Opinion
DOCKET NO. A-1005-13T3
01-05-2015
MICHAEL FESTA, Plaintiff-Appellant, v. PLUMBERS AND PIPEFITTERS LOCAL 9, MICHAEL MALONEY, CHARLES "CHUCKY" WOLF, and WILLIAM "BILL" PITTMAN, Defendants-Respondents.
Peter A. Kreiner argued the cause for appellant (Kreiner & Kreiner, L.L.C., attorneys; Mr. Kreiner, on the brief). Andrew L. Watson argued the cause for respondents (Pellettieri, Rabsetin & Altman, attorneys; Mr. Watson and Anne P. McHugh, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2530-11. Peter A. Kreiner argued the cause for appellant (Kreiner & Kreiner, L.L.C., attorneys; Mr. Kreiner, on the brief). Andrew L. Watson argued the cause for respondents (Pellettieri, Rabsetin & Altman, attorneys; Mr. Watson and Anne P. McHugh, on the brief). PER CURIAM
Plaintiff Michael Festa, a member of defendant Plumbers and Pipefitters Local 9 ("Local 9" or "the union"), appeals from an order for summary judgment dismissing his claims under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirm.
Plaintiff filed a five-count complaint against Local 9, two of its business agents, and another member of the union. He alleged that he had been a member of the union since 1989, he had worked on many jobs to which the union had referred him, and, beginning in 2008, defendants had engaged in discriminatory conduct and retaliation against him because of his Puerto Rican heritage. He claimed defendants were liable to him for violations of CEPA; the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49; and negligent supervision.
After discovery, defendants moved for summary judgment. Plaintiff then voluntarily dismissed all counts of his complaint except the CEPA count. As to that count, defendants sought summary judgment on two grounds — that CEPA did not apply to plaintiff's allegations because Local 9 was not his employer, and that his evidence did not establish a prima facie case of retaliation under CEPA. The trial court dismissed the CEPA claims on both grounds. Plaintiff now appeals that decision.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We "first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Henry, supra, 204 N.J. at 330 (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).
CEPA prohibits an employer from retaliating against an employee when the employee engages in protected "whistle-blowing" activity. See N.J.S.A. 34:19-3; Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 89 (2012). The employer-employee relationship is crucial to application of CEPA. The alleged retaliator must in fact be the claimant's "employer" as defined under the statute, and the claimant must qualify under the statute as an "employee." See D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120 (2007).
CEPA defines an "employer" in terms of all the persons and entities that can act on behalf of an employer, but the statutory definition does not help to resolve the dispute in this case. CEPA defines an "employee" as "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." N.J.S.A. 34:19-2(b).
N.J.S.A. 34:19-2(a) states that an "employer" means
any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent and shall include all branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
In D'Annunzio, supra, 192 N.J. at 122, the Court considered whether a CEPA plaintiff was an employee or an independent contractor and held that the following should be considered: "(1) employer control; (2) the worker's economic dependence on the work relationship; and (3) the degree to which there has been a functional integration of the employer's business with that of the person doing the work at issue." The Court then restated its acceptance of "[t]he test for determining those aspects of a non-traditional work relationship" that this court had set out in Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div. 1998):
(1) the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation — supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the "employer;" (10) whether the worker accrues retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties.These factors should be examined as a "totality of the circumstances . . . ." Pukowsky, supra, 312 N.J. Super. at 182.
[D'Annunzio, supra, 192 N.J. at 123 (quoting Pukowsky, supra, 312 N.J. Super. at 182-83).]
Here, plaintiff claims that the manner of his obtaining jobs made him an employee of the union for purposes of CEPA. The trial court disagreed. Viewed most favorably to plaintiff, the summary judgment record established the following facts pertinent to the employer-employee relationship.
Local 9 represents workers engaged in plumbing and pipefitting work and acts as the "sole and exclusive bargaining agent" for its members. It refers its members to work for contractors that have entered into a collective bargaining agreement (CBA) with the union. According to the CBA, the union is to be the contractors' "sole and exclusive source of referral of applicants for employment." The contractor is permitted to hire "temporary employees" outside the union's referral system but only when the union's referral list has been exhausted.
To obtain workers, a contractor generally calls the union managers and provides information about the job. The union managers refer members to the contractor based on their availability, skills, and numerical rank on an out-of-work list created in accordance with the union's rules and regulations. The list sets an order based on when a member became available and on how long since the member's last job.
At times, a lower-ranked member might be referred ahead of a higher-ranked member if the employer states "bona fide requirements for special skills and abilities." In such a situation, the union refers the highest-ranked member possessing the requisite skills. During periods of unemployment, members try to obtain certifications to improve their skills and to make themselves available for the greatest number of referrals.
The CBA refers to Local 9 as "the union," the Mechanical Contractors Association of New Jersey, Inc. as the "association," and the mechanical contractors who "have authorized the Association to serve as their Collective Bargaining Agent" as "the employers." According to the terms of the CBA, "[t]he management of their operation and the direction of the working force are exclusively reserved to the employer on the job sites and in the shop, except as limited by the provisions of this Agreement." The provisions of the CBA dictate aspects of the job such as the referral system, wages, hours, overtime, and holidays.
With respect to equipment and tools for a job, members are required by the CBA to bring to a job site work gloves, a level, a folding rule, and pliers. The contractor is required to supply "[a]ll other tools, safety glasses, welding gloves and sleeves," although plaintiff testified that he has been required to bring certain other personal tools to certain job sites. In either event, the union does not supply any equipment or tools to its members.
When plaintiff was asked at his deposition if he was an employee of defendant union, he answered, "[w]ell, I don't know. I'm a member of Local 9 Plumbers and Pipefitters. . . ." The following colloquy occurred regarding the role of a foreman at a worksite:
Q. So it's fair to state that any particular foreman on any given job site is not a union officer, right?
A. Correct.
Q. You've served as a foreman, right?
A. Yes, I did.
. . . .
Q. And you were employed by that particular contractor when you were a foreman, right?
A. Correct.
Q. So you were an employee of that contractor, right?
A. Yes.
Plaintiff was also asked about the contractor's ability to control the job site:
Q. So if I understand the day-to-day work on any particular job site correctly, that's controlled by either the general contractor or the subcontractor on that site, right?
A. Yes.
Q. And that's because the GC or the contractor or subcontractor that you're working for has a feel for what the needs are of the job, right?
A. Yes.
. . . .
Q. And so that GC may direct particular subcontractors for the work to be done on any given day, right?
A. Yes.
Q. And that includes work to be done by Local 9 members . . . right? Doesn't matter what trade you are, this is always coming from the employer, right?
A. Yes.
Plaintiff admitted that decisions to lay off or terminate workers are made by the contractor for whom the union member works, and not by the union. Furthermore, upon first arriving at a new job site, a member presents his or her driver's license and identification and then completes a tax form designating that income from the job will be reported to the IRS by the contractor, not by the union. Also, the union does not pay Social Security taxes on behalf of its members.
Plaintiff testified that he never received a paycheck from the union:
Q. Have you ever received a paycheck from Local 9?
A. No.
Q. That's because you're not an employee of Local 9, right?
A. Well, I don't know. I'm a member of Local 9 Plumbers and Pipefitters. I pay -- out of every check, my check comes out I get deductions. I have to pay assessments out of every paycheck to Local 9.
Q. Towards different funds, correct?
A. To the -- I have to pay assessments and all kinds of deductions come out of there on top of my union dues.
Q. And that comes out of paychecks from the different employers that you're working for, right?
A. Every paycheck does, yes.
Q. So if a contractor like McBride pays you a paycheck there are deductions that get taken out, right?
A. Correct.
Q. But that paycheck is from McBride, not Local 9, right?
A. Yes.
The funds plaintiff referenced are described in the CBA: (1) a personal fund, which is a nominal amount to be placed in a savings account for the worker's "sole credit and use"; (2) a welfare fund; (3) a pension fund; (4) a surety fund; (5) an education fund, which is to be used for the training of members and hiring training instructors; (6) an industry fund; and (7) an international training fund.
It is not necessary that a CEPA employer be the entity that pays an employee. See Massarano v. N.J. Transit, 400 N.J. Super. 474, 493 (App. Div. 2008). Nevertheless, who pays the employee is a factor to be considered in determining whether an employer-employee relationship exists. Most important, "the primary focus is on the employer's 'control and direction' of the worker's performance of services for the employer . . . ." D'Annunzio, supra, 192 N.J. at 125.
Here, the contractors not only paid plaintiff but also controlled and directed the performance of his job. The individual contractors were in control of the jobsites. The conditions on the job imposed by the CBA were peripheral to control of the workplace and did not establish the manner and means of performing the job. In contrast, in D'Annunzio, supra, 192 N.J. at 116-17, the defendant gave the plaintiff a list of duties every week and step-by-step instructions on how to perform the tasks, and the plaintiff was required to be on the defendant's premises for twenty hours a week. Ibid. The Court found that the plaintiff's "day-to-day activities were controlled in minute detail." Id. at 126.
Here, the union does not control the details of plaintiff's work on the contractors' jobsites. It refers plaintiff to jobsites, where he works at the direction of the contractors. It is also undisputed that the equipment utilized on the jobsites is provided by the contractors and plaintiff himself, not by the union.
Plaintiff's argument regarding his economic dependence on the union is misplaced. Plaintiff is economically dependent on the individual contractors for his livelihood, not the union. He receives all his compensation from the contractors, and the determination to lay off or terminate workers resides with the contractors alone. In addition, any retirement benefits that accrue for plaintiff come out of his pay from the contractors, not from the union.
Finally, nothing in the evidence indicates that Local 9 and plaintiff specifically intended to create an employer-employee relationship. We agree with the trial court that plaintiff was not an employee of Local 9 but an employee of whatever contractor he worked for at a particular time.
Since we have concluded that the trial court correctly dismissed plaintiff's CEPA claim because Local 9 was not his employer, we need not address the court's alternative ground for summary judgment — that plaintiff did not establish a prima facie case of retaliation in violation of CEPA.
Plaintiff had an opportunity to pursue a claim of retaliation under the NJLAD, N.J.S.A. 10:5-12(d), which applies both to "employers" and to "labor organizations," N.J.S.A. 10:5-5(c), (e). He voluntarily dismissed the NJLAD count of his complaint and chose to proceed exclusively under CEPA. The reason for that decision has not been clearly revealed to us.
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Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION