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Puglia v. Elk Pipeline, Inc.

Superior Court of New Jersey, Appellate Division

October 10, 2014

SALVATORE PUGLIA, Plaintiff-Appellant,

Argued July 16, 2014

Approved for Publication October 10, 2014.

Page 192

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1046-11.

Deborah L. Mains argued the cause for appellant ( Costello & Mains, P.C., attorneys; Ms. Mains, on the brief).

Douglas Diaz argued the cause for respondents ( Archer & Greiner, P.C., attorneys; Mr. Diaz and Tracy Asper Wolak, on the brief).

Before Judges MESSANO, [1] LIHOTZ and GUADAGNO. The opinion of the court was delivered by LIHOTZ, P.J.A.D.



Page 193

[437 N.J.Super. 469] LIHOTZ, P.J.A.D.

Plaintiff Salvatore Puglia appeals from the Law Division's grant of summary judgment, dismissing his complaint alleging his former employer, defendants Elk Pipeline, Inc. (Elk) and Elk's President Thomas Mecouch (collectively defendants) retaliated against him for reporting Elk's alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Plaintiff maintained Elk failed to properly pay overtime and remuneration at an applicable rate which violated the New Jersey Prevailing Wage Act (PWA), N.J.S.A. 34:11-56.25 to -56.47, and his complaints resulted in his lay-off despite his level of seniority. The Law Division rejected plaintiff's claims as cognizable under CEPA, instead finding they were based on an interpretation of the parties' collective bargaining agreement (CBA), and redress was governed by federal law. We agree and affirm.


We recite the facts found in the summary judgment record viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). Plaintiff was employed by Elk as a laborer from October 2, 2006 to December 16, 2010. During that time, plaintiff was assigned to work on a sewer reconstruction project located in the City of Camden (the project). It is undisputed that the project was a public works project as defined in the PWA.

As a member of the International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge S-76, plaintiff's employment was subject to a CBA, negotiated between Elk and the union. The CBA was effective from June 28, 2004 to February 15, 2010, but remained binding

Page 194

" thereafter from year to year unless [437 N.J.Super. 470] either party" gave notice prior to the expiration date of an " intention to modify or terminate the agreement."

In January 2010, plaintiff noticed his hourly rate of pay was reduced from what he had previously received. He believed the rate of pay was less than the prevailing wage to which he was entitled. Plaintiff and another laborer, Robert Barrette, immediately challenged the reduced rate of pay by complaining to their supervisor, Eric Larsen, who referred them to Michael Tedesco, Elk's project manager.

Plaintiff and Barrette next complained to Tedesco about the pay cut. Tedesco stated Mecouch directed several laborers be paid at the apprenticeship level. Tedesco explained he objected, telling Mecouch Elk had no approved apprenticeship program for the project. Mecouch did not change his position. Therefore, Tedesco recommended plaintiff speak directly to Mecouch, which he did in late January 2010.

In summer 2010, after his pay rate was not restored, plaintiff formally filed a complaint with the New Jersey Department of Labor. About this time, plaintiff contends Mecouch, through Tedesco, instructed him and other employees to " lie to state inspectors" if asked about their rate of pay.

Plaintiff then discussed the problem with Jim Takacs, the resident engineer on the project. Takacs's role was " to enforce the Davis-Bacon rates on the Camden [p]ublic [w]ork sites for the Camden Sewer Reconstruction Project[.]" [2] Takacs reviewed Elk's certified payroll records and determined certain laborers were not properly compensated, noting specifically there was no approved apprenticeship program, making use of that pay rate inappropriate.

[437 N.J.Super. 471] Takacs told Tedesco that Elk must rectify its payroll discrepancies. He specifically identified plaintiff as one laborer whose pay rate was incorrect. In reference to plaintiff, Takacs recalled Tedesco stating something " off the record" like " the owner wanted to f[__ ] with him and wants to get rid of him."

Thereafter, plaintiff and the other laborers' pay rates were restored to the prevailing wage rate. However, plaintiff maintained he did not receive all back pay he was due. During this time, Mecouch told him, " look, I was going to fire you, you're just not working out, but I'm going to give you a second chance." Plaintiff also spoke to Tedesco regarding his entitlement to additional back pay, but was told, " be quiet and keep your job or be laid off."

On December 16, 2010, plaintiff's employment on the project ended. Mecouch explained to plaintiff he was being laid off as the project neared completion and was being reassigned. Plaintiff never reported to his newly-assigned location.

On January 13, 2011, plaintiff filed his complaint alleging violations of the PWA, CEPA, along with individual liability claims against Mecouch under CEPA, and equitable relief. The parties settled the PWA claim.

After discovery, defendants moved for summary judgment dismissal of the remaining claims. Judge Jean B. McMaster concluded plaintiff's CEPA claim was actually a wage claim preempted by section 301(a) of the Labor Management Relations

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Act of 1947 (LMRA), 29 U.S.C.A. § 185(a), and the National Labor Relations Act of 1935 (NLRA), 29 U.S.C.A. § § 151-166. Plaintiff, arguing this was error, appeals from the grant of summary judgment and dismissal of his complaint.


Our review of summary judgment dismissal is de novo, Department of Environmental Protection v. Kafil, 395 N.J.Super. 597, 601, 930 A.2d 457 (App.Div. 2007), according no special deference to a judge's determination [437 N.J.Super. 472] as a decision to grant or deny summary judgment does not hinge upon credibility of testimony or determinations of fact, but instead, amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. ...

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