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                    [NOT FOR PUBLICATION]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 &amp; 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
                                                             

&amp;  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  &amp; 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-
