                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0886-13T1



SALVATORE PUGLIA,

     Plaintiff-Appellant,            APPROVED FOR PUBLICATION

v.                                        October 10, 2014

ELK PIPELINE, INC., ELK                   APPELLATE DIVISION
PIPELINE, INC. t/a and/or d/b/a
CROWN PIPELINE CONSTRUCTION
COMPANY, CROWN PIPELINE
CONSTRUCTION COMPANY,
THOMAS MECOUCH, individually
and as the corporate alter ego,

     Defendants-Respondents.
_______________________________

         Argued July 16, 2014 - Decided    October 10, 2014

         Before Judges Messano,1 Lihotz and Guadagno.

         On appeal from the Superior Court of New
         Jersey, Law Division, Gloucester County,
         Docket No. L-1046-11.

         Deborah L. Mains argued the cause for
         appellant    (Costello   &    Mains, P.C.,
         attorneys; Ms. Mains, on the brief).

         Douglas Diaz argued the cause for respondents
         (Archer & Greiner, P.C., attorneys; Mr. Diaz
         and Tracy Asper Wolak, on the brief).


1
     Judge Messano did not participate in oral argument.        He
joins the opinion with counsel's consent. R. 2:13-2(b).
      The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

      Plaintiff Salvatore Puglia appeals from the Law Division's

grant of summary judgment, dismissing his complaint alleging his

former employer, defendants Elk Pipeline, Inc. (Elk) and Elk's

President      Thomas    Mecouch   (collectively          defendants)      retaliated

against     him    for   reporting      Elk's   alleged          violations      of     the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1

to   -14.       Plaintiff    maintained        Elk    failed       to    properly       pay

overtime and remuneration at an applicable rate which violated

the New Jersey Prevailing Wage Act (PWA), N.J.S.A. 34:11-56.25

to -56.47, and his complaints resulted in his lay-off despite

his level of seniority.            The Law Division rejected plaintiff's

claims as cognizable under CEPA, instead finding they were based

on   an   interpretation      of    the    parties'        collective      bargaining

agreement (CBA), and redress was governed by federal law.                               We

agree and affirm.

                                          I.

      We recite the facts found in the summary judgment record

viewed    in   a   light    most   favorable         to   plaintiff.            Brill    v.

Guardian    Life    Ins.    Co.    of   Am.,    142       N.J.    520,    540    (1995).

Plaintiff was employed by Elk as a laborer from October 2, 2006

to December 16, 2010.         During that time, plaintiff was assigned




                                          2                                      A-0886-13T1
to work on a sewer reconstruction project located in the City of

Camden (the project).          It is undisputed that the project was a

public works project as defined in the PWA.

       As a member of the International Association of Machinists

and Aerospace Workers, AFL-CIO, Local Lodge S-76, plaintiff's

employment was subject to a CBA, negotiated between Elk and the

union.    The CBA was effective from June 28, 2004 to February 15,

2010, but remained binding "thereafter from year to year unless

either party" gave notice prior to the expiration date of an

"intention to modify or terminate the agreement."

       In January 2010, plaintiff noticed his hourly rate of pay

was reduced from what he had previously received.                    He believed

the rate of pay was less than the prevailing wage to which he

was entitled.       Plaintiff and another laborer, Robert Barrette,

immediately challenged the reduced rate of pay by complaining to

their    supervisor,    Eric    Larsen,     who    referred   them   to   Michael

Tedesco, Elk's project manager.

       Plaintiff and Barrette next complained to Tedesco about the

pay cut.      Tedesco stated Mecouch directed several laborers be

paid     at   the   apprenticeship      level.          Tedesco   explained       he

objected,     telling   Mecouch   Elk     had     no   approved   apprenticeship

program for the project.          Mecouch did not change his position.




                                        3                                 A-0886-13T1
Therefore,    Tedesco      recommended         plaintiff       speak      directly       to

Mecouch, which he did in late January 2010.

    In    summer    2010,    after      his     pay    rate    was     not   restored,

plaintiff    formally      filed    a     complaint        with    the     New    Jersey

Department    of    Labor.        About    this       time,    plaintiff         contends

Mecouch, through Tedesco, instructed him and other employees to

"lie to state inspectors" if asked about their rate of pay.

    Plaintiff then discussed the problem with Jim Takacs, the

resident engineer on the project.               Takacs's role was "to enforce

the Davis-Bacon rates on the Camden [p]ublic [w]ork sites for

the Camden Sewer Reconstruction Project[.]"2                         Takacs reviewed

Elk's certified payroll records and determined certain laborers

were not properly compensated, noting specifically there was no

approved apprenticeship program, making use of that pay rate

inappropriate.

    Takacs     told    Tedesco     that       Elk   must      rectify     its    payroll

discrepancies.        He   specifically         identified        plaintiff       as   one

laborer     whose   pay    rate    was        incorrect.          In     reference      to

plaintiff, Takacs recalled Tedesco stating something "off the

2
     The Davis-Bacon Act, originally 40 U.S.C.A. § 276A, and
recodified as 40 U.S.C.A. § 3142, addresses federal wage rates
for laborers and mechanics employees on federal public works
projects. The statute requires contractors to pay the prevailing
wage rate on public-bidding projects.    New Jersey has adopted
its own prevailing wage legislation, found at N.J.S.A. 34:11-
56.27.



                                          4                                      A-0886-13T1
record" like "the owner wanted to f[---] with him and wants to

get rid of him."

      Thereafter,        plaintiff    and       the    other      laborers'       pay    rates

were restored to the prevailing wage rate.                           However, plaintiff

maintained he did not receive all back pay he was due.                                  During

this time, Mecouch told him, "look, I was going to fire you,

you're just not working out, but I'm going to give you a second

chance."        Plaintiff      also    spoke          to    Tedesco      regarding        his

entitlement to additional back pay, but was told, "be quiet and

keep your job or be laid off."

      On December 16, 2010, plaintiff's employment on the project

ended.     Mecouch explained to plaintiff he was being laid off as

the   project      neared     completion          and       was      being    reassigned.

Plaintiff never reported to his newly-assigned location.

      On January 13, 2011, plaintiff filed his complaint alleging

violations of the PWA, CEPA, along with individual liability

claims against Mecouch under CEPA, and equitable relief.                                   The

parties settled the PWA claim.

      After    discovery,      defendants         moved        for    summary      judgment

dismissal     of   the    remaining    claims.              Judge    Jean    B.    McMaster

concluded     plaintiff's      CEPA    claim          was   actually     a    wage      claim

preempted by section 301(a) of the Labor Management Relations

Act of 1947 (LMRA), 29 U.S.C.A. § 185(a), and the National Labor




                                            5                                       A-0886-13T1
Relations    Act       of    1935     (NLRA),         29    U.S.C.A.        §§   151-166.

Plaintiff, arguing this was error, appeals from the grant of

summary judgment and dismissal of his complaint.

                                          II.

    Our review of summary judgment dismissal is de novo, Dep't

of Envt'l Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div.

2007), according no special deference to a judge's determination

as a decision to grant or deny summary judgment does not hinge

upon credibility of testimony or determinations of fact, but

instead,    amounts     to    a     ruling       on   a    question    of    law.       See

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995) (noting that no "special deference" applies to a

trial court's legal conclusions).

    Employing the same standards used by the motion judge under

Rule 4:46, Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584

(2012), our review examines whether, affording the non-moving

party the benefit of all reasonable inferences, the movant has

demonstrated     there      were     no   genuine         disputes    as    to   material

facts.     Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.

Super.    224,   230    (App.       Div.),       certif.    denied,    189       N.J.   104

(2006).     If no genuine dispute exists, we then decide whether

the motion judge's application of law was correct.                           Id. at 231.

Our role is not to resolve contested factual issues, but to




                                             6                                    A-0886-13T1
determine whether a genuine factual dispute exists.                      Agurto v.

Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).                          See also

Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (quoting R. 4:46-2(c)

("A court should grant summary judgment only when the record

reveals 'no genuine issue as to any material fact' and 'the

moving party is entitled to a judgment or order as a matter of

law.'")).        If the court finds materially disputed facts, the

motion for summary judgment must be denied.                   Brill, supra, 142

N.J. at 540; see, e.g., Parks v. Rogers, 176 N.J. 491, 502

(2003).     Summary judgment dismissal may be granted only when the

evidence    is    found   to   be   "'so       one-sided   that   one   party   must

prevail as a matter of law[.]'"                 Brill, supra, 142 N.J. at 540

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106

S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

    On appeal, plaintiff argues the motion judge erroneously

concluded federal law preempted his CEPA claim.                   To successfully

prove a claim under CEPA, plaintiff must demonstrate:

            (1) that he . . . reasonably believed that
            his . . . employer's conduct was violating
            either a law or a rule or regulation
            promulgated pursuant to law; (2) that he
            . . . performed whistle-blowing activity
            described in N.J.S.A. 34:19-3a, c(1) or
            c(2); (3) an adverse employment action was
            taken against him . . . ; and (4) a causal
            connection  exists  between   the  whistle-
            blowing activity and the adverse employment
            action.




                                           7                               A-0886-13T1
           [Mosley v. Femina Fashions, Inc. 356 N.J.
           Super. 118, 127 (App. Div. 2002), certif.
           denied, 176 N.J. 279 (2003).]

    Plaintiff asserts he suffered unlawful retaliation based on

N.J.S.A.     34:19-3,    which   prohibits   retaliatory    conduct      for

disclosing    unlawful   activities.     CEPA   prohibits   such   conduct

stating in pertinent part:

           An employer shall not take any retaliatory
           action against an employee because the
           employee does any of the following:

           a.   Discloses, or threatens to disclose to
           a supervisor or to a public body an
           activity,   policy   or   practice  of   the
           employer, or another employer . . . that the
           employee reasonably believes:

           (1) is in violation of a law, or a rule or
           regulation promulgated   pursuant  to  law
           . . . ; or

           (2)   is fraudulent or criminal . . . ;

           b.    . . .; or

           c.   Objects to, or refuses to participate
           in any activity, policy or practice which
           the employee reasonably believes:

           (1) is in violation of a law, or a rule or
           regulation promulgated  pursuant   to  law
           . . . ;

           (2) is fraudulent or criminal, including
           any   activity,   policy   or   practice  of
           deception or misrepresentation . . . ; or

           (3) is incompatible with a clear mandate of
           public policy concerning the public health,
           safety or welfare or protection of the
           environment.



                                     8                             A-0886-13T1
         [N.J.S.A. 34:19-3.]

    The trial judge rejected plaintiff's complaint as framed,

instead finding the substance of plaintiff's claims regarding

matters preempted by federal law.       The doctrine of preemption is

based on the Supremacy Clause, which mandates "[t]he Federal

Constitution and federal laws are 'the supreme Law of the Land'

and 'Judges in every State [are] bound thereby; any Thing in the

Constitution     or   Laws   of   any     State   to   the    Contrary

notwithstanding.'"    Chamber of Commerce v. State, 89 N.J. 131,

141 (1982) (quoting U.S. Const., Art. VI, cl. 2).            Therefore,

where Congress intends to regulate an area or subject matter,

all state legislation frustrating that objective is displaced as

constitutionally subordinate.     See Malone v. White Motor Corp.,

435 U.S. 497, 504, 98 S. Ct. 1185, 1190, 55 L. Ed. 2d 443, 450

(1978) (quoting Retail Clerks Int'l Assoc., Local 1625, AFL-CIO

v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 223, 11 L. Ed.

2d 179, 184 (1963) ("The purpose of Congress is the ultimate

touchstone")).

    "Preemption analysis begins with identifying the subject

matter of the state law and determining whether . . . federal

law [operates] in that field."        Id. at 142 (citing      Hines v.

Davidowitz, 312 U.S. 52, 64-68, 61 S. Ct. 399, 402-404, 85 L.

Ed. 581, 587 (1941)).    A state law, which conflicts with federal



                                  9                            A-0886-13T1
legislation    governing       the   same    area,       must    yield   to    and   is

preempted     by    the    federal          authority,          thus,    eliminating

inconsistent state policies.            Ibid.        The question examined is

whether Congress intended to preempt the subject matter which is

addressed in the state legislation.                Int'l Longshoremen's Ass'n

v. Waterfront Comm'n, 85 N.J. 606, 612 (1981).

     "In the labor-management field, Congress has not expressly

provided    for    exclusive     federal         jurisdiction."          Chamber     of

Commerce,     supra,      89     N.J.       at     142     (footnote       omitted).

Nevertheless, Congress has exercised extensive authority as the

regulator of national labor policy and labor relations.                       Two such

provisions — section 301(a) of the LMRA and section 7 of the

NLRA — are cited by defendants as preempting plaintiff's alleged

state law claims.

     First, section 301(a) of the LMRA, states, in part:

            Suits for violation of contracts between an
            employer    and     a    labor     organization
            representing   employees    in    an    industry
            affecting   commerce   as   defined    in   this
            chapter,   or    between    any    such    labor
            organizations,   may   be    brought    in   any
            district court of the United States having
            jurisdiction of the parties, without respect
            to the amount in controversy or without
            regard to the citizenship of the parties.

            [29 U.S.C.A. § 185(a).]

"[Section] 301 requires the creation of uniform federal labor

law to ensure uniform interpretation of collective bargaining



                                        10                                    A-0886-13T1
agreements[.]"         Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d

428, 437 (D.N.J. 2011).

       Made    clear    by   the    Supreme     Court   of   the    United    States

(SCOTUS) in Textile Workers Union of America v. Lincoln Mills,

353 U.S. 448, 455-56, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957),

"[section 301(a)] is not merely jurisdictional, but . . . also

. . . calls on the federal courts to create a uniform federal

common    law    of    collective      bargaining,      with   the    primacy       of

arbitral resolution of industrial disputes as its centerpiece."

Voilas v. GMC, 170 F.3d 367, 372 (3d Cir. 1999).                     "[S]tate laws

that   might    produce      differing   interpretations       of    the   parties'

obligations      under       a     collective     bargaining       agreement       are

preempted."      Ibid.       Accordingly, "[w]hen 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,

that claim must either be treated as a [section] 301 claim or

dismissed as [preempted.]"             Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 220, 105 S. Ct. 1904, 1915, 85 L. Ed. 2d 206, 221

(1985) (internal citation omitted).                 SCOTUS has stressed that

the mere characterization of a claim as one "sounding in tort

rather than contract [does] not bar the operation of [section]

301 preemption and reasoned that preemption of the employee's

claim was necessary in order to avoid 'allowing parties to evade




                                         11                                  A-0886-13T1
the requirements of [section] 301 by relabeling their contract

claims as claims for tortious breach of contract.'"                              Voilas,

supra, 170 F.3d at 373 (quoting Allis-Chalmers, supra, 471 U.S.

at 211, 105 S. Ct. at 1911, 85 L. Ed. 2d at 215).

       Federal labor law also forbids state action focused on the

enforcement of collective bargaining agreements, because section

7 of the NLRA, grants employees "the right to self-organization,

to     form,    join,    or    assist     labor      organizations,        to   bargain

collectively . . . , and to engage in other concerted activities

for the purpose of collective bargaining or other mutual aid or

protection."        29 U.S.C.A. § 157.            Further, section 8 of the NLRA

prohibits acts constituting an unfair labor practice.3                            George

Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 25-27 (1994).

       Concisely, these provisions mandate that when examination

focuses        on   whether    the    alleged        state    law     claims     require

interpretation of the terms within the CBA, preemption applies.

This    requirement,      that       terms    set     forth      in   a   CBA   must    be

determined by federal law, avoids conflict as "[t]he possibility

that    individual      contract      terms       might   have    different     meanings

under state and federal law would inevitably exert a disruptive

influence       upon    both   the      negotiation        and    administration       of

3
     This is commonly known as the "Garmon pre-emption" as set
forth in San Diego Building Trades Council v. Garmon, 359 U.S.
236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959).



                                             12                                 A-0886-13T1
collective agreements."         Teamsters v. Lucas Flour Co., 369 U.S.

95, 103, 82 S. Ct. 571, 577, 7 L. Ed. 2d 593, 599 (1962).               Were

a   different   result   allowed,    "the   process    of   negotiating    an

agreement   would   be   made    immeasurably   more   difficult   by     the

necessity of trying to formulate contract provisions in such a

way as to contain the same meaning under two or more systems of

law which might someday be invoked in enforcing the contract."

Ibid.    Preemption assures the purposes driving federal law

            will be frustrated neither by state laws
            purporting to determine "questions relating
            to what the parties to a labor agreement
            agreed, and what legal consequences were
            intended to flow from breaches of that
            agreement," nor by parties' efforts to
            renege on their arbitration promises by
            "relabeling" as tort suits actions simply
            alleging breaches of duties assumed in
            collective bargaining agreements[.]

            [Livadas v. Bradshaw, 512 U.S. 107, 123, 114
            S. Ct. 2068, 2078 (1994), 129 L. Ed. 2d 93,
            109 (internal citations omitted).]

      However, we do not read the provisions of the LMRA and NLRA

so broadly as "to [preempt] nonnegotiable rights conferred on

individual employees as a matter of state law[.]"              Id. at 123,

114 S. Ct. at 2079, 129 L. Ed. 2d at 109.

            [I]t is the legal character of a claim, as
            "independent" of rights under the collective
            bargaining agreement (and not whether a
            grievance arising from precisely the same
            set of facts could be pursued) that decides
            whether a state cause of action may go
            forward.



                                     13                            A-0886-13T1
              [Ibid. (internal         citation         and        quotation
              marks omitted).]

"[W]hen the meaning of contract terms is not the subject of

dispute, the bare fact that a [CBA] will be consulted in the

course of [state law] litigation plainly does not require the

claim to be extinguished[.]"                 Ibid.      (citing Lingle v. Norge

Div. of Magic Chef, 486 U.S. 399, 413 n. 12, 108 S. Ct. 1877,

1884, 100 L. Ed. 2d 410, 423 (1988) ("A collective bargaining

agreement may, of course, contain information such as rate of

pay . . . that might be helpful in determining the damages to

which a worker prevailing in a state-law suit is entitled")).

      Finally, if a plaintiff's claim implicates both federal and

state     law     such     that    "evaluation         of     the     tort     claim    is

inextricably intertwined with consideration of the terms of the

labor contract," the state claim is preempted.                         Allis-Chambers

Corp., supra, 471 U.S. at 213, 105 S. Ct. at 1912, 85 L. Ed. 2d

at 216.     It is only when resolution of the state law claim does

not     require    interpretation       of       the   CBA     that    preemption       is

inapplicable.          Labree v. Mobil Oil Corp., 300 N.J. Super. 234,

239   (App.     Div.     1997)    (citing    Leonardis        v.    Burns    Int'l     Sec.

Servs. Inc. 808 F. Supp. 1165, 1175 (D.N.J. 1992)).

      In light of these principles we examine plaintiff's claimed

causes of action.         In his complaint, plaintiff avers he




                                            14                                   A-0886-13T1
            seeks unpaid overtime compensation, the
            difference between actual wages paid and
            wages due pursuant to the PWA on public
            works jobs and seeks to remedy a retaliatory
            discharge which occurred after he made a
            good faith complaint of wage violations to
            his employer and after he disclosed wage
            violations to a state inspector.

The complaint further alleges plaintiff worked more hours than

he was compensated for, "was entitled to a larger differential"

than the sum actually remitted based on his proper rate of pay,

and maintains his employment ended when he was "'laid off' . . .

despite the fact he had more seniority with the company than

other employees who were not laid off and who remained employed

. . . ."       Specifically as to this last issue, plaintiff argues

his seniority status should have allowed him to continue to

work, but instead, Elk ended his employment in retaliation for

his whistle-blower activities.

    Provisions within the CBA address the subject of employee

wages,   pay    rates,   overtime,    and   seniority.      Specifically,

Article V, entitled "Wage Rate," includes the hourly rates and

classifications for all employees covered by the agreement and

Articles VI and VII address the "regular hour[s] of work and the

determination and rate of computation of overtime pay."                    In

addition to discussing compensation for weekends and holidays,

these      sections      discuss     various      scenarios       requiring

differentiated      compensation.         Most   apt   to   the    asserted



                                     15                            A-0886-13T1
retaliation      claim,   however,   is   Article    VIII,    which   governs

seniority   and     lay-offs.     This    clause    defines   seniority     for

purposes of layoffs weighing not just objective factors, such as

length of service, but also by considering subjective factors to

determine     who    retains     employment    based     upon    seniority.

Specifically, Article VIII provides:

            The Company agrees to base the seniority of
            employees on length of service.   Length of
            Service is based on actual time spent with
            the Company. In all cases of promotion,
            demotion, lay-off, recalls and bumping, the
            following  factors   shall  be  considered,

            1.   Employee's classification.

            2.   Knowledge, ability, skill and efficiency,
                 to perform the available work.

            3.   Qualifying     tests,    certification,      and
                 license.

                When all factors are relatively equal,
            the length of continuous service shall
            govern.

    Contrary to plaintiff's suggestion, Elk's assessment of his

seniority status, as compared to that of his colleagues who

continued working, can only be reviewed by an analysis of the

CBA's factors.      Plaintiff's attempt to limit review exclusively

to whether he engaged in protected whistle-blower activities for

which he was laid off ignores that the project neared completion

causing Elk to trim labor based upon seniority, a defined term

of art under the CBA.           Thus, this issue cannot be evaluated



                                     16                               A-0886-13T1
absent review, consideration, and interpretation of the CBA and

its terms.

       Plaintiff,     himself,         confirmed       this        reality      during         his

deposition.          When      asked          why     he      contacted            his      union

representative after his layoff, plaintiff explained "I had more

seniority than everybody on the job except for the operator, so

I should have been the last one to leave and that's a union

matter."      This statement exposes plaintiff's reliance on his

rights as provided by the CBA and betrays his attempt to rebrand

the    contract     contention         into    a     CEPA     claim.          We    determine

plaintiff    has    injected       a    right       created    by       his   CBA,       thereby

pleading     what    can    only       "be    regarded        as    a    federal         claim."

Snyder, supra, 837 F. Supp. 2d at 445, n. 9.

       We also find plaintiff's contention that his complaint does

not allege a breach of the CBA terms or even implicate the

agreement is belied by the facts.                    By maintaining he was wrongly

laid   off   and    should    have       continued          working      because         he    had

seniority, plaintiff inherently invokes interpretation of the

CBA.    Thus, preemption applies.                  See Snyder, supra, 837 F. Supp.

2d at 438 (holding section 301 does not apply solely to contract

violations    but     extends      to    tort        action    if       their      resolution

depends upon "the meaning of a phrase or term in a collective

bargaining agreement").                As SCOTUS noted in Livadas, federal




                                              17                                         A-0886-13T1
preemption under section 301 will not be thwarted by "parties'

efforts to renege on their arbitration promises by 'relabeling'

as tort suits actions simply alleging breaches of duties assumed

in collective bargaining agreements."                 Livadas, supra, 512 U.S.

at 123, 114 S. Ct. at 2078, 129 L. Ed. 2d at 109.

       Following      our    review,   we    cannot     accede    to   plaintiff's

request to allow the CEPA claim to proceed.                        Judge McMaster

fully analyzed the facts and law applicable to this issue, and

properly determined plaintiff's complaint contained allegations

inextricably intertwined with his rights delineated in the CBA.

Therefore, the claims were properly held preempted by federal

law.

       Defendant      additionally      asserts       plaintiff's      claims     are

preempted by SCOTUS's holding in Garmon, supra, 359 U.S. at 244,

79 S. Ct. at 779, 3 L. Ed. 2d at 782, which considered sections

7   and   8   of   the     NLRA.    Plaintiff    disagrees,       maintaining     his

claims are premised on whether he was retaliated against for

complaining        about    wage   deductions,    and    not     for   engaging   in

"concerted activity" under the NLRA.

       As we noted, section 7 states:

              Employees shall have the right 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



                                        18                                 A-0886-13T1
            bargaining            or        other        mutual          aid     or
            protection.

            [29 U.S.C.A. § 157.]

Section      8        prohibits        employers          from           interfering        with,

restraining, or coercing employees in the exercise of the rights

guaranteed       in    section     7,       or    from    acting          to    "discharge       or

otherwise discriminate against an employee because he has filed

charges or given testimony under this subsection."                                    28 U.S.C.

§ 158.

    In     Garmon,       SCOTUS    instructed            "when      it    is    clear     or   may

fairly be assumed that the activities which a State purports to

regulate    are       protected        by   section       7    of    the       National     Labor

Relations    Act,       or   constitute          an   unfair        labor      practice     under

section 8, due regard for the federal enactment requires that

state jurisdiction must yield."                   Garmon, supra, 359 U.S. at 244,

79 S. Ct. at 779, 3 L. Ed. 2d at 782.                         The burden rests with the

party    asserting       preemption,         who      "'must        []    put    forth    enough

evidence to enable the court to find that the [National Labor

Relations] Board reasonably could uphold a claim based on such

an interpretation.'"              Voilas, supra 170 F.3d at 379 (quoting

Int'l Longshoremen's Ass'n v. Davis, 476 U.S. 380, 395, 106 S.

Ct. 1904, 1916, L. Ed. 2d 389, 405 (1986)).

            [T]here is no suggestion in the legislative
            history of the [NLRA] that Congress intended
            to disturb the myriad state laws then in



                                                 19                                      A-0886-13T1
           existence that set minimum labor standards,
           but were unrelated in any way to the
           processes     of    bargaining    or   self-
           organization.    To the contrary, we believe
           that Congress developed the framework for
           self-organization and collective bargaining
           of the NLRA within the larger body of state
           law promoting public health and safety
           . . . .      States possess broad authority
           under their police powers to regulate the
           employment relationship to protect workers
           within the State.

           [Metro. Life Ins. Co. v. Mass., 471 U.S.
           724, 756, 105 S. Ct. 2380, 2397-98, 85 L.
           Ed. 2d 728, 750-51 (1985), overruled in part
           by Ky. Ass'n of Health Plans v. Miller, 538
           U.S. 329, 341, 123 S. Ct. 1471, 1479, 155 L.
           Ed. 2d 468, 481 (2003) (internal quotation
           marks omitted).]

Nevertheless, Garmon precludes "state courts from entertaining

tort actions for activities arguably subject to the protections

of   [section]    7   or   the   prohibitions     of    [section]    8   of    the

National   Labor      Relations    Act."       Blum     v.    Int.   Assoc.     of

Machinists, AFL-CIO, 42 N.J. 389, 398 (1964).

      Centering our review of the facts underpinning plaintiff's

allegations,     we   do   not   agree   the   NLRA    is    inapplicable.       An

analysis of plaintiff's retaliatory discharge claim shows it is

not limited to his report of Elk's wrongful payment practices.

The claim does not stand alone and is not unrelated to the CBA.

Rather, it is grounded on a violation of plaintiff's seniority

status, as defined in the CBA, a negotiated provision governing




                                         20                              A-0886-13T1
his   employment,   and   thus,   invoked   provisions    of   the   NLRA,

requiring administrative review by the NLRB.4

      Our review concludes plaintiff's claims are preempted by

federal   labor   laws.    Accordingly,     plaintiff's   complaint    was

properly dismissed.

      Affirmed.




4
     We   conclude  the  record  is   insufficient  to  address
defendant's assertion plaintiff engaged in a concerted activity
as provided in the NLRA.



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