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October 30, 1987

Ramona Cole, Plaintiff,
Pathmark Of Fairlawn, Supermarkets General Corporation, and Thomas Caffrey, Defendants

The opinion of the court was delivered by: BISSELL

 Plaintiff Ramona Cole ("Cole") filed a complaint against defendants Pathmark of Fairlawn ("Pathmark"), her former employer, Supermarkets General Corporation ("Supermarkets General"), the parent corporation of Pathmark, and Thomas Caffrey ("Caffrey"), a security guard at Pathmark alleging several claims arising out of her arrest for shoplifting in the store and the subsequent termination of her employment. This action, originally filed in the Superior Court of New Jersey, was removed to federal court by defendants Pathmark and Supermarkets General which alleged that this court had original jurisdiction over this matter under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Presently before the Court is defendants' Pathmark and Supermarkets General's ("the Pathmark defendants") motion to dismiss or in the alternative for summary judgment.


 At the time of the incident underlying this action, plaintiff was employed as a cashier at Pathmark. After completing her shift on November 13, 1984, Cole remained in the store and went shopping. She stopped at the Service Center, where higher-priced items were kept, and began to examine an aromatic disc player. Items kept at the Service Center are usually paid for at the Service Center, however, plaintiff alleges that with the cashier's permission she carried the item away from the counter with the intention of paying for it "up front." Cole claims that she then noticed her boyfriend, for whom the disc player was to be a gift, come into the store, so she hid it under her smock. Plaintiff then placed the merchandise down in a different aisle.

 Defendant Caffrey, the store security guard, subsequently detained Cole in the store manager's office for shoplifting. After questioning, plaintiff agreed to sign an apology as well as a general release. The police were then called and Cole was arrested and charged with theft. Plaintiff was ultimately found not guilty of shoplifting.

 On November 15, 1984, Cole was informed by her union representative that she had been terminated and that nothing could be done until after her case went to trial. Following her acquittal, a meeting was arranged between the plaintiff, the union representative and Pathmark officials. At this meeting in October 1985, defendants rejected her request for reinstatement, backpay and attorney's fees. It is undisputed that after this meeting, Cole was told by her union representative that the union could do nothing more for her. Plaintiff instituted this action in state court on November 18, 1986.

 In her complaint, Cole alleges that defendants falsely imprisoned her (First Count) and then instigated and/or instituted criminal proceedings against her without probable cause (Second Count). In addition, she claims that the Pathmark defendants breached her employment contract when they terminated her without good cause, notice or a hearing (Third Count). Finally, Cole contends that defendant Caffrey, with malice and without probable cause, initiated her false arrest, malicious prosecution and wrongful discharge, thereby tortiously interfering with her business relationship and contractual rights with Pathmark and Supermarkets General (Fourth Count). Since these actions of defendant Caffrey were committed both in his individual capacity and as an agent and employee of the other defendants, Cole claims that Pathmark and Supermarkets General are liable for tortious interference with her contract rights under the theory of respondeat superior (Fourth Count).


 In their present motion, the Pathmark defendants assert several grounds for dismissal and/or summary judgment. First, they argue that plaintiff's tort claims are preempted by § 301 of the Labor-Management Relations Act and accordingly, her remaining § 301 claim is time barred under the applicable six-month statute of limitations. These defendants also assert that Cole cannot maintain the present action for breach of the collective bargaining agreement because (1) she cannot establish that the union breached its duty of fair representation, (2) Pathmark acted in accordance with the terms of the collective bargaining agreement, and (3) she has failed to exhaust her remedies under the grievance procedures of the collective bargaining agreement. In addition, the Pathmark defendants contend that plaintiff's common law tort claims are barred by the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 et seq., and her claim for false imprisonment must be dismissed because there was probable cause to arrest her for shoplifting.

 The Notice of Motion to Dismiss or for Summary Judgment filed by the defendants states that they shall rely on their brief as well as deposition transcripts and affidavits. Plaintiff Cole has opposed the present motion with similar supporting materials. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, defendants' motion will be addressed as a motion for summary judgment.

 A. Preemption

 Defendants assume that the Third Count of plaintiff's complaint, which alleges a claim for breach of her employment contract, states a claim under § 301 of the Labor Management Relations Act ("LMRA") for breach of a collective bargaining agreement. This assumption is based on the fact that at the time of her discharge, plaintiff was a member of Local 1262 and the terms and conditions of her employment were governed by a collective bargaining agreement between the union and her employer. In the present motion, defendants also assert that plaintiff's tort claims arise out of her termination from employment and are thereby preempted by federal labor law.

 In opposition to the present motion, plaintiff contends that her claim for damages arising out of the alleged breach of her employment contract is not subject to the jurisdiction of the LMRA, nor covered by the terms of the collective bargaining agreement, because it was an exercise of managerial discretion. *fn1" She also argues that her tort claims are not preempted by federal labor law since these causes of action exist independently of the collective bargaining agreement.

 Section 301 of the LMRA provides federal jurisdiction for suits alleging violations of contracts between an employer and a labor organization representing employees. 29 U.S.C. § 185(a). *fn2" It is well established that a suit brought by an individual employee against his employer for breach of a collective bargaining agreement is among the class of cases that falls within the purview of § 301. Smith v. Evening News Assn., 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267 (1962); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981); DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983).

 In the Third Count of plaintiff's complaint, she alleges

2. On or about November 13, 1984, plaintiff Ramona Cole was a member of UFW Local 1262 of the AFL-CIO and, as such, was subject to an agreement between the said union and the defendants Pathmark and Supermarkets General Corporation.
* * *
4. In contravention of her contractual and legal rights plaintiff was fired without good cause. . . .

 Complaint at 4. Plaintiff's assertion that this claim for damages for defendants' breach of her employment contract does not arise under § 301 of the collective bargaining agreement is clearly contrary to the Supreme Court's statements as to § 301's preemptive effect.

 Preemption under § 301 was addressed by the Supreme Court in Avco Corp. v. Aero Lodge No. 735, Int'l Assn. of Machinists and Aerospace Workers, 390 U.S. 557, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968), which decision, the Court later explained, affirmed

 Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985). Thus, it is plain that in the present case, plaintiff's ...

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