Maher v. New Jersey Transit Rail Operations, Inc.

A.2d 750 MAHER, PLAINTIFF-APPELLANT AND CROSS-RE- EDWARD OPERATIONS, SPONDENT, RAIL NEW JERSEY TRANSIT CROSS-APPELLANT, INC., AND DEFENDANT-RESPONDENT SIGNALMEN, DEFEN- RAILROAD AND BROTHERHOOD OF DANT-RESPONDENT. August

Argued February 1991. 1991 Decided . argued appellant R. the cause for and cross- Sanford Oxfeld Cohen, (Balk, attorneys). respondent Oxfeld, Mandell & Silkowitz, General, Attorney argued

Andrea M. Assistant (Robert respondent cross-appellant Del the cause for J. Jersey, attorney; Tufo, Attorney General of New Harrier General, brief). Miller, Deputy Attorney on the Heuer (Hott respondent argued the cause for & Timothy R. Hott attorneys). Margolis, Director, Division of Public Interest Shapiro,

Richard E. curiae, Advo- Advocacy, argued the cause for amicus Public Advocate, Caraballo, attorney; Richard (Wilfredo cate Public Marino, Litigation, Director of on the Shapiro E. and Kevin H. brief). delivered opinion of the Court was

CLIFFORD, J. preemption, under presents questions of federal appeal This Act, 151 to Railway Labor 45 U.S. C.A. provisions of the §§ Act, 421 to Safety C.A. Federal Railroad U.S. and the §§ rights. employees’ involving of state-law-based claims Maher, employment Plaintiff, dismissed from his Edward (NJT), Operations, Rail Inc. Jersey Transit New with defendant alleging violations of the New employer against suit filed -42 Discrimination, 10:5-1 to N.J.S.A. Against Jersey Law Employee Protection (LAD), Jersey the New Conscientious CEPA). His (Whistleblower Act or Act, to -8 34:19-1 N.J.S.A. union, its charging with a breach of his it complaint also named dismissed the The trial court duty representation. fair summary judgment, rul- on defendants’ motions complaint Railway preempted by the were ing plaintiff’s claims all of that affirmed so much Appellate Act. The Division Labor claims, but fair-representation ruling the LAD and as dismissed Act. See under the Whistleblower plaintiff’s claim reinstated (1990). 213, 570 A.2d 1289 N.J.Super, and NJT’s petition for certification granted plaintiff’s We We now 584 A. 2d cross-petition. See N.J. restoring plaintiff’s Appellate judgment Division affirm the reverse preempted, LAD claim but holding CEPA claim plaintiff’s claim judgment as determines so much of its Act. by the against preempted the union is I January for NJT on began working signalman as a Plaintiff commuter-rail over certain of the the date it took Conrail, since plaintiff had worked operations.' of for whom of defendant Brotherhood of was a 1976. Maher member (BRS), under representative exclusive Signalmen Railroad employees who work agreement for NJT collective-bargaining plaintiff’s field. legally diagnosed being as blind his In 1984 Maher was had occurred pellet-gun accident that right eye as a result of of central vision Although injury caused the loss in 1969. was unaffected. Short- eye, plaintiff’s peripheral vision in that French, supervisor, William ly diagnosis Maher’s after safety glasses pursuant to to wear attempted require Maher NJT’s Way Department Maintenance of Safety Rule which directs employee blind practically eye in blind “[a]n protective must glasses wear at all times while company on property.” however, complained, Maher glasses’ that the side prevented seeing shields him from out right eye of his at all. Following personal recommendations from physician Maher's doctor, agreed, first, and an NJT NJT exempt to Maher from application. Rule 15’s

Maher apparently and French enjoy did not an amicable relationship. days For several in June 1984 Maher retained a private investigator to monitor working-hour French’s activi- investigator ties. The reported that French had authorized friends, unearned pay overtime played golf had drunk and duty, arranged while on had for certain in charge of those his to work being paid NJT, on his home while and had other- position. wise abused his Maher had investigator submit report police department, his to NJT’s which conducted its own inquiry. gleaned As a result of evidence from its own investi- gation report, and from Maher’s NJT dismissed French.

Maher took a leave job of absence from his from March 1985 1986, claiming until March that he needed the time off to recover from stress related to sight harassment at NJT over his return, handicap. Three months after his while Maher was on job, eyes exposed his weed-poison spray, were to resulting conjunctivitis, in chemical plaintiff which caused to leave work for several He in July weeks. returned with a note from requesting light duty his doctor continuing because of sensitivi- ty eyes. however, in his duty, NJT did not offer that plaintiff did not resume work at that time. September sought

That Maher job to return to his as a signalman required but was informed that he would be to wear safety glasses at all times in accordance with Rule 15. Because condition, plaintiff refused to work under that NJT did permit position. him to resume his former Pursuant to the collective-bargaining agreement, plaintiff grievance in filed a 1987, claiming

January unjustifiably that NJT had refused him return to allow work. negotiated griev- stayed out of while BRS his

Maher work union, however, neglected with include ance NJT. whether he plaintiff the discussions or to determine found acceptable. rejected an initial proposed solutions Plaintiff employer had achieved settlement been to a have resulted Maher’s transfer “cable union would negotiations. A gang,” so and the resumed second BRS carrier Septem- agreement union and NJT was struck between 1987; pay for for Maher to receive no back the ber it called railway’s to him to year spanned that the refusal allow return signalman unwillingness as of his to wear to work because settlement, date the and for Maher to be glasses and the position and to wear midnight-shift transferred to a clerical settlement, job. desk The made protective goggles that collective-bargaining agreement pursuant provision to a employees, governed included a that the transfer disabled days plaintiff report back to work within ten proviso that its terms. notification of well, he asserting that that was rejected

Maher settlement as training lack proposed job for the because of ill-suited superfluous. safety job Despite goggles that a desk were directly matter with his request that resolve the Maher’s NJT so, asserting attorney, employer the to do that personal refused duly-authorized representative. When plaintiff’s the union was refusal, persisted “proper justification,” in his Maher without designated the settlement report position at the work NJT, agree- pursuant collective-bargaining the agreement, ment, represented hearing. a dismissal Plaintiff conducted hearing, although present. In the union was himself testimony that had never been consulted spite of Maher’s he settlement, job, new that he was unsuited about Rule agreement exempted he from by previous was him for December 1987. dismissed insubordination NJT Plaintiff complaint filed his in the Law'Division one month meantime, later. In plaintiffs and over objection, the union unsuccessfully pursued an appeal of Maher’s dismissal with NJT. The union then obtained hearing an arbitration before Special Adjustment Board), Board of (Adjustment an infor- mal, quasi-judicial forum by Railway established Labor Act grievances to hear not settled union/carrier conference. See Adjustment U.S.C.A. 153 Second. The Board found that § negotiated NJT and the union in good had faith to seek a comply solution which Maher could with Rule 15 and contin- employment. ue his It then found that Maher’s termination for had insubordination been warranted because he had not re- turned to work under the agreement terms of the settlement hearing procedural and that the dismissal had included no irregularities due-process defects that would have affected right Maher’s hearing. Adjustment to a fair Board con- unilaterally cluded that Maher disqualify could not himself assignment, from the clerical report his refusal to for the action, position inappropriate job constituted an and that NJT justified dismissing had been him. granted summary judgment

The Law Division for defendants complaint, ruling plaintiff’s on all counts of the three preempted by claims were Labor Act. As indi- cated, Appellate Division affirmed the dismissal of the LAD fair-representation claims and reversed on the Whistleblow- er Act claim.

II begin elementary premises a outline of the We with brief supporting preemption system doctrine. our federal Under government possess sovereignty of concurrent with the States government, subject only to that of the federal the limitations supremacy imposed by the clause of the United States Constitu tion, VI, Levitt, 455,-, article 2. 493 clause v. U.S. Tafflin 792, 795, 887, (1990). 2d That clause 107 L.Ed. 894

464 pursuance made in of provides that laws federal constitutional authority “supreme Although the land.” a become law of in power, any sovereign, has the inherent to determine State against authority, an offense laws that shall be its “state what with, contrary Congress, or are to laws of made 'interfere pursuance in of constitution’ are invalid.” Wisconsin Pub. — -, Mortier, -, 2476, 111 Intervenor v. U.S. S.Ct. 2478, (1991) (quoting 22 Ogden, 115 532 Gibbons v. L.Ed.2d 1, 71, 23, (9 Wheat.) (1824)). “The 6 L.Ed. 73 constitution- U.S. particular field of law principles pre-emption, al whatever designed they operate, are with a common end in view: avoid conflicting regulation of conduct various official bodies might authority subject have some over matter.” [that] Street, Ry. Amalgamated Ass’n Elec. & Motor Coach 274, 285-86, Lockridge, 403 Employees v. U.S. S.Ct. (1971). establishing law a cause of is Whether state action question preempted given congressional in a case is a intent. Lueck, Corp. Allis-Chalmers v. U.S.

1904, 1909, (1985). may 2d That 85 L.Ed. intent be obvious expressly Congress it is set forth the terms of its when Co., 121 Dewey Reynolds v. Tobacco N.J. statute. See R.J. statutory In of explicit 577 A.2d 1239 the absence given in a language, congressional supersede intent state law implicit regulation if is area is the scheme federal Congress to make the inference that left no room “so as reasonable pervasive * * * Congress for the States to “the Act of a field touch[es] supplement it,”„if so the federal will be which federal interest dominant system subject,” assumed to enforcement of state laws on same if the preclude “sought goals “obligations and the reveal a to be obtained” imposed” purpose — [Mortier, supra, S.Ct. at-, state authority. preclude Corp., Fe Elevator Rice Santa (quoting (1947)).] 91 L.Ed. express language or Finally, even in the absence of field, court implied congressional occupy intent to must preempted actually it find state law to be “to the extent that Employees conflicts with federal law.” Brown v. Hotel Int’l

465 Union, 491, 510, 468 U.S. 3179, 3190, S.Ct. 104 373, 82 L.Ed.2d (1984). 383 Such conflict “compliance is found when with both regulations federal and state physical is a impossibility,” Flor Growers, Paul, ida Lime & Avocado Inc. v. 132, 373 U.S. 142- 43, 1210, 1217-18, S.Ct. 248, 83 (1963), 10 257 or if the impedes local law the accomplishment of the purposes full objectives Congress of acting pursuant to its constitutional powers. Chicago & Transp. N.W. v.Co. Kalo Brick & Tile Co., 311, 316, 101 U.S. 1124, 1129, 450 S.Ct. 258, 67 L.Ed.2d 265 (1981). The importance relative to the State of its own law is not material when that law conflicts with a valid federal stat Fidelity Fed. Cuesta, Sav. & Loan Ass’n v. de la ute. 458 141, 153, U.S. 3014, 3022, S.Ct. 664, 102 73 L.Ed.2d 675 preemption doctrine of in labor law concerns the Congress extent to which permissible has limited the scope of regulation state activity touching labor/management on rela Labor, New York Tel. tions. Dep’t Co. New York State U.S. 1328, 440 99 S.Ct. 1334, 553, (1979). Although congressional preemptive power in the field established, of labor relations is well see National Labor Relations Board v. Laughlin Corp., Jones & 1, Steel U.S. S.Ct. 81 L.Ed. (1937), legislative the federal body “has authority occupy never exercised the entire field in the legislation.” Lueck, area supra, of labor at at Supreme L.Ed.2d at 213. The Court has. “ indicated that it pre-empted regula ‘cannot declare all local touches, any way tion that complex concerns interrela tionships employees, employers, unions; between obvious ” ly, Id. at 208 n. much of this is left to the States.’ 105S.Ct. Lockridge, supra, (quoting at 1909 n. 85 L.Ed.2d at 213 n. 4 484). Thus, at L.Ed.2d at question addressing of whether a state statute labor and management preempted relations federal considerations is “ intent; congressional one purpose Congress is the ‘[t]he ” Id. 105 S. Ct. ultimate touchstone.’

466 435 (quoting Corp., Motor Malone White L.Ed.2d at 443, 1185, 1190, (1978)). industry affecting law the railroad of state Preemption statute, Act. That “and the the governed by it, appreciated apart be from part a of ‘cannot concepts that are purposes which it which it came and the out of the environment ” Transp. Pa. Auth. v. designed to serve.’ Southeastern was Cir.1989) (3d 882 A. Ry. Signalmen, 2d Brotherhood of Burley, Ry. v. 325 U.S. (quoting Elgin, J. & E. (Frankfurter, J., (1945) L.Ed. — -, denied, dissenting)), cert. (1990). L.Ed.2d 835 in in Europe in the demand this out

When war broke pool supplies depleted the of country munitions and other for greatly the volume of railroad labor and increased available labor, finding strong, in itself a bar- freight traffic. Railroad the concessions from na- position, sought substantial gaining managers. When the railroads rebuffed those tion’s railroad demands, major overwhelmingly voted a four unions the Stover, The generally J. and De- nationwide strike. See Life (1970). In order American Railroad cline efficient, during this coun- uninterrupted rail service to ensure war, temporari- government federal try’s in the involvement gave full industry government in The ly nationalized 1917. unions, rapid growth which resulted recognition to Garrison, National Railroad membership. See The worker Agency, 46 Unique A Administrative Adjustment Board: cooperation Government-and-union Yale L.J. establishing seniority rights, reason- rules produced nationwide hours, security arbitrary discharge, and a working from able Recognizing railway equitable pay more scale. Ibid. state,” own and industry with its customs is a “state within bi-partisan adjustment government instituted vocabulary, the disputes arose. apply interpret those rules when and boards resolving dis- enjoyed a remarkable record Those boards putes. Ibid.

Although government federal retaining considered con- conclusion, trol of the railroads after the war’s it returned the industry private Despite atmosphere hands 1920. an charged unrest, management with labor successfully acted to employment curb wage peaks, war-time and many gains by the years. achieved unions were lost within a few competent adjustment replaced war-time an- boards were with panel chiefly other form of review notable for its ineffective- ness, concept board with nation-wide reach even- tually support lost management. from both labor and Id. at 571-73. Congress adopted Railway

When the initial version the 1926, Labor affirming equal Act in it concentrated on the authority carrier in negotiating and union a collective-bar- gaining agreement. provided dispute- Act The 1926 localized system parties go review that left all the free at times to to disputes court to even resolve the smallest over the terms of agreements. 725-26, Burley, supra, those See 325 U.S. at 65 parties’ at extravagant 89 L.Ed. at 1896. The resort to the courtroom that followed the 1926 Act resulted in griev- constant the crippled system. deadlock Individual ances until on accumulated unresolved their sheer volume took proportions major dispute. the of a Id. at 65 S.Ct. at imminent, appeared 89 1896. national L.Ed. at When a crisis ballots, taking Congress with several unions strike to strove impasse break the with its 1934 amendments to the Act. Recognizing mounting by that the been unrest had fostered inability optional-jurisdiction the boards to resolve small- conclusively, sought Congress scale to sta- differences ensure bility by “providing effective and efficient remedies for the railroad-employee disputes arising out of inter- resolution of the pretation collective-bargaining agreements.” Pac. Union Sheehan, 58 R.R. v. U.S. L.Ed.2d among changes the was the cre- Prominent up compulsory binding system ation made of a of a and arbitral Board, Adjustment National Railroad see U.S.C.A. § First, system, group, adjustment boards established unions, and its see 153 Second. region, by or a carrier id. § * * * grievances” “disputes growing out of Under that scheme by parties. in the first instance Id. are to be resolved § unsuccessful, (i). Railway Act If effort is Labor First provides dispute Adjustment referred to an Board that the be board) (as Act any adjustment shall we refer ibid.; Second. Decisions of an for resolution. See id. § binding. are final and See id. 153 First Adjustment Board § (m). Adjustment charged securing are with Boards grievances arise orderly and final settlement of

“prompt, employees regarding pay, and carriers rates of daily between Sheehan, working supra, conditions.” rules Although not so labelled 99 S.Ct. at 359. Act, disputes “minor” such have been termed Supreme Burley, supra, See United States Court. disputes, (“Major” at 1894. on 65 S.Ct. at 89 L.Ed. hand, relate differences “over the formation of the other them”; “present agreements they collective or efforts secure ordinarily large about which strikes arise with issues [Railway Act consequent interruptions of traffic Labor] 1289-90, at sought to avoid.” Id. at 65 S. Ct. L.Ed. 1894-95.) of the revised In order to ensure the effectiveness at Act, it Railway Congress considered “essential” that Adjustment disputes kept jurisdiction the the minor be within Sheehan, supra, “and at Boards out of courts.” Although Act at L.Ed.2d at 359. provides appeals Adjustment Boards from decisions courts, (q), 153 First may be taken in the federal 45 U.S .C.A.§ “among as the narrowest that review has been characterized known to the law.” Id.

357. so, recognized exceptions four to the

Even the courts have unions, carriers, employees general rule are limited Adjustment Boards for the resolution the forum of the grievances. important Because an policy underlying the Rail way Labor Act’s scheme is to afford employees means for redress, judicial intervention is warranted when appears “it without such access to the employee’s courts the right redress would be jeopardized.” Childs v. Pennsylvania Fed’n Bhd. Maintenance Way Employees, (3d 831 F. 2d Cir.1987). Thus, employee may sue employer in federal “(1) court employer when the repudiates private grievance (2) machinery; when resort to administrative remedies would be * * * futile; (3) when the employer joined [duty-of- in a DFR fair-representation] against union,” claim (4) “when, because of breach union, of the DFR an employee loses right press grievance his before the Board.” Ibid. arguing

In that his claims are preempted by law, federal plaintiff urges this Court to look to the causes of pleaded action complaint. in his He contends that because his claims are purportedly based on rights state-established and not on the collective-bargaining agreement, those claims should survive preemption. Labor Act NJT plaintiff’s counters that nothing claims constitute more than an artfully-crafted minor dispute, subject to jurisdiction the exclusive Adjustment Board.

We examine the preemption effect of on each of Maher’s counts in turn.

Ill -A- agree Appellate ruling We with the Division’s that Maher’s allegation Jersey’s that NJT violated New Whistleblower Act preemption challenge. survives a N.J.Super. See 239 at 227- 28, 570 A. 2d 1289. We are satisfied that Maher’s CEPA-based claim “artfully-crafted dispute” is not an minor subject to the preemptive effect of the Labor Act.

NJT, relying Corp. Railway on Rail v. Consolidated. Association, 491 U.S. Executives’ (1989), disagree contends that a 105 L.Ed.2d if dispute is a minor the employer’s over an action ment by the of justified” terms the “arguably contested action is We do not collective-bargaining agreement. consider parties’ controlling adopted Court be the that case to because disagreement whether a is a in order to determine standard available, option the is rather major dispute, for strike which dispute subject and therefore the exclusive than a minor Adjustment danger The with Boards. power arbitral “arguably justified” use the standard distin indiscriminate of complaints do disputes minor- guishing between railway Railway Labor Act is that it enables a implicate the “simply provisions hide the of collec behind arbitration [to] employees’ statutory bargaining agreement bypass tive [its] 844 2d right[s].” Chesapeake Ry., & O. F. McCall v. Cir.), denied, (6th cert. Nevertheless, justified” “arguably we consider the resolving Maher’s CEPA-based claim

test useful for whether Adjustment purview of the Boards. within the exclusive comes See, Transportation Author e.g., Pennsylvania Southeastern supra, at 783-84. ity, 882 F.2d expressed as follows:

The standard is ‘arguably’ justified can be "If the action of one parties disputed existing agreement if statement, the contention in somewhat different or, insubstantial,’ action is not ‘obviously the labor contract sanctions disputed within exclusive province the controversy [minor dispute] Adjustment Rail [Consolidated Corp., supra, National Railroad Board.” (quoting Consolidated Rail 109 S.Ct. 105 L.Ed.2d at 263 (3d Cir.1988)).] 845 F.2d Ass’n, Labor Executives’ Corp. Railway “disputed key puzzle lies in the nature to this Keeping question in mind that arises action.” accept summary judgment, as we context of NJT’s motion fired retaliation for that he was true Maher’s contention position. The nub having French’s abuses reported action, then, discharged, which is not that Maher was disputed “arguably” would “just-cause” be covered the provision of the collective-bargaining agreement, but that he was dis- charged in having reported retaliation for violations of the law. pertinent question whether the collective-bargaining agreement alleged addresses NJT’s conduct.

Although NJT’s burden is “relatively light” showing in agreement brings Maher’s claim within juris the exclusive Boards, diction Adjustment of the see Consolidated Corp., Rail 2483, supra, L.Ed.2d at employer has not met that minimal standard. NJT has not (the suggested suggestion insubstantial”) “obviously would be retaliatory discharge that a “justified” is “sanctioned” or by a provision agreement. in the point part It can to no collective-bargaining agreement that demonstrates that agreed carrier and the union have on standards relevant to Maher’s situation. retaliatory discharge Maher’s claim of does any way interpretation just-cause- turn on an discharge any agreement. clause or other clause in the find in Railway express congressional

We Labor Act no right limitation of the protect employee of States to an from discharge law, reporting retaliation for violations of can nor such limitation be inferred scope. from federal act’s We also conclude that the survival of Maher’s CEPA-based claim policy railway-contract does not frustrate the federal dis- putes exclusively by Adjustment be resolved Boards that a so meaning given contract term’s interpreta- be a uniform federal tion. Because Maher does not his claim in assert reliance on rights in the collective-bargaining agreement, established depend interpre- because resolution of that claim does not on an agreement, tation of the terms of that the claim is not one of colleetive-bargaining-agreement-based forays court Congress preempt. intended the Labor Act to point

The area of the law discussed under this has been settled in since this state LePore v. National Tool & Manufac- Co., turing N.J.Super. (App.Div.1988), 540 A.2d 1296 — denied, o.b., 115 557 A.2d cert. N.J. aff'd (1989),

-, a decision that L.Ed.2d 353 Supreme ruling Lingle Norge Divi Court’s presaged the 399, 408-11, 108 1883- Chef, 486 U.S. Magic sion of LePore, Appellate 2d 420-21 In 100 L.Ed. retaliatory- premises common-law Division outlined claim, simply trial consist of noting that “the would discharge [reporting fired establishing that he was fact for plaintiff’s employer] would then have to of the violation [the law] another, non-pretextual reason.” he fired for demonstrate was are no 540 A.2d 1296. Those burdens N.J.Super. 224 at codified. now that the cause of action has been See different Chems., Inc., N.J.Super. T 236 566 M & Parker v. Lingle emphasizes (App.Div.1989); 34:19-3. A.2d 215 N.J.S.A. that each of those the and the conduct employee factual questions pertains purely of Neither the [demonstrations] conduct and motivation employer. agreement. collective-bargaining term of a a court any requires interpret * * * the this case is of collective- the state-law Thus, remedy “independent"

bargaining agreement that matters for § sense pre-emption pur- construing the does not collec- resolution the state-law claim require poses: agreement. at U.S. S.Ct. tive-bargaining 100 L.Ed.2d [486 419-20.] fact-sensitive, reject we inquiry is NJT’s Because that so cognizable pleaded a to rule on whether Maher has invitation claim withstands only hold that Maher’s claim. We CEPA issue, and do not judgment minor-dispute on the summary prove facts has asserted sufficient decide whether he action. of a CEPA cause of essential elements disparagement of the value Le- disagree We with NJT’s the extent Lingle because the cases addressed Pore and Manage- under 301 of the Labor preemption doctrine section Act, purported- a statute see 29 ment Relations U.S.C.A. § Railway Labor Act. preemptive force” than the ly with “less subject agreement to the Labor collective-bargaining When a Management grievance Act and arbitra- Relations establishes by claims remedy preempts state-law-based remedy, tion Maddox, of section 301. Republic Corp. force See Steel v. 650, 652-53, 614, 616, U.S. 583-84 (1965). That preemptive effect is no grant- different from that ed to arbitral remedies Railway established Preemption Act. becomes a dominant consideration under both process statutes when the disrupted arbitration can be or when uniformity national law is threatened a state claim that must be through interpretation vindicated outside of a ibid.; collective-bargaining agreement. Lueck, supra, See 210-13, 215-17; 105 S.Ct. at 85 L.Ed.2d at N.R.R., 320, 324, Andrews v. Louisville & 1562, 1565, (1972). Court, however, Supreme

The rejected argument has Railway provides Labor Act the exclusive forum any dispute arising railroad-workplace out of conditions. See Atchi son, Buell, 557, 563-64, Ry. T. Fe & S. 480 U.S. 94 L.Ed.2A Labor Act every

does not concern itself with conceivable issue that arises employment setting; in the disputes at the heart of the de collective-bargaining agreement. scribed in section 151 is the 989, Corp., R.R. 763 Passenger F.Supp. Sabich National (N.D.Ill.1991). this, In circumstances such as when the collective-bargaining agreement disputed does not address the action, Railway preemptive the Act cannot have more Labor See, e.g., force than section 301. Lancaster v. & W. Norfolk 807, (7th Cir.1985), denied, Ry., 773 F.2d 816-17 cert. 480 U.S. 945, 1602, preemption deny

The doctrine does not a State its traditional police powers disputes simply employment-related over because collective-bargaining agreement includes a mechanism for See, grievance Lingle, supra, arbitration. at 411- e.g., 13, 422-23; Buell, at 100 L.Ed.2d at S.Ct. cf. 564-65, 107 at supra, 480 U.S. at 94 L.Ed.2&at 572- arbitration, (despite strong policy in favor of the mere availability Act of arbitration does not mandate preemption employee’s statutory federal claim that is inde- collective-bargain

pendent obligations under its employer’s must authorized and ing agreement). The arbitral forum be dispute brought it. competent to resolve before the “[Arbitra collective-bargaining process,” is a the tion continuation of LePore, the at supra, N.J.Super. A.2d interpret the labor contract and role of the arbitrator is to dispute. agreement facts of a On the other apply the to the interest, hand, public “ordinarily cannot consider the arbitrator public policy.” Id. of law and does not determine violations When, here, agreement as the does not 540 A .2d1296. action, challenged and the the circumstances of the address state, solely laws our an employee’s on the claim relies proper is forum for resolution of the Adjustment Board not dispute. does contradict the rule of Andrews v.

Our decision Railroad, supra, 406 92 Ct. & Nashville S. Louisville jurisdiction. 2d which established the exclusive L.Ed. Adjustment disputes. minor There all Boards over parties conceded (the right discharged, employee’s) be not to source of only petitioner’s [ ] “wrongful” alleged discharge an one that entitles and therefore to treat as collective-bargaining damages, him to [state-law-based breach-of-contract] * * vigorously [(the employer)] agreement dis- *. this case Respondent discharge pleadings its and the indicate intent on part putes any petitioner, obligation disagreement to restore turns on the extent of respondent’s * * regular following injury duties *. existence his petitioner obligation in a such as this will on depend extent of such an case collective-bargaining agreement. claim, Thus petitioner’s interpretation differing disallowance of stem from it, interpretations and respondent’s * * * subject agreement. collective-bargaining to the His claim is therefore Act’s it be submitted to Board [Railway Labor] requirement

adjustment. 32 L.Ed.2d at [Id. 99.] dispute provisions of the collective- That centered on present agreement, a feature not here. bargaining cases, including v. Consolidated cites several Jackson NJT denied, (7th Cir.1983), 2d cert. 465 U.S. Corp., 717 F. 1045 Rail (1984), that 79 L.Ed.2d 233 hold complaint (following the retaliatory-discharge of a evaluation filing of a claim under Employer’s Act, the Federal Liability 51-60) does depend interpretation U.S.C.A. indeed on an §§ collective-bargaining agreement. note that We those cases decision, Single were decided before the Supreme which the rejected Court type 407-09, of rationale. See 486 U.S. at 1882-83, 100 L.Ed.2d at 419-21. Other cases cited by NJT which preempted courts have held as plaintiff’s state-law-based tort readily distinguishable claims are because they artfully-drawn see, were either disputes, minor e.g., de la Airlines, (1st Rosa Cir.1978) Sanchez Eastern 574 F. 2d 29 (dispute" pension payments), over and Arbogast Corp., v. CSX F.Supp. (N.D.W.Va.1987) (dispute pay), over vacation (4th aff'd, Cir.1987), 831 F.2d 290 or did not involve a claim of retaliatory discharge. agree

We also Appellate with the ruling, Division’s see 227-28, 239 N.J.Super, at 2dA. that Maher’s claim implicate Act, does Safety not the Federal Railroad a statute in Congress clearly which has delineated the extent of its intent to preempt expressly local law. That statute forth sets Con “laws, rules, gress’s regulations, desire orders and stan relating nationally dards safety railroad shall be uniform to added). practicable.” (emphasis the extent 45 U.S.C.A. 434 § below, allegation retaliatory As discharge noted Maher’s reporting safety-code does relate to violations but to cheat ing and fraud.

-B- Congress next determine whether intended that the We Rail- supersede way availability Labor Act of a state court forum duty for Maher’s claim that his union its of fair breached intend, representation. Congress conclude that did not so We Appellate judgment much of and reverse so Division as N.J.Super. holds otherwise. See 239 570 A.2d 1289. Supreme duty Court first established a union’s of fair representation toward its members in an action under the

476 Louisville Nashville Railway Labor Act. See Steele v. & 226, (1944). Railroad, 192, 89 173 The 323 65 S.Ct. L.Ed. union acts as the exclusive reasoned there that because a Court railway employees a craft class of bargaining agent of or Act, 152 authority Railway see 45 U.S.C.A. of the Labor § duty Fourth, implicitly imposes on the union the the Act 202-03, 323 at bargain fairly on behalf of all its members. complaint A at 89 L.Ed. at 183. member’s 65 S.Ct. duty representation is not a minor its of fair the union breached Adjustment Boards subject jurisdiction to the dispute complaint “dispute[] between an such a is not because employees and a carrier” and does not employee group or interpretation to the involve “differences as [collective- L.Ed. bargaining agreement].” Id. at at 89 S.Ct. alleged in plaintiff-member was at 185. What Steele statutory right, not a breach of union’s violation of a federal 204-05, collective-bargaining agreement. at 65 Ct. at Id. S. at 184. The Court concluded because L.Ed. means provides adequate Act no administrative union, resolving disputes employees and their own between required and the of administrative remedies was no exhaustion directly bring alleging duty breach of could an action member 233-34, 89 L.Ed. in the courts. Id. S.Ct. 324, 329-30, 185-86; Ry., 393 U.S. Glover v. St. Louis — S.F. (1969). 548, 551, 21 523-24 S.Ct. L.Ed.2d Steele, applied to a union that logic which was Court’s negotiating of a collec- duty while the terms had breached its discriminatory en- tive-bargaining agreement, extended to was impartial on its face” of a contract that is “fair forcement 99, 102, Gibson, 41, 46, Conley v. 355 U.S. ‘to serve the interests duty requires “The a union any, discrimination toward hostility of all members without honesty, complete good faith and its discretion with to exercise ” arbitrary Chauffeurs, conduct.’ Teamsters & and to avoid 558,-, Terry, v. 494 U.S. Helpers, Local No. 391 (1990) 1339, 1344, (quoting Sipes, Vaca 108 L.Ed.2d 903, (1967)). 386 U.S. explained judicial The Court has its “refusal to limit competence rectify duty representa a breach of the of fair upon cannot, judgment tion rests that such actions [its] occur, majority they give vast of situations where rise to actual operative policy.” conflict with the realities of federal labor Street, Amalgamated Ry. Ass’n Elec. & Motor Coach of 301, Employees Lockridge, supra, v. 403 at 91 at U.S. 1925, 29 at L.Ed.2d 491.

BRS concedes that juris state courts share concurrent See, diction with federal fair-representation courts over claims. supra, 188, 916, e.g., Sipes, Vaca v. 386 at 87 at 17 U.S. S. Ct. claims, at hearing L.Ed.2d 856-57. When such the court is (in acting statutory right on a federal this case inferred from Act) apply and must federal law. See Steele, 204, 233, supra, 323 at 65 at 89 S. Ct. L.Ed. at 184. fair-representation

The trial court’s dismissal of Maher’s solely claim was on the basis its erroneous conclusion that dispute; the matter constituted a minor that court made no allegation. Appellate evaluation of the merits of the The Division, hand, affirming on the other after the trial court’s minor-dispute ruling, on to went consider dismiss plaintiff’s N.J.Super, merits of claim. 570 See expressing any 2d 1289. on the ultimate merits A. Without view claim, plaintiff’s cautionary we add some observations. designed summary-judgment procedure to de presents any quickly inexpensively termine whether a claim disposition at a trial. genuine requiring issue of material fact 74, Co., 110 A.2d Peoples Judson v. Bank & Trust N.J. (1954). considering summary judgment, When a motion for drawing in of the “indulgently” the court is to act favor opposing party all reasonable inferences. Id. at 110 A.2d “fanciful, frivolous, course, party gauzy if that offers 24. Of support merely suspicious” allegations of fact claim, justified granting judgment. the court is summary Ibid. plaintiff’s readily We would not abandon claim as as did “ Appellate upon Division. the courts are called ‘[W]here primary guardians duty

fulfill their role as the of fair representation,’ complaints should be construed to avoid dismis * * O’Mara, 25, 27, sals Czosek 90 S.Ct. (1970) (quoting L.R.R., v. Erie O’Mara (2d Cir.1969)). duty, 407 F.2d To establish breach Maher his must show that union’s conduct toward him was “ ” ‘arbitrary, discriminatory, Zalejko or in bad faith.’ v. Radio Am,., Corp. N.J.Super. (App.Div. 236 A.2d 160 1967) (quoting Sipes, supra, Vaca v. 386 U.S. at 857), denied, 51 N.J. A.2d certif. discrimination, light; prove The burden is not example, plaintiff must “adduce substantial evidence of [bias] intentional, severe, legitimate that is and unrelated to union objectives.” Lockridge, supra, 403 at at 1925, 29 L.Ed.2d at 491. The court must be careful to distin * * * honest, guish “between mistaken conduct and deliberate severely hostile irrational treatment.” Ibid. mind,

With that we note that BRS settled Maher’s dispute despite plaintiff’s vigorous objections with NJT to the Although terms. a labor union has some discretion in determin ing proper grievance, resolution of a member’s Vaca v. 191-93, 917-18, Sipes, supra, 386 858-59, sought of Maher a review what and what his union give-and-take for him illustrates less of a obtained between NJT complete and BRS and more of a abdication the union. Maher, supported by opinion previous of doctors and NJT’s requirement, exemption waiver of Rule 15’s claimed that his continue; wearing safety goggles agreed from should BRS that glasses. plaintiff sought pay would wear the Maher full back period prevented working for the he had been from because of glasses; the union his claim for his refusal to wear waived return pay. Maher wanted to to work at his former him position; working union committed at a clerical his position plaintiff experience had neither nor which enthusi- Despite safety-glasses require- resistance to the asm. Maher’s ment, plaintiff that agreed eyegear BRS would wear such at his job Although acknowledge new behind a desk. we that the working unique railroad environment features conditions industry, unimpressed explanation American we are with the hearing an NJT official at Maher’s dismissal a case of “[i]n office, position possible pencil in the it could be that a could puncture eye.” not, itself,

Although compromising every on demand does negotiating, plaintiff presented amount to bad-faith has evi- dence sufficient to merit a more careful evaluation of BRS’s summary judgment by motion for the trial court on remand.

-C- disposition argument final Our addresses Maher’s preempted by LAD his claim that NJT violated the is not Appellate Railway Labor Act. We are accord with the ruling upholding summary judgment Division’s for defendant claim, N.J.Super, at 570 A. 2d on the see 239 dispute” because we find Maher’s claim to be a “minor within province Adjustment reject Boards. the exclusive We amicus, Advocate, arguments plaintiff and the Public preempted claim is not because it is based on state agree statutory rights independent collective-bargaining ment, of the claim would interfere with the because vindication compulsory disputes over rules and scheme of arbitration working by Congress. conditions established “harassment, suspension alleges that his complaint Maher’s * * * by concerning safety subsequent discharge [NJT] prohibits “any unlaw- glasses” violated the LAD. That statute against any person person such is or ful discrimination because any employment any handicapped time or unlawful has been at 10:5-4.1. practice against person.” such See N.J.S.A.

Apart any protective from of the statute’s consideration scope, dispute is a complaint we rule Maher’s minor challenge every allegedly-discriminatory plaintiff’s because collective-bargaining provision action of NJT concerns a of the Although part agreement. Rule 15 itself is not of the collec agreement agreement, provide the does tive-bargaining safety must all duty, employees comply while on with NJT revoking complaint by rules. that NJT harassed him Maher’s him to “exemption” by refusing his from Rule 15 and to allow wearing the glasses return without after his bout with to work conjunctivitis dispute application the of a chemical is over collective-bargaining provision concerning “rules agreement * * * 151a(4). working Maher’s or conditions.” U.S.C.A. § disagreement as a with work-return condition was filed NJT’s 4-K-l(a) collective-bargain grievance pursuant to Rule ing agreement. employee’s A effect of an determination the disability job performance on is under Rule 8-D-3 of arbitrable agreement. disagreement A over collective-bargaining is at all to be whether an issue arbitrable is resolved 4-K-1(h)(1). Adjustment by authority of The set Board Rule tlement of Maher’s claim his union and NJT was reached 3-E-1(a) (b), re-assign provide under Rules which for the Finally, propriety ment of of Maher’s employees. disabled discharge report position to the eventual failure new governed by agreement’s just-cause provision, which incor porates prohibiting Rule D acts of insubor NJT’s General dination. adjudication his

Although Maher contends require interpretation claim an of the collective- would agreement, clearly it of a bargaining would. elements harassment, transfer, discriminatory or prima case of facie (1) complainant handicapped within discharge are that was (2) law; perform had meaning complainant been employer’s legitimate ing his her work at a level that met the (3) re expectations; complainant nevertheless had been unreasonably differ- quired under that were to labor conditions transferred, employees, ent from those of other had been fired; (in discriminatory had been the case of transfer or (4) discharge) sought employer perform had another to complainant same work after had been removed from the position. Supermarkets, v. See Jansen Food Circus 110 N.J. complainant’s 541 A. 2d 682 Once the case has established, employer been must demonstrate either the otherwise-discriminatory reasonableness of the pres act or the non-discriminatory ence employee’s reason for the treat “In deciding ment. Ibid. whether the nature and extent of an employee’s handicap reasonably precludes job performance, an employer may handicapped person consider whether the can do his or her posing injury work without a serious threat of to the * * safety health and of himself or herself *.” Id. at A .2d 682. any

We conclude that evaluation of NJT’s defense to Maher’s requires LAD claims an evaluation of the terms of the collec- tive-bargaining agreement. LAD NJT’s defense of the claim hinge “purely questions” does not on consideration of factual Lingle. as was the case in See 486 alleges 100 L.Ed.2d at 419. Maher that NJT was “ha- rassing” by him safety-glasses its about-face on Rule 15’s requirement; justified imposing NJT claims that it was requirement, considering partial Maher’s blindness and the weed-spray suspended incident. Maher claims him NJT be- handicap; responds justified it cause of his NJT was because of comply safety requirements. Maher’s refusal to with its Final- ly, firing Maher asserts that his was based on fallout over his noting handicap; NJT counters that it achieved a settlement re-assigning position with Maher’s union Maher to which danger. disability place his would not him in An evaluation of have to whether NJT’s actions were reasonable would be based following provisions of the carrier’s conduct in on consideration negotiated collective-bargaining agreement between it employees and the Maher was a member. class which argument ruling that our must be controlled Plaintiff’s Colorado Anti-Discrimination Commission Continental (1963), Lines, is Air 372 U.S. 10 L.Ed.2d 84 misplaced. Supreme There held laws the Court that State prohibiting preempted by racial discrimination are not the Rail any way by Act conduct of that sort “is not Labor because subject collective-bargaining a for and arbitra construction supra, 844 at 302. Chesapeake Ry., tion.” v. & O. F.2d McCall claim, apply logic relying Muncy Maher to to on seeks his Railway, F.Supp. v. & Western Norfolk (S.D.W.Va.1986), “handicap dis particularly its assertion * * * analogous race certainly crimination is to discrimination by Railway preemption insofar as it relates the issue of the to Labor Act.” reasoning. Legislature recognized job-

We a reject that performance-related difference between the two of bias forms handicapped when LAD to the it amended the include extent restricting the enactment’s reach when “the nature and handicap reasonably precludes performance the of the specific employment.” Legislature 10:5-4.1. The See N.J.S.A. has also declared: * * * * * * Nothing contained in act shall construed to the this be prohibit * * * establishment and maintenance of bona fide qualifications occupational change nor to the or who termination the prevent employment any person the is at, arrived unable to reasonably opinion employer, perform * * duties of *. [N.J.S.A. 10:5-2.1.] adequately employment despic-

Although handicap both racial and discrimination are able, handicapped person’s physical may a mental limitations ability affect her to function at work. A concession his or job-performance ability related of victims of racial dis- crimination, hand, For that on other is inconceivable. reason, employee’s disability evaluation of an and its effect an When, subject job performance proper on is a for arbitration. here, parties employee’s as made an lack of fitness have perform job arbitrable under Rule 8-D-3 the collective- bargaining agreement, alleging an action discrimination based dispute” physical handicap preempted as a “minor because on is solely procedures estab it an determinable under raises issue McCall, supra, Act. id 2d See lished Co., 302-03; Transp. v. Pac. Cal. Evans Southern (1989), Cal.Rptr. cert. de App.3d —- -, nied, 110 L.Ed.2d 661 is a

Finally, plaintiff claims that because there available right addressing complaint, his he has the statute state Adjustment Board pleading his case an choose between before courts, citing support Alexander Gardner- or the state (1974), Co., Denver 415 U.S. claim that did not case on a Title VII racial-discrimination based adopt railway industry. urges us to Amicus involve preemption appropriate not to be whereby standard found right indepen any statutory on a when a claim of sort is based collective-bargaining agree rights established dent they ignore arguments those related because reject ment. We local statute’s preemption: of the law of a precept a basic interferes with the application is nullified to the extent that it congressional purpose. of adopted to serve interests Labor Act was creating statutory providing employees by a scheme

railroad of prompt, grievances and final settlement compulsory, for the Price, R.R. v. 360 U.S. tribunal. Union Pac. before balanced 1351, 1358, 1460, (1959). 601, 614, 1468 To 79 3 L.Ed.2d employees procedure, advantage railroad obtain the of [Railway outside of the willing give up their remedies “were to 1358, 613, at 1467. at 3 L.Ed.2d at 79 S.Ct. Id. Act].” handicap discrimination claim of Allowing bring his Maher impermissibly Con with would interfere before the courts sole of be the arbiter Adjustment Boards gress’s intent that conditions,” working see “rules and to railroad claims related at at Sheehan, supra, at 439 U.S. “when employee’s refusal work an disputes and of over performance related to by hazardous condition confronted (c). 441(b)(1)and duties,” employee’s see 45 U.S.C.A. of § 484

Opening compromise to such would also courts claims congressional uniformity by limiting ensured goal of national from jurisdiction disputes arising application over of collec- tive-bargaining provisions system Adjust- to a agreement ment Boards familiar with railroad-oriented issues. This is not in which and the collective- a case “enforcement [the LAD] bargaining process complement rather than conflict with each Co., 226, 228, Mfg. v. National Tool & 115 N.J. LePore other.” Chevrolet, Thornton v. Potamkin N.J. (citing A.2d 1371 94 — denied, (1983)), -, cert. 462 A.2d 133 Alexander, supra, (1989); accord 1019-20, 94 S.Ct. (Congress 39 L.Ed.2d at 158 intended that the federal courts be the final arbiter of Title VII claims; designed clear inference is that Title VII was “[t]he supplement, supplant” process). rather the arbitral than vigilant enforcing goal Jersey’s

This Court has been New eradicating against employment discrimination the handi Jansen, See, 682; e.g., supra, N.J. capped. A.2d Co., Andersen v. Exxon N.J. 446 A.2d 486 Moreover, preemption we have not hesitated to find the doc unambiguous inapplicable congres trine “in the absence of an supra, Dewey, N.J. to that sional mandate effect.” Laboratories, 1239; v. Lederle accord Feldman 2d 577 A. (1991). We would feel N.J. 592 A.2d collective-bargain constrained to reach the result we do had provide ing agreement under which Maher worked failed to employee’s physical an condition arbitral review the effect of job performance, in the matter that is the on as had been so dissenting colleague, post passage quoted by our source of Quinn v. Southern Pacific 593 A.2d at 768. See Co., Or.App. 711 P.2d Transportation denied, (1985), review Or. 715 P.2d 93 In that protecting case the state statute was the sole means of handicap employee’s right to be free from unlawful discrimina Ibid. tion. agreement not here. Because the ad-

That is the situation circumstances, congressional find the in- dresses Maher’s we preserving tent clear. The federal interest disputes application Labor Act over arbitration scheme extraordinarily strong, is collective-bargaining agreement to any such is not be tolerated. that local interference IV part judgment Appellate Division is affirmed part, remanded the Law and reversed in cause to Division.

O’HERN, J., dissenting. concurring and Plaintiff, Maher, under our State has made claim Edward law, (LAD), 10:5-1 Against N.J.S.A. the Law Discrimination Jersey Operations, Rail -42, employer, New Transit to that his of his visual (NJT), against him because Inc. discriminated not of discrimination does involve disability. His claim any or of terms application any federal law interpretation or (CBA). Never- collective-bargaining agreement relevant his LAD claim on theless, upholds the dismissal of this Court preempts it. Because federal law ground federal law claim, portion I dissent from preempt does an LAD the Court’s decision. agreed thing people have to a wonderful when

Arbitration people it is forced on thing is a terrible when it. Arbitration Defeated, disappointed, disen- it. agreed never who have franchised, deep system toward a resentments they will harbor privilege of assert- them of the inestimable deprives law Our from rights to be free discrimination. ing State-created LAD its that the recently reinforced intention Legislature has ** * all law liberally so that common “be construed remedies LAD,” including persons protected are available right trial punitive damages and the compensatory and jury. Law, 10:5-3 (Assembly Judiciary, N.J.S.A. and Public Statement). Safety Committee agreed Maher never rights to arbitrate his claims of under LAD, Jersey the New and his power union had no to waive rights. power those The of his union is derived from “ (RLA). Railway Labor purpose Act The of the RLA is ‘to promote stability in labor-management impor relations this industry tant national by providing effective and efficient reme dies for the resolution of railroad-employee disputes arising interpretation out collective-bargaining agree ” Quinn Co., ments.’ Transp. v. Southern Pac. Or.App. 617, 623, (1985) 711 P.2d (quoting Union P.R.R. v. Sheehan, 89, 94, 399, 402, 439 U.S.

(1978)), denied, (1986). review 300 Or. 715 P.2d 93 The RLA is not an anti-discrimination act. As noted the United Supreme Court, provision States “No in the Act even mentions hiring.” discrimination in Colorado Anti-Discrimination Lines, 714, 724, Comm’n v. Continental Air 372 U.S. 83 S.Ct. 1022, 1027, (1963). 10 L.Ed.2d CBA this case similarly does not seek provide its terms to the handicapped employee protection against Thus, with discrimination. employee right must derive the to be free from discrimination from another source.

That source is our Jersey State law. The New LAD has provided independent protections an set handicapped for the separate that are and distinct from the RLA and the terms of Act, the CBA. In the context of the Fair Standards Supreme United States recognized “[wjhile Court courts should defer to an employee’s arbitral decision where the claim rights on arising based out of the collective-bargaining agree ment, different apply considerations the employee’s where rights arising claim is based on designed out of a statute provide guarantees minimum substantive to individual work ers.” Barrentine v. Freight Sys., Arkansas-Best 450 U.S. 728, 737,

Here, statute, a employee’s claim arises out of State not the CBA. parties that there are an important

It is to remember three to employer, the and the employment agreement employee, —the Jersey in New that public. public There is a interest our discrimination, age simply that employees free from and be by a In away cannot be contracted union. Thornton v. Potam (1983), Chevrolet, 1, 2d that 94 462 A. 133 we held even kin N.J. arbitration, grievance to employee an a when submits her employee agrees only rights his or contractual arbitrate proceeding employee a In an LAD an asserts under CBA. statutory guaranteed to him her the State New rights “ relationship the forums and Jersey: between [arbitral ‘[T]he complementary is since consideration administrative] may promote policies underlying claim forums both ” (quoting 462 133 Alexander v. Gardner- each.’ Id. at A.2d 1011, 1020-21, Co., 39 94 S.Ct. Denver (1974)). L.Ed.2d adopted policy of Alexander Gard

In Thornton we Jersey’s New respect with enforcement of ner-Denver Co. a unique of our LAD constitutes LAD. We said that the role ” " set forth exception’ policies modifies 'statutorily created and Ibid, Terry Cty. (quoting v. Mercer employment laws. (1981)). Bd., 2d 430 A. 194 Freeholder N.J. jurisdiction does mark complementary also noted We ” “ Id., claims. grievance of discrimination knell’ ‘death Alexander, supra, at 415 U.S. (quoting A.2d 162). majority of In the vast L.Ed.2d misunderstandings cases, grievance proceedings may resolve swifter, and less dispute simpler, will often resolve the binding although not on noted that costly proceedings. We also here, court), arbitrator’s (or, agency State the State as into and accorded such evidence be received decision should weight appropriate. as majority’s disposition

The principles conflicts with policies expressed Supreme in the recent Court decision Corp., U.S.-, Gilmer v. Interstate/Johnson Lane 114 L.Ed.2d 26 In case the Court held employee that when an had individually agreed to arbitrate all disputes arising employment, of his agree out contract of ment could age be held embrace in employ discrimination ment. Alexander, distinguish Court was careful to supra, 415 147, noting S.Ct. at that the issue discharged

there was employee grievance “whether whose pursuant had been arbitrated to an arbitration clause in agreement collective-bargaining precluded was from subse quently bringing upon Title VII action based the conduct that subject grievance.” at-, was the 500 U.S. 111 S.Ct. 1656, Barrentine, 114 at 42. Citing supra, L.Ed.2d 450 U.S. 728, 1437, 641, 67 recognized S.Ct. L.Ed.2d the Court holding statutory preclud that the claims there were not “[i]n * * * ed, noted rights we difference between contractual under collective-bargaining agreement and individual statu tory rights, potential disparity in interests between a union employee, authority power and an and limited and of labor at-, 1657, arbitrators.” 500 S.Ct.

at 43.

So too here. CBA only rights This created contractual and statutory not It rights.1 nothing plaintiff’s had to do with statutory rights. label dispute” To these claims a “minor and that, they hold cannot in a be asserted State forum is demeaning handicapped person. principle to a No of federal Stevens, Gilmer, Marshall, joined by 1Even in Justice Justice noted in dissent suggestion employees voluntarily agreed how hollow is the have " great many arbitrate trouble such claims. ‘The about the matter is that a of really [voluntary] things these contracts that are entered into are at all.'" at-, (quoting Hearing 500 U.S. 111 S.Ct. 114 L.Ed.2d at 46 on S. Comm, Judiciary, 4213 and S. 4214 a Subcomm. of the on the before Senate (1923) (statement Walsh)). Cong., 67th 4th Sess. 9 of Senator requires Supreme law that result. The Court devel preemption dispute” railway-labor “minor as a oped the doctrine in cases dividing, railway way of the federal framework labor' within relations, jurisdiction Adjustment “the and functions Board, giving their Board from those of the Mediation them Elgin, Ry. & v. 325 U.S. Burley, distinct characters.” J. E. n 1282, 1289, That L.Ed. today. Corp. v. purpose continues See Rail Consolidated Executives’Ass’n, Railway Labor 491 U.S. 109S.Ct. (1989) (validity including testing drugs L.Ed.2d 250 negotiated testing procedures previously ambit of health within through rather by Adjustment resolved Board than can be mediation). every arising negotiation dispute and Not further employers employees employment in the course between RLA major/minor are falls within who covered Buell, Atchison, Ry. dispute framework. T. Fe See & S. 557, 563-64, 94 L.Ed.2d (In case, (1987) rejects argument that FELA Court railroad’s dispute arising any forum for out RLA is “the exclusive conditions”). discrimination workplace example, For race falls of that See Anti-Discrimina outside framework. Colorado Comm’n, supra, 372 U.S. tion minor-dispute in a applies the doctrine majority The now

84. plaintiff’s embraces, extinguishes, hence State- way majority ap statutory handicap discrimination. claim of Anti- claim Colorado views the race-discrimination parently distinguishable plain as from Discrimination Commission plaintiff’s handicap-discrimination claim here because tiff’s “ concerning 'working condi rules involves railroad claim ” v. (quoting at Union P.R.R. Ante 593 A.2d tions.’ at 399, 402, at Sheehan, supra, at 439 U.S. been a “work handicap since has discrimination But when 359. course, estab can maintain and employers ing condition”? Of 10:5-2.1. occupational qualifications.” N.J.S.A. fide lish “bona employ However, qualifications to individual applying in those “pretext ees, qualifications use those as employer cannot Co., for discrimination.” Andersen Exxon 89 N.J. may cases, 446 A. 2d Plaintiff not have the best of impair but to statutory rights that should occasion us against other employees whom more virulent discrimination might practiced. be in

Whether NJT acted accordance provisions with the simply CBA is irrelevant to the LAD inquiry. Because the legal underpinnings source of the and factual of Maher’s handi- cap-discrimination LAD, in the claims are claims those are not preempted by the RLA. by majority, preemption question

As noted “a congressional intent.” at Ante at 755. A.2d It is enacting RLA, to me Congress inconceivable intend- ed to immunize railroads state from anti-discrimination laws. Comm’n, supra, See Colorado Anti-Discrimination 372 U.S. (“There 10 L.Ed.2d at 91 is even less say Congress, passing reason to Labor Act * * *, protecting employees intended bar States from (footnote against discrimination.”) omitted). Yet, given racial just holding, apparently its that is what the believes. I Court agree Quinn: with the court in States Court has held that does [T]he [United Supreme] specifically [RLA] enacting legislation against not bar states from racial protect employees hiring discrimination in and has noted that it does not mention even discrimina- hiring. analogy, legislatively tion in a state is not By from extend- preempted ing in the field of discrimination in protection employment handicapped include workers railroad It follows where a that, employees. personal

judicial legislation right created valid state exists, claim derived remedy legislation jurisdiction from that is within the state court. appropriate (citations omitted).] 711 R.2d at 144 Or.App. [76 I plaintiff’s would restore LAD claim. part, For part reversal Justice affirmance —Chief CLIFFORD, HANDLER, POLLOCK,

WILENTZ and Justices GARIBALDI and STEIN—6.

For reversal—Justice O’HERN—1.

Case Details

Case Name: Maher v. New Jersey Transit Rail Operations, Inc.

Court Name: Supreme Court of New Jersey

Date Published: Aug 1, 1991

Citation: 593 A.2d 750

Court Abbreviation: N.J.