Maher v. New Jersey Transit Rail Operations, Inc.

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtCLIFFORD; O'HERN
Citation593 A.2d 750,125 N.J. 455
Parties, 138 L.R.R.M. (BNA) 2253, 59 Fair Empl.Prac.Cas. (BNA) 807, 60 Empl. Prac. Dec. P 41,809, 123 Lab.Cas. P 10,409, 7 IER Cases 1635, 1 A.D. Cases 1845 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.
Decision Date01 August 1991

Page 455

125 N.J. 455
593 A.2d 750, 138 L.R.R.M. (BNA) 2253,
59 Fair Empl.Prac.Cas. (BNA) 807,
60 Empl. Prac. Dec. P 41,809,
123 Lab.Cas. P 10,409, 7 IER Cases 1635,
1 A.D. Cases 1845
Edward MAHER, Plaintiff-Appellant and Cross-Respondent,
Defendant-Respondent and Cross-Appellant,
Brotherhood of Railroad Signalmen, Defendant-Respondent.
Supreme Court of New Jersey.
Argued Feb. 11, 1991.
Decided Aug. 1, 1991.

[593 A.2d 752]

Page 459

Sanford R. Oxfeld, for plaintiff-appellant and cross-respondent (Balk, Oxfeld, Mandell & Cohen, attorneys), Newark.

Andrea M. Silkowitz, Asst. Atty. Gen., for defendant-respondent and cross-appellant (Robert J. Del Tufo, Atty. Gen. of N.J., attorney; Harrier Heuer Miller, Deputy Atty. Gen., on the brief).

Timothy R. Hott, for defendant-respondent (Hott & Margolis, attorneys), Jersey City.

Richard E. Shapiro, Director, Div. of Public Interest Advocacy, for amicus curiae, Public Advocate (Wilfredo Caraballo, Public Advocate, attorney; Richard E. Shapiro and Kevin H. Marino, Director of Litigation, on the brief).

The opinion of the Court was delivered by


This appeal presents questions of federal preemption, under provisions of the Railway Labor Act, 45 U.S.C.A. §§ 151 to 188, and the Federal Railroad Safety Act, 45 U.S.C.A. §§ 421 to 444, of state-law-based claims involving employees' rights.

[593 A.2d 753]

Page 460

Plaintiff, Edward Maher, dismissed from his employment with defendant New Jersey Transit Rail Operations, Inc. (NJT), filed suit against the employer alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), and the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (Whistleblower Act or CEPA). His complaint also named his union, charging it with a breach of its duty of fair representation. The trial court dismissed the complaint on defendants' motions for summary judgment, ruling that all of plaintiff's claims were preempted by the Railway Labor Act. The Appellate Division affirmed so much of that ruling as dismissed the LAD and fair-representation claims, but reinstated plaintiff's claim under the Whistleblower Act. See 239 N.J.Super. 213, 570 A.2d 1289 (1990).

We granted plaintiff's petition for certification and NJT's cross-petition. See 122 N.J. 182, 584 A.2d 243 (1990). We now affirm the Appellate Division judgment restoring plaintiff's CEPA claim and holding the LAD claim preempted, but reverse so much of its judgment as determines that plaintiff's claim against the union is preempted by the Railway Labor Act.


Plaintiff began working as a signalman for NJT on January 1, 1983, the date it took over certain of the commuter-rail operations of Conrail, for whom plaintiff had worked since 1976. Maher was a member of defendant Brotherhood of Railroad Signalmen (BRS), the exclusive representative under a collective-bargaining agreement for NJT employees who work in plaintiff's field.

In 1984 Maher was diagnosed as being legally blind in his right eye as a result of a pellet-gun accident that had occurred in 1969. Although the injury caused the loss of central vision in that eye, plaintiff's peripheral vision was unaffected. Shortly after the diagnosis Maher's supervisor, William French, attempted to require Maher to wear safety glasses pursuant to

Page 461

NJT's Maintenance of Way Department Safety Rule 15, which directs that "[a]n employee blind or practically blind in the eye must wear protective glasses at all times while on company property." Maher complained, however, that the glasses' side shields prevented him from seeing out of his right eye at all. Following recommendations from Maher's personal physician and an NJT doctor, NJT agreed, at first, to exempt Maher from Rule 15's application.

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

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

That September Maher sought to return to his job as a signalman but was informed that he would be required to wear safety glasses at all times in accordance with Rule 15. Because plaintiff refused to work under that condition, NJT did not permit him to resume his former position. Pursuant to the collective-bargaining agreement, plaintiff filed a grievance in

Page 462

January 1987, [593 A.2d 754] claiming that NJT had refused unjustifiably to allow him to return to work.

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

Maher rejected that settlement as well, asserting that he was ill-suited for the proposed job because of lack of training and that safety goggles at a desk job were superfluous. Despite Maher's request that NJT resolve the matter directly with his personal attorney, the employer refused to do so, asserting that the union was plaintiff's duly-authorized representative. When Maher persisted in his refusal, without "proper justification," to report to work at the position designated in the settlement agreement, NJT, pursuant to the collective-bargaining agreement, conducted a dismissal hearing. Plaintiff represented himself at the hearing, although the union was present. In spite of Maher's testimony that he had never been consulted about the settlement, that he was unsuited for the new job, and that by previous agreement he was exempted from Rule 15, NJT dismissed him for insubordination in December 1987.

Page 463

Plaintiff filed his complaint in the Law Division one month later. In the meantime, and over plaintiff's objection, the union unsuccessfully pursued an appeal of Maher's dismissal with NJT. The union then obtained an arbitration hearing before the Special Board of Adjustment (Adjustment Board), an informal, quasi-judicial forum established by the Railway Labor Act to hear grievances not settled by union/carrier conference. See 45 U.S.C.A. § 153 Second. The Adjustment Board found that NJT and the union had negotiated in good faith to seek a solution by which Maher could comply with Rule 15 and continue his employment. It then found that Maher's termination for insubordination had been warranted because he had not returned to work under the terms of the settlement agreement and that the dismissal hearing had included no procedural irregularities or due-process defects that would have affected Maher's right to a fair hearing. The Adjustment Board concluded that Maher could not unilaterally disqualify himself from the clerical assignment, that his refusal to report for the position constituted an inappropriate job action, and that NJT had been justified in dismissing him.

The Law Division granted summary judgment for defendants on all counts of the complaint, ruling that plaintiff's three claims were preempted by the Railway Labor Act. As indicated, the Appellate Division affirmed the dismissal of the LAD and fair-representation claims and reversed on the Whistleblower Act claim.


We begin with a brief outline of the elementary premises supporting the preemption doctrine. Under our federal system of government the States possess sovereignty concurrent with that of the federal government, subject only to the limitations imposed by the supremacy clause of the United States Constitution, article VI, clause 2. Tafflin v. Levitt, 493 U.S. 455, ----, 110 S.Ct. 792, 795, 107 L.Ed.2d 887, 894 (1990). That clause

Page 464

provides that laws made in pursuance of federal constitutional authority become the "supreme law [593 A.2d 755] of the land." Although a State has the power, inherent in any sovereign, to determine what shall be an offense against its authority, "state laws that 'interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution' are invalid." Wisconsin Pub. Intervenor v. Mortier, --- U.S. ----, ----, 111 S.Ct. 2476, 2478, 115 L.Ed.2d 532 (1991)...

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