
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                                         -2-                                         -2-            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                                         -3-                                         -3-            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).            ____    ________                                         -4-                                         -4-                 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                                         -5-                                         -5-            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                                         -6-                                         -6-            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).            _______    ______                                         -7-                                         -7-                 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                                               ___                                         -8-                                         -8-            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.            ______ _______                                         -9-                                         -9-                 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                                         -10-                                         -10-            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).                                         -11-                                         -11-            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.                                         -12-                                         -12-                 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                                         -13-                                         -13-            different  package of benefits.  Next time, as we have noted,            the union is free to bargain differently.                 Affirmed.                 ________                                         -14-                                         -14-
