Smith v. WGBH ( 1993 )

September 27, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1213
LEANDERS H. SMITH,
Plaintiff, Appellant,
v.
WGBH EDUCATIONAL FOUNDATION, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
Leanders H. Smith on brief pro se.
Alan D. Rose, Diane G. Rosse, Marilee Denelle and Nutter,
McClennen & Fish on brief for appellee.
Per Curiam. Leanders H. Smith sued WGBH
Educational Foundation, Inc. (WGBH) in state court, alleging
that it had violated his rights under Massachusetts' workers'
compensation laws, M.G.L. ch. 152, 75A, 75B, when it
refused his request to return to work after being on a
disability leave during which he had received compensation
benefits. WGBH removed Smith's action to federal district
court, and moved for summary judgment, which the district
court granted. Smith is appealing that order as well as
orders denying motions that the court disqualify itself from
hearing Smith's case, remand his case to the state court, and
permit certain depositions to proceed. We affirm for the
reasons stated in the district court's orders, and elaborate
only as necessary to clarify the court's briefly stated
reasons.
1. Removal/Preemption. In Magerer v. John Sexton
& Co., 912 F.2d 525 (1st Cir. 1990), we held that a
retaliatory discharge claim brought under M.G.L. ch. 152,
75B, was completely preempted under section 301 of the Labor
Management Relations Act, 29 U.S.C. 185(a), where the
plaintiff was subject to a collective bargaining agreement
which contained a management rights clause giving the
employer/defendant the right to "discharge employees for
proper cause." Since the definition of "proper cause" under
the agreement could permit employer discharges not permitted
under section 75B, we found that the rights and obligations
of Magerer and his employer were controlled by the
contractual provisions governing discharge and not by any
independent state standard found in the workers' compensation
laws of Massachusetts. Id. at 530. In so doing, we relied
on the specific language in section 75B, which provided that,
if the rights granted employees under that section were
inconsistent with a collective bargaining agreement, the
agreement was to prevail. The collective bargaining
agreement between WGBH and the National Association of
Broadcast Employees and Technicians (NABET) contains
essentially the same clause as the one we considered in
Magerer. Article XIX of the agreement provides that "[t]he
right to discipline and discharge employees for just cause
shall remain the prerogative of [WGBH]." Thus, under
Magerer, Smith's section 75B claim requires interpretation of
the collective bargaining agreement and for that reason it is
completely preempted under section 301 of the Labor
Management Relations Act. Id.The district court's conclusion that Smith's state
law claims were preempted was also correct with respect to
Smith's claim under section 75A. Like section 75B, section
75A states that an applicable collective bargaining agreement
which is inconsistent with the rights granted in section 75A
is to prevail over section 75A. Section 75A grants a
preference in hiring to any former employee who has lost a
job due to a compensable injury under workers' compensation
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over other applicants not employed at the time when such
former employee
seeks to be rehired. As a general matter, Article 13.1 of
WGBH's collective bargaining agreement gives WGBH "the sole
and exclusive right to make all decisions regarding the
management, operation and programming of [its] operations,
including determination of the number of employees covered by
this Agreement," suggesting that WGBH may hire or not hire
employees as it sees fit and that it is not required to grant
any preference to former employees who have lost their
employment due to injuries compensable under Massachusetts'
workers' compensation law. More specifically, Article 17.3
of the agreement requires WGBH to rehire laid-off employees
according to seniority. For certain types of available work,
moreover, Article 3.7(a) also states a hiring preference
based on seniority for regular staff employees who have been
laid off. The seniority principle for rehiring laid-off
employees is inconsistent with section 75A's hiring
preference for employees laid off or discharged because of
injuries compensable under Massachusetts' workers'
compensation law. Thus, under the reasoning of Magerer,
Smith's section 75A claim requires interpretation of the
collective bargaining agreement and for that reason it, too,
is completely preempted.
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Since Smith's claim is completely preempted under
section 301, it states a federal claim and thus arises under
federal law, Caterpillar, Inc. v. Williams, 482 U.S. 386, 393
(1987); Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560
(1968); Magerer, 912 F.2d at 528, and not under Massachusetts
law. Consequently, 28 U.S.C. 1445(c), which prohibits the
removal to federal court of claims arising under a state
workmen's compensation law, does not apply, and removal of
the claim here was proper. See Vantine v. Elkhart Brass
Manufacturing Co., 762 F.2d 511, 517-18 (7th Cir. 1985)
(section 1445(c) did not bar removal of a claim brought under
a state's workmen's compensation laws; under the state's
laws, the cause of action arose under the collective
bargaining agreement and thus stated a federal claim under
section 301 which rendered removal to the district court
proper); Smith v. Union Carbide Corporation, 664 F. Supp.
290, 292 (E.D. Tenn. 1987) (section 1445(c) did not bar
removal of an action brought under a state's workmen's
compensation law because the plaintiff's suit was an
independent, judicially created tort action, and so did not
arise under the state's workmen's compensation laws, and
because it was preempted by federal labor law and therefore
arose under federal and not state law). 2. Smith's
Employment Status as of August 1989. If Smith was subject to
WGBH's collective bargaining agreement, dismissal of his suit
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was proper since his only remedy for his discharge was resort
to the grievance and arbitration procedures of that
agreement. See Allis-Chalmers Corporation v. Lueck, 471 U.S.
202, 220-21 (1985). In affidavits, Smith claimed that his
employment at WGBH had ended before August 1989 and that he
was not subject to the WGBH-NABET collective bargaining
agreement. Accordingly, he argues that he was not bound by a
1990 arbitral decision which found that WGBH had discharged
him for just cause, and he says that he is free to sue in
court. In view of the overwhelming evidence to the contrary,
we find that his allegations do not establish the existence
of a genuine issue of material fact sufficient to defeat
WGBH's motion for summary judgment. Petitti v. New England
Telephone & Telegraph Co., 909 F.2d 28, 30 (1st Cir. 1990)
(summary judgment is proper if evidence is so one-sided that
one party must prevail as a matter of law).
Smith claims that his employment had terminated
before August 1989 under Article 17.2(f) of the collective
bargaining agreement. That article provided for loss of
seniority by employees absent from work due to injury for
more than 15 months, and was understood by the parties to
terminate the employment of such employees. As of August
1989, Smith had been on disability leave for more than 15
months, having begun his leave in February 1986. In an
affidavit, WGBH's Human Resources Director, Michael Enwright,
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who negotiated WGBH's 1987-90 contract with NABET, stated
that WGBH had accepted the union's demand during those
negotiations that Smith be excluded from the operation of
Article 17.2(f). Smith's disability leave began in 1986,
when the 1984-87 contract was in effect, and Enwright stated
in his affidavit that that contract did not contain Article
17.2(f). Smith has not introduced any affidavit by the union
to the contrary, nor has he denied Enwright's sworn statement
that the 1984-87 contract did not contain Article 17.2(f).
In an affidavit, Smith states that John Plausse,
his direct supervisor, had told him during his leave that he
was not subject to the collective bargaining agreement.
Nevertheless, the pleadings, affidavits and underlying
documentary evidence submitted by the parties show
conclusively that, even if Plausse had told Smith that he was
not subject to the collective bargaining agreement, Smith
knew that his employment with WGBH had not been terminated
before August 1989 and that he continued to be subject to the
collective bargaining agreement. Among the many pieces of
evidence, we highlight only the following: Smith's complaint
stating that on or about November 22, 1989, WGBH had refused
to allow him to "return to work"; Smith's letter to WGBH on
August 2, 1989, notifying Enwright that Smith was changing
his "return to work" date from September 18, 1989, to
September 1, 1989, telling Enwright to let Plausse know of
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the change so that Plausse could make necessary plans, asking
Enwright whether his vacation time had been adjusted and
informing Enwright that he would be taking the first two
weeks of October off; the arbitration transcript which
reveals that the union arbitrated Smith's November 22, 1989
discharge (for misconduct not at issue here), that Smith was
consulted about and approved NABET's and WGBH's selection of
an arbitrator, and that Smith attended the arbitration on
dates in 1989 and 1990 and actively assisted the union in
presenting evidence on his behalf; and Smith's affidavit
stating that he is still a member of NABET, a critical
admission since membership in the union is a condition of
employment under the collective bargaining agreement. See
Agreement Between NABET and WGBH Educational Foundation, Inc.
1987-1990, Art. 3.1. Although Smith argues that certain
letters and documents show that he was not an employee for
any purpose under the collective bargaining agreement during
his leave, those letters and documents show only that he was
not classified as an "active" employee at that time and thus
did not have the rights granted active employees under the
agreement (e.g., vacation, sick leave, and holiday benefits).
The collective bargaining agreement distinguishes clearly
between the rights of active employees and those of non-
active employees on leave of absence (see, e.g., id. Art.
9.5(c), 9.7; Art. XII); nowhere does it suggest that non-
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active employees on leave are not in the bargaining unit or
not subject to the grievance and arbitration provisions of
the contract.
Smith's other claims are without merit for the
reasons stated in the orders being appealed.
Affirmed.
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