discharge "is contrary to the clear mandate of public policy." (No other public policy than that evinced by 34:15-39.1 is proposed.) Count three alleges that the termination is violative of N.J.S.A. 34:15-44, a provision limited by its terms to public employees. Count four is a claim under 42 U.S.C. § 1983, and count five likewise is a generalized claim of constitutional deprivations. Finally, count six is a demand for punitive damages.
The defendant has moved for summary judgment on all six counts of the complaint.
The defendant argues that counts four and five of the complaint should be dismissed because there was no state action implicated in the decision to discharge plaintiff. The plaintiff now concedes the point, and these counts, therefore, will be dismissed. The plaintiff also concedes that N.J.S.A. 34:15-44 is inapplicable, as he was not a public employee, and this count will also be dismissed.
That leaves counts one and two. Initially, the court must address briefly the question of subject matter jurisdiction, since the federal constitutional claims have been dismissed. Ordinarily, federal jurisdiction in an employer-employee dispute where there is in place a collective bargaining agreement may be grounded in § 301 of the Labor-Management Relations Act (LMRA). Here, however, the plaintiff's suit is not based on any collective bargaining agreement; indeed, it is predicated on the availability of extra-contractual causes of action. Accordingly, § 301 does not furnish the jurisdictional basis for suit. It would appear, however, that the court may exercise diversity jurisdiction over counts one and two. Although the face of the complaint does not demonstrate diversity, the later submissions of the parties satisfy the court that diversity exists, and the court will proceed on that basis.
In Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (1981), the New Jersey Supreme Court held that an employee who has been discharged in retaliation for claiming workmen's compensation benefits has a common law right of action for wrongful discharge. The cause of action for wrongful discharge had been recognized by the court the previous year in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980).
The defendant agrees that a violation of N.J.S.A. 34:15-39.1 gives rise to an action pursuant to Pierce. But, the defendant argues, Pierce only provides a remedy for at-will employees, otherwise unprotected against discharge, and has no application to employees covered by a collective bargaining agreement. Employees of the latter category, it is argued, must pursue their contractual remedies and resort initially to arbitration if the contract so provides.
We first address the applicability of the Pierce wrongful discharge doctrine to the plaintiff, an employee covered by a collective bargaining agreement. The Pierce court held that "an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." 84 N.J. at 72. The court stated that such a cause of action could be maintained in contract -- predicated on the breach of an implied provision prohibiting the discharge of an employee who refused to perform an act that violates public policy -- or in tort-- based on a duty of the employer not to discharge an employee under such circumstances. Id. Under the latter theory, punitive damages are available. Id.
The decision in Pierce involved an at-will employee, and the entire discussion leading up to the holding dealt with the need to provide some protections for at-will employees; that is, employees who could be terminated with or without cause at any time, due to the absence of contractual provisions restricting termination to "just cause" or otherwise providing a definite term of employment. The decision is predicated, it seems, on the absence of any other remedies for this class of employees and the realization that, in limited circumstances, there must be limits to an employer's authority over its employees.
Thus, courts (albeit not yet the courts of New Jersey) have frequently held that the existence of a statutory remedy for redress of a violation of public policy (for example, race or sex discrimination) precludes the injured employee from asserting a common law wrongful discharge claim. See, e.g., Bonham v. Dresser Industries, 569 F.2d 187, 195 (3d Cir. 1977); Wehr v. Burroughs Corp., 438 F. Supp. 1052, 1054 (E.D. Pa. 1977); Wolk v. Saks Fifth Avenue, 728 F.2d 221 (3d Cir. 1984).
The defendant argues that, likewise, the existence of a contractual remedy bars the employee from asserting the common law claim. It appears that the New Jersey Supreme Court has not yet addressed this issue, and so we must predict what its decision would be.
Taking into account the premises on which Pierce is based, this court agrees that one whose employment is governed by a collective bargaining agreement prohibiting discharge except for "just cause " may not invoke the common law cause of action. Such an employee is not in need of the protections established in Pierce, because he already has these protections, and more. "Just cause," whatever else it incorporates, is surely broad enough to incorporate a prohibition on terminations violative of clear mandates of public policy; i.e., retaliatory terminations.
Moreover, to permit one to maintain an action for wrongful discharge may allow the employee to circumvent the procedures for dispute resolution which the parties to the agreement have bargained for. Cf. Bruffett v. Warner Communications, 692 F.2d 910, 919 (3rd Cir. 1982) (rejecting wrongful discharge claim, where to permit claim would allow one to circumvent the statutory remedy). In the instant case, the collective bargaining agreement contains a grievance procedure culminating in arbitration. The employer, we believe, has a right to rely on that procedure, exclusive of any other, for any disputes arising under the agreement.
The plaintiff argues, however, that the language of Pierce should be read to permit a wrongful discharge claim even where there exists a contract remedy. Reliance is placed on the following statement:
Our holding [recognizing the cause of action] should not be construed to preclude employees from alleging a breach of the express terms of an employment agreement.