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, Xifara
____________

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

_____________ ________________ __________________________
Ehrenberg
_________

Betsy
_____

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

_______________________________________________

briefs for appellant.

Betsy L. Ehrenberg
____________________

with

whom

Harold L. Lichten
___________________

and Ango
____

Goldman,
_______
Manning,
_______
Commercial

Pyle & Wanger, P.C.

_____________________
Workers Local

were on

Union 791

brief

for United

and National

Food

Employment Lawy

Association, Massachusetts Chapter, Amici Curiae.

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

________________
_________________
______________
& Fish, LLP were on brief for appellee.
___________

____________________

January 28, 1997

____________________

____________________

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

BOUDIN,

difficult

Theresa

Circuit Judge.
______________

preemption

Martin

issue,

sued

Massachusetts state

This

began

Shaw's

court for

employment-compensation laws.

case,

in

presenting

January

1996

Supermarkets,

alleged

Inc.,

violations of

when

in

state

Martin, an employee of Shaw's

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

as

a bakery clerk.

workers'

In September 1994,

compensation

disability.

benefits

she began receiving

for

Mass. Gen. Laws ch. 152,

temporary

total

34.

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

Dr.

James Coleman, establish any necessary work restrictions

for

Martin.

restrictions and

Coleman

gave

Shaw's

list

indicated that Martin could

of

physical

return to work

if

these restrictions

Martin

to

see

were

second

examination, Shaw's

respected.

doctor.

offered

Shaw's then

Based

Martin four

on

the

weeks of

asked

second

modified

duty, to be followed by return to her former position without

restrictions.

Martin did not

attorney,

she

restrictions

offering

When

Martin

return to

again

set

Martin

asked

by Coleman.

her former

discussion failed

work.

for

Instead, through

position

Shaw's

responded by

position with

to resolve

fitting

her

the

again

no restrictions.

the matter,

Shaw's sent

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,

employment with

1995,

Martin reapplied

Shaw's, requesting

modified as Coleman had recommended.

Later in the month,

for

full-time

position with

duties

Shaw's did not respond.

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

Massachusetts

later, Martin filed the

state court, claiming that Shaw's had violated

Mass. Gen. Laws ch. 152,

her.

These sections

who lost

employee

refuse

75A, 75B(2), by failing to rehire

provide, respectively, that an employee

her job as a

given rehiring

result of compensable injury

preference by

applicants, id.
___

to hire an

compensation

present action in

the former employer

75A,

and that

employee because she

claim, id.
___

75B(2).

contest Shaw's right to discharge her

must be

over non-

no employer

may

asserted a workers'

Martin's

suit did

not

in the first instance.

In

court,

March 1996,

were

removed the

premising jurisdiction

moved to dismiss,

court

Shaw's

Fed. R.

Relations

by

Act, 29

section

U.S.C.

U.S.C.

Civ. P. 12(b)(6).

granted Shaw's motion,

preempted

under 28

action to

agreeing that

301

185.

-3-3-

of

the

Martin

federal

1331,

The

and

district

Martin's claims

Labor

now

Management

appeals this

ruling.

The

sole issue

on appeal

is whether

section 301

only that

"[s]uits for

preempts Martin's state-law claims.1

Section

violation

of

301 modestly

contracts

provides

between

an employer

organization representing employees

any district

of the

court of the United

parties . . . ."

begat substantive

. . . may

labor

be brought in

States having jurisdiction

29 U.S.C.

authority.

and

185.

But jurisdiction

In Textile Workers v. Lincoln

________________
_______

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

this section "authorizes federal courts to

federal

law

for

the

bargaining agreements."

enforcement

of

fashion a body of

collective

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

are

upon

"called

agreements, because

federal

doctrine,

principles.

that

to

enforce"

rather

than varying

Then, two decades later,

suits

effect of

alleging

when courts

collective

those agreements should

"the pre-emptive

[state-law]

law is displaced

bargaining

be governed

state

by

contract-law

the Supreme Court said

301 must

extend beyond

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

Supreme Court has

301 preemption

is concerned,

held that removal is proper.

the

Caterpillar
___________

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

____
________

-4-4-

Just how

far beyond

Allis-Chalmers
______________

relating

to the

preempted

handling

has never been

state-law

of a

precisely settled.

tort

claim

labor-agreement

closely

grievance.

Shortly thereafter the Court declared that state-law claims--

seemingly

"require

of

whatever

construing

character--are

the

preempted

collective-bargaining

Lingle v. Norge Div. of Magic Chef, Inc.,

______
_______________________________

(1988).

Yet recently,

the

Supreme

if

they

agreement."

486 U.S. 399, 407

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
_______

by

Lingle--namely, that
______

claim wherever a

law

claim,

disputed

would

repeated the basic test laid down

section

301

preempts a

court, in passing upon

be

provision of

required

to

the collective

state-law

the asserted state-

interpret

plausibly

bargaining agreement.

Id.
___

At first blush,

this might seem a puzzling test:

both

state and federal courts have authority to enforce collective

bargaining agreements,

See
___

and so to interpret their provisions.

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

-5-5-

the arbitration

process

would be undermined, and there might be divergent readings of

the

labor

agreement

process itself.

471 U.S. at

and

interference

with the

grievance

Livadas, 114 S. Ct. at 2078; Allis-Chalmers,

_______
______________

219.

Such

an arbitration clause is

present in

this case.

We thus begin

by asking, as we

have done in the

e.g., Quesnel v. Prudential Ins. Co., 66 F.3d 8,

____ _______
____________________

Cir.

1995),

whether

resolution

of Martin's

past,

10-11 (1st

claims

would

require

an

interpretation

agreement.

Our

interpretive

dispute

Indeed,

refer

of

premise

is

and not

the Supreme Court has

in

preempt.

passing

collective

that

this

merely

bargaining

means

a pretended

said that the

the agreement

will

has alleged

75A, 75B(2).

dispute.

need merely to

not

necessarily

violations of

Section

Mass. Gen.

75A creates

Laws ch.

priority for

rehiring:

Any

person who has

injury

lost a job

compensable

under

this

as a result
chapter

of an

shall be

given preference in hiring by the employer for whom

he worked
any

real
____

Livadas, 114 S. Ct. at 2078.

_______

Martin

152,

to

the

at the

persons not

time of compensable
at

the time

reemployment employed by

injury over

of application

such employer;

however, that a suitable job is available.

for

provided,

The

relevant

portion

of

section

75B(2)--a

conventional

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

. shall

. .

discriminate against

refuse to

hire

an employee

or in

because

any other

manner

the employee

has

-6-6-

exercised

right afforded

by this

[workers compensation]

chapter."

If the statutes stopped here,

case.

But

both statutory sections

that "[i]n the event any right

inconsistent

this might be a different

with

an

also contain

set forth in this section

applicable

collective

agreement," the agreement shall prevail.

Shaw's

argues that

inconsistent with

this

both

the

of Martin's

labor agreement;

"inconsistency" charge

agreement; and that the

a proviso

Id.
___

is

bargaining

75A, 75B(3).

statutory claims

that resolution

requires interpretation

are

of

of the

claims are therefore preempted under

the Supreme Court's own rubric.

It is

proviso,

very doubtful

Shaw's would

whether, without

have any

this last-quoted

plausible claim

of federal

preemption.

Massachusetts has

regulating

injury compensation; and

the elements of both Martin's

independent

of bargaining

an independent

interest in

apart from the proviso,

state-law claims appear to

agreement provisions.

be

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

arises out of some source other than the need to

labor

agreement.

E.g.,
____

Livadas;
_______

conflict

interpret a

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

with

statutes depend

a labor

reading

agreement.

upon their not

This court

being "inconsistent"

endorsed just

such a

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

Magerer merely holds Massachusetts

_______

(1st Cir.

1990).

And

to the literal wording of

its own statute.

The question

colorably

remains whether Shaw's

inconsistent

with

Shaw's best argument rests

Martin's

labor agreement is

state-law

upon the agreement's

claims.

"management

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

right

to manage its business including . .

. the right[] . . .

hire, assign and promote Employees."

Shaw's says that Martin

is

be

former

employee

agreement regulates

this

seeking

to

subject (but

rehired,

not

in a

to

that

the

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

agreement

priority

she is no longer covered

does give

rights to

former

by the agreement.

Shaw's employees

be rehired.

-8-8-

See
___

Yet the

some specific

Collective Bargaining

Agreement Art. 12(B)

of lack of

work when

shall be offered

And

("Full-time employees laid off

no other full-time

part-time work

the "management

rights"

work is

available

[if available] .

clause by

because

. .

.").

its terms

embraces

employee

handbook

decisions as to hiring.

Martin

next

guarantees

to her

established

by

language

that

contained

in

treats

this

protection

says

that

the very

section

is

section

75A,

priority right

against

right to

75A.

fairly

Shaw's

The

priority

handbook

close to

the

suggesting

(although

retaliation)

as

in rehiring

does

rehiring

that

contain

priority

Shaw's itself

not necessarily

consistent

with

the

its

"management rights"

the "management

clause.

But for

rights" clause,

purposes of construing

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

application

Shaw's

has

litigation.

To entertain

still require

a court to

precisely

what

a reference to

now

rethought

state law, whose

in

Martin's state-law

the

Accord Magerer, 912 F.2d at 530.

______ _______

Court

of

claims would

interpret the agreement,

Supreme

face

precedents

which is

forbid.

-9-9-

Martin next asserts that

by

union

and

management

any waiver of statutory rights

in

collective

agreement must be "clear and unmistakable."

S. Ct. at

2079 (citations omitted).

bargaining

See Livadas, 114

___ _______

But Shaw's

preemption

claim

does

not

depend

protections; indeed,

it is

upon

statutes

would

of

"inconsistent"

with

statutory

Massachusetts law

can be "waived."

Cf.
___

75B(3) (limiting waiver).

themselves expressly

be

"waiver"

unclear under

that the statutory protections

Gen. Laws ch. 152,

Rather, the

withhold protection

labor

Mass.

agreements,

where it

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.

not

because

the

inconsistent with

may be so
___

collective

bargaining

the state claims asserted,

and requires interpretation.

This

is

agreement

is
__

but because it

We could

ourselves

remove the doubt by interpreting the agreement one way or the

other, but

this course has

been foreclosed in

the arbitration clause.

As

logically,

remains

the question

all of this

why the

deference to

appears to

follow

outcome may

seem

faintly troubling.

One

making

reason

the

agreements,

legislature

is that

rights

may

Massachusetts'

conferred

be

yield

producing

did not intend.

statutory proviso,

to inconsistent

some

results

that

labor

the

When the statutes were enacted

-10-10-

in December

proviso

might

1985, Massachusetts might have

was necessary to

be

chagrined

to

avoid preemption;
_____

discover

that

unnecessarily curtailed workers' rights.

debatable

inference,3

thought that the

and

we

have

the legislature

the

proviso

has

But this is at best

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.

the clear warning sent by

Despite

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,

merely

even for

an

retaliation.

allegation;

substance, it

would be

but

This charge is,

even

if

it

preempted because of

proved

of course,

to

have

the collective

____________________

3Shortly
Supreme

before

the

legislature acted

in

1985,

the

Court made clear that section 301 does not "give the

substantive

provisions

of private

agreements the

force of

federal

law,

ousting

any

inconsistent

Allis-Chalmers, 471 U.S. at 212.

______________
Ins. Co.
_________

v.

Massachusetts,
_____________

state regulation."

See also Metropolitan Life

________ _________________

471 U.S.

724,

755-56

(1985)

(holding that state mandated-benefits laws were not generally

preempted).

-11-11-

bargaining

agreement,

provide no

remedy.

and

yet

the

agreement

Preemption sometimes does

may

itself

result in

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

employee

agreement,

only

handbook is
__

a gloss

perhaps

the language

defeat the

on the

enforceable through

would yield a definitive

clause,

statutes.

Or,

may not

also give

the employer

perhaps

arbitration

ruling that the "management rights"

and any other clause

"inconsistent" with

defense but

on the part of

arbitration.

If the

collective bargaining

already mentioned

"management rights"

rise to affirmative obligations

this outcome.

the rights

relied upon by

Shaw's, is not

contingently secured

by the

If all

else

fails,

the union

language that eliminates this issue

its

labor

agreement.

agreement in 1994,

The

an explicit

All that

free

to

negotiate

the next time it

parties

well after Magerer

_______

absence of such language

oversight.

is

entered

renews

the current

was decided, but

in the present agreement may

it would take to prevent

provision stating that nothing

the

be an

preemption is

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

appears as an amicus

preemption

non-union

that

union (which

and has ably supported Martin)

claim of their own.

They say

offer a

that a discharged

worker could invoke the Massachusetts statutes and

by allowing

extinguish

the

Martin's

discriminates against

thereby

brief, Martin and her

collective

rights,

members or

offending federal

labor

bargaining

the

agreement

Massachusetts

former members

policy.

to

proviso

of unions,

This, they

say,

Livadas itself forbids.

_______

Livadas
_______

struck down

state

administrative

practice

because it effectively discriminated against union members as

compared

with

non-members,

preemption theory that

114

S.

has nothing to

Ct.

at

2074-75,

do with section

301.

On the reasoning of Livadas, Massachusetts arguably could not

_______

provide

that

rehiring

priority,

or

claim

against

retaliation, would be made available only to workers who were

not

members of

a union.

But

here Massachusetts

has done

question permits the

union on

nothing of the kind.

Instead, the

proviso in

behalf of its members to craft its own regime (the agreement)

and

in it,

either to

preserve or

displace another

regime

(specified provisions of

there

state law).

is no discrimination

Massachusetts

simply allows

Viewed in the

whatever against

the

union to

large,

union members;

negotiate for

-13-13-

different

package of benefits.

Next time, as we have noted,

the union is free to bargain differently.

Affirmed.
________

-14-14-