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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0886%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Briefm
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 818

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0886%3A3. Public record. Not legal advice.