Petition for Writ of Certiorari — Martin v. Shaw's Supermarkets, Inc.
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FILED
In The = oFFICE OF 3 CLERK
Supreme Court of the Anited States
October Term 1996
(\ No.
THERESA MARTIN,
Petitioner,
v.
SHAW'S SUPERMARKETS, INC.,
Respondent.
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the First Circuit.
PETITION FOR WRIT OF CERTIORARI
Scott W. Lang
Counsel of Record
Susan Forgue Weiner
Lang, Xifaras & Bullard, P.A.
115 Orchard Street
New Bedford, Ma 02740
(508) 992-1270
Betsy L. Ehrenb2rg
Angoff, Goldman, Manning, Pyle &
Wanger, P.C.
24 School Street
Boston, Massachusetts 02108
Marsha S. Berzon
Altshuler & Berzon
177 Post Street, Suite 800
San Francisco, California 94108
Attorneys for Petitioner
IIIa lll J
APPELLATE SERVICE: CURRY & TAYLOR (215) 241-9764 \
QUESTIONS PRESENTED
I. Does a state workers compensation statute that permits
parties to collectively bargain to opt-out of certain of the
statute's terms, require pre-emption under Section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185, of
any claim against a unionized employer because the
employer asserts that the collective bargaining agreement
may provide a defense to the claim?
If.Are a_ state's statutory protections for individual
attempting to return to employment from industrial injury
enforceable by former members of a collective bargaining
unit, or, as to such persons, are those protections
pre-empted by Section 301 of the Labor Management
Relations Act, 29 U.S.C. § 185, whenever a defendant
asserts a defense based on the existence of a collective
bargaining agreement?
III. Can a state law claim for protection filed exclusively
under a state worker's compensation statute, by a piaintiff
who is neither covered by a collective. bargaining
agreement, nor a member of the collective bargaining unit
at the time her state law claims arose, be removed to
federal court by the defendant's mere invocation of the
existence of a collective bargaining agreement?
IV. Does pre-emption under Section 301 of the Labor
management Relations Act pre-emption, 29 U.S.C. § 185,
properly apply to remove, and extinguish the state law
claims of a plaintiff, thereby leaving her with no remedy, as
she was neither covered by a collective bargaining
agreement, nor was a member of a collective bargaining
unit at the time her state law claims arose?
-ii-
TABLE OF CONTENTS
TABLE, OF ANSE RGR RI occ cccccccccsccccsccscsseess Vv
QUESTIONS PRESEING BD ocscces vcsccccceccce ccscngen 1
PETITION FOR WRIT OF CERTIORARI ............ 1
CUI III eigen ac o cp a soncsesnnatnusd 1
ei halen cia he entids ssp yn sehaein 2
STATUTORY PROVISIONS INVOLVED ............. 2
STATEMENT OF THEE CASE ..... cc ccccccscsccccccece 4
RR «ashi vne nese 0th IRN PI HE 4
The District Court Proceedings ..................044. 6
The First Circuit's Decision On Appeal .............. 6
Reasons For Granting The Writ ........................ 8
I. THE COURT OF APPEALS' RULING IN
THIS CASE PERPETUATES A SPLIT IN THE
CIRCUITS ON THE IMPORTANT MATTER
OF SECTION 301 PRE-EMPTION OF STATE
GRANTED EMPLOYMENT RIGHTS. .............. 8
The Conflict Over The Pre-Emptive Effect, If
Any, Of State Statutory Provisions Deferring To
Collective Bargaining Agreements. ................. 13
II. THE FIRST CIRCUIT'S DECISION
INTERPRETS THE MASSACHUSETTS
STATUTE TO PENALIZE INDIVIDUALS FOR
THEIR EXERCISE OF COLLECTIVE
BARGAINING RIGHTS BY WITHDRAWING
FROM SUCH PERSONS THE LAW'S
PROTECTIONS AND THUS CONFLICTS
WITH PRIOR DECISIONS OF THIS COURT. .... 16
-iii-
Il. THE FIRST CIRCUIT'S DECISION
CONTINUES THE DISARRAY IN THE
CIRCUITS OVER WHETHER SECTION 301
PRE-EMPTION ARISES ONLY WHEN AN
ELEMENT OF A _ PLAINTIFF'S CLAIM
DEPENDS ON RESOLUTION OF A
CONTRACTUAL ISSUE OR WHETHER AN
ASSERTED DEFENSE MAY FORCE
REMOVAL AND EXTINGUISHMENT OF A
PLAINTIFF'S STATE LAW CLAIMS. .............. 19
IV. THE FIRST CIRCUIT'S APPLICATION
OF SECTION 301 PRE-EMPTION TO
EXTINGUISH THE STATE LAW CLAIMS OF
A PERSON NOT COVERED BY A
COLLECTIVE BARGAINING AGREEMENT
IS UNPRECEDENTED. .......:.....ccceceses ea bae 28
ES EE a a
First Circuit Court Of Appeals Opinion ............... la
United States District Court For The District Of
Massachusetts Opinion ......................05. beers 12a
First Circuit Court Of Appeals Order Denying
Petition For Rehearing En Banc ..................... l6a
Collective Bargaining Agreement .................... 17a
SHAW'S SUPERMARKETS, INC.
Associate Handbook (Relevant Sections) ........... 118a
MASSACHUSETTS WORKERS' COMPENSATION
M.G.L. chapter 152 § 75A. Preferences for hiring . 122a
MASSACHUSETTS WORKERS' COMPENSATION
M.G.L. chapter 152 § 75B. Qualified
handicapped persons; discrimination against
employees exercising rights under this chapter. ... 123a
-iv-
MASSACHUSETTS WORKERS' COMPENSATION
Mi.G. Li, GRACE ADE BS TPMGD occ cc cccoccccccvcccces 124a
FEDERAL STATOR Gi. oi ees oes 125a
TABLE OF AUTHORITIES
Cases
Allis-Chalmers v. Lueck, 471 U.S. 202, ;
105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) ........ 9, 17, 27, 28
Caterpillar, Inc. v. Williams, 482 U.S.
386, 107 S.Ct. 2425, 96 L.Ed. 2d 318
CME sincik beta akin) ona ceva in be ete tb heile cde dna dd oe 25, 26
Collyer Insulated Wire, Gulf &
Western Systems Co., 192 NLRB 837
CREO a iid nak do kad eee BV ON 0d oo a ine si va) 17
Davis v. Johnson Controls, Inc., 21
Fee BP MGs AOD otiedvece cll ceccdedes 12, 20, 21
Fort Halifax v. Coyne, 482 U.S. 1, 21,
107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) ................... 17
Franchise Tax Board of the State of
California v. Construction Laborers
Vacation Trust for Southern
California, 463 U.S. 1, 103 S.Ct. 2841,
cee a en ee 26, 28
Gay v. Carlson, 60 F.3d 83
tc dioniwcrwserevnenerdscee dont 12, 21
Gully v. First National Bank, 299 U.S.
eas oka yg FPS ee oc vse hed Mivdvdubedatadiede 26
Hanks v. General Motors
Corporation, 859 F.2d 67
er ces cs cowechsceeswdies dieuelwhie ot 20
Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d
y gi nS eat E Licw hs Ree eer ea em E 15, 21, 24
-Vi-
Hirras v. Nationa! Railroad Passenger
Corporation, d/b/a/ Amtrak, 44 F.3d
oe. Se 13, 23
Jackson v. Liquid Carbonic Corp.,
DED Terk Oe Cee GE ithein se des ccces cocsee ec etes 29
Jimeno v. Mobil Oil Corporation, 66
Fe ee re rare eens ccaces coche etree 24
Kohl's Food Stores v. State of
Wisconsin and Hyland, 32 F.3d 1075
CF ees SE as ns Codes acces cokes 8 vei 10, 14, 15
Laws v. Calmat, 852 F.2d 430
es MEE cc Decade eit Nae rca cccccccerceseponeey 24
Lingle v. Norge Division of Magic
Chef, Inc., 486 U.'S. 399, 108 S.Ct.
1877, 100 L.Ed.2d 410 (1988) ............. 9, 15, 16, 25, 28
Livadas v. Bradshaw, 512 U.S. 107, 5, Ee. G2,
114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) .... 16-20, 23,26-28
Local No. 57 v. Bechtel Power Corp,
834 F.2d 884 (10th Cir. 1987) .................... 00008. 24
Loewen Group International, Inc. v.
Haberichter, 65 F.3d 1417,
IN i is conscecses ouldt 13, 21, 22
Machinists v. Wisconsin Employment
Relations Commission, 427 U.S. 132,
96 S.Ct. 2548, 49 L.Ed.2d 396 (1976) ................24. 11
Magerer v. John Sexton & Co., 912
eee on vo cc ccccccsccccccniibéehoetsds 29
Martin Marietta Corporation, Aero &
Naval Systems vy. Maryland
Commission on Human Relations, 38
F.3d 1392 (4th Cir. 1994) ...........000000.000.. 13, 22, 23
-Vii-
Metropolitan Life Insurance
Company v. Massachusetts, 471 U.S.
724, 105 S.Ct. 2380, 2397, 85 L.Ed.2d
ete Lae ta a ie ace cdgeccsscesvecesaceqes 11
Quesnel v. Prudential Insurance
Company, 66 F.3d 8 (Ist Cir. 1995) .................... 29
San Diego Building Trades Council v.
Grmon, 359 U.S. 236, 79 S.Ct. 773, 3
ee eC ced cbeseseesctecasesees 17
Smith v. Dunham Bush, Inc., 959 F.2d
QUAI Gils BD oT 6 bG oie b oaieinic ccc cc ccccccccces 27
Smolarek v. Chrysier Corporation,
879 F.2d 1326 (6th Cir.) (en banc)
cert. denied, 493 U.S. 992, 110 S.Ct.
STN Festi e hers GHRCEN Lic bic cevocadeseesccccecds 24
Utility Workers v. Southern
California Edison, 852 F.2d 1083
ik ann ach bbs opie en's ceesecoestenccaces 24
Statutes
BF Cite TE UUEED © ccc pencapaccercpeccccececcecessece 2,19
BP UTA SB LTERODs 6 ccccccccsvccsccccieciecccien Sid awe 27
is Wha a ie STON Oh oe ctldee bias ccbebins passim
Mass. Gen. L. ch. 152, §§ 75A and B .. 1, 2,3, 4, 13, 19, 29
A rename ee ee . .
old
PETITION FOR WRIT OF CERTIORARI
Theresa Martin respectfully prays that a writ of
certiorari issue, to review the judgment and opinion of the
United States Court of Appeals for the First Circuit
entered in this proceeding on January 28, 1997, in order
to resolve the conflict between the First Circuit's opinion
in this important matter, and decisions of other United
States courts of appeal on this same matter, and in order
to resolve the conflict between the First Circuit's opinion
and applicable decisions of the Supreme Court.
OPINIONS BELOW
The opinion of the United States First Circuit
Court of Appeals that gives rise to this petition, held that
the Plaintiff's state law claim for rights and protection
under Massachusetts General Laws, Chapter 152, Sections
75A and 75B, (the Massachusetts workers' comperisation
statute), was pre-empted by Section 301 of the Labor
Management Relations Act. 29 U.S.C. §185(a). The
opinion is reported at 105 F.3d 40 (1997). It is
reproduced in the Petitioner's Appendix at pages la_ to
lla. The decision of the United States District Court for
the District of Massachusetts, which denied Theresa
Martin's Motion to Remand to the Massachusetts
Superior Court, and which granted Shaw's Motion to
Dismiss, is unreported and is reproduced in the Appendix
at pages 12a to 15a.
aaa nae
ai
JURISDICTION
The judgment of the First Circuit Court of Appeals
was entered on January 28, 1997. The Plaintiff filed a
Petition for Rehearing or Rehearing En Banc on February
21, 1997, which Petition was denied by the Court, as to
both requests, oa February 28, 1997. The Court of
Appeals had jurisdiction in this matter pursuant to 28
U.S.C. §1291. The Petitioner invokes the jurisdiction of
the Court under 28 U.S.C. §1254(1).
STATUTORY PROVISIONS INVOLVED
28 U.S.C. §1445(c). Nonremovable Actions.
A civil action in any State court arising
under the workmen's compensation laws of such
State may not be removed to any district court of
the United States.
29 U.S.C. §185(a@). Suits By and Against Labor
Organizations.
Suits for violation of contracts between an
employer and an labor organization representing
employes in an industry affecting commerce as
defined in this chapter, or beween any such labor
organizaticns, may be brought in any district court
of the United States having jurisdiction of the
parties, without respect to the amount in
controversy and without regard to the citizenship
of the parties.
Massachusetts General Laws, Chapter 152, Section 75A.
Preferences for Hiring.
Any person who has lost a job as 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
x
reemployment employed by such employer;
provided, however, that a suitable job is available.
Action may be filed under this section with the
superior court department of the trial court for the
county in which the alleged violation occurred. An
employer found to have violated this section shall
be exclusively liable to pay to the employee lost
wages, shall grant the employee a suitable job, and
shall reimburse such reasonable attornev fees
incurred in the protection of rights granted by this
section as shall be determined by the court.
In the event that any right set forth in this
section is inconsistent with an applicable collective
bargaining agreement or chapter thirty-one, the
collective bargaining agreement or said chapter
thirty-one shall prevail.
Massachusetts General Laws, Chapter 152, Section 75B.
Qualified handicapped persons; discrimination «against
employees exercising rights under this chapter. ¢
(2) No employer or duly authorized ayent of
an employer shall discharge, refuse to hire or in
any other manner discriminate against an employee
because the employee has exercised a right afforded
by this chapter, or who has testified or in any
manner cooperated with an inquiry or proceeding
pursuant to this chapter, unless the employee
knowingly participated in a fraudulent proceeding.
Any person claiming to be aggrieved by a violation
of this section may initiate proceedings in the
superior court department of the trial court for the
county in which the alleged violation occurred. An
employer found to have violated this paragraph
shall be exclusively liable to pay to the employee
lost wages, shall grant the employee suitable
employment, and shall reimburse such reasonable
attorney fees incurred in the protection of rights
-4-
granted as shall be determined by the court. The
court may grant whatever equitable relief it deems
necessary to protect rights granted by this section.
(3) In the event that any right set forth in
this section is inconsistent with an applicable
collective Dargaining agreement, such agreement
shall prevail. An employee may not otherwise
waive rights granted by this section.
STATEMENT OF THE CASE
Facts.
Petitioner Theresa Martin ("Martin"), a 52
year-old woman who had worked for sixteen years for
defendant Shaw's Supermarkets, Inc. ("Shaw's" or "the
Company") until her termination due to a work-related
injury, brought this action in Bristol County Superior
Court of the Commonwealth of Massachusetts pursuant to
the Massachusetts Workers' Compensation Law,
Massachusetts General Laws chapter. ("Mass. Gen. L.
ch.") 152, §§ 75A and 75B(2). Appendix (App.)
122a-124a. In her state complaint, Martin challenged
Shaw's' refusal to rehire her after her recovery from her
injury and sought damages for the Company's retaliatory
and discriminatory conduct in refusing to rehire her.
Upon the defendant's removal of the action to federal
court, the district court, affirmed by the Court of
Appeals, held that all of Martin's claims were pre-empted
by the Labor Management Relations Act.
Martin began working for Shaw's in 1979. App.
2a. While emploved by Shaw's, Martin was a member of
Local 791 of the United Food and Commercial Workers
Union, AFL-CIO. CLC ("Local 791" or "the Union") and
was covered by the collective bargaining agreement
between the Union and Shaw's Supermarkets, Inc.,
y®
Southern Region, (hereinafter "the Collective Bargaining
Agreement"). App. 17a-117a.
On or about August 25, 1994, while working as a
bakery clerk, Martin permanently injured her back.
App. 2a. On September 16, 1994, Martin began receiving
workers' compensation benefits for temporary total
disability under Mass. Gen. L. chapter 152, § 34. App.
2a. Martin's employment with Shaw's was terminated
effective September 13, 1995, pursuant to the Company's
policy and the Collective Bargaining Agreement's
provision that any full-time employee absent from work
for one year is separated from Shaw's employment. App.
3a. Martin does not contest her discharge by -the
Company.
At the time of her termination of emplovment,
Martin lost all rights under the Collective Bargaining
Agreement, including any seniority rights, and all of her
company benefits. App. 20a. As a terminated employee,
Martin was no longer covered under the collective
bargaining agreement, a fact Martin does not contest.
App. 20a. Nothing in Shaw's Collective Bargaining
Agreement with Local 791 addresses the rehiring of
former employees terminated pursuant to _ the
above-referenced provision, the rehiring of employees who
left employment due to a work-related injury, or the
rehiring of former employees under any other
circumstances. App. 17a-117a.
On October 19, 1995, Martin applied for
reemployment at Shaw's. App. 3a. Martin indicated on
her application that, consistent with her physician's
restrictions, she could work full-time as a bakery clerk or
in other store departments. Id. Martin indicated she
was available for work at that time. Id. Shaw's clid not
respond, has not since responded, and has not rehired
Martin. Id.
ab
The District Court Proceedings
Shaw's filed a Notice of Removal in Bristol County
Superior Court oa March 1, 1996. On March 13, 1996,
Shaw's filed a Mction to Dismiss or, in the alternative, for
summary judgment, and contended Martin's action was
completely preempted by section 301(a) of the Labor
Management Relations Act, 29 U.S.C. § 185. Martin
opposed both motions and moved the court to remand for
lack of subject matter jurisdiction. App. 13a.
By decision dated June 20, 1996, the District Court
for the District cf Massachusetts (Lasker, D.J.) allowed
Shaw's Supermarket, Inc.'s Motion to Dismiss and denied
Martin's Motion to Remand. App. 12a-15a. The district
court judge stated:
Martin is correct that the provisions of the
CBA in the present case do not clearly
delineate whether an injured employee who
has been dismissed has a right to be rehired.
However, ‘shaw's contention, that several of
the CBA provisions "could be construed to
govern" the plaintiff's claims, is more
persuasive ... Martin's claims are
pre-empted by section 301(a). Accordingly,
it is for an arbiter to determine either 1)
whether the CBA affords a right to be
rehired or 2) whether the existing provisions
of the CBA in fact apply to Martin's claims.
App. 15a.
The First Circuit's Decision On Appeal
On July 18, 1996, Martin filed an appeal with the
United States Court of Appeals for the District of
Massachusetts, seeking reversal of the district court order
BR, 4
and an order to remand the matter to the state court from
which it originated.
On January 28, 1997, the Court of Appeals
affirmed the decision of the District Court. The First
Circuit predicated its decision on "whether resolution of
Martin's claims would require an interpretation of the
collective bargaining agreement." The First Circuit found
that the proviso in Massachusetts General Laws, Chapter
152, Sections 75A and 75B(3), which provides, "in the
event any right set forth in this section is inconsistent with
an applicable collective bargaining agreement.' the
agreement shall prevail" was in effect an element of
Martin's state law claim, rather than an affinmative
defense to be raised by the defendant. Following upon
this construction, the Court relied upon a boiler-plate
management rights clause to find "that under Supreme
Court and First Circuit precedent, Martin's state law
claims are pre-empted. "This is not because the collective
bargaining agreement is inconsistent with the state claims
asserted, but because it may be so and requires
interpertation." (App.) 9a. With this ruling, the Court
extinguished all of Martin's state law claims for
preference in rehiring and for damages for retaliation and
discrimination on account of her status as an injured
worker, and her previous use of workers compensation
benefits. Because she was not covered by the Collective
Bargaining Agreement when’ she _ applied for
reemployment, Martin had no_ access to the
grievance-arbitration process to challenge Shaw's refusal
to rehire her.
On February 21, 1997, Martin filed a Petition for
Rehearing or Rehearing En Banc, which petition was
denied on February 28, 1997. App. 16a. On May 17,
1997, Martin filed a Motion to extend the time for the
filing of the Writ of Certiorari with the United States
-8-
Supreme Court until June 9, 1997; the motion was
granted on May 22, 1997.
REASONS FOR GRANTING THE WRIT
i. THE COURT OF APPEALS' RULING IN THIS
CASE PERPETUATES A _ SPLIT IN THE
CIRCUITS ON THE IMPORTANT MATTER OF
SECTION 301 PRE-EMPTION OF STATE
GRANTED EMPLOYMENT RIGHTS.
The central issue in this case is whether a state law
granting certain rights to injured workers is completely
pre-empted by the existence of a collective bargaining
agreement that is silent on the subject matter of the
Statute, simply because the statute yields generally to
"inconsistent" provisions, if any, of an applicable
collective bargaining agreement. In a series of cases
decided over the last decade, this Court has addressed the
subject of federal pre-emption of state law claims asserted
by members or former members of collective bargaining
units, and has rejected the overreaching application of
pre-emption embraced by the First Circuit here. Indeed,
the First Circuis's application of pre-emption in the
circumstances of this case has the anomalous result of
depriving a citizen of her state granted rights or any
remedy, solely because of her former participation in
collective bargaining, and would likewise disenfranchise
any current meraber of the collective bargaining unit
because of the mere existence and thus "possible
inconsistency" of a collective bargaining agreement.
Because this decision is in conflict with decisions of other
United States Courts of Appeals on this matter of
importance to states and their workers, and because this
decision conflicts with this Court's most recent decisions
on the subject, this Court should grant a writ of certiorari
-9-
to the First Circuit for the purpose of resolving the
continuing split in the Circuits concerning the proper
reach of Section 301 pre-emption and in order to conform
the First Circuit's pre-emption jurisprudence to that of
this Court.
This case was foretold by this Court in a footnote
to its most recent decision concerning pre-emption of state
law claims by Section 301 of the Labor Management
Relations Act ("LMRA"), 29 U.S.C. § 185 ("Section 301").
See, Livadas v. Bradshaw, 512 U.S. 107, 124, n. 18, 114
S.Ct. 2068, 2078, n. 18, 129 L.Ed.2d 93 (1994).' There,
the Court noted:
We are aware...that the Courts of Appeals
have not been entirely uniform in their
understanding and application of the
principles set down in Lingle and Lueck’.
But this case . . . is not a fit occasion for us
to resolve disagreements that have arisen
over the proper scope of our earlier *
decisions.
Id. Among the scenarios giving rise to invocations of
pre-emption, this Court specified "the argument. . . that
In Livadas, this Court held as pre-empted by federal
law the California Labor Commissioner's policy construing
state law to bar enforcement of California's wage payment
statute if the terms and conditions of an employee's
employment were governed by a_ collective-barzaining
agreement providing for arbitration.
. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.
399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (finding no
pre-emption of state tort action alleging termination in
retaliation for filing a worker's compensation claim).
; Allis-Chalmers vy. Lueck, 471 U.S. 202, 105 S.Ct. 1904,
85 L.Ed.2d 206 (1985) (finding pre-emption of state tort action
alleging bad faith handling of claim filed under collectively
bargained disability plan).
-10-
a plaintiff's ciaim cannot be_ 'resolved' absent
collective-bargaining agreement interpretation, i.e., that a
term of the agreernent may or does confer a defense on the
employer (perhaps because the employee or his union has
negotiated away the state law right) [citation omitted]."
Id. Such is Shaw's contention, essentially adopted by the
First Circuit, ane this case thus provides "a fit occasion"
for the Court to resolve the conflict and disarray among
the Circuits on these issues of import to the States and the
citizens they seex to protect. Indeed in seeking this
petition for certiorari Martin, invokes this Court's counsel
that "[hJjolding the plaintiff's cause of action substantively
extinguished may not . . . always be the only means of
vindicating the arbitrator's primacy as the bargained for
contract-interpreter. [Citation omitted]." Id.
The First Circuit's overbroad approach to
‘pre-emption in this matter perpetuates the conflicts within
the Circuits on at least two aspects of Section 301
pre-emption. First, the First Circuit's decision here
conflicts squarely with the Seventh Circuit's treatment of
state claims under a workers' compensation statute that,
like Massachusetts' Workers' Compensation Law,
expressly defers to the terms of a collective bargaining
agreement, if present. See, Kohl's Food Stores v. State of
Wisconsin and Hyland, 32 F.3d 1075, 1077 (7th Cir. 1994)
(although statute provides that collective bargaining
agreement governs in determining availability of suitable
work, determination of whether suitable work available
does not "turn upon" reading of the collective bargaining
agreement for purposes of pre-emption). Despite this
Court's recent (and consistent) guidance on the issue, the
First Circuit, unlike the Seventh Circuit, persists in
reading such a statutory provision to transform the "legal
character" of any claim brought under the statute from
one based on_ state-granted minimum employment
standards to one founded on or dependent on analysis of
-11-
contractual rights, and thus wholly pre-empted and
extinguished. See Livadas, 512 U.S. at 123, 114 S.Ct. at
2078 ("legal character" of claim determines whether state
cause of action goes forward).
Second, and even more striking, moreover, the
First Circuit's construction of such a proviso to transform
an otherwise independent state claim into a dependent,
and thus pre-empted, federal claim works an injustice of
constitutional proportions, as this Court held in Livadas.
In this regard, the First Circuit's application of
pre-emption, like the Labor Commissioner's
non-enforcement policy in Livadas, flowed from an
"honest (though flagrant) mistake of law, [citation
omitted]," Livadas, 512 U.S. at 116, n.10, 114 S.Ct. at
2074, n. 10. Otherwise stated, the First Circuit construed
the state rule to require § 301 pre-emption with a result
that "predicated benefits on refraining from conduct
protected by federal labor law," a principle this Court
found in Livadas to violate the policies of so-talled
Machinists “pre-emption precludes state action that acts
either to encourage or discourage participation in the
collective bargaining process. See, Metropolitan Life
4
So-called Machinists pre-emption applies to protect
against state interference with conduct intended by Congress in
the LMRA to remain unregulated and thus subject to the free
play of economic forces. Machinists v. Wisconsin Employment
Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d
396 (1976). Otherwise stated, Machinists pre-emption
precludes state action that acts either to encourage or
discourage participation in the collective bargaining process.
See, Metropolitan Life Insurance Company vy. Massachusetts,
471 U.S. 724, 755, 105 S.Ct. 2380, 2397, 85 L.Ed.2d 728 (1985)
(state law not pre-empted where it "neither encourage[s] nor
discourage[s] the collective bargaining processes"); see also,
Livadas, 512 U.S. at 117, n. 11, 114 S.Ct. at 2074-2075. n. 11.
‘2.
Insurance Company vy. Massachusetts, 471 U.S. 724, 755,
105 S.Ct. 2380, 2397, 85 L.Ed.2d 728 (1985) (state law not
pre-empted where it "neither encourage[s] nor
discourage[s] the collective bargaining processes"); see
also, Livadas, 512 U.S. at 117, n. 11, 114 S.Ct. at
2074-2075, n. 11. pre-emption. At the same time the
First Circuit ignored this Court's cautionary approach to
extinguishing state law claims and its counselling of
alternatives that wphold the policies and purposes of § 301
pre-emption. Livadas, 512 U.S. at 123-124, n. 17, n. 18,
114 S.Ct. at 2078. n. 17, n. 18.°
Finally, in finding all of Martin's state law claims
pre-empted on the mere assertion that a collective
bargaining agreement "may be" "inconsistent" with the
State rights asserted, App. 9a (emphasis in original), the
First Circuit continues the disarray among the Circuits as
to whether a defendant may remove and extinguish a
plaintiff's state law claims merely by articulating the
possibility of a contractually-based defense. In this
regard, the First Circuit is joined by the Eighth Circuit
Court of Appeals. while the Second, Fourth, Fifth, Sixth,
and Seventh have, since this Court's Livadas decision,
issued opinions declining to pre-empt state claims based
on employers' defensive assertions that contractual
interpretation may defeat the plaintiff's claims. See,
Davis v. Johnson Controls, Inc., 21 F.3d 866, 868 (8th
Cir. 1994) (state handicap discrimination claim
pre-empted where employer asserts contractual seniority
provisions govern availability of position for plaintiff).
Compare, Gay v. Carlson, 60 F.3d 83 (2d Cir. 1995) (no
pre-emption of state tort claims by mandatory arbitration
: This Court suggested the view that the proper course in
such instances is not complete preemption, but rather state
court application of federal law or, alternatively, referral of the
contractual issue to an arbitrator. Livadas, 512 U.S. at
123-124, n.17, n.18, 114 S.Ct. 2078, n.17, n.18.
ae oe es ith “ en
-}2>
of disputes under Railway Labor Act, 45 U.S.C. $ 181);
Martin Marietta Corporation, Aero & Naval Systems v.
Maryland Commission on Human Relations, 38 F.34 1392
(4th Cir. 1994) (no pre-emption of state retaliatory
discharge or failure to rehire claims despite collective
bargaining agreement provisions on related subjects);
Loewen Group International, Inc. v. Haberichter, 65 F.3d
1417, (7th Cir. 1995) (no pre-emption of state contract
action under individual employment agreement despite
employee defendant's assertion that collective bargaining
agreement may conflict with individual employment
contract); Hirras_v. National Railroad Passenger
Corporation, d/b/a/ Amtrak, 44 F.3d 278 (5th Cir. 1995)
(on remand from this Court, no emphasis of state tort
claim under Railway Labor Act).
The Conflict Over The Pre-emptive Effect, If Any, Of State
Statutory Provisions Deferring To Collective Bargaining
Agreements. :
To find all of Ms. Martin's statutory claims for
rehiring preference and non-retaliation pre-empted, the
First Circuit relies expressly on the statute's proviso that
"fin the event any right set forth in this section is
inconsistent with an applicable collective bargaining
agreement," the agreement shall prevail. App. 6a-7a,
quoting, Mass. Gen. L. ch. 152, § 75A. The First Circuit
stated,
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
-14-
provisions. . . . Rather, Shaw's argues that
Massachusetts has as a matter of state law
chosen to make the substantive rights
conferred »y the statutes depend upon their
not being "inconsistent" with a labor
agreement. This court endorsed just such a
reading of the proviso ... in Magerer v.
John Sexton & Co., 912 F.2d 525, 529-30
(Ist Cir. 1990). And Magerer merely holds
Massachusetts to the literal wording of its
own statute.
App. 7a.
The First Circuit's view of the pre-emptive
consequence of such a proviso is in direct conflict with
that of the Seventh Circuit, which has held an essentially
identical proviso not to compel complete pre-emption of a
state statutory workers' compensation claim. In Kohl's
Food Stores _v. State of Wisconsin and Hyland, the
Seventh Circuit reviewed a decision by the Wisconsin
Labor and Industry Review Commission ("Commission")
that the defendant employer had violated Wisconsin's
Worker's Compensation Act by refusing to rehire the
plaintiff for his cld job. Kohl's Food Stores v. State of
Wisconsin and Hyland, 32 F.3d 1075, 1076 (7th Cir. 1994)
(hereinafter, “Kohl's Food Stores"). The Wisconsin
statute provided, in pertinent part:
Any employer who without reasonable cause
refuses to hire an employee . . . where
suitable employment is available within the
employee's physical and mental limitations .
. has exclusive liability to pay to the
employee the wages lost during the period of
such refusal . . . [IJm determining the
availability of suitable employment the
continuance in business of the employer
shall be considered and any _ collective
-15-
bargaining agreement with respect to
seniority shall govern.
Kohl's Food Stores, 32 F.3d at 1077 (emphasis added).
The plaintiff Hyland claimed, and the Wisconsin Labor
and Industry Review Commission ("Commission") found,
that Kohl's had violated the statute by refusing to rehire
Hyland to his old job without justification. Id., 32 }I'.3d at
1076.
In analyzing Hyland's claim, and the employer's
pre-emption defense, the Seventh Circuit began with the
elements of the state claim as set forth by state courts.
Kohl's Food Stores, 32 F.3d at 1077-1078. After an initial
showing by the plaintiff, Wisconsin courts construed the
state law to impose on the employer the burden to show
"(1) that the employee could not do the work . . . applied
for; and (2) that no other suitable work was available."
Id., 32 F.3d at 1078 (emphasis in original) [internal
citation omitted]. Although Kohl's contended Section 301
pre-emption applied because the question of whether
"suitable employment is available" required an
interpretation of the collective bargaining agreemerit then
in force, the Seventh Circuit held the claim was not
preempted merely because the collective bargaining
agreement might be consulted in performing a statutory
inquiry. Id., 32 F.3d at 1078-1079. Rather, the Seventh
Circuit, heeding this Court's teaching in Lingle and the
subsequent clarification provided in Hawaiian Airlines,
Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d
203 (1994)°, emphasized the independence of the state
created entitlement from rights granted under the
agreement. Kohl's Food Stores, 32 F.3d at 1078-1079.
’ This Court's decision in Norris issued exactly one week
after that in Livadas. Hawaiian Airlines v. Norris, 512 U.S.
246, 266, 114 S.Ct. 2239, 2251 (1994).
The Seventh Circuit's reasoning in part devolves
from the understanding that a statute's deference to
contractual seniority (or other) provisions does not
transform a state granted right into a right derived from
or substantially dependent on interpretation of the
collective bargaining agreement. See, Livadas, 512 U.S.
at 124, 114 S.Ct. at 2078, citing, Lingle, 486 U.S. at 413,
n.12, 108 S.Ct. at 1885, n.12 ("when the meaning of a
contract term is not the subject of dispute, the bare fact
that a collective-bargaining agreement will be consulted in
the course of state-law litigation plainly does not require
the claim to be extinguished"). The First Circuit's opinion
holds otherwise. Despite its citations to this Court's
decisions in Lingle and Livadas, the First Circuit's
reasoning and result ignore the teachings of those cases
and conflict directly with the Seventh Circuit's decision on
a virtually identical issue. In short, to litigate her claims
Martin does not raise any question of what Shaw's and
the Union agreed to in their bargained agreement -- it is
solely the defendant that contends the bargaining
agreement is somehow to be implicated.
Il. THE SIRST CIRCUIT'S DECISION
INTERPRETS THE MASSACHUSETTS
STATUTE TO PENALIZE INDIVIDUALS FOR
THEIR EXERCISE OF COLLECTIVE
BARGAINING RIGHTS BY WITHDRAWING
FROM SUCH PERSONS THE LAW'S
PROTECTIONS AND THUS CONFLICTS WITH
PRIOR DECISIONS OF THIS COURT.
The First Circuit's approach to § 301 pre-emption
in this case also stands in direct conflict with this Court's
recent pronouncements on the subject. In the Livadas
case, this Court emphasized repeatedly that "the bare fact
that a collective-bargaining agreement will be consulted in
~}7-
the course of state-law litigation plainly does not require
the claims to be extinguished." Livadas, 512 U.S. at 124,
114 S.Ct. at 2078. See also, id._, 512 U.S. at 123, n.17,
114 S. Ct. at 1078, n. 17. See also, e.g., id. at 207%, n.17
("§ 301 does not disable state courts from interpreting the
terms of collective-bargaining agreements in resolving
nonpre-empted claims"); id., 512 U.S. at 124, n. 18, 134
S.Ct. at 2078, n. 18 (citing Collyer Insulated Wire, Gulf
& Western Systems Co., 192 NLRB 837 (1971)’. It is the
central holding of Livadas, however, that the First
Circuit's statutory construction and application of § 301
pre-emption directly offend.
Since the "modest sprouting" of Section 301
pre-emption announced in Allis-Chalimers v. Lueck, see,
Livadas, 512 U.S. at 122, 114 S.Ct. at 2077, this Court
repeatedly has confined the reach of a doctrine that,
overbroadly applied, intrudes on the traditional police
powers of the states, undermines a_ fundanental
proposition of federal removal jurisdiction, © and
unnecessarily clogs federal dockets with state law cases
reflexively removed from state courts by unionized
employer defendants in state law actions. See, e.g., Fort
Halifax v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96
L.Ed.2d 1 (1987) ("preemption should not be lightly
inferred" where subject matter "falls within the traditional
police power"); Caterpillar v. Williams, 482 U.S. at 398m
107 S.Ct. at 2433 (presence of a § 301 question in
defensive argument "does not overcome the paramount
policies embodied in the well-pleaded complaint rule").
See also, San Diego Building Trades Council v. Grmon,
359 U.S. 236, 239, 79 S.Ct. 773, 776, 3 L.Ed.2d 775
(1989) (federal law preemption of state law claims gives
7
Collyer stands for the proposition that deferral of a
contractual issue in the first instance to an arbitrator need not
oust the original forum of jurisdiction over the action as a
whole.
-18-
"rise to difficult problems of federal-state relations").
Most recently in Livadas, this Court warned specifically
against according too broad a sweep to Section 301
pre-emption when it struck down a California Labor
Commissioner's policy denying enforcement of a state
wage-payment statute to employees covered by bargaining
agreements containing wage scales and provisions for
grievance arbitration. Livadas, 512 U.S. at 114, 126,
130-131, 114 S.Ct. at 2073, 2080, 2082.
In Livadas this Court ruled the state Department of
Labor's policy was itself preempted by federal labor law
because it disenfranchised employees, based solely upon
their participation in the collective bargaining process,
from the benefits of a state entitlement otherwise available
to all. Livadas, 512 U.S. at 116, 117, n.11, 114 S.Ct. at
2074, 2074, n.1l. As analyzed by the Court, the
Commissioner's policy in effect "presented [the plaintiff]
and others like her with the choice of having state-law
rights...enforced or exercising the right to enter into a
collective bargaining agreement with an arbitration
clause." Livadas, 512 U.S. at 117, 114 S.Ct. at 2075. The
Court also cited its well-settled requirement that any
union waiver of statutory rights must be "clear and
unmistakable'... for a court even to consider whether it
could be given effect." Livadas, 512 U.S. at 125, 114
S.Ct. at 2079. Accordingly, the Court noted there was
"no suggestion here that Livadas's union sought or
purported to bargain away her protections under [the
state statute]... nor...any indication that the parties [to the
CBA]...understood their arbitration pledge to cover these
state-law claims. [Citation omitted]." Id.° Finally, while
. The court also recognized that denying represented
employees basic state granted employment protections
implicitly would "forc{e] employees or employers to bargain for
what they would otherwise be entitled to as a matter of course,"
a result to be avoided. Livadas, 512 U.S. at 130,
-19-
not outlawing state statutes that contain "opt-out"
provisions for unionized employees from
otherwise-provided state statutory rights, this Court made
clear that such opt-outs will be recognized only where they
are explicitly and narrowly drawn. Id.; see also, id. at
2081.
In contrast to this Court's high standard for
recognizing when parties have opted out of a state's "basic
employment guarantees," Livadas, 512 U.S. at 120-131,
114 S.Ct. at 2081-2082, the First Circuit here permitted
undefined potential inconsistencies to trigger 301
pre-emption, extinguish Martin's cla’ms, and leave her
without any remedy. Such a sweeping application of
preemption, however, unconstitutionally infringes on
LMRA rights since virtually every employer with a
collective bargaining agreement may assert that "several
of the CBA provisions ‘could be construed to govern' the
plaintiff's claims...." and thus meet the First Circuit's test
for pre-empting state minimum employment standards. If
allowed to stand, the First Circuit's decision here would
virtually wipe out key protections provided by
Massachusetts' workers' compensation law for any
current or former member of a collective bargainin unit,
and essentially immunize unionized employers from those
provisions' reach. Neither Congress, in Section 301, nor
the Massachusetts Legislature, in Chapter 152, §$ 75A,
75B, could possibly have intended such a result.”
if. THE FIRST CIRCUIT'S DECISION CONTINUES
THE DISARRAY IN THE CIRCUITS OVER
WHETHER SECTION 301 PRE-EMFTION
. See, also, 28 U.S.C. § 1445(c) ("A civil action in any
State court arising under the workmen's compensation laws of
such State may not be removed to any district court of the
United States").
-20-
ARISES ONLY WHEN AN ELEMENT OF A
PLAINTIFF'S CLAIM DEPENDS ON
RESOLUTION OF A CONTRACTUAL ISSUE OR
WHETHER AN ASSERTED DEFENSE MAY
FORCE REMOVAL AND EXTINGUISHMENT
OF A PLAINTIFF'S STATE LAW CLAIMS.
In this case, as in many others, Plaintiff Martin's
state court complaint invoked no right derived from a
collective bargaining agreement. Martin alleged only that
Massachusetts' workers' compensation law entitled her to
preferential consideration for re-employment and
protected her from. retaliation for having previously
enjoyed that law's benefits. In its judgment of dismissal
and opinion, however, the First Circuit accords
completely pre-emptive power to the defendant's
contention that a collective bargaining agreement, which
does not even apply to Martin, may nonetheless provide a
defense to all of Martin's claims. In so doing, the First
Circuit continues the long-standing split in the circuits
concerning the impact of _ collective bargaining
agreement-based defenses on Section 301 pre-emption.
Like the First Circuit, the Eighth Circuit Court of
Appeals adheres to the view that "defenses as well as
claims must be considered in determining whether
resolution of the state law claim requires construing the
collective bargaining agreement." Hanks v. General
Motors Corporation, 859 F.2d 67, 70 (8th Cir. 1988).
Since this Court's decision in Livadas, the Eighth Circuit
found a state handicap discrimination claim pre-empted
where the employer asserted that contractual seniority
provisions governed the availability of suitable work for
the plaintiff. Davis v. Johnson Controls, Inc., 21 F.3d
866, 868 (8th Cir. 1994). As did the First Circuit in
Martin, the Eighth Circuit in Davis pre-empted the state
law plaintiff's claim based solely on the defendants'
-21-
assertions that contractual seniority provisions ‘would
have to be reviewed" in order "to show that Johnson could
have reasonably accommodated [the plaintiff's] request to
return to work." Davis, 21 F.3d at 868. As in Martin,
however, there is not a shred of evidence cited of any
actual, rather than hypothetical, contractual obligation
inconsistent with, or even necessary to the determination
of the plaintiff's state law rights.
In sharp contrast, the Second, Fourth, Fifth, Sixth,
and Seventh Circuit Courts of Appeals have, within the
same time frame, issued opinions declining to pre-empt
state claims on the basis of emnployers' asserted
contractually-related defenses. In Gay v. Carlson, for
example, the Second Circuit Court of Appeals relied
heavily on this Court's ruling in Hawaiian Airlines v.
Norris, when it held that "the possibility that reference
may be made to a collective bargaining agreement in
connection with a justification defense...does not give rise
to pre-emption of state law tort claims under the Railway
Labor Act. [citation to Norris omitted].". Gay v. Carlson,
60 F.3d at 87. The Second Circuit acknowledged its
previously expansive view of pre-emption under the
Railway Labor Act "has been called into question by the
Supreme Court's decision in Norris." Gay v. Carlson, 60
F.3d at 83, 88. Heeding this Court's teachings on
pre-emption in both Norris and Livadas, the Second
Circuit properly recognized that despite the possible need
to consult the collective bargaining agreement, "[s]t<te law
provides the only source of the rights asserted by [the
plaintiff]....". Gay v. Carlson, 60 F.3d at 83, 88.
Similarly, the Seventh Circuit Court of Appeals
declined to pre-empt state law contract claims based on an
individual defendant's assertions that the terms of a
collective bargaining agreement conflicted with the terms
of his individual employment contract. Loewen Group
International, Incorporated _v. Haberichter, 65 F.3d,
-22-
1423-24 (7th Cir. 1995). The Seventh Circuit rejected the
Defendant's invocation of Section 301 pre-emption for two
reasons:
First,... the Supreme Court has made clear
that not ail cases which tangentially touch
collective bargaining agreements call for
§301 pre-emption [citation omitted]... It is
true that the Court has indicated that in
some situations a plaintiff's claims cannot be
resolved without substantively interpreting
the terms of a collective bargaining
agreement raised as a defense. [citations to
Caterpillar, 482 U.S. 386, and Livadas,
omitted]... But the Court de-emphasized
the importance of such defenses under §301
and suggested that pre-emption may not be
the only means of _ vindicating the
arbitrator's primacy in these situations.
Livadas, 114 S.Ct. at 2078, n.18.
Second, and more to the point here, merely
examining the collective bargaining
agreement to determine whether a conflict
actually exists is not "interpreting the
collective bargaining agreement for §301
pre-emption purposes. [citation omitted]"
Loewen Group International, 65 F.3d at 1417, 1423. Both
principles underlying the Seventh Circuit's rationale in
Loewen Group International conflict directly with the
First Circuit's reasoning and result in this case.
Joining the Second and Seventh Circuits, the Fourth and
Fifth Circuits have expressly reconsidered their respective
analyses of federal labor pre-emption based on asserted
defenses. In Martin Marietta Corporation, Aero & Naval
Systems v. Maryiand Commission on Human Relations,
38 F.3d 1392, 1401-02 (4th Cir. 1994), the Fourth Circuit
2%
held that neither a retaliatory discharge claim nor a
failure to rehire claim based on disability discrimination
were pre-empted by an applicable collective bargaining
agreement. Even though the collective bargaining
agreement there contained provisions relating to
work-injured employees' absences, conditions for
returning to work, and qualification to perform work, the
Fourth Circuit found no preemption because "if the final
resolution of the state law dispute tangentially irivolves
some interpretation of a provision of the agreement, this
fact alone would not require automatically that Price's
claim be preempted by Section 301." “Martin Marietta, 38
F.3d at 1401. With respect to the the defendant's
collective bargaining agreement-based defense _ to
plaintiff's retaliatory discharge claim, the Fourth Circuit
Stated:
...[I[]t may be that Martin Marietta followed
the terms of the Collective Bargaining
Agreement in terminating Price once he was -
no longer eligible for workers' compensation
benefits, but at the same time it may have
used the CBA terms as a pretext to engage
in retaliatory discharge.
Id. at 1403. Accordingly, the Court fourid no
pre-emption.
In Hirras_v. National Railroad Passenger
Corporation, d/b/a Amtrak, 44 F.3d 278 (5th Cir. 1995),
the Fifth Circuit, on remand from this Court, withdrew
its prior opinion in the same case in which it had affirmed
the district court's dismissal of the plaintiff's state law
claims as pre-empted, and substituted an opinion
reversing such pre-emption and dismissal. Hirras, 44
F.3d at 280. Unlike the First and the Eighth Circuit
Courts of Appeals, the Fifth Circuit understood this Court
in Norris and Livadas to exclude from the reach of Section
-24-
301 pre-emption contractual issues raised as defenses.
Hirras, 44 F.3d at 282-284, 283, n.10.
To add to the already frank confusion, the Ninth
Circuit Court of Appeals has signaled it may be altering
its application of its standard for determining
"independent" state law rights, in response to the Livadas
decision, even as it putatively adheres to the view that
"potential defenses are also relevant to the pre-emption
analysis." Jimeno v. Mobil Oil Corporation, 66 F.3d
1514, 1523-1524 :9th Cir. 1995) (no pre-emption of state
law claim where claim can be evaluated without reference
to collective bargaining agreement, even if agreement
arguably addresses related subjects). Compare, Utility
Workers v. Southe-= California Edison, 852 F.2d 1083,
1086-1087 (9th Cir. .988); Laws vy. Calmat, 852 F.2d 430,
433 (9th Cir. 1988) (Both cases holding employee's state
law privacy claim pre-empted when defendant employer
asserts waiver of privacy right by management rights
clause or other provision of collective bargaining
agreement).
The above cases, issued since this Court's decisions
in Livadas and Norris, reflect the persistent confusion and
conflict over the ability of a defendant to remove and
extinguish a state law plaintiff's claims simply by asserting
a contractual defense. See, also, e.g. Smolarek v.
Chrysler Corporation, 879 F.2d 1326, 1334 (6th Cir.) (en
banc) cert. denied, 493 U.S. 992, 110 S.Ct. 539 (1989)
(that defendant may "assert that its treatment of [plaintiff]
was allowed or required by the terms of the collective
bargaining agre¢ment...does not support removal to
federal court"); Local No. 57 v. Bechtel Power Corp, 834
F.2d 884, 889 (10th Cir. 1987) (even if state court "would
find the collective bargaining agreement relevant to show
waiver or consent as a state law defense to plaintiffs'
allegations," no complete Section 301 pre-emption of state
law claim). The persistence of such disarray on an issue
-25-
implicating the important matters of federalism, state
police power, and federal court jurisdiction -learly
warrants this Court's intervention and guidance.
This split over the reach of Section 301 pre-emption
endures despite the fact that this Court has addressed the
issue directly. In Caterpillar, Inc. v. Williams, 482 U.S.
386, 398-399, 107 S.Ct. 2425, 2432-2433, 96 L.Ed. 2d 318
(1987), this Court squarely held that a defense based on
interpretation of a § 301 contract does not trigger
complete § 301 pre-emption for purposes of remcval of
state law claims from state court. Caterpillar, Id. This
Court held:
It is true that when a defense to a state
claim is based on the terms of a collective
bargaining agreement, the state court will
have to interpret that agreement to decide
whether the state claim survives. But the
presence of a federal question, even a § 301
question, in a defensive argument does not *
overcome the paramount policies embodied
in the well-pleaded complaint rule... .
When a plaintiff invokes a right created by
a__collective bargaining agreement, the
plaintiff has chosen to plead what we have
held must be regarded as a fe-deral claim,
and removal is at the defendant's option.
But a defendant cannot, merely _by injecting
a federal question into an action that asserts
what is plainly a state-law claim, transform
the action into one arising under federal law
. . . .[citations and note omitted].
Id. (emphasis added).
Although one passage in this Court's Lingle
opinion arguably could be read to endorse consideration
of defenses in determining whether contract interpretation
or application is "required" to decide a state law claim, in
26.
Livadas this Court emphatically endorsed the vitality of
Caterpillar's holding. See, Lingle, 486 U.S. at 407, 108
S.Ct. at 1882. (surveying elements of state law defense
before concluding that resolution of state law claim does
not require construing the collective bargaining
agreement); Livadas, 512 U.S. at 124, n.18, 114 S.Ct. at
2078, n.18. Thus in Livadas this court cited expressly to
the holding of Caterpillar in a discussion of the very
circumstances prompting invocation of preemption here,
"that a plaintiff's claim cannot be ‘resolved' absent
collective-bargaining agreement interpretation, i.e. that a
term of the agreement may or does confer a defense...."
Livadas, 512 U.S. at 124, n. 18, 114 S.Ct. at 2078, n.18.
After citing to Caterpillar's reversal of preemption and
removal on that basis, this Court, as noted earlier, supra,
opined that "[hjolding the plaintiff's cause of action
sustantively extinguished may not always be only means of
vindicating the arbitrator's primacy as bargained for
contract-interpretet." Id.
Caterpillar's rule foreclosing complete pre-emption
based on a defendant's raising a contractual defense is
consistent not only with principles of federal removal
jurisdiction, Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1, 12 (1983), Gully v.
First National Bank, 299 U.S. 109, 112-113 (1936), but
also with the purposes underlying Section 301
pre-emption. Section 301, by its terms and by this
Court's construction, provides federal jurisdiction and
federal substantive law where a plaintiff seeks to
adjudicate contract-based rights, either in form or in
substance. 29 U.S.C. § 185(a); Livadas, 512 U.S. at
123-124, 114 S.Ct. at 2078. | Unless Section 301
pre-emption is similarly limited to those cases where a
plaintiff seeks to adjudicate a contract-based right,
defendants may virtually extinguish state law causes of
action and leave plaintiffs remedyless, simply by invoking
-27-
a collective bargaining agreement-related defense, whether
the asserted defense be arguably meritorious or entirely
frivolous.
The fact that Martin here is left without a remedy
thus should weigh heavily rather than cursorily in the
First Circuit's analysis. App 10a _ ("Pre-einption
sometimes does result in a complete denial of remedies for
obvious wrong, e.g. Smith v. Dunham Bush, Inc., 959
F.2d 6, 11 (2nd Cir. 1992)"). The First Circuit's citation
to Smith v. Dunham Bush, Inc. is not on point, as Smith
concerns pre-emption of state law claims by Section 514(a)
of ERISA."© Smith, 959 F.2d at 11. Unlike ERISA's
statutory pre-emption as enacted by “ongress, however,
Section 301 pre-emption arose as a judicial creation,
inferred from the LMRA's grant of federal jurisdiction
for suits claiming violation of a collective bargaining
agreement. See, Livadas, 512 at 121-125, U.S. 114. S.Ct.
at 2077-2079; Allis-Chalmers v. Lueck, 471 U.S. 202,
208-212, 1055 S.Ct. 1904, 1909-1911 (1985). While
Congress intended in ERISA to foreclose any remedy not
expressly provided in the federal statute, the policy
underlying Section 301 pre-emption in fact derives
substantially part from the availability of an alternative
(contractual) remedy to the state law claims pre-einpted.
Id. There was never any Congressional purpose or intent
expressed in Section 301 to foreclose state law remedies
absent the parties' agreement to arbitrate a particular
dispute as it concerned a particular member of the
bargaining unit covered by the collective bargaining
agreement. The First Circuit's willingness here to leave
Martin without an alternative remedy under the collective
bargaining agreement violates the very purposes
animating Section 301 pre-emption. See, also, e.g.,
Section 514(a) provides that ERISA shall "supersede
any and all State laws insofar as they may now or hereafter
relate to any employee benefit plan." 29 U.S.C. § 1144(a).
-28-
Franchise Tax Board of the State of California v.
Construction Laborers Vacation Trust for Southern
California, 463 W.S. 1, 26, 103 S.Ct. 2841, 2855, 77
L.Ed.2d 420 (1983) ("ERISA does not provide an
alternative cause of action in favor of the State to enforce
its rights, while § 301 expressly supplie(s] the plaintiff. . .
with a federal cause of action to replace its pre-empted
state contract claim").
IV. THE FIRST CIRCUIT'S APPLICATION OF
SECTION 301 PRE-EMPTION TO EXTINGUISH
THE STATE LAW CLAIMS OF A PERSON NOT
COVERED BY A COLLECTIVE BARGAINING
AGREEMENT IS UNPRECEDENTED.
Finally, there is simply no precedent for the
extraordinary holding of the First Circuit that Section 301
pre-emption applies in a state law cause of action brought
by an individual not covered by a collective bargaining
agreement at the time her state law claims arose. On the
contrary, in every case known to the Petitioner, where the
question of § 301 pre-emption even colorably arises, the
threshhold question of the plaintiff's coverage by a
collective bargaining agreement has been asked and
answered in the affirmative. See, e.g., Allis-Chalmers v.
Lueck, 471 U.S. 202, 202-204, 218 (1985) (plaintiff a
member of bargaining unit covered by _ collective
bargaining agreement at time of dispute over health
insurance benefits granted by contract); Lingle, 486 U.S.
at 401, 108 S.Ct. at 1879. ("The question presented in this
case is whether an employee covered by a
collective-bargaining agreement that provides her with a
contractual remedy for discharge without just cause may
enforce her state law remedy for retaliatory discharge");
Livadas v. Bradshaw, 512 U.S. at 110, 114 S.Ct. at 2071
(1994) (terms and conditions of employment of discharged
-29-
wage claimant covered by _ collective bargaining
agreement); Quesnel vy. Prudential Insurance Company,
66 F.3d 8, 11 (Ist Cir. 1995) (where resolution of
plaintiff's wrongful termination claims depend on
contractually established compensation rates, inter alia,
"his claims are preempted if [plaintiff] is indeed subject to
the CBA's terms"); Magerer v. John Sexton & Co., 912
F.2d 525, 528, 529 (Ist Cir. 1990) ("the record
conclusively demonstrates that plaintiff's emplcyment
became subject to a collective bargaining agreement,"
[which] "agreement provides standards to govern the
conduct underlying plaintiff's retaliatory discharge
claim"); Jackson v. Liquid Carbonic Corp., 863 F.2d 111
(ist Cir. 1988) ("[plaintiff] was a part of the bargaining
unit" covered by a CBA and "was obligated to grieve --
not sue... .").
To suggest that the Collective Bargaining
Agreement can create a conflict between the rights Ms.
Martin asserts and the Agreement when Ms. Martin was
neither subject to nor covered by the Agreement
foreshadows the absurd result of applying Secticn 301
preemption to virtually any individual who applies for
work with Shaw's or any other unionized employer in
Massachusetts. Since virtually every labor contract
contains a management rights article, seniority provision,
and/or recall from layoff clause, the First Circuit's
decision effectively states that Mass. Gen. L. ch. 152, $§
75A and B, important state law protections for injured
workers, may be rendered meaningless even where the
formerly injured worker is neither subject to nor covered
by a collective bargaining agreement and thus has no
alternative remedy.
-30-
CONCLUSION
For the reasons set forth above, the Court should
grant this Petition. for a Writ of Certiorari and summarily
reverse the judgment of the First Circuit Court of
Appeals, or, in the alternative, grant certiorari and grant
plenary review.
Respectfully submitted,
Scott ‘W. Lang
Scott W. Lang*
Susan Forgue Weiner
Lang, Xifaras & Bullard, P.A.
115 Orchard Street
New Bedford, Massachusetts 02740
(508) 992-1270
Betsy L. Earenberg
Angoff, Goldman, Manning, Pyle & Wanger, P.C.
24 School Street
Boston, Massachusetts 02108
Marsha S. Berzon
Altshuler & Berzon
177 Post Street, Suite 800
San Francisco, California 94108
Attorneys for Petitioner
*Counsel of Record
la
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1863
THERESA MARTIN,
Plaintiff, Appellant,
Vv.
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, Xifaras & Bullard, P.A., Lisa M. Sheehan, Kate
Mitchel! & Associates, Betsy L. Ehrenberg and Angoff,
Goldman, Manning, Pyle & Wanger, P.C. were on briefs
for appellant.
Betsy L. Ehrenberg with whom Harold L. Lichten and
Angoff, Goldman,
Manning, Pyle & Wanger, P.C. were on brief for United
Food and Commercial Workers Local Union 791 and
National Employment Lawyers Association,
Massachusetts Chapter, Amici Curiae.
. Of the Southern District of New York, sitting by
designation.
2a
Duane R. Batista with whom Sharon R. Burger and
Nutter, McClennen & Fish, LLP were on brief for
appellee.
January 28, 1997
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
3a
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, 75Bi2), 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 non-employee 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. § 1321, 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.
The asserted jurisdictional basis for
removal--preemption--might appear to offend the
well-pleaded complaint rule, but where section 301
preemption is concerned, the Supreme Court has held
that removal is proper. Caterpillar Inc. v. Williams, 482
U.S. 386, 393-94 (1987).
4a
Section 301 modestly provides only that "|sjuits 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. Linceln Mills, 353 U.S. 448, 451 (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, substaative authority gave rise to preemption.
In Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (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 pre-emptive effect of § 301
must extend beyond [state-law] suits alleging contract
violations." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
210 (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
2egreement." Lingle v. Norge Div. of Magic Chef. Inc..
486 U.S. 399, 407 (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, 114 S. Ct. 2068, 2078 (1994).
Nevertheless, Livadas repeated the basic test laid down
by Lingle--namely, that section 301 preempts a state-law
Sa
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 (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,
114 S. Ct. at 2078; Allis-Chalmers, 471 U.S. at 219. 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 (ist
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, 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
6a
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 "[iJn 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,’ but
2
Broadly speaking, most cases of preemption in
tne labor field involve conflict, or potential conflict,
between state law and federal labor policy. But
sometimes the conflict arises out of some source other
than the need to interpret a labor agreement. E.g.,
7a
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 (ist 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 Employees."
Shaw's says that Martin is a former employee seeking to
be rehired, that the agreement regulates this subject (but
not in a 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 she is no longer covered by the agreement.
Yet the agreement does give former Shaw's employees
some specific priority rights to be rehired. See Collective
Bargaining Agreement Art. 12(B) ("Full-time employees
laid off because of lack of work when no other full-time
work is available shall be offered part-time work [if
available] ...."'). And the "management rights" clause
by its terms embraces decisions as to hiring.
Martin next says that Shaw's employee handbook
Livadas; San Diego Bldg. Trades Council v. Garmon, 359
U.S. 236 (1959).
8a
guarantees to her the very right to priority in rehiring
established by section 75A. The handbook does contain
language that is fairly close to the rehiring priority
contained in section 75A, suggesting that Shaw's itself
treats this priority right (although not necessarily the
protection against retaliation) as consistent with its
"management rights" clause. But for purposes of
construing the “management rights" clause, 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 a reference to state law, whose application
Shaw's has now rethought in the face of litigation. To
entertain Martin's state-law claims would still require a
court to interpret the agreement, which is precisely what
Supreme Court precedents forbid. Accord Magerer, 912
F.2d at 530.
Martin next asserts that any waiver of statutory rights
by a union and management in a collective bargaining
agreement must be "clear and _ unmistakable."
See Livadas, 114 S. Ct. at 2079 (citations omitted). But
Shaw's preemption claim does not depend upon a
"waiver" of statutory protections; indeed, it is unclear
under Massachusetts law that the statutory protections
can be "waived." Cf. Mass. Gen. Laws ch. 152, § 75B(3)
(limiting waiver). Rather, the statutes themselves
expressly withhcld protection where it would be
"inconsistent" with labor agreements, 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. This is not because the collective bargaining
9a
agreement is inconsistent with the state claims asserted,
but because it may be so and requires interpretation. We
could ourselves remove the doubt by interpreting the
agreement one way or the other, but this course has been
foreclosed in deference to the arbitration clause. As all of
this appears to follow logically, the question remains why
the outcome may seem faintly troubling.
One reason is that Massachusetts’ statutory proviso,
making the rights conferred yield to inconsistent labor
agreements, may be producing some results that the
legislature did not intend. When the statutes’ were
enacted in December 1985, Massachusetts might have
thought that the proviso was necessary to avoid
preemption; the legislature might be chagrined to
discover that the proviso has unnecessarily curtailed
workers' rights. But this is at best a debatable
inference, preempted). and we have 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. Despite the clear warning
sent by Magerer in 1990, Massachusetts has not chosen to
’ Shortly before the legislature acted in 1985, the
Supreme Court made clear that section 301 does not "give
the substantive provisions of private agreements the force
of federal law, ousting any inconsistent state regulation."
Allis-Chalmers, 471 U.S. at 212. See also Metropolitan
Life Ins. Co. v. Massachusetts, 471 U.S. 724, 755-56 (1985)
(holding that state mandated-benefits laws were not
generally preempted).
10a
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, even for retaliation. This charge is, of
course, merely an allegation; but even if it proved to have
substance, it would be preempted because of the collective
bargaining agreement, and yet the agreement may itself
provide no remedy. Preemption sometimes does result in
a 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 this outcome. If the
employee handbook is a gloss on the collective bargaining
agreement, perhaps the language already mentioned may
not only defeat the "management rights" defense but also
give rise to affirmative obligations on the part of the
employer enforceable through arbitration. Or, perhaps
arbitration would: yield a definitive ruling that the
"management rights" clause, and any other clause relied
upon by Shaw's, is not "inconsistent" with the rights
contingently secured by the statutes.
If all else fails, the union is free to negotiate language
that eliminates this issue the next time it renews its labor
agreement. The parties entered the current agreement in
1994, well after Magerer was decided, but the absence of
such language in the present agreement may be an
oversight. All that it would take to prevent preemption is
an explicit provision stating that nothing in the agreement
is intended to create management rights inconsistent with
any workers' rights under sections 75A and 75B.
Finally, in a reply brief, Martin and her union (which
appears as an amicus and has ably supported Martin)
offer a preemption claim of their own. They say that a
discharged non-union worker could invoke the
Massachusetts statutes and that by allowing the collective
lla
bargaining agreement to extinguish Martin's rights, the
Massachusetts proviso discriminates against members or
former members of unions, thereby offending federal
labor policy. This, they say, Livadas itself forbids.
Livadas struck down a state administrative practice
because it effectively discriminated against union
members as compared with non-members, 114 S. Ct. at
2074-75, a preemption theory that has nothing to do with
section 301. On the reasoning of Livadas, Massachusetts
arguably could not provide that a rehiring priority, or a
claim against retaliation, would be made available only to
workers who were not members of a union. But here
Massachusetts has done nothing of the kind.
Instead, the proviso in question permits the union on
behalf of its members to craft its own regime (the
agreement) and in it, either to preserve or displace
another regime (specified provisions of state law).
Viewed in the large, there is no discrimination whatever
against union members; Massachusetts simply allacws the
union to negotiate for a different package of benefits.
Next time, as we have noted, the union is free to kargain
differently.
Affirmed.
12a
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION
No. 96-10431-MEL
THERESA MARTIN,
Plaintiff,
SHAW/'S SUPERMARKET, INC.,
Defendant.
APPEARANCES: -
LANG, STRAUS, XIFARAS & BULLARD
115 ORCHARD STREET
NEW BEDFORD. MA 02740-3625
Attorney for Plaintiff: SCOTT W. LANG, ESQ.
SUSAN WEINER, ESQ.
NUTTER, McCLENNAN & FISH, L.L.P.
One International Place
Boston, Massachusetts 02110-2699
Attorney for Defendants: SHARON R. BURGER,ESQ.
VICTORIA L. BOTVIN, ESQ.
LASKER D.J.
Theresa Martin sues Shaw's Supermarket for
wrongfully refusing to rehire her to a suitable position in
violation of Sections 75A and 75B(2) of M.G.L. Chapter
l3a
152. Shaw's removed the case to this court pursuant to 28
U.S.C. § 1331 and now moves to dismiss both counts of
Martin's complaint for failure to state a claim upon which
relief may be granted, or in the alternative, for summary
judgment.
Shaw's argues that Martin's claims are preempted
by the Labor Management Relations Act (LMRA) 29
U.S.C. § 185. Shaw's contends that the resolution of
Martin's claims requires interpretation of a codlective
bargaining agreement (CBA) because
1) the rights afforded in §§ 75A and 75B are
inconsistent with the CBA's provisions, which afford no
right to be rehired, and 2) various provisions of the
CBA "could be construed to govern" her claims.
Magerer v. Sexton, 912 F.2d 525, 530 (Ist Cir. 1990);
see also Quesnel v. Prudential Ins. Co., 66 F.3d 8, 10 (1st
Cir. 1995) ("Section 301 completely preempts a state law
claim if the resolution of the claim necessitates analysis of,
or substantially depends on the meaning of, a coilective
bargaining agreement."')
Martin moves to remand the case, arguing that her
action does not depend upon the interpretation of a CBA
because the CBA is silent as to the rehiring of an injured
worker. Martin attempts to distinguish her claim from
that of an employee seeking relief for a termination itself
by stressing that she does not contest her termination, but
rather, Shaw's failure to rehire her, and that this
distinction means her dispute is not covered by the CBA.
Are Martin's clairas subject to the CBA?
Whether Martin is currently a union member is
not relevant to the question of whether her claims are
subject to the CBA. In Quesnel v. Prudential Ins. Co., 66
F.3d 8 (Ist Cir. 1995), the First Circuit held that the
plaintiff, a District Agent, was subject to the CBA's terms
because he was '"'a member of the bargaining unit for
whose benefit the CBA was created," even if he was not a
union member. Id. at 11. In the present case, there is no
dispute that Martin was a member of the United Food
and Commercial Workers Union, Local 791, AFL-CIO,
when she was dismissed. Accordingly, Martin's claims
are subject to the CBA's terms.
Do Martin's claims require interpretation of the CBA?
In Magerer v. John Sexton & Co., 912 F.2d 525
(1st Cir. 1990), the plaintiff alleged that his dismissal was
in retaliation for exercising his rights under the
Massachusetts Workers' Compensation Act, in violation
of M.G.L. Chapter 152, § 75B. The First Circuit held that
the plaintiff's claim for retaliatory discharge was, by the
express terms of the statute, subject to the terms of any
applicable collective bargaining agreement. Because the
CBA at issue in Magerer contained several provisions
that “could be construed to govern the conduct
underlying plaintiff's retaliatory discharge claim," the
resolution of that claim 'depend[ed] on an interpretation
of the collective bargaining agreement, so that the claim
[was] completely preempted by Section 301e" Id. at 530.
15a
Martin is correct that the provisions of the CBA in the
present case do not clearly delineate whether an injured
employee who has been dismissed has a right to be
rehired. However, Shaw's contention, that severa} of the
CBA provisions "could be construed to govern" the
plaintiff's claims, is more persuasive. Consistent with the
findings in Magerer, Martin's claims are preempted by
Section 301. Accordingly, it is for an arbiter to determine
either 1) whether the CBA affords a right to be rehired or
2) whether the existing provisions of the CBA in fact
apply to Martin's claims.
At oral argument, the parties indicated that the Union
had previously brought a grievance on behalf of Martin,
but that it later withdrew from the proceedings. Because
there is no evidence of record as to the final result of those
proceedings, Martin's claims are dismissed for .such
further proceedings as required by the CBA.
Martin's motion to remand is denied, and Shaw's
motion to dismiss is granted.
It is so ordered
Dated: Boston, Massachusetts June 20, 1996
U.S.D.J.
l6a
UNITED STATES COURT OF APPEALS
No. 96-1863
FHERESA MARTIN,
Plaintiff, Appellant,
Vv.
SHAW'S SUPERMARKET, INC.,
Defendant, Appellee.
BEFORE
Yorruella, Chief Judge,
Aldrich, Senior Circuit Judge.
Selya, Boudin, Stahl and Lynch, Circuit Judges
ORDER OF COURT
Entered: February 28, 1997
The panel of judges that rendered the decision in
this case having voted to deny the petition for rehearing
and the suggestion for the holding of a rehearing en banc
having been carefully considerated by the judges of this
Court in regular active service and a majority of said
judges not having voted to order that the appeal be heard
or reheard by the Court en banc,
It is ordered that the petition for rehearing and the
suggestion for rehearing en banc be denied.
17a
COLLECTIVE BARGAINING AGREEMENT
AGREEMENT
BETWEEN
UNITED FOOD AND
COMMERCIAL WORKERS UNION
LOCAL 791, AFL-CIO
AND
SHAW'S SUPERMARKETS, INC.,
SOUTHERN REGION
AND EAST BRIDGEWATER DISTRIBUTION
CENTER
EFFECTIVE DATES
JULY 31, 1994 - JULY 27, 1997
18a
TABLE OF CONTENTS
Contents Article Page
Appendix "A" 142
Wage Scale
Side Letters of 108
Agreement
Check off 3 5
Duration of 24 106
Union Contract
Funeral Leave 9 35
Grievances- 13 55
Arbitrations
Holidays and 6 20
Sundays
Hours ; 4 9
Insurance- 10 36
Pension
Jury Duty 16 64
Management 20 102
Meat Department 18 7
Military Leave 23 105
Misc. Provisions 17 66
No Strike - 15 63
Lockouts
Recognition 1 1
Scope of 21 103
Agreement
Seniority 12 48
19a
Separability & 22 104
Saving Provision
Sick Leave 8 32
Stewards i4 60
Uniforms 11 47
Union Security 2 3
Vacations 7 28
Wages - Wage 5 17
Payment
Warehouse 19 72
AGREEMENT
20a
This Agreement is made and entered in to this 31st day of
July 1994 between Shaw's Supermarkets, inc. (for the
Southern Region and East Bridgewater Distribution
Center), a Massachusetts corporation with its principal
place of business located at East Bridgewater,
Massachusetts hereinafter referred to as the "Employer",
and United Food and Commercial Workers Local 791,
AFL-CIO, a voluntary unincorporated association
hereinafter referred to as the "Union".
ARTICLE 1
RECOGNITION
Subject to any applicable provisions of State or Federal
Law or regulation now or hereafter in effect, the
Employer recognizes the Union as the _ exclusive
bargaining agent with respect to wages, hours, and other
conditions of employment of all Employees at the
Employer's stores and warehouses presently, or hereafter,
located in the following counties within the
Commonwealth of Massachusetts: Norfolk, Plymouth,
Bristol and Barnstable and the State of Rhode Island,
including Part-time Employees, but excluding executives,
buyers, store managers, assistant store managers, one
associate assistant manager per store and one personnel
coordinator per store, office clerical employees, guards,
professional employees and supervisors as defined by the
National Labor Relations Act, and as hereinafter used in
this agreement the words "Employee" and "Employees"
will be deemed to refer and only to an employee or
employees, respectively, of the Employer in the
bargaining unit described above.
The Employer raay employ two additional non-unit
21a
managers in new prototype stores. In high volume
conventional stores the Employer may employ one
additional non-unit manager provided that there is a
full-time grocery manager assigned. In any conveational
store with a food service operation, the Employer may
employ two additional managers if there is a full-time
grocery manager and one additional manager if no
full-time grocery manager is assigned.
ARTICLE 2
UNION SECURITY
A. All Employees who are members of the Union
as of the signing of this Agreement shall remain members
of the Union as a condition of continued employment with
the Employer.
B. All present Employees who are not now
members of the Union shall make application for
membership not later than the thirtieth (30th) day
following the signing of this Agreement; and, if accepted,
must remain members of the Union as a condition of
continued employment with the Employer.
C. All Employees hired or transferred into the
bargaining unit subsequent to the signing of this
Agreement shall, not later than the thirtieth (30th) day
after such hiring or transfer, make application for
membership, and if accepted, must remain members of
the Union as a condition of continued employment with
the Employer.
D. The provisions of paragraph A., B., and C., of
the Article shall not apply to any Employee covered by
this Agreement whose membership in the Union is denied
or whose membership therein has been terminated for
reasons other than the failure of such Employee to tender
his/her initiation fee of periodic dues.
E. It is understood that the Employer shall not be
22a
required to discharge any Employee under this Article for
reasons other than the failure to pay periodic dues or
initiation fees uniformly required as a condition of
acquiring or maintaining membership in the Union.
F. The Employer agrees to notify all new
Employees under the bargaining-unit about their
obligations under this Article. New Employees shall be
considered proba:ionary for the first thirty (30) days of
employment whica probationary period may be extended
an additional thirty (30) days by mutual agreement of the
Employer and the Union. The store Manager must notify
the Union office in writing, prior to the extension.
G. In the event of a new store opening, there
shall be a sixty (60) calendar day probationary period for
newly hired Employees for that store, which probationary
period may be extended an additional thirty (30) days by
mutual agreement of the Employer and the Union. The
Store Manager must notify the Union of office in writing,
prior to the extension.
ARTICLE 3
CHECKOFF
A. The Employer, or each of its Employees
who, individually and in writing, duly authorize the
Employer to do so, will deduct from the earnings payable
to each Employee, initiation fees and weekly union dues
for such Employee's membership in the Union and shall
promptly remit to the Union all such deductions
accompanied by a list of Employees from whom
membership dues have been collected and this amount so
deducted. Said deductions shall be made from the wages
paid on each weekly payday and shall be remitted to the
President of the Union not later than the Friday of each
week.
B. The form of authorization shall be that set forth
below and shall be revocable at the time and in the
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manner as therein described. ''You are hereby authorized
and directed to deduct from my wages, the Initiation fee
and the weekly dues as established by members of the
United Food and Commercial Workers Union, Local 7918
AFL-CIO and certified to you by the President of that
Union." "The sum(s) so deducted by you shall be remitted
to the President of the Union.
This authorization shall remain in effect until:
(a) Revoked by me and shall be irrevocable for a
period of one (1) year from the date appearing hereon; or
until the expiration of the present Agreement between the
Employer and the Union (whichever is sooner) at which
time it may be revoked by written notice by me to the
employer by registered mail at any time during the period
of ten (10) days prior to the expiration of the one 1 year
period or ten (10) days prior to the expiration of the
present Agreement (whichever is sooner);"
(b) When transferred permanently out of the
bargaining unit. If no such notice is given, this
authorization shall be irrevocable for successive periods
of one (1) year thereafter, or until the termination of the
then current Agreement, whichever occurs sooner, with
the same conditions and privileges or revocation at the
end of each such period.
Signature
Date
C. The employer agrees to deduct pericdicaliy
from the pay of each employee who is a Union member
and who executes an appropriate voluntary check-off
authorization form to the UFCW Active Ballot Club the
amount specified in the checkoff authorization form
signed and dated by the employee. The deduction shall
continue for the life of this agreement for each employee
who signs a check-off authorization from unless the
employees revokes the authorization in writing. The
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employer agrees to transmit periodically UFCW Active
Ballot Club deductions to the UFCW Active Ballot Club
in Care of the local "Union" or the UFCW, as may be
appropriate together with the names of employees for
whom deductions have been made and the amount
deducted for each employee.
All deductions and transmittals shall be subject to
and in strict accordance with all applicable laws.
D. The erployer agrees to deduct periodically
from the pay of cach employee who is a Union member
and who executes an appropriate voluntary check-off
authorization form to the UFCW Local 791 special
Defense Fund the amount specified in the checkoff
authorization form signed and dated by the employec.
The deduction shall continue for the life of this agreement
for each employee who signs a checkoff authorization
form unless the employee revokes the authorization in
writing the employer agrees to transfer periodically
UFCW Local 791 Special Defense Fund deductions to the
UFCW Local 791 Special Defense Fund in care of the
local union or the UFCW, as may be appropriate,
together with the names of employees for whom
deductions have been made and the amounts deducted for
each employee.
All deductions and transmittals shall be subject to
and in strict accordance with all applicable laws.
ARTICLE 4
HOURS
Section 1.
Hours of employment as heretofore observed by
the Employer, shall, except as otherwise provided,
continue in effect during the term of this contract. The
Employer agrees that no employee shall receive a
reduction in wages or increase in hours worked without
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being paid therefore as a result of this contract.
Section. 2.
Full-Time Employees.
The regular work schedule for full-time employees shall
be forty (40) hours, five (5) days, a week provided in
Article 6, Section.
Section 3.
A. Part-Time Employees. For purposes of the
Agreement, a part-time employee is defined as one who is
not normally scheduled to work less than 35 hours
weekly. If a part time Employee works more than 36
hours in a week, he/she shall be paid a premium cf 30%
for all hours worked in excess of 36 hours.
B. Part-Timers shall work no less than fifteen (15)
hours a week, Monday through Saturday except during a
holiday week. However, all part-time employees hired
prior to July 27,1974, shall have the discretion to work no
less than twelve (12) hours a week except during a holiday
week. Part-timers shall work no less than ten (10) hours a
week during holiday weeks, except during weeks with
Saturday holidays, when there shall be no minimum
hours.
C. When additional part-time hours on a regular
schedule are available preference shall be given, in the
order of seniority to the part-time Employee, in the
department (up to 32 hours a week), within the
classification within the store, provided said employee is
available on a continuing basis. Part-time employees
interested in such additional hours shall submit a
statement on a prepared form indicating hours and days
available on a continuing basis. The assignment of
additional hours, if practicable, shall be made among said
part-time employees who submit such statements. This in
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no way restricts the Employer from working employees
across classifications,
Section 4.
Overtime, Overtime shall be worked and paid for
when authorized by the Store Manager, the Assistant
Store Manager, and Associate Assistant Store Manager or
their designated person in charge. No one shall be
compelled to accept overtime in the stores.
Section §,
Evening Work. No Employee who is Full-time as
of July 21, 1985 will be required to work more than two
(2) evenings per week (after 8 PM.), except warehouse
employees, present (as of July 27, 1985), Full time night
stocking employees, night cleaners and night bakery
employees.
Section 6.
Overtime Pay. Hours worked by Full-time
employees in excess of forty (40) shall be compensated for
at the hourly rate of one and one-half (1/2) times their
regular rate for said excess hours, and’ in excess of
thirty-two (32) hours in a holiday week. If there are two
holidays during a week, overtime shall be paid after
twenty-four (24) hours.
Section 7.
A. Call-in and Report Pay. When Full-time or
Part Time Employees are called in for other than their
scheduled hours, they shall be paid a minimum of four
hours at the applicable rate. Reporting pay shall not be
payable when the failure to provide work is beyond the
control of the Employer.
B. Call-In Hours, Part-time employees who desire
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additional call-in hours shali submit a statement on a
prepared form indicating the days and hours available
for call-in hours on a continuing basis, and a telephone
number where said employee can be reached, from which
group a list shall be established. The assignment of call-in
hours shall be made, as far as practicable, from said list
in order of seniority. Failure of a Part-time employee on
said list to report in response to a call on two (2)
consecutive occasions shall result in a removal of that
Employee's name from the list for a period of two (2)
months unless otherwise mutually agreed.
This procedure does not apply when the Company
determines to assign hours on a hold-over basis.
C. Additional Hours. When additional hours of
unscheduled hold-overs hours are available, they shall be
distributed to the senior qualified part-time employee in
the department then on duty.
Section 8.
A. Schedule. The schedules of all store
employees shall be posted by 1:00 P.M. the Friday of the
previous week in ink at the store time clock. The schedule
listing shall be made by department in order of seniority.
The schedule and any change therein shall remain posted
for the entire week. Where changes are necessary, the
Employer will make all reasonable effort to change the
work schedules at least one day in advance; however, the
Union recognizes that this will not be possible when
factors are beyond the Employer's control, such as failure
of the Employee to notify the Employer in reasonable
time that he/she will not report for work. Any schedule
changes for stock-taking will be made the Friday of the
previous week.
B. Supper hours will begin no earlier than
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3:30 P.M.
e Employees assigned to early A.M. grocery
stocking shall be scheduled no less than four (4) hours.
D. No employee shall be required to work a
scheduled split shift. A split shift shall be defined as any
shift where there is more than a sixty (60) minute break in
the work schedule.
Section 9.
Sharing of Overtime. The Employer will continue
its practice as to sharing of overtime within the
department.
Section 10.
Rest Periods. Full-time Employees may take
fifteen (15) minutes, for mid-morning rest period and
fifteen (15) minutes for mid-afternoon rest period. Such
period to include time for lunch, if desired Department
Head will be responsible for arrangement of rest periods
to assure that there will be no description of customer
service. Part-time employees shall receive a fifteen (15)
minute break during their work shift. Part-time employee
who works a seven (7) hour shift shall be given two (2)
fifteen (15) minute break in addition to lunch period.
Relief periods shall be given as near as possible to the
middle of the forenoon, after-noon, and evening work
period. When overtime work is assigned to full-time
employees after a regular work schedule, a twenty (20)
minute break shail be scheduled immediately prior to the
overtime and a fifteen (15) minute break each two (2)
hours of overtime thereafter, except when said break
coincides with the end of the work period; a third fifteen
(15) minute break will be provided to all store employees
when working a scheduled eleven (11) hour day. Breaks
for cashiers shail begin when their cash drawer is
secured.
Section 11.
Schedule Changes. The Employer retains the right
to alter the presently existing schedule of hours at its
discretion where necessary, in its opinion, to the efficient
operation of its business in the utmost of providing a
better services to its customers at lowest cost to it. Lhe
Employer however, agrees that it will not institute any
changes in the work schedule affecting any change in the
substantial proportion of the Employees (such as a
change in shifts or company-wide or store-wide changes
for a substantial period of time in regular hours of
employment) without affording the Union reasonable
opportunity to discuss such a change prior to announcing
such change.
ARTICLE 5 e
WAGES-WAGE PAYMENT
A. The rates of pay in effect during the term of
this Agreement shall be those set forth in Appendix A
hereto attached. All store Employees shail be paid in cash
or check.
B. Paychecks shall be ready no later than 9:00
A.M. Wednesday except that if Wednesday is a holiday,
Warehouse checks shall be ready not later than 2:60 P.M.
on Tuesday and store checks shall be ready not later than
8:00 A.M. on Thursday. The employer agrees to arrange
with an area bank to cash checks at no expense to the
employee.
C. Vacation pay shall be paid in advance of
the vacations and checks will be cashed in the stcres, at
no cost to the Employee. Warehouse Employees will be
paid on the next to the last day of work, prior to vacation.
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D. The employer may hire, on a store by store
basis, at any rate on the wage schedules or at rates above
the schedules and such hiring rate will be the minimum
hiring rate for that store as long as that store retains that
rate. When a store raises it's hiring rate for inexperienced
employees in any job classification incumbent employees
in that classification in that store who are below the new
hiring rate will move immediately to the new hiring rate
and thereafter progress to the next higher rate upon
completion of six (6) months at the hiring rate, and will
continue to the next higher rate each six (6) months
thereafter until they reach the maximum rate.
When a store reduces a hiring rate for new hires,
no incumbent employee will be affected.
An employee training a new employee who was
hired at an increased rate under this provision will be
paid not less than the increased rate during the training
period. .
Any part time store employee will be allowed to
transfer to a store offering a higher starting rate.
The employer will notify the Union in writing
prior to implementing higher wage rates. The employer
retains the right to place newly hired employees at wage
rates above the hiring rate based on prior relevant
experience in comparable super markets, but not to
exceed the top rate in Appendix A.
ARTICLE 6
HOLIDAY- SUNDAYS
SECTION 1.
The Employer agrees to recognize the following
twelve (12) days as paid holidays under this Agreement,
as hereinafter provided.
Major Holidays
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New Years Day
independence Day
Memorial Day
Labor Day
Christmas Day
Thanksgiving Day
Three Personal Holidays*
*Personal holidays shall be granted on two (2)
weeks prior notice, except that the employer may, on a
seniority basis, limit the number of employees taking a
particular day if the demands of the business so require.
Personal days may be used for an employee's birthday on
two weeks prior notice. If an employee does not use
his/her personal days they will be forfeited unless the
employee is unreasonably denied a requested day.
PART TIME 7
Employees hired on or after July 31, 1994 witl earn
personal days during their first vear of emnlovment.
based on their period of employment, on the following
non-cumulative schedule: one day after 3 months; one
day after 6 months; one day after 9 months; three days,
effective January 1, (after 6 months of service)
Personal holidays will be rescheduled if the
employee is out sick or on funeral leave.
Minor Holidays
Patriots Day
Columbus Day
Veterans Day
Rhode Island Stores. In Rhode Island Stores, the
holidays are the same, except the V-J Day is substituted
for Patriots Day and is recognized as a major holidzy.
32a
Section 2.
Hvuliday Pay Eligibility - Full - Time
Employees. In vider to be eligible for holiday pay, an
Employee must be a Full time employee and must have
worked his/her last scheduled work day before, and the
first scheduled work day after, the holiday, except for
absence due to death in a family in accordance with
Article 9 of this Agreement, or in case of proven illness in
which case he/she must have worked at least one day
during the holiday week. If a Full-time employee is
injured on the job in a holiday week and is absent his/her
scheduled work day before, or after, the holiday, or both,
because of said injury, he/she shall not suffer the loss of
holiday pay for that week only in which the said injury
occurs.
Section 3.
A. Holiday Pay Eligibility - Part Time Employees.
Part-time employees who have averaged twelve (12) hours
per week during the eight (8) weeks prior to the two (2)
weeks immediately preceding the week in which the
holiday falls (including paid vacation, holiday hours, and
paid sick leave shall be paid for the holiday according to
the average number of hours worked during the aforesaid
eight (8) week period as set forth below; provided that
they have been employed by the Employer for six (6)
months, and worked the last scheduled day before and
the first scheduled day after the holiday, except for
absence due to death in the family in accordance with
Article 9 of this Agreement, or in case of proven illness, in
which case they must have worked at least one day during
the holiday week.
B. lf a Par‘-time employee is injured on the job in
a holiday week and is absent on his/her scheduled work
day before, or after, the holiday, or both, because of said
injury, he/she shall not suffer the loss of holiday pay for
BEST AVAIL
33a
that week only in which the said injury occurs.
C. A Part time employee who is absent for part of
the eight (8) week period due to a work related injury
shall be paid holiday pay of at least four (4) hours (at
least six (6) if employed for five (5) years or more) if
he/she meets the above requirements for work during the
holiday week.
D. A Part time employee who returns from « work
related injury on the day after a holiday which is his/her
first regularly scheduled work day in that week
(excluding days absent because of proven illness or
absence due to funeral leave in accordance with Article 9)
is eligible for holiday pay of at least four (4) hours (six (6)
if employed for five (5) years or more if he/she meets any
requirements which apply for Full time employees
concerning medical documentation of the accident.
Less than 24 hours - 4 hours pay
24 to 30 hours - 6 hours pay
30 to 35 hours - 7 hours pay
35 hours and over - 8 hours pay
E. Part-time Employees with five (5) or more years
of service shall be paid a minimum of six (6) hours of
holiday pay if they meet the above requirements for work
during the holiday week.
F. Part-time employees shall not be disqualified
from holiday pay by virtue of job related injury when
otherwise eligible.
Section 4.
A. Work Performed on a Holiday or Sunday. If
any work is performed on any of the minor holidays, all
employees who work on such days will be compensated at
the rate of one and one-half (1 1/2) times their regular
rate of pay for hours worked in addition to receiving their
34a
regular weekly pay for the week but such hours worked
shall not be counted as hours worked toward figuring
weekly overtime. All employees hired before July 31, 1994
who work on major holidays will be paid the rate of two
(2) times their regular rate of pay for hours worked in
addition to receiving their regular weekly pay for the
week but such hours worked shall not be counted as
hours worked toward figuring weekly overtime. The
foregoing shall also apply to store employees hired on or
after July 31, 1994, except that the work on the holiday
will be compensated at time and one half their regular
rate of pay. For purposes of this Article, during holiday
weeks the scheduled work week for all Full-time
employees shall consist of thirty-two (32) hours, unless
two holidays fall during the week, in which case the
scheduled work week shall be twenty-four (24) hours.
B. If the Employer elects to open its store or a
department withia. the store on Sunday, the Employees
will receive one and one half time their regular rate of
pay for all hours worked, such hours to be voluntary.
Prior to implementing such a schedule, the Employer will
notify the Union and discuss same. Employees employed
as of November 6, 1988 as night floor cleaners will be
compensated at two (2) times their regular rate of pay for
night cleaning performed on Sundays as long as they are
employed as night floor cleaners. Store maintenance
employees will be paid double time for work on Sundays.
Section 5.
If the Employer wishes to call in full-time Store
employees for adced work on regular work days during a
holiday week, all Store employees shall-have the option of
working the difference between the thirty-two (32) and
forty (40) hours. Hours in excess of thirty-two (32) in a
holiday week shall be paid at the rate of time and one-half
35a
(1 1/2). In the warehouse time and one-half (1 1/2) shall be
paid for work performed on the Sth work day in a
holiday week (full time only) regardless of the number of
hours worked.
Section 6.
Except for regularly scheduled shifts in the
warehouse, and overtime scheduled in connection
therewith, when a store or the warehouse is open on a
Sunday, or holiday, Employees who work shall be paid a
minimum of four (4) hours at the applicable rate.
Section 7.
When an Employee is requested by the Employer
to work any Sunday or holiday, Employee shall receive
the Sunday and holiday rates described above for hours
worked, but such hours worked shall not be counted as
hours worked toward figuring weekly overtime. e
Section 8.
The Employer agrees to pay eligible employees
holiday pay prior to the vacation where the holiday falls
during the vacation.
Section 9.
The Employer shall follow industry practice
within its geographic area with respect to store closing on
New Year's Eve and Christmas Eve. Employees shall
work up to forty-five minutes, as needed, beyond closing
hours in the event of early store closing on said days.
ARTICLE 7
VACATIONS
Section 1.
Emplovees shall receive the following paid
vacations each year:
36a
1 Year } Week
2 Years or more 2 Weeks
5 Years or more 3 Weeks
12 Years or more4 Weeks
20 Years or mores Weeks
Eligibility shall be on the anniversary date of
employment
Section 2.
Part-time Employee Eligibility. A part-time
employee with less than five (5) years service as of the
anniversary date of employment must have accumulated
at least 250 hours (including vacation, holidays, and
illness) during the year prior to his/her anniversary to be
eligible.
Section 3. ;
Scheduling of Vacations. Vacations taken during
the regular vacation season will be assigned on the basis
of the Employee's Company seniority with limitations
being placed upor such classifications as are necessary, in
the opinion of the Employer, to properly effectuate the
demands of the business. When a holiday falls during a
vacation week the employee is to receive an extra day of
vacation, either the last scheduled work day prior to that
vacation or the first scheduled work day of the week that
the employee returns to work at the employee's option
and that week shall be treated as a holiday week for all
purposes. The Employer will make its best efforts to
schedule each full-time employee for two weeks of his/her
vacation during the public school vacation, before any
other vacations are scheduled.
Schedules for vacation shall be posted on April 15.
Employees shall have an opportunity for the succeeding
37a
two (2) weeks to indicate their vacation preference in
order of seniority in their classification.
Vacations must be taken in the calendar year in
which they accrue and may not be accumulated, except
with the consent of the Employer.
Section 4.
Amount of Vacation Pay. Pay for vacation hours
will be based on the regular weekly rate and schedule.
Overtime shall not be counted in determining vacation
pay. Vacation pay for Part time employees will be based
on the average hours worked during the 52 weeks
preceding their most recent anniversary. Weeks during
which an employee was absent due to temporary illaess or
injury will be excluded from the calculation.
All part-time insurance deductions are to be taken
out of the paycheck prior to the vacation.
Section 5.
An employee shall not be required to take his/her
military training duty as his/ her earned vacation.
Section 6.
Acerucd vacation pay choll ha GP aw taeeminotinn
except a discharge due to dishonesty.
Section 7.
Any employee with four (4) or more weeks
vacation may take one week in vacation days. Full week
vacations and personal days will take precedence over
requests for vacation days.
ARTICLE 8
SICK LEAVE
Section 1.
A. All Full-time employees who have at least one
38a
year of service as of January 1 , and who are actively
employed will be credited with nine (9) days of sick leave
effective each January 1, or on such later date when they
resume active employment. Any sick leave which remains
unused as of December 31, 1989 and each December 31,
thereafter, will be reimbursed at full pay during the
month of January provided the employee is still employed
as of December 31.
B. Full Time employees who attain their first
anniversary date after January 1 will be credited with one
(1) day of sick leave for each full 45 calendar days
remaining in the calendar year. Any days remaining
unused at the end of the year will be reimbursed under
the conditions set forth above. Employees who are
promoted to full time during the year will be credited
with one additional day of sick leave for each full 45 days
remaining in the calendar year up to a maximum
entitlement (inclusive of part time sick leave) of nine days
in the year.
C. All Part time employees who have at least two
years of service as of January 1 and who are actively
employed as of January 1 will be credited with 24 hours
of sick leave each January 1, or on such later date when
they resume active employment. Any sick leave which
remains unused as of December 31, 1989 and each
December 31 thereafter, will be reimbursed at full pay
during the month of January, provided the employee is
still employed as of December 31. Part time employees
who attain their second anniversary date after January 1
will be credited with two hours of sick pay for each full
month remaining in the calendar year. Any hours
remaining unused at the end of the year will be
reimbursed under the conditions set forth above.
D. Any employee who has sick days or hours
accumulated under the carryover provisions as of
39a
December 31, 1988 will be allowed to maintain that
existing balance. One half of any days remaining in a full
time employee's current year sick leave allowance as of
December 31, 1988 will be credited to the sick leave
carryover up to a maximum carryover of 40 days. One
half of any hours remaining on a part time employee's
current year sick leave allowance as of December 31, 1988
will be credited to the sick leave carryover up to a
maximum carryover of 100 hours. Sick leave shall be
charged against current sick leave allowance until
exhausted.
E. The anniversary date of Employees will be the
Monday of the week in which the anniversary of their
employment occurs. In the event an eligible Employee
receives Worker's Compensation, the Employer agrees to
pay only the difference to total a regular weekly wage.
F. Verifications of accidents or illness by medical
authorities may be required by the Employer. Sick leave
will not be computation of overtime compensation.
ARTICLE 9
FUNERAL LEAVE
A. In the event of a death in the immediate family
of a full-time Employee, the full-time Employee shall be
granted three (3) working day's leave without loss of pay
which shall include the day of burial. A leave of five (5)
work days without loss of pay, which will include the day
of burial shall be granted in case of death of the spouse,
child or stepchild of the Employee.
B. For the purpose of this Article, it is agreed that
a member of the immediate family shall be considered to
be the Employee's Father, Mother, Brother, Sister,
Mother in-law, Father-in-law, Grandchild, or any
member of the family residing in the Employee's home.
40a
G. The date of notification of death of a member of
the immediate faraily to those Employees who are on the
job shall not be counted as one of the three (3) days
funeral leave.
D. The Employer agrees that in the event of the
death of a Grandparent, Son-in law, Daughter-in-law,
Brother-in-law, or Sister-in-law, of any full-time
employee, the Employee shall be granted one (1) work
day off without loss of pay to attend the funeral.
Part-time Employees shall be granted the same funeral
leave benefits without loss of pay only according to hours
they are regularly scheduled to work during this period.
E. An employee on funeral leave will be allowed to
use sick leave, personal days, or vacation days as an
extension of funeral leave.
ARTICLE 10
INSURANCE PENSION
Section 1.
A. (1) Fuil-time employees will be eligible for
Shaw's Best Care Insurance provided by Pilgrim Health
Care. Under that plan employees' payments for covered
services provided by network providers based on
referrals from the employee's primary care physician will
be limited to $5.00 for each physicians visit and 10% of
the cost of other covered benefits up to an annual
out-of-pocket maximum of $250 per individual and $500
per family. Beginning January 1, 1996 the annual
calendar year out-of-pocket maximums will be increased
to $300 per individual and $600 per family. Employees
will be held harmiess from any balance billing by Pilgrim
contracted hospitals or physicians, provided they comply
with the referral requirements The Employer will provide
a full maternity hospitalization benefit available under
said plan.
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(2) Non-emergency covered services from
providers outside the network, or obtained from in
network providers with-out a referral frorn the
employee's primary care physician will be subject to the
following payment arrangements: Covered services will be
paid at 70% of customary and regular charges ajter an
annual deductible of $200 per individual and $400 per
family, with annual maximum out-of pocket maximums
limited to $1, 500 per individual and $3,000 per family.
Beginning January I, 1996 the annual calendar year
out-of-pocket maximums under this paragraph will be
increased to $2,500 per individual and $5,000 per family.
(3) Charges for doctors visits, payments for
prescription drugs, balance billings and charges for
failing to follow utilization of referral procedures shall
not be counted in determining whether the out-of-pocket
maximums have been reached.
(4) The Employer shall provide coverage for
dental care, for which all full-time employees shall be
eligible on a family basis after one year service. Said
dental plan will provide 100% payment for covered
procedures when performed by a participating dentist.
(5) Full-time employees may take advantage of the
Employer's opt out plan for medical insurance coverage
beginning not later than October 1, 1994. Employees
electing to exercise this option will receive additional
payroll compensation of $100 per month in lieu of the
insurance coverage provided above.
B. Part-time employees with six (6) months or
more of service may purchase at their own expense
individual or family dental coverage under the dental
plan. After two (2) years of service the Employer will pay
for the cost of individual dental coverage for part-time
employees.
C. The Employer shall provide part-time
42a
employees individual coverage under its insurance plan
with the following eligibility requirements:
(1) All part-time employees hired before July 31,
1994 will be eligible after two years of service All
part-time employces hired on or after July 31, 1994 shall
be eligible after three years of service.
(2) No part-time employee, otherwise eligible, shall
be afforded coverage who is presently or subsequently
covered under any other group health insurance plan.
Said coverage shall be subject to any non-duplication
and/or coordination of benefits provisions in the
insurance plan.
D. Part-time employees who are not eligible for
Employer paid individual coverage may, after six months
of employment, purchase at their own expense individual
coverage under the above described medical insurance
plan. Early retirees hired before July 31, 1994 and early
retirees hired on or after July 31, 1994 who retire with
twenty (20) years of Shaw's service may purchase, at their
own expense, coverage under the above described medical
plan, exclusive of the dental plan. Part-time employees
who are eligible for Employer paid individual coverage
may purchase family medical and dental plan coverage
and will pay the additional cost over individual coverage.
The Employer shail contribute 35% of the additional cost
for part-time employees with five or more years who wish
to purchase the family plan.
E. Full and part-time employees who were enrolled
in HMO's as of July 16, 1991 will be entitled to remain
covered under the plan in which they are enrolled as long
as that plan is willing to provide group Insurance to
Shaw's employees. The Employer will pay the cost of such
HMO coverage for full-time employees with a
contribution not to exceed the Employer's prevailing
insured medical cost. For part-time employees with more
43a
than two years of service the Employer will pay the cost
of HMO individual coverage with a contribution not to
exceed the Employer's prevailing insured medical
premium for individual coverage. In the case of part-time
employees with five or more years service who maintain
continuing family coverage under an existing HMO, the
Employer's contribution will not exceed 35% of the
additional cost of family coverage under the Employer's
prevailing insured medical and dental plans.
Section 2.
A. Weekly Disability. Effective on July 27, 1991,
the Employer will provide full time employees with one
year of service: Weekly sickness and accident coverage
(by insurance or otherwise) in an amount equal to
two-thirds of a normal week's pay, with a maximum of
$330.00 per week for 26 weeks, effective after the
Employee has exhausted Company sick leave, subject to
the terms of the applicable insurance policy. This
coverage shall not apply in the case of injury covered by
Worker's Compensation Act.
B. Effective July 27, 1991, the Employer will
provide part-time employees with two (2) years of service,
who have exhausted sick leave benefits, weekly sickness
and accident coverage (by insurance or otherwise) in the
amount of $105.00 per week for twelve (12) weeks, to
become effective the 8th day of absence due to illness or
injury. This coverage shall not apply in case of injury
covered by the Worker's Compensation Act.
Section 3. Life Insurance. The Employer will provide
full-time Employees with one year of service, life
insurance in the amount of $20,000.00. The Employer will
provide part-time employees with two years of service life
insurance in the amount of $:~,000.00.
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Section 4.
A. Pension. The Employer has established a
Pension Plan for eligible full-time employees to provide
past and future scrvice benefits for each year of credited
‘service, subsequent to January 1, 1975. Effective
November 6, 1988. Employees will be eligible for up to a
maximum of 40 years of credited service under the plan.
The basic benefit will be $29.00 per month for ail
employees retiring between July 27, 1993 and July 30,
1996, and $32.00 per month for all employees retiring
after July 31, 1996. A supplemental pension credit will be
applicable to work performed in warehouse and store
maintenance Positions. The multiplier for credited service
in such positions shall be $34.00 for retirements from July
27, 1993 to July 20, 1996; and $37.00 for retirements on
and after July 31, 1996.
B. Eligible part-time employees shall be entitled to
future service pension benefits on a fractional basis for
each year of credited service subsequent to January |,
1976.
C. Employees who have retained profit sharing
accounts will be given the choice of either rolling those
funds into a 401(k) account or exchanging those funds for
a past service benefit for all credited service prior to
January 1, 1975 at the multiplier applicable in the years
in which they retire, unless either or both of these options
is not administratively possible or would result in an
appreciable financial loss to any participant. Reasonable
efforts will be made to accomplish these rollovers by
December 31, 1991. The progress of this transition will be
a subject for discussion in the Joint Labor Management
Committee discussed in Article 10, Section 5.
D. Any future non-technical amendments to the
Union pension plan shall be subject to approval by the
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Union.
E. Neither the provisions of this Article nor any
question as to the application or interpretation of any of
said programs may be made the subject of a grievance or
be arbitrable under this Agreement, Section 5.
Joint Labor Management Committee for
Employee Benefits. The Union and the Company will
establish a Joint benefits committee. Each party will
designate up to five representatives to serve on the
committee. The committee will meet bi-monthly between
the effective date of the contract through the end of 1991.
Thereafter, the committee will meet at least quarterly.
The committee will jointly determine agendas for
each meeting. Minutes of each meeting will be kept and
shared with the Union and the Company. The committee
will prepare an annual report describing its findings and
achievement. Members of the committee who disagree
with the contents of the report may file a response which
will be included as part of the report. This report will be
distributed to the Union and the Company at the end of
the month following the first, second and third years of
the contract. The Company agrees to provide access to all
Union-related employee benefit information, regarding
employees within the collective bargaining unit. The
committee is responsible for keeping this information
confidential.
The committee will play an active role with
bargaining unit employees in the implementation of any
new employee benefit programs. The committce will
review and assess all education programs related to
bargaining unit employee benefit programs. The
committee will assess the quality and costs of all emplovee
benefit programs, and recommend changes or
modifications of these programs where appropriate.
A special study group will be established within
the committee to evaluate the funding strategy and the
investment strategy and financial performance_of the
Union-pension plan.
ARTICLE 11
UNIFORMS
A. Whenever the Employer requires’ the
Employees to wear uniforms coats, aprons, or frocks, the
uniforms shall be furnished and laundered by the
Employer. Full time employees shall be furnished such
laundered uniforms with not more than two (2) changes
weekly, except that Employees in the meat rooms shall be
provided daily changes and shall also be provided
thermal vests, if requested, provided the Employees so
requesting shall wear the vest. Meat Cutters shall be
provided with protective aprons, and Employees assigned
to Meat Room cleaning duties shall have coveralls
available to them. Part-time employees will be provided
uniform changes as necessary. Each Employee shall turn
in the soiled garment in order to receive a fresh one and
should use every precaution to keep said garment clean.
B. Thermal vests shall be provided to the primary
person responsible for Dairy and Frozen Food.
C. Three protective aprons shall be made available
to warehouse maintenance Employees when handling
corrosive substances and shall be made available to
porters as needed.
D. The Employer will have anti-corrosive footwear
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available for the use of store and warehouse maintenance
employees when working with acid.
E. Overnight Grocery Stockers shall wear and be
furnished with Company polo shirts. (One polo shirt will
be provided by the Employer for Wells Crew Employees
between the months of May 30 and September 30),
ARTICLE 12
SENIORITY
A. When ability, availability and skills are equal,
the principle of seniority is to govern in cases of lay-off
and recalls within each job classification as a separate
seniority unit. Meat cutters who would otherwise de laid
off and who have previously served as second men may
bump less senior second men in order to avoid being
laid-off. For all purposes of this Agreement, seniority
means the Employee's continuous service with the
Employer beginning with the date of last hiring as an
Employee without seniority and ending when:
(1.). The Employee quits or is discharged for cause;
or
(2.) When an Employee is absent for more than two
(2) days without having notified the Employer unless
prevented from doing so by good causes; or
(3.) When the Employee is laid off or absent
because of illness or other bona fide reason for more than
one (1) year in case of full-time Employee or six (6)
months in the case of part-time Employee, or unless
Employer grants longer leave of absence;
(4.) When the Employee fails to report te work
promptly on the expiration of any leave of absence unless
such Employee secures an extension of such leave of
absence with the consent of the Employer.
(5.) When an Employee fails to return te work
48a
after lay-off within a week after the certified mailing
notice of recall. Any notice required to be given by this
Article, shall be considered given when the same has been
deposited in the mail addressed to the Employee at
his/her last knowa address as shown by the Employer's
record.
(6) An employee promoted out of the bargaining
unit shall lose seniority after ninety (90) calendar days for
all purposes, except fringe benefits.
B. Full-time employees laid off because of lack of
work when no other full-time work is available shall be
offered part-time work at the rate applicable thereto if
part-time work is available even if displacement of
part-time employees is required. A full-time employee
who accepts part-time work shall be given preference for
reemployment for full-time work as if he/she were on
lay-off. The Employer agrees that it will provide the
President of the Union with three (3) copies of written
statement of the names and addresses of each person
hereinafter employed by it for more than six (6) days.
C. The foregoing principles shall apply to
part-time Employees in each job classification as separate
seniority unit.
D. Respecting promotions, the qualifications and
ability of the Employee shall be considered in conjunction
with seniority. The Employer agrees to make a sincere
effort to train in advance senior Employees to fill future
higher-rated classifications. Final determination on
promotion shall rest with management which shall be the
sole judge of qualifications, giving consideration to
seniority and this determination shall not be subject to
arbitration. Any Employee promoted or transferred to a
higher rated classification who subsequently proves
unsatisfactory in such higher rated classification, shall be
returned to the pusition held first prior to the promotion
49a
or transfer at the prevailing wage for this position with no
loss of seniority rights. Employees promoted after July
27,1991 can step back only during the first six months.
E. When a full-time clerk is needed, preference
shall be given to the senior part time Employee, provided
the Employee is qualified and available for full-time
work. When a full-time employee is needed in the
warehouse, preference shall be given to the senior
part-time warehouse employee who is either qualified and
available for full-time work or who, in the opinion of the
employer, could qualify after a reasonable training
period. 7
F. Union employees shall have priority over
nonunion employees for vacancies in Union stores
provided the Employee is qualified for the vacancy. The
Company will give the Union copies of all postings names
of applicants and the successful applicant.
G. The Employer shall furnish the Union with an
up-to-date seniority list for full time Employees and
part-time Employees quarterly on request. When a
full-time Employee has had prior continuous service as a
part-time Employee before being appointed to full-time
and has worked full-time for a continuous period of two
(2) months he/she shall be credited for one (1) month of
service for each two (2) months of part-time service for
the purpose of lay-off by seniority, rate classification, sick
leave, life insurance and disability insurance. When the
part-time employee is made a full-time employee within
the same department he/ she is credited with part-time
service, one month for each two months of part-time
service, for the purpose of lay-off by seniority, rate
classification, sick leave, life insurance and disability
insurance immediately upon assuming full-time status.
These benefits shall not be applied retroactively. When a
full-time Employee becomes a part-time Employee, he/she
50a
shall retain his/her full length of service for ali part-time
benefits. Any part-time employee promoted to full-time
after July 31, 1994 shall retain his/ her full vacation
benefit.
H. When a part-time clerk is needed, the job will
be posted within the store so that all employees within the
store may notify nanagement that they are interested in
the position.
I. When a store employee transfers to the
warehouse, he/she shall be placed at the bottom of the
seniority list with no loss of company seniority towards
benefits and wages. .
J. When 2 warehouse employee transfers to the
stores, he/she shall be placed at the bottom of the
seniority list with no loss of Company seniority towards
benefits and wages.
. ARTICLE 13
GRIEVANCE ARBITRATION
A. For purposes of this Agreement, the word
"Grievance" shall be deemed to mean only a dispute
between the Empioyer and the Union and the Employees
it represents concerning the meaning or application of
this Agreement.
B. An effort shall be made to dispose of all
grievances as soon as reasonably possible pursuant to the
following provisions:
(1) The Employee, together with his/ her
steward, or the steward alone, if he/ she wishes, within ten
(10) calendar days after the occurrence of the situation,
condition or action of management giving rise to the
grievance shall meet with the Store Manager or Shift
Supervisor to adjust the grievance. The Store Manager or
Shift Supervisor will have five (5) calendar days after the
meeting to answer the grievance.
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(2) If the grievance is not resolved by the Store
Manager's or Shift Supervisor's answer, the Union
Representative will have seven (7) calendar days after
receipt of the answer to notify the District Manager or
Warehouse Manager that the grievance is being advanced
to their level. The Union Representative will mect with
the District Manager or Warehouse Manager, or their
respective designees, within seven (7) calendar days after
receipt of the notice to attempt to resolve the gricvance.
The District Manager or Warehouse Manager or their
designee, shall be responsible for answering the grievance
within seven (7) calendar days after their meeting.
(3) If the grievance is not settled at Level 2, it
shall be reduced to writing and filed with the Director of
Labor Relations within seven (7) calendar days of the
Step 2 answer. The Director of Labor Relations shall
discuss the grievance with a Union Representative and
endeavor to settle the grievance. The Director of Labor
Relations shail be responsible for giving an answer in
writing within seven (7) calendar days aftcr the
conclusion of the discussion under Step 3. The Union will
take this matter up at its next regular Executive Board
Meeting to be held no later than the 15th day of the
month after the Director of Labor Relation's answer and
if the matter is not resolved it must be referred to
arbitration within 14 days after the said Executive Board
Meeting, but such referral may not be made by an
individual employee. _
C. In the event that either party (Union or
Employer elects to submit a grievance to arbitration, the
Arbitrator shall be selected and governed by the
following procedures
D. If the parties do not agree upon an impartial
arbitrator within seven (7) days, the matter shall be
submitted to the American Arbitration Association for
52a
appointment of an arbitrator and for hearings in
accordance with its rules.
E. The decision of the Arbitrator shall be final
and binding upon the parties hereto and upon any
Employee, or Employees, affected thereby. The
Arbitrator shall however, have no power either to add to
or subtract from, or to modify any of the terms of this
Agreement, or «any Agreement made supplementary
thereto. If either party contends that the above provision
has been violated, the matter may be referred to any
court of competent jurisdiction which shall have the
power to determine the question and which shall interpret
this agreement in accordance with the commonly
accepted meaning of the words used herein and the
principle that the parties are agreed that there are no
restrictions intended on the management of the Employer
other than those expressly set forth herein. The grievance
procedure and arbitration provided for herein shall
constitute the sole and exclusive method of determination,
decision and adjustment of settlement between the parties
of any and all grievances as herein defined.
F. Each of the parties hereto shall bear his own
arbitration cost and one-half (4) of the fee and expenses
of the arbitrator. Grievances, so far as practical, shall be
taken up after working hours and no payment shall be
made by the Employer for time spent by an Employee in
dealing with grievances at such time; except a reasonable
amount of time spent by Employees in routine adjustment
of a grievance in working hours under the first step of the
grievance procedure set forth in the preceding
paragraphs of this Article shall be paid for by the
Employer as though time worked; Steward's, or
alternatively Chief Steward's, time in settling grievances
during his/her regularly scheduled hours, under step one
and two, shall be paid for by the Employer.
53a
G. Nothing contained herein shall prevent an
Employee from exercising his/ her rights under Section 9
(a) of the Labor Management Relations Act of 1947, as
amended.
H. A grievance not initiated within the time limit
specified, holidays excluded, will be deemed waived.
Failure of the moving party to appeal a decision within
the time limits specified will mean that the grievance shall
be considered settled on the basis of the decision last
made and shall not be eligible for further appeal. Failure
of a party to answer or meet within the time limit
specified will mean that the appeal may be taken to. the
next step immediately. This provision shall apply equally
to grievances brought by the Employee, the Union. to the
Employer.
ARTICLE 14
STEWARDS é
A. The Union shall have the right to have one (1)
steward in each of the Employer's stores covered dy this
Agreement, in the warehouse, one (1) for each shift, one
for warehouse maintenance and one for store
maintenance. The Vice President from the warehouse
shall be the chief steward. The Union may designate an
alternate steward in each store and on each warehouse
shift; the alternate stewards shall be recognized by the
company in the absence of the regular steward. A second
alternate in the store and/or the warehouse may be
designate if so desired by the Union.
B. In addition to their seniority right as regular
Employees, Stewards and Union officers shall have top
seniority if layoffs due to lack of work within their
respective store and classification, or within their
warehouse shift. Alternate stewards shall not have top
54a
seniority.
C. No Steward or alternate shall be transferred
unless such transfer is mutually agreed upon between the
Employer and the Union. No more than one Steward or
alternate per department shall be protected.
D. In no _ instance shall the Steward be
discriminated against for discharging duties.
EK. The Union shall supply the Employer with a list
of the Stewards and the store locations. The Union will
notify the Employer of all changes.
F. The Steward shall not in any way interfere with
the Manager in his/her operation of the store.
G. The Union agrees to do everything within its
power through advice, instruction, and examples to
obtain compliance by its members with the obligations
undertaken in this Agreement. The Employer agrees to do
everything within its power through advice, instruction,
and examples to obtain compliance by its Supervisors
with the obligations undertaken in this Agreement.
H. The Union shall, within a reasonable period of
time, be notified in writing of all suspensions and
discharges after the probationary period. :
I. The Union will conduct an annual seminar for
stewards to be scheduled on a mutually agreeable date,
which shall be a Monday, Tuesday or Wednesday and
which shall not be in the week before a holiday. One
steward per store, one steward for each warehouse shift,
one steward for warehouse maintenance and one steward
for store maintenance will receive one day off with pay to
attend the seminar. The Employer will pay all said
individuals.
ARTICLE 15
NO STRIKE- LOCKOUTS
5Sa
A. It is mutually agreed by the parties hereto that
throughout the life of this Agreement there shall be no
strikes, lockouts, picketing, boycotts, or stoppage ot work,
and that any difference or misunderstanding as to
meaning or application of this Agreement which may
arise between the contracting parties shall be amicably
adjusted by and between the parties themselves under the
grievance procedure herein above provided.
B. In the event of the threat of, preparation for, or
occurrence of any unauthorized strike, walkout,
picketing, boycott. or stoppage of work, the Union and all
of its officials will promptly take every possible step to
prevent and to stop such action by any of its members.
C. It is further mutually agreed that the Employer
shall have the unqualified right to take any action it
deems advisable, including discipline and discharge,
against any Employee engaging in, participating in,
encouraging, aiding and abetting any such unautherized
strike, walkout, or stoppage of work. However, any issue
of fact as to whether or not any particular Employee
engaged in, participated in, or encouraged any st<ike or
work stoppage, may be subject to the grievance procedure
established by Article 13 hereof.
D. This Article shall not be construed so as to
preclude the Union from engaging in lawful organizing
activities at nonunion stores.
ARTICLE 16
JURY DUTY
Any full-time Employee who is called to serve for
jury duty shall receive pay on actual hours worked for
the Employer. If this pay, together with his/her jury duty
pay, does not equal his/her regular five (5) day weekly
rate of pay, the Employer shall make up the difference,
56a
providing he/she works for the Employer during such
hours when, because the jury is not sitting, he/she is
reasonably available for work. However, the Employee
shall not be required to work the sixth day if he/she serves
on Jury Duty and/or works five (5) days or more in a
regular week and he/she shall not be required to work the
fifth day if he/she serves on Jury Duty and/or four (4)
days or more in a holiday week. An employee on jury
duty shall be granted holiday pay as if he/she were
working regularly. Part-time Employees after one (1)
year's service shall receive like benefits on a pro-rata
basis. Days spent on jury duty shall be counted as eight
hours worked for purposes of overtime eligibility. Part
time employees will be paid jury duty pay for days served
on jury duty on which they had been at work during the
previous week.
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 1.
No Employee shall be obligated to use a privately
owned vehicle for Company business.
Section 2.
A. Employees injured while at work and requiring
outside medical service must first notify the store
Manager, or Warehouse Supervisor, and shall be paid for
time lost while visiting the doctor. If an Employee is
required by the doctor to be absent from work, he/she
shall be paid for the entire day, including lost overtime, if
the injury occurs after the overtime begins.
B. Thereafter, the Employee shall be paid for time
lost while visiting the doctor during his/he working hours
for a scheduled appointment provided the Employee
returns to work tc complete his/her scheduled hours.
Section 3.
The Employer shall not enter into individual
agreements with Employees with respect to terms and
conditions of employment.
Section 4.
Safety Committee meetings shall be held monthly
in the stores and in the warehouse for each shift. The
Store Steward may attend the monthly store Safety
Committee Meetings.
Section 5.
One bulletin board in each store and two in the
warehouse shall be designated as Union bulletin boards.
Section 6A.
If an Employee is called in on his/her day eff or
temporarily transferred to another store farther from
his/her home than is his/her home store he shall Le paid
twenty-seven and one half cents ($.275) per mile for each
additional mile traveled except if the transfer is to avoid a
layoff or is at the Employee's request.
Section 6B.
No Employee shall be permanently transferred
more than 20 miles from his/her home store without
his/her consent, except that transfers to staff new stores
where the Union is recognized, and the first backfill,
made during a three month period at the time of a store
opening will be subject to a thirty mile limit, provided
that Employees so transferred shall thereafter be paid
twenty seven and one half cents per mile for miles in
excess of 20. Thereafter the employee's former store shall
be considered his home store until he is retransferred
58a
back to within twenty miles of the home store.
Section 7.
There shall be a designated second person at each
lunch counter.
Section 8.
Warning 2nd suspension shall not be used for
disciplinary purposes after 12 months.
Section 9.
Non-union personnel may perform work in
accordance with past practice. It shall not be a violation
of this provision to allow not more than two non-unit
management trainees, per store, to perform bargaining
unit work.
Section 10.
Covers will be provided for all cashier tills.
Section 11.
The Employer will not subject any Employee to a
lie detector test, or request, directly or indirectly, any
Employee to take a lie detector test. This does not apply to
lie detector tests administered by law enforcement
agencies.
Section 12.
it shall not be a violation of this agreement ior the
Employer to allow third party operation of leased
departments, within its stores, staffed by employees of the
leased operator, to operate specialized departments that
can't be operated by Shaw's (e.g banks, pharmacies,
travel agencies, hair salons, etc.).
Section 13.
59a
Store cards or decals of the Union shall be
displayed in a prominent place in all of the Employer's
stores covered by this agreement, but these cards or
decals shall remain at all times the property of the Union.
Section 14.
The Employer will notify the Union in writing of
all terminations, suspensions, job postings and policy
changes that affect the bargaining unit.
Section 15.
Safety and Health Committee.-
The Employer will cooperate with the Union in the
joint operation of the Safety and Health Committee,
which meets at least quarterly, which shall consist of
members of management and union representatives. The
Employer agrees to pay all employees their rate of pay to
attend seminars that are developed by the Committee.
ARTICLE 18
MEAT DEPARTMENT
A. The Employer and the Union shall review the
number of and activities of the Apprentice Meat Cutters
so that Apprentices shall have an opportunity to progress
in all phases of the meat business.
B. An Employee promoted to Apprentice Cutter
Shall maintain his/her rate 0' receive the starting rate
listed in the Apprentice schedule, whichever is higher. If
his/her rate is higher than the starting rate of Apprentice,
he/she shall receive his/her next increase in pav after
having served the required period of time in accordance
with the Apprentice Progression Scale herein and shall
thereafter receive the applicable progression rate and
he/she shall receive all general increases. A warehouse
employee will receive the applicable rate of a general duty
60a
clerk for length of service or the beginning rate listed in
the apprentice schedule, whichever is higher.
C. Store Manager will notify both Management
and Union when starting an Apprentice Meat Cutter.
D. Meat room cleaning Monday through Friday
will normally begin not before 8 P.M. and Saturday not
before 12 noon except days of early closings and day
before holidays where Saturday schedule will be followed.
E. Apprentice meatcutters may cut on Sundays, at
the meatcutter rate, if no meatcutters are available.
ARTICLE 19
WAREHOUSE
Section 1.
A. Overtime-Warehouse: Employees must be
notified of required overtime work prior to luncheon
break on day oa which overtime is required to be
performed, or prior to leaving the warehouse on Friday
where Saturday work is required.
B. If notified thereafter, the Employee may decline
such overtime work at his/ her discretion. No notice
required for one (1) hour overtime.
C. As far as practical, consistent with maintenance
of the efficiency of the Employer's operations, overtime
work will be rotated among qualified full-time Employees
in the classificatioa in question.
Section 2
1. Warehouse Hours: Employees may be assigned,
by seniority, to regularly scheduled work weeks of five (5)
days - eight (8) hours per day, or four (4 days - ten (10)
hours per day subject to the following provisions.
A. Five (5) day week, forty (40) hour week.
Time and one half (1 1/2) for work after forty (40) hours
weekly and after thirty-two (32) hours in a holiday week
6la
unless two holidays fall during the week in which case the
scheduled work week shall be twenty-four (24) hours.
Time and one-half (1 1/2) will be paid full-time warehouse
Employees for time worked before and after their
scheduled regular work day, as long as employees work
their entire regularly scheduled shift. Management
retains the right to alter schedules provided total
remaining scheduled hours in the week are not cut.
(1.) Regular full time warehouse employees
hired prior to July 27, 1982 shall be scheduled to work
forty (40) hours on five (5) consecutive days, Monday
through Friday or Tuesday through Saturday.
(2.) Full time employees hired on or after
July 27, 1982 shall be assigned to work five (5) day: forty
(40) hours per week with two days off, one of which shall
be Sunday.
(3.) All employees hired or appointed after
July 27, 1985 may be assigned to a scheduled shift ending
no later than 7:00 A.M. Sunday. They will be given two
consecutive days off the first of which shall be designated
as the time and one-half (1 1/2) day and the second of
which shall be designated as a double time (2) day. There
will be no normally scheduled shifts between 7:01) A.M.
and 10:30 P.M. Sunday. Any employees hired prior to
July 27, 1985 that work between 7:10 A.M.. and 10:30
P.M. Sunday will do so voluntarily.
B. Four (4) day - ten (10) hour per day -
forty (40) iivuur week. Time end one half (1 1/2) for ork
after forty (40) hours weekly or in excess of ten (10) hours
in a day thirty (30) hours in a holiday week, unless two
holidays fall during the week, in which case the scheduled
work week shall be twenty (20) hours. Time and one half
(1 1/2) will be paid full time warehouse employees for
time worked before and after their scheduled regular
work day as long as employees work their entire rezularly
62a
scheduled shift. Management retains the right to alter
schedules, provided total remaining scheduled hours in
the week are not cut.
B. (1) All employees on the four (4) day - ten
(10) hour per day forty (40) hour week will have three
days off; including Sunday,- two of the three days must
be consecutive. The Company will work with the Union,
through alternative scheduling, part time pickers and ail
other means possible to better suit all employees shift
schedules.
B. (2) Holiday Hours 4-10's and Jury duty.
The employee will be compensated in full days from the
appropriate category not to exceed the following limits.
(90) hours holiday, (30) hours personal day, and (72)
hours sick pay in any combination, not to exceed a total of
(170) hours pay.
Personal time may be used as sick time only after
50 sick hours have.been used. If an employee goes back
to the five (5) day, eight (8) hour day schedule his/her
holiday hours and personal hours shall be recalculated
back to what is left of the allowable (72) sick hours.
If an employees from five 5 day eight 8 hour day
schedule to the four 4 day ten 10 hour day schedule and
has no sick time jeft to convert to holiday hours, he/she
shall be able to use Personal time to fill holiday hours.
The emplovee will be able to use the said (72) sick
hours to be converted in order to receive ten (10) hours
pay for his/her 9 holidays and 3 personal days.
The emplovee may declare twice a year the way in
which these benefit hours will be used.
New Years day will be a mandatory ten hour paid
holiday for all employee on the ten hour schedule. After
such time the employee will be able to declare how he/she
shall be compensated for his/her holiday pay.
If an employee goes back to the five (5) day, eight
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(8) hour day schedule his her holiday hours and personal
hours shall be recalculated back to what is left of the
allowable (72) sick hours.
An employee working a four (4) day ten (1¢) hour
day schedule shall not be required to work a fifth day if
he/she serves on jury duty and/or works four (4) days or
more, and he/she shall not be required to work the four
hour day if he/ she serves on Jury Duty and/or three (3)
days or more in a holiday week. An employee on jury
duty shall be granted holiday pay as if he/she were
working regularly. (All other references can be found in
Article 16)
C. Each warehouse shift shall have its own start
time which will be the same for all employees on said
shift.
D. All warehouse employees shall be paid tw» times
their regular rate of pay for work performed on major
holidays or Sunday except that double time shall not be
paid for regularly scheduled shift hours.
E. Full time employees shall be paid at the rate of
one and one-half (1 1/2) times their regular rate of pay for
hours worked on their scheduled day off other than
Sunday.
F. There will be no pyramiding on overtime.
G. Premium pay of thirty-five (3.35) cents per hour
will be paid all Employees on second shift. For purposes
of this Agreement, second shift shall mean any Employee
when their shift starts at 12:00 noon, cr after.
H. Part time warehouse employees will receive
overtime pay at time and one-half for all hours worked on
their regularly scheduled days off (except Sundays and
holidays) provided they work the regularly scheduled day
before and the regularly scheduled day after the
scheduled day off, except in case of injury or proven
illness or death in the family under Article 9. After 36
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hours the employee's base is increased by 30%.
Section 3. Part-Time Pickers
The Company may use part time pickers under the
following circumstances:
1. a. Part time pickers may be used only
when the thirty four (34) reduced hour full time
employees referred to in the 1994 warehouse side letter
are all moved to forty (40) hour status.
b. In the first two years of the contract there
may be a 10% ratio of part time picker's to the full time
union work force, as reflected on the Full time seniority
list
c. In the third year of the contract there
may be a 15% ratio of part time pickers to the full time
union work force as reflected on the full time seniority
list, provided that the full time seniority list at the East
Bridgewater Distribution Center includes not less than
227 individuals. If the number of individuals on the full
time seniority list drops below 227 then the allowed
percentage of part time pickers drops to 10%.
d. Part-time pickers will only be allowed to
select unless the print is complete in which case the
Company may assign them other General warehouse
duties in accordance with the shape up procedures.
e. Part-time pickers will work the least
desired shifts and schedules that the full time employees
do not wish to work.
f. Part-time pickers will not perform
classified jobs.
g. Part Time pickers shall work a maximum
of three days in a work week.
h. Part Time Pickers shall work a minimum
of 16 hours and a maximum of 24 hours per week, except
as provided under paragraph (1).
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i. Part Time Pickers shall work no less than
six and no greater than ten hours per day.
j. All schedules shall be honored by
seniority.
k. Holiday Week: Part time pickers shall be
scheduled at a minimum of 16 hours in a holiday week
and maintain their holiday pay.
1. Part time pickers can only work
additional hours to relieve forced overtime situations
when all other means have been exhausted Part time
pickers cannot be forced to work additional hours.
m. Part-time pickers will be paid at the
applicable Part Time Picker wage scale.
n. Part time pickers will be given their
schedules seven-(7) days in advance.
o. There shall be a three (3) week nctice of
lay-off
2. The Company agrees to work with the Union to
eliminate the split work week on the third shift, through
either alternative scheduling or any other means possible.
Th
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