September 14, 2016
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-4179-14 .
P. Brennan, Jr. argued the cause for appellant.
S. Felsen (Milman Labuda Law Group, PLLC) of the New York
bar, admitted pro hac vice, argued the cause for respondent
(Milman Labuda Law Group, PLLC, attorneys; Mr. Felsen,
Netanel Newberger, and Robert F. Milman, of the New York bar,
admitted pro hac, on the briefs).
Deborah L. Mains argued the cause for amicus curiae New
Jersey Association for Justice (Costello & Mains, LLC,
attorneys; Ms. Mains, on the brief).
Judges Messano, Espinosa and Guadagno.
Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016),
our Supreme Court applied principles the United States
Supreme Court clarified in Hawaiian Airlines v.
Norris, 512 U.S. 246 114 S.Ct. 2239, 129 L.Ed.2d 203
(1994), to conclude that an employee's state
whistleblower claim was not pre-empted by § 301 of the
Labor Management and Relations Act (LMRA), 29 U.S.C.A.
185(a). This appeal presents the question whether an
employee-union member's disability discrimination claim
under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1
to -49, and retaliatory discharge claim under the
Workers' Compensation Law (WCL), N.J.S.A. 34:15-1 to
-128.5, are pre-empted by § 301. We conclude the claims
as asserted are not pre-empted because they do not require
interpretation of any provision of the collective bargaining
agreement (CBA) between the union and employer.
Brian Hejda, a member of Teamsters Local Union 813, was
employed as a commercial truck (CDL) driver by defendant Bell
Container Corp. when he suffered a workplace injury to his
knee on August 22, 2012. A physician's assistant examined
him at Bell's request and referred him for an MRI and six
physical therapy sessions. Hejda was cleared to return to work
that day with the following restrictions: "No squatting
and/or kneeling, " "Must wear knee brace, "
and "No climbing stairs or ladders." The report
also noted, "NO WORK IF NO LIGHT DUTY." Hejda
averred that, despite these restrictions, Bell's safety
director asked him to continue driving. Hejda refused, orally
demanded workers' compensation, and left for home.
follow-up visits on September 21, 2012 and October 5, 2012,
physician reports cleared Hejda to return to work immediately
with the same restrictions, adding he was "[u]nable to
drive company vehicle." Hejda asserted Bell advised him
that no light duty work was available.
October and November 2012, Dr. Toby B. Husserl, an orthopedic
specialist, examined Hejda's knee and reviewed his MRI
results. He concluded Hejda required surgery and,
without it, Hejda was not "safe for his work as a
tractor-trailer driver and would be best sedentary."
Although he cleared Hejda to return to work in November 2012,
Dr. Husserl included the restriction that Hejda be limited to
"Sedentary work (primarily sitting), " and perform
"NO COMMERCIAL DRIVING."
November 20, 2012, Hejda filed a workers' compensation
claim with the New Jersey Department of Labor and Workforce
Development, Division of Workers' Compensation (NJDOL).
In its answer, Bell denied Hejda "sustained a disabling
injury while in the course and scope of his/her employment
February 2013, Hejda consulted Dr. Mark Seckler, an
orthopedic specialist. Dr. Seckler agreed with Dr. Husserl
that arthroscopic surgery was "the treatment of
choice" and that, despite Hejda's claim to be
"absolutely asymptomatic, " such surgery was
inevitable. Nevertheless, he cleared Hejda to return to work
on February 7, 2013, with full duty and no restrictions.
reported to work every day during the week of February 11-15,
2013, but was not given much to do. When he reported to work
the following week, he was told by Bell to leave.
February 20, 2013, Bell sent a letter to the union explaining
that before Hejda could return to work, he had to be
recertified pursuant to the Department of Transportation
(DOT) Federal Motor Carrier Safety Regulation, 49
C.F.R. § 391.45(c). That regulation requires
"[a]ny driver whose ability to perform his/her normal
duties has been impaired by a physical or mental injury or
disease" to be "medically examined and certified in
accordance with [49 C.F.R.]§ 391.43 as
physically qualified to operate a commercial motor
C.F.R. § 391.43(a) requires that the physical
examination "be performed by a medical examiner listed
on the National Registry of Certified Medical
Examiners." In addition, medical examiners must:
(1) Be knowledgeable of the specific physical and mental
demands associated with operating a commercial motor vehicle
and the requirements of this subpart, including the medical
advisory criteria prepared by the [Federal Motor Carrier
Safety Administration] as guidelines to aid the medical
examiner in making the qualification determination; and
(2) Be proficient in the use of and use the medical protocols
necessary to adequately perform the medical examination
required by this section.
[49 C.F.R. § 391.43(c).]
results of the medical examination must be recorded on a
specified Medical Examination Report Form, MCSA-5875, set
forth in the regulation. 4 9 C.F.R. §
391.43(f). That form requires the driver to complete a
"Health History, " which must be reviewed and
discussed with the physician.
letter to the union, Bell represented it would contact Hejda
to schedule the recertification. Hejda declined to submit to
the scheduled independent medical examination.
to the terms of the CBA, the union filed a grievance against
Bell in February 2013, alleging violations of Articles 2
(wages), 4 (hours), 5 (overtime), 19 (non-discrimination) and
20 (seniority) of the CBA for "failure to schedule
[Hejda] to work after doctor's release." The remedy
requested was payment of "all lost wages and benefits as
well as schedule to work immediately." The grievance
arbitration was conducted on April 5, 2013.
April 11, 2013, Hejda obtained a medical certificate from Dr.
Alexander Goldberg, a family physician. On the form,
Hejda certified he had provided "complete and true"
information and acknowledged the examination and
certification could be invalidated by "inaccurate, false
or missing information." However, he reported he had no
medical history of issues relating to an "impaired . . .
leg." Dr. Goldberg's comments on the form reflect no
discussion of Hejda's knee injury. Dr. Goldberg executed
the Medical Examiner's Certificate and sent a copy to
asked Dr. Goldberg to confirm he considered the evaluations
made by Dr. Husserl and Dr. Seckler. Dr. Goldberg wrote a
letter to Hejda, acknowledging he knew about Hejda's work
injury and subsequent clearance to return to work, and
reiterated that Hejda "meets the standards in 49
[C.F.R. §] 391.41; [and is] qualified for 2
year certificate." Bell accused Hejda of obtaining the
certificate from Dr. Goldberg "under false
pretenses" by failing to inform him of his knee injury
or provide him with the earlier evaluations.
2013, the arbitrator issued an award and opinion, denying the
union's grievance. The issue arbitrated was
"[w]hether the Employer's refusal to return the
Grievant to his former position upon Dr. Seckler's letter
violated the [CBA] or applicable [DOT] regulations, and, if
so, what shall the remedy [be]?" The arbitrator
identified the applicable contract section as Article 32,
which addresses the employer's rights.
submitted it had "just cause" for refusing to
reinstate Hejda as a CDL driver until he was certified in
compliance with 49 C.F.R. §
391.43. The union argued that Hejda should be
reinstated because Dr. ...