termination claim under the NLRA.

       However, their claim is nothing more than a rather transparent attempt to recast

the employer’s alleged anti-union activity in terms of contract law. Their efforts to seek

representation from a labor union and the allegations that the employers hindered that

activity fall squarely within the protections afforded by Sections 7 and 8 of the NLRA.

Because the claim relates to activity described in Sections 7 and 8 of the NLRA, the

claim is clearly preempted under Garmon. Thus, the District Court properly dismissed

the Complaint.

       For the reasons stated above, we will affirm the judgment of the District Court.




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