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Maher v. New Jersey Transit Rail Operations Inc.

Decided: March 9, 1990.

EDWARD MAHER, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC., AND BROTHERHOOD OF RAILROAD SIGNALMEN, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

J. H. Coleman, Brody and Muir, Jr. The opinion of the court was delivered by Coleman, J. H., P.J.A.D.

Coleman

[239 NJSuper Page 216] The issue raised in this appeal is whether federal preemption precludes plaintiff, a railway worker, from proceeding in State court with state law claims for alleged handicap and retaliatory discharge discrimination in employment. The trial judge found that all of plaintiff's state law claims involved "minor disputes" and were therefore preempted. Summary judgments were granted dismissing the complaint. We hold that state law claims of employment discrimination are not preempted unless determination of the state law claims requires interpretation of the collective bargaining agreement (CBA). We now affirm in part and reverse in part.

For some time prior to 1987, plaintiff was employed by defendant New Jersey Transit Rail Operations, Inc. (N.J. Transit) as a signalman. He was a member of defendant Brotherhood of Railroad Signalmen Union (BRS). A CBA existed between N.J. Transit and BRS. On December 17, 1987, plaintiff was fired.

Plaintiff instituted the present litigation on January 27, 1988. In the first count of the complaint, plaintiff alleges that N.J. Transit violated the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. This contention is based on plaintiff's assertion that he was fired because he blew the whistle on his supervisor. In the third count of the complaint, plaintiff alleges that N.J. Transit violated New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 et seq., because of his visual disability. Under these two counts, plaintiff sought reinstatement to his former position with full benefits, compensatory and punitive damages. In addition, plaintiff alleges in the second count that the BRS breached its duty of fair representation of him and he also sought compensatory and punitive damages. On February 17, 1989 summary judgments were entered dismissing all three counts of the complaint. This appeal followed.

I

The facts essential to our decision are not in dispute. William French, the supervisor of the Signal Department, was plaintiff's supervisor until February 1984. Suspecting that French was cheating on his employer, plaintiff retained the services of a private investigator in June 1984 to follow French. The investigation revealed that French was not at his place of employment during all the hours he was paid to work and that he was drinking and playing golf during working hours. When plaintiff's information was turned over to the N.J. Transit Police, it conducted its own investigation. Plaintiff also gave a statement in August 1984 outlining certain misconduct by

French consisting of drinking alcohol on the job, playing golf on company time, and dispensing overtime work to friends only. Ultimately, French was dismissed. Plaintiff alleges in his complaint that he has been harassed and terminated in retaliation for blowing the whistle on French.

Further, plaintiff claims handicap discrimination based on certain events that transpired after he was diagnosed in 1984 as being legally blind in his right eye. He was shot in the eye in 1969 with a BB gun in an incident unrelated to his work. This injury caused a loss of central vision in that eye. Even though N.J. Transit became aware of plaintiff's legal blindness of the right eye in 1984, if not sooner, he was not required to wear safety glasses at work prior to July 1986 because the side shields in safety glasses obstructed his peripheral vision, the only useful vision that remained in that eye. Consequently, plaintiff worked without safety glasses between the time the diagnosis of legal blindness was made in 1984 and March 1985. Between March 1985 and March 1986, plaintiff took a leave of absence from work for reasons unrelated to his visual disability. Three months after plaintiff had returned to work in March 1986, some weed killer residue entered his eyes on the job. This incident which occurred during the week of June 30, caused chemical conjunctivitis.

Plaintiff was out of work a few weeks due to the chemical irritation to the eyes. He returned to work on or about July 22, 1986 with a slip from Dr. Allan W. Goldfender requesting light duty for him because of the chemical irritation of his eyes. However, no light work was obtained and plaintiff did not resume work. In September 1986 plaintiff attempted to return to his job as a signalman. At that time, if not sooner, he was informed that he would have to begin wearing safety glasses as required by the N.J. Transit Maintenance of Way Department Safety Rule 15 (Rule 15). That rule, in pertinent part, provides, "An employee blind or practically blind in the eye must wear protective glasses at all times while on company property." This rule was in effect prior to 1984.

Plaintiff filed a grievance on January 9, 1987 pursuant to Rule 4-K-1(a) of the CBA because he was not permitted to resume his employment as a signalman. Thereafter, attempts were made to resolve the conflict pursuant to the CBA. Ultimately, representatives from BRS and from N.J. Transit reached an agreement whereby plaintiff would be assigned to the Third Trick Trouble Desk position, which we understand is an inspector's type of job in The Signal Department. By the terms of the agreement, plaintiff was required to wear the safety glasses specifically made for him by the employer which included side vents. This special agreement was made pursuant to Rule 3E-1(a) of the CBA. Under the special agreement, plaintiff was required to report back to work within ten days after receipt of notification mailed to him on September 18, 1987.

On September 29, 1987, plaintiff's private attorney rejected the settlement. On October 21, 1987, however, that same attorney informed N.J. Transit he had advised plaintiff to return to work and that plaintiff no longer wanted the BRS to represent him. On December 17, 1987, plaintiff was discharged from N.J. Transit's employment following a hearing after he failed to report to work at the Third Trick Trouble Desk. The discharge was allegedly for insubordination pursuant to General Rule D of the CBA. Less than six weeks later, the present litigation was commenced.

The trial judge granted summary judgments dismissing the complaint after concluding that plaintiff's complaint is an artfully drawn wrongful discharge claim. He concluded wrongful discharges of railway workers constitute "minor disputes" and that all of plaintiff's state law claims are preempted by the Federal Railway Labor Act (RLA). The trial court relied on Gonzalez v. Northwest Airlines, Inc., 201 N.J. Super. 422, 427, 493 A.2d 547 (App.Div.1985). There we stated "Wrongful discharges constitute 'minor disputes' under the CBA subject to final, binding, mandatory arbitration under the RLA." Ibid.

II

On this appeal, plaintiff contends his claims of retaliatory discharge and handicap discrimination are state law claims that are independent of federal law and are not preempted by the RLA. Stated differently, plaintiff contends his claim of handicap discrimination and his claim of retaliatory discharge as a whistle blower are independent of the CBA because State law prohibits such discrimination even in the absence of the CBA. N.J. Transit counters by asserting that because plaintiff is a railway employee, his exclusive remedy is confined to § 153 of the RLA which, according to N.J. Transit, deprives the State court of jurisdiction. It is true that § 153 of the RLA establishes an elaborate system of mandatory and exclusive arbitration of work-related disputes. A Railway Adjustment Board (Board) is the final ...


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