to support Torre's equitable tolling argument. Falcon notes that Torre's argument that he first learned of the statute from a posting in January 1988 is not supported by any affidavit, deposition or other matter of record as is required by Fed. R. Civ. P. 56(e) to defeat a motion for summary judgment.
Although the parties have raised a host of issues, the Court can reduce the issues to two: (1) whether Torre's claim is barred by the doctrine of collateral estoppel; and (2) if not, whether his claim is time barred.
The collective bargaining argument entered into by Falcon and Torre's Union clearly provides that the purpose of the arbitration procedure is to settle "any and all disputes or grievances." Id. article 14, section 1. Counsel for Torre conceded at oral argument that the arbitrator was legally empowered in the initial arbitration proceeding to hear Torre's claim pursuant to the whistle blower statute. Torre argues, however, that he should be allowed to proceed with the instant action because his original claim was asserted under a different legal theory. Though conceding that the facts of the two claims may be the same, Torre contends that the issue presented to the arbitrator was narrower than the issue currently before this Court. Torre asserts that the question decided at arbitration was whether Falcon breached the collective bargaining agreement by wrongfully discharging Torre while the question presently before the Court is whether Torre has established a case of retaliatory discharge under the whistle blower statute.
If an issue was actually litigated and necessarily determined in an action, the doctrine of collateral estoppel precludes the parties from relitigating that issue in a subsequent action; relitigation of an issue is precluded only if the issue raised in the second action is identical to the issue decided in the first action. McLendon v. Continental Group, Inc., 660 F. Supp. 1553, 1561 (D.N.J. 1987).
It is established that the findings of an arbitrator can have a collateral estoppel effect in a federal court proceeding. See Benjamin v. Traffic Executive Ass'n Eastern Railroads, 869 F.2d 107, 110 (2d Cir. 1989). Both federal law and New Jersey law appear to give estoppel effect to issues actually litigated in an arbitration proceeding, so long as the arbitration process was fair, the decision was reliable and no exception was provided. See Ivery v. United States, 686 F.2d 410, 413 (6th Cir. 1982), cert. denied, 460 U.S. 1037, 103 S. Ct. 1428, 75 L. Ed. 2d 788 (1983); Nogue v. Estate of Santiago, 224 N.J. Super. 383, 385-86, 540 A.2d 889, 890 (App. Div. 1988).
The Court finds that the arbitration proceeding decided the identical issue that is in dispute in this matter: whether Torre was wrongfully discharged for having informed EAF that Falcon had improperly performed an aircraft inspection. Torre, therefore, is collaterally estopped from bringing the current action. Alternatively, the matter is res judicata. See Goel v. Heller, 667 F. Supp. 144, 149-50 (D.N.J. 1987).
Because the Court has decided that Torre's claim under the whistle blower statute is barred by the doctrine of collateral estoppel, it need not address the issue of equitable tolling; whether or not Torre's claim is timely, it is barred.
Because the issue in dispute in the case at bar is identical to the issue decided in the initial arbitration proceeding, was actually litigated in that proceeding, and was necessary to the ALJ's determination, Torre is collaterally estopped from relitigating that issue in the current action. The Court will therefore grant Falcon's motion for summary judgment.
An appropriate order is attached.
Dated: August 14, 1989
For the reasons set forth in an opinion of the Court filed herewith,
IT is on this 14th day of August, 1989
ORDERED that defendant's motion for summary judgment in its favor and against plaintiff is granted.