Reply Briefm — Martin v. Shaw's Supermarkets, Inc.

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(2) No. 96-1965 f

In The

Sep 8 1997 |

Supreme Court of the os neal me - 7

+

October Term, 1996

THERESA MARTIN,

Petitioner,

VS.

SHAW’S SUPERMARKETS, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit

REPLY BRIEF FOR PETITIONER

BETSY EHRENBERG SCOTT W. LANG

ANGOFF, GOLDMAN, Counsel of Record

MANNING, PYLE SUSAN FORGUE WEINER

& WANGER, P.C. LANG, XIFARAS

24 School Street & BULLARD, P.A.

Boston, MA 02108 115 Orchard Street

New Bedford, MA 02740

MARSHA S. BERZON (508) 992-1270

ALTSHULER & BERZON

177 Post Street

Suite 800

San Francisco, CA 94108

Attorneys for Petitioner

utz

—_ (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 Mnrgelat

ervices, inc. WP

TABLE OF CONTENTS

Further Reasons for Granting the Writ..............

I. There Is A Conflict In The Circuits Over The

Reach Of Section 301 Preemption. ..........

II. The First Circuit’s Decision Does Not “Misapply

A Properly Stated Rule Of Law,” It Misapprehends

Section 301 Pre-emption, Threatens States’

Exercise Of Powers To Protect Their Citizens, And

Threatens The Dockets Of The Federal Judiciary

With Innumerable Workers Compensation Cases

Removed From State Courts. ...............

PS ong toe a are ee er aaa 3

TABLE OF CITATIONS

Cases Cited:

Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S. Ct. 1904,

De Be Oe AEE eas 505 eeda vnesouneceses

Caterpillar v. Williams, 482 U.S. 386, 107 S. Ct. 2425, 96

i er ee TE i oe ea weed wane eew ene ces

Fort Halifax v. Coyne, 482 U.S. 1 (1987) ...........

Kohl’s Food Stores v. State of Wisconsin and Hyland, 32

Pe Cree COU GE COMED odes den ccdcewesucunes

3,6

3,6

2,9

3,4

il

Contents

Page

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988) ... 5,6

Livadas v. Bradshaw, 512 U.S. 107 (1994) ......... 3, 4, 6,9

Loewen Group International, Inc. v. Haberichter, 65 F.3d

BOTT CESS noo nnkcsccsanbagevessaeesaseaues 3,4

Magerer v. John Sexton & Co., 912 F.2d 525 (ist Cir. 1990) :

Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983) ;

Statutes Cited:

Be Cite SB BOGID on on bancusceaunseneweawanues 6,7

Br nS UO ci 5 denn ance caceeneesaaeeens passim

TF Pe, Coe. BO. BT 6.5 5 vcd incaweceacnsunss 8

Ark. Stat. Ann. § 11-9-505(a)(2) ..............005- 8

Coes, Gath, TU: BDU Sae x one cee eGinnecceuawunee 7

PUR: GN PED 6 cnccevannce danas eneenaenteee 8

ak. DOO. SE. TA. Bee 6 oe hn eka eundianwsnenes 8

ee. Geek: a, SR OE hh dw nc cdca wes ener 4

ili

Contents

Page

BO oi on ven n-s sce enncesvebe cs 4

EE ccc ce cew es kcecessesseceeuss +

a OE PO. tka ae cccecevesees 1,4, 8,9

EE Se 1, 4, 8,9

Ee | | 4

Me. Rev. Stat. Ann. tit. 39, § 66-A (1996) ........... 7

Me. Rev. Stat. Ann. tit. 39-A, § 110 ................ 7

Ce 8

re 8

N.H. Rev. Stat. Ann. § 281-A:25:a (1995) ........... 7

R.I. Gen. Laws § 28-33-47 (1956-1996) ............ 7

ED So ewe neccsceswviccusecens 3

Rules Cited:

SY RE BOD va vce ccecececvscscesecus l

EE Bs vn ooo 6s ecw seccecesesseess 2

supreme Court Rule 15.6 .......ccccccccccccccacs l

iv

Contents

Other Authorities Cited:

Re ee rr rer rr re a

Bureau of National Affairs, Inc. Basic Patterns In Union

Comiracte Te Cie OE Bee bv bn kee se awceassess

Petitioner Theresa Martin (“Martin”), pursuant to Supreme

Court Rule 15.6, respectfully submits this brief Reply to the Brief

In Opposition of Respondent Shaw’s Supermarkets, Inc. (“Shaw’s”

or “the Company”) to Martin’s Petition for a Writ of Certiorari.'

Martin addresses three points raised by the Respondent: (1) the

First Circuit’s reading of the provisos in Massachusetts’ workers’

compensation law to change the character of the state rights granted,

SO as to require pre-emption,’ does not resolve the asserted conflicts

with decisions of this Court and other circuits, it creates them; (2)

the decision below misstates the law of Section 301 pre-emption;

and (3) even construing the First Circuit’s decision to misapply “a

properly stated rule of law,” Supreme Court Rule 10, Opposition at

8, certiorari is warranted where, as here, misapplication of Section

301 preemption denies enforceability to Massachusetts’ balancing

of substantive employment standards’ with workers’ rights of self-

determination, and could be applied to nullify other states’ similar

exercise of their police powers.

1. Martin shall refer herein to Respondent's Brief in Opposition as

“Opposition,” followed by the appropriate page citation; to her Petition For Writ

of Certiorari as “Petition,” and to the Appendix as “App.”

2. In its opinion, the First Circuit states, “It is very doubtful whether, without

this last-quoted proviso, Shaw’s would have any plausible claims 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.” App.

6a.

3. Mass. Gen. L. ch. 152, § 75A (“Section 75A”) grants a previously work-

injured individual preference in hiring over other non-employees of the former

employer. App. 122a. Mass. Gen. L. ch. 152, § 75B (“Section 75B”) prohibits

an employer from discriminating against an employee because of the exercise of

rights under the workers compensation statute. App. 123a-124a.

2

FURTHER REASONS FOR GRANTING THE WRIT

I. THERE IS A CONFLICT IN THE CIRCUITS OVER THE

REACH OF SECTION 301 PREEMPTION.

This case presents, in the words of the First Circuit, “‘a difficult

preemption issue ...,” App. 2a, and warrants grant of a Writ of

Certiorari because of the compelling need to resolve enduring

conflicts concerning important questions of federalism: i.e. the

reach of Section 301 pre-emption where a state, in the exercise of

its police powers, attempts “to balance the desirability of a particular

substantive labor standard against the right of self-determination

regarding the terms and conditions of employment.” Fort Halifax

v. Coyne, 482 U.S. 1, 22 (1987). See also Supreme Court Rule

10(a). Here, the linchpin of the First Circuit’s decision, and of

Shaw’s Opposition to this Petition for Certiorari, is the paradoxical

assertion that, contrary to the legislature’s apparent intent,

Massachusetts “has ... chosen to make the substantive rights

conferred by the statutes depend upon their not being ‘inconsistent’

with a labor agreement.” App. 7a. See also App. 9a (the “proviso

... May be producing some results that the legislature did not

intend”). Based on the premise that an element of the state right is

the absence of an inconsistency with a labor agreement, the First

Circuit thus concludes that Martin’s claims for non-retaliation and

for preference in hiring over other non-employees of Shaw’s are

preempted by the presence of a collective bargaining agreement

that does not cover her, “not because the collective bargaining

agreement is inconsistent with the state claims asserted, but because

it may be so and requires interpretation.” App. 8a-9a. Far from

resolving conflicts between its decision and those of other circuits,

and of this Court, the First Circuit’s strained reasoning creates and

perpetuates the conflicts.

Setting aside, for purposes of this Reply, cases in other circuits

that arise from non-statutory state law claims‘, there is no avoiding

4. It lies beyond the bounds of this Reply to rebut point by point Shaw's

attempts to distinguish the conflicting cases cited from the Second, Fourth, and

Fifth Circuits. Supreme Court Rule 15. See Petition at 12-13, 21-24.

3

the conflict between the First Circuit’s decision and that of the

Seventh Circuit in Kohl’s Food Stores v. State of Wisconsin and

Hyland, 32 F.3d 1075 (7th Cir. 1994) (hereinafter, “Kohl’s’’),

because applying the First Circuit’s reasoning to the statutory

language in Kohl’s would compel a result opposite to that reached

by the Seventh Circuit. Kohl’s, 32 F.3d at 1078-1079 (holding no

pre-emption). In Martin, the First Circuit read the Massachusetts

proviso to condition the substantive rights conferred “upon their

not being ‘inconsistent’ with a labor agreement,” and imported as

an element of plaintiff’s case a showing based inexorably on

contract interpretation. App. 7a. In Kohl’s, Wisconsin’s workers

compensation statute required rehiring of a previously work-injured

employee “where suitable employment is available” and where “‘in

determining the availability of suitable employment ... any

collective bargaining agreement with respect to seniority shall

govern.” Kohl’s, 32 F.3d at 1077, quoting, Wis. Stats. § 102.35 (3).

Applied to the facts of Kohl’s, the First Circuit’s rationale would

construe Wisconsin to have intended its right to rehire, as in Martin,

to “depend upon” there being no overriding collective bargaining

agreement concerning seniority — that is, in the First Circuit’s

view, to be negotiable — and thus to require pre-emption. But

such was not the conclusion of the Seventh Circuit, Kohl’s, 32 F.3d

at 1078-1079, and Certiorari is warranted to resolve this conflict

on the important question of the reach of Section 301 pre-emption

where states grant employment protections that reference and/or

defer to terms contained in collective bargaining agreements.°

5. In the Loewen Group case cited by Petitioner, Petition at 13, 21-22, a

decision subsequent to that in Kohl's, the Seventh Circuit expressly rejected the

contention that pre-emption must follow where examination of a collective

bargaining agreement is necessary to determine whether there is any inconsistency

with an asserted state law right. Loewen Group International, Inc. v. Haberichter,

65 F.3d 1417, 1423 (1995); citing Allis-Chalmers v. Lueck, 471 U.S. 202, 211;

Caterpillar, Inc. v. Williams, 482 U.S. 386, 394; Livadas 512 U.S. 107, 124,

n.18. The Seventh Circuit emphasized,

... More to the point here, merely examining the

collective bargaining agreement to determine whether a

(Cont'd)

4

It begs the question to deny conflict exists between the two

circuits because the Seventh Circuit hinged its result on the “intent

of the Wisconsin legislature ... to make its substantive terms

nonnegotiable.” Opposition at 7. Indeed the First Circuit concedes

the intent of the Massachusetts legislature may well have been the

same. App. 9a. The statutes’ respective language equally suggests

the Massachusetts legislature, like the Wisconsin legislature, enacted

a Statute imposing “a rule of entitlement on all employers within

its jurisdiction ... ,” Kohl’s Food Stores, 32 F.3d at 1079, that

provided also for employer defenses based on collectively bargained

contractual obligations. Overlooked by the First Circuit, in fact

the Massachusetts legislature did express its intent that the proviso

to Section 75B state a waiver defense rather than “condition” the

granting of the statutory right: The final subsection of the anti-

discrimination provision, Section 75B(3) reads, “In the event that

any right set forth in this section is inconsistent with an applicable

collective bargaining agreement, such agreement shall prevail. An

employee may not otherwise waive rights granted by this section.”

Mass. Gen. L. ch. 152, § 75B(3) (emphasis added).° The

Legislature’s use of the phrases “otherwise waive” and “rights

granted” belies the First Circuit’s insistence on viewing the statutory

right as “depending on the absence of an inconsistency,” and thus

“dependent” on contract interpretation for purposes of Section 301

pre-emption. Cf. contra, Livadas, 512 U.S. at 125 (contractual

(Cont'd)

conflict actually exists is not “interpreting” the collective

bargaining agreement for § 301 preemption purposes.

{Citation omitted].

Loewen Group International, 65 F.3d at 1423 (emphasis added).

6. The Massachusetts provisos serve also to clarify the relationship between

rights granted in G. L. c. 152 and those derived from public employees’ collective

bargaining agreements (see, Mass. Gen. L. ch. 150E), and from state civil service

law, Mass. Gen. L. ch. 31. See, e.g., Mass. Gen. L. ch. 152, § 75A (“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.”)

5

waiver of state granted rights must be “clear and unmistakable,”

especially where state law otherwise prohibits waiver), citing Lingle,

486 U.S. 399, 409-410, n.9, quoting Metropolitan Edison Co. v.

NLRB, 460 U.S. 693, 708 (1983).

II. THE FIRST CIRCUIT’S DECISION DOES NOT

“MISAPPLY A PROPERLY STATED RULE OF LAW,” IT

MISAPPREHENDS SECTION 301 PRE-EMPTION,

THREATENS STATES’ EXERCISE OF POWERS TO

PROTECT THEIR CITIZENS, AND THREATENS THE

DOCKETS OF THE FEDERAL JUDICIARY WITH

INNUMERABLE WORKERS COMPENSATION CASES

REMOVED FROM STATE COURTS.

The First Circuit does not misapply a properly stated rule of

law when it holds § 301 pre-emption to apply simply because there

is a “question . .. whether Shaw’s labor agreement is colorably

inconsistent with Martin's state-law claims.” App. 7a (emphasis

added). See also Magerer v. John Sexton & Co., 912 F.2d 525, 530

(1st Cir. 1990) (“The collective bargaining agreement at issue here

contains several provisions that could be construed to govern the

conduct underlying plaintiff’s . . . claim”) (emphasis added). Nor

is the First Circuit correct to usurp jurisdiction and extinguish

Martin’s state law claims,

. not because the collective bargaining

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.

App. 9a (final emphasis added).

Rather, the First Circuit resists this Court’s warnings not to

6

apply Section 301 pre-emption overbroadly or, as to represented

workers, punitively, where states have exercised traditional police

powers to protect citizens in matters of employment. See, e.g.,

Livadas v. Bradshaw, 512 U.S. 107, 124, citing, Allis-Chalmers v.

Lueck, 471 U.S. 202, 213, 105 S. Ct. 1904, 1912, 85 L. Ed. 2d 206

(1985); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399, 410, 108 S. Ct. 1877, 1883, 100 L. Ed. 2d 410 (1988); see

also Livadas, 512 U.S. at 124, n.18, 114 S. Ct. at 2078, n.18

(“Holding plaintiff’s cause of action substantively extinguished may

not, as amicus AFL-CIO observes, always be the only means of

vindicating the arbitrator’s primacy as the bargained-for contract-

interpreter. [Citation omitted]”); Livadas, 512 U.S. at 130 (“the

widespread practice in Congress and in state legislatures ...

bestowing basic employment guarantees and protections on

individual employees without singling out members of labor unions

(or those represented by them) for disability”). As a result, the

decision below conflicts not only with decisions of other Circuits,

and of this Court, but is at odds with bedrock principles of federal

removal jurisdiction and Congress’ intent to keep federal dockets

clear of workers’ compensation matters. See Caterpillar v. Williams,

482 U.S. 386, 398-399, 107 S. Ct. 2425, 22431-2433, 96 L. Ed. 2d

318 (1987) (even where state court must interpret collective

bargaining agreement “to decide whether the state claim survives,”

no complete § 301 pre-emption for removal purposes); 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”).

To decide that the Massachusetts provisos displace the source

of Martin’s rights from the statute to Shaw’s collective bargaining

agreement, So as to require complete pre-emption, moreover, turns

Section 301 pre-emption on its head in a potentially far-reaching

way. The workers’ compensation laws of every other state within

the First Circuit contain provisos that, like Massachusetts’, defer

to collective bargaining agreements on subjects encompassed in

the state-granted rights. Thus, with respect to granted rights of

“transfer to suitable work,” Maine’s workers compensation law

provides,

7

The exercise of this authority shall not

conflict with any provisions of a collective

bargaining agreement... .

Me. Rev. Stat. Ann. tit. 39, § 66-A (1996).’ The legislatures of

New Hampshire and Rhode Island, like Massachusetts’, have

granted their formerly work-injured citizens the right to

reinstatement to their respective positions, if available, and have

further provided, identically, that such reinstatement,

. Shall be subject to the provisions for

seniority rights and other employment

restrictions contained in a valid collective

bargaining agreement... .

N.H. Rev. Stat. Ann. § 281-A:25:a (1995); R.I. Gen. Laws § 28-

33-47 (1956-1996). Under the reasoning of the decision below,

and in clear conflict with the Congressional intent codified at

28 U.S.C. § 1445(c)*, the First Circuit applies Section 301 pre-

emption so as to invite a deluge of removals of actions brought

under the workers’ compensation laws of every state within the

Circuit, that fairly threatens the continued enforceability of those

States’ protective measures, and threatens also the already

burdened dockets of the district courts and of this Court.?

7. Maine also provides that parties to collective bargaining may agree,

inter alia, to “light-duty, modified job or return-to-work programs.” Me. Rev.

Stat. Ann. tit. 39-A, § 110.

8. 28 U.S.C. § 1445(c) provides, “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.”

9. Examples abound from other circuits also of state workers compensation

laws that reference or defer to collective bargaining agreements on subjects such

as the availability of reemployment, including light duty, to those protected by

the state laws. See, e.g., Conn. Gen. Stat. § 31-313 (providing for reassignment

of injured workers to “other suitable full-time work in the employer’s

(Cont'd)

8

Nor is the First Circuit’s decision, as Shaw’s asserts, narrowly

limited by an “unusually sophisticated and detailed [collective

bargaining] agreement.” Opposition at 10. The First Circuit’s

analysis requires § 301 pre-emption of claims asserted under

§§ 75A and 75B whenever a “labor agreement is colorably

inconsistent with ... [the] state-law claims,” App. 7a, and in this

case finds a “management rights” provision to suffice. Jd. However,

management rights provisions are, in fact, commonplace in

collective bargaining agreements; at least eighty percent (80%) of

all labor agreements contain such provisions and at least seventy-

four percent (74%) of all agreements utilize the very language that

appears here — i.e. reserve to the employer the “sole right to manage

its business.” © See App. 76a. The First Circuit’s decision thus

(Cont'd)

establishment, if available; provided the exercise of this authority shall not conflict

with any provision of a collective bargaining agreement between such employer

and a labor organization... .”) (emphasis added); Ga. Code Ann. § 34-9-243

(providing for certain reductions in weekly benefits due to be paid by employers

“[e]xcept as otherwise provided in this Code section or in a collective bargaining

agreement... .”) (emphasis added); Minn. Stat. § 176.82 (requiring employers

to offer continued, alternative employment to work-injured employees and

providing “the provisions of any collective bargaining agreement shall govern”

in determining the availability of such employment) (emphasis added); also Ark.

Stat. Ann. § 11-9-505(a)(2) (same); Fla. Stat. § 440.211, Ky. Rev. Stat. Ann.

§ 342.277, Minn. Stat. § 176.1812, 77 Pa. Cons. Stat. § 1000.6 (all permitting

collectively bargained agreements to establish binding light-duty, modified-job,

and/or return-to-work programs).

10. Bureau of National Affairs, Inc. (“BNA”), Basic Patterns In Union

Contracts 79 (14th ed., 1995) (hereinafter, “Basic Patterns” or “the BNA survey”).

There is no relevance here to the statistic cited by Shaw’s that “only twenty-three

percent (23%) of the contracts in the survey’s data base contained hiring

provisions.” Opposition at 10, n.7. “Hiring provisions,” as discussed in the BNA

survey, do not refer to the mere mention of hiring within overearching

managements rights provisions, as here, but to separate contractual provisions

setting forth preferences for local, experienced, and/or union-furnished workers.

Basic Patterns at 99. There is no such provision in the collective bargaining

agreement here. See App. 17a-117a.

9

reaches, and effectively penalizes, the vast majority of employees

within Massachusetts (and arguably, as discussed supra, beyond

the Commonwealth) who have exercised rights to participate in

collective bargaining, by denying them access to state-granted

protections on matters concerning reemployment and non-

retaliation after receiving workers’ compensation benefits. See

Livadas, 512 U.S. at 116, 114 S. Ct. at 2074 (“A state rule

predicating benefits on refraining from conduct protected by federal

labor law poses special dangers of interference with congressional

purpose”’).

Applying federal pre-emption to Massachusetts’ balancing, in

§§ 75A and 75B, of its protection of its work-injured citizens with

those citizens’ rights to collective bargaining, thus offends the

policies that animate federal labor pre-emption, penalizes

employees for their exercise of federal rights, and perpetuates the

“disagreements” within the Courts of Appeals, concerning Section

301 pre-emption specifically, that this Court acknowledged in

Livadas. See Livadas, 512 U.S. at 124, n.18; see also 512 U.S. at

130 (criticizing invocations of federal pre-emption that penalize

unionized employees and that force parties “to bargain for what

they would otherwise be entitled to as a matter of course”); compare,

Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 22 (1987) (“If

a Statute that permits no collective bargaining on a subject escapes

NLRA pre-emption, [citation omitted], surely one that permits such

bargaining cannot be pre-empted”).

Because the decision of the First Circuit here conflicts with

decisions of the Seventh Circuit Court of Appeals, among others,

on the important matter of federal pre-emption; because it conflicts

with this Court’s articulation of the principles of federal labor law

pre-emption of state-granted rights and the dangers of denying state

protections to represented workers; and because the decision is

far-reaching in its potential to oust states of jurisdiction to enforce

protections granted to their citizens (and flood federal courts with

removed cases brought under state workers’ compensation laws),

this Court should grant Martin’s Petition for a Writ of Certiorari

on this important matter of federal law.

10

CONCLUSION

For the reasons set forth above and in Martin’s Petition, the

Court should grant Martin’s 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

Counsel of Record

SUSAN FORGUE WEINER

LANG, XIFARAS

& BULLARD, P.A.

115 Orchard Street

New Bedford, MA 02740

(508) 992-1270

BETSY EHRENBERG

ANGOFF, GOLDMAN,

MANNING, PYLE

& WANGER, P.C.

24 School Street

Boston, MA 02108

MARSHA S. BERZON

ALTSHULER & BERZON

177 Post Street

Suite 800

San Francisco, CA 94108

Attorneys for Petitioner