USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1863
THERESA MARTIN,
Plaintiff, Appellant,
v.
SHAW'S SUPERMARKETS, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker,* Senior U.S. District Judge] __________________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
____________________
Scott W. Lang with whom Susan Forgue Weiner and Lang, Xifaras & ______________ ____________________ _______________
Bullard, P.A., Lisa M. Sheehan, Kate Mitchell & Associates, Betsy L. _____________ ________________ __________________________ ________
Ehrenberg and Angoff, Goldman, Manning, Pyle & Wanger, P.C. were on _________ _______________________________________________
briefs for appellant.
Betsy L. Ehrenberg with whom Harold L. Lichten and Angoff, ____________________ ___________________ _______
Goldman, _______
Manning, Pyle & Wanger, P.C. were on brief for United Food and _______ _____________________
Commercial Workers Local Union 791 and National Employment Lawyers
Association, Massachusetts Chapter, Amici Curiae.
Duane R. Batista with whom Sharon R. Burger and Nutter, McClennen ________________ _________________ _________________
& Fish, LLP were on brief for appellee. ___________
____________________
January 28, 1997
____________________
____________________
*Of the Southern District of New York, sitting by designation.
BOUDIN, Circuit Judge. This case, presenting a ______________
difficult preemption issue, began in January 1996 when
Theresa Martin sued Shaw's Supermarkets, Inc., in
Massachusetts state court for alleged violations of state
employment-compensation laws. Martin, an employee of Shaw's
since 1979, had injured her back in August 1994 while working
as a bakery clerk. In September 1994, she began receiving
workers' compensation benefits for temporary total
disability. Mass. Gen. Laws ch. 152, 34.
In March 1995, Shaw's requested that Martin's physician,
Dr. James Coleman, establish any necessary work restrictions
for Martin. Coleman gave Shaw's a list of physical
restrictions and indicated that Martin could return to work
if these restrictions were respected. Shaw's then asked
Martin to see a second doctor. Based on the second
examination, Shaw's offered Martin four weeks of modified
duty, to be followed by return to her former position without
restrictions.
Martin did not return to work. Instead, through her
attorney, she again asked for a position fitting the
restrictions set by Coleman. Shaw's responded by again
offering Martin her former position with no restrictions.
When discussion failed to resolve the matter, Shaw's sent
Martin a letter in September 1995 informing her that she was
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terminated. The letter referred to Shaw's "policy and
contract language concerning extended periods of absence."
On October 19, 1995, Martin reapplied for full-time
employment with Shaw's, requesting a position with duties
modified as Coleman had recommended. Shaw's did not respond.
Later in the month, Martin's union filed a grievance on her
behalf under its collective bargaining agreement with Shaw's,
alleging that Martin had been unjustly terminated and
requesting her reinstatement with reasonable accommodations.
Three months later, Martin filed the present action in
Massachusetts state court, claiming that Shaw's had violated
Mass. Gen. Laws ch. 152, 75A, 75B(2), by failing to rehire
her. These sections provide, respectively, that an employee
who lost her job as a result of compensable injury must be
given rehiring preference by the former employer over non-
employee applicants, id. 75A, and that no employer may ___
refuse to hire an employee because she asserted a workers'
compensation claim, id. 75B(2). Martin's suit did not ___
contest Shaw's right to discharge her in the first instance.
In March 1996, Shaw's removed the action to federal
court, premising jurisdiction under 28 U.S.C. 1331, and
moved to dismiss, Fed. R. Civ. P. 12(b)(6). The district
court granted Shaw's motion, agreeing that Martin's claims
were preempted by section 301 of the Labor Management
Relations Act, 29 U.S.C. 185. Martin now appeals this
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ruling. The sole issue on appeal is whether section 301
preempts Martin's state-law claims.1
Section 301 modestly provides only that "[s]uits for
violation of contracts between an employer and a labor
organization representing employees . . . may be brought in
any district court of the United States having jurisdiction
of the parties . . . ." 29 U.S.C. 185. But jurisdiction
begat substantive authority. In Textile Workers v. Lincoln ________________ _______
Mills, 353 U.S. 448, 451 (1957), the Supreme Court ruled that _____
this section "authorizes federal courts to fashion a body of
federal law for the enforcement of . . . collective
bargaining agreements."
In turn, substantive authority gave rise to preemption.
In Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962), the _________ _______________
Supreme Court held that state law is displaced when courts
are "called upon to enforce" collective bargaining
agreements, because those agreements should be governed by
federal doctrine, rather than varying state contract-law
principles. Then, two decades later, the Supreme Court said
that "the pre-emptive effect of 301 must extend beyond
[state-law] suits alleging contract violations." Allis- ______
Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985). ______________ _____
____________________
1The asserted jurisdictional basis for removal--
preemption--might appear to offend the well-pleaded complaint
rule, but where section 301 preemption is concerned, the
Supreme Court has held that removal is proper. Caterpillar ___________
Inc. v. Williams, 482 U.S. 386, 393-94 (1987). ____ ________
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Just how far beyond has never been precisely settled.
Allis-Chalmers preempted a state-law tort claim closely ______________
relating to the handling of a labor-agreement grievance.
Shortly thereafter the Court declared that state-law claims--
seemingly of whatever character--are preempted if they
"require construing the collective-bargaining agreement."
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 ______ _______________________________
(1988). Yet recently, the Supreme Court cautioned that
section 301 "cannot be read broadly to pre-empt nonnegotiable
rights conferred on individual employees as a matter of state
law." Livadas v. Bradshaw, 114 S. Ct. 2068, 2078 (1994). _______ ________
Nevertheless, Livadas repeated the basic test laid down _______
by Lingle--namely, that section 301 preempts a state-law ______
claim wherever a court, in passing upon the asserted state-
law claim, would be required to interpret a plausibly
disputed provision of the collective bargaining agreement.
Id. At first blush, this might seem a puzzling test: both ___
state and federal courts have authority to enforce collective
bargaining agreements, and so to interpret their provisions.
See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 506 ___ ______________________ ________
(1962).
The explanation lies in the Supreme Court's concern to
enforce arbitration clauses, almost always a feature of labor
contracts. If judges construed labor agreements in the first
instance, the Court believed that the arbitration process
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would be undermined, and there might be divergent readings of
the labor agreement and interference with the grievance
process itself. Livadas, 114 S. Ct. at 2078; Allis-Chalmers, _______ ______________
471 U.S. at 219. Such an arbitration clause is present in
this case.
We thus begin by asking, as we have done in the past,
e.g., Quesnel v. Prudential Ins. Co., 66 F.3d 8, 10-11 (1st ____ _______ ____________________
Cir. 1995), whether resolution of Martin's claims would
require an interpretation of the collective bargaining
agreement. Our premise is that this means a real ____
interpretive dispute and not merely a pretended dispute.
Indeed, the Supreme Court has said that the need merely to
refer in passing to the agreement will not necessarily
preempt. Livadas, 114 S. Ct. at 2078. _______
Martin has alleged violations of Mass. Gen. Laws ch.
152, 75A, 75B(2). Section 75A creates a priority for
rehiring:
Any person who has lost a job as a result of an
injury compensable under this chapter shall be
given preference in hiring by the employer for whom
he worked at the time of compensable injury over
any persons not at the time of application for
reemployment employed by such employer; provided,
however, that a suitable job is available.
The relevant portion of section 75B(2)--a conventional
prohibition against retaliation--states that "[n]o employer .
. . shall . . . refuse to hire or in any other manner
discriminate against an employee because the employee has
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exercised a right afforded by this [workers compensation]
chapter."
If the statutes stopped here, this might be a different
case. But both statutory sections also contain a proviso
that "[i]n the event any right set forth in this section is
inconsistent with an applicable collective bargaining
agreement," the agreement shall prevail. Id. 75A, 75B(3). ___
Shaw's argues that both of Martin's statutory claims are
inconsistent with the labor agreement; that resolution of
this "inconsistency" charge requires interpretation of the
agreement; and that the claims are therefore preempted under
the Supreme Court's own rubric.
It is very doubtful whether, without this last-quoted
proviso, Shaw's would have any plausible claim of federal
preemption. Massachusetts has an independent interest in
regulating injury compensation; and apart from the proviso,
the elements of both Martin's state-law claims appear to be
independent of bargaining agreement provisions. There are
other types of labor preemption, apart from Lingle's "require ______
construing" test,2 but Shaw's does not argue that Martin's
state claims would be preempted absent the proviso.
____________________
2Broadly speaking, most cases of preemption in the labor
field involve conflict, or potential conflict, between state
law and federal labor policy. But sometimes the conflict
arises out of some source other than the need to interpret a
labor agreement. E.g., Livadas; San Diego Bldg. Trades ____ _______ ________________________
Council v. Garmon, 359 U.S. 236 (1959). _______ ______
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Rather, Shaw's argues that Massachusetts has as a matter
of state law chosen to make the substantive rights conferred ______
by the statutes depend upon their not being "inconsistent"
with a labor agreement. This court endorsed just such a
reading of the proviso of section 75B, which is identical in
substance to the provision of section 75A, in Magerer v. John _______ ____
Sexton & Co., 912 F.2d 525, 529-30 (1st Cir. 1990). And _____________
Magerer merely holds Massachusetts to the literal wording of _______
its own statute.
The question remains whether Shaw's labor agreement is
colorably inconsistent with Martin's state-law claims.
Shaw's best argument rests upon the agreement's "management
rights" clause, which states that Shaw's has the "sole right
to manage its business including . . . the right[] . . . to
hire, assign and promote Employees." Shaw's says that Martin
is a former employee seeking to be rehired, that the
agreement regulates this subject (but not in a way that
protects Martin in this case), and that in all other respects
the union has agreed to management's right to choose which
former employees to rehire.
Martin responds that the "management rights" clause
cannot be inconsistent with her state-law claims in this case
because she is no longer covered by the agreement. Yet the
agreement does give former Shaw's employees some specific
priority rights to be rehired. See Collective Bargaining ___
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Agreement Art. 12(B) ("Full-time employees laid off because
of lack of work when no other full-time work is available
shall be offered part-time work [if available] . . . .").
And the "management rights" clause by its terms embraces
decisions as to hiring.
Martin next says that Shaw's employee handbook
guarantees to her the very right to priority in rehiring
established by section 75A. The handbook does contain
language that is fairly close to the rehiring priority
contained in section 75A, suggesting that Shaw's itself
treats this priority right (although not necessarily the
protection against retaliation) as consistent with its
"management rights" clause. But for purposes of construing
the "management rights" clause, the handbook is at best a
gloss.
Whether the handbook does constitute a gloss and, if so,
what weight it should be given are issues of interpreting the
collective bargaining agreement. The handbook may well
weaken Shaw's reliance on the "management rights" clause; but
the handbook may simply be a reference to state law, whose
application Shaw's has now rethought in the face of
litigation. To entertain Martin's state-law claims would
still require a court to interpret the agreement, which is
precisely what Supreme Court precedents forbid.
Accord Magerer, 912 F.2d at 530. ______ _______
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Martin next asserts that any waiver of statutory rights
by a union and management in a collective bargaining
agreement must be "clear and unmistakable." See Livadas, 114 ___ _______
S. Ct. at 2079 (citations omitted). But Shaw's preemption
claim does not depend upon a "waiver" of statutory
protections; indeed, it is unclear under Massachusetts law
that the statutory protections can be "waived." Cf. Mass. ___
Gen. Laws ch. 152, 75B(3) (limiting waiver). Rather, the
statutes themselves expressly withhold protection where it
would be "inconsistent" with labor agreements, without
requiring the inconsistency to be "clear and unmistakable."
We conclude that under Supreme Court and First Circuit
precedent, Martin's state law claims are preempted. This is
not because the collective bargaining agreement is __
inconsistent with the state claims asserted, but because it
may be so and requires interpretation. We could ourselves ___
remove the doubt by interpreting the agreement one way or the
other, but this course has been foreclosed in deference to
the arbitration clause. As all of this appears to follow
logically, the question remains why the outcome may seem
faintly troubling.
One reason is that Massachusetts' statutory proviso,
making the rights conferred yield to inconsistent labor
agreements, may be producing some results that the
legislature did not intend. When the statutes were enacted
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in December 1985, Massachusetts might have thought that the
proviso was necessary to avoid preemption; the legislature _____
might be chagrined to discover that the proviso has
unnecessarily curtailed workers' rights. But this is at best
a debatable inference,3 and we have found no helpful
legislative history.
Possibly, the proviso could be construed to require more
than mere inconsistency. Or a state court could hold that
the rights conferred yield only to highly specific provisions
in a labor agreement and not to a generic "management rights"
clause. But both readings would ignore the explicit language
of the proviso. Perhaps the state did intend to defer to the
labor agreement even where it assisted the employer. Despite
the clear warning sent by Magerer in 1990, Massachusetts has _______
not chosen to amend the statutes.
The other reason why the outcome may seem troubling is
that it could result in Martin having no claim at all against
Shaw's, even for retaliation. This charge is, of course,
merely an allegation; but even if it proved to have
substance, it would be preempted because of the collective
____________________
3Shortly before the legislature acted in 1985, the
Supreme Court made clear that section 301 does not "give the
substantive provisions of private agreements the force of
federal law, ousting any inconsistent state regulation."
Allis-Chalmers, 471 U.S. at 212. See also Metropolitan Life ______________ ________ _________________
Ins. Co. v. Massachusetts, 471 U.S. 724, 755-56 (1985) _________ _____________
(holding that state mandated-benefits laws were not generally
preempted).
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bargaining agreement, and yet the agreement may itself
provide no remedy. Preemption sometimes does result in a
complete denial of remedies for obvious wrong, e.g., Smith v. ____ _____
Dunham-Busch, Inc., 959 F.2d 6, 11 (2d Cir. 1992), but this __________________
is not a result one eagerly embraces.
Various possibilities may cushion this outcome. If the
employee handbook is a gloss on the collective bargaining __
agreement, perhaps the language already mentioned may not
only defeat the "management rights" defense but also give
rise to affirmative obligations on the part of the employer
enforceable through arbitration. Or, perhaps arbitration
would yield a definitive ruling that the "management rights"
clause, and any other clause relied upon by Shaw's, is not
"inconsistent" with the rights contingently secured by the
statutes.
If all else fails, the union is free to negotiate
language that eliminates this issue the next time it renews
its labor agreement. The parties entered the current
agreement in 1994, well after Magerer was decided, but the _______
absence of such language in the present agreement may be an
oversight. All that it would take to prevent preemption is
an explicit provision stating that nothing in the agreement
is intended to create management rights inconsistent with any
workers' rights under sections 75A and 75B.
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Finally, in a reply brief, Martin and her union (which
appears as an amicus and has ably supported Martin) offer a
preemption claim of their own. They say that a discharged
non-union worker could invoke the Massachusetts statutes and
that by allowing the collective bargaining agreement to
extinguish Martin's rights, the Massachusetts proviso
discriminates against members or former members of unions,
thereby offending federal labor policy. This, they say,
Livadas itself forbids. _______
Livadas struck down a state administrative practice _______
because it effectively discriminated against union members as
compared with non-members, 114 S. Ct. at 2074-75, a
preemption theory that has nothing to do with section 301.
On the reasoning of Livadas, Massachusetts arguably could not _______
provide that a rehiring priority, or a claim against
retaliation, would be made available only to workers who were
not members of a union. But here Massachusetts has done
nothing of the kind.
Instead, the proviso in question permits the union on
behalf of its members to craft its own regime (the agreement)
and in it, either to preserve or displace another regime
(specified provisions of state law). Viewed in the large,
there is no discrimination whatever against union members;
Massachusetts simply allows the union to negotiate for a
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different package of benefits. Next time, as we have noted,
the union is free to bargain differently.
Affirmed. ________
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