United States District Court, D. New Jersey
CHRISTOPHER ODDO, PHILLIP BRUCATO and MICHAEL LENNON, on behalf of themselves and those similarly situated, Plaintiffs,
BIMBO BAKERIES USA, INC., Defendant.
MCNULTY, UNITED STATES DISTRICT JUDGE
plaintiffs, Christopher Oddo, Phillip Brucato, and Michael
Lennon, filed an individual, collective, and class action
civil complaint, seeking, on behalf of themselves and other
similarly situated, lost wages, damages, and other relief for
the alleged failure of defendant Bimbo Bakeries USA, Inc.
(hereinafter "BBUSA") to pay overtime compensation,
in violation of the Fair Labor Standards Act
("FLSA") and the New Jersey Wage and Hour Law
("NJWHL"). BBUSA brings a motion to dismiss on the
grounds that: (1) the plaintiffs' claims are completely
preempted by Section 301 of the Labor Management Relations
Act ("LMRA"); and (2) the plaintiffs have not
adequately pleaded a LMRA Section 301 claim. For the reasons
discussed below, I will deny BBUSA's motion to dismiss.
plaintiffs are Route Sales Representatives ("RSRs")
for BBUSA. As such, their "primary duties are driving
delivery trucks along established routes and delivering and
stocking [BBUSA's] products at national chain, local
chain, and independent retailers." (Compl. ¶
33) The plaintiffs (hereinafter, the
"RSRs") allege that BBUSA pays them each "a
base salary of $110.00 per week plus a 12% commission on
proceeds generated from sales to retailers along [their]
delivery route[s]." (Id. ¶¶35-37)
They allege that, "[d]uring at least one workweek within
the last three (3) years, [they and the putative class
members] worked over 40 hours . . . ." (Id.
¶ 48) The RSRs claim the NJWHL and FLSA require BBUSA to
pay them and putative class members additional compensation
for hours worked beyond 40 hours per week-i.e.,
"overtime" pay, but that BBUSA does not.
(Id. ¶¶ 38, 50) They also allege that
BBUSA has failed to implement an hours tracking system.
(Id. ¶ 59)
RSRs allege they are "employees" within the meaning
of the FLSA and NJWHL and that they have suffered damages as
a result of the BBUSA's unlawful failure to pay overtime
wages. (Id. ¶¶ 67, 73) They also aver,
with respect to their FLSA claim, that BBUSA's failure is
willful and not based in a reasonable interpretation of the
law. (Id. ¶¶ 66) The RSRs seek: (i)
injunctive relief to prohibit BBUSA from continuing its
illegal policy and practice; (ii) compensation and
reimbursement "for any and all pay and benefits they
would have received" but for BBUSA's allegedly
unlawful actions; (iii) liquidated damages in an amount equal
to actual damages under the FLSA; (iv) costs and expenses;
and (v) any other relief this Court deems just and proper.
(Id. p. 11)
motion to dismiss hinges on a series of collective bargaining
agreements (collectively, the "CBA") that BBUSA
says are grounds for preemption of the RSRs' NJWHL and
FLSA claims. The CBA, effective January 2015 through December
2018, is significant because BBUSA claims the RSRs are
members of the International Brotherhood of Teamsters Local
No. 802 union (the "Union"), which bargains with
BBUSA for the terms and conditions of its members'
employment and memorializes those terms and conditions in the
CBA. (Br. 1, 4) The RSRs do not deny that the CBA governs the
terms and conditions of their employment. (See,
e.g., Lynch Decl. C p.2 (Oddo's claim filed with the
New Jersey Division of Wage and Hour Compliance, alleging
"[BBUSA] and Teamsters Local 802 have a collective
bargaining agreement. . . ."))
points to eight provisions in the CBA that purportedly govern
the RSRs' pay. (Br. 4-6 (citing CBA Arts. 3, 4, 8, 16,
27, 31, and Letter of Agreement) These provisions describe if
and how RSRs are paid during vacation, holidays, birthdays,
funeral leave, and service time, and also set forth a basic
wage and overtime pay formula and scale. The CBA provides for
an "alternative compensation program" for the RSRs,
which incorporates the basic wage and overtime formula as an
alternative to commission-based pay:
RSRs shall receive for each week the higher of (i)
compensation calculated at the regular hourly rate of $21.00
for all hours worked in any 5-day regular work week and
$31.50 for all overtime hours worked (not counting½
hour daily for mandatory meal break) and (ii) their base pay
plus commissions at the negotiated rates set forth in Article
27 of the CBA.
(Br. 5 (paraphrasing CBA Art. 27(b)-(c) 85 (i)(2)-(4)) The
"negotiated rate" since January 3, 2016, has been
$110 base pay with a 12% net commission-i.e., what the RSRs
allege they receive in the complaint. (See Compl.
setting forth the alternative compensation program, the CBA
states: "The Company and the Union agree that the base
pay and commission provisions of the parties' [CBA]
compensate fully [RSRs] under federal and state overtime pay
laws because of their job duties as outside salespersons and
because the U.S. Secretary of Transportation has the power to
regulate the [RSRs] in the performance of their duties. (CBA
also requires BBUSA to institute a time recording system and
to record RSR's hours. (CBA, Art. 27(i)(5)) Additionally,
the CBA lays out a mandatory grievance and arbitration
procedure, through which "all disputes, " including
disputes regarding pay, are to be resolved. (See CBA
Arts. 9-10, 27(i)(2))
Whether Rule 12(b)(1) or Rule 12(b)(6) Governs BBUSA's
moves to dismiss the RSRs' complaint for lack of subject
matter jurisdiction, asserting a factual challenge based on
the CBA. (See Defs. Br. 10) BBUSA fails to explain
why its challenge should be jurisdictional, rather than
merits-based. Some courts in this district have applied only
a 12(b)(6) standard to determine LMRA preemption issues,
see, e.g., Carluccio v. Parsons Inspection & Maint.
Corp., No. CIV A 06-4354 JLL, 2007 WL 1231758, at *2
(D.N.J. Apr. 24, 2007), while others have applied Rule
12(b)(1), see, e.g., Johnson v. Longer Transp.
Corp., No. CIV.A. 15-1256 JLL J, 2015 WL 2254671, at *3
(D.N.J. May 13, 2015). From its moving papers, I presume
BBUSA reasons that because the LMRA preempts the RSRs'
claims, the RSRs' only recourse is to bring suit against
BBUSA for breach of the CBA. And, to bring a breach of CBA
claim, the RSRs would be required to exhaust the CBA's
grievance and arbitration procedures before suing in federal
court unless they can state a "hybrid" claim
against BBUSA and the Union. DelCostello v.
Int'lBhd. of Teamsters, 462 U.S. 151, 163, 103 S.Ct.
2281, 2290 (1983) ("It has long been established that an
individual employee may bring suit against his employer for
breach of a collective bargaining agreement. Ordinarily,
however, an employee is required to attempt to exhaust any
grievance or arbitration remedies provided in the collective
bargaining agreement." (citation omitted)).
BBUSA argues, the RSRs have not stated a hybrid
claim, the RSRs must seek relief pursuant to the CBA's
grievance and arbitration provisions. The RSRs contest the
enforceability of these provisions. Nevertheless, "[i]t
is a long-standing tenet of law that an employee must attempt
to exhaust the grievance and arbitration procedures set forth
in the collective bargaining agreement between his employer
and his union before he has standing to maintain an action
under Section 301 of the [LMRA]." Monacelli v.
Revlon, No. CIV. 89-4369 (CSF), 1990 WL 105760, at *4
(D.N.J. July 2, 1990); see also Shaffer v. Mitchell
Transport, Inc., 635 F.2d 261, 264 (3d Cir. 1980)
(citations omitted) ("[I]f [a] collective bargaining
agreement provide[s] for resolution of [a] dispute through
arbitration, the court ha[s] no jurisdiction to
address the merits."). With the RSRs' very ability
to maintain a suit up for debate, I am satisfied that Rule
12(b)(1) is an appropriate rule to apply here.
to dismiss for lack of subject matter jurisdiction pursuant
to Fed.R.Civ.P. 12(b)(1) may be raised at any time.
Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437-38
(D.N.J. 1999). "[B]ecause subject matter jurisdiction is
non-waivable, courts have an independent obligation to
satisfy themselves of jurisdiction if it is in doubt. See
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 278, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A
necessary corollary is that the court can raise sua sponte
subject-matter jurisdiction concerns." Nesbit v.
Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir.
12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore's Federal Practice § 12.30
(3d ed. 2007); Mortensen v. First Fed. Sav. &
LoanAss'n, 549 F.2d 884, 891 (3d Cir. 1977). A
facial challenge asserts that the complaint does not allege
sufficient grounds to establish subject matter jurisdiction.
Iwanowa, 67 F.Supp.2d at 438. A court considering
such a facial challenge assumes that the allegations in the
complaint are true, and may dismiss the complaint only if it
nevertheless appears that the plaintiff will not be able to
assert a colorable claim of subject matter jurisdiction.
Cardio-Med. Assoc, Ltd. v. Crozer-Chester Med. Ctr.,
721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67
F.Supp.2d at 438. A factual attack, on the other hand,
permits the Court to consider evidence extrinsic to the
pleadings. Gould Elecs. Inc. v. United States, 220
F.3d 169, 178 (3d Cir. 2000), holding modified on other
grounds by Simon v. United States, 341 F.3d 193 (3d Cir.
2003). Thus "Rule 12(b)(1) does not provide plaintiffs
the procedural safeguards of Rule 12(b)(6), such as assuming
the truth of the plaintiffs allegations." CNA v.
United States, 535 F.3d 132, 144 (3d Cir. 2008).
The burden of establishing federal jurisdiction rests with
the party asserting its existence, [citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.
3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).] "Challenges
to subject matter jurisdiction under Rule 12(b)(1) may be
facial or factual." [citing Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,
188 (3d Cir. 2006)).] A facial attack "concerns 'an
alleged pleading deficiency' whereas a factual attack
concerns 'the actual failure of [a plaintiffs] claims to
comport [factually] with the jurisdictional
prerequisites."' [citing CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in
original) (quoting United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
"In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff." [citing Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, "the
court must permit the plaintiff to respond with rebuttal
evidence in support of jurisdiction, and the court then
decides the jurisdictional issue by weighing the evidence. If
there is a dispute of a material fact, the court must conduct
a plenary hearing on the contested issues prior to
determining jurisdiction." [citing McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006)
Lincoln Ben. Life Co. v. AEILife, LLC, 800 F.3d 99,
105 (3d Cir. 2015) (footnotes omitted; case citations in
footnotes inserted in text). I consider BBUSA's
jurisdictional challenge a factual attack and therefore, will
consider the CBA as extrinsic evidence. In the end, it may
matter little; the authenticity of the CBA, which is integral
to the parties' relationship, is not disputed, and even
on a Rule 12(b)(6) standard it would likely be considered.
See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.
2014) ("However, an exception to the general rule is
that a 'document integral to or explicitly relied upon in
the complaint' may be considered 'without converting
the motion to dismiss into one for summary judgment.'
") (quoting In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)); Pension
Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993) ("We now hold that a court may
consider an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the
plaintiffs claims are based on the document.").
Sections III.C 8b D, I briefly consider in the alternative
the issue of failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Rule 12(b)(6) provides for the
dismissal of a complaint, in whole or in part, if it fails to
state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products,
Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9
(3d Cir. 2011). For the purposes of a motion to dismiss, the
facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff.
New Jersey Carpenters & the Trustees Thereof
v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302
(3d Cir. 2014).
Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, "a
plaintiffs obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint's factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level,
so that a claim is "plausible on its face."
Id. at 570; see also West Run Student Housing
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169
(3d Cir. 2013). That facial-plausibility standard is met
"when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While "[t]he
plausibility standard is not akin to a 'probability
requirement'. . . it asks for more than a sheer
possibility." Iqbal, 556 U.S. at 678.
Whether The LMRA Preempts The RSRs' NJWHL Claim
argue that the RSRs' NJWHL claim fails because it is
completely preempted by the LMRA. Specifically, BBUSA argues
the NJWHL claim arises from the CBA, or alternatively,
depends upon the court's interpretation of the
301(a) of the LMRA provides: "Suits for violation of
contracts between an employer and a labor organization
representing employees in an industry affecting commerce as
defined in this chapter, or between any such labor
organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without
respect to the amount in controversy or without regard to the
citizenship of the parties." 29 U.S.C. § 185(a).
Although section 301 refers only to jurisdiction, it has been
interpreted as authorizing federal courts to fashion a body
of common law for the enforcement of collective bargaining
agreements. Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957).
An underlying reason for the development of federal law in
this area is the need for uniform interpretation of contract
terms to aid both the negotiation and the administration of
collective bargaining agreements. See Local 174,
Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82
S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962) (differing
interpretations would stimulate and prolong labor disputes).
Antol v. Esposto, 100 F.3d 1111, 1115 (3d Cir.
1996), amended, (3d Cir. Jan. 20, 1997).
furtherance of this purpose,
LMRA § 301 completely preempts a state cause of action .
. . when the resolution of said action is "substantially
dependent upon analysis of the terms of an agreement made
between the parties in a labor contract."
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220,
105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108
S.Ct. 1877, 100 L.Ed.2d 410 (1988) ("[A]n application of
state law is pre-empted by § 301 of the Labor Management
Relations Act of 1947 only if such application requires the
interpretation of a collective-bargaining agreement.").
By contrast, when resolution of the state law claim is
"independent" of a CBA and does not require
construing one, the state law claim is not preempted by
§ 301. Lingle, 486 U.S. at 410, 108 S.Ct. 1877;
accord Antol v. Esposto, 100 F.3d 1111, 1117 (3d
New Jersey Carpenters & the Trustees Thereof v.
Tishman Const. Corp. of New Jersey, 760 F.3d 297, 305-06
(3d Cir. 2014).
a claim requires a court to construe or interpret a CBA to
the point that the claim depends on interpretation
of the CBA is a question riddled with nuance and exception.
Merely considering the terms of a collective-bargaining
agreement-looking to undisputed terms in a CBA or
interpreting a CBA solely to compute damages, for
example-does not warrant preemption. SeeLivadas v.
Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068 (1994)
("[W]hen the meaning of contract terms is not the
subject of dispute, the bare fact that a
collective-bargaining agreement will be consulted in the
course of state-law litigation plainly does not require the
claim to be extinguished."); Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 413 n. 12, 108 S.Ct.
1877 (1988) ("Although federal law would govern the
interpretation of the agreement to determine the proper
damages, the underlying state-law claim, not otherwise
pre-empted, would stand."); Hawaiian Airlines, Inc.
v. Norris, 512 U.S. 246, 261-62, 114 S.Ct. 2239, 2248
(1994) ("'[P]urely factual questions' about an
employee's conduct or an employer's conduct and
motives do not 'requir[e] a court to interpret any term
of a collective-bargaining agreement.'" (citing
Lingle, 486 U.S. at 407)); see also Bull v.
United Parcel Serv., Inc., No. CIV. 07-2291 KM MCA, 2014
WL 2965696, at *13-14 (D.N.J. July 1, 2014) ("The CBA
may have been relevant to the determination of certain issues
of fact, but there is no dispute about what it says, what it
means, whether it is valid, or whether [the plaintiff] is
bound by it. . . . [The defendant] cites the CBA to bolster
its case and justify its actions. That is perfectly
permissible, but it does not transform this case into one
about, or arising from, the CBA."), affd in part,
appeal dismissed in part, 620 F.App'x 103 (3d Cir.
27 of the CBA provides that the RSRs are to be paid the
higher of (a) $21.00/hour and $31.50/overtime hour or (b) a
given week's commission-based income. From that
provision, BBUSA draws the implication that the RSRs'
demand for overtime compensation is necessarily grounded in,
or arises from, the CBA. (See Br. 13) And even if the
RSRs' NJWHL claim is not directly based on the CBA, BBUSA
argues, it is still preempted because it substantially
depends on analyzing the CBA-that is, it "requires the
Court to interpret how the CBA's pay and ...