United States District Court, D. New Jersey
McNulty United States District Judge
gist of this action is an employee's hybrid claim under
Section 301 of the Labor Management Relations Act of breach
of a collective bargaining agreement and her union's duty
of fair representation that she was wrongfully discharged.
The defendants filed a motion (ECF no. 4) to dismiss the
original complaint for failure to state a claim upon which
relief may be granted. See Fed. R. Civ. P. 12(b)(6).
The plaintiff filed a brief in response (ECF no. 7), but
simultaneously filed a proposed amended complaint. (ECF no.
6) The defendants then filed a reply brief (ECF no. 8), which
was directed to the allegations of the proposed amended
complaint. The Court granted leave to file the amended
complaint and deemed the defendants' motion to dismiss to
be directed to the amended complaint. (ECF no. 9) The
plaintiff, with leave of the court, filed a surreply. (ECF
no. 12) The matter is now fully briefed and ripe for
reasons stated herein, the motion will be granted in part and
denied in part. As to Count One of the amended complaint, the
motion is denied; Counts Two and Three of the amended
complaint, however, will be dismissed. The dismissals are
without prejudice to the submission of a motion to file a
second amended complaint within 30 days.
The Amended Complaint
allegations of the amended complaint (ECF no. 6, cited as
"AC"), taken as true for purposes of this motion,
are as follows.
One: Breach of collective bargaining agreement and duty of
plaintiff, Lisa Luongo, was employed by defendants Village
Supermarket, Inc., and The Shop Rite of Greater Morristown
(together, the "Company") for 33 years. The
introductory paragraph announces that the complaint proceeds
as a hybrid action against the Company and UFCW Local 1262
(the "Union"), for breach of the duty of fair
representation, although the Union is not named as a
collective bargaining agreement ("CBA") between the
Company and the Union requires just cause for discharge and
commits disputes to grievance and arbitration procedures. On
March 14, 2016, Luongo was "verbally" discharged.
On April 15, 2016, Luongo was "formally"
discharged. The reason, she alleges, was that she had eaten a
piece of cookie, worth 35 cents, from the supermarket's
inventory. Other employees routinely did the same, without
any sanction being applied.
day of the informal discharge, March 14, 2016, Luongo asked
her union representative, Carmen Pizzi, to file a grievance.
On March 22, 2016, having heard nothing, Luongo through her
counsel filed a formal written grievance. (A copy of the
Notice of Grievance and Notice of Intent to Arbitrate is
attached to the amended complaint. (ECF no. 6 at 11)) The
Union did not follow the grievance procedure, investigate, or
give Luongo the opportunity to protest her discharge.
alleges on information and belief that her complaints of
harassment by a fellow employee gave rise to hostility on the
part of both the Company and the Union. She also states that
the Company and the Union also had an understanding that they
would limit the number of grievances pursued.
Two: Breach of contract based on employee manual
an Employee Manual disseminated widely to employees, and
long-standing practices and procedures in the workplace, the
Company entered into an implied contract with Luongo. That
contract included a commitment to abide by certain
procedures, including the use of corrective action, prior
warnings, and consistency in the application of discipline to
employees. The discharge of Luongo without warning or
corrective action breached that contract.
Three: Breach of implied covenant of good faith and fair
arbitrarily and capriciously singling out Luongo to be
terminated for violation of a policy that had never before
been strictly enforced, the Company breached the implied
covenant of good faith and fair dealing inherent in every
contract, including the CBA and the Employee Manual.
Standard on a Motion to Dismiss
Civ. P. 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 moving party bears the burden of
showing that no claim has been stated. Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
motion to dismiss, a court must take all allegations in the
complaint as true and view them in the light most favorable
to the plaintiff. See Worth v. Seldin, 422 U.S. 490,
501 (1975); Trump Hotels & Casino Resorts, Inc. v.
Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998);
see also Phillips v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) ("reasonable inferences"
principle not undermined by later Supreme Court
Twombly case, infra).
Civ. P. 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 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 factual
allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, such that it is
"plausible on its face." See Id. at 570;
see also Umland v. PLAN CO Fin. Serv.,
Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
"facial plausibility 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
Court in considering a Rule 12(b)(6) motion is confined to
the allegations of the complaint, with certain exceptions:
"Although phrased in relatively strict terms, we have
declined to interpret this rule narrowly. In deciding motions
under Rule 12(b)(6), courts may consider "document[s]
integral to or explicitly relied upon in the complaint,
" In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original), or
any "undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the
plaintiffs claims are based on the document, " PBGC
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.
In re Asbestos Products Liability Litigation (No.
VI), 822 F.3d 125, 134 n.7 (3d Cir. 2016). See also
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, 114 F.3d at
1426); Pension Ben. Guar. Corp. v. White Consol Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
of the collective bargaining agreement ("CBA") is
attached to the Defendants' reply submission. (ECF no.
8-1) The CBA is integral to and explicitly relied on by
Counts One and Three of the amended complaint. A copy of the
Village Supermarket Associate Handbook ("Employee
Handbook") is attached to the Defendants' motion.
(ECF no. 4-1) The Employee Handbook is integral to and
explicitly relied on by Counts Two and Three of the amended
complaint. I therefore consider both documents on this Rule
One asserts a hybrid claim. Such a claim is called
"hybrid" because the employee alleges under Section
301 of the Labor Management Relations Act ("LMRA"),
29 U.S.C. § 185, that the employer breached the CBA, and
also alleges that that the Union breached its duty of fair
representation ("DFR") by failing to press the
employee's grievance. See, e.g., Jimenez v. GCA
Servs. Grp., Inc., No. CV 16-1871, 2016 WL 6877738,
at *2 (D.N.J. Nov. 21, 2016) (Vazquez, J.). The requisites of
such a hybrid § 301/DFR action have been cogently
summarized by Judge Walls:
The two claims ... are inextricably linked. "To prevail
against either the company or the Union, ...
[employee-plaintiffs] must not only show that their discharge
was contrary to contract but also carry the burden of
demonstrating a breach of duty by the Union."
DelCostello v. International Bhd. of Teamsters, 462
U.S. 151, 165, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983)
(quoting Hines v. Anchor Motor Freight, Inc., 424
U.S. 554, 570-71, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231
(1976)). This is so because a ...