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Covered by CBA, Employee’s State Law Whistleblower Claim Preempted by Federal Law, New Jersey Court Rules

An employee represented under a collective bargaining agreement (“CBA”) is barred from claiming whistleblower retaliatory discharge under the New Jersey Conscientious Employee Protection Act (“CEPA”) against his employer where his claim necessitates an interpretation of the CBA, the Superior Court of New Jersey, Appellate Division has ruled. Puglia v. Elk Pipeline, Inc., et al., No. A-0886-13T1 (N.J. Super. Ct. App. Div. Oct. 10, 2014). The appellate court determined the plaintiff’s claim involved issues addressed in the CBA and covered by the National Labor Relations Act (“NLRA”), requiring administrative review by the National Labor Relations Board. Accordingly, the Court affirmed the trial court’s grant of summary judgment and dismissed the complaint. 


The plaintiff, Salvatore Puglia, was employed by Elk Pipeline from October 2, 2006, to December 16, 2010. He was assigned to work on a sewer reconstruction project, a public works project as defined in the New Jersey Prevailing Wage Act (“PWA”). In January 2010, Puglia complained that his hourly rate of pay was reduced to less than the prevailing wage, in violation of the PWA. His wage rate was restored.

On December 16, 2010, Puglia’s employment on the project ended. His supervisor explained that he was being laid off as the project neared completion and was being reassigned. Puglia never reported to his newly assigned location.

Subsequently, Puglia sued the employer, claiming he was laid off in retaliation for his PWA complaint, in violation of the CEPA. He also claimed he should not have been laid off due to his seniority under the CBA. Finding Puglia’s claims were based on an interpretation of the parties’ CBA and must be addressed under federal law, trial court grant of summary judgment to the employer.

State Law Preempted

The appellate court determined that whether Puglia was properly laid off called for an interpretation of the language of the CBA and was governed by the federal NLRA. The Court noted that the CBA addressed wages, pay rates and seniority, including factors to be considered in layoffs. The employee’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,” and that by “maintaining he was wrongly laid off and should have continued working because he had seniority, [he] inherently invokes interpretation of the CBA. Thus preemption applies,” the Court reasoned. 

The three-judge panel concluded the employee’s whistleblower allegations were “inextricably intertwined” with his rights delineated in the CBA, and, therefore, invoked provisions of the NLRA, requiring administrative review by the National Labor Relations Board.

Often called the most employee-friendly whistleblower law in the country, CEPA protects employees from retaliation for opposing or disclosing any unlawful activity. Any employer facing discrimination or retaliation claims under the state law should consider Puglia in defending those claims where the employee’s claims involve interpretation of a CBA, such as laid off or termination decisions. 

Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 300

About this Author

David Walsh, Employment Attorney, Jackson Lewis Law Firm

David M. Walsh is a Shareholder in the firm’s Morristown, New Jersey office. 

Mr. Walsh concentrates his practice on litigation and has experience representing employers in many types of matters, including restrictive covenant matters, defense of harassment and retaliation claims, defense of whistleblower claims, and counseling concerning employee discipline issues.  He is a member of the firm’s Non-Compete Practice Group and frequently counsels clients regarding non-compete, non-solicitation, and confidentiality issues and the implementation of...

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