United States Court of Appeals
For the First Circuit
No. 10-2196
ROBERT HAGGINS ET AL.,
Plaintiffs, Appellants,
v.
VERIZON NEW ENGLAND, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Alfred Gordon and Pyle Rome Ehrenberg, PC were on brief for
appellants.
Arthur G. Telegen, John E. Duke, and Seyfarth Shaw LLP were
on brief for appellee.
July 27, 2011
LYNCH, Chief Judge. Between November 2008 and February
2009, Verizon New England, Inc. (VNE) began requiring its field
technicians to carry company-issued cell phones during work. VNE
supervisors need to stay in touch with field technicians, who are
assigned to work on installation projects around Massachusetts and
Rhode Island, and VNE found a previous company policy reliant on
paging devices to be inefficient and cumbersome. The cell phones
contain a global positioning system (GPS), which allows VNE to
determine the location of each field technician through a
monitoring service known as Field Force Manager.
Plaintiffs are VNE field technicians who are admittedly
represented by a union, the International Brotherhood of Electrical
Workers, Local 2324 (the Union), which has a collective bargaining
agreement (CBA) with VNE. The plaintiffs assert that by requiring
them to carry these phones, VNE violated (1) their privacy rights
under Article 14 of the Declaration of Rights in the Massachusetts
Constitution and Mass. Gen. Laws ch. 214, § 1B, and (2) their
state-law rights as alleged third-party beneficiaries of a contract
between VNE and Verizon Wireless, which they say required VNE to
receive consent from its employees when it instituted the phone
policy.
This is the second lawsuit before this court involving
employee discontent with VNE's new cell phone policy. In February
2009, VNE brought the first lawsuit against a pair of Union locals,
-2-
asserting that they had violated a CBA no-strike clause in response
to the cell phone policy and other VNE actions. See Verizon New
England, Inc. v. Int'l Bhd. of Elec. Workers, Local No. 2322, No.
10-2092, 2011 WL 2568008 (1st Cir. June 30, 2011). These
violations, VNE argued, warranted injunctive relief under Boys
Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235
(1970), as they deprived the company of the benefit of arbitration
under the CBA. We describe some of the facts relevant to this suit
in that prior decision, which affirmed a denial of injunctive
relief against one of the locals but vacated and remanded a denial
of declaratory relief against it. See Verizon New England, 2011 WL
2568008, at *1.
In June 2009, a little more than four months after VNE
filed that suit, the plaintiffs filed this suit. Before this
filing, rather than grieve the new cell phone rule, the Union had
filed an unfair labor practice charge with the National Labor
Relations Board (NLRB) in January 2009. The charge alleged that
the rule constituted a change in working conditions over which VNE
was required to bargain. On June 24, 2009, the NLRB deferred the
charge to arbitration because the issue arose from the CBA. The
plaintiff employee Union members, represented by the same counsel
who represent the Union, filed suit in state court the next day
asserting the two state-law claims.
-3-
VNE removed this case to the federal district court and
moved for summary judgment. The plaintiffs then cross-moved to
remand the case for lack of subject-matter jurisdiction. In its
motion and opposition to the plaintiffs' motion, VNE argued (1)
that the plaintiffs' state-law claims are preempted by § 301 of the
Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), as well
as, pursuant to San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), the National Labor Relations Act (NLRA), 29 U.S.C.
§ 151-169, and (2) that at any rate the plaintiffs' third-party
beneficiary claim fails as a matter of law. In their motion and
opposition to VNE's motion, the plaintiffs argued that (1) the
claims are not preempted and that therefore the case should be
remanded to the state court, and (2) VNE had not established
sufficient undisputed facts to warrant a grant of summary judgment
on their third-party beneficiary claim. In so arguing, the
plaintiffs asserted that they must be allowed discovery to
establish that they were intended beneficiaries of the contract
between VNE and Verizon.
The district court entered summary judgment for VNE and
denied plaintiffs' motion to remand. Haggins v. Verizon New
England, Inc., 736 F. Supp. 2d 326 (D. Mass. 2010). The court held
that the privacy claims were preempted under § 301, but did not
address whether the third-party beneficiary claim was preempted.
-4-
It then granted summary judgment for VNE on the merits. We affirm
the dismissal of the claims.
I.
The plaintiffs do not dispute that, as Union members,
they are subject to the CBA entered by VNE and the Union. In
relevant part, the CBA provides the following. Under an article
entitled "Management Rights," the agreement states:
Subject only to the limitations contained in
this Agreement the Company retains the
exclusive right to manage its business
including (but not limited to) the right to
determine the methods and means by which its
operations are to be carried on, to assign and
direct the work force and to conduct its
operations in a safe and effective manner.
The CBA also outlines a grievance process, defining "grievance" as
"a complaint involving the interpretation or application of any of
the provisions of this Agreement or a complaint that an employee or
group of employees for whom the Union is the bargaining agent has,
in any manner, been unfairly treated." Grievances may be subjected
to arbitration consonant with requirements set out in the CBA.
VNE asserts that it adopted the cell phone policy at
issue in this litigation pursuant to the Management Rights clause
of the CBA. The plaintiffs work as Central Office Equipment
Installation Technicians (COEI Techs) and install telephone
equipment for VNE. Although COEI Techs have reporting
headquarters, they often work on installation projects elsewhere in
Massachusetts and Rhode Island, which can take days, weeks, or even
-5-
months. VNE requires that COEI Techs stay in touch with their
supervisors during these projects. Before VNE adopted the disputed
policy, it provided COEI Techs with pagers; when a supervisor
contacted a COEI Tech by pager, the COEI Tech would need to find a
phone and call the supervisor back.
In switching from pagers to cell phones, VNE apparently
sought to improve its communication with COEI Techs, streamline its
administrative systems, and enhance its ability to locate COEI
Techs working in the field. The cell phones VNE selected not only
enable supervisors to call COEI Techs directly; they also contain
a feature called Field Force Manager (FFM) that possesses more
advanced capabilities.1 FFM makes it possible for employees to
punch in and out of work remotely, submit standardized forms, and
receive driving instructions, customer contact information, and
mass text messages from their supervisors. It also has a feature
that can determine an employee's hours worked from the punch in and
punch out system and link this information to VNE's payroll system.
Most important here, FFM has a GPS function that allows VNE to
monitor the location of the phones.
VNE describes the utility of this GPS tracking function
with reference to improving its ability to respond quickly to
emergencies. In particular, VNE emphasizes that when an emergency
1
VNE notes that the phones also offer more commonplace
features, "including built-in applications like calculators,
cameras, and the like."
-6-
arises, this monitoring capability allows supervisors to quickly
identify the COEI Techs in the area so they can assign them to the
job. VNE also emphasizes that the GPS function is responsible for
FFM's ability to transmit driving instructions and process employee
punch ins and punch outs, though it is not clear why this
necessitates that VNE monitor the location of the phones. At any
rate, VNE acknowledges that the GPS feature allows it "to determine
whether an employee is not where he or she is supposed to be" when
phones are logged-in to FFM. In relevant part, VNE's work rules
concerning the phones, adopted in October 2008, state: "Employees
will not shut off, disable Field Force Manager, or render useless
the GPS functionality of the phone during working hours."
VNE began purchasing these phones from Verizon Wireless
in October 2008 and issued them to employees between mid-November
2008 and early February 2009. On January 24, 2009, the Union filed
an unfair labor practice charge with the NLRB, alleging that VNE
had begun "requiring employees to use mobile telephones enabled
with a GPS tracking system without giving the [Union] notice or an
opportunity to bargain to the extent required by law." Six months
later, on June 24, the NLRB deferred the Union's labor charge on
the grounds that "the dispute here involved arises from the
contract between the parties, and the contractual grievance-
arbitration procedures are available for resolving the dispute."
The NLRB deferral letter noted as well that VNE had notified the
-7-
Board that it was "willing to arbitrate the dispute underlying this
charge."
On April 9, 2009, while the NLRB charge was still
pending, the Union's outside counsel sent a letter on behalf of VNE
employees to Verizon Wireless. It is undisputed that the cell
phone purchasing contract entered by VNE and Verizon Wireless
contained a provision requiring authorized consent from all users
and affected persons, though the contract is not a part of the
record. The letter asserted that VNE was likely violating this
term and raised the possibility of legal action against both VNE
and Verizon Wireless. On April 23, 2009, Verizon Wireless
responded that "neither your client [the Union] nor employees of
Verizon New England are parties to any contract between Verizon
Wireless and Verizon New England; nor are they intended as
beneficiaries of any such contract." The letter asserted that in
light of this, any legal claim against Verizon Wireless "would have
no basis."
The day after the NLRB deferred the Union's labor charge,
on June 25, 2009, the plaintiffs filed this suit in Massachusetts
state court. VNE removed the case to federal court, and the
district court granted it summary judgment. On the question of
preemption, the district court held that the plaintiffs' privacy
claims are preempted by § 301 because their resolution would
require interpretation of the CBA's Management Rights clause.
-8-
Haggins, 736 F. Supp. 2d at 329-30. It did not address whether the
third-party beneficiary claim was preempted under either § 301 or
Garmon. The district court held that in light of the § 301
preemption of the privacy claims, it had jurisdiction over the full
complaint, id. at 329, and proceeded to the merits. The court
granted summary judgment on plaintiffs' privacy claims on the
ground that the CBA's grievance procedures had not been exhausted,
id. at 331, and granted summary judgment on the plaintiffs' third-
party beneficiary claim on the ground that the plaintiffs had not
produced any evidence concerning the intent of the contracting
parties, id. at 331-32.
II.
We review de novo the entry of a grant of summary
judgment. TMTV, Corp. v. Mass Prods., Inc., Nos. 09-1439, 09-1956,
2011 WL 2306514, at *3 (1st Cir. June 13, 2011). Although the
parties raise disputed facts, particularly concerning the third-
party beneficiary claim, the question of § 301 preemption in this
case is primarily a question of law. See O'Donnell v. Boggs, 611
F.3d 50, 53 (1st Cir. 2010).
As we recognized in O'Donnell, while § 301 on its face is
only a grant of federal jurisdiction, the Supreme Court has deemed
labor contracts within its scope "creatures of federal law" and
"treats section 301 as a warrant both for removing to federal court
state law claims preempted by section 301 and then dismissing
-9-
them." Id. at 53 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 220-21 (1985); Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n
of Machinists, 390 U.S. 557, 559-60 (1968)). This doctrine
"applies most readily to state-law contract claims purporting to
enforce CBAs covered by section 301," id., but it "extends beyond
this point to other claims . . . whose enforcement interferes with
federal labor law and policy," id. at 54.
Such interference exists if the state-law claims "require
construing the collective-bargaining agreement." Id. at 54
(quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
407 (1988)) (internal quotation marks omitted). This court has
made clear that § 301 preempts a state-law claim when "the asserted
state-law claim plausibly can be said to depend upon the meaning of
one or more provisions within the collective bargaining agreement."
Filbotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir. 1997);
see also BIW Deceived v. Local S6, Indus. Union of Marine &
Shipbuilding Workers, 132 F.3d 824, 833 (1st Cir. 1997) (finding
§ 301 preemption of a state-law negligence claim brought by former
employees against a union because it was "plausible" that the union
had a duty of care that arose from a CBA).
A state-law claim, we have held, "can 'depend' on the
'meaning' of a collective bargaining agreement" if either (1) "it
alleges conduct that arguably constitutes a breach of duty that
arises pursuant to a collective bargaining agreement," or (2) "its
-10-
resolution arguably hinges upon an interpretation of the collective
bargaining agreement." Filbotte, 131 F.3d at 26. Accordingly, in
addressing § 301 preemption questions, we look to both the CBA and
the elements of the state claim. O'Donnell, 611 F.3d at 54.
We begin with the state privacy claims under Article 14
of the Massachusetts Declaration of Rights and Mass. Gen. Laws ch.
214, § 1B. In relevant part, the state statute provides: "A person
shall have a right against unreasonable, substantial or serious
interference with his privacy." Mass. Gen. Laws ch. 214, § 1B.
Article 14 similarly provides, again in relevant part: "Every
subject has a right to be secure from all unreasonable searches,
and seizures, of his person, his houses, his papers, and all his
possessions." Mass. Const. pt. 1, art. 14.
The Massachusetts Supreme Judicial Court has made clear
that in determining whether there is a violation of Mass. Gen. Laws
ch. 214 and Article 14, "the employer's legitimate interest in
determining the employees' effectiveness in their jobs should be
balanced against the seriousness of the intrusion on the employees'
privacy." Folmsbee v. Tech Tool Grinding & Supply, Inc., 630
N.E.2d 586, 589 (Mass. 1994) (quoting Bratt v. Int'l Bus. Mach.
Corp., 467 N.E.2d 126, 135 (Mass. 1984)) (internal quotation marks
omitted). It follows that "for a plaintiff to succeed on an
invasion of privacy claim, he must prove not only that the
defendant unreasonably, substantially and seriously interfered with
-11-
his privacy by disclosing facts of highly personal or intimate
nature, but also that it had no legitimate reason for doing so."
Martinez v. New Eng. Med. Ctr. Hosps., Inc., 307 F. Supp. 2d 257,
267 (D. Mass. 2004).
This is not the first time this court has been called to
determine whether § 301 preempts state privacy claims brought by an
employee subject to a CBA containing a Management Rights clause.
In Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1st Cir. 1988),
an employee challenged drug testing by his employer under Mass.
Gen. Laws ch. 214, § 1B and other state privacy statutes. We held
that § 301 preempted these state-law claims because the balancing
of interests under Bratt required interpreting the CBA, and in
particular its Management Rights clause. Id. at 119-120. The
dimensions of the employee's "cognizable expectation of privacy,"
we held, "depend to a great extent upon the concessions the union
made regarding working conditions during collective bargaining."
Id. at 119. The breadth of the Management Rights clause did not
alter our conclusion that it was relevant in determining whether
the plaintiffs had stated a valid privacy claim. Id. at 120.
The same is true here. To determine the reasonableness
of the interference likely will require resort to the custom and
usage of the parties and their particular industry practices. See
United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574,
581-82 (1960) (holding that "the industrial common law--the
-12-
practices of the industry and the shop--is equally a part of the
collective bargaining agreement, although not expressed in it").
VNE asserts that it has long used various methods, including
security cameras and hidden cameras at its facilities, to monitor
employees. The plaintiffs dispute that VNE utilized some of these
methods and assert that others were employed with the knowledge and
consent of employees. These factual disputes are not material to
resolving the § 301 preemption question; indeed, they illustrate
that there is a history of practices informing what count as
accepted and prohibited intrusions on the privacy of VNE employees.
The plaintiffs seek to evade this conclusion by arguing
that Jackson's holding on point has been overruled by the Supreme
Court's decision in Livadas v. Bradshaw, 512 U.S. 107 (1994).2 In
particular, they argue that Livadas established that state-law
claims can only be preempted on the ground that their resolution
arguably hinges on an interpretation of a CBA if the CBA evinces a
"clear and unmistakable waiver" of the state-law right. See id. at
125. But that is not so.
2
The plaintiffs also seek to evade our decision in Jackson
by invoking state cases recognizing constraints on government
invasions of individual privacy interests. These cases are not
relevant to the present dispute concerning an employer's purported
invasions of the plaintiffs' privacy interests. See Commonwealth
v. Goodwin, 933 N.E.2d 925 (Mass. 2010); Commonwealth v. Connolly,
913 N.E.2d 356 (Mass. 2009); Commonwealth v. Cory, 911 N.E.2d 187
(Mass. 2009).
-13-
This court has not interpreted Livadas to establish such
a rule, and with reason. As we held in Filbotte, Livadas made
clear that § 301 "cannot be read broadly to pre-empt nonnegotiable
rights conferred on individual employees as a matter of state law."
Filbotte, 131 F.3d at 26 (quoting Livadas, 512 U.S. at 123)
(internal quotation marks omitted). In Livadas, the plaintiff
union employee brought suit against California's state labor
commissioner alleging that non-enforcement of certain state labor
laws violated her collective bargaining rights under the NLRA.
Livadas, 512 U.S. at 112-13. The state laws at issue established
nonnegotiable requirements concerning the timeliness of employee
wage payments. Id. In rejecting the labor commissioner's argument
that these claims were preempted by § 301, the Court held that
there was no suggestion that Livadas had "sought to or purported to
bargain away" these nonnegotiable protections.3 Id. at 125.
As the district court here held, the threshold question
in this litigation is "not the clarity of the purported waiver but
the proper scope of the underlying right." Haggins, 736 F. Supp.
3
The Court's reference to clear and unmistakable waiver in
Livadas cited to a footnote in Lingle that also dealt with a
question of nonnegotiable state-law rights. Livadas v. Bradshaw,
512 U.S. 107, 125 (1994) (citing Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399, 410-11 n.9 (1988)). In Lingle, the Court
stated that before it decided whether a "state-law bar to waiver
could be preempted under federal law by the parties to a
collective-bargaining agreement, we would require 'clear and
unmistakable' evidence, in order to conclude that such a waiver had
been intended." Lingle, 486 U.S. at 410 n.9 (internal citation
omitted).
-14-
2d at 330. The plaintiff employees do not invoke a nonnegotiable
state-law requirement akin to that at issue in Livadas. Instead,
they assert that Massachusetts state law safeguards privacy rights,
which they acknowledge depend on an analysis of reasonableness and
legitimate business purposes. VNE responds, correctly, that this
analysis of reasonableness and legitimate business purposes
requires an analysis of the CBA's Management Rights clause, which
incorporates past practices that give content to reasonable privacy
expectations. The question of waiver, as discussed in Livadas, is
simply inapposite to this analysis.4
We turn to the question of the plaintiffs' third-party
beneficiary claim, which is not based on any state legislative
policy but on a provision of a private contract between the
defendant and another company. No Livadas questions are raised.
Under Massachusetts law, third-party beneficiaries may only enforce
contracts when they are "intended beneficiaries" of the contract.
Miller v. Mooney, 725 N.E.2d 545, 549-50 (Mass. 2000). "It must
appear from 'the language and circumstances of the contract' that
the parties to the contract 'clear[ly] and definite[ly]' intended
the beneficiaries to benefit from the promised performance." Id.
4
In asserting that Livadas abrogated Jackson, the
plaintiffs invoke decisions of the Third and Ninth Circuits that do
not alter our analysis. See Burnside v. Kiewit Pac. Corp., 491
F.3d 1053 (9th Cir. 2007); Kline v. Sec. Guards, Inc., 386 F.3d 246
(3d Cir. 2004).
-15-
at 550 (alterations in original) (quoting Anderson v. Fox Hill
Village Homeowners Corp., 676 N.E.2d 821, 822 (1997)).
We bypass VNE's argument that this claim is preempted by
§ 301 because it is quite clear that the claim is not colorable
under state law. The district court's analysis that the plaintiffs
failed to state a claim under state law was obviously correct. As
the district court held, the plaintiffs introduced no evidence
other than the relevant contract term to show that any third-party
beneficiary status in employees was intended. See Haggins, 736 F.
Supp. 2d at 331-32. VNE produced ample evidence that there was no
such intent and nothing in the contractual relationship indicates
that there was such intent.
The plaintiffs' protest that the district court should
have allowed them discovery, moreover, is too little too late.
They did not seek discovery in the district court under Fed. R.
Civ. P. 56, nor did they present to the district court the argument
that they chose not to seek discovery under Rule 56 because the
defendants misled them about the grounds on which they would seek
summary judgment, see Cortés-Rivera v. Dep't of Corr. & Rehab., 626
F.3d 21, 27 (1st Cir. 2010).
A claim that is preempted under § 301 "must either be
treated as a § 301 claim or dismissed as pre-empted by federal
labor-contract law." Lueck, 471 U.S. at 220 (citation omitted).
The plaintiffs do not argue that their state statutory and
-16-
constitutional privacy claims may survive as § 301 claims, so we do
not address the substantive merits under § 301. At any rate, the
plaintiffs have not asserted that they have utilized the grievance
procedures required under the CBA. No state law third-party
beneficiary claim survives. Accordingly, we affirm dismissal of
the plaintiffs' claims.
III.
The judgment of the district court is affirmed.
-17-