Local Union No. 12004 v. Massachusetts

Decision Date30 July 2004
Docket NumberNo. 03-2352.,No. 03-2551.,03-2352.,03-2551.
Citation377 F.3d 64
PartiesLOCAL UNION NO. 12004, UNITED STEELWORKERS OF AMERICA; Stephen T. Bradley; Gary S. Buma; Paul P. Edmonds; Charles H. Grant, Jr.; Raymond Lahair, Jr.; Charles McNeil; Ronald F. Mezzano; Thomas Nugent; and Thomas St. Pierre, Plaintiffs, Appellants/Cross-Appellees, v. Commonwealth of MASSACHUSETTS, Massachusetts Commission Against Discrimination; Dorca I. Gomez, Commissioner for the Massachusetts Commission Against Discrimination; Walter J. Sullivan, Jr., Commissioner for the Massachusetts Commission Against Discrimination; and Cynthia A. Tucker, Commissioner for the Massachusetts Commission Against Discrimination, Defendants, Appellees, Peter D. McGrath, Defendant, Appellee/Cross-Appellant.
CourtU.S. Court of Appeals — First Circuit

Appeal from the United States District Court for the District of Massachusetts, Nancy Gertner, J.



Rudolph Milasich, with whom Harold L. Lichten, Terence E. Coles, and Pyle, Rome, Lichten & Ehrenberg, P.C. were on brief, for appellants/cross-appellees.

Robert L. Quinan, Jr., Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for the Massachusetts appellees.

Donald C. Keavany, Jr., with whom Christopher, Hays, Wojcik & Mavricos was on brief, for appellee/cross-appellant McGrath.

Michele Granda, Charles P. Wagner, and Charles P. Wagner & Assocs. were on brief for amici curiae Gay & Lesbian Advocates & Defenders (GLAD) and the Massachusetts Lesbian & Gay Bar Association.

Before: SELYA, Circuit Judge, PORFILIO,* Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

A labor union and several of its individual members (the Union) seek declaratory and injunctive relief against the Massachusetts Commission Against Discrimination (MCAD) to prevent the MCAD from adjudicating a charge of discrimination by a supervisor against the Union that arose out of a labor dispute. The sole basis for the Union's federal complaint is its contention that the MCAD proceeding is preempted by federal labor law under San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and related doctrines. The district court dismissed the complaint for lack of subject-matter jurisdiction. We reverse and remand for further proceedings consistent with this opinion.


For purposes of this appeal, we accept as true the well-pleaded factual allegations in the Union's complaint and draw all reasonable inferences from those allegations in its favor. Soto-Negron v. Taber Partners I, 339 F.3d 35, 38 (1st Cir.2003). Where the federal complaint is silent, additional details are drawn from the allegations in the verified complaint filed with the MCAD.

The incidents underlying this case occurred in April 1996, when Commonwealth Gas Company (ComGas) was embroiled in a bitter labor dispute. Local Union No. 12004 of the United Steelworkers of America, AFL-CIO (Local 12004), was negotiating a successor collective bargaining agreement on behalf of its members, who are a "bargaining unit" of production and clerical employees.

On April 1, 1996, when the previous collective bargaining contract expired, ComGas ordered a lockout of all employees who were members of Local 12004. Local 12004 responded with a concerted picketing campaign against the company. In addition to picketing at ComGas facilities, Local 12004 sent some of its members to set up picket lines at off-site areas where crews composed of ComGas supervisors and contractors were performing work ordinarily done by Local 12004 members. The purpose of these worksite picket lines was "to convince the [] supervisors and contractors not to perform work and services for ComGas that were considered to be bargaining unit work."

One of the ComGas supervisors assigned to perform this bargaining-unit work was Peter McGrath. McGrath, who is gay, was ordinarily employed as a manager for commercial and industrial sales at the company's Southboro, Massachusetts headquarters. Shortly after the lockout began, ComGas instructed McGrath to assist a distribution crew in Worcester, Massachusetts. The distribution crew was charged with investigating and repairing underground gas leaks in the Worcester area, work normally done by Local 12004 members.

When McGrath's crew started this work, Local 12004 members followed the crew and picketed its worksites. The picket lines were rowdy and vulgar. The Union's complaint candidly describes the pickets' behavior: "The locked out employees would comment on how fat the scabs were, their lack of intelligence, what kinds of families they must have come from, their lack of sexual prowess, and their sexual orientation." All of this, according to the Union, was calculated to persuade the distribution crew, including McGrath, not to perform bargaining-unit work during the lockout.

On May 7, 1996, McGrath filed an action in Massachusetts Superior Court against the Local 12004 members who had shouted sexually derogatory comments at him, asserting both Massachusetts common law and statutory claims. According to the Union, ComGas funded McGrath's state lawsuit and even provided an attorney to represent him. Approximately one month later, McGrath filed a verified complaint against the same Local 12004 members in the MCAD alleging discrimination on the basis of sexual orientation. Unusually, the literal terms of the Massachusetts employment discrimination statute appear to extend to discrimination by lower-ranked union employees against a supervisor in this context.1 The lockout ended on September 8, 1996, when ComGas and Local 12004 agreed to a new collective bargaining agreement. The pickets went back to work and McGrath was subjected to no further abuse or harassment. Nothing had yet happened in McGrath's state court litigation, and McGrath voluntarily dismissed that complaint. The voluntary dismissal, it seems, was part of a general settlement between ComGas and Local 12004 in which each side agreed to encourage its members to dismiss pending judicial complaints based on the dispute.

McGrath did not, however, withdraw his MCAD complaint. On the contrary, McGrath filed a new verified complaint with the MCAD in November 1996, this time including Local 12004 itself and one more individual member (Thomas Nugent) as additional respondents. The complaint alleged that Local 12004 members had subjected McGrath to a "continuing pattern of speech and behavior ... which is intimidating, threatening and harassing, and which constitutes discrimination based on sex and sexual orientation." It further alleged that Local 12004's leadership was aware of the pickets'"unlawful" behavior and failed to take any action to prevent it. According to the Union, ComGas funded McGrath's MCAD complaint despite the end of the lockout and continued to fund the litigation through 2000.

McGrath's two MCAD complaints describe in detail the verbal abuses to which he was subjected. Most were simply crude remarks on his sexual orientation.2 However, several comments involved what McGrath says are false and potentially damaging assertions — for example, "Hey, watch out, he's got AIDS, he has probably given half you guys AIDS by now," and "Look how small these guys are. You look like little boys. You and Pete [McGrath] should get together because he likes little boys." In addition, several of the comments involved physical threats. Some of these were only vaguely threatening, and may or may not have been intended as threats of violence (e.g., "Do you want some K-Y up that hole, sweetie?" or "I might like a piece of that ass myself").

Two incidents described in the MCAD complaints, however, involved apparently dangerous and threatening conduct. On April 7, 1996, several Local 12004 members allegedly chased McGrath in their vehicles for several miles. When they finally caught him, they banged on the side of McGrath's vehicle, pushed the side-view mirror into the window, and shouted threats that included "We will put you in a box" and "I will pull your mustache off, you faggot." On another occasion, an unidentified Local 12004 member poured a liquid onto McGrath's back, causing a burning sensation.

The Union and its members say they filed a motion to dismiss the MCAD complaint on preemption grounds shortly after the complaints were filed. In any event, over two years later, on July 9, 1999, an investigating commissioner of the MCAD issued a probable cause finding3 against the Union and ordered that the case proceed to a public hearing. The commissioner certified three questions to the full Commission for determination, including: "Is the complaint pre-empted by the National Labor Relations Act as interpreted in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)?"4

The full Commission answered the certified questions on December 11, 2001, holding that MCAD's jurisdiction to adjudicate McGrath's complaint was not preempted by Garmon. The Commission acknowledged that, under Garmon, states have no authority to regulate conduct that is arguably protected under §7 or arguably prohibited under § 8 of the National Labor Relations Act (NLRA). Cf. Garmon, 359 U.S. at 245-47, 79 S.Ct. 773. Nevertheless, the Commission held that McGrath's allegations of harassment and threats of violence implicated the Commonwealth's " compelling state interest in the maintenance of domestic peace," an interest that the Garmon Court recognized as a legitimate basis for state regulation. Cf. id. at 247, 79 S.Ct. 773. Further, the Commission held that it was not barred from considering the Union's less threatening verbal abuses of McGrath because, the Commission concluded, the NLRA does not protect racial, ethnic, or homophobic slurs. It also found that McGrath could not have complained about the conduct to the NLRB.5 Lastly, the Commission concluded...

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