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HERRING v. PRINCE FOODS-CANNING DIV.

June 12, 1985

LYNWOOD J. R. HERRING, Plaintiff,
v.
PRINCE FOODS-CANNING DIVISION, Defendant



The opinion of the court was delivered by: GERRY

 GERRY, District Judge.

 The plaintiff was an employee of the defendant. On March 8, 1983, plaintiff was injured during the course of his employment. Shortly thereafter, Mr. Herring began receiving workmen's compensation benefits. On July 12, 1984, the complaint alleges, the defendant was notified by plaintiff's doctor that plaintiff could return to work on August 1, 1984. On July 16, 1984, however, the defendant sent plaintiff a telegram informing him that he had been discharged. (The defendant alleges that it had earlier communicated this information via registered mail -- in mid-June, prior to learning of plaintiff's intention to return to work -- but that plaintiff had not picked up the letter, and it had been returned unopened.) From the time plaintiff first left work until his discharge, he was out of work approximately 16 months.

 During his employment with Prince Foods, the plaintiff was a member of the Prince Employees' Union, and his relationship with Prince Foods was covered by a series of collective bargaining agreements. The agreement in effect at the time of plaintiff's accident provided that Prince could discharge employees for "just and proper cause." On August 1, 1983, a new agreement went into effect. This agreement also contained a "just cause" provision. It also contained the following provision:

 
An employee's seniority shall terminate and he shall no longer be considered an employee upon. . . .
 
Absence of 12 consecutive months in the case of an industrial illness or accident arising out of or in the course of employment with the employer herein.

 The defendant relied on this provision in discharging the plaintiff. The plaintiff alleges, however, that his discharge was actually in retaliation for his having collected workmen's compensation benefits.

 The plaintiff has filed a six count complaint. The plaintiff alleges in count one that the retaliatory discharge is violative of N.J.S.A. 34:15-39.1, which makes it unlawful to discharge an employee because he has claimed or attempted to claim workmen's compensation benefits. *fn1" Count two is substantially identical to count one and alleges in more general terms that the retaliatory 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 ...


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