# Petition for Writ of Certiorari — Martin v. Shaw's Supermarkets, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0886%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 818 ## Text 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