
USCA1 Opinion

	




          September 27, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1213                                  LEANDERS H. SMITH,                                Plaintiff, Appellant,                                          v.                          WGBH EDUCATIONAL FOUNDATION, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Leanders H. Smith on brief pro se.            _________________            Alan  D.  Rose,  Diane  G.  Rosse,  Marilee  Denelle  and  Nutter,            ______________   ________________   ________________       _______        McClennen & Fish on brief for appellee.        ________________                                 ____________________                                 ____________________                      Per   Curiam.     Leanders  H.   Smith  sued   WGBH                      ____________            Educational Foundation, Inc. (WGBH)  in state court, alleging            that it had violated his rights under Massachusetts' workers'            compensation  laws, M.G.L.  ch.  152,     75A,  75B, when  it            refused  his request  to  return to  work  after being  on  a            disability  leave during  which he had  received compensation            benefits.  WGBH  removed Smith's action  to federal  district            court,  and moved  for summary  judgment, which  the district            court  granted.   Smith is  appealing that  order as  well as            orders denying motions that the court disqualify itself  from            hearing Smith's case, remand his case to the state court, and            permit certain  depositions to  proceed.  We  affirm for  the            reasons stated in the district court's orders, and  elaborate            only  as  necessary to  clarify  the  court's briefly  stated            reasons.                      1.  Removal/Preemption.  In Magerer v. John  Sexton                          __________________      _______    ____________            &  Co., 912  F.2d  525  (1st  Cir.  1990),  we  held  that  a            ______            retaliatory discharge  claim brought under M.G.L.  ch. 152,              75B, was  completely preempted under section 301 of the Labor            Management  Relations  Act, 29  U.S.C.     185(a), where  the            plaintiff was  subject to  a collective bargaining  agreement            which  contained  a  management   rights  clause  giving  the            employer/defendant  the right  to  "discharge  employees  for            proper cause."  Since the  definition of "proper cause" under            the agreement could permit employer discharges  not permitted            under  section 75B, we found  that the rights and obligations            of  Magerer  and   his  employer  were   controlled  by   the            contractual  provisions governing  discharge and  not  by any            independent state standard found in the workers' compensation            laws of Massachusetts.  Id.  at 530.  In so doing,  we relied                                    ___            on the specific language in section 75B, which provided that,            if  the  rights granted  employees  under  that section  were            inconsistent  with  a  collective  bargaining  agreement, the            agreement  was   to  prevail.    The   collective  bargaining            agreement  between  WGBH  and  the  National  Association  of            Broadcast   Employees   and   Technicians  (NABET)   contains            essentially  the same  clause  as the  one  we considered  in            Magerer.  Article XIX  of the agreement provides  that "[t]he            _______            right to  discipline and  discharge employees for  just cause            shall  remain  the  prerogative  of  [WGBH]."    Thus,  under            Magerer, Smith's section 75B claim requires interpretation of            _______            the collective bargaining agreement and for that reason it is            completely  preempted  under   section  301   of  the   Labor            Management Relations Act.  Id.                                       ___                      The district court's conclusion that  Smith's state            law claims  were preempted was  also correct with  respect to            Smith's claim under section  75A.  Like section  75B, section            75A states that an applicable collective bargaining agreement            which is inconsistent with the  rights granted in section 75A            is  to  prevail  over section  75A.    Section  75A grants  a            preference  in hiring to any  former employee who  has lost a            job due  to a compensable injury  under workers' compensation                                         -3-            over  other  applicants not  employed at  the time  when such            former employee             seeks to  be rehired.  As  a general matter, Article  13.1 of            WGBH's collective bargaining  agreement gives WGBH  "the sole            and  exclusive  right to  make  all  decisions regarding  the            management,  operation and  programming of  [its] operations,            including determination of the number of employees covered by            this  Agreement," suggesting that  WGBH may hire  or not hire            employees as it sees fit and that it is not required to grant            any  preference  to  former  employees who  have  lost  their            employment  due to injuries  compensable under Massachusetts'            workers' compensation law.   More specifically, Article  17.3            of the  agreement requires WGBH to  rehire laid-off employees            according to seniority.  For certain types of available work,            moreover,  Article  3.7(a) also  states  a  hiring preference            based on seniority  for regular staff employees who have been            laid  off.   The  seniority principle  for rehiring  laid-off            employees   is  inconsistent   with   section  75A's   hiring            preference for  employees laid  off or discharged  because of            injuries    compensable    under   Massachusetts'    workers'            compensation  law.   Thus,  under the  reasoning of  Magerer,                                                                 _______            Smith's  section  75A claim  requires  interpretation  of the            collective bargaining agreement and  for that reason it, too,            is completely preempted.                                           -4-                      Since Smith's claim  is completely preempted  under            section  301, it states a federal claim and thus arises under            federal law, Caterpillar, Inc. v. Williams, 482 U.S. 386, 393                         _________________    ________            (1987); Avco  Corp. v. Aero Lodge No.  735, 390 U.S. 557, 560                    ___________    ___________________            (1968); Magerer, 912 F.2d at 528, and not under Massachusetts                    _______            law.  Consequently, 28 U.S.C.   1445(c), which  prohibits the            removal  to federal  court of  claims arising  under  a state            workmen's compensation  law, does  not apply, and  removal of            the  claim here  was proper.   See  Vantine v.  Elkhart Brass                                           ____________     _____________            Manufacturing  Co.,  762 F.2d  511,  517-18  (7th Cir.  1985)            __________________            (section 1445(c) did not bar removal of a claim brought under            a  state's  workmen's  compensation laws;  under  the state's            laws,  the  cause  of   action  arose  under  the  collective            bargaining agreement  and thus  stated a federal  claim under            section  301 which  rendered  removal to  the district  court            proper);  Smith v.  Union Carbide  Corporation, 664  F. Supp.                      _____     __________________________            290, 292  (E.D.  Tenn. 1987)  (section  1445(c) did  not  bar            removal  of  an  action  brought under  a  state's  workmen's            compensation  law  because  the   plaintiff's  suit  was   an            independent, judicially  created tort action, and  so did not            arise  under the  state's  workmen's  compensation laws,  and            because it  was preempted by federal labor  law and therefore            arose under federal and not state law).  2.           Smith's                                                                  _______            Employment Status as of August 1989.  If Smith was subject to            ___________________________________            WGBH's collective bargaining agreement, dismissal of his suit                                         -5-            was proper since his only remedy for his discharge was resort            to   the  grievance  and   arbitration  procedures   of  that            agreement.  See Allis-Chalmers Corporation v. Lueck, 471 U.S.                        ______________________________    _____            202, 220-21 (1985).   In affidavits,  Smith claimed that  his            employment at WGBH had  ended before August 1989 and  that he            was  not  subject  to the  WGBH-NABET  collective  bargaining            agreement.  Accordingly, he argues that he was not bound by a            1990 arbitral  decision which found that  WGBH had discharged            him  for just cause,  and he says  that he is  free to sue in            court.  In view of the overwhelming evidence to the contrary,            we find that  his allegations do not establish  the existence            of  a genuine  issue of  material fact  sufficient to  defeat            WGBH's motion  for summary judgment.  Petitti  v. New England                                                  _______     ___________            Telephone  & Telegraph Co., 909  F.2d 28, 30  (1st Cir. 1990)            __________________________            (summary judgment is proper if evidence is so  one-sided that            one party must prevail as a matter of law).                      Smith claims  that  his employment  had  terminated            before August  1989 under  Article 17.2(f) of  the collective            bargaining  agreement.   That  article provided  for loss  of            seniority by  employees absent  from work due  to injury  for            more than 15  months, and  was understood by  the parties  to            terminate  the employment  of such employees.   As  of August            1989, Smith had  been on  disability leave for  more than  15            months,  having  begun his  leave in  February  1986.   In an            affidavit, WGBH's Human Resources Director, Michael Enwright,                                         -6-            who  negotiated  WGBH's 1987-90  contract with  NABET, stated            that  WGBH  had  accepted  the union's  demand  during  those            negotiations  that Smith  be excluded  from the  operation of            Article  17.2(f).   Smith's disability  leave began  in 1986,            when the 1984-87 contract was  in effect, and Enwright stated            in  his affidavit that that contract  did not contain Article            17.2(f).  Smith has not introduced any affidavit by the union            to the contrary, nor has he denied Enwright's sworn statement            that the 1984-87 contract did not contain Article 17.2(f).                        In an  affidavit, Smith states  that John  Plausse,            his  direct supervisor, had told him during his leave that he            was  not subject  to  the  collective  bargaining  agreement.            Nevertheless,  the  pleadings,   affidavits  and   underlying            documentary   evidence   submitted   by   the   parties  show            conclusively that, even if Plausse had told Smith that he was            not subject  to  the collective  bargaining agreement,  Smith            knew  that his employment  with WGBH had  not been terminated            before August 1989 and that he continued to be subject to the            collective bargaining  agreement.   Among the many  pieces of            evidence, we highlight only the following:  Smith's complaint            stating  that on or about November 22, 1989, WGBH had refused            to allow him  to "return to work"; Smith's letter  to WGBH on            August 2,  1989, notifying  Enwright that Smith  was changing            his  "return  to  work"  date  from  September  18, 1989,  to            September 1, 1989,  telling Enwright to  let Plausse know  of                                         -7-            the change so that Plausse could make necessary plans, asking            Enwright  whether his  vacation  time had  been adjusted  and            informing  Enwright that  he would  be taking  the first  two            weeks  of  October  off;  the  arbitration  transcript  which            reveals that  the union arbitrated Smith's  November 22, 1989            discharge (for misconduct not at issue here), that  Smith was            consulted about and approved  NABET's and WGBH's selection of            an  arbitrator, and  that Smith  attended the  arbitration on            dates in 1989  and 1990  and actively assisted  the union  in            presenting  evidence on  his  behalf; and  Smith's  affidavit            stating  that he  is  still a  member  of NABET,  a  critical            admission since  membership in  the union  is a  condition of            employment under  the collective  bargaining agreement.   See                                                                      ___            Agreement Between NABET and WGBH Educational Foundation, Inc.            1987-1990,  Art. 3.1.    Although Smith  argues that  certain            letters  and documents show that  he was not  an employee for            any purpose under the collective bargaining agreement  during            his  leave, those letters and documents show only that he was            not  classified as an "active" employee at that time and thus            did  not have the  rights granted active  employees under the            agreement (e.g., vacation, sick leave, and holiday benefits).            The  collective  bargaining  agreement distinguishes  clearly            between  the rights  of active  employees and  those of  non-            active employees  on leave of  absence (see,  e.g., id.  Art.                                                    _______________            9.5(c), 9.7;  Art. XII);  nowhere does  it suggest that  non-                                         -8-            active employees on leave  are not in the bargaining  unit or            not subject  to the  grievance and arbitration  provisions of            the contract.                        Smith's  other  claims are  without  merit for  the            reasons stated in the orders being appealed.                      Affirmed.                      ________                                         -9-
