Martin v. Shaw Supermarkets, 1st Cir. (1997)

7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)

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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]

__________________________


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____________________

Before

Selya, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

____________________

Scott W. Lang with whom Susan Forgue Weiner and Lang, Xi

______________ ____________________ _______

Bullard, P.A., Lisa M. Sheehan, Kate Mitchell & Associates, B

_____________ ________________ __________________________

Ehrenberg and Angoff, Goldman, Manning, Pyle & Wanger, P.C.

_________ _______________________________________________

briefs for appellant.

Betsy L. Ehrenberg with whom Harold L. Lichten and

____________________ ___________________

Goldman,

_______

Manning, Pyle & Wanger, P.C. were on brief for United Fo_______ _____________________

Commercial Workers Local Union 791 and National Employment

Association, Massachusetts Chapter, Amici Curiae.

Duane R. Batista with whom Sharon R. Burger and Nutter, Mc

________________ _________________ _________

& Fish, LLP were on brief for appellee. ___________


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____________________

January 28, 1997

____________________

____________________

*Of the Southern District of New York, sitting by designation.


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BOUDIN, Circuit Judge. This case, presenting

______________

difficult preemption issue, began in January 1996 w

Theresa Martin sued Shaw's Supermarkets, Inc.,

Massachusetts state court for alleged violations of sta

employment-compensation laws. Martin, an employee of Sha

since 1979, had injured her back in August 1994 while worki

as a bakery clerk. In September 1994, she began receivi

workers' compensation benefits for temporary tot

disability. Mass. Gen. Laws ch. 152, 34.

In March 1995, Shaw's requested that Martin's physicia

Dr. James Coleman, establish any necessary work restrictio

for Martin. Coleman gave Shaw's a list of physic

restrictions and indicated that Martin could return to wo


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if these restrictions were respected. Shaw's then as

Martin to see a second doctor. Based on the seco

examination, Shaw's offered Martin four weeks of modifi

duty, to be followed by return to her former position witho

restrictions.

Martin did not return to work. Instead, through

attorney, she again asked for a position fitting t

restrictions set by Coleman. Shaw's responded by aga

offering Martin her former position with no restriction

When discussion failed to resolve the matter, Shaw's se

Martin a letter in September 1995 informing her that she


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terminated. The letter referred to Shaw's "policy a

contract language concerning extended periods of absence."

On October 19, 1995, Martin reapplied for full-ti

employment with Shaw's, requesting a position with duti

modified as Coleman had recommended. Shaw's did not respon

Later in the month, Martin's union filed a grievance on


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behalf under its collective bargaining agreement with Shaw'

alleging that Martin had been unjustly terminated a

requesting her reinstatement with reasonable accommodations

Three months later, Martin filed the present action

Massachusetts state court, claiming that Shaw's had violat

Mass. Gen. Laws ch. 152, 75A, 75B(2), by failing to rehi

her. These sections provide, respectively, that an employ

who lost her job as a result of compensable injury must

given rehiring preference by the former employer over no

employee applicants, id. 75A, and that no employer

___

refuse to hire an employee because she asserted a worker

compensation claim, id. 75B(2). Martin's suit did n

___

contest Shaw's right to discharge her in the first instanc


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In March 1996, Shaw's removed the action to feder

court, premising jurisdiction under 28 U.S.C. 1331, a

moved to dismiss, Fed. R. Civ. P. 12(b)(6). The distri

court granted Shaw's motion, agreeing that Martin's clai

were preempted by section 301 of the Labor Manageme

Relations Act, 29 U.S.C. 185. Martin now appeals t

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ruling. The sole issue on appeal is whether section 3

preempts Martin's state-law claims.1

Section 301 modestly provides only that "[s]uits f

violation of contracts between an employer and a lab

organization representing employees . . . may be brought

any district court of the United States having jurisdicti

of the parties . . . ." 29 U.S.C. 185. But jurisdicti

begat substantive authority. In Textile Workers v. Linco

________________ ____

Mills, 353 U.S. 448, 451 (1957), the Supreme Court ruled t _____

this section "authorizes federal courts to fashion a body

federal law for the enforcement of . . . collecti

bargaining agreements."


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In turn, substantive authority gave rise to preemptio

In Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962), t

_________ _______________

Supreme Court held that state law is displaced when cour

are "called upon to enforce" collective bargaini

agreements, because those agreements should be governed

federal doctrine, rather than varying state contract-l

principles. Then, two decades later, the Supreme Court sa

that "the pre-emptive effect of 301 must extend beyo

[state-law] suits alleging contract violations." Alli

___

Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985).

______________ _____

____________________

1The asserted jurisdictional basis for removal

preemption--might appear to offend the well-pleaded complai


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rule, but where section 301 preemption is concerned, t

Supreme Court has held that removal is proper. Caterpill

________

Inc. v. Williams, 482 U.S. 386, 393-94 (1987).

____ ________

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Just how far beyond has never been precisely settle

Allis-Chalmers preempted a state-law tort claim close

______________

relating to the handling of a labor-agreement grievanc


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Shortly thereafter the Court declared that state-law claims

seemingly of whatever character--are preempted if t

"require construing the collective-bargaining agreement

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 4

______ _______________________________

(1988). Yet recently, the Supreme Court cautioned t

section 301 "cannot be read broadly to pre-empt nonnegotiab

rights conferred on individual employees as a matter of sta

law." Livadas v. Bradshaw, 114 S. Ct. 2068, 2078 (1994).

_______ ________

Nevertheless, Livadas repeated the basic test laid do

_______

by Lingle--namely, that section 301 preempts a state-l ______

claim wherever a court, in passing upon the asserted stat

law claim, would be required to interpret a plausib

disputed provision of the collective bargaining agreemen


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Id. At first blush, this might seem a puzzling test: bo

___

state and federal courts have authority to enforce collecti

bargaining agreements, and so to interpret their provision

See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 5

___ ______________________ ________

(1962).

The explanation lies in the Supreme Court's concern

enforce arbitration clauses, almost always a feature of lab

contracts. If judges construed labor agreements in the fir

instance, the Court believed that the arbitration proce

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would be undermined, and there might be divergent readings

the labor agreement and interference with the grievan

process itself. Livadas, 114 S. Ct. at 2078; Allis-Chalmer

_______ ____________

471 U.S. at 219. Such an arbitration clause is present

this case.

We thus begin by asking, as we have done in the pas

e.g., Quesnel v. Prudential Ins. Co., 66 F.3d 8, 10-11 (1

____ _______ ____________________

Cir. 1995), whether resolution of Martin's claims wou


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require an interpretation of the collective bargaini

agreement. Our premise is that this means a re

_

interpretive dispute and not merely a pretended disput

Indeed, the Supreme Court has said that the need merely

refer in passing to the agreement will not necessari

preempt. Livadas, 114 S. Ct. at 2078.

_______

Martin has alleged violations of Mass. Gen. Laws c

152, 75A, 75B(2). Section 75A creates a priority f

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.


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The relevant portion of section 75B(2)--a convention

prohibition against retaliation--states that "[n]o employer

. . shall . . . refuse to hire or in any other mann

discriminate against an employee because the employee

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exercised a right afforded by this [workers compensatio


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chapter."

If the statutes stopped here, this might be a differe

case. But both statutory sections also contain a provi

that "[i]n the event any right set forth in this section

inconsistent with an applicable collective bargaini

agreement," the agreement shall prevail. Id. 75A, 75B(3

___

Shaw's argues that both of Martin's statutory claims a

inconsistent with the labor agreement; that resolution

this "inconsistency" charge requires interpretation of t

agreement; and that the claims are therefore preempted un

the Supreme Court's own rubric.

It is very doubtful whether, without this last-quot

proviso, Shaw's would have any plausible claim of feder


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preemption. Massachusetts has an independent interest

regulating injury compensation; and apart from the provis

the elements of both Martin's state-law claims appear to

independent of bargaining agreement provisions. There a

other types of labor preemption, apart from Lingle's "requi ______

construing" test,2 but Shaw's does not argue that Martin

state claims would be preempted absent the proviso.

____________________

2Broadly speaking, most cases of preemption in the lab

field involve conflict, or potential conflict, between sta

law and federal labor policy. But sometimes the confli

arises out of some source other than the need to interpret

labor agreement. E.g., Livadas; San Diego Bldg. Tra

____ _______ _____________________

Council v. Garmon, 359 U.S. 236 (1959). _______ ______


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Rather, Shaw's argues that Massachusetts has as a matt

of state law chosen to make the substantive rights conferr

______

by the statutes depend upon their not being "inconsisten

with a labor agreement. This court endorsed just suc

reading of the proviso of section 75B, which is identical

substance to the provision of section 75A, in Magerer v. Jo

_______ _


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Sexton & Co., 912 F.2d 525, 529-30 (1st Cir. 1990).

_____________

Magerer merely holds Massachusetts to the literal wording_______

its own statute.

The question remains whether Shaw's labor agreement

colorably inconsistent with Martin's state-law clai

Shaw's best argument rests upon the agreement's "manageme

rights" clause, which states that Shaw's has the "sole ri

to manage its business including . . . the right[] . . .

hire, assign and promote Employees." Shaw's says that Mart

is a former employee seeking to be rehired, that t

agreement regulates this subject (but not in a way t

protects Martin in this case), and that in all other respec

the union has agreed to management's right to choose whi


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former employees to rehire.

Martin responds that the "management rights" clau

cannot be inconsistent with her state-law claims in this ca

because she is no longer covered by the agreement. Yet t

agreement does give former Shaw's employees some specif

priority rights to be rehired. See Collective Bargaini

___

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Agreement Art. 12(B) ("Full-time employees laid off becau

of lack of work when no other full-time work is availab

shall be offered part-time work [if available] . . . ."

And the "management rights" clause by its terms embrac

decisions as to hiring.

Martin next says that Shaw's employee handbo

guarantees to her the very right to priority in rehiri

established by section 75A. The handbook does conta

language that is fairly close to the rehiring priori

contained in section 75A, suggesting that Shaw's itse

treats this priority right (although not necessarily t

protection against retaliation) as consistent with i


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"management rights" clause. But for purposes of construi

the "management rights" clause, the handbook is at best

gloss.

Whether the handbook does constitute a gloss and, if s

what weight it should be given are issues of interpreting t

collective bargaining agreement. The handbook may we

weaken Shaw's reliance on the "management rights" clause; b

the handbook may simply be a reference to state law, who

application Shaw's has now rethought in the face

litigation. To entertain Martin's state-law claims wou

still require a court to interpret the agreement, which

precisely what Supreme Court precedents forbi

Accord Magerer, 912 F.2d at 530.

______ _______


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Martin next asserts that any waiver of statutory rig

by a union and management in a collective bargaini

agreement must be "clear and unmistakable." See Livadas, 1

___ _______

S. Ct. at 2079 (citations omitted). But Shaw's preempti


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claim does not depend upon a "waiver" of statuto

protections; indeed, it is unclear under Massachusetts l

that the statutory protections can be "waived." Cf. Mas ___

Gen. Laws ch. 152, 75B(3) (limiting waiver). Rather, t

statutes themselves expressly withhold protection where

would be "inconsistent" with labor agreements, witho

requiring the inconsistency to be "clear and unmistakable."

We conclude that under Supreme Court and First Circu

precedent, Martin's state law claims are preempted. This

not because the collective bargaining agreement

inconsistent with the state claims asserted, but because

may be so and requires interpretation. We could oursel

___

remove the doubt by interpreting the agreement one way or t


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other, but this course has been foreclosed in deference

the arbitration clause. As all of this appears to foll

logically, the question remains why the outcome may se

faintly troubling.

One reason is that Massachusetts' statutory provis

making the rights conferred yield to inconsistent lab

agreements, may be producing some results that t

legislature did not intend. When the statutes were enact

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in December 1985, Massachusetts might have thought that t

proviso was necessary to avoid preemption; the legislatu _____

might be chagrined to discover that the proviso

unnecessarily curtailed workers' rights. But this is at be

a debatable inference,3 and we have found no helpf

legislative history.

Possibly, the proviso could be construed to require mo

than mere inconsistency. Or a state court could hold t

the rights conferred yield only to highly specific provisio

in a labor agreement and not to a generic "management right


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clause. But both readings would ignore the explicit langua

of the proviso. Perhaps the state did intend to defer to t

labor agreement even where it assisted the employer. Despi

the clear warning sent by Magerer in 1990, Massachusetts

_______

not chosen to amend the statutes.

The other reason why the outcome may seem troubling

that it could result in Martin having no claim at all again

Shaw's, even for retaliation. This charge is, of cours

merely an allegation; but even if it proved to ha

substance, it would be preempted because of the collecti

____________________

3Shortly before the legislature acted in 1985, t

Supreme Court made clear that section 301 does not "give t

substantive provisions of private agreements the force


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federal law, ousting any inconsistent state regulation

Allis-Chalmers, 471 U.S. at 212. See also Metropolitan Li

______________ ________ ______________

Ins. Co. v. Massachusetts, 471 U.S. 724, 755-56 (198

_________ _____________

(holding that state mandated-benefits laws were not general

preempted).

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bargaining agreement, and yet the agreement may itse

provide no remedy. Preemption sometimes does result in


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complete denial of remedies for obvious wrong, e.g., Smith

____ _____

Dunham-Busch, Inc., 959 F.2d 6, 11 (2d Cir. 1992), but t

__________________

is not a result one eagerly embraces.

Various possibilities may cushion this outcome. If t

employee handbook is a gloss on the collective bargaini __

agreement, perhaps the language already mentioned may n

only defeat the "management rights" defense but also gi

rise to affirmative obligations on the part of the employ

enforceable through arbitration. Or, perhaps arbitrati

would yield a definitive ruling that the "management right

clause, and any other clause relied upon by Shaw's, is n

"inconsistent" with the rights contingently secured by t

statutes.


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If all else fails, the union is free to negotia

language that eliminates this issue the next time it rene

its labor agreement. The parties entered the curre

agreement in 1994, well after Magerer was decided, but t

_______

absence of such language in the present agreement may be

oversight. All that it would take to prevent preemption

an explicit provision stating that nothing in the agreeme

is intended to create management rights inconsistent with a

workers' rights under sections 75A and 75B.

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Finally, in a reply brief, Martin and her union (whi

appears as an amicus and has ably supported Martin) offer

preemption claim of their own. They say that a dischar

non-union worker could invoke the Massachusetts statutes a

that by allowing the collective bargaining agreement

extinguish Martin's rights, the Massachusetts provi

discriminates against members or former members of union

thereby offending federal labor policy. This, they sa


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Livadas itself forbids.

_______

Livadas struck down a state administrative practi

_______

because it effectively discriminated against union members

compared with non-members, 114 S. Ct. at 2074-75,

preemption theory that has nothing to do with section 30

On the reasoning of Livadas, Massachusetts arguably could n

_______

provide that a rehiring priority, or a claim again

retaliation, would be made available only to workers who we

not members of a union. But here Massachusetts has do

nothing of the kind.

Instead, the proviso in question permits the union

behalf of its members to craft its own regime (the agreemen

and in it, either to preserve or displace another regi


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(specified provisions of state law). Viewed in the lar

there is no discrimination whatever against union member

Massachusetts simply allows the union to negotiate for

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different package of benefits. Next time, as we have note


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the union is free to bargain differently.

Affirmed.

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Documents

Martin v. Shaw Supermarkets, 1st Cir. (1997)