Anthony McCoy v. Arde, Inc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0080-23
ANTHONY MCCOY,
Plaintiff-Appellant,
v.
ARDE, INC., LORRAINE KUNZ,
LOUIS TANTILLO, THOMAS
WILSON, and VINCENT MANCUSO,
Defendants-Respondents.
________________________________
Argued March 6, 2024 – Decided October 9, 2024
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6073-22.
Andrew Dwyer argued the cause for appellant (The
Dwyer Law Firm, LLC, attorneys; Andrew Dwyer, of
counsel and on the briefs).
Danielle E. Acocella argued the cause for respondents
(Constangy, Brooks, Smith & Prophete, LLP,
attorneys; Anjanette Cabrera and Danielle E. Acocella,
on the brief).
The opinion of the court was delivered by
VERNOIA, P.J.A.D.
In this employment discrimination, harassment, and retaliation case, we
granted plaintiff Anthony McCoy leave to appeal from an order granting
defendants Arde, Inc.'s (Arde), Lorraine Kunz's, Louis Tantillo's, Thomas
Wilson's, and Vincent Mancuso's motion to stay the Law Division proceedings
and compel arbitration of plaintiff's causes of action under the New Jersey Law
Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, pursuant to a putative
arbitration agreement between plaintiff and Arde. We affirm.
I.
At all times pertinent to the claims asserted in plaintiff's complaint, Arde
was party to a collective bargaining agreement (the CBA) with Service,
Production, Merchandising, Wholesale, Distribution, Clerical and Health
Related Services, Airline, Airport and Aerospace Employees Union, Local 210,
International Brotherhood of Teamsters (the Union). The Union is the collective
bargaining representative for Arde's employees in certain job titles, including
the title plaintiff held during his employment with the company.1
1
The CBA states the Union is the collective bargaining agent for "all" of Arde's
"employees" in certain specified job titles. Based on the allegations in the
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2
The CBA includes a procedure for the resolution of grievances, which the
CBA defines as disputes "with respect to the interpretation or application of any
provision of the" CBA. The CBA does not include state statutory discrimination
claims within the definition of grievances subject to the CBA's grievance-and
arbitration-procedure, and plaintiff acknowledges and concedes that the NJLAD
claims asserted in plaintiff's Law Division complaint are not subject to the
CBA's grievance-and-arbitration procedure.
The CBA's grievance-and-arbitration procedure consists of various steps
that culminate with binding arbitration before the American Arbitration
Association. The CBA also prohibits the discharge of employees "without good
and sufficient cause" and provides that the Union may challenge an employee's
discharge as a violation of that contractual agreement in accordance with the
grievance procedure.
In pertinent part, the CBA further provides that neither Arde nor the Union
will discriminate "against any individual with respect to hiring, compensation,
[or] terms or conditions of employment because of such individual's race, color,
complaint, Arde employed plaintiff in one of the job titles within the collective
bargaining unit. Plaintiff therefore was a member of the collective bargaining
unit represented by the Union commencing with the start of his employment—
including during the initial forty-five days of his employment that the CBA
deems a probationary period—and until the termination of his employment.
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creed, religion, sex, national origin, age, disability, or any characteristic
protected by law" and will not discriminate against any employee because of
their membership in the Union.
The CBA also includes a provision, titled "ALTERATION OF
AGREEMENT," that prohibits agreements between Arde and its employees that
are inconsistent with the CBA. The provision states, in part, as follows:
No agreement, alteration, understanding, variation,
waiver or modification of any of the terms [or]
conditions or covenants herein, shall be made by any
employee or group of employees with the Company
and, in no case, shall it be binding upon the parties
hereto unless such agreement is made and executed in
writing between the parties hereto.
Arde hired plaintiff for a bargaining-unit position, and plaintiff
commenced his employment in January 2015. On December 5, 2014, prior to
the commencement of his employment, plaintiff executed Arde's "Mutual
Agreement to Arbitrate Claims" (MAAC), which, consistent with its name,
states that plaintiff must submit to arbitration certain claims and controversies—
including those for violations of state statutes—arising out of his employment
with Arde and the termination of his employment. On December 10, 2014, prior
to the commencement of Arde's employment, a company staffing coordinator
executed the MAAC on Arde's behalf.
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The MAAC states that plaintiff "consent[s] to the resolution by arbitration
of all claims or controversies ('claims'), past, present or future, whether arising
out of [his] employment (or its termination), that . . . [he] (and no other party)
may have against" Arde, "its officers, directors, employees or agents" and its
and their "successors or assigns." The MAAC further provides that the
"[a]rbitrable claims include but are not limited to: claims for wages or other
compensation due"; "claims for discrimination" including claims for racial
discrimination; and "claims for violation of any federal, state, or other
governmental law, statute, regulation, or ordinance," except as otherwise
provided in the MAAC.
The MAAC excepts from the claims otherwise arbitrable those filed "for
temporary equitable relief in aid of arbitration, where such an action is otherwise
available by law," administrative charges made to any "federal, state or local
equal opportunity or fair employment practices agency," "administrative
charge[s] to the" National Labor Relations Board, and other specified
administrative proceedings. Plaintiff does not argue that any of the exceptions
apply here.
The MAAC also describes in detail the prescribed procedure for the
arbitration of any claims falling under the arbitration requirement. The
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procedure requires the submission of such claims to arbitration "under the
auspices of the Judicial Arbitration [and] Mediation Services."
The MAAC includes a bolded acknowledgment, which plaintiff signed,
stating he had reviewed and understood the agreement, entered into it
voluntarily, and did not rely on any promises that were not expressly set forth
in the agreement. The acknowledgement further states plaintiff understood that
by entering into the MAAC, he had given up his right to a jury trial and had been
provided an opportunity to discuss the agreement with his "private legal
counsel."
In November 2020, Arde terminated plaintiff's employment. Plaintiff
later filed a complaint in the Law Division alleging that during his employment ,
the individual defendants—who were at various times his co-employees and
supervisors—harassed and otherwise discriminated against him based on his
race—Black—and retaliated against him for objecting to the alleged
discriminatory and harassing conduct. Plaintiff further alleged the
discriminatory and retaliatory conduct culminated in Arde's termination of his
employment.
Plaintiff's complaint asserted two causes of action under the NJLAD
against Arde—one for racial discrimination and the other for retaliation. The
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complaint also included a cause of action against the individual defendants,
claiming they violated the NJLAD by aiding and abetting Arde's alleged
discriminatory and retaliatory actions. The complaint does not include any
claims alleging that Arde violated the CBA.
Defendants moved for a stay of plaintiff's lawsuit and to compel
arbitration of the asserted NJLAD causes of action. Defendants argued plaintiff
was required under the MAAC to arbitrate his state statutory NJLAD claims .
Plaintiff opposed the motion, claiming the MAAC was unenforceable
because "the terms and conditions of [plaintiff's] employment were governed
by" the CBA. Plaintiff also argued that because the CBA did not require
arbitration of plaintiff's NJLAD claims and the MAAC was unenforceable, he
was permitted to prosecute his claims in the Law Division action.
Plaintiff further asserted that the MAAC and CBA conflict and, as a result,
the MAAC was not the product of the mutual assent required for a valid waiver
of plaintiff's right to a jury trial on his NJLAD claims. Plaintiff claimed the
agreements conflict because the MAAC requires submission of "any
employment dispute" to arbitration in accordance with the procedure set forth in
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that agreement and the CBA requires the submission of "any employment
dispute" to arbitration in "a completely different procedure." 2
Plaintiff also claimed the MAAC is unenforceable because the CBA's
"ALTERATION OF AGREEMENT" provision prohibits Arde's entry "into any
separate agreement with an employee" and that "if [Arde] did enter into a
separate agreement with [an] employee, it would not be enforceable unless the
[U]nion countersigned it, which . . . didn't happen here."
Arde argued there is no conflict between the CBA and MAAC because the
CBA does not permit or require the prosecution of an employee's state statutory
anti-discrimination claims under the grievance-and-arbitration procedure. Arde
asserted that contrary to plaintiff's claim, the CBA's "ALTERATION OF
AGREEMENT" provision did not bar Arde's entry into the MAAC with plaintiff
because the MAAC does not modify or alter the terms of the CBA, and the
CBA's grievance-and-arbitration provision is otherwise inapplicable to the
statutory discrimination claims under the NJLAD asserted in plaintiff's
complaint. Plaintiff concedes the CBA's grievance-and-arbitration provisions
"do not require arbitration for the statutory claims at issue in this case."
2
As noted, the MAAC requires the arbitration of claims before Judicial
Arbitration and Mediation Services and the CBA requires arbitration before the
American Arbitration Association.
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In a written decision following argument on defendant's motion, the court
assessed the validity of the MAAC under the standard established in Atalese v.
U.S. Legal Servs. Grp., LP, 219 N.J. 430 (2014), for a valid agreement waiving
a right to a jury trial and requiring arbitration of statutory claims under the
NJLAD. The motion court reasoned that because, in its view, the MAAC
satisfied the Atalese standard and the CBA did not, the CBA did not require
arbitration of plaintiff's NJLAD claims and the MAAC required arbitration of
the asserted NJLAD claims. Based on that reasoning, the court found no conflict
between the MAAC and the CBA and concluded plaintiff was required to
arbitrate his NJLAD claims in accordance with the MAAC.
The court entered an order staying the proceedings in the Law Division
action and compelling arbitration of plaintiff's NJLAD claims in accordance
with the MAAC. We granted plaintiff's motion for leave to appeal from the
court's order.
II.
Prior to addressing plaintiff's arguments challenging the court's order, we
summarize the principles that guide our analysis. "We review a trial court's
order granting or denying a motion to compel arbitration de novo because the
validity of an arbitration agreement presents a question of law." Santana v.
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SmileDirectClub, LLC, 475 N.J. Super. 279, 285 (App. Div. 2023) (citing Skuse
v. Pfizer, Inc., 244 N.J. 30, 46 (2020)). We therefore "need not give deference
to the [legal] analysis by the trial court." Ibid. (alteration in original) (quoting
Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019)). In our review of an
order compelling arbitration, we "construe the arbitration provision with fresh
eyes." Morgan v. Sanford Brown Inst., 225 N.J. 289, 303 (2016).
We do not review a court's reasoning; we review only the trial court's
judgment or order. Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div.
2015). In our analysis of plaintiff's arguments on appeal, we therefore consider
"only the propriety of the [order] entered by the trial court, not the reasoning
underlying the court's decision." Ibid. (citing Do-Wop Corp. v. City of Rahway,
168 N.J. 191, 199 (2001)). We apply these standards here.
"The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, and the nearly
identical New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32, enunciate
federal and state policies favoring arbitration." Atalese, 219 N.J. at 440.
Pursuant to the FAA, courts must "place arbitration agreements on an equal
footing with other contracts and enforce them according to their terms." Id. at
441 (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).
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In reviewing orders compelling arbitration, "we are mindful of the strong
preference to enforce arbitration agreements, both at the state and federal level."
Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013); see also Flanzman
v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020) (explaining "the affirmative policy
of this State, both legislative and judicial, favors arbitration as a mechanism of
resolving disputes" (quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 92
(2002))). Arbitration, as a favored means for dispute resolution, is not, however
"without limits." Garfinkel v. Morristown Obstetrics & Gynecology Assocs.,
PA, 168 N.J. 124, 132 (2001).
"Arbitration's favored status does not mean that every arbitration clause,
however phrased, will be enforceable." Atalese, 219 N.J. at 441 (citing Hirsch,
215 N.J. at 187). Thus, the fact that the MAAC's provisions otherwise satisfy
the standards for plainly stated waiver of a jury trial and agreement to arbitrate
under Atalese does not end the inquiry. A legally enforceable arbitration
agreement "requires 'a meeting of the minds,'" id. at 442 (quoting Morton v. 4
Orchard Land Tr., 180 N.J. 118, 120 (2004)), and the effective waiver of a
party's right to a jury trial "requires [the] party to have full knowledge of [their]
legal rights and intent to surrender [that] right," ibid. (quoting Knorr v. Smeal,
178 N.J. 169, 177 (2003)). "Moreover, because arbitration involves a waiver of
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the right to pursue a case in a judicial forum, 'courts take particular care in
assuring the knowing assent of both parties to arbitrate, and a clear mutual
understanding of the ramifications of that assent.'" Id. at 442-43 (quoting
NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 425
(App. Div. 2011)).
"An arbitration agreement must be the result of the parties' mutual assent,
according to customary principles of state contract law." Skuse, 244 N.J. at 48
(citing Atalese, 219 N.J. at 442). The mutual assent necessary for a valid
arbitration agreement "requires that the parties have an understanding of the
terms to which they have agreed. 'An effective waiver'" of an individual's right
to pursue a claim in a judicial forum "'requires a party to have full knowledge
of his [or her] legal rights and intent to surrender those rights.'" Atalese, 219
N.J. at 442 (quoting Knorr, 178 N.J. at 177). And, "under New Jersey law, any
contractual 'waiver-of-rights provision must reflect that [the party] has agreed
clearly and unambiguously' to its terms." Id. at 443 (alteration in original)
(quoting Leodori v. CIGNA Corp., 175 N.J. 293, 302 (2003)); see also
Martindale, 173 N.J. at 96 (enforcing an arbitration agreement because, among
other things, it "was clear and unambiguous").
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Defendants' motion to stay plaintiff's lawsuit and compel arbitration is
founded on the MAAC, which plainly provides that plaintiff waives his right to
a jury trial and agrees to arbitrate any state statutory claims he may have against
Arde. Plaintiff does not dispute that on its face, the MAAC includes a waiver
of his right to a jury trial on the NJLAD claims asserted in the complaint and an
agreement to arbitrate those claims that satisfies the requirements explained by
the Court in Atalese. See Atalese, 219 N.J. at 443 ("[U]nder New Jersey law,
any contractual 'waiver-of-rights provision must reflect that [the party] has
agreed clearly and unambiguously' to its terms." (second alteration in original)
(quoting Leodori, 175 N.J. at 302)); see also Drinker Biddle & Reath LLP v.
N.J. Dep't of L. & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011)
(explaining an issue not briefed on appeal is deemed abandoned).
Before the motion court, and on appeal, plaintiff's challenge to the
MAAC's enforceability is based on his claim that following his execution to the
MAAC and employment by Arde, he became a member of the collective
bargaining unit represented by the Union and was therefore subject to the terms
of the CBA. He contends the MAAC conflicts with the CBA and therefore the
MAAC does not constitute the clear and unambiguous waiver of his right to a
jury trial on his NJLAD claims and agreement to arbitrate that is required by
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Atalese. 219 N.J. at 442-43. He also argues the MAAC is unenforceable
because the Union had exclusive authority to negotiate over the arbitrability of
plaintiff's employment-related statutory discrimination claims under the United
States Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247(2009).
We reject plaintiff's arguments because they are founded on a premise—
that the MAAC and CBA conflict in such a manner as to render the MAAC
unenforceable—that is undermined by the plain language of the two agreements.
In short, the MAAC and the CBA do not conflict in any manner of consequence
to the plainly stated waiver of plaintiff's right to a jury trial and agreement to
arbitrate his state statutory NJLAD causes of action set forth in the MAAC.
To be sure, and as plaintiff argues, there are differences between the
dispute resolution procedures in the CBA and the MAAC. The CBA provides
for the arbitration of contractual grievances before the American Arbitration
Association and the MAAC requires arbitration of arbitrable disputes—
including claims arising under state statutes—under the agreement before
Judicial Arbitration and Mediation Services.
The differences between those procedures are of no consequence to the
validity of plaintiff's waiver of his right to a jury trial and agreement to arbitrate
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his NJLAD claims for the simple but dispositive reason that the statutory claims
asserted in the complaint are separate from, and independent of, any contractual
rights that exist under the CBA. Stated differently, plaintiff could not prosecute
his state statutory claims under the grievance procedure in the CBA because any
claimed violation of the NJLAD, like those asserted in plaintiff's Law Division
complaint, do not constitute cognizable grievances subject to the CBA's
grievance-and-arbitration procedure. This is undisputed. Plaintiff
acknowledges and concedes that neither he nor the Union could prosecute his
statutory NJLAD claims in the CBA's grievance-and-arbitration procedure. For
those reasons, any putative conflict between the dispute resolution procedures
in the MAAC and CBA are of no moment in the assessment of the validity of
the MAAC because the CBA does not apply to those claims.
In Thornton v. Potamkin Chevrolet, the Court considered whether a union
employee who had failed to raise a statutory racial discrimination claim in a
grievance arbitration proceeding under a collective bargaining agreement could
also pursue the claim in a separate proceeding alleging racial discrimination
under the NJLAD before the New Jersey Division on Civil Rights (DCR). 94
N.J. 1, 3-4 (1983). The Court found the "[t]he public interest in enforcement of
the [NJLAD]" required the rejection of the defendant's claim the entire
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controversy doctrine should preclude the plaintiff's prosecution of the
discrimination claim before the DCR. Id. at 6.
In support of its determination, the Court found "an important analogy in"
the United States Supreme Court's decision in Alexander v. Gardner-Denver
Co., 415 U.S. 36 (1974), "which held that a proceeding to enforce a
discrimination claim under Title VII of the Civil Rights Act of 1964 would not
be foreclosed by a previous unsuccessful labor arbitration of a claim" pursuant
to the grievance procedure in a collective bargaining agreement. Thornton, 94
N.J. at 6. The Court in Thornton, quoting the reasoning in Alexander, explained
that "the federal policy favoring arbitration of labor disputes and the federal
policy against discriminatory employment practices can best be accommodated
by permitting an employee to pursue fully both his remedy under the grievance
arbitration clause of a collective-bargaining agreement and his cause of action
under Title VII." Ibid. (quoting Alexander, 415 U.S. at 59-60).
The Court further cited Alexander's reasoning that the plaintiff "by
submitting his grievance to arbitration . . . agrees to arbitrate only his
contractual rights under the collective bargaining agreement" but "[i]n a Title
VII proceeding he asserts statutory rights guaranteed to him by Congress." Id.
at 7 (emphasis omitted). And the Court noted that Alexander made a distinction
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between the plaintiff's right to pursue his statutory discrimination claims under
Title VII and his assertion of contractual rights in the arbitration that had been
filed under the union contract, explaining "the relationship between the forums
is complementary since consideration of the claim by both forums may promote
the policies underlying each." Ibid. (quoting Alexander, 415 U.S. at 50-51).
In Thornton, the Court concluded that "complementary jurisdiction" over
employment-related claims under a collective bargaining agreement grievance
procedure and in an available forum for claims asserted under the NJLAD
permitted disposition of such claims in both forums. Id. at 7-8. That is, the
Court recognized that an employee may assert NJLAD claims in a forum
permitted under the statute and separately pursue discrimination claims as
permitted under a collective bargaining agreement in a grievance-and-
arbitration proceeding. 3 Id. at 8; see also Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 411 (1988) (explaining the United States Supreme Court
3
We observe that an employee's common law state tort claims and state
statutory claims are preempted under Section 301 of the Labor Management
Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a), and under Section 7 of the
National Labor Relations Act (NLRA), 29 U.S.C. § 157, where the state
statutory claim is dependent on the meaning of a collective bargaining
agreement, see generally Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016)
(addressing preemption of the plaintiffs' state statutory retaliatory discharge
claim under the LMRA and NLRA). As alleged in plaintiff's complaint, his
NJLAD claims are not dependent in whole or in part on the CBA.
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"has, on numerous occasions, declined to hold that individual employees are,
because of the availability of arbitration" under a collective bargaining
agreement, "barred from bringing claims under federal statutes" (quoting
Atchinson, T. &. S. F. R. Co. v. Buell, 480 U.S. 557, 564-65 (1987))); see also
Puglia, 226 N.J. at 264 (explaining "New Jersey has a significant body of
statutory and decisional law protecting employee rights—protections that exist
whether the employee is a union member or not").
Plaintiff's claim that the MAAC is unenforceable because there is a
conflict between the arbitration procedure set forth in the CBA and the one
prescribed in the MAAC ignores that the separate proceedings—plaintiff's
prosecution of his statutory claims and the Union's right to file grievances under
the CBA—are complementary, address wholly different issues, and are intended
to vindicate separate interests. Alexander, 415 U.S. at 50-51; Thornton, 94 N.J.
at 7; see also Puglia, 226 N.J. at 285-96 (explaining a union employee's state
statutory claim under the Conscientious Employee Protection Act, N.J.S.A.
34:19-1 to -14, that is not preempted under the LMRA or NLRA may proceed
in state court independently of the requirements of a collective bargaining
agreement).
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Here, as plaintiff concedes, the CBA does not permit or require resolution
of his state statutory claim under the NJLAD in the agreement's grievance-and-
arbitration procedure. Therefore, there is no complementary jurisdiction to
consider because neither plaintiff nor the Union could assert state statutory
claims under the CBA. Because plaintiff's NJLAD claims are not, by definition,
grievances subject to the grievance-and-arbitration provisions of the CBA, the
NJLAD provided the exclusive means by which plaintiff could prosecute his
individual state statutory claims against Arde.
The NJLAD "provides aggrieved employees with a choice of forum to
prosecute their claims." Garfinkel, 168 N.J. at 130. Employees "may pursue an
administrative remedy by filing a verified complaint with the [DCR], or may file
suit in the Law Division of the Superior Court." Ibid. (citing N.J.S.A. 10:5-13).
In exercising their rights under the NJLAD, aggrieved employees may also enter
into enforceable agreements with their employers to waive their right to a jury
trial and proceed to binding arbitration of their NJLAD claims. Id. at 130-36.
We recognize a union may negotiate on behalf of its members an
obligation to arbitrate statutory claims under a collective bargain agreement as
long as the obligation is "explicitly stated" in the agreement, 14 Penn Plaza LLC,
556 U.S. at 258 (quoting Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 80
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(1998)). But the Union opted not to negotiate such a requirement with Arde
here and therefore left plaintiff to pursue his individual statutory claims on his
own under the NJLAD. See Alexander, 415 U.S. at 50-51; Thornton, 94 N.J. at
7; see also Puglia, 226 N.J. at 285-96.
Given those circumstances, and because it is undisputed plaintiff had an
independent and personal right to prosecute his NJLAD claims, we discern no
basis to conclude he could not separately agree to prosecute those claims—
which he agrees cannot be prosecuted under the CBA's grievance-and-
arbitration procedure—in a forum and following a procedure different than the
one Arde and the Union agreed to for the disposition of grievances under the
CBA, to which only they are parties. For those reasons, we reject plaintiff's
claim that because the procedure for the resolution of disputes in the CBA is
different than the arbitration procedure in the MAAC, it results in a conflict that
renders the MAAC ambiguous and therefore unenforceable. As the Court
explained in LePore v. National Tool & Manufacturing Co., 115 N.J. 226, 228
(1989), "[t]he fact that plaintiff was covered by a collective-bargaining
agreement . . . should not preclude a cause of action predicated on an
independent basis," and "a suit based on an independent state cause of action
does not undermine a collective-bargaining agreement."
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Contrary to plaintiff's contention, our decisions in Rockel v. Cherry Hill
Dodge, 368 N.J. Super. 577 (App. Div. 2004), and Foulke Management, 421
N.J. Super. at 409-11, 431-38, do not require a different result. In Rockel, we
found a putative arbitration agreement was "highly ambiguous" and therefore
unenforceable because the parties to the agreement had "executed two
documents which contain[ed] separate and somewhat disparate arbitration
clauses." 368 N.J. Super. at 581. There is no similar circumstance extant here.
Plaintiff and Arde were parties to one agreement—the MAAC—which plaintiff
recognizes clearly and unambiguously states that he waives his personal right to
a jury trial and agreed to arbitrate his statutory NJLAD claims.
Similarly, in Foulke Management, we found unenforceable an alleged
agreement that a car dealership claimed required arbitration of the plaintiff's
claims arising out of the purchase of a new car. 421 N.J. Super. at 409-11. We
found the terms of the claimed arbitration agreement had been spread across a
series of separate documents signed by the plaintiff in connection with a car
purchase and that, in many respects, the various documents described aspects of
the alleged arbitration obligation in different and inconsistent, and in "[e]qually
murky and conflicting" ways. Id. at 431-37. For those reasons, we determined
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there was a lack of mutual assent to the terms of the arbitration obligation and
found the putative agreement unenforceable on that basis. Id. at 438.
Again, the circumstances here differ from those in Foulke Management.
Arde and plaintiff entered into a single agreement—the MAAC—that plainly
and unambiguously states plaintiff waived his right to a jury trial on his statutory
claims and agreed to arbitrate those claims. And, as we have explained, plaintiff
was not a party to the CBA and he concedes that CBA does not permit or require
that he prosecute his NJLAD claim in the CBA's grievance-and-arbitration
procedure. As such, there is no ambiguity in plaintiff's contractual obligations
as set forth in the MAAC; he waived his right to jury trial and agreed to
prosecute his individual statutory NJLAD claims—that he no right or obligation
to prosecute under the CBA—in arbitration.
Arde was free to enter into an agreement—the MAAC—with plaintiff as
long as it did not conflict with the CBA. J.I. Case Co. v. NLRB, 321 U.S. 332,
339 (1944) ("Individual contracts cannot subtract from collective ones"); Mount
Holly Twp. Bd. of Educ. v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319, 322
(2009) (reaffirming that "when provisions in an individual employment contract
conflict with the terms of a" collective bargaining agreement, "and diminish or
interfere with rights provided by the" agreement, "the language in the individual
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contract must yield to the collective agreement"). Our Supreme Court has
recognized "the federal labor principle that individual contracts" with members
of a collective bargaining unit "are void only to the extent that they conflict with
collective [bargaining] agreements or interfere with the principles of collective
negotiation." Troy v. Rutgers, 168 N.J. 354, 375-76 (2001); see also Caterpillar
Inc. v. Williams, 482 U.S. 386, 396 (1987) (explaining an employee "covered
by a collective-bargaining agreement is permitted to assert legal rights
independent of that agreement, including state-law contract rights, so long as
the contract relied on is not a collective-bargaining agreement" (emphasis
omitted)).
For the reasons we have explained, there is no conflict between the MAAC
and the CBA pertinent to the disposition of plaintiff's statutory NJLAD claims ,
and the MAAC did not diminish any rights to prosecute the claims under the
CBA. The CBA negotiated by the Union did not permit or require the
prosecution of statutory claims under the grievance-and-arbitration agreement
and, as result, those claims were reserved by the Union's agreement with Arde
as individual statutory claims that plaintiff was permitted to prosecute
individually and independent of the CBA.
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Contrary to plaintiff's contention, Article 20 of the CBA did not prohibit
Arde's entry into the MAAC with plaintiff. Article 20, titled "ALTERATION
OF AGREEMENT," prohibits Arde's entry into separate agreements with
members of the collective bargaining unit that alter, modify, or vary the "terms
and conditions" of the CBA. The MAAC does none of those things. Again, the
CBA negotiated by the Union allows bargaining unit employees to individually
prosecute their NJLAD claims and, here, plaintiff opted to prosecute his NJLAD
claims by agreeing to waive his right to a jury trial and arbitrate his claims in an
agreement—the MAAC—that fully comports with the Atalese standard. The
MAAC is therefore in full accord with the CBA negotiated by the Union.
To the extent we have not expressly addressed any of plaintiff's remaining
arguments, we find they are without sufficient merit to warrant discussion in a
written opinion.4 R. 2:11-3(e)(1)(E).
4
Plaintiff argues for the first time in his reply brief that the Union had the
exclusive authority under the NLRA, as the collective bargaining representative
of Arde's employees, to negotiate the terms and conditions of plaintiff's exercise
of his right to prosecute his individual statutory claims, and that the MAAC is
unenforceable as a matter of law because it violated the NLRA. See generally
Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 346 F. App'x 602 (2d
Cir. 2009). We do not address the argument because it is improper to for a party
to use a reply brief to raise an issue for the first time or enlarge the arguments
made in its initial brief. L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc.,
434 N.J. Super. 60, 87 (App. Div. 2014). We note only that plaintiff's reliance
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Affirmed.
on Mendez is misplaced because the court there did not consider that the
plaintiff's filing of the statutory discrimination claim constituted the exercise of
the plaintiff's independent right to pursue their individual cause of action against
their former employer. See, e.g., Alexander, 415 U.S. at 50-51; Puglia, 226 N.J.
at 285-96; LePore, 115 N.J. at 227-28; Thornton, 94 N.J. at 7.
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25