International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination

NOTICE: All slip opinions and orders are subject to formal

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23-P-83 Appeals Court

INTERNATIONAL LONGSHOREMEN ASSOCIATION, LOCAL 1413-1465 vs.

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.1

No. 23-P-83.

Bristol. October 6, 2023. – April 3, 2024.

Present: Green, C.J., Milkey, & Grant, JJ.

Anti-Discrimination Law, Sex. Employment, Discrimination.

Massachusetts Commission Against Discrimination. Labor,

Fair representation by union. Administrative Law,

Substantial evidence. Damages, Under anti-discrimination

law, Emotional distress. Emotional Distress. Labor,

Federal preemption. Jurisdiction, Federal preemption.

Federal Preemption. Practice, Civil, Judgment on the

pleadings, Waiver. Waiver.

Civil action commenced in the Superior Court Department on

July 22, 2020.

The case was heard by Renee P. Dupuis, J., on motions for

judgment on the pleadings.

Scott W. Lang for the plaintiff.

Peter M. Mimmo for Massachusetts Commission Against

Discrimination.

The following submitted briefs for amici curiae:

1 April L. Robar.

2

Andrea Joy Campbell, Attorney General, & Jessica Rahmoune &

Douglas S. Martland, Assistant Attorneys General, for the

Commonwealth.

James A.W. Shaw & Ryan M. Quinn for Massachusetts AFL-CIO.

Joseph L. Sulman for Massachusetts Employment Lawyers

Association.

MILKEY, J. Women have been employed at the Port of New

Bedford for years. However, their work there traditionally was

confined to certain jobs that were viewed as low-level. Over

time, some women began to seek other positions at the port,

including that of forklift operator, a position that

traditionally had been staffed only by men. Such efforts were

rebuffed by the International Longshoremen Association, Local

1413-1465 (union), which ran the hiring process through which

workers were selected for available positions. In 2009, April

Robar filed a complaint with the Massachusetts Commission

Against Discrimination (commission) alleging that the union had

engaged in sex discrimination against her.

Specifically, Robar alleged that she was passed over for

work as a forklift operator in favor of men who not only were

less qualified than she was, but who -- unlike her -- lacked a

mandatory qualification for the position. When given the

opportunity to respond, the union's then-treasurer (later

president and business agent), Edmond Lacombe, supplied a

written statement that proved unhelpful to the union's defense.

Specifically, among other things, he recounted that the women

3

who were hired for the traditionally female positions "did not

complain"; rather, "[t]hey, more or less, knew their place when

work was issued and accepted the outcome."

Following an adjudicatory hearing, a hearing officer found

that the union had discriminated against Robar based on her sex.

The full commission upheld the hearing officer's decision, as

did a Superior Court judge. In this further appeal, the union

challenges the commission's decision on the merits and

additionally argues that it is preempted by various Federal

labor laws.2 We affirm.

Background.3 The freight terminal in New Bedford Harbor is

operated by Maritime International, Inc. (Maritime). Maritime

and the union entered into a collective bargaining agreement

(CBA) under which the union was given the role of referring

interested workers for available work. Strictly speaking,

Maritime retained final hiring rights, but, as a practical

matter, it was the union that selected who would be hired among

the union members and nonunion workers who would show up at the

docks each morning to fill open positions. This process is a

2 We acknowledge the amicus letter submitted by the

Commonwealth and the amicus briefs submitted by the

Massachusetts AFL-CIO and the Massachusetts Employment Lawyers

Association.

3 Our recitation of the facts is based on the findings made

by the hearing examiner.

4

form of what is known as a "hiring hall," and specifically is

known as a "shape up" in the maritime industry. At the shape

ups, union members were selected first based on the order of

their seniority in the union, and according to the testimony of

union members, only then would nonunion workers be hired for the

remaining jobs. As of 2009, there were no female members of the

union.

The CBA included some specific requirements for different

dock positions. For example, consistent with regulations issued

by the Occupational Safety and Health Administration (OSHA), see

29 C.F.R. § 1910.178(l), all forklift operators were required to

have a forklift safety certificate issued by Maritime.

In 2004, Robar started working at the Maritime terminal as

a nonunion "wrapper/stamper" on fish boats. That job involved

wrapping pallets of fish in plastic sheeting and stamping boxes

of fish. It was viewed as an undesirable position that

typically was staffed only by women. The union selected men for

such positions only if there were not enough women to fill the

positions.

Over time, the types of boats serviced at the terminal

shifted. The number of fish boats decreased, leaving available

work mostly confined to fruit boats, which did not need

wrapper/stampers. Robar and other workers testified that they

5

had never seen any women hired for off-loading the fruit boats.

There was no evidence to the contrary.

Because there were fewer available jobs on fish boats, and

in order to seek better working conditions, Robar sought work at

the terminal as a forklift operator. She already had received

an OSHA-mandated forklift safety certificate from a previous

employer, and she obtained one from Maritime as well.4 In her

spare time, she also availed herself of the opportunity to

undergo informal practical training to learn how to operate

forklifts on the docks. There was testimony from a union member

that Robar did an "outstanding job" in operating a forklift on

the docks.

Despite Robar's qualifications and efforts to obtain work

as a forklift operator, she was denied the position five

separate times by the union officials running the shape up,

4 In the wake of security concerns raised by the attacks of

September 11, 2001, dock workers also were required to obtain a

"transportation worker identification credential" (known as a

TWIC card). In fact, Robar went through proper procedures and

obtained a TWIC card. The union points out that given problems

that many dock workers faced in obtaining TWIC cards, the

requirement that they hold one was softened so as to allow non-

cardholders to continue working without one so long as the ratio

of TWIC cardholders to non-cardholders was at least 1:5. Thus,

although Robar's being hired did not depend on her holding a

TWIC card, her having one was, if anything, a net plus to the

union. After all, the union had an express obligation under the

CBA to "ensure that a sufficient number of employees hired

possess a TWIC as required by the Department of Homeland

Security."

6

including then-vice president (later president and business

agent) Joseph Fortes. On one of these occasions, Fortes chose

two male nonunion workers instead of Robar despite the fact that

they lacked the required safety certificate. In response to

Robar's anger at being passed over, she received a simple

explanation: "We don't pick ladies here working on the fruit

boats." The comment was made by a union member who was standing

directly in front of Fortes at the time. Fortes chastised the

speaker for making the comment: "No, no, no, don't say that.

We don't do that, we don't say that here." When Robar sought

work for an available forklift position at another shape up,

Fortes told her to go home to retrieve a copy of her forklift

certification from her previous employment (even though she also

had one from Maritime), and then he hired a man in her place as

soon as she left to retrieve the unnecessary document.

On November 25, 2009, Robar lodged a complaint with the

commission alleging, in pertinent part, sex discrimination by

the union pursuant to G. L. c. 151B, § 4.5 Among the exhibits

Robar submitted to the commission were documents related to a

5 Robar also initially brought a race discrimination claim

against the union, which was dismissed by the commission for

lack of probable cause. In addition, she brought a retaliation

claim that she eventually abandoned. Although she initially

cited to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., in addition to State law, she no longer presses

that as an independent source of authority.

7

sex discrimination proceeding that the National Labor Relations

Board (NLRB) had initiated based on a request made by a female

coworker.6 Robar also included evidence that shortly after the

NLRB issued a complaint against the union, the union

dramatically changed its membership requirements so as to make

it much more difficult to join the union. Specifically, prior

to the change, one could join the union after having accumulated

300 total hours of dock experience. Afterwards, not only were

400 hours of experience needed, but those hours had to have been

incurred during the previous fiscal year. Notwithstanding that

change, the union subsequently admitted five men to the union

who had not completed the requisite 400 hours of work during the

previous year.

After two days of testimony, the hearing officer found that

the union had discriminated against Robar during shape ups based

on her sex. The hearing officer pointed to indirect evidence of

bias, such as the union's passing over Robar, despite her

qualifications, in favor of men who lacked a mandatory safety

certificate. She also pointed to direct evidence of bias, such

as the comment by then-union treasurer Lacombe about a time when

6 The specific manner in which the NLRB complaint involving

the coworker was resolved is not clear on the record before us.

There is a suggestion in the record that the case settled and

that the coworker "beat the case or whatever and they paid her

money."

8

women "knew their place." By way of relief, the hearing officer

awarded Robar $50,000 for emotional distress and directed the

union to confer union membership on Robar retroactive to October

1, 2009, including "whatever pension, death, and other benefits"

would have accrued since then. The union appealed the hearing

officer's finding on discrimination, and in June 2020, the full

commission upheld the hearing officer’s decision.

In July 2020, the union filed a complaint for judicial

review of the commission's decision in the Superior Court, and

the commission filed a counterclaim seeking enforcement of that

decision. See G. L. c. 30A, § 14. After the parties filed

cross motions for judgment on the pleadings, a Superior Court

judge ruled in the commission's favor on January 3, 2022.

Amended final judgments entered on July 13, 2022.7

Discussion. 1. Merits. On appeal, we review the

commission's decision in accordance with G. L. c. 30A,

§ 14 (7) (c), giving deference to the hearing officer's role as

fact finder. See Smith College v. Massachusetts Comm'n Against

7 The Superior Court judge initially issued a judgment that

simply dismissed the union's complaint. Pointing out that it

had brought a counterclaim seeking enforcement of its order, the

commission requested that two separate judgments be entered

reflecting the awards specific to the commission and to Robar.

The judge followed that requested course of action even though

it is axiomatic that, barring the invocation of Mass. R. Civ. P.

54 (b), 365 Mass. 820 (1974), there should never be more than

one final judgment in a civil case. See Pantazis v. Mack

Trucks, Inc., 92 Mass. App. Ct. 477, 478 n.4 (2017).

9

Discrimination, 376 Mass. 221, 224 (1978). Many of the union's

appellate arguments relate to the hearing officer's credibility

determinations. The union maintains that the hearing officer

erred both in crediting the commission's witnesses despite

reasons to consider them biased, and in failing to credit the

union's witnesses, who it claims were trustworthy. Such

arguments warrant little discussion because credibility findings

are for the hearing officer to make. See Ramsdell v. Western

Mass. Bus Lines, Inc., 415 Mass. 673, 676 (1993). In addition,

we note that our review of the record reveals that the hearing

officer displayed an even-handed approach, which undercuts the

union's intimations of bias. For example, when the commission

objected to examination by union counsel that sought to explore

potential bias of one of the commission's witnesses, the hearing

officer overruled that objection.

Nor is there any merit to the union's argument that the

hearing officer's findings should be put aside on the ground

that she misunderstood the working conditions and union hiring

rules in the Port of New Bedford. As evidence of her lack of

understanding, the union points to various requests that the

hearing officer made for clarification. Far from evincing her

ignorance of the issues, such requests demonstrate her

conscientious efforts to make sure she understood them. In the

end, the union lost not because the hearing officer

10

misunderstood the reasons why Robar was passed over for the

available forklift positions, but because the hearing officer

did not credit the union's explanation.8 There was ample support

in the record for the hearing officer's findings and rulings,

even apart from the direct suggestions of bias inherent in

statements made by union members or officials.9 We discern no

error in the hearing officer's application of the traditional

three-stage test regarding how discrimination claims can be

established. See Abramian v. President & Fellows of Harvard

College, 432 Mass. 107, 116 (2000). There was evidence credited

by the hearing officer that Robar was qualified to be hired as a

forklift operator and that the union treated her differently

8 We acknowledge that, while requiring that all forklift

operators have a forklift safety certificate, the CBA declares,

in highlighted text, that "the forklift safety certificate is

not a license and is not a measure of qualification to operate a

forklift." Thus, a forklift safety certificate is a necessary,

but not a sufficient, test that someone is qualified to operate

a forklift. We do not view the hearing officer's decision as

misunderstanding that point, or as dependent on viewing it as

such.

9 The union seeks to discount the import of the "[w]e don't

pick ladies here [for] working on fruit boats" comment on the

ground that it came from a mere union member, not a union

official in charge of the shape up. It also argues that Fortes,

who was then union vice president, immediately objected to the

comment when it was made. In context, however, Fortes's

reaction can be seen not as disavowing the substance of the

comment but as chastising the speaker for saying it out loud.

In any event, we need not resolve whether there was adequate

direct evidence of discrimination on its own, in light of the

fact that the hearing officer adequately based her finding of

prima facie discrimination on circumstantial evidence.

11

from men even when they lacked a mandatory qualification for the

position, without any credible explanation for the disparate

treatment. Nothing more is required. See Blare v. Husky

Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-445

(1995) ("once a plaintiff has established a prima facie case and

further shows . . . that the employer's articulated reasons are

a pretext . . ., the plaintiff is entitled to recovery for

illegal discrimination under G. L. c. 151B").

In addition to arguing that the hearing officer's decision

was not supported by substantial evidence, the union challenges

the particular relief that she ordered, including the award for

emotional distress damages, the civil penalty imposed on the

union, and the order to grant Robar union membership, on the

grounds that these damages were arbitrary, capricious,

unsupported by the evidence, and not in accordance with the

law.10 We disagree.

"Emotional distress damage awards, when made, should be

fair and reasonable, and proportionate to the distress

10The union also challenges the commission's award of

$50,645.47 in legal fees, which amounted to ninety percent of

the fees requested, as excessive. However, that claim is

unsupported by legal argument demonstrating how the award is

excessive. We therefore defer to the commission's expertise and

uphold the award. Fontaine v. Ebtec Corp., 415 Mass. 309, 324

(1993) (commission is in "best position to determine how much

time was reasonably spent on a case, and the fair value of the

attorney's services").

12

suffered." Stonehill College v. Massachusetts Comm'n Against

Discrimination, 441 Mass. 549, 576, cert. denied sub nom.

Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against

Discrimination, 543 U.S. 979 (2004). To award such damages, the

hearing officer must find that the complainant suffered

emotional distress as a result of the respondent's unlawful act.

Id. In this case, the hearing officer found that Robar

testified credibly and "with great persuasiveness" that she felt

hurt, upset, and like a second-class citizen when the union did

not hire her as a forklift operator. Robar also testified that

she continued to feel upset by the discrimination years

afterward, stating that the union's refusal to give her a chance

made her feel "unworthy and unqualified," led to her low self-

esteem, and made her afraid to talk to her male supervisor at

the dock. As the finder of fact, the hearing officer was

permitted to credit Robar's testimony and evaluate the level of

emotional distress Robar suffered. Therefore, the hearing

officer's emotional distress award is proportionate to the

injury Robar suffered and supported by substantial evidence.

In imposing the maximum civil penalty of $10,000, the

hearing officer cited the "egregious nature" of the union's

conduct, finding that the union engaged in "concerted activity"

to deprive Robar of the benefits of union membership. Given

that the union increased its membership work requirement from

13

300 hours total to 400 hours in a single fiscal year shortly

after the NLRB filed a discrimination complaint against it, yet

subsequently granted membership to men who had not fulfilled

that increased hour requirement, we conclude that the hearing

officer's rationale for imposing the maximum penalty was also

supported by substantial evidence.

We also discern no error in the hearing officer's order to

grant Robar union membership. While it is undisputed that Robar

had accrued only 179.5 hours of work between 2004 and 2009, the

hearing officer found that this was a direct result of the

union's discriminatory treatment of Robar.11

2. Preemption. a. Waiver. The union now argues that the

commission's claims against it are preempted by three different

Federal labor laws: § 301 of the Labor Management Relations Act

(LMRA), 29 U.S.C. § 185; the Employment Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.; and §§ 7

and 8 of the National Labor Relations Act (NLRA), 29 U.S.C.

§§ 157-158. None of these arguments was raised to the

11The union's suggestion that the hearing officer's finding

as to when Robar would have accumulated the hours necessary for

union eligibility depended on subsequent work she performed at

the Port of Providence, Rhode Island, is insufficient to

demonstrate a lack of substantial evidence. The hearing officer

relied primarily on the fact that Robar was not chosen over

similarly qualified individuals and that the union granted

membership to five men who had not reached the new 400-hour

requirement.

14

commission. Nor did the union raise them to the Superior Court

judge during its briefing of the merits or at the hearing on the

cross motions for judgment on the pleadings.12 Accordingly, we

must first decide whether the union waived its preemption

arguments by not raising them in a timely manner, or whether

such arguments instead go to subject matter jurisdiction and

therefore can be raised at any time. Compare Albert v.

Municipal Court of Boston, 388 Mass. 491, 493 (1983) (arguments

not raised to agency during adjudication are waived except in

exceptional circumstances), with Commonwealth v. DeJesus, 440

Mass. 147, 151 (2003) (arguments based on subject matter

jurisdiction can be raised at any point).

Whether a defense based on Federal preemption can be waived

is itself a question of Federal law. See International

Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 388 (1986)

(Davis) ("Pre-emption . . . is always a federal question").

Because the answer to that question ultimately turns on

congressional intent, it may vary depending on the Federal

statute at issue. See id. at 391 n.9 (jurisdictional preemption

applies to claims "that go to the State's actual adjudicatory or

12The union argued preemption by the LMRA and ERISA for the

first time during the dispute over the form of the judgment,

that is, after the judge already had denied the union's motion

for judgment on the pleadings and allowed the commission's cross

motion. The union argued preemption under the NLRA for the

first time in the appeal before us.

15

regulatory power as opposed to the State's substantive laws").

Case law establishes that arguments that State claims have been

preempted by the LMRA and ERISA are subject to waiver. See,

e.g., Sweeney v. Westvaco Co., 926 F.2d 29, 38-41 (1st Cir.)

(Breyer, C.J.), cert. denied, 502 U.S. 899 (1991) (§ 301 of LMRA

is not jurisdictional and arguments based on it can be waived);

Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 217 ("an

ERISA preemption claim is treated as a waivable affirmative

defense"). Because it is uncontested that the union did not

timely raise its LMRA and ERISA preemption defenses, those

defenses have been waived.13

A different result applies to the commission's argument

that the union waived its preemption defense under the NLRA, at

least to the extent such arguments are based on §§ 7 and 8 of

that statute. This type of preemption -- which has become known

13Even if the union's LMRA preemption argument had not been

waived, we would agree with the commission's argument that the

CBA was not central to the hearing officer's finding of

discrimination. See Lingle v. Norge Div. of Magic Chef, 486

U.S. 399 (1988) (State claim not preempted because resolution

not dependent on interpretation of collective bargaining

agreement, even if claim could have been brought under

agreement). See also Ralph v. Lucent Techs., Inc., 135 F.3d

166, 171 (1st Cir. 1998), citing Livadas v. Bradshaw, 512 U.S.

107, 123-124 (1994) (no preemption under § 301 of LMRA because

"plaintiff's rights under state and federal statutes . . . exist

independently of the collective bargaining agreement and do not

require interpretation of that agreement"). We express no view

on the viability of the union's waived ERISA preemption

argument.

16

as Garmon preemption -- is based on the theory that Congress

gave the NLRB exclusive jurisdiction over certain kinds of labor

disputes. See San Diego Bldg. Trades v. Garmon, 359 U.S. 236

(1959) (if claim before State or Federal court arises from

"activity . . . arguably subject to § 7 or § 8 of the [NLRA]

. . . courts must defer to the exclusive competence of the

[NLRB]"). The Supreme Court has specifically held that Garmon

preemption, if it applies, cannot be waived. See Davis, 476

U.S. at 393. We therefore turn to the union's argument that

such preemption applies here.

b. Preemption by the NLRA. Garmon preemption is often

portrayed as considerably broad, characterized as applying

whenever conduct is "arguably subject to § 7 or § 8 of the

[NLRA]." Garmon, 359 U.S. at 245. Nevertheless, case law long

has recognized some exceptions to that sweep. The Supreme Court

itself has acknowledged that Garmon preemption does not preclude

claims that are based on conduct that was "merely a peripheral

concern of the [NLRA] . . . [or] touched interests so deeply

rooted in local feeling and responsibility that, in absence of

compelling congressional direction, [the Court] could not infer

that Congress had deprived the States of the power to act."

Farmer v. United Bhd. of Carpenters & Joiners of Am. Local 25,

430 U.S. 290, 296-297 (1977), quoting Garmon, supra at 243-244.

17

Thus, a two-part analysis applies: whether the underlying

claim involves activity that is arguably subject to § 7 and § 8

of the NLRA, and if so, whether that claim nevertheless falls

within the "peripheral concern" or the "local interests"

exceptions to Garmon preemption. Farmer, 430 U.S. at 296. We

agree with the union insofar as it argues that the

discrimination that the commission alleged the union engaged in

while operating its shape ups at the dock is "arguably

prohibited by §§ 8(b)(1) and 8(b)(2) of the NLRA" and therefore

potentially fits within the sweep of Garmon preemption. Sears,

Roebuck & Co. v. San Diego County District Council of

Carpenters, 436 U.S. 180, 196 (1978). See Farmer, supra at 303

n.11 ("Discrimination in hiring hall referrals constitutes an

unfair labor practice under §§ 8[b][1][A] and 8[b][2] of the

NLRA"). This conclusion is reinforced by the fact that the NLRB

assumed jurisdiction over a complaint based on essentially the

same claims that one of Robar's coworkers filed.

The second step in the analysis is controlled by

Massachusetts Elec. Co. v. Massachusetts Comm'n Against

Discrimination, 375 Mass. 160, 174 (1978). There, the Supreme

Judicial Court held that "State antidiscrimination statutes are

not preempted by Federal labor law [including the NLRA]." Id.

The court reasoned that discrimination falls within the

"peripheral concern" exception to Garmon preemption. Id.

18

Despite the age of this case, it remains good precedent binding

on us. See Driscoll v. Carpenter's Council of W. Pa., 525 Pa.

205, 213 (1990) (State discrimination claim against union not

barred even though NLRB could have pursued matter as unfair

labor practice pursuant to NLRA). Thus, while it is not too

late for the union to argue that Garmon preemption bars the

commission's case, we hold that it does not.

In its amicus brief, the Massachusetts AFL-CIO (AFL-CIO)

argues that the type of discrimination alleged here perhaps best

can be characterized as a violation of the union's "duty of fair

representation," a doctrine that imposes on unions the

obligation to fairly represent all employees, whether members of

the union or not, "without hostility or discrimination toward

any." Vaca v. Sipes, 386 U.S. 171, 177 (1967). Because the

NLRB plainly has authority to enforce the duty of fair

representation pursuant to § 9 of the NLRA, 29 U.S.C. § 159, the

AFL-CIO argues that the commission's claims here may be

preempted even apart from Garmon preemption, which is based on

§§ 7 and 8 of the NLRA. We are unpersuaded that this helps the

union here. Neither the union nor the AFL-CIO has provided a

convincing reason why any preemption implicated by the duty of

fair representation should be viewed as broader than Garmon

preemption. To the contrary, the cases establish that in light

of the history of the duty of fair representation -- which first

19

arose as a judicially created construct -- the NLRB's authority

to enforce that duty has never been viewed as exclusive. See

Leahy v. Local 1526, Am. Fed'n of State, County, & Municipal

Employees, 399 Mass. 341, 346-347 (1987), citing Vaca, supra at

186. Relatedly, it follows that a claim of preemption based on

the NLRB's authority to enforce the duty of fair representation

-- unlike Garmon preemption -- can be waived. Accordingly, to

the extent that the union seeks to argue that the commission's

case is preempted based on a form of preemption that extends

beyond Garmon preemption, such arguments have been waived.

Amended final judgments

affirmed.