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Lepore v. National Tool and Manufacturing Co.

Decided: April 11, 1988.

VINCENT LEPORE, PLAINTIFF-APPELLANT,
v.
NATIONAL TOOL AND MANUFACTURING COMPANY, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Union County.

Pressler, Muir, Jr. and Conley. The opinion of the court was delivered by Conley, J.s.c. (temporarily assigned).

Conley

This is an appeal by a union employee from a summary judgment dismissing his state court retaliatory discharge complaint against his former employer. It raises three significant issues not previously addressed in this State: (1) whether there exists a tort remedy for the discharge of a union employee in retaliation for reporting workplace safety violations to the Occupational Safety and Health Administration; (2) whether state court litigation of such retaliatory discharge is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (LMRA); (3) whether state court litigation of such retaliatory discharge is preempted by the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (OSHA). We hold that an employee under a collective bargaining agreement may seek redress in our courts for a discharge in retaliation for reporting workplace safety violations. We further hold that a tort remedy for such retaliatory discharge is not preempted by either LMRA or OSHA.

Plaintiff was employed by defendant National Tool and Manufacturing Company (hereinafter National) for two years before his discharge in April 1983 and had, prior thereto, received both a merit raise and a contractual increase. In his complaint, the allegations of which must be accepted as true, he alleges that after being on the job for about a year and a half he noticed that defendant's plant was being operated in an unsafe manner and reported the conditions to OSHA. Upon inspection, OSHA found several violations and ordered National to correct them. The complaint further alleges that when National learned plaintiff was the "whistle-blower", it took reprisal action against him, first by demoting him to an inferior position outside his job classification and then discharging him. The collective bargaining agreement then in effect protected an employee such as plaintiff from discharge or discipline without

just cause and provided for final and binding arbitration.*fn1 Plaintiff filed a grievance pursuant to Art. VII of the contract, alleging that his discharge was without just cause.*fn2 Plaintiff also filed complaints of retaliatory discharge with the National Labor Relations Board and OSHA.*fn3

In March 1984 plaintiff filed a complaint in the Law Division seeking compensatory and punitive damages. The complaint asserts that the actions of National in retaliation for reporting OSHA violations contravene both federal and state public policy. National filed a motion to dismiss or, in the alternative, for summary judgment contending the state tort cause of action was preempted by § 301 of LMRA. The motion was initially denied. Following the subsequent decision of the Supreme Court of the United States in Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985), National successfully renewed its motion. Concluding that Allis was dispositive, the trial court held § 301 preempted plaintiff's cause of action. The court also concluded that even were there

no preemption, contractual binding arbitration would be plaintiff's exclusive remedy.

I

We have not been hesitant in recognizing a common-law tort remedy for an employee whose discharge contravenes state law or public policy. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). This has been particularly so where the discharge is in retaliation for the exercise of state rights and obligations. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988) (discharge of at-will employee in retaliation for requesting information relevant to suspected employment discrimination); Lally v. Copygraphics, 173 N.J. Super. 162 (App.Div.1980), aff'd 85 N.J. 668 (1981) (discharge of at-will employee in retaliation for filing workers' compensation claim); Kalman v. Grand Union Co., 183 N.J. Super. 153 (App.Div.1982) (discharge of at-will pharmacist in retaliation for keeping pharmacy open contrary to employer's directive but as required by state rules). The question we must address here is whether a discharge in retaliation for reporting workplace safety violations is such a discharge and, if so, whether a tort remedy exists for an employee under a collective bargaining agreement as well as for an at-will employee.

The right of all employees to safe and healthy working conditions is a matter of significant public concern and is guaranteed by both federal and state laws. On the federal level, the Occupational Health and Safety Act of 1970, 29 U.S.C. § 651 et seq., expresses congressional concern over a safe and healthy workplace for all workers. 29 U.S.C. § 651(b). It also reflects an awareness that workplace safety is a matter of substantial local interest as well. Thus, pursuant to 29 U.S.C. § 651(b)(11), states are encouraged "to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws . . ." and are expressly authorized to regulate health and safety of its workers provided

that state standards are at least as vigorous as those required under OSHA. 29 U.S.C. § 667; 29 U.S.C. § 667(c)(2).

On the state level, the Legislature has enacted the Worker Health and Safety Act, N.J.S.A. 34:6A-1 et seq., and the New Jersey Public Employees' Occupational Safety and Health Act, N.J.S.A. 34:6A-25 et seq., to ensure safe and healthy work environment. Guaranteeing to every worker the right to a safe place of employment, N.J.S.A. 34:6A-3 provides:

"Every employer shall furnish a place of employment which should be reasonably safe and healthful for employees. Every employer shall install, maintain and use such employer protective devices and safeguards . . . as are reasonably necessary to protect the life, health and safety of employees, with due regard for the nature of the work required."

Indeed, this has long been a right protected by common law. Clayton v. Ainsworth, 122 N.J.L. 160 (E. & A.1939); Davis v. N.J. Zinc Co., 116 N.J.L. 103 (E. & A.1936); Burns v. Delaware and Tel. Co., 70 N.J.L. 745 (E. & A.1904); McDonald v. Standard Oil Co., 69 N.J.L. 445 (E. & A.1903); Canonico v. Celanese Corp. of America, 11 N.J. Super. 445 (App.Div.1951), certif. den. 7 N.J. 77 (1951); Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516 (Ch.Div.1976). Thus, when the Worker and Health Safety Act was enacted, the Legislature was careful to provide that it was not intended to affect in any way "any right or remedy . . . existent at common law." N.J.S.A. 34:6A-17.

Unlike its federal counterpart, 29 U.S.C. § 660(c), the New Jersey Worker Health and Safety Act does not expressly prohibit penalizing an employee for filing complaints with either federal or state agencies in pursuance of the right to a safe workplace. However, the New Jersey Public Employees' Occupational Safety and Health Act, enacted in 1983, does expressly prohibit such misconduct. N.J.S.A. 34:6A-45. See also N.J.S.A. 34:5A-42 (prohibiting discrimination against an employee for complaining of violations of the Worker and Community Right to Know Act); N.J.S.A. 34:15-39.1 (prohibiting discrimination against an employee for claiming workers' compensation benefits).

And recently the Legislature enacted the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., which codifies the right of all employees to pursue a state tort claim for action taken in retaliation for reporting violations of law to federal or state authorities or both. In this respect, N.J.S.A. 34:19-3 declares:

"An employer should not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare . . ."

Upon a violation, an employee or former employee may file a tort action and may be entitled to an injunction, reinstatement, compensation for lost wages and other benefits, punitive damages and counsel fees. N.J.S.A. 34:19-5. Clearly intended as comprehensive protective legislation, "employee" is broadly defined encompassing both union and nonunion employees. N.J.S.A. 34:19-2(b). Similarly, the definition of public body includes both federal and state entities. N.J.S.A. 34:19-2(c).

Although enacted after the retaliatory discharge here and, thus, not directly applicable, we view this legislation as a reaffirmation of this state's repugnance to an employer's retaliation against an employee who has done nothing more than assert statutory rights and protections and a recognition by the Legislature of a preexisting common-law tort cause of ...


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