Bernard Nadeau v. Twin Rivers Paper Company, LLC

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 16Docket: Aro-19-500
Argued: September 17, 2020
Decided: March 30, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
Majority: MEAD, GORMAN, HUMPHREY, and HORTON, JJ.
Dissent: JABAR, J.
BERNARD NADEAU
v.
TWIN RIVERS PAPER COMPANY, LLC
HORTON, J.
[¶1] Bernard Nadeau appeals from the summary judgment entered by
the Superior Court (Aroostook County, Stewart, J.) in favor of Twin Rivers Paper
Company, LLC (Twin Rivers) on Nadeau’s claim under the Maine
Whistleblowers’ Protection Act (WPA), 26 M.R.S. §§ 831-840 (2020). See M.R.
Civ. P. 56(c). Nadeau contends that the court erred in concluding that his claim
is preempted by the combined effect of section 301 of the federal Labor
Management Relations Act (LMRA), 29 U.S.C. § 185(a) (LEXIS through Pub. L.
No. 116-259), and section 837 of the WPA. We disagree and affirm the
summary judgment.
2
I. BACKGROUND
A. Factual Background
[¶2] The following facts are drawn from the parties’ statements of
material facts and reflect the record viewed in the light most favorable to
Nadeau as the nonprevailing party. McCandless v. Ramsey, 2019 ME 111, ¶ 4,
211 A.3d 1157. Nadeau worked at a paper mill in Madawaska from 1980 until
his termination in 2016. Twin Rivers owned and operated the mill at all times
relevant to the complaint. Nadeau was a member of the United Steelworkers
Union, and the terms of his employment were governed by a collective
bargaining agreement (CBA) negotiated by the Union and Twin Rivers’
management. The CBA set forth rules governing employee conduct, safety
policies, and disciplinary procedures. The CBA also established procedures for
employees to bring grievances against management and for independent
arbitration of disputes.
[¶3] In February 2015, Nadeau made a complaint to his supervisor and
others about poor ventilation in his work area and his exposure to toxic
chemicals and industrial dust.
[¶4] In November of that same year, Nadeau violated safety protocols
while unloading pallets of oil barrels from a tractor-trailer. Although Twin
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Rivers concluded that Nadeau was subject to termination as a result of this
action and his previous violations, Twin Rivers’ management offered Nadeau
the opportunity to enter into a last chance agreement (LCA). The LCA allowed
Nadeau to avoid termination but required him to forego some protections
afforded him by the terms of the CBA.
[¶5] The CBA refers to LCAs in the context of employee discipline:
An employee’s personnel and disciplinary record will be cleared of
his/her discipline after two (2) years if there has been no further
infraction. No discipline that is older than two (2) years (without
further infraction) will be used to justify the future discipline of an
employee, except in cases of documented Workplace
Violence/Harassment Policy violations or flagrant disregard or
repeated violations of Safety Rules. Last Chance Letters supersede
this language and will expire according to the terms of [the LCA].
[¶6] In Nadeau’s case, the LCA provided that any further failure to adhere
to work rules would result in immediate termination. In addition, it provided
that, if he were terminated, he would be entitled to pursue a grievance under
the procedures set forth in the CBA but would “have no recourse to arbitration.”
The LCA stated, “Thus[,] the Company’s decision on a grievance related to your
discharge will be afforded due process through the grievance process, but the
Company’s decision regarding the issue(s) will be final.” The LCA also stated
that it “will remain in effect for the remainder of your employment.” (Emphasis
in original.) The LCA also made it clear that Nadeau would be terminated if he
4
“cho[]se not to accept this Last Chance Agreement.” The Union negotiated the
LCA on Nadeau’s behalf, and the Union, Nadeau, and Twin Rivers each signed
the agreement.
[¶7] After agreeing to the LCA, Nadeau complained to Twin Rivers’
management about unhealthy conditions in his workplace. Later, on
August 27, 2016, Nadeau was operating a fork lift at the mill and made contact
with a core saw. He did not report this to his supervisor. After an investigation,
Twin Rivers’ management concluded that Nadeau’s failure to report the
accident violated a CBA work rule and therefore triggered the termination
clause of the LCA. Twin Rivers terminated Nadeau’s employment, and Nadeau
filed a grievance pursuant to the CBA and LCA. Twin Rivers offered Nadeau the
opportunity to resign, which he declined in favor of pursuing the grievance.
Twin Rivers ultimately denied the grievance and upheld Nadeau’s termination.
Although the CBA contains an arbitration clause, the LCA provided that Nadeau
gave up any right to appeal the denial of his grievance to arbitration and that
Twin Rivers’ decision on any grievance concerning his employment would be
final.
5
B. Procedural History
[¶8] On September 11, 2018, Nadeau filed a single-count complaint in
the Superior Court, alleging that Twin Rivers violated the WPA, 26 M.R.S.
§ 833(1), by terminating his employment in retaliation for his complaints
regarding unsafe work conditions at the mill. Twin Rivers moved for summary
judgment, M.R. Civ. P. 56(b), arguing that no genuine disputes of material fact
existed and that it was entitled to judgment as a matter of law because Nadeau’s
WPA claim was preempted by section 301 of the LMRA, 29 U.S.C. § 185(a), in
combination with section 837 of the WPA, 26 M.R.S. § 837. Nadeau opposed the
motion.
[¶9] After oral argument on the motion, the trial court concluded that, in
light of the undisputed facts, Twin Rivers was entitled to summary judgment as
a matter of law. The court held that adjudication of Nadeau’s WPA claim would
require it to interpret the CBA in order to decide what rights the CBA confers
for purposes of applying section 837 of the WPA but that section 301 of the
LMRA removed from state courts the authority to interpret a CBA. The court’s
analysis relied primarily on United States Supreme Court precedent and
relevant case law from the United States Court of Appeals for the First Circuit
and the United States District Court for the District of Maine.
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[¶10] Nadeau timely appealed from the summary judgment.1 See
14 M.R.S. § 1851 (2020); M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶11] Nadeau raises three issues on appeal that we view as one common
issue: whether Nadeau’s WPA claim is preempted by virtue of section 301 of
the federal LMRA and section 837 of the WPA.2
[¶12] “We review the entry of an order for summary judgment de novo
for errors of law, viewing the evidence in the light most favorable to the party
against whom summary judgment was entered.” Puritan Med. Prods. Co. LLC v.
Copan Italia S.P.A., 2018 ME 90, ¶ 10, 188 A.3d 853. “Federal pre-emption,
which involves issues of statutory and constitutional interpretation, is a
question of law reviewed de novo.” Id. ¶ 11 (quotation marks omitted).
A. The Federal Preemption Framework
[¶13] The Supremacy Clause of the United States Constitution states that
the “Constitution, and the Laws of the United States . . . shall be the supreme
In response to our published invitation for amicus briefs, three organizations submitted amicus
1
briefs: the Maine Employment Lawyers Association and Maine AFL-CIO, the Maine Human Rights
Commission, and the New England Legal Foundation.
Nadeau’s brief identifies the issues as follows: (1) whether the effect of section 837 is to exclude
2
employees covered by a CBA from the protections of the WPA; (2) whether his claim can be
adjudicated without a substantive interpretation of the Twin Rivers CBA; and (3) whether the
Superior Court’s ruling creates a “state common law rule” that itself would be preempted under
federal labor law.
7
Law of the Land.” U.S. Const. art. VI, cl. 2. Where state and federal law conflict,
the federal law preempts the conflicting state law. Gibbons v. Ogden, 22 U.S.
(9 Wheat.) 1, 210-11 (1824).
[¶14] The preemptive federal law at issue here is the statutory grant of
jurisdiction over disputes relating to collective bargaining agreements in
industries affecting commerce contained in section 301 of the LMRA. See
29 U.S.C. § 185(a) (“Suits for violation of contracts between an employer and a
labor organization representing employees in an industry affecting commerce
. . . may be brought in any district court of the United States having jurisdiction
of the parties . . . .”).
[¶15] In a series of decisions from the 1950s to the 1990s, the Supreme
Court defined the scope of section 301’s preemptive effect. See Livadas v.
Bradshaw, 512 U.S. 107 (1994); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246(1994); Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988); Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202 (1985); Local 174, Teamsters v. Lucas Flour Co.,
369 U.S. 95 (1962); Textile Workers Union of Am. v. Lincoln Mills of Ala.,
353 U.S. 448 (1957).
[¶16] The Court has consistently held that it was Congress’s intent that
disputes involving the interpretation of labor agreements “must be resolved by
8
reference to uniform federal law, whether such questions arise in the context
of a suit for breach of contract or in a suit alleging liability in tort.” Lueck,
471 U.S. at 211. The Lueck Court reiterated the Supreme Court’s rationale, first
set forth in Lucas Flour Co., 369 U.S. at 103, for construing the preemptive effect
of section 301 broadly:
The interests in interpretive uniformity and predictability that
require that labor-contract disputes be resolved by reference to
federal law also require that the meaning given a contract phrase
or term be subject to uniform federal interpretation. Thus,
questions relating to what the parties to a labor agreement agreed,
and what legal consequences were intended to flow from breaches
of that agreement, must be resolved by reference to uniform
federal law, whether such questions arise in the context of a suit for
breach of contract or in a suit alleging liability in tort. Any other
result would elevate form over substance and allow parties to
evade the requirements of § 301 by relabeling their contract claims
as claims for tortious breach of contract.
Lueck, 471 U.S. at 211.
[¶17] However, the Court noted that section 301 preemption is not
complete:
[N]ot every dispute concerning employment, or tangentially
involving a provision of a collective-bargaining agreement, is
pre-empted by § 301 or other provisions of the federal labor
law. . . . Nor is there any suggestion that Congress, in adopting
§ 301, wished to give the substantive provisions of private
agreements the force of federal law, ousting any inconsistent state
regulation. Such a rule of law would delegate to unions and
unionized employers the power to exempt themselves from
whatever state labor standards they disfavored. . . . In extending the
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pre-emptive effect of § 301 beyond suits for breach of contract, it
would be inconsistent with congressional intent under that section
to pre-empt state rules that proscribe conduct, or establish rights
and obligations, independent of a labor contract.
Id. at 211-12 (footnote omitted). Thus, whether a state law claim is subject to
section 301 preemption is a function of “whether evaluation of the . . . claim is
inextricably intertwined with consideration of the terms of the labor contract.”
Id. at 213.
[¶18] In Lingle, the plaintiff alleged that she had been unlawfully
discharged in retaliation for exercising her rights under the Illinois Workers’
Compensation Act.3 486 U.S. at 402. The federal district court dismissed her
complaint, concluding that the “claim for retaliatory discharge [was]
‘inextricably intertwined’ with the collective bargaining provision . . . and that
allowing the state-law action to proceed would undermine the arbitration
procedures set forth in the parties’ contract.” Id. (quotation marks omitted).
3 The plaintiff, a union member, notified her employer that she had been injured during the course
of her employment and requested compensation pursuant to the Illinois Workers’ Compensation Act.
Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 401 (1988). The employer discharged her six days
later for “filing a ‘false worker’s compensation claim.’” Id. The union filed a grievance pursuant to
the CBA alleging that she had not been discharged for proper or just cause. Id. The CBA defined
grievance as “any dispute between . . . the Employer and any employee, concerning the effect,
interpretation, application, claim of breach or violation of this agreement” and required any
grievance to be sent to arbitration. Id at 402 (quotation marks omitted).
10
[¶19] This holding was based on the district court’s view that a
determination of the claim would involve the same analysis of facts as the
inquiry in any arbitration under the CBA.4 Id. The question ultimately
presented to the United States Supreme Court was “whether an employee
covered by a collective-bargaining agreement that provides her with a
contractual remedy for discharge without just cause may enforce her state-law
remedy for retaliatory discharge.” Id. at 401.
[¶20] The Court agreed that the state law analysis might involve the
same factual considerations as the terms of the CBA but disagreed with the
conclusion that the state law claim was so inextricably intertwined with and
dependent upon the CBA as to be preempted. Id. at 407. The Court explained,
In other words, even if the dispute resolution pursuant to a
collective-bargaining agreement, on the one hand, and state law, on
the other, would require addressing precisely the same set of facts,
as long as the state-law claim can be resolved without interpreting
the agreement itself, the claim is ‘independent’ of the agreement for
[section] 301 pre-emption purposes.
Id. at 409-410.
The state law claim was for “the tort of retaliatory discharge for filing a worker’s compensation
4
claim.” Lingle, 486 U.S. at 406-407. To prove this, “the plaintiff must set forth sufficient facts . . . that
(1) he was discharged or threatened with discharge and (2) the employer’s motive in discharging or
threatening to discharge him was to deter him from exercising his rights under the Act or to interfere
with his exercise of those rights.” Id. at 407 (quotation marks omitted).
11
[¶21] Quoting Lueck, 471 U.S. at 211, the Lingle Court, in a footnote,
stated that “not every dispute . . . tangentially involving a provision of a
collective-bargaining agreement[] is pre-empted by [section] 301.” Lingle,
486 U.S. at 413 n.12. For example, when a CBA contains information regarding
rate of pay and other benefits that would be relevant to the amount of the
damages award on a state law claim, the underlying state law claim would not
be preempted. Id. The Court stated,
Thus, as a general proposition, a state-law claim may depend for its
resolution upon both the interpretation of a collective-bargaining
agreement and a separate state-law analysis that does not turn on
the agreement. In such a case, the federal law would govern the
interpretation of the agreement, but the separate state-law
analysis would not be thereby pre-empted.
Id. The Court ultimately held that the claim was not preempted and that “an
application of state law is pre-empted by [section] 301 of the [LMRA] only if
such application requires the interpretation of a collective-bargaining
agreement.” Id. at 413 (emphasis added).
[¶22] Six years later, in Hawaiian Airlines, a plaintiff alleged, among other
claims, that he was wrongfully terminated in violation of the state’s
whistleblower protection act.5 512 U.S. at 250. The Court restated the
5 When the plaintiff refused to sign a maintenance record to certify that a repair had been
performed satisfactorily, his supervisor suspended him pending a termination hearing, and he was
eventually fired for insubordination. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248-251. The
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principles enunciated in Lingle: “In a case remarkably similar to the case before
us now, this Court made clear that the existence of a potential CBA-based
remedy did not deprive an employee of independent remedies available under
state law.”6 Id. at 261.
[¶23] Disagreeing that interpreting the CBA was necessary to determine
whether the respondent was in fact discharged, the Court held that “the issue
to be decided in this action—whether the employer’s actions make out the
element of discharge under Hawaii law—is a purely factual question.” Id. at 266(quotation marks omitted). Additionally, the Court disagreed with the
petitioners’ claim that interpreting the CBA was required to determine whether
the termination was justified, stating instead that “the state tort claims . . .
require only the purely factual inquiry into any retaliatory motive of the
employer.” Id.plaintiff invoked the grievance procedures outlined in his CBA, arguing that the CBA stated that an
“employee may not be discharged without just cause and may not be disciplined for refusing to
perform work that is in violation of health or safety laws.” Id. at 250. The plaintiff filed suit in state
court alleging multiple claims, including a wrongful-discharge tort in violation of the state’s
whistleblower protection act. Id. The state trial court dismissed the claim and held that it was
preempted by the Railroad Labor Act. Id. at 251.
6The Supreme Court reasoned that “the common purposes of the two statutes, the parallel
development of [Railroad Labor Act] and [LMRA] pre-emption law, and the desirability of having a
uniform common law of labor law pre-emption support the application of the Lingle standard in RLA
cases as well.” Hawaiian Airlines, Inc., 512 U.S. at 263 n.9 (citations omitted).
13
[¶24] In Livadas v. Bradshaw, the Court stated that, “when the meaning
of contract terms 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.” 512 U.S. at 124
(citing Lingle, 486 U.S. at 413 n.12).
[¶25] These decisions, considered together, indicate that whether
section 301 preempts a state law claim is to be decided on a case-by-case basis.
See Lueck, 471 U.S. at 208 (“Congress . . . has never exercised authority to occupy
the entire field in the area of labor legislation.”). In determining whether a state
law claim is preempted, the United States Supreme Court has instructed courts
to determine whether the claim is inextricably intertwined with the CBA or if
the claim can be decided based solely on a factual inquiry. See Lueck, 471 U.S.
at 213; Lingle, 486 U.S. at 407; Hawaiian Airlines, Inc., 512 U.S. at 266.
B. The Effect of Maine Whistleblowers’ Protection Act Section 837
[¶26] The WPA protects an employee against retaliation for making a
good faith report to the employer of what the employee has reasonable cause
to believe is a violation of a law:
1. Discrimination prohibited. No employer may discharge,
threaten or otherwise discriminate against an employee regarding
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the employee’s compensation, terms, conditions, location or
privileges of employment because:
A. The employee, acting in good faith . . . reports orally or in
writing to the employer . . . what the employee has
reasonable cause to believe is a violation of a law or rule
adopted under the laws of this State, a political subdivision
of this State or the United States.
26 M.R.S. § 833(1)(A).
[¶27] The WPA includes a provision that prohibits it from being
construed “to diminish or impair the rights of a person under any collective
bargaining agreement.” 26 M.R.S. § 837. The Act defines the term “person”
broadly to include individuals and legal entities. See id. § 832(3) (“‘Person’
means an individual, sole proprietorship, partnership, corporation, association
or any other legal entity.”). Therefore, section 837 applies to the rights of the
unions, employers, and employees that are parties to, or are benefited by, a
CBA.
[¶28] WPA’s section 837 unambiguously prevents any application or
interpretation of the WPA that results in the diminution or impairment of the
rights of an employee, an employer, or a union under a CBA. To avoid
diminishing or impairing rights conferred by a CBA, the court or the jury in a
WPA case must interpret the CBA to determine what rights it confers.
15
[¶29] In that sense, LMRA section 301 and WPA section 837 appear to
point in opposite directions. Section 301 prohibits in-depth substantive
interpretation of a CBA for purposes of deciding a WPA claim, whereas
section 837 may necessitate such an interpretation to ensure that the court
does not construe the WPA in a manner that diminishes or impairs the rights of
a union, an employer, or a union member under the CBA. In this manner,
section 837 introduces to the section 301 preemption analysis a potentially
countervailing element absent from the Supreme Court decisions in Lueck,
Lingle, and Hawaiian Airlines.
C. Precedent Under LMRA Section 301 and WPA Section 837
[¶30] We have not previously addressed the interplay between
section 301 of the LMRA and section 837 of the WPA,7 but the United States
District Court for the District of Maine has addressed the issue in several
decisions on which the Superior Court relied in concluding that Nadeau’s WPA
claim is preempted. See Bishop v. Bell Atl. Corp., 81 F. Supp. 2d 84, 86-91
(D. Me. 1999); Carmichael v. Verso Paper, LLC, 679 F. Supp. 2d 109, 135-139
(D. Me. 2010); Webb v. Calais Reg’l Hosp., No. 1:18-cv-00117-LEW, 2019 U.S.
Nadeau and amicus Maine Human Rights Commission note that we have previously upheld a
7
union member’s right to assert a WPA claim, but the preemption issue Twin Rivers raises here was
not raised in that case. See Bard v. Bath Iron Works Corp., 590 A.2d 152, 156-157 (Me. 1991).
16
Dist. LEXIS 113266, at *4-7 (D. Me. July 9, 2019). This line of cases is the focus
of much of the parties’ and the amici’s briefing and merits detailed discussion.
[¶31] In Bishop, the plaintiff, whose employment was subject to a CBA,
alleged “retaliation and discrimination with regard to his compensation, terms,
conditions, and privileges of employment, in violation of the Maine
Whistleblowers’ Protection Act . . . and the Maine Human Rights Act.”8
81 F. Supp. 2d at 86. The court held that the plaintiff’s WPA claim was
preempted by section 301(a) of the LMRA but that the Maine Human Rights Act
(MHRA) claim was not. Id. at 91. The court reasoned that the determination of
the parties’ rights under the CBA for purposes of section 837 would require it
“to interpret the CBA between Bell Atlantic and [the plaintiff’s] Union in order
to ensure that the Whistleblowers’ Act [did] not ‘diminish or impair the rights’
of those operating under the CBA.”9 Id. at 88-89.
8The plaintiff alleged that once he reported that his supervisor physically assaulted him, the
employer began interfering with his overtime opportunities and “wrote him up” for alleged work
infractions. Bishop, 81 F. Supp. 2d 84, 86 (D. Me. 1999).
9 The court in Bishop relied on three First Circuit cases. See Lydon v. Boston Sand & Gravel Co.,
175 F.3d 6, 11 (1st Cir. 1999); Martin v. Shaw’s Supermarkets, Inc., 105 F.3d 40, 43 (1st Cir. 1997);
Magerer v. John Sexton Co., 912 F.2d 525, 529-30 (1st Cir. 1990). The plaintiff-employees in those
cases, all of whom were governed by CBAs, alleged that they had been retaliated against for exercising
rights contained in the Massachusetts Workers’ Compensation Act (MWCA). Bishop, 81 F. Supp. 2d
at 87.
The court concluded that, in each case, the claim was preempted because section 75(b) of the
MWCA provided that “[i]n the event that any right set forth in this section is inconsistent with an
applicable collective bargaining agreement, such agreement will prevail.” Id. (quotation marks
omitted). The court reasoned that this section required the court to interpret whether the CBA was
17
[¶32] In a subsequent decision, Carmichael v. Verso Paper, LLC, the Maine
federal district court said, “Because the [WPA section 837] provision
specifically require[d] the [c]ourt to interpret the CBA to determine whether
the []WPA would diminish or impair rights under the CBA, [the plaintiff’s]
[]WPA claim [was] preempted.” 679 F. Supp. 2d at 136.
[¶33] In 2019, the Maine federal district court, citing Bishop and
Carmichael, characterized section 301 as “necessarily” preempting any WPA
claim when the plaintiff is subject to a CBA: “[T]his court has resoundingly held
that when a Plaintiff whose employment is subject to a CBA brings a claim
under the Maine Whistleblowers’ Protection Act, that claim is necessarily
preempted by Section 301 of the Labor Management Relations Act.” Webb,
2019 U.S. Dist. LEXIS 113266, at *5 (emphasis added).
[¶34] Nadeau and the amici that endorse his position argue that the
decisions in Bishop, Carmichael, and Webb are “poorly reasoned” and
“erroneous” and urge us to endorse a different line of decisions holding that
whistleblower claims brought under statutes similar to Maine’s can be asserted
in court by plaintiffs whose employment is subject to CBAs. See, e.g., Carlson v.
inconsistent with the MWCA. Id. In Lydon, the court gave further instructions, stating that “[c]ourts
confronted with state law claims must therefore locate the line between the need for mere
consultation of a CBA, which does not demand federal preemption, and more active interpretation of
that agreement, which does preempt the state law claims.” 175 F.3d at 10.
18
Arrowhead Concrete Works, Inc., 375 F. Supp. 2d 835 (D. Minn. 2005); Rosen v.
Transx, Ltd., 816 F. Supp. 1364 (D. Minn. 1993); Schroeder v. Crowley Mar. Corp.,
825 F. Supp. 1007 (S.D. Fla. 1993);10 Williams v. Stafford Transp. of Mich., Inc.,
No. 330628, 2017 Mich. App. LEXIS 853 (Mich. Ct. App. May 23, 2017). These
cases stand for the proposition that, contrary to the Bishop, Carmichael, and
Webb line of cases, a whistleblower claim is not necessarily preempted by the
combination of the prohibition in LMRA section 301 of interpreting CBAs and
the inquiry into rights provided by a CBA that is dictated by state statutes such
as WPA section 837.
[¶35] We are not required to follow any lower federal court decision,
even as to matters of federal law, so we could endorse the view of either line of
The Schroeder decision actually involved a state whistleblower statute similar to WPA
10
section 837, but the court’s conclusion that the plaintiff’s whistleblower claim survived preemption
seems questionable. The court said:
[T]he Florida [whistleblower] [s]tatute does provide that the statute does not
diminish the rights of an employer or employee under any collective bargaining
agreement. Thus, the [c]ourt may need to look to the agreement to see whether the
defendant is able to avoid liability under the statute in this case. However, this does
not render the plaintiff’s right “dependent” upon the collective bargaining agreement;
the plaintiff’s claim, therefore, is not pre-empted by § 301.
Schroeder v. Crowley Mar. Corp., 825 F. Supp. 1007, 1009 (S.D. Fla. 1993) (citing Fla. Stat. § 448-105(LEXIS through 2020 Reg. Sess.)).
What seems self-contradictory about the court’s reasoning is that, if “look[ing] to the agreement”
might result in the defendant being “able to avoid liability under the statute,” the court’s evaluation
of the whistleblower claim plainly would be “dependent” upon, or at least “inextricably intertwined”
with, the terms of the CBA. Lueck, 471 U.S. at 213.
19
cases. See Evans v. Thompson, 518 F.3d 1, 8 (1st Cir. 2008) (“State courts are
not bound by the dictates of the lower federal courts, although they are free to
rely on the opinions of such courts when adjudicating federal claims.”
(emphasis omitted)). This case, however, does not require us to decide
whether every WPA claim by a union employee is “necessarily preempted.”11
Nadeau’s WPA claim, as presented, is preempted under either line of cases.
D. Nadeau’s WPA Claim as Presented
[¶36] The single count of Nadeau’s complaint alleges a WPA claim. The
complaint asserts that Twin Rivers violated the CBA by requiring him to choose
between signing the LCA and being terminated. Specifically, it alleges that Twin
Rivers “relied on discipline dating back to 1986 to support its decision to place
Plaintiff on the LCA—despite the fact that discipline older than two years was
11One example of when a union employee’s WPA claim may not be preempted by either
section 301 or section 837 appears in Galouch v. Department of Professional & Financial Regulation,
2015 ME 44, 114 A.3d 988. The WPA plaintiff, an employee represented by a union, contested her
termination in arbitration pursuant to the applicable CBA and won. Id. ¶ 8. Thereafter, she brought
an action in state court, alleging that her termination was in violation of the WPA. Id. ¶ 9. Her WPA
claim failed on its merits because she failed to prove that she had engaged in activity protected by
the WPA. Id. The key point for our purposes here, however, is that because she had already prevailed
in arbitration, there was no reason for the court in the WPA case either to interpret the terms of the
CBA or to consider whether applying the WPA would diminish or impair the rights of a party to the
CBA. The preemption issue appears not to have been raised in the trial court or on appeal, and it did
not need to be, because the WPA plaintiff had already prevailed in arbitration. Id. ¶ 8. Galouch may
serve as an example of when a CBA would present no obstacle to an employee’s assertion of a WPA
claim.
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not to be considered in disciplinary considerations under the union’s collective
bargaining agreement with Defendant.”
[¶37] Although Nadeau contends that “[at] summary judgment, Nadeau
did not dispute or challenge the imposition of the LCA,” his summary judgment
filings indicate otherwise. Nadeau, in his reply statement of material facts,
denied Twin Rivers’ contention that “Article 27.03 of the CBA allows the
company, the employee and the union to negotiate an LCA modifying the CBA
for discipline with respect to the employee.” In the same reply statement,
Nadeau acknowledged that he “contends that Twin Rivers should not have
considered his history of safety infractions when it put him on a LCA because of
Article 27:03 of the CBA.” His brief on appeal states that “Nadeau’s placement
on the LCA is offered as evidence of retaliatory animus.” Nadeau’s reply brief
attempts to backtrack from his challenge to Twin Rivers’ interpretation of the
LCA provision of the CBA, stating that “the creation of the LCA is irrelevant to
the resolution of this case.”
[¶38] Because Nadeau’s WPA claim relies on what he claims are Twin
Rivers’ violations of the CBA, the adjudication of his WPA claim would require
a determination of whether Twin Rivers did, in fact, violate the CBA. This would
in turn require an in-depth interpretation of at least the work rule and
21
discipline provisions of the CBA to an extent that is precluded by section 301 of
the LMRA.
[¶39] Nadeau’s WPA claim seeks to negate aspects of the LCA through a
collateral attack on the LCA’s validity. His claim would compel the court to
determine whether the CBA in fact gave Twin Rivers the right to enforce the
LCA because, if Twin Rivers had that right, Nadeau’s WPA claim would
“diminish or impair” Twin Rivers’ right to enforce the LCA, a result that is
prohibited by section 837. Nadeau’s claim also raises the question of whether,
if the LCA were deemed invalid, the CBA’s arbitration clause would give Twin
Rivers the right to compel Nadeau to pursue his whistleblower claim, at least
initially, in arbitration rather than in litigation.
[¶40] In sum, the adjudication of Nadeau’s WPA claim, as he has
presented it, would clearly compel the court to delve into the meaning of
specific CBA provisions well beyond the limited extent permitted by
section 301 of the LMRA and would run headlong into WPA section 837.12 We
12 The dissent characterizes our decision today as being broader than it is. Our conclusion is
specific to Nadeau’s WPA claim because his claim as presented would indeed require the court or a
jury to reach a conclusion as to whether or not the WPA actually impairs or diminishes anyone’s
rights under the CBA. We do not hold that every WPA claim by a union employee is “necessarily
preempted.” See supra ¶ 35 n.11.
What the dissent does not explain is how Nadeau could present his WPA claim in a manner that
would not require the court or a jury either to go well beyond “merely having to examine” the CBA in
22
therefore conclude that Nadeau’s WPA claim is preempted because “evaluation
of the . . . claim is inextricably intertwined with consideration of the terms of
the labor contract.” Lueck, 471 U.S. at 213.
III. CONCLUSION
[¶41] Because we conclude that Nadeau’s claim is preempted by the
operation of LMRA section 301 in combination with WPA section 837, we affirm
the grant of summary judgment.
violation of section 301 or to apply the WPA in a way that diminishes or impairs rights under the CBA
in violation of section 837. For example, the dissent states,
In a trial, Twin Rivers can argue that it properly terminated Nadeau because Nadeau violated the
rules under the CBA. Countering this explanation as the reason for the termination, Nadeau can argue
that even though Twin Rivers claims that it terminated him pursuant to the CBA, the real motive for
firing him was as retaliation for complaining about the hazardous work conditions.
Dissenting Opinion ¶ 69.
The problem is that unless Nadeau were to stipulate that Twin Rivers had the right under the CBA
to terminate him—a step he did not take in the summary judgment process—the court or the jury
could not evaluate Twin Rivers’ argument without construing and applying at least the work rule,
discipline, and LCA provisions of the CBA to an extent well beyond the limited review permitted
under section 301.
The dissent also states,
Twin Rivers claims that it terminated Nadeau for valid reasons under the CBA, but
Nadeau may prove that the stated reasons were pretextual if he can show an
ulterior motive, e.g., a retaliatory animus.
Dissenting Opinion ¶ 79.
But if Twin Rivers had “valid reasons”—i.e., the right—to terminate Nadeau under the CBA, the
question becomes how can Nadeau pursue a WPA claim without diminishing or impairing that right
within the meaning of section 837? The dissent provides no answer to this question, and we see no
answer that would allow Nadeau’s WPA claim to proceed without contravening section 301,
section 837, or both.
23
The entry is:
Judgment affirmed.
JABAR, J., dissenting.
[¶42] I respectfully dissent because the Court’s decision today virtually
eliminates the right of a union worker to bring a whistleblower action pursuant
to 26 M.R.S. §§ 831-840 (2020). Instead of following the majority of federal
court, including United States Supreme Court, cases, which hold that merely
examining a collective bargaining agreement (CBA) does not trigger federal
preemption under section 301 of the Labor Management Relations Act (LMRA),
the Court follows the flawed rationale contained in a line of cases from the
United States District Court for the District of Maine that hold that 26 M.R.S.
§ 837 of Maine’s Whistleblowers’ Protection Act (WPA) requires the court to
examine the CBA and that this examination alone triggers federal preemption,
regardless of whether section 837 impairs anyone’s rights under the CBA.
[¶43] WPA is an independent state remedy created by the Legislature for
all workers. It provides protections and remedies well beyond any provisions
of a CBA, including the right to a jury trial and the ability to recover
24
compensatory damages, punitive damages, and attorney fees. The Court’s
decision eliminates those statutory rights and creates a disparity between
union workers who are subject to a CBA and nonunion workers who are not.
When the Legislature enacted the WPA, it did not intend to discriminate against
union workers.
A. Federal Preemption—Section 301 of the Labor Management Relations
Act
[¶44] The United States Supreme Court provided clear instruction “that
it is the legal character of a claim, as independent of rights under the [CBA],
(and not whether a grievance arising from precisely the same set of facts could
be pursued) that decides whether a state cause of action may go forward. . . .
[W]hen the meaning of contract terms is not the subject of the dispute, the bare
fact that a [CBA] will be consulted in the course of state-law litigation plainly does
not require the claim to be extinguished.” Livadas v. Bradshaw, 512 U.S. 107,
123-24 (1994) (emphasis added) (footnote omitted) (citations omitted)
(quotation marks omitted); see also Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 266 (1994); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985); Lingle
v. Norge Div. of Magic Chef, 486 U.S. 399, 413 (1988).
[¶45] In applying this standard, the Supreme Court in Hawaiian Airlines
disagreed with the petitioners’ argument that an examination of the CBA was
25
necessary to determine whether the union worker was discharged and instead
stated that “Lingle teaches that the issue to be decided in this action—whether
the employer’s actions make out the element of discharge under Hawaii law—
is a ‘purely factual question.’”13 512 U.S. at 266 (quoting Lingle, 486 U.S. at 407).
Additionally, the Supreme Court disagreed with the petitioners’ claim that
interpreting the CBA was required to make a determination that the
termination was justified, stating instead that the “state tort claims . . . require
only the purely factual inquiry into any retaliatory motive of the employer.” Id.[¶46] Numerous federal courts and other state courts have followed the
Supreme Court’s holdings, indicating that merely consulting a CBA is not
enough to trigger preemption. In Baldracchi v. Pratt & Whitney Aircraft Division,
United Technologies Corporation, the United States Court of Appeals for the
Second Circuit, quoting the Supreme Court, stated, “‘[C]learly, § 301 does not
grant the parties to a [CBA] the ability to contract for what is illegal under state
law.’ We take this to mean that even if the labor agreement provided that [the
employer] could discharge an employee who filed a workers’ compensation
13 The employee was an aircraft mechanic who refused to sign a maintenance record to certify
that a repair had been performed satisfactorily. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248
(1994). He was fired for insubordination and appealed through the grievance procedures outlined
in his CBA, arguing that the CBA stated that an “employee may not be discharged without just cause
and may not be disciplined for refusing to perform work that is in violation of health or safety laws.”
Id. at 249-50.
26
claim, the provision would have no effect on [the employee’s] claim under the
Connecticut statute. Thus, it is difficult to see how determination of that claim
can be said to depend on the [CBA].” 814 F.2d 102, 105 (2d Cir. 1987) (quoting
Lueck, 471 U.S. at 212); see also Conn. Gen. Stat. § 31-290a (LEXIS through the
2020 Sept. Spec. Sess.).
[¶47] The Second Circuit also stated that “it should be noted that the
position urged by [the employer] would have the effect of granting less state
law protection to employees governed by [CBAs] than to other employees.
While a non-union Connecticut worker’s right to file a workers’ compensation
claim would remain protected by section 31-290a, union members like [the
employee] would be protected only by their [CBAs].” Id. at 107. In grappling
with the disparity between union workers and nonunion workers, the court
recognized that its decision would have a far-reaching effect and chose to honor
the state statute’s intended protection of all workers.
[¶48] The Court spends seven pages discussing the Supreme Court cases
that stand for the legal concept that merely examining the CBA is not enough to
trigger federal preemption but then ignores those holdings and instead follows
the rationale of Bishop, Carmichael, and Webb by holding that “merely” having
27
to examine the CBA is enough.14 Court’s Opinion ¶¶ 13-25. The Court attempts
to distinguish the leading Supreme Court cases on the basis that “section 837
introduces to the section 301 preemption analysis a potentially countervailing
element absent from the Supreme Court decisions in Lueck, Lingle, and
Hawaiian Airlines.” Court’s Opinion ¶ 29.
[¶49] Bishop v. Bell Atlantic Corp. was the beginning of a series of cases
from the United States District Court for the District of Maine that narrowly
construed the preemption doctrine to hold that claims under the WPA were
essentially preempted if a CBA existed because section 837 was included in the
Act. 81 F. Supp. 2d 84, 88 (D. Me. 1999). Instead of looking to the other states
with identical or similar statutory language to our own, the District Court
looked solely to cases based on the Massachusetts Workers’ Compensation Act
(MWCA),15 see Mass. Gen. L. ch. 152 §§ 75A-75B (LEXIS through Ch. 1-259,
14 The Court’s Opinion cites our decision in Galouch v. Department of Professional and Financial
Regulation for the proposition that it is an example of “when a union employee’s WPA claim may not
be preempted by either section 301 or section 837.” Court’s Opinion ¶ 35 n.11; see Galouch v. Dep’t
of Prof. & Fin. Regul., 2015 ME 44, 114 A.3d 988. However, in Galouch, neither the issue of federal
preemption nor the effect of section 837 were raised in the case. 2015 ME 44, ¶ 8, 114 A.3d 988. In
that case, we affirmed the trial court’s summary judgment for the employer since the facts did not
support the worker’s claim of protected activity. Id. ¶¶ 10, 18.
15 The Massachusetts Workers’ Compensation Act makes it illegal for an employer to retaliate
against an employee for exercising rights contained in the Act, and the statute includes the following
section: “In the event that any right set forth in this section is inconsistent with an applicable [CBA],
such agreement shall prevail. An employee may not otherwise waive rights granted by this section.”
Mass. Ann. Laws ch. 152, § 75B(3) (LEXIS through Ch. 1-259, 264-315 and the Nov. ballot measures
of the 2020 Leg. Sess. of the 191st Gen. Ct.).
28
264-315 and the Nov. ballot measures of the 2020 Leg. Sess. of the 191st
Gen. Ct.), and reasoned that the inclusion of section 837 in the WPA was
“essential for federal preemption of the [WPA] claim” because it required the
court to interpret the [CBA] to determine whether there is any “impairment” of
a person’s rights. Id. at 88-89.
[¶50] The Bishop court concluded that merely consulting the CBA,
without ever determining whether there was an impairment of a person’s
rights under it, would be in violation of the First Circuit’s holding that
interpreting a CBA as part of the adjudication of a state law claim triggered the
application of the preemption doctrine.16 Id. at 89. The Bishop court went so
far as to say that “if the Whistleblowers’ Act did not contain this provision in
section 837, it is highly unlikely that [the employee’s] claim would be
preempted under section 301 of the LMRA.” Id. at 88. Neither the Bishop court
The Bishop court also reasoned that since the Maine Human Rights Act (MHRA) did not include
16
a provision like section 837, then claims brought under that statute were not preempted and this
provided another reason to hold that section 837 required preemption. Bishop v. Bell Atl. Corp.,
81 F. Supp. 2d 84, 89 (D. Me. 1999). The Maine Human Rights Commission, which is responsible for
the enforcement of the WPA, provided an amicus brief for this case and stated that both the WPA and
the MHRA “are intended to be interpreted broadly, and their exceptions narrowly. Rather than
abiding by this guiding principle, the lower court’s decision holding that WPA claims are preempted
by § 301 . . . created an arbitrary rule that would prevent WPA claims by an employee in a unionized
workplace. This decision is contrary to the plain language of the statute, the Commission’s
long-standing interpretation of the statute, and decisions by the United States Supreme Court . . . and
this Court.” Brief for Maine Human Rights Commission as Amicus Curiae Supporting Appellant at 4-5.
29
nor the trial court in this case, nor this Court in its decision today, determined
whether section 837 impaired anyone’s rights under the CBA.
[¶51] A line of Maine federal district court cases followed Bishop and held
that it would not make any difference as to whether the WPA would actually
diminish or impair any rights under the CBA, but rather simply making any
determination regarding the statute triggers the preemption doctrine. See
Carmichael v. Verso Paper, LLC, 679 F. Supp. 2d 109, 135-36 (D. Me. 2010); Webb
v. Calais Reg’l Hosp., No. 1:18-cv-00117-LEW, 2019 U.S. Dist. LEXIS 113266, at
*5-6 (D. Me. July 9, 2019). As recently as 2019, the District Court stated that
“this court has resoundingly held that when [an employee] whose employment
is subject to a CBA brings a claim under the [WPA], that claim is necessarily
preempted by Section 301 of the [LMRA].” Webb, 2019 U.S. Dist. LEXIS 113266,
at *6 (emphasis added); see also Carmichael, 679 F. Supp. 2d at 136 (“[A]ny
[]WPA claim made by an employee working under a CBA is almost by definition
intertwined with an interpretation of the CBA and therefore preempted.”).
[¶52] The Bishop line of cases has, in effect, held that section 837 triggers
federal preemption in all whistleblower claims made by union workers. This is
inconsistent with the decisions of the United States Supreme Court and it is
30
inconsistent with the other states that have identical or similar whistleblower
protection acts.
[¶53] Courts in other states, with statutory provisions similar to those in
section 837, have found that claims brought under whistleblower statutes are
not preempted by section 301. See Carlson v. Arrowhead Concrete Works, Inc.,
375 F. Supp. 2d 835, 842 (D. Minn. 2005) (“The Court finds that [the
employee’s] Whistleblower Act17 . . . claim [is] not preempted by section 301.
The Supreme Court’s analysis in Lingle is instructive. Establishing a claim for
retaliation under . . . the Whistleblower Act . . . only requires an analysis of
factual questions pertaining to [the employee’s] conduct and [the employer’s]
conduct and motivation and requires no analysis of any provisions or terms of
the Agreement.”); Schroeder v. Crowley Mar. Corp., 825 F. Supp. 1007, 1009 (S.D.
Fla. 1993) (holding that the [employer’s] reliance on Florida’s whistleblower
act section that is similar to our own section 83718 was incorrect because the
Supreme Court precedent “stand[s] for the proposition that a state law claim is
The Minnesota act includes the following provision: “This section does not diminish or impair
17
the rights of a person under any [CBA].” Minn. Stat. Ann. § 181.932(4) (LEXIS through Ch. 2 of the
2021 Reg. Sess. of the 92nd Leg.).
18The Florida act includes the following provision: “This act does not diminish the rights,
privileges, or remedies of an employee or employer under any other law or rule or under any [CBA]
or employment contract.” Fla. Stat. § 448.105 (LEXIS through 2020 gen. leg.).
31
pre-empted by § 301 when it is impossible to determine whether the
[employee] is entitled to relief without interpreting the [CBA] . . . . In this case,
the [employee’s] right exists independently of the [CBA]. To determine
whether the [employee] is entitled to relief under the statute, the Court must
only determine whether [the employee] was terminated in retaliation for his
refusal to disobey the law” (citations omitted)); Williams v. Stafford Transp. of
Mich., Inc., No. 330628, 2017 Mich. App. LEXIS 853, at *5-6 (Mich. Ct. App.
May 23, 2017) (“[The employee] correctly states that the LMRA does not
preempt claims under the [Michigan] Whistleblowers’ Protection Act19 . . . even
if those claims pertain to reporting wrongdoing relating to an employer’s labor
practices.”).
[¶54] These courts recognize that language in a whistleblower statute
indicating that it cannot be construed to diminish the rights of the parties under
a CBA does not automatically trigger federal preemption and, further, that the
retaliation claims are not preempted because they “only require[] analysis of
factual questions and require[] no analysis of any provisions or terms of the
[CBA].” Rosen v. Transx, Ltd., 816 F. Supp. 1364, 1371 (D. Minn. 1993).
19 The Michigan act includes the following provision: “This act shall not be construed to diminish
or impair the rights of a person under any [CBA].” Mich. Comp. Laws Serv. § 15.366 (LEXIS through
Pub. Act 1-402 and E.R.O. 2020-3 from the 2020 Leg. Sess.).
32
[¶55] To follow Bishop et al., as this Court has done, is to prohibit all
union workers from accessing the protection of the WPA. We should follow the
Supreme Court’s holdings regarding federal preemption, because those
holdings adopt the policy of affording union workers the same protection
afforded nonunion workers.
[¶56] Although the Court argues otherwise, Court’s Opinion ¶ 40 n.12,
its holding today necessarily prevents a union worker from filing a WPA claim.
If all union workers are employed under a CBA, and if the Court’s holding that
section 837 of the WPA requires consultation of the CBA to determine whether
the WPA claim impairs anyone’s rights under the CBA, and if this consultation
alone, regardless of whether there actually is an impairment, triggers federal
preemption, then a union worker’s WPA claim will always trigger federal
preemption.
B. State Whistleblower Protection Acts
[¶57] Whistleblower protection acts serve to protect individuals because
it is critical that workers know that the law protects them for speaking up and
in turn it is critical that employers know that they will face consequences if they
retaliate against their workers.
33
[¶58] In 1983, the Maine Legislature borrowed language from Michigan’s
Whistleblower Protection Act to enact the WPA. 26 M.R.S. §§ 831-839; see
L.D. 736, Statement of Fact (111th Legis. 1983) (“Maine is not breaking new
ground with the passage of this bill. This bill is modeled on the Michigan
‘Whistleblowers’ Protection Act.’”). In Bard v. Bath Iron Works Corp., we held
that there was no need for us to recognize the tort of wrongful discharge
because “where a statutory right and remedy are provided, there is no need to
recognize a redundant tort. The Whistleblowers’ Protection Act embodies a
statutory public policy against discharge in retaliation for reporting illegal acts,
a right to the discharged employee, and a remedial scheme to vindicate that
right.” 590 A.2d 152, 156 (Me. 1991) (citation omitted).
[¶59] The WPA, which is similar to whistleblower statutes in other
states,20 includes a provision that states that it “shall not be construed to
diminish or impair the rights of a person under any [CBA].” 26 M.R.S. § 837.
The plain meaning of the section is to prevent the WPA from weakening the
rights contained in, or interfering with the provisions of, a CBA. See
20 E.g., N.H. Rev. Stat. Ann. §§ 275-E:1–275-E:9 (LEXIS through the 2020 Reg. Sess. (Act Ch. 39));
R.I. Gen. Laws §§ 28-50-1–28-50-9 (LEXIS through all acts of the 2020 Sess. (through ch. 80),
including corrections by the Dir. of Law Revision); Minn. St. Ann. § 181.932 (LEXIS through Ch. 2 of
the 2021 Reg. Sess. of the 92nd Leg.); Del. Code Ann. tit. 19, §§ 1701-1708 (LEXIS through 83 Del.
Laws, ch. 6); Fla. Stat. §§ 448.101-105 (LEXIS through 2020 gen. leg.).
34
Wawenock, LLC v. Dep’t of Transp., 2018 ME 83, ¶ 7, 187 A.3d 609 (“The first
and best indicator of legislative intent is the plain language of the statute
itself.”). Section 837 comes into play only because the Bishop court held that
merely consulting section 837 to determine whether the WPA impairs the
employer’s rights under the CBA triggers federal preemption. See 81 F.
Supp. 2d at 88-89.
[¶60] The Court’s opinion does not present any analysis as to why the
mere examination of the CBA, as contemplated by section 837, would, either as
a mechanism to trigger federal preemption or on its own, impair anyone’s
rights under the CBA. The Court states that Nadeau’s claim “would clearly
compel the court to delve into the meaning of specific CBA provisions well
beyond the limited extent permitted by section 301 of the LMRA and would run
headlong into the WPA section 837.” Court’s Opinion ¶ 40. However, again
there is no analysis whatsoever as to why there is a need for a substantive
analysis of the CBA, nor any discussion as to what that analysis would be.
[¶61] Furthermore, the Supreme Court cases discussed above, in both
the majority opinion and in our dissent, do not limit their holdings that merely
examining the CBA is not enough to trigger federal preemption. E.g., Livadas v.
Bradshaw, 512 U.S. 107, 123-124 (1994). If there is an examination of the CBA,
35
a problem arises only when a state court interpretation conflicts with the
federal interpretation of the CBA under the LMRA. As the Lingle court
instructed, state law is not preempted by the mere fact that resolving the
dispute pursuant to the terms of the CBA and resolving the dispute pursuant to
the WPA “would require addressing precisely the same set of facts.” 486 U.S.
at 410. Further, if there is a state law claim that “may depend for its resolution
upon both the interpretation of a [CBA] and a separate state-law analysis that
does not turn on the agreement[,] . . . federal law would govern the
interpretation of the agreement, but the separate state-law analysis would not
be thereby pre-empted.” Id. at 413 n.12.
[¶62] The Court ignores the holdings of the United Court Supreme Court
cases and follows the holdings in Bishop, Carmichael, and Webb. The Court also
ignores the purpose of the WPA, an independent state law right, which is to
provide protection to all employees and not just to provide protection for
nonunion employees. See 26 M.R.S. §§ 832-833.
C. Nadeau’s Claim
[¶63] As the Lueck Court instructed, a state law’s insulation from
preemption depends on whether it confers “nonnegotiable state-law rights” on
the parties to a contract, or “whether evaluation of the . . . claim is inextricably
36
intertwined with consideration of the terms of the labor contract.” 471 U.S.
at 213. This is the analysis that we should follow in this case.
1. Nonnegotiable State Law Right
[¶64] The WPA provides a state-created remedy that Nadeau has
available to him that was created by the Legislature for all workers in Maine, a
remedy independent of any rights an employee or an employer may have under
a CBA. As the Lueck Court instructed, “Clearly, § 301 does not grant the parties
to a [CBA] the ability to contract for what is illegal under state law.” 471 U.S.
at 212. The WPA makes it illegal for an employer to punish a worker for
reporting safety violations or refusing to break the law and provides a legal
path to obtain protection and remedies. 26 M.R.S. § 833. This protection is not
something that a union worker can bargain away in a CBA because it is an
independent right provided to protect all employees.
[¶65] Maine’s WPA prohibits employers from “discharg[ing],
threaten[ing] or otherwise discriminat[ing] against an employee regarding the
employee’s compensation, terms, conditions, location or privileges of
employment because” the employee, while acting in good faith, reports
wrongdoing. 26 M.R.S. § 833(1). To trigger the protections in the Act, an
employee must first bring the “alleged violation, condition or practice to the
37
attention” of a supervisor and must give “the employer a reasonable
opportunity to correct that violation, condition or practice” unless the
employee has a specific reason to believe that this will not result in change.
26 M.R.S. § 833(2). If the employee has brought the claim to the attention of the
employer or has a specific reason not to, then the employee “may bring a
complaint before the Maine Human Rights Commission for action under Title 5,
section 4612.” 26 M.R.S. § 834.
[¶66] Upon receiving a complaint, the Maine Human Rights Commission
will conduct a preliminary investigation, after which it may order a dismissal of
the complaint, seek conciliation, file a civil action, or provide the complainant
with a right-to-sue letter. 5 M.R.S. § 4612 (2020). If a civil action is commenced,
the Superior Court will hear the case, and if “unlawful discrimination occurred”
then “its judgment must specify an appropriate remedy or remedies for that
discrimination.” 5 M.R.S. § 4613(2)(B) (2020).
[¶67] The difference between the remedies available under a CBA and
under the WPA are substantial. While the remedies for a breach of a CBA are
limited to requiring the employer to reinstate the employee and pay the
employee back wages, Norris v. Hawaiian Airlines, Inc., 842 P.2d 634, 647
(1992), the possible remedies under the WPA include a cease-and-desist order,
38
an order to employ or reinstate the victim with or without back pay,
compensatory and punitive damages, and reasonable attorney’s fees and costs.
Id.; 5 M.R.S. § 4614 (2020). Furthermore, if a “party seeks compensatory or
punitive damages,” then the plaintiff is afforded the right to a jury trial. 5 M.R.S.
§ 4613 (2)(B)(8)(g).
2. Inextricably Intertwined
[¶68] The Court states that a “court or . . . jury could not evaluate Twin
Rivers’ argument without construing and applying at least the work rule,
discipline, and LCA provisions of the CBA to an extent well beyond the limited
review permitted under section 301.” Court’s Opinion ¶ 40 n.12. However, this
conclusory statement does not actually explain how Nadeau’s claim would
impair Twin Rivers’ rights under the CBA and is flawed for two reasons.
[¶69] First, at the time Nadeau brought his WPA lawsuit, the CBA
proceedings were complete and Nadeau was terminated, and thus he did not
need “to stipulate that Twin Rivers had the right under the CBA to terminate
him” because there was no impairment of Twin Rivers’ right to discipline and
terminate Nadeau under the CBA. Court’s Opinion ¶ 40 n.12. Second, a judge
or jury does not have to agree with the result reached in a proceeding taken
under the CBA; a remedy under a CBA is independent of the WPA which instead
39
requires the worker to prove a retaliatory motive. In a trial, Twin Rivers can
argue that it properly terminated Nadeau because Nadeau violated the rules
under the CBA. Countering this explanation as the reason for the termination,
Nadeau can argue that even though Twin Rivers claims that it terminated him
pursuant to the CBA, the real motive for firing him was as retaliation for
complaining about the hazardous work conditions.
[¶70] In Lingle, the Supreme Court discussed the possibility that there
may be conflict between the finality of an action taken by the employer against
the worker pursuant to the CBA and a court decision regarding a worker’s state
claim:
The operation of the antidiscrimination laws does, however,
illustrate the relevant point for § 301 pre-emption analysis that the
mere fact that a broad contractual protection against
discriminatory—or retaliatory—discharge may provide a remedy
for conduct that co-incidentally violates state law does not make the
existence or the contours of the state-law violation dependent upon
the terms of the private contract. For even if an arbitrator should
conclude that the contract does not prohibit a particular
discriminatory or retaliatory discharge, that conclusion might or
might not be consistent with a proper interpretation of state law.
In the typical case a state tribunal could resolve either a
discriminatory or retaliatory discharge without interpreting the
“just cause” language of a [CBA].
486 U.S. at 412-413 (emphasis added).
40
[¶71] Here, Nadeau, after receiving a right-to-sue letter from the Maine
Human Rights Commission, filed a complaint in Superior Court alleging that
Twin Rivers retaliated against him in violation of the WPA. The three elements
of a WPA retaliation claim are that “[(1)] [he] engaged in statutorily protected
activity; [(2)] [his] employer made an employment decision that adversely
affected [him]; and [(3)] . . . there was a causal link between the protected
activity and the adverse employment action.” Doyle v. Dep’t of Hum. Servs., 2003
ME 61, ¶ 20, 824 A.2d 48 (quotation marks omitted).
[¶72] When the employer moves for a summary judgment in a WPA
retaliation case, the employer has the “burden to show that there is no genuine
issue as to any material fact, and that the evidence fails to establish a prima facie
case for each element of the cause of action.” Brady v. Cumberland Cnty.,
2015 ME 143, ¶ 39, 126 A.3d 1145 (citation omitted) (quotation marks
omitted). Furthermore, the court must view the record “in the light most
favorable to . . . the nonprevailing party.” McCandless v. Ramsey, 2019 ME 111,
¶ 4, 211 A.3d 1157.
[¶73] Nadeau has presented facts demonstrating that he reported
dangerous work conditions to a supervisor on multiple occasions over a
six-month period. Nadeau has also presented facts establishing that he was
41
wrongfully disciplined and terminated from his employment. In its motion for
summary judgment, Twin Rivers stated that it “would concede . . . the second
element of the claim (adverse action), and [it] might well also concede the first
(protected activity).” Twin Rivers has not provided any facts to dispute that
Nadeau was engaged in protected activity.
[¶74] The only issue that remains is whether Nadeau has presented
sufficient evidence to establish an issue of material fact regarding causation.
Nadeau contends that, viewing the facts in the light most favorable to him,21 it
could be inferred that there is a causal link between the protected activity and
21 He asserts that he made a number of reports to his supervisor about the unsafe workplace
conditions, specifically in regard to poor ventilation and exposure to toxic chemicals and industrial
dust. He reported that he was developing adverse health reactions and that he had fears about this
since several former employees, who worked in the same area, developed cancer. One day after
making one of his reports, his supervisor yelled at him, “You’re a cancer, and I am going to get rid of
you!” He reported this and his concerns to the shop steward and local president, but Twin Rivers
took no action.
Nadeau continued to report his concerns of the health risks. In November of 2018, Nadeau was
accused of failing to follow the “lock-out/tag-out” policy after assisting a delivery truck driver and
coworker unloading oil drums. The coworker and the truck driver were not disciplined, but Nadeau
was disciplined for the single violation.
Eight months after being placed on the LCA, Nadeau made his last report to his supervisor about
the ventilation issues in the basement. A week later, Nadeau’s forklift made contact with a core saw,
and upon inspection he did not notice any damage, and did not report the incident. No one mentioned
anything about the incident until five days later, when Nadeau received a phone call from his
supervisor stating that he had damaged the core saw and that he was not able to return to work until
he met with personnel representatives.
At a “fact-finding” meeting with his union officers and company personnel Nadeau explained that
“he inspected the saw and there was no noticeable damage.” Two days after that meeting Twin Rivers
gave Nadeau his termination notice.
42
the adverse action taken by Twin River. A jury could conclude that retaliation
for Nadeau’s whistleblower activity was a substantial factor in Twin Rivers’
decision to discipline and terminate him pursuant to the CBA provisions. A jury
is not bound by the findings of an arbitrator or actions taken by an employer
under a CBA. Lingle, 486 U.S. at 412-413.
[¶75] Nadeau contends that, even though Twin Rivers followed the CBA
provisions regarding disciplining and terminating him, the imposition of
discipline against him demonstrates an inconsistent and unequal application of
discipline given that others violated the same policy and received no discipline.
He contends that this is evidence of retaliatory animus.
[¶76] Given the elements required and the facts Nadeau put forth to
prove his case, at least at this point, there is no evidence of any conflict with the
CBA. The use of the CBA provisions during the grievance proceedings leading
to Nadeau’s discipline is not at issue in this case.
[¶77] However, today, the Court implicitly adopts the Bishop approach
in holding that section 837 requires an interpretation of the CBA, and therefore
merely having to examine the CBA is enough to trigger federal preemption,
whether or not enforcing Nadeau’s rights under the WPA would actually impair
Twin Rivers’ rights under the CBA. Aside from the fact that this is not the
43
prevailing rule under federal case law, an examination of the discipline and
termination process taken by Twin Rivers pursuant to the CBA clearly shows
that Nadeau’s WPA claim did not impair Twin Rivers’ rights under the CBA.
[¶78] The WPA did not prevent Twin Rivers from disciplining and
terminating Nadeau under the CBA. Furthermore, Nadeau did not bring his
WPA lawsuit until all actions by Twin Rivers under the CBA were completed.
There is no need to interpret the work rules in the CBA that Nadeau violated
and were the purported basis for Twin Rivers’ decision to terminate because,
as the Supreme Court said in Hawaiian Airlines, regardless of whether the
company could have terminated the worker under the CBA rules, the question
for the jury is simply one of causation—whether the termination of the worker
was motivated by a retaliatory animus. “Nor are we persuaded by [the
employers’] contention that the state tort claims require a determination
whether the discharge, if any, was justified by [the employee’s] failure to
[comply with a particular company policy], as the CBA required him to do.
Although such a determination would be required with regard to [the
employee’s] separate allegation of discharge in violation of the CBA, the District
Court dismissed that count as preempted . . . and [the employee] does not
challenge that dismissal. The state tort claims, by contrast, require only the
44
purely factual inquiry into any retaliatory motive of the employer.” Hawaiian
Airlines, 512 U.S. at 266.
[¶79] Twin Rivers claims that it terminated Nadeau for valid reasons
under the CBA, but Nadeau may prove that the stated reasons were pretextual
if he can show an ulterior motive, e.g., a retaliatory animus.22 Although the
Court states that its decision is not as broad as to remove the rights of all union
workers, it is evident from reading the Court’s holding that this is the clear
result because even if a worker can prove that his termination for violating
rules under the CBA was pretextual, the Court would dismiss the complaint
because section 837’s required examination of the CBA triggers federal
preemption. Court’s Opinion ¶ 40 n.12.
[¶80] Nadeau has the right under Maine’s WPA to present his case to the
court and to try to convince a jury that the real reason Twin Rivers terminated
In Trott v. H.D. Goodall Hospital, we cautioned that “when judges evaluate a summary judgment
22
record, they should be mindful that what might initially appear to be a weak case of pretext is not the
same as no case. Proof produced by the employee should be evaluated with an awareness that
reasonable jurors can and often do disagree as to both the weight and meaning of evidence.”
2013 ME 33, ¶ 20, 66 A.3d 7. See also Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)
(“[The Act] is violated if a retaliatory motive played a part in the adverse employment actions even if
it was not the sole cause and if the employer was motivated by retaliatory animus, [the Act] is violated
even if there were objectively valid grounds for the discharge.” (citation omitted)); Baldracchi v. Pratt
& Whitney Aircraft Div., United Techs. Corp., 814 F.2d 102, 105 (2d Cir. 1987) (the court disagreed
with the employer’s argument “that determining whether its proffered reason for firing [the
employee] was ‘legitimate,’ i.e., for ‘just cause’ under the labor agreement, would require
interpretation of that agreement”).
45
him was as retaliation for his protected activity and that he is entitled to the
protection and remedies available under the WPA.
D. Conclusion
[¶81] Today’s holding significantly impacts the right of all union workers
to file WPA actions. Since all union workers are covered by a CBA, the Court’s
holding today necessarily means that any WPA action brought by a union
worker will bring section 837 into play, and since, according to the Court,
section 837 requires an examination of the CBA, federal preemption requires a
dismissal of the action without any determination of whether the WPA actually
impairs or diminishes anyone’s rights under the CBA. In addition to the fact
that such a holding discriminates against union workers, it conflicts with the
clear message from the United States Supreme Court cases holding that merely
examining the CBA is insufficient to trigger federal preemption.
[¶82] As is apparent in numerous federal cases, including the Supreme
Court cases, union employees who were terminated pursuant to a CBA are
nevertheless able to pursue their independent state claims. The Court’s holding
today is contrary to a majority of United States District Court cases, United
States Courts of Appeals cases, and United States Supreme Court cases.
46
[¶83] Here, federal law does not preempt the WPA, and summary
judgment is not a substitute for trial. See Arrow Fastener Co. v. Wrabacon, Inc.,
2007 ME 34, ¶ 18, 917 A.2d 123 (“[A]lthough summary judgment is no longer
an extreme remedy, it is not a substitute for trial.”). I would vacate the Superior
Court’s decision and remand so that Nadeau may pursue his whistleblower
claim against Twin Rivers.
James A. Clifford, Esq., and Andrew P. Cotter, Esq. (orally), Clifford & Clifford,
LLC, Kennebunk, for appellant Bernard Nadeau
James R. Erwin, Esq. (orally), Pierce Atwood LLP, Portland, for appellee Twin
Rivers Paper Company, LLC
Barbara Archer Hirsch, Esq., Maine Human Rights Commission, Augusta, for
amicus curiae Maine Human Rights Commission
John W. VanLonkhuyzen, Esq., Verrill Dana LLP, Portland, for amicus curiae
New England Legal Foundation
David G. Webbert, Esq., Carol J. Garvan, Esq., Valerie Z. Wicks, Esq., Braden A.
Beard, Esq., and Shelby H. Leighton, Esq., Johnson, Webbert & Young, LLP,
Augusta, for amici curiae Maine Employment Lawyers Association and Maine
AFL-CIO
Aroostook County Superior Court (Caribou) docket number CV-2018-153
FOR CLERK REFERENCE ONLY