Martin v. Shaw's Supermarkets, Inc.

• Decision Date: 08 January 1997
• Docket Number: No. 96-1863,96-1863
• Citation: 105 F.3d 40
• Parties: 154 L.R.R.M. (BNA) 2257, 65 USLW 2528 Theresa MARTIN, Plaintiff, Appellant, v. SHAW'S SUPERMARKETS, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 40

105 F.3d 40

154 L.R.R.M. (BNA) 2257, 65 USLW 2528

Theresa MARTIN, Plaintiff, Appellant, v. SHAW'S SUPERMARKETS, INC., Defendant, Appellee.

No. 96-1863.

United States Court of Appeals, First Circuit.

Heard Jan. 8, 1997.

Decided Jan. 28, 1997.

Scott W. Lang, New Bedford, MA, with whom Susan Forgue Weiner and Lang, Xifaras & Bullard, P.A., New Bedford, MA Lisa M. Sheehan, Plympton, MA, Kate Mitchell & Associates, Betsy L. Ehrenberg and Angoff, Goldman, Manning, Pyle & Wanger, P.C., Boston, MA, were on briefs for appellant.

Betsy L. Ehrenberg with whom Harold L. Lichten and Angoff, Goldman, Manning, Pyle & Wanger, P.C., Boston, MA, were on brief for United Food and Commercial Workers Local Union 791 and National Employment Lawyers Association, Massachusetts Chapter, Amici Curiae.

Duane R. Batista with whom Sharon R. Burger and Nutter, McClennen & Fish, L.L.P., Boston, MA, were on brief for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

This case, presenting a difficult preemption issue, began in January 1996 when Theresa Martin sued Shaw's Supermarkets, Inc., in Massachusetts state court for alleged violations of state employment-compensation laws. Martin, an employee of Shaw's since 1979, had injured her back in August 1994 while working as a bakery clerk. In September 1994, she began receiving workers' compensation benefits for temporary total disability. Mass.Gen.Laws ch. 152, § 34.

In March 1995, Shaw's requested that Martin's physician, Dr. James Coleman, establish any necessary work restrictions for Martin. Coleman gave Shaw's a list of physical restrictions and indicated that Martin could return to work if these restrictions were respected. Shaw's then asked Martin to see a second doctor. Based on the second examination, Shaw's offered Martin four weeks of modified duty, to be followed by return to her former position without restrictions.

Martin did not return to work. Instead, through her attorney, she again asked for a position fitting the restrictions set by Coleman. Shaw's responded by again offering Martin her former position with no restrictions. When discussion failed to resolve the matter, Shaw's sent Martin a letter in September 1995 informing her that she was terminated. The letter referred to Shaw's "policy and contract language concerning extended periods of absence."

On October 19, 1995, Martin reapplied for full-time employment with Shaw's, requesting a position with duties modified as Coleman had recommended. Shaw's did not respond. Later in the month, 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 later, Martin filed the present action in Massachusetts state court, claiming that Shaw's had violated Mass.Gen.Laws ch. 152, §§ 75A, 75B(2), by failing to rehire her. These sections provide, respectively, that an employee who lost her job as a result of compensable injury must be given rehiring preference by the former employer over nonemployee applicants, id. § 75A, and that no employer may refuse to hire an employee because she asserted a workers' compensation claim, id. § 75B(2). Martin's suit did not contest Shaw's right to discharge her in the first instance.

In March 1996, Shaw's removed the action to federal court, premising jurisdiction under 28 U.S.C. § 1331, and moved to dismiss, Fed.R.Civ.P. 12(b)(6). The district court granted Shaw's motion, agreeing that Martin's claims were preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Martin now appeals this ruling. The sole issue on appeal is whether section 301 preempts Martin's state-law claims. ¹

Section 301 modestly provides only that "[s]uits for violation of contracts between an employer and a labor organization representing employees ... may be brought in any district court of the United States having jurisdiction of the parties...." 29 U.S.C. § 185. But jurisdiction begat substantive authority. In Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957), the Supreme Court ruled that this section "authorizes federal courts to fashion a body of federal law for the enforcement of ... collective bargaining agreements."

In turn, substantive authority gave rise to preemption. In Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962), the Supreme Court held that state law is displaced when courts are "called upon to enforce" collective bargaining agreements, because those agreements should be governed by federal doctrine, rather than varying state contract-law principles. Then, two decades later, the Supreme Court said that "the preemptive effect of § 301 must extend beyond [state-law] suits alleging contract violations." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985).

Just how far beyond has never been precisely settled. Allis-Chalmers preempted a state-law tort claim closely relating to the handling of a labor-agreement grievance. Shortly thereafter the Court declared that state-law claims--seemingly of whatever character--are preempted if they "require construing the collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988). Yet recently, the Supreme 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, 512 U.S. 107, 123, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994).

Nevertheless, Livadas repeated the basic test laid down by Lingle--namely, that section 301 preempts a state-law claim wherever a court, in passing upon the asserted state-law claim, would be required to interpret a plausibly disputed provision of the collective bargaining agreement. Id. At first blush, this might seem a puzzling test: both state and federal courts have authority to enforce collective bargaining agreements, and so to interpret their provisions. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 506, 82 S.Ct. 519, 522, 7 L.Ed.2d 483 (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 the arbitration process would be undermined, and there might be divergent readings of the labor agreement and interference with the grievance process itself. Livadas, 512 U.S. at 122-24, 114 S.Ct. at 2078; Allis-Chalmers, 471 U.S. at 219, 105 S.Ct. at 1915. Such an arbitration clause is present in this case.

We thus begin by asking, as we have done in the past, e.g., Quesnel v. Prudential Ins. Co., 66 F.3d 8, 10-11 (1st Cir.1995), whether resolution of Martin's claims would require an interpretation of the collective bargaining agreement. Our premise is that this means a real interpretive dispute and not merely a pretended dispute. Indeed, the Supreme Court has said that the need merely to refer in passing to the agreement will not necessarily preempt. Livadas, 512 U.S. at 122-24, 114 S.Ct. at 2078.

Martin has alleged violations of Mass.Gen.Laws ch. 152, §§ 75A, 75B(2). Section 75A creates a priority for 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.

The relevant portion of section 75B(2)--a conventional prohibition against retaliation--states that "[n]o employer ... shall ... refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this [workers compensation] chapter."

If the statutes stopped here, this might be a different case. But both statutory sections also contain a proviso that "[i]n the event any right set forth in this section is inconsistent with an applicable collective bargaining agreement," the agreement shall prevail. Id. §§ 75A, 75B(3). Shaw's argues that both of Martin's statutory claims are inconsistent with the labor agreement; that resolution of this "inconsistency" charge requires interpretation of the agreement; and that the claims are therefore preempted under the Supreme Court's own rubric.

It is very doubtful whether, without this last-quoted proviso, Shaw's would have any plausible claim of federal preemption. Massachusetts has an independent interest in regulating injury compensation; and apart from the proviso, the elements of both Martin's state-law claims appear to be independent of bargaining agreement provisions. 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.

Rather, Shaw's argues that Massachusetts has as a matter of state law chosen to make the substantive rights conferred by the statutes depend upon their not being "inconsistent" with a labor agreement. This court endorsed just such a reading 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 (1st Cir.1990). And Magerer merely holds Massachusetts to the literal wording of its own statute.

The question remains whether Shaw's labor agreement is colorably inconsistent with Martin's state-law claims. Shaw's best argument rests upon the agreement's "management rights" clause, which states that Shaw's has the "sole right to manage its business including ... the right[ ] ... to hire, assign and promote...