martin v. shaw supermarkets, 1st cir. (1997)
TRANSCRIPT
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
1/37
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]
__________________________
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
2/37
____________________
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. ___________
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
3/37
____________________
January 28, 1997
____________________
____________________
*Of the Southern District of New York, sitting by designation.
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
4/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
5/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
6/37
-2-
-2-
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
7/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
8/37
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
-3-
-3-
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
9/37
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."
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
10/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
11/37
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).
____ ________
-4-
-4-
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
12/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
13/37
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
-5-
-5-
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
14/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
15/37
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.
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
16/37
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
-6-
-6-
exercised a right afforded by this [workers compensatio
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
17/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
18/37
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). _______ ______
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
19/37
-7-
-7-
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
_______ _
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
20/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
21/37
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
___
-8-
-8-
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
22/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
23/37
"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.
______ _______
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
24/37
-9-
-9-
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
25/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
26/37
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
-10-
-10-
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
27/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
28/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
29/37
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).
-11-
-11-
bargaining agreement, and yet the agreement may itse
provide no remedy. Preemption sometimes does result in
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
30/37
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.
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
31/37
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.
-12-
-12-
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
32/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
33/37
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
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
34/37
(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
-13-
-13-
different package of benefits. Next time, as we have note
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
35/37
the union is free to bargain differently.
Affirmed.
________
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
36/37
-14-
-14-
-
7/26/2019 Martin v. Shaw Supermarkets, 1st Cir. (1997)
37/37