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Bryan E. Fischer v. G4s Secure Solutions Usa

August 31, 2011


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, District Judge:


This employment-related matter is before the Court on a motion to dismiss filed by Defendant G4S Secure Solutions USA, Inc. [Docket Item 4.] The principal issues are whether Plaintiff's two remaining claims for breach of contract and retaliation are preempted by the Labor Management Relations Act, 29 U.S.C. § 185(a), and whether the Complaint contains sufficient allegations to support the latter claim. As explained below, the breach of contract claim is preempted, and the retaliation claim is either preempted or fails to state a claim, and either way must be dismissed.


Plaintiff, Bryan E. Fischer, brought this suit against his former employer G4S Secure Solutions USA, Inc. and his union, the Nuclear Power Plant Security Officers of America. Mr. Fischer worked as a security officer at Salem-Hope Creek nuclear power plant, a PSE&G facility in Salem County, New Jersey. He alleges that in February 2010 he encouraged a co-worker, on whose breath he smelled alcohol, to report his condition to a supervisor.

Fischer claims that after experiencing increased hostility from his union as a result of this conduct, the Union President told him not to address his concerns to the PSE&G official in charge of employee matters, but that Fischer did so anyway, leading to further hostility from the Union. Compl. ¶¶ 16-17. It is unclear precisely what Fischer alleges he said to the PSE&G employee; he alleges that he "complained of unfair treatment of armed nuclear security officers, including himself." Compl. ¶ 38.

Eventually, PSE&G officials reassigned Fischer to a shift at an administrative office building because of concerns about Fischer's safety, Fischer claims. Compl. ¶ 19. On learning of this transfer, the Union President objected and Plaintiff's employer, G4S, "essentially suspended [Fischer] with pay pending an investigation," Compl. ¶ 20, without the possibility of overtime or other benefits. Compl. ¶ 31.

At the conclusion of the investigation, Plaintiff was invited to return to work but warned that his co-workers were even more hostile toward him than when he left. Compl. ¶ 22. Given the option of transferring to a facility in New Hampshire involving a pay cut, loss of seniority, and a night shift, Plaintiff refused to return to Salem-Hope Creek and refused the transfer, and was ultimately terminated. Compl. ¶ 25.

The Complaint initially brought seven claims against G4S and the Union. Count I is a claim against G4S for breach of contract, based on G4S's failure to abide by the promise in their employee manual that concerns raised about colleagues would be dealt with fairly and confidentially. Count II cites no particular legal cause of action and contends that Plaintiff was unlawfully retaliated against for complaining to the PSE&G employee. Count III is an unspecified claim based on G4S's bad faith and lack of fair dealing. Count IV is a similar claim against the Union. Count V is quite unclear, but appears to be some kind of derivative liability claim against the Union. Count VI is a claim against G4S and the Union involving an allegation that Defendants stopped deducting union dues from Plaintiff's check in an effort to interfere with his union membership. Finally, Count VII claims that GS4 is liable for the Union's unlawful conduct.

Plaintiff filed suit in the Superior Court of New Jersey, Law Division, Gloucester County, on November 16, 2010. G4S removed the matter to this court based on alleged complete preemption of the state law claims. See Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983) (explaining complete preemption doctrine).

Plaintiff has conceded that he has no legitimate causes of action against the Union, and so the Court terminated the Union as a party and dismissed Counts IV, V, and VI as against the Union. [Docket Item 9.] In the present motion, Defendant has moved to dismiss Counts I, II, III, VI, and VII. Plaintiff concedes that III, VI, and VII should be dismissed. And so the Court addresses the remaining contested claims: Counts I and II against GS4 only.

Defendant argues that Counts I and II are pre-empted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), since the resolution of the claims requires interpretation of the collective bargaining agreement between G4S USA and the Union. Defendant contends that the Court will have to interpret the following provision of the agreement:

This Agreement shall not be construed to infringe upon or impair any of the normal management rights of the Employer, which are not inconsistent with the provisions of this Agreement. Included among management rights is the authority to administer and/or manage the Employer's business, including but not limited to . . . the right to ...

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