Tag: National Labor Relations Act

LABORER’S NEW JERSEY WHISTLEBLOWER CLAIM NOT PREEMPTED BY FEDERAL LAW AND BELONGS IN STATE COURTS

Last week, the Supreme Court of New Jersey held that the state court had jurisdiction over a worker’s whistleblower lawsuit, rejecting the defendant’s argument that that National Labor Relations Board had jurisdiction.  In this case, Plaintiff Salvatore Puglia worked as a laborer for Elk Pipeline, Inc.   In 2010, he worked on a public sewer reconstruction project for the city of Camden which was subject to the New Jersey Prevailing Wage Act.

He and another worker noticed that their wage rate was significantly decreased, causing Puglia to complain to the project manager and the Company’s president.  Although the Company restored the prevailing wage rate and paid back pay to affected employees, Puglia stated that he was not paid the full amount owed to him.  He was laid off in December 2010 because, according to the Company, less onsite laborers were needed on the project since it was “winding down.”

Puglia filed a complaint in state court alleging violations of the Prevailing Wage Act and the New Jersey whistleblower law called the Conscientious Employee Protection Act (CEPA).  The Prevailing Wage Act claim was settled, and pursuant to the remaining CEPA claim, plaintiff alleged that he was terminated due to his complaints regarding the Company’s failure to pay him proper wages.

Elk Pipeline argued that the CEPA claim was preempted by federal laws, namely the National Labor Relations Act and the Labor Management Relations Act, because there was a Collective Bargaining Agreement (CBA) in place and Puglia’s claims were founded on rights created in the CBA.  The trial court agreed with the Company. Puglia appealed and the Appellate decision affirmed the trial court’s decision.  The Appellate Division held that the CBA was related to the CEPA claim because the work was winding down, “causing Elk to trim labor based upon seniority, a defined term of art under the CBA,” which could not be reviewed without interpretation of the CBA.   Puglia again appealed to the New Jersey Supreme Court.

The Supreme Court reversed the lower court’s decision in favor of Puglia.  In sum, a unanimous court held that whether Puglia performed a whistle blowing activity when he complained about his pay under the Prevailing Wage Act and whether he was fired because of his complaint are factual questions that are unrelated to the interpretations of the CBA and employee rights contained therein.  The court explained that CEPA created independent rights and his “CEPA cause of action is unaffected by whether the CBA was violated.”

The court also added that the Puglia could have sought relief based on provisions in the CBA, such as those relating to wages or seniority, but the court reasoned that the CBA-based claims would not make a CEPA claim depend on the CBA.  The court stated, “[Puglia] is asking our court to enforce his rights under CEPA, independent and apart from his bargained-for employment conditions.  That, our courts can do.”

PANASONIC RESCINDS CONFIDENTIALITY RULES

The National Labor Relations Board (NLRB) recently approved an agreement between the National Employment Lawyers Association (NELA), an organization that exclusively represents employees involving employment-related matters, and Panasonic Corporation of North America regarding the Company’s confidentiality rules.

The Company agreed to rescind its policies restricting employees’ ability to communicate with others about their working conditions and other protected activity.  Specifically, the policies had interfered with employees’ rights to communicate about workplace grievances, seek legal advice or engage in other concerted activity, which violates the National Labor Relations Act (NLRA).  The Company also was required to post notices, that must be visible for 60 days in all of Panasonic’s Newark, New Jersey locations, that states that the Company “will not maintain or enforce language” in its employee handbook or other policies.

Claudia Reis, president of NELA’s New Jersey division, said in a statement, “By negotiating the settlement on behalf of NELA-NJ, the NLRB has sent a clear message to employers that it will enforce the protections of the [NLRA] that allow employees to discuss working conditions, and to advance their interests as employees, without unlawful interference from employers through sweeping confidentiality policies.”

NLRB RULES THAT EMPLOYEES HAVE RIGHT TO SEEK ASSISTANCE FROM CO-WORKERS IN HARASSMENT CLAIMS UNDER THE NLRA

On Monday, the NLRB ruled that an employee of Fresh & Easy Neighborhood Market had the right to solicit assistance under the National Labor Relations Act from co-workers in support of her sexual harassment claim.  The employee in this case was trying to find support for her individual sexual harassment claim by asking co-workers to provide evidence on her behalf.

  The employer was conducting it’s own investigation and asked the employee to stop collecting statements from co-workers.

In order for conduct to be protected under the NLRA, an employee must show that he or she was engaging in “concerted” (group) activity for the “mutual aid and protection” of others, rather than just to benefit his or her self.  In this case, the National Labor Relations Board found that this employee’s conduct was protected and held that an employee’s subjective intent is irrelevant in determining whether the conduct is concerted or for mutual aid or protection. 

Rather, the NLRB focused on whether there was a “link between the activity and matters concerning the workplace or employees’ interests as employees.”  As such, because the employee here attempted to get others to help her in her complaint against the company and attempted to stop sexual harassment at the company, the NLRB held that there was, in fact, group action for the mutual aid and protection of others.

This ruling reinforces the important point that the National Labor Relations Act protects not only union activity but also attempts by any employee to obtain the assistance of another employee regarding their employment conditions in the workplace.