Rueli v. Baystate Health, Inc.

United States Court of Appeals
For the First Circuit

No. 15-1198

CATHERINE RUELI, et al.,

Plaintiffs, Appellants,

v.

BAYSTATE HEALTH, INC., and BAYSTATE VISITING NURSE ASSOCIATION &
HOSPICE, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Howard, Chief Judge, and
Lynch and Lipez, Circuit Judges.

Shannon Liss-Riordan, with whom Lichten & Liss-Riordan, P.C.
was on brief, for appellants.
Robert Morsilli, with whom Douglas J. Hoffman and Jackson
Lewis P.C. were on brief, for appellees.

August 23, 2016
 LIPEZ, Circuit Judge. Plaintiffs are a putative class

of unionized nurses who sued their employer in state court for

unpaid wages and overtime pay for work performed outside their

approved shifts. Their employer removed the case to federal court,

citing the doctrine of complete preemption, under which claims

requiring interpretation of a collective bargaining agreement

("CBA") are reclassified as federal claims. The district court,

finding that this case is controlled by our opinion in Cavallaro

v. UMass Memorial Healthcare, Inc., 678 F.3d 1, 3-4 (1st Cir.

2012), determined that complete preemption applies and therefore

denied plaintiffs' motion to remand. Separately, it granted the

defendants' motion for judgment on the pleadings. Plaintiffs

appeal, challenging both orders.

We must decide whether there is a plausible argument, as

defendants contend, that adjudicating plaintiffs' claims will

require the resolution of a genuine interpretive dispute about one

or more provisions of the CBA. If so, the putative state law

claims are completely preempted, and removal was proper.

Separately, we must determine whether the plaintiffs, in agreeing

to a CBA containing a grievance and arbitration provision, were

precluded from bringing this suit, requiring the district court to

grant judgment on the pleadings to defendants.

We affirm.

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 I.

Catherine Rueli and seven other named plaintiffs are

employed by defendants-appellees Baystate Visiting Nurse

Association & Hospice, Inc. and Baystate Health, Inc.

("Baystate"). Plaintiffs are visiting nurses, i.e., nurses

responsible for traveling to patients' homes to provide care. As

members of a union, the Massachusetts Nurses Association,

plaintiffs concede that they are subject to the terms of a CBA

between that union and Baystate. The agreement's provisions

include:

● A preamble stating that "[i]t is the intent and
purpose of this Agreement to promote orderly
collective bargaining and the settlement of all
differences or disputes through the grievance and
arbitration procedures established herein."

● A salary schedule based on seniority, CBA § 3.1,
App'x A, separate pay provisions for per diem
nurses, id. art. XXXV(5)-(6), and a separate "per
visit" compensation scheme, id. art. XXXVI.

● A number of provisions for premium pay, including
time-and-a-half pay for hours worked beyond the
standard 37 1/2-hour work week, id. § 4.2, pay for
on-call time, id. §§ 4.4(B), 5.3, 6.3(A), 31.1(3),
and evening differential pay, id. §§ 4.7(E),
4.8(D), 5.4.

● A scheduling provision requiring that "[a] definite
reporting time, working schedule and staffing
schedule . . . shall be established by [Baystate],"
and that "schedules shall not be changed without
prior discussion between both parties." Id.
§ 4.1(B).

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 ● A requirement that "[a]ll patient documentation
shall be completed at the point of care or prior to
the end of the employee[']s shift. Any variations
from either of these requirements are subject to
the employee's request and approval of the clinical
manager which shall not be unreasonably withheld.
To assist the manager in making her/his reasonable
determination, a conversation shall take place in
which the employee's and patient[']s needs will be
discussed." Id. § 4.1(C).

● A management rights clause, giving Baystate
management "the recognized reserved right" "to
schedule and assign work to employees; to determine
the means, methods, processes, materials and
schedules of operations; . . . to establish
standards and to maintain the efficiency of
employees; [and] to establish and require employees
to observe [Baystate's] rules and regulations."
Id. § 16.1.

● A grievance and arbitration provision allowing that
"[g]rievances may be filed by a nurse, a group of
nurses, the Unit Representative or Massachusetts
Nurses Association." The provision requires that
grievances first be submitted to an immediate
supervisor, then, if not resolved, escalated to the
President of Baystate, and, if still not resolved,
grievances "shall be submitted to arbitration in
accordance with the voluntary rules of the American
Arbitration Association. The decision of the
Arbitrator shall be final and binding upon the
employees[.]" Id. The term "grievances" is not
defined in the agreement.

Plaintiffs brought suit in Hampden County Superior

Court, claiming that the volume of work required them to work

before and after their scheduled shifts and they were not paid for

that time. In seeking wages owed and other relief under the Weekly

Wage Act, Mass. Gen. Laws ch. 149, § 148, and the Overtime Act,

Mass. Gen. Laws ch. 151, § 1B, they sue for themselves and on

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behalf of a broad putative class: "all others similarly situated,

namely all other individuals who are, and who have been, employed

as nurses by Defendants who have not received all wages and

overtime payments due to them." Compl. ¶ 10.

Plaintiffs alleged the following facts in their

complaint, which we accept as true:

● "In their employment with Baystate, visiting nurses
such as the named plaintiffs have been paid an
hourly wage (ranging from approximately $28 to $38
per hour)." Id. at ¶ 13.1

● "Due to the volume of work assigned to them, the
nurses are regularly required to work outside of
their regularly scheduled shifts." Id. at ¶ 15.

● "This unpaid work has included preparatory work
before they have visited a patient and follow-up
work after they have visited a patient." Id. at
¶ 16.

● "As a result, the nurses often do not receive
overtime payments to which they are entitled." Id.
at ¶ 17.

● "This unpaid work frequently consists of computer
work in preparation for a visit with a patient, and
computer work following up after a visit. Thus,
much of this unpaid work is completed by the nurses
while they are logged onto the Baystate computer
system. Defendants are therefore aware of the work
performed by the nurses outside of their regularly
scheduled shifts for which they are not
compensated." Id. at ¶ 18.

1 At the time of the complaint the minimum wage was eight
dollars per hour, H.B. 4781, Gen. Ct., 2006 2d Ann. Sess., 2006
Mass. Legis. Serv. Ch. 271, while today it stands at ten dollars
per hour, Mass. Gen. Laws Ann. ch. 151, § 1.

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Plaintiffs do not allege that any of the nurses informed Baystate

about this additional unpaid work, or that they followed the

grievance procedure laid out in the CBA.

Baystate removed this action to the United States

District Court for the District of Massachusetts, arguing that

these state statutory claims are "completely preempted" by § 301

of the Labor Management Relations Act ("LMRA"). See Livadas v.

Bradshaw, 512 U.S. 107, 121-25 (1994); 29 U.S.C. § 185(a).

Plaintiffs moved to remand the case to state court. Before that

motion was decided, Baystate moved for judgment on the pleadings,

arguing that "[i]f a claim is preempted, and plaintiffs have not

pursued those claims through the grievance procedure under the

relevant CBA, the claims are not only subject to removal, but also

dismissal." Agreeing that the claims are completely preempted,

the district court denied plaintiffs' motion to remand, holding

that our opinion in Cavallaro controlled and that plaintiffs'

claims are completely preempted by § 301. Rueli v. Baystate Health

Inc., No. 3:14-cv-10319-MGM, 2015 WL 132662, at *2-*3 (D. Mass.

Jan. 9, 2015). Believing that its finding of complete preemption

required dismissal of the case, the district court then granted

Baystate's motion for judgment on the pleadings. Rueli v. Baystate

Health Inc., No. 3:14-cv-10319-MGM, slip. op. at 2-3 (D. Mass.

Jan. 30, 2015). Plaintiffs challenge both orders, arguing that

Cavallaro does not control and complete preemption does not apply.

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 II.

A. Complete preemption

We outline complete preemption doctrine as it developed

in the context of § 301 of the LMRA.2

1. Creating federal jurisdiction

"Complete preemption" is distinct from "[o]rdinary, or

defensive, preemption." Cavallaro, 678 F.3d at 4 n.3. It "applies

where a purported state claim . . . is re-characterized as a

federal claim" such that it is said to arise under federal law and

permit removal to federal court. Id. at 4; see also 28 U.S.C.

§§ 1331, 1441. As one of our sister circuits has characterized

the concept, "'[c]omplete preemption' is a misleadingly named

doctrine." Hughes v. United Air Lines, Inc., 634 F.3d 391, 393

(7th Cir. 2011). "Preemption normally is a defense . . . . But

'complete preemption' is not a defense. It means that the claim

itself arises under federal law" for purposes of the well-pleaded

complaint rule. Id.

Section 301 of the LMRA, enacted in 1947, creates federal

subject matter jurisdiction over "[s]uits for violation of

contracts between an employer and a labor organization

2Though other federal statutes completely preempt state laws,
see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (Employee
Retirement Income Security Act); Beneficial Nat. Bank v. Anderson,
539 U.S. 1, 11 (2003) (National Bank Act), we deal here only with
the doctrine as it applies to the LMRA.

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representing employees." 29 U.S.C. § 185(a). The Supreme Court

later held that § 301 is "more than jurisdictional --[] it

authorizes federal courts to fashion a body of federal law for the

enforcement of these collective bargaining agreements." Textile

Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 450-

51 (1957). "[T]he subject matter of § 301(a) 'is peculiarly one

that calls for uniform law.'" Local 174, Teamsters v. Lucas Flour

Co., 369 U.S. 95, 103 (1962) (quoting Pa. R.R. Co. v. Pub. Serv.

Comm'n, 250 U.S. 566, 569 (1919)).

It was against this background that the Supreme Court

held that "the preemptive force of § 301 is so powerful as to

displace entirely any state cause of action for violation of

contracts between an employer and a labor organization. Any such

suit is purely a creature of federal law . . . ." Franchise Tax

Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23 (1983)

(internal quotation marks omitted) (footnote omitted)

(interpreting the holding of Avco Corp. v. Machinists, 390 U.S.

557, 560 (1968)). Although "state courts have concurrent

jurisdiction over controversies involving collective-bargaining

agreements," United Steelworkers of Am., AFL-CIO-CLC v. Rawson,

495 U.S. 362, 368 (1990), defendants may choose to remove such

cases to federal court.

The Supreme Court has expanded the doctrine beyond its

original scope, holding that "the pre-emptive effect of § 301 must

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extend beyond suits alleging contract violations," in order to

prevent plaintiffs from "evad[ing] the requirements of § 301 by

relabeling their contract claims as claims for tortious breach of

contract," i.e., to prevent them from avoiding complete preemption

through artful pleading. Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 210-11 (1985). Lueck marked the beginning of a gradual

expansion of complete preemption to any state law claims that

satisfy one of two tests: the claims must either be "founded

directly on rights created by collective-bargaining agreements" or

"substantially dependent on analysis of a collective-bargaining

agreement." Caterpillar Inc. v. Williams, 482 U.S. 386, 394

(1987).

We focus on the latter test for complete preemption,

which we have described as whether "resolution" of a claim

"arguably hinges upon an interpretation of the collective

bargaining agreement." Flibotte v. Penn. 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, 832

(1st Cir. 1997).3 The qualifier "arguably" is necessary because,

3 "Interpretation" of the CBA must be distinguished from mere
"consultation." "[W]hen the meaning of contract terms is not the
subject of dispute, the bare fact that a collective-bargaining
agreement will be consulted" does not trigger complete preemption.
Livadas, 512 U.S. at 124. This principle applies where "[a]
collective-bargaining agreement . . . contain[s] information such
as rate of pay . . . that might be helpful in determining the
damages to which a worker prevailing in a state-law suit is

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at the outset of a case when defendants remove to federal court,

"we cannot know the exact contours of the wage dispute and the

precise CBA terms likely to require interpretation cannot be

certain." Cavallaro, 678 F.3d at 8. This "arguably" test focuses

on "the legal character of a claim," not its underlying facts.

Livadas, 512 U.S. at 123. "[E]ven if dispute resolution pursuant

to a collective-bargaining agreement, on the one hand, and state

law, on the other, would require addressing precisely the same set

of facts, as long as the state-law claim can be resolved without

interpreting the agreement itself, the claim is 'independent' of

the agreement for § 301 pre-emption purposes." Lingle v. Norge

Div. of Magic Chef, Inc., 486 U.S. 399, 409-10 (1988).

District courts need not conduct this analysis for every

putative state law claim. Where plaintiffs bring multiple state-

law claims based on the "same nucleus of operative facts," the

court need only determine whether one of them is completely

preempted and, therefore, removable. BIW Deceived, 132 F.3d at

833 (citing 28 U.S.C. § 1367(a)). If so, the others may also be

removed -- even if they are not completely preempted, they will be

entitled." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 413 n.12 (1988). Hence, "[c]ourts confronted with state law
claims must . . . locate the line between the need for mere
consultation of [the] CBA, which does not demand federal
preemption, and more active interpretation of that agreement,
which does preempt the state law claims." Lydon v. Boston Sand &
Gravel Co., 175 F.3d 6, 10 (1st Cir. 1999).

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subject to supplemental jurisdiction in federal court. Id.;

Cavallaro, 678 F.3d at 5.

2. Disposition of completely preempted claims

"When one turns from removal of the case to disposition

of the claims, a different set of issues arise." Cavallaro, 678

F.3d at 6. Where complete preemption applies, the CBA must be

interpreted under the "evolving federal common law grounded in

national labor policy," Bowen v. U.S. Postal Serv., 459 U.S. 212,

225 (1983), rather than state contract law. This promotes

"interpretive uniformity and predictability," which are thought to

promote the orderly resolution of labor disputes. Lueck, 471 U.S.

at 211. In particular, "federal common-law rules of decision . . .

assure that agreements to arbitrate grievances w[ill] be enforced,

regardless of the vagaries of state law and lingering hostility

toward extrajudicial dispute resolution." Livadas, 512 U.S. at

122.

The relevant CBA invariably includes an arbitration

clause, see Lingle, 486 U.S. at 411 n.11 (recognizing that

"[a]rbitrators are delegated by nearly all [CBAs] as the

adjudicators of contract disputes"), and, under the federal common

law applicable under § 301, there is a heavy presumption that

claims requiring interpretation of the CBA are arbitrable.

[W]hen a collective bargaining agreement
contains an arbitration clause . . . "a
presumption of arbitrability [is created] in

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 the sense that [a]n order to arbitrate the
particular grievance should not be denied
unless it may be said with positive assurance
that the arbitration clause is not susceptible
of an interpretation that covers the asserted
dispute. Doubts should be resolved in favor
of coverage."

Local 285, Serv. Emps. Int'l Union v. Nonotuck Res. Assocs., 64

F.3d 735, 738 (1st Cir. 1995) (alterations in original) (quoting

AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650

(1986)); see also Otis Elevator Co. v. Int'l Union of Elevator

Constructors, Local 4, 408 F.3d 1, 7 (1st Cir. 2005) (highlighting

the "fundamental principle of industrial relations in the United

States that labor disputes are settled through voluntary

arbitration rather than labor/management strife"). In most cases,

a claim that requires interpretation of the applicable CBA is

covered by "a broadly-phrased grievance and arbitration provision

in the CBA," and such claims are dismissed "so long as relief can

be provided within the CBA process." Cavallaro, 678 F.3d at 6;

see also Jackson v. Liquid Carbonic Corp., 863 F.2d 111, 114 (1st

Cir. 1988) ("[C]laims . . . preempted by section 301 [are]

relegated, in the first instance, to the grievance procedures

available under the [CBA].").4

This standard does not necessarily apply to interpretation
4

of an arbitration provision to determine whether it covers federal
statutory claims. See Barrentine v. Ark.-Best Freight Sys., Inc.,
450 U.S. 728, 745 (1981) (holding that Fair Labor Standards Act
claims may be brought in federal court notwithstanding an
arbitration provision in a CBA); Alexander v. Gardner-Denver Co.,

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B. Massachusetts wage claims

We need only determine whether one of the claims is

completely preempted, given that they are based on the same facts.

See Cavallaro, 678 F.3d at 5; BIW Deceived, 132 F.3d at 833; 28

U.S.C. § 1367(a). We focus on the Weekly Wage Act claim. The Act

requires that "[e]very person having employees in his service shall

pay weekly or bi-weekly each such employee the wages earned by

him" within a fixed time period after the work is performed. Mass.

Gen. Laws ch. 149, § 148.

The Act "was intended and designed to protect wage

earners from the long-term detention of wages by unscrupulous

employers." Melia v. Zenhire, Inc., 967 N.E.2d 580, 587 (Mass.

2012) (quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc.,

113 F. Supp. 2d 164, 167 (D. Mass. 2000)). Consistent with its

purpose to remedy the withholding of wages indisputably owed, the

Act allows private plaintiffs to sue for treble damages, attorneys'

fees, and costs, and allows the Attorney General of Massachusetts

to seek criminal penalties. Mass. Gen. Laws ch. 149, § 148.

To prevail on a Weekly Wage Act claim, a plaintiff must

"prove there are wages owed," though the Act itself provides no

substantive standard for determining what wages are owed.

415 U.S. 36, 59-60 (1974) (holding that workers may bring Title
VII discrimination claims in federal court notwithstanding an
arbitration provision in a CBA).

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Cavallaro, 678 F.3d at 8. Consistent with its name, the Weekly

Wage Act was intended to ensure that employers pay wages weekly or

bi-weekly, not to create substantive standards for employee pay.

See Lipsitt v. Plaud, 994 N.E.2d 777, 784-85 (Mass. 2013)

(characterizing the Weekly Wage Act as a supplement to common law

causes of action for breach of contract and quasi-contract to

recover unpaid wages, with no mention of any role for the Act in

creating substantive standards for wages).

The Supreme Judicial Court of Massachusetts has

emphasized the importance of the Weekly Wage Act to the public

policy of the state. Melia, 967 N.E.2d at 588 (stating that the

Act "protect[s] fundamental public policy," and that "the

Legislature has highlighted the fundamental importance of the Wage

Act"). Accordingly, the court has held that the protections of

the Weekly Wage Act cannot be waived by workers. Id.; see Mass.

Gen. Laws ch. 149, § 148 ("No person shall by a special contract

with an employee or by any other means exempt himself from this

section . . . .").5 The Act does not "guarantee venue in a

Massachusetts court," however, and if an employee enters a binding

agreement with a forum selection clause, she must bring her Weekly

5In Cavallaro, we assumed but did not decide that the
statutory rights created by the Weekly Wage Act were non-waivable.
678 F.3d at 7. Because Cavallaro predated Melia, we did not then
have the benefit of the Massachusetts Supreme Judicial Court's
holding that the rights created by the Wage Act cannot be waived.
See Melia, 967 N.E.2d at 588.

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Wage Act claim in the agreed-upon forum. Melia, 967 N.E.2d at

588-89; see also Dixon v. Perry & Slesnick, P.C., 914 N.E.2d 97,

99-100 (Mass. App. Ct. 2009) ("[C]laims under the Wage Act are

arbitrable."). The exception is where that forum would apply law

that "would effectively deprive the employee of substantive rights

guaranteed by the Wage Act." Melia, 967 N.E.2d at 589. "A forum

selection clause that, in operation, would deprive an employee of

substantive rights guaranteed by the Wage Act violates public

policy and is unenforceable." Id. at 590.

C. Cavallaro

Much of the dispute between the parties focuses on

Cavallaro. In Cavallaro, as here, plaintiffs were unionized nurses

suing their employers for back pay, including for hours worked

before and after their scheduled shifts. Specifically, plaintiffs

alleged that they had "been deprived of compensation for work

performed during their meal break, for work performed before and

after shifts, and for time spent attending training sessions."

Cavallaro, 678 F.3d at 2. They brought thirteen Massachusetts

state law claims, including a claim under the Weekly Wage Act.

Cavallaro, 678 F.3d at 3.6

6 Plaintiffs also brought a claim under the Overtime Act,
Mass. Gen. Laws ch. 151, § 1A, which we referred to in Cavallaro
as the Massachusetts Fair Minimum Wage Act. Cavallaro, 678 F.3d
at 9. Because the district court had properly dismissed the
Overtime Act claim on the ground that the statute does not apply
to employees who work "in a hospital," Mass. Gen. Laws ch. 151,

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 We noted that "to succeed" on a Weekly Wage Act claim,

"an employee must, among other things, prove there are wages owed."

Id. at 8. We treated the question of whether wages were owed as

incorporating the question of whether the CBA provided for wages

that had not been paid. And, because the CBA provisions governing

whether the plaintiffs had performed compensable work were

ambiguous enough to plausibly give rise to an interpretive dispute,

we held that "determining what (if anything) is owed -- an

inevitable issue here -- depends at least arguably on

interpretations and applications of the CBA at issue." Thus the

claim was completely preempted. Id.

We explained which provisions of the CBA plausibly would

require interpretation. For example, adjudicating whether

plaintiffs were entitled to wages for training time would likely

require interpretation of the CBA provision specifying that

"whether certain training programs are compensable depends on the

employee having made a 'timely' request to attend." Id.

Similarly, whether wages were owed for meal time would likely

require interpretation of the CBA provision stating that whether

§ 1A(16), we did not reach the question of whether adjudication of
that claim would require interpretation of the CBA. Id. The
parties agree that the hospital employee exception does not apply
to the visiting nurses in this case.

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that time was compensable "depends upon whether a nurse remained

in the 'patient care area.'" Id.7

III.

We review de novo both the denial of the motion to

remand, which is a question of federal subject matter jurisdiction,

see BIW Deceived, 132 F.3d at 830, and the grant of judgment on

the pleadings as a matter of law, see Flibotte, 131 F.3d at 25.

A. Removal

The question before us is whether resolving one of the

claims would require a court to interpret the CBA. As stated

above, we focus on the Weekly Wage Act claim. See BIW Deceived,

132 F.3d at 833; Cavallaro, 678 F.3d at 5; 28 U.S.C. § 1367(a).

7 We also said in Cavallaro that "any claim for compensation
above the state minima must be entirely dependent on the CBA."
678 F.3d at 8. Baystate argues that this statement amounts to a
holding that a claim for unpaid wages determined according to a
wage schedule in a CBA, higher than the state minimum wage, is
necessarily a claim to vindicate rights created by the CBA, an
independent ground on which we must find complete preemption. See
Caterpillar, 482 U.S. at 394. Plaintiffs respond that this reading
of Cavallaro would run afoul of Livadas and Lingle, which in
plaintiffs' view establish that suing for damages based on payment
formulas in a CBA does not necessarily trigger complete preemption.
See Lingle, 486 U.S. at 413 n.12 ("A collective-bargaining
agreement may, of course, contain information such as rate of pay
. . . that might be helpful in determining the damages to which a
worker prevailing in a state-law suit is entitled. Although
federal law would govern the interpretation of the agreement to
determine the proper damages, the underlying state-law claim, not
otherwise pre-empted, would stand."); Livadas, 512 U.S. at 124
(quoting same passage from Lingle). Because we hold that
plaintiffs' Weekly Wage Act claim is completely preempted on other
grounds, we need not resolve the disputed meaning of this statement
in Cavallaro.

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 Plaintiffs emphasize that they do not rely on any

provisions of the CBA to establish their claim. To be sure, as

plaintiffs acknowledge, no wages are owed under the CBA for hours

worked outside scheduled shifts without approval. Such approval

is available based on either "prior discussion between both

parties," CBA § 4.1(B), or, in the case of additional time to

complete patient documentation, "approval of the clinical manager

which shall not be unreasonably withheld," id. § 4.1(C). However,

plaintiffs argue, these requirements are not at issue because under

the Weekly Wage Act, wages are owed for all work the employer

"suffers or permits" to be done, regardless of whether it would be

compensable under the CBA.

Plaintiffs articulate the "suffered or permitted"

standard as whether Baystate "knew or should have known they were

working time outside of their shifts[] and did not pay them for

their time." This formulation mirrors the standard for determining

if overtime pay is owed under the state Overtime Act and the

federal Fair Labor Standards Act. See Vitali v. Reit Mgmt. &

Research, LLC, 36 N.E.3d 64, 68-70 (Mass. App. Ct. 2015); Raposo

v. Garelick Farms, LLC, 293 F.R.D. 52, 56 (D. Mass. 2013); Prime

Commc'ns, Inc. v. Sylvester, 615 N.E.2d 600, 602 (Mass. App. Ct.

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1993). Baystate accepts this formulation, and we therefore apply

the "suffered or permitted" standard.8

With that background, we must consider whether

plaintiffs' Weekly Wage Act claim plausibly would require

interpretation of the CBA. We conclude that it would. We

acknowledge that actual knowledge is a matter of pure fact. Hence,

if plaintiffs were able to vindicate their claims with proof of

Baystate's actual knowledge of their unpaid hours, they could show

that Baystate "suffered or permitted" them to work those hours

without the need to interpret the CBA. However, plaintiffs'

complaint does not allege a basis for actual knowledge of all of

the unpaid hours worked by the nurses.

The only particularized allegation suggesting actual

knowledge is that Baystate knew of all the hours worked on its

computer system. Compl. ¶ 18 ("[M]uch of this unpaid work is

completed by the nurses while they are logged onto the Baystate

computer system. Defendants are therefore aware of the work

performed by the nurses outside of their regularly scheduled shifts

for which they are not compensated."). In plaintiff's favor, we

8 The Appeals Court of Massachusetts has expressly held that
this "suffered or permitted" standard for compensable work applies
in both FLSA and Overtime Act cases. Vitali, 36 N.E.3d at 68-69;
see also Mullaly v. Waste Mgmt. of Mass., Inc., 895 N.E.2d 1277,
1281 (Mass. 2008) ("[The Overtime Act] was 'intended to be
essentially identical' to the Fair Labor Standards Act[.]").
However, the Massachusetts appellate courts have not as yet made
any such holding with regard to the Weekly Wage Act.

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assume arguendo that actual knowledge without more would suffice

to show sufferance or permission. Yet even accepting the further

assumption that plaintiffs could show Baystate's actual knowledge

of every hour worked on the computers, plaintiffs do not limit

their claims to those hours. They assert only that "much of this

unpaid work" would be reflected on the computer logs. Id.

(emphasis added).

Moreover, the work at issue was apparently performed by

the visiting nurses off-site, including at patients' homes, away

from the immediate gaze of their superiors. We think it unlikely

that plaintiffs can prove actual knowledge of those hours to

Baystate solely on the basis of the computer logs. Cf. Manning v.

Boston Med. Ctr. Corp., 725 F.3d 34, 44 (1st Cir. 2013) (finding

the allegation that an employer had actual or constructive

knowledge under the FLSA of nurses' unpaid hours sufficient to

survive a motion to dismiss, where "the employees' uncompensated

work was performed on defendants' premises during operational

hours, and in full view of defendants' managers and supervisors").

We thus think it is not only plausible, but likely, that plaintiffs

will need to rely on constructive knowledge for some, if not all,

of the hours at issue.

In other words, resolution of this dispute will likely

involve a determination of whether Baystate should have known about

the nurses' unpaid work. Unlike actual knowledge, this issue must

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be considered "in view of the employer's 'duty . . . to inquire

into the conditions prevailing in his business.'" Vitali, 36

N.E.3d at 69 (alteration in original) (quoting Gulf King Shrimp

Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969)). The constructive

knowledge inquiry is not limited to facts -- it is intertwined

with an analysis of the employer's duty to inquire into what

workers are doing, and what reasonable diligence the employer must

perform to ensure that unauthorized hours are not being worked.

This inquiry into Baystate's obligations can be expected to require

interpretation of the CBA.

For example, determining whether Baystate was required

to look beyond the nurses' time sheets might depend on whether it

was entitled to rely on the provisions specifying that work hours

cannot be changed without Baystate's permission, CBA §§ 4.1(B)-

(C), and the management rights clause giving Baystate the right to

create workplace rules and set schedules, id. § 16.1. See also

Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40, 43-44 (1st Cir.

1997) (holding that plaintiff's claim would require interpretation

of the management rights clause of the CBA, and was therefore

preempted); Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 16 (1st

Cir. 2001) (citing the management rights clause of the CBA in

support of its holding that plaintiff's claims were completely

preempted). Baystate reasonably could argue that, because of those

provisions, any duty to inquire into employee hours is limited

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when no request for permission to work additional hours has been

made.

The CBA, however, reflects the possibility that the

permission requirement does not apply to every "extra" hour worked.

The agreement provides that "[a]ll patient documentation shall be

completed at the point of care or prior to the end of the

employee[']s shift." CBA § 4.1(C) (emphasis added). Although the

meaning of this provision is not clear, it arguably contemplates

occasions when nurses will need to work overtime to complete

patient documentation "at the point of care" -- albeit after "the

end of the employee[']s shift" -- when the demands of patient care

do not leave time for paperwork during the shift. That is to say,

it is plausible that determining the impact of the permission

requirement -- and, more broadly, determining Baystate's

constructive knowledge -- will require interpreting CBA § 4.1(C)

in combination with the permission and management rights

provisions. Cf. Kobold v. Good Samaritan Reg'l Med. Ctr., Nos.

13-33528, 13-35590, 13-35265, 2016 WL 4191521, at *6 (9th Cir.

Aug. 9, 2016) (holding a plaintiff's state-law wage claims

completely preempted because a CBA provision providing for

overtime "except when there is a change of schedule agreed upon by

the Medical Center and nurse" would need to be interpreted).

Resisting this conclusion, plaintiffs' brief warns us

that a finding of complete preemption would amount to a finding

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that "union employees have fewer rights under state wage laws than

non-union employees," a result that "would effectively penalize

workers for being union members." This outcome would, plaintiffs

suggest, contravene the Supreme Court's statement in Livadas that

§ 301 "cannot be read broadly to preempt nonnegotiable rights

conferred on individual employees as a matter of state law." 512

U.S. at 123-24; see also Lueck, 471 U.S. at 212 ("[I]t would be

inconsistent with congressional intent under [§ 301] to preempt

state rules that . . . establish rights and obligations,

independent of a labor contract."); Metro. Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 751 (1985) (noting that the LMRA was

not intended "to prevent the States from establishing minimum

employment standards that labor and management would otherwise

have been required to negotiate").

Here, however, Baystate has not argued that plaintiffs

have waived the substantive rights granted to them by Massachusetts

wage statutes. To the contrary, it takes the position that the

nurses' claims may be pursued through the agreed-to grievance and

arbitration procedure, which permits grievances to be filed by a

nurse or a group of nurses. In its motion for judgment on the

pleadings, Baystate argued that plaintiffs should have first

brought their claims through the grievance and arbitration

procedure, emphasizing the intent of the CBA to channel all

disputes into that process. In Baystate's words, "the relief

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sought by Plaintiffs in this case was available to them under the

CBA's grievance procedure." In its brief on appeal, Baystate again

argues that the relief sought by plaintiffs was available via the

agreed-to dispute resolution mechanism.

In Cavallaro, we expressly declined to decide whether

the completely preempted Weekly Wage Act claim could be brought

via the CBA grievance process. 678 F.3d at 8; see also Livadas,

512 U.S. at 124 n.18. We need not decide this question here.

Baystate's statements make clear that it interprets the CBA to

allow plaintiffs to pursue the remedy they seek in arbitration,

and that plaintiffs may rely on that interpretation when bringing

their claims, such that "relief" for violations of the state wage

statutes "can be provided within the CBA process." Cavallaro, 678

F.3d at 6.

Because the Weekly Wage Act claim is completely

preempted, the entire action was removable to federal court and

the motion to remand was properly denied.

B. Judgment on the pleadings

Plaintiffs, in their opposition to the motion for

judgment on the pleadings, omitted any discussion of the grievance

and arbitration provision in the CBA, effectively waiving any

argument that it did not apply to their claims. See Grenier v.

Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995).

Similarly, on appeal, plaintiffs omit any argument that their

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claims are not covered by the grievance and arbitration requirement

of the CBA.

Under the federal common law applicable to completely

preempted claims, claims are typically found to be arbitrable where

the grievance and arbitration provision is "broadly-phrased" and

"relief can be provided within the CBA process." Cavallaro, 678

F.3d at 6; see also Local 285, Serv. Emps. Int'l Union, 64 F.3d at

738. The mandatory grievance and arbitration provision at issue

here covers all "grievances." Absent any argument to the contrary,

we have no trouble determining that the provision is broad enough

to encompass plaintiffs' claims.

Hence, the CBA required the nurses to raise their wage

claims through the grievance procedure in the first instance. The

court properly entered judgment on the pleadings and dismissed

plaintiffs' claims.

Affirmed.

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