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TORRE v. FALCON JET CORP.

August 14, 1989

RICHARD TORRE, Plaintiff,
v.
FALCON JET CORP., Defendant



The opinion of the court was delivered by: WOLIN

 This is an action filed by plaintiff Richard Torre charging defendant Falcon Jet Corporation with violating New Jersey's Conscientious Employee Protection Act (commonly known and hereinafter referred to as the whistle blower statute), N.J.S.A. §§ 34:19-1 to -8. Defendant now moves for summary judgment dismissing the complaint. The Court will grant the motion.

 BACKGROUND

 Plaintiff Richard Torre is an inspector of corporate aircraft employed by defendant Falcon Jet Corporation ("Falcon") at the company's facility in Teterboro, New Jersey. As an inspector, Torre is required to inspect aircraft to ensure compliance with safety regulations of the Federal Aviation Administration and Falcon. Torre is a member of Local 504 of the Transport Workers Union of America and his employment relationship with Falcon is governed by a collective bargaining agreement between Falcon and the Union.

 On March 24, 1986, Torre was assigned to perform a routine inspection on a Falcon 50 Jet owned by Executive Air Fleet ("EAF"). During the course of the inspection, Torre received a direct order from his supervisor to perform the inspection of the aircraft without removing the "upper cowling" of the plane's engine. Torre believed that deleting this part of the inspection was an unsafe procedure, and he refused to complete the inspection unless he was allowed to do so properly. As a result of his noncompliance with the supervisor's order, Torre received a three-day suspension for insubordination. Torre's Union unsuccessfully grieved the matter.

 Although it is not clear who contacted whom, in September 1986 Torre informed a representative of EAF that, though the inspection report had been signed, the March 1986 inspection had not been properly performed. Consequently, EAF contacted Falcon to discuss the company's inspection procedures. Falcon assured EAF that the inspection had been properly performed and that no misconduct had occurred.

 On September 17, 1986, Falcon suspended Torre for five days for allegedly having made false and misleading statements to EAF. One week later, Falcon terminated Torre. Torre grieved his discharge through the Union, arguing that there was not just and sufficient cause to support the termination as required by the collective bargaining agreement, article 19, section 1. Torre asserted that the inspection had been improperly performed and that he had been wrongfully discharged for having communicated that to EAF.

 The matter was grieved and went to arbitration in June 1987. *fn1" On August 14, 1987, the arbitrator issued an Award and Opinion concluding that just and sufficient cause existed under the collective bargaining agreement to warrant disciplinary action against Torre. The arbitrator, however, found termination to be too severe a penalty and modified the penalty to suspension without back pay, benefits or seniority from September 17, 1986 to the date of reinstatement. Neither party appealed the arbitrator's decision.

 In support of its motion for summary judgment, Falcon maintains that Torre's claim is governed by New Jersey's Arbitration Act, N.J.S.A. §§ 2A:24-1 to -11, and is barred by that act's three-month statute of limitations. *fn3" Falcon contends that even if Torre's complaint is found to properly assert a claim under the whistle blower statute, Torre's claim is still barred by the one-year limitations period provided by § 5 of that statute, N.J.S.A. § 34:19-5.

 Falcon further maintains that Torre's claim is barred by the election-of-remedies provision of the whistle blower statute, N.J.S.A. § 34:19-8. *fn4" In support of this contention, Falcon argues that because Torre elected to pursue his right to grieve and arbitrate his termination under the collective bargaining agreement and to accept the remedy of reinstatement provided by the arbitrator, he should be precluded from now pursuing alternative rights and remedies under the whistle blower statute. Finally, Falcon urges that the doctrines of res judicata and collateral estoppel bar the present cause of action because the issues before the Court have previously been considered and decided.

 In his brief in opposition to the motion for summary judgment, Torre makes three arguments. First, Torre contends that his complaint is not governed by New Jersey's Arbitration Act because he does not seek to modify the arbitration award, but to be "made whole" by the whistle blower statute. Torre argues that the Arbitration Act does not apply where an employee seeks redress under the whistle blower statute subsequent to receiving an arbitration award, and that therefore his claims are independent and not subject to the doctrine of res judicata or collateral estoppel.

 Second, Torre asserts that he has established a prima facie case of retaliatory discharge under § 3 of the whistle blower statute, N.J.S.A. § 34:19-3, and therefore is entitled to damages. Finally, Torre maintains that his complaint is not barred by the one-year limitations period provided by the whistle blower statute. Torre argues that because Falcon failed to post a notice of his rights under the statute as required by § 7 of the statute, N.J.S.A. § 34:19-7, he should not be penalized for being unaware of his rights and obligations to bring suit within one year of the incident at issue. Torre maintains that his claim for retaliatory discharge should be deemed actionable for one year from the posting of the statute on or about January 20, 1988.


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