# Maher v. New Jersey Transit Rail Operations, Inc.

> Supreme Court of New Jersey · August 1, 1991 · 125 N.J. 455

URL: https://www.frixlaw.com/law-library/cases/9760478

## Case

- **Full name:** Edward Maher, Plaintiff-Appellant and Cross-Respondent, v. New Jersey Transit Rail Operations, Inc., Defendant-Respondent and Cross-Appellant, and Brotherhood of Railroad Signalmen, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** August 1, 1991
- **Citations:** 125 N.J. 455; 593 A.2d 750; 1 Am. Disabilities Cas. (BNA) 1845; 7 I.E.R. Cas. (BNA) 1635; 138 L.R.R.M. (BNA) 2253; 60 Empl. Prac. Dec. (CCH) 41,809; 59 Fair Empl. Prac. Cas. (BNA) 807; 1991 N.J. LEXIS 90
- **Precedential status:** Published
- **Opinion:** Concurring in part by O'Hern
- **Judges:** Clifford, O'Hern
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760478

## How later opinions describe it (automated extraction)

- holding breach of contract claim constituted “minor” dispute and was therefore preempted by RLA, thereby denying district court subject matter jurisdiction over the claim
- stating that on motion for summary judgment, court draws all reasonable inferences in favor of non-moving party
- finding preemption of NJLAD disability discrimination claim where adjudication of the claim requires interpretation of the collective bargaining agreement.
- holding that CEPA claim was not preempted by the Railway Labor Act
- holding that RLA did not preempt plaintiffs CEPA claim

## Opinion text

O’HERN, J.,
concurring and dissenting.
Plaintiff, Edward Maher, has made a claim under our State law, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, that his employer, New Jersey Transit Rail Operations, Inc. (NJT), discriminated against him because of his visual disability. His claim of discrimination does not involve the interpretation or application of any federal law or of any terms of the relevant collective-bargaining agreement (CBA). Nevertheless, this Court upholds the dismissal of his LAD claim on the ground that federal law preempts it. Because federal law does not preempt an LAD claim, I dissent from that portion of the Court’s decision.
Arbitration is a wonderful thing when people have agreed to it. Arbitration is a terrible thing when it is forced on people who have never agreed to it. Defeated, disappointed, disenfranchised, they will harbor deep resentments toward a system of law that deprives them of the inestimable privilege of asserting State-created rights to be free from discrimination. Our Legislature has recently reinforced its intention that the LAD “be liberally construed so that all common law remedies * * * are available to persons protected by the LAD,” including compensatory and punitive damages and the right to trial by *486 jury. N.J.S.A. 10:5-3 (Assembly Judiciary, Law, and Public Safety Committee Statement).
Maher never agreed to arbitrate his claims of rights under the New Jersey LAD, and his union had no power to waive those rights. The power of his union is derived from the Railway Labor Act (RLA). The purpose of the RLA is “ ‘to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements.’ ” Quinn v. Southern Pac. Transp. Co., 76 Or.App. 617, 623 , 711 P.2d 139, 143 (1985) (quoting Union P.R.R. v. Sheehan, 439 U.S. 89, 94 , 99 S.Ct. 399, 402 , 58 L.Ed.2d 354, 359 (1978)), review denied, 300 Or. 546 , 715 P.2d 93 (1986). The RLA is not an anti-discrimination act. As noted by the United States Supreme Court, “No provision in the Act even mentions discrimination in hiring.” Colorado Anti-Discrimination Comm’n v. Continental Air Lines, 372 U.S. 714, 724 , 83 S.Ct. 1022, 1027 , 10 L.Ed.2d 84, 91 (1963). The CBA in this case similarly does not seek by its terms to provide the handicapped employee with protection against discrimination. Thus, the employee must derive the right to be free from discrimination from another source.
That source is our State law. The New Jersey LAD has provided an independent set of protections for the handicapped that are separate and distinct from the RLA and the terms of the CBA. In the context of the Fair Labor Standards Act, the United States Supreme Court recognized that “[wjhile courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 737 , 101 S.Ct. 1437, 1443 , 67 L.Ed.2d 641, 651 (1981). *487 Here, the employee’s claim arises out of a State statute, not the CBA.
It is important to remember that there are three parties to an employment agreement — the employer, the employee, and the public. There is a public interest in New Jersey that our employees be free from age discrimination, and that simply cannot be contracted away by a union. In Thornton v. Potamkin Chevrolet, 94 N.J. 1 , 462 A.2d 133 (1983), we held that even when an employee submits a grievance to arbitration, the employee agrees to arbitrate only his or her contractual rights under a CBA. In an LAD proceeding an employee asserts statutory rights guaranteed to him or her by the State of New Jersey: “ ‘[T]he relationship between the forums [arbitral and administrative] is complementary since consideration of the claim by both forums may promote the policies underlying each.’ ” Id. at 7 , 462 A.2d 133 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 50-51 , 94 S.Ct. 1011, 1020-21 , 39 L.Ed.2d 147, 159 (1974)).
In Thornton we adopted the policy of Alexander v. Gardner-Denver Co. with respect to enforcement of New Jersey’s LAD. We said that the unique role of our LAD constitutes a " 'statutorily created exception’ ” and modifies policies set forth in employment laws. Ibid, (quoting Terry v. Mercer Cty. Freeholder Bd., 86 N.J. 141, 151 , 430 A.2d 194 (1981)).
We also noted that complementary jurisdiction does not mark the “ ‘death knell’ ” for grievance of discrimination claims. Id., at 8, 462 A.2d 133 (quoting Alexander, supra, 415 U.S. at 54 , 94 S.Ct. at 1022 , 39 L.Ed.2d at 162 ). In the vast majority of cases, grievance proceedings may resolve misunderstandings and will often resolve the dispute in swifter, simpler, and less costly proceedings. We also noted that although not binding on the State agency (or, as here, the State court), the arbitrator’s decision should be received into evidence and accorded such weight as is appropriate.
*488 The majority’s disposition conflicts with the principles and policies expressed in the recent Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.-, 111 S.Ct. 1647 , 114 L.Ed.2d 26 (1991). In that case the Court held that when an employee had individually agreed to arbitrate all disputes arising out of his contract of employment, that agreement could be held to embrace age discrimination in employment.
The Court was careful to distinguish Alexander, supra, 415 U.S. 36 , 94 S.Ct. at 1014 , 39 L.Ed.2d 147 , noting that the issue there was “whether a discharged employee whose grievance had been arbitrated pursuant to an arbitration clause in a collective-bargaining agreement was precluded from subsequently bringing a Title VII action based upon the conduct that was the subject of the grievance.” 500 U.S. at-, 111 S.Ct. at 1656 , 114 L.Ed.2d at 42 . Citing Barrentine, supra, 450 U.S. 728 , 101 S.Ct. 1437 , 67 L.Ed.2d 641 , the Court recognized that “[i]n holding that the statutory claims there were not precluded, we noted * * * the difference between contractual rights under a collective-bargaining agreement and individual statutory rights, the potential disparity in interests between a union and an employee, and the limited authority and power of labor arbitrators.” 500 U.S. at-, 111 S.Ct. at 1657 , 114 L.Ed.2d at 43 .
So too here. This CBA created only contractual rights and not statutory rights. 1 It had nothing to do with plaintiff’s statutory rights. To label these claims a “minor dispute” and to hold that, they cannot be asserted in a State forum is demeaning to a handicapped person. No principle of federal *489 preemption law requires that result. The Supreme Court developed the “minor dispute” doctrine in railway-labor cases as a way of dividing, within the federal framework of railway labor' relations, “the jurisdiction and functions of the Adjustment Board from those of the Mediation Board, giving them their distinct characters.” Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 722 , 65 S.Ct. 1282, 1289 , 89 L.Ed. 1886, 1894 (1945). ■ That purpose continues today. See Consolidated Rail Corp. v. Railway Labor Executives’Ass’n, 491 U.S. 299 , 109 S.Ct. 2477 , 105 L.Ed.2d 250 (1989) (validity of including testing for drugs within ambit of previously negotiated health testing procedures can be resolved by Adjustment Board rather than through further negotiation and mediation). Not every dispute arising in the course of employment between employers and employees who are covered by the RLA falls within the major/minor dispute framework. See Atchison, T. & S. Fe Ry. v. Buell, 480 U.S. 557, 563-64 , 107 S.Ct. 1410, 1414 , 94 L.Ed.2d 563, 572 (1987) (In FELA case, Court rejects railroad’s argument that RLA is “the exclusive forum for any dispute arising out of workplace conditions”). For example, race discrimination falls outside of that framework. See Colorado Anti-Discrimina tion Comm’n, supra, 372 U.S. 714 , 83 S.Ct. 1022 , 10 L.Ed.2d 84 . The majority now applies the minor-dispute doctrine in a way that embraces, and hence extinguishes, plaintiff’s State-statutory claim of handicap discrimination. The majority apparently views the race-discrimination claim in Colorado Anti-Discrimination Commission as distinguishable from plaintiff’s handicap-discrimination claim here because plaintiff’s claim involves railroad rules concerning “ 'working conditions.’ ” Ante at 484, 593 A.2d at 765 (quoting Union P.R.R. v. Sheehan, supra, 439 U.S. at 94 , 99 S.Ct. 399, 402 , 58 L.Ed.2d at 359 . But since when has handicap discrimination been a “working condition”? Of course, employers can maintain and establish “bona fide occupational qualifications.” N.J.S.A. 10:5-2.1. However, in applying those qualifications to individual employees, the employer cannot use those qualifications as a “pretext *490 for discrimination.” Andersen v. Exxon Co., 89 N.J. 483, 493 , 446 A. 2d 486 (1982). Plaintiff may not have the best of cases, but that should not occasion us to impair the statutory rights of other employees against whom more virulent discrimination might be practiced.
Whether NJT acted in accordance with the provisions of the CBA is simply irrelevant to the LAD inquiry. Because the source of the legal and factual underpinnings of Maher’s handicap-discrimination claims are in the LAD, those claims are not preempted by the RLA.
As noted by the majority, preemption is “a question of congressional intent.” Ante at 464, 593 A.2d at 755. It is inconceivable to me that by enacting the RLA, Congress intended to immunize railroads from state anti-discrimination laws. See Colorado Anti-Discrimination Comm’n, supra, 372 U.S. at 724 , 83 S.Ct. at 1027 , 10 L.Ed.2d at 91 (“There is even less reason to say that Congress, in passing the Railway Labor Act * * *, intended to bar States from protecting employees against racial discrimination.”) (footnote omitted). Yet, given its holding, that is apparently just what the Court believes. I agree with the court in Quinn:
[T]he [United States Supreme] Court specifically has held that the [RLA] does not bar states from enacting legislation to protect employees against racial discrimination in hiring and has noted that it does not even mention discrimination in hiring. By analogy, a state is not preempted from legislatively extending protection in the field of discrimination in employment of handicapped workers to include railroad employees. It follows that, where a personal judicial remedy created by valid state legislation exists, a claim of right derived from that legislation is within the jurisdiction of the appropriate state court. [ 76 Or.App. at 624 , 711 R.2d at 144 (citations omitted).]
I would restore plaintiff’s LAD claim.
For affirmance in part, reversal in part — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN — 6.
For reversal — Justice O’HERN — 1.
Even in Gilmer , Justice Stevens, joined by Justice Marshall, noted in dissent how hollow is the suggestion that employees have voluntarily agreed to arbitrate such claims. " ‘The trouble about the matter is that a great many of these contracts that are entered into are really not [voluntary] things at all.'" 500 U.S. at-, 111 S.Ct. at 1659 , 114 L.Ed.2d at 46 (quoting Hearing on S. 4213 and S. 4214 before a Subcomm. of the Senate Comm, on the Judiciary, 67th Cong., 4th Sess. 9 (1923) (statement of Senator Walsh)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760478. Public record. Not legal advice.