NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                No. 11-3774
               ____________

   TERRY ROE, an Individual Pseudonym,
                              Appellant
                   v.

EDWARD DIAMOND, Individually and as Manager Cardiac
Services of JSUMC; MERIDIAN HEALTH SYSTEMS INC.;
MERIDIAN HEALTH INC; MERIDIAN HOSPITALS CORP.;
MERIDIAN HEALTH; DONNA M. CUSSON, Individually and as
Assistant Nurse Manager Invasive Cardiology of JSUMC; JERSEY
SHORE UNIVERSITY MEDICAL CENTER, JSUMC; ERICKA D.
CLARK DISTANISLAO, Individually and as Staff Nurse and
Preceptor Invasive Cardiology of JSUMC; JENNIFER S. LOVEY,
Individually and as Staff Nurse Preceptor Invasive Cardiology of
JSUMC; HEALTH PROFESSIONALS AND ALLIED
EMPLOYEES, AFT/AFL-CIO HPAE; HPAE LOCAL, #5058

               ____________

 Appeal from the United States District Court
        for the District of New Jersey
        (D.C. Civil No. 10-cv-06798)
  District Judge: Honorable Joel A. Pisano
                ____________

 Submitted Under Third Circuit LAR 34.1(a)
              April 13, 2012
               Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge
                          and JONES, II,* District Judge.

                              (Opinion Filed: March 20, 2013)
                                      ____________

                                        OPINION
                                      ____________
Jones, II, District Judge.

       Terry Roe brought suit against Defendants Jersey Shore University Medical

Center (―JSUMC‖), Meridian Health Systems, Inc., Meridian Health, Inc., Meridian

Hospitals Corp. and Meridian Health (collectively, ―the Hospital‖), Edward Diamond,

Donna Cusson, Ericka Distanislao, and Jennifer Lovey (collectively, ―Individual

Defendants‖), and Health Professionals and Allied Employees (―HPAE‖), AFT/AFL-

CIO, and HPAE Local #5058 (collectively, ―the Union‖), alleging numerous labor and

employment violations. Roe appeals a decision from the United States District Court for

the District of New Jersey granting Defendants‘ motions to dismiss Roe‘s claims under

Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (―LMRA‖), and

Section 7 of the National Labor Relations Act, 28 U.S.C. § 157 (―NLRA‖), following

JSUMC‘s termination of Roe from his position as a nurse in JSUMC‘s Cardiac

Catheterization Laboratory.     The District Court declined to exercise supplemental

jurisdiction over Roe‘s remaining state law claims.




       *
       The Honorable C. Darnell Jones, II, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

                                            2
       For the reasons discussed below, we affirm-in-part and reverse-in-part and remand

for further proceedings.

I.     BACKGROUND

       We write principally for the benefit of the parties and recite only the essential facts

and procedural history.



A.     Roe‘s Employment

       Terry Roe began his employment at JSUMC‘s Cardiac Catheterization Laboratory

in August 2010. During the hospital-wide orientation program for new nurses on August

10, 2010, Roe received a copy of the Collective Bargaining Agreement (―CBA‖) between

the Union and JSUMC.

       Plaintiff commenced working in the Cardiac Catheterization Laboratory under

Defendant Distanislao as part of JSUMC‘s Preceptor Program. After Roe complained

about Distanislao, Roe was assigned Defendant Lovey as his new preceptor for the

remainder of the Preceptor Program. Roe alleges that their relationship was positive and

amicable until their final twenty-four hours together. At that point, Lovey‘s attitude

suddenly changed and Lovey told Roe to perform tasks that he was not previously

required to do. That same day, Defendant Cusson informed Roe that Lovey had reported

deficiencies in Roe‘s work. Roe was instructed that if his work did not improve, he

would be terminated at the end of the ninety-day ―probationary period,‖ as provided in

the CBA.



                                              3
      JSUMC ultimately terminated Roe on October 18, 2010, during his probationary

period. Following his termination, Roe contacted the Union representative to pursue any

remedy under the CBA. The Union representative, Frederick DeLuca, filed a grievance

on Roe‘s behalf, which JSUMC denied. DeLuca informed Roe that the Union would not

pursue arbitration, and explained that the Union‘s past pattern and practice, consistent

with ―the way the Union and Corporate Defendants ‗read‘ the CBA‖ was that ―no

procedural nor substantive job protections apply‖ until after the ninety-day probationary

period.

B.    The CBA

      JSUMC and the Union are parties to a CBA, which gives JSUMC certain rights

regarding the discipline and discharge of covered employees. Under the CBA, the Union

can contest any discharge or disciplinary action, and the parties consent to arbitrate any

―grievance‖ that remains unresolved after the defined ―grievance procedure.‖ (App.

120). Because Roe‘s claims require interpretation of the CBA, several key CBA

provisions are discussed herein.

The CBA provides in relevant part:

      1. Agreement Scope

      This Agreement covers all employees . . . and includes permanent
      full-time or permanent part-time employees as defined in Article
      Four, employed as a Graduate or Registered Nurse, Certified
      Registered Nurse Anesthetist, Clinical Nurse Specialist, Nurse
      Clinician, Nursing Education Instructor and per diem nurses (herein
      called “employee”) employed by the Hospital, excluding all other
      employees including Nurse Managers, Assistant Nurse Managers,

                                            4
Nurse Practitioners, Clinical Nurse Coordinators and other
Supervisors as defined by the [NLRA].

******
4. Employee Status
 ....
4.01 Status I- Full Time Permanent: An employee who is employed
on a regular basis to work forty (40) hours per work week . . . .
4.02 Status II- Part Time Permanent: An employee who is employed
on a regular basis to work twenty (20) but less than thirty-six (36)
hours per week.
4.03 Status III- Part Time Permanent: An employee who is
employed on a regular basis to work nineteen (19) or fewer hours
per work week.
4.04 Status IV- Per Diem: An employee who is employed as needed
by the Hospital and subject to the employee‘s availability with no
guarantee of hours. Such employee shall be part of the bargaining
unit and as such be entitled to seniority and all rights and benefits as
outlined in the contract . . .
4.05 Status V- Temporary: An employee who is employed full time
or part time for a limited period of time, no greater than six (6)
months in any calendar year . . . .

4.08 Probationary Period: All employees regardless of status will be
on probation for ninety (90) calendar days following employment . .
..

******
12. Discipline and Discharge

12.01 The Hospital shall reserve the right to discipline, suspend or
discharge any employee only for just cause . . . .

12.02 The designated Union representative, the Union office and the
employee involved shall be advised, in writing, of any discharge,
suspension or disciplinary action. A copy of the notice given to the
employee shall be mailed to the Union within twenty-four (24) hours
....

******
13. Grievance Procedure

                                       5
       ....
      13.02 Step I- Chief Nurse Executive: Grievances shall be raised by
      the employee and /or union representative with the Chief Nurse
      Executive or his/her designee in writing within ten (10) working
      days from occurrence giving rise to the grievance or within ten (10)
      working days from the time the employee should have reasonably
      been aware of such occurrence, whichever is later. If the matter is
      not resolved within five (5) working days of presentation of the
      grievance, it may be taken to Step II. The employee, at his/her
      request, shall have the right to have a Union representative present.

      13.03 Step II- Vice President of Human Resources: The
      employee/Union shall forward the grievance to the Vice President of
      Human Resources or his/her designee within five (5) working days
      after the receipt of the written response from the Department
      Manager. The matter will be investigated and meeting scheduled
      within ten (10) working days after the receipt of the written appeal.
      A written response to the grievance shall be given within five (5)
      working days after the meeting and returned to the grieving party. If
      there is no resolution, the grieving party may progress to Step III.

      13.04 Step III- Arbitration: The grievance may be submitted to
      arbitration by the Union within twenty (20) working days from the
      receipt of the answer in Step II . . . .

      ******
      20. Scope of Bargaining

      The Hospital and the Union acknowledge that during the
      negotiations which resulted in this Agreement, each had the
      unlimited right and opportunity to make demands and proposals with
      respect to any subject matter not removed by law from the area of
      collective bargaining and that the understanding and agreements
      arrived at by the parties after the exercise of that right and
      opportunity are set forth in this Agreement, which constitutes the
      full and complete agreement between the parties notwithstanding
      any oral agreement or any past practices, policies or procedures . .
      ..

(Id. at 73-123 (emphasis added).)

C.    Roe‘s Lawsuit


                                           6
       In Roe‘s Amended Complaint, he alleges seven causes of action: (1) a hybrid

claim under Section 301 of the LMRA, 29 U.S.C. § 185, alleging that the Hospital

breached the CBA and that the Union breached its duty of fair representation; (2) a claim

under Section 7 of the NLRA, 28 U.S.C. § 157, alleging that the Hospital violated Roe‘s

right to engage in collective bargaining; (3) a claim under the New Jersey Law Against

Discrimination against the Hospital, Cusson, and Diamond; (4) a defamation claim

against the Hospital and Individual Defendants; (5) breach of contract claims against the

Hospital; (6) a claim under New Jersey‘s Conscientious Employee Protection Act against

the Hospital, Cusson, and Diamond; and (7) a claim for tortious interference with

prospective economic advantage against the Hospital and the Individual Defendants.

       The District Court granted Defendants‘ Motions to Dismiss on October 5, 2011.

With respect to Roe‘s hybrid claim under the LMRA, the District Court held that Roe

failed to state a claim under the LMRA because he had not pled sufficient facts to show

that the Union breached its duty of fair representation. Because Roe did not demonstrate

that the Union breached its duty of fair representation, which is a necessary predicate in a

hybrid Section 301 claim, the District Court dismissed Roe‘s corresponding Section 301

claim against the Hospital. The District Court also held that Roe‘s NLRA claim was

preempted and subject to the exclusive jurisdiction of the National Labor Relations Board

(―NLRB‖). Finally, the District Court declined to exercise supplemental jurisdiction over

Roe‘s remaining state law claims.       Roe v. Diamond, Civ. No. 10-6798, 

, passim (D.N.J. Oct. 6, 2011). This timely appeal followed.

II.    DISCUSSION

                                             7
       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. This Court

likewise has appellate jurisdiction under 28 U.S.C. § 1291. We review the District

Court‘s dismissal of a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure de novo. Phillips v. Cnty. of Allegheny, 

, 230 (3d Cir. 2008).

―[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.‖ McTernan v. City

of York, 

, 530 (3d Cir.2009) (quoting Ashcroft v. Iqbal, 

, 678

(2009) (internal quotation marks omitted).         We accept as true all well-pled factual

allegations and construe the complaint in the light most favorable to the non-moving

party. See Lewis v. Atlas Van Lines, Inc., 

, 405 (3d Cir. 2008).

A. Breach of the Duty of Fair Representation

   A union‘s duty of fair representation is derived from the principle that the law allows

a ―single labor organization to represent collectively the interests of all employees within

a unit, thereby depriving individuals in the unit of the ability to bargain individually. . . .‖

See DelCostello v. Int’l Bhd. of Teamsters, 

, 164 n.14 (1983). Because a

collective bargaining agreement otherwise divests individuals of means to protect their

individual interests, the duty of fair representation serves as a ―bulwark to prevent

arbitrary union conduct against individuals stripped of traditional forms of redress by the

provisions of federal labor law.‖ See id. (citing Vaca v. Sipes, 

, 182 (1967).

Individuals may sue for breach of a collective bargaining agreement under Section 301 of

the LMRA. See Hines v. Anchor Motor Freight, Inc., 

, 561-62 (1976).

Ordinarily, where labor disputes are subject to a compulsory grievance/arbitration

                                               8
process, as in this case, an individual must exhaust all provided-for remedies in the

collective bargaining agreement before bringing suit. See Clayton v. Int’l Union, United

Auto., Aerospace, & Agr. Implement Workers of Am., 

, 681 (1981)(citations

omitted). Roe‘s hybrid claim under Section 301 of the LMRA, however, is an exception

to this general rule. See DelCostello v. Int’l Bhd. of Teamsters, 

, 163-64

(1983). An employee is not required to exhaust all remedies in the collective bargaining

agreement, when, as alleged here, a union, in its representation of the employee in a

grievance procedure, has acted in ―such a discriminatory, dishonest, arbitrary, or

perfunctory fashion as to breach its duty of fair representation.‖ See id. at 164. In such an

instance, the employee may bring a ―hybrid‖ suit under the LMRA. The Supreme Court

has described a hybrid claim as follows:

       Such a suit, as a formal matter, comprises two causes of action. The suit
       against the employer rests on § 301, since the employee is alleging a breach
       of the collective bargaining agreement. The suit against the union is one for
       breach of the union's duty of fair representation, which is implied under the
       scheme of the National Labor Relations Act. Yet the two claims are
       inextricably interdependent.

Id. at 164-65 (citations and internal quotations omitted).

       A union‘s breach of the duty of fair representation is a ―necessary condition

precedent‖ to a Section 301 claim against an employer for breach of a collective

bargaining agreement. Albright v. Virtue, 

, 576 (3d Cir. 2001).

       To demonstrate that the Union acted arbitrarily, and thus breached its duty of fair

representation, Roe must demonstrate that ―in light of the factual and legal landscape at

the time of [its] actions, the union‘s behavior is so far outside a ‗wide range of


                                              9
reasonableness‘ as to be irrational.‖ Air Line Pilots Ass’n v. O’Neill, 

, 67

(1991) (quoting Ford Motor Co. v. Huffman, 

, 338 (1953)). The Union

acted ―irrationally‖ when it told Roe that it declined to pursue arbitration on his behalf

because of a purported Union ―past practice‖ of considering ―probationary‖ employees as

not covered by the CBA. The Union‘s reliance on its past practices was in direct

contravention to the CBA‘s integration clause, which provides that the CBA ―constitutes

the full and complete agreement between the parties notwithstanding any agreement or

any past practices, policies or procedures.‖ (App. 123 (emphasis added)). Acting in

reliance on ―past practices,‖ the Union‘s behavior fell outside of the ―wide range of

reasonableness‖ and thus breached its duty of fair representation. The contrary findings

by the District Court were erroneous.1

      As further justification for its refusal to take Roe‘s grievance to arbitration, the

Union argued that a ―plain reading‖ of the CBA reveals that the CBA ―simply does not

apply to probationary employees.‖ (Union Br. 9). The terms of the CBA, however, do

not support such an interpretation.2 Although Article 4.08 of the CBA (the ―probation


1
      In addition, the District Court made a factual error in concluding that the Union‘s
reliance on its ―longstanding practice . . . as to probationary employees‖ was within the
―wide range of reasonableness as to be []rational.‖ Roe, 

, at * 5. The
District Court stated Roe ―acknowledges [that] JSUMC and the Union have a
longstanding understanding and established practice that probationary employees are not
members of the Union.‖ Id. at 4. In his Amended Complaint, however, Roe alleged that
the Union representative merely told him about that past pattern and practice; Roe did not
concede its existence. (App. 44).
2
    Article One of the CBA states that the CBA ―covers all employees . . . and includes
permanent full-time or permanent part-time employees as defined in Article Four.‖ (App.
44). Article Four distinguishes between ―permanent,‖ ―per diem,‖ and ―temporary‖
                                           10
clause‖) provides that ―[a]ll employees . . . will be on probation for ninety (90) calendar

days following employment,‖ the CBA does not explicitly state that ―probationary‖

employees are not covered by the CBA. (App. 89). Even though the CBA restricts the

rights of probationary employees in the receipt of certain fringe benefits (such as vacation

time), it is certainly plausible to interpret the CBA as merely restricting ―probationary‖

employees‘ eligibility for fringe benefits rather than wholly excluding any rights under

the CBA.3 Despite this plausible interpretation that the CBA does not explicitly exclude

―probationary employees‖ from coverage, the District Court nevertheless concluded, that

―the Union's justification for not taking Plaintiff‘s grievance to arbitration finds support

in the explicit language of the CBA.‖ Reviewing the evidence in the light most favorable

to Roe, as is required at this stage of the proceedings, there is satisfactory evidence to

employees. (Id. at 86–87). Whereas the former two categories of employees are ―part of
the bargaining unit,‖ Article Four does not explicitly provide CBA coverage to
―temporary‖ employees. (Id. at 87).

    Because ―temporary‖ employees are not covered by the CBA, the Union attempts to
argue that all ―probationary‖ employees are ―temporary‖ employees. This is based on a
strained and logically flawed interpretation of the CBA. Article Four states that ―All
employees regardless of status will be on probation for ninety (90) calendar days
following employment . . . .‖ (Id. at 89). Although ―permanent,‖ ―per diem,‖ and
―temporary‖ employees are subject to a ninety day probation period pursuant to Article 4,
it does not follow every employee is a ―temporary‖ employee during this probation
period.
3
   Indeed, the District Court also made a factual error when it determined that Roe
―concede[d] [that Union] dues were not in fact deducted from his salary during his
employment‖ to support to Court‘s conclusion that ―the Union‘s decision not to take
Plaintiff‘s grievance to arbitration [was] consistent with its understanding of probationary
employees‘ rights . . . .‖ Roe, 

, at * 4. In fact, in his Amended
Complaint, Roe alleged that the ―Hospital withheld Union dues from Roe‘s JSUMC
paychecks during his employment.‖ (App. 33).


                                            11
support a finding of arbitrary conduct in breach of the Union‘s duty of fair representation.

The District Court, by reason of this decision, is now obliged to reach the second prong

of the hybrid claim, to wit, Roe‘s Section 301 claim against the Hospital. 4

B.     Jurisdiction over NLRA Claims

       The District Court properly granted the Hospital‘s Motion to Dismiss Roe‘s

NLRA claim. ―When an activity is arguably subject to [Section] 7 or [Section] 8 of the

[NLRA], the . . . federal courts must defer to the exclusive competence of the National

Labor Relations Board.‖ San Diego Bldg. Trades Council, Millmen’s Union, Local 2020

v. Garmon, 

, 245 (1959). ―Preemption . . . is designed to shield the system

from conflicting regulation of conduct. It is the conduct being regulated, not the formal

description of governing legal standards, that is the proper focus of concern.‖

Amalgamated Ass’n of Street, Elec. Railway & Motor Coach Employees v. Lockridge,

, 292 (1971). ―Garmon preemption protects the exclusive jurisdiction of the

NLRB over unfair labor practice proceedings; accordingly, if a cause of action implicates

protected concerted activity under Section 7 of the NLRA or conduct that would be

prohibited as an unfair labor practice under Section 8 of the NLRA, the cause of action is

preempted.‖ Voilas v. General Motors Corp., 

, 378 (3d Cir. 1999).



4
    Having determined, albeit incorrectly, that Roe failed to establish that the Union
breached its duty of fair representation—the ―necessary predicate‖ under a Section 301
hybrid claim—the District Court did not engage in an analysis of Roe‘s Section 301
claim against the Hospital. Roe, 

, at * 6 (―Because the necessary
predicate in a hybrid § 301 claim is a demonstration that the Union breached its duty of
fair representation . . . Plaintiff‘s § 301 claim against the Hospital Defendants must be
dismissed.‖) (citation omitted).
                                            12
       Roe alleges that the Hospital terminated him because of his efforts to enforce CBA

provisions that guaranteed effective Preceptors to new nurses. Because this claim alleges

that Roe was terminated for asserting his rights guaranteed by the CBA, it is governed by

Sections 7 and 8 of the NLRA and is preempted under Garmon. Thus, the District Court

properly dismissed the NLRA claim.

C.     Supplemental Jurisdiction

       The District Court recognized its discretion to retain jurisdiction over Roe‘s

remaining state-law claims but, having dismissed all of the federal claims, properly

declined to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3). Though the

District Court correctly declined to exercise supplemental jurisdiction over the remaining

state-law claims, because the federal LMRA claims are reinstated following remand, the

state law claims are necessarily reinstated as well.



III.   CONCLUSION

       We affirm-in-part the District Court‘s Order to the extent that it granted the

Hospital‘s Motion to Dismiss Roe‘s NLRA claim.              Because the District Court

erroneously concluded that the Union did not breach its duty of fair representation to

Roe, we reverse-in-part the District Court‘s Order to the extent that it granted

Defendants‘ Motions to Dismiss Roe‘s hybrid claims under the LMRA, and we direct the

District Court to reinstate that claim and conduct further proceedings consistent with this

opinion.



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