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23-P-83 Appeals Court
INTERNATIONAL LONGSHOREMEN ASSOCIATION, LOCAL 1413-1465 vs. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.1
No. 23-P-83.
Bristol. October 6, 2023. – April 3, 2024.
Present: Green, C.J., Milkey, & Grant, JJ.
Anti-Discrimination Law, Sex. Employment, Discrimination. Massachusetts Commission Against Discrimination. Labor, Fair representation by union. Administrative Law, Substantial evidence. Damages, Under anti-discrimination law, Emotional distress. Emotional Distress. Labor, Federal preemption. Jurisdiction, Federal preemption. Federal Preemption. Practice, Civil, Judgment on the pleadings, Waiver. Waiver.
Civil action commenced in the Superior Court Department on July 22, 2020.
The case was heard by Renee P. Dupuis, J., on motions for judgment on the pleadings.
Scott W. Lang for the plaintiff. Peter M. Mimmo for Massachusetts Commission Against Discrimination. The following submitted briefs for amici curiae:
1 April L. Robar. 2
Andrea Joy Campbell, Attorney General, & Jessica Rahmoune & Douglas S. Martland, Assistant Attorneys General, for the Commonwealth. James A.W. Shaw & Ryan M. Quinn for Massachusetts AFL-CIO. Joseph L. Sulman for Massachusetts Employment Lawyers Association.
MILKEY, J. Women have been employed at the Port of New
Bedford for years. However, their work there traditionally was
confined to certain jobs that were viewed as low-level. Over
time, some women began to seek other positions at the port,
including that of forklift operator, a position that
traditionally had been staffed only by men. Such efforts were
rebuffed by the International Longshoremen Association, Local
1413-1465 (union), which ran the hiring process through which
workers were selected for available positions. In 2009, April
Robar filed a complaint with the Massachusetts Commission
Against Discrimination (commission) alleging that the union had
engaged in sex discrimination against her.
Specifically, Robar alleged that she was passed over for
work as a forklift operator in favor of men who not only were
less qualified than she was, but who -- unlike her -- lacked a
mandatory qualification for the position. When given the
opportunity to respond, the union's then-treasurer (later
president and business agent), Edmond Lacombe, supplied a
written statement that proved unhelpful to the union's defense.
Specifically, among other things, he recounted that the women 3
who were hired for the traditionally female positions "did not
complain"; rather, "[t]hey, more or less, knew their place when
work was issued and accepted the outcome."
Following an adjudicatory hearing, a hearing officer found
that the union had discriminated against Robar based on her sex.
The full commission upheld the hearing officer's decision, as
did a Superior Court judge. In this further appeal, the union
challenges the commission's decision on the merits and
additionally argues that it is preempted by various Federal
labor laws.2 We affirm.
Background.3 The freight terminal in New Bedford Harbor is
operated by Maritime International, Inc. (Maritime). Maritime
and the union entered into a collective bargaining agreement
(CBA) under which the union was given the role of referring
interested workers for available work. Strictly speaking,
Maritime retained final hiring rights, but, as a practical
matter, it was the union that selected who would be hired among
the union members and nonunion workers who would show up at the
docks each morning to fill open positions. This process is a
2 We acknowledge the amicus letter submitted by the Commonwealth and the amicus briefs submitted by the Massachusetts AFL-CIO and the Massachusetts Employment Lawyers Association.
3 Our recitation of the facts is based on the findings made by the hearing examiner. 4
form of what is known as a "hiring hall," and specifically is
known as a "shape up" in the maritime industry. At the shape
ups, union members were selected first based on the order of
their seniority in the union, and according to the testimony of
union members, only then would nonunion workers be hired for the
remaining jobs. As of 2009, there were no female members of the
union.
The CBA included some specific requirements for different
dock positions. For example, consistent with regulations issued
by the Occupational Safety and Health Administration (OSHA), see
29 C.F.R. § 1910.178(l), all forklift operators were required to
have a forklift safety certificate issued by Maritime.
In 2004, Robar started working at the Maritime terminal as
a nonunion "wrapper/stamper" on fish boats. That job involved
wrapping pallets of fish in plastic sheeting and stamping boxes
of fish. It was viewed as an undesirable position that
typically was staffed only by women. The union selected men for
such positions only if there were not enough women to fill the
positions.
Over time, the types of boats serviced at the terminal
shifted. The number of fish boats decreased, leaving available
work mostly confined to fruit boats, which did not need
wrapper/stampers. Robar and other workers testified that they 5
had never seen any women hired for off-loading the fruit boats.
There was no evidence to the contrary.
Because there were fewer available jobs on fish boats, and
in order to seek better working conditions, Robar sought work at
the terminal as a forklift operator. She already had received
an OSHA-mandated forklift safety certificate from a previous
employer, and she obtained one from Maritime as well.4 In her
spare time, she also availed herself of the opportunity to
undergo informal practical training to learn how to operate
forklifts on the docks. There was testimony from a union member
that Robar did an "outstanding job" in operating a forklift on
the docks.
Despite Robar's qualifications and efforts to obtain work
as a forklift operator, she was denied the position five
separate times by the union officials running the shape up,
4 In the wake of security concerns raised by the attacks of September 11, 2001, dock workers also were required to obtain a "transportation worker identification credential" (known as a TWIC card). In fact, Robar went through proper procedures and obtained a TWIC card. The union points out that given problems that many dock workers faced in obtaining TWIC cards, the requirement that they hold one was softened so as to allow non- cardholders to continue working without one so long as the ratio of TWIC cardholders to non-cardholders was at least 1:5. Thus, although Robar's being hired did not depend on her holding a TWIC card, her having one was, if anything, a net plus to the union. After all, the union had an express obligation under the CBA to "ensure that a sufficient number of employees hired possess a TWIC as required by the Department of Homeland Security." 6
including then-vice president (later president and business
agent) Joseph Fortes. On one of these occasions, Fortes chose
two male nonunion workers instead of Robar despite the fact that
they lacked the required safety certificate. In response to
Robar's anger at being passed over, she received a simple
explanation: "We don't pick ladies here working on the fruit
boats." The comment was made by a union member who was standing
directly in front of Fortes at the time. Fortes chastised the
speaker for making the comment: "No, no, no, don't say that.
We don't do that, we don't say that here." When Robar sought
work for an available forklift position at another shape up,
Fortes told her to go home to retrieve a copy of her forklift
certification from her previous employment (even though she also
had one from Maritime), and then he hired a man in her place as
soon as she left to retrieve the unnecessary document.
On November 25, 2009, Robar lodged a complaint with the
commission alleging, in pertinent part, sex discrimination by
the union pursuant to G. L. c. 151B, § 4.5 Among the exhibits
Robar submitted to the commission were documents related to a
5 Robar also initially brought a race discrimination claim against the union, which was dismissed by the commission for lack of probable cause. In addition, she brought a retaliation claim that she eventually abandoned. Although she initially cited to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in addition to State law, she no longer presses that as an independent source of authority. 7
sex discrimination proceeding that the National Labor Relations
Board (NLRB) had initiated based on a request made by a female
coworker.6 Robar also included evidence that shortly after the
NLRB issued a complaint against the union, the union
dramatically changed its membership requirements so as to make
it much more difficult to join the union. Specifically, prior
to the change, one could join the union after having accumulated
300 total hours of dock experience. Afterwards, not only were
400 hours of experience needed, but those hours had to have been
incurred during the previous fiscal year. Notwithstanding that
change, the union subsequently admitted five men to the union
who had not completed the requisite 400 hours of work during the
previous year.
After two days of testimony, the hearing officer found that
the union had discriminated against Robar during shape ups based
on her sex. The hearing officer pointed to indirect evidence of
bias, such as the union's passing over Robar, despite her
qualifications, in favor of men who lacked a mandatory safety
certificate. She also pointed to direct evidence of bias, such
as the comment by then-union treasurer Lacombe about a time when
6 The specific manner in which the NLRB complaint involving the coworker was resolved is not clear on the record before us. There is a suggestion in the record that the case settled and that the coworker "beat the case or whatever and they paid her money." 8
women "knew their place." By way of relief, the hearing officer
awarded Robar $50,000 for emotional distress and directed the
union to confer union membership on Robar retroactive to October
1, 2009, including "whatever pension, death, and other benefits"
would have accrued since then. The union appealed the hearing
officer's finding on discrimination, and in June 2020, the full
commission upheld the hearing officer’s decision.
In July 2020, the union filed a complaint for judicial
review of the commission's decision in the Superior Court, and
the commission filed a counterclaim seeking enforcement of that
decision. See G. L. c. 30A, § 14. After the parties filed
cross motions for judgment on the pleadings, a Superior Court
judge ruled in the commission's favor on January 3, 2022.
Amended final judgments entered on July 13, 2022.7
Discussion. 1. Merits. On appeal, we review the
commission's decision in accordance with G. L. c. 30A,
§ 14 (7) (c), giving deference to the hearing officer's role as
fact finder. See Smith College v. Massachusetts Comm'n Against
7 The Superior Court judge initially issued a judgment that simply dismissed the union's complaint. Pointing out that it had brought a counterclaim seeking enforcement of its order, the commission requested that two separate judgments be entered reflecting the awards specific to the commission and to Robar. The judge followed that requested course of action even though it is axiomatic that, barring the invocation of Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), there should never be more than one final judgment in a civil case. See Pantazis v. Mack Trucks, Inc., 92 Mass. App. Ct. 477, 478 n.4 (2017). 9
Discrimination, 376 Mass. 221, 224 (1978). Many of the union's
appellate arguments relate to the hearing officer's credibility
determinations. The union maintains that the hearing officer
erred both in crediting the commission's witnesses despite
reasons to consider them biased, and in failing to credit the
union's witnesses, who it claims were trustworthy. Such
arguments warrant little discussion because credibility findings
are for the hearing officer to make. See Ramsdell v. Western
Mass. Bus Lines, Inc., 415 Mass. 673, 676 (1993). In addition,
we note that our review of the record reveals that the hearing
officer displayed an even-handed approach, which undercuts the
union's intimations of bias. For example, when the commission
objected to examination by union counsel that sought to explore
potential bias of one of the commission's witnesses, the hearing
officer overruled that objection.
Nor is there any merit to the union's argument that the
hearing officer's findings should be put aside on the ground
that she misunderstood the working conditions and union hiring
rules in the Port of New Bedford. As evidence of her lack of
understanding, the union points to various requests that the
hearing officer made for clarification. Far from evincing her
ignorance of the issues, such requests demonstrate her
conscientious efforts to make sure she understood them. In the
end, the union lost not because the hearing officer 10
misunderstood the reasons why Robar was passed over for the
available forklift positions, but because the hearing officer
did not credit the union's explanation.8 There was ample support
in the record for the hearing officer's findings and rulings,
even apart from the direct suggestions of bias inherent in
statements made by union members or officials.9 We discern no
error in the hearing officer's application of the traditional
three-stage test regarding how discrimination claims can be
established. See Abramian v. President & Fellows of Harvard
College, 432 Mass. 107, 116 (2000). There was evidence credited
by the hearing officer that Robar was qualified to be hired as a
forklift operator and that the union treated her differently
8 We acknowledge that, while requiring that all forklift operators have a forklift safety certificate, the CBA declares, in highlighted text, that "the forklift safety certificate is not a license and is not a measure of qualification to operate a forklift." Thus, a forklift safety certificate is a necessary, but not a sufficient, test that someone is qualified to operate a forklift. We do not view the hearing officer's decision as misunderstanding that point, or as dependent on viewing it as such.
9 The union seeks to discount the import of the "[w]e don't pick ladies here [for] working on fruit boats" comment on the ground that it came from a mere union member, not a union official in charge of the shape up. It also argues that Fortes, who was then union vice president, immediately objected to the comment when it was made. In context, however, Fortes's reaction can be seen not as disavowing the substance of the comment but as chastising the speaker for saying it out loud. In any event, we need not resolve whether there was adequate direct evidence of discrimination on its own, in light of the fact that the hearing officer adequately based her finding of prima facie discrimination on circumstantial evidence. 11
from men even when they lacked a mandatory qualification for the
position, without any credible explanation for the disparate
treatment. Nothing more is required. See Blare v. Husky
Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-445
(1995) ("once a plaintiff has established a prima facie case and
further shows . . . that the employer's articulated reasons are
a pretext . . ., the plaintiff is entitled to recovery for
illegal discrimination under G. L. c. 151B").
In addition to arguing that the hearing officer's decision
was not supported by substantial evidence, the union challenges
the particular relief that she ordered, including the award for
emotional distress damages, the civil penalty imposed on the
union, and the order to grant Robar union membership, on the
grounds that these damages were arbitrary, capricious,
unsupported by the evidence, and not in accordance with the
law.10 We disagree.
"Emotional distress damage awards, when made, should be
fair and reasonable, and proportionate to the distress
10The union also challenges the commission's award of $50,645.47 in legal fees, which amounted to ninety percent of the fees requested, as excessive. However, that claim is unsupported by legal argument demonstrating how the award is excessive. We therefore defer to the commission's expertise and uphold the award. Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993) (commission is in "best position to determine how much time was reasonably spent on a case, and the fair value of the attorney's services"). 12
suffered." Stonehill College v. Massachusetts Comm'n Against
Discrimination, 441 Mass. 549, 576, cert. denied sub nom.
Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against
Discrimination, 543 U.S. 979 (2004). To award such damages, the
hearing officer must find that the complainant suffered
emotional distress as a result of the respondent's unlawful act.
Id. In this case, the hearing officer found that Robar
testified credibly and "with great persuasiveness" that she felt
hurt, upset, and like a second-class citizen when the union did
not hire her as a forklift operator. Robar also testified that
she continued to feel upset by the discrimination years
afterward, stating that the union's refusal to give her a chance
made her feel "unworthy and unqualified," led to her low self-
esteem, and made her afraid to talk to her male supervisor at
the dock. As the finder of fact, the hearing officer was
permitted to credit Robar's testimony and evaluate the level of
emotional distress Robar suffered. Therefore, the hearing
officer's emotional distress award is proportionate to the
injury Robar suffered and supported by substantial evidence.
In imposing the maximum civil penalty of $10,000, the
hearing officer cited the "egregious nature" of the union's
conduct, finding that the union engaged in "concerted activity"
to deprive Robar of the benefits of union membership. Given
that the union increased its membership work requirement from 13
300 hours total to 400 hours in a single fiscal year shortly
after the NLRB filed a discrimination complaint against it, yet
subsequently granted membership to men who had not fulfilled
that increased hour requirement, we conclude that the hearing
officer's rationale for imposing the maximum penalty was also
supported by substantial evidence.
We also discern no error in the hearing officer's order to
grant Robar union membership. While it is undisputed that Robar
had accrued only 179.5 hours of work between 2004 and 2009, the
hearing officer found that this was a direct result of the
union's discriminatory treatment of Robar.11
2. Preemption. a. Waiver. The union now argues that the
commission's claims against it are preempted by three different
Federal labor laws: § 301 of the Labor Management Relations Act
(LMRA), 29 U.S.C. § 185; the Employment Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.; and §§ 7
and 8 of the National Labor Relations Act (NLRA), 29 U.S.C.
§§ 157-158. None of these arguments was raised to the
11The union's suggestion that the hearing officer's finding as to when Robar would have accumulated the hours necessary for union eligibility depended on subsequent work she performed at the Port of Providence, Rhode Island, is insufficient to demonstrate a lack of substantial evidence. The hearing officer relied primarily on the fact that Robar was not chosen over similarly qualified individuals and that the union granted membership to five men who had not reached the new 400-hour requirement. 14
commission. Nor did the union raise them to the Superior Court
judge during its briefing of the merits or at the hearing on the
cross motions for judgment on the pleadings.12 Accordingly, we
must first decide whether the union waived its preemption
arguments by not raising them in a timely manner, or whether
such arguments instead go to subject matter jurisdiction and
therefore can be raised at any time. Compare Albert v.
Municipal Court of Boston, 388 Mass. 491, 493 (1983) (arguments
not raised to agency during adjudication are waived except in
exceptional circumstances), with Commonwealth v. DeJesus, 440
Mass. 147, 151 (2003) (arguments based on subject matter
jurisdiction can be raised at any point).
Whether a defense based on Federal preemption can be waived
is itself a question of Federal law. See International
Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 388 (1986)
(Davis) ("Pre-emption . . . is always a federal question").
Because the answer to that question ultimately turns on
congressional intent, it may vary depending on the Federal
statute at issue. See id. at 391 n.9 (jurisdictional preemption
applies to claims "that go to the State's actual adjudicatory or
12The union argued preemption by the LMRA and ERISA for the first time during the dispute over the form of the judgment, that is, after the judge already had denied the union's motion for judgment on the pleadings and allowed the commission's cross motion. The union argued preemption under the NLRA for the first time in the appeal before us. 15
regulatory power as opposed to the State's substantive laws").
Case law establishes that arguments that State claims have been
preempted by the LMRA and ERISA are subject to waiver. See,
e.g., Sweeney v. Westvaco Co., 926 F.2d 29, 38-41 (1st Cir.)
(Breyer, C.J.), cert. denied, 502 U.S. 899 (1991) (§ 301 of LMRA
is not jurisdictional and arguments based on it can be waived);
Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 217 ("an
ERISA preemption claim is treated as a waivable affirmative
defense"). Because it is uncontested that the union did not
timely raise its LMRA and ERISA preemption defenses, those
defenses have been waived.13
A different result applies to the commission's argument
that the union waived its preemption defense under the NLRA, at
least to the extent such arguments are based on §§ 7 and 8 of
that statute. This type of preemption -- which has become known
13Even if the union's LMRA preemption argument had not been waived, we would agree with the commission's argument that the CBA was not central to the hearing officer's finding of discrimination. See Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988) (State claim not preempted because resolution not dependent on interpretation of collective bargaining agreement, even if claim could have been brought under agreement). See also Ralph v. Lucent Techs., Inc., 135 F.3d 166, 171 (1st Cir. 1998), citing Livadas v. Bradshaw, 512 U.S. 107, 123-124 (1994) (no preemption under § 301 of LMRA because "plaintiff's rights under state and federal statutes . . . exist independently of the collective bargaining agreement and do not require interpretation of that agreement"). We express no view on the viability of the union's waived ERISA preemption argument. 16
as Garmon preemption -- is based on the theory that Congress
gave the NLRB exclusive jurisdiction over certain kinds of labor
disputes. See San Diego Bldg. Trades v. Garmon, 359 U.S. 236
(1959) (if claim before State or Federal court arises from
"activity . . . arguably subject to § 7 or § 8 of the [NLRA]
. . . courts must defer to the exclusive competence of the
[NLRB]"). The Supreme Court has specifically held that Garmon
preemption, if it applies, cannot be waived. See Davis, 476
U.S. at 393. We therefore turn to the union's argument that
such preemption applies here.
b. Preemption by the NLRA. Garmon preemption is often
portrayed as considerably broad, characterized as applying
whenever conduct is "arguably subject to § 7 or § 8 of the
[NLRA]." Garmon, 359 U.S. at 245. Nevertheless, case law long
has recognized some exceptions to that sweep. The Supreme Court
itself has acknowledged that Garmon preemption does not preclude
claims that are based on conduct that was "merely a peripheral
concern of the [NLRA] . . . [or] touched interests so deeply
rooted in local feeling and responsibility that, in absence of
compelling congressional direction, [the Court] could not infer
that Congress had deprived the States of the power to act."
Farmer v. United Bhd. of Carpenters & Joiners of Am. Local 25,
430 U.S. 290, 296-297 (1977), quoting Garmon, supra at 243-244. 17
Thus, a two-part analysis applies: whether the underlying
claim involves activity that is arguably subject to § 7 and § 8
of the NLRA, and if so, whether that claim nevertheless falls
within the "peripheral concern" or the "local interests"
exceptions to Garmon preemption. Farmer, 430 U.S. at 296. We
agree with the union insofar as it argues that the
discrimination that the commission alleged the union engaged in
while operating its shape ups at the dock is "arguably
prohibited by §§ 8(b)(1) and 8(b)(2) of the NLRA" and therefore
potentially fits within the sweep of Garmon preemption. Sears,
Roebuck & Co. v. San Diego County District Council of
Carpenters, 436 U.S. 180, 196 (1978). See Farmer, supra at 303
n.11 ("Discrimination in hiring hall referrals constitutes an
unfair labor practice under §§ 8[b][1][A] and 8[b][2] of the
NLRA"). This conclusion is reinforced by the fact that the NLRB
assumed jurisdiction over a complaint based on essentially the
same claims that one of Robar's coworkers filed.
The second step in the analysis is controlled by
Massachusetts Elec. Co. v. Massachusetts Comm'n Against
Discrimination, 375 Mass. 160, 174 (1978). There, the Supreme
Judicial Court held that "State antidiscrimination statutes are
not preempted by Federal labor law [including the NLRA]." Id.
The court reasoned that discrimination falls within the
"peripheral concern" exception to Garmon preemption. Id. 18
Despite the age of this case, it remains good precedent binding
on us. See Driscoll v. Carpenter's Council of W. Pa., 525 Pa.
205, 213 (1990) (State discrimination claim against union not
barred even though NLRB could have pursued matter as unfair
labor practice pursuant to NLRA). Thus, while it is not too
late for the union to argue that Garmon preemption bars the
commission's case, we hold that it does not.
In its amicus brief, the Massachusetts AFL-CIO (AFL-CIO)
argues that the type of discrimination alleged here perhaps best
can be characterized as a violation of the union's "duty of fair
representation," a doctrine that imposes on unions the
obligation to fairly represent all employees, whether members of
the union or not, "without hostility or discrimination toward
any." Vaca v. Sipes, 386 U.S. 171, 177 (1967). Because the
NLRB plainly has authority to enforce the duty of fair
representation pursuant to § 9 of the NLRA, 29 U.S.C. § 159, the
AFL-CIO argues that the commission's claims here may be
preempted even apart from Garmon preemption, which is based on
§§ 7 and 8 of the NLRA. We are unpersuaded that this helps the
union here. Neither the union nor the AFL-CIO has provided a
convincing reason why any preemption implicated by the duty of
fair representation should be viewed as broader than Garmon
preemption. To the contrary, the cases establish that in light
of the history of the duty of fair representation -- which first 19
arose as a judicially created construct -- the NLRB's authority
to enforce that duty has never been viewed as exclusive. See
Leahy v. Local 1526, Am. Fed'n of State, County, & Municipal
Employees, 399 Mass. 341, 346-347 (1987), citing Vaca, supra at
186. Relatedly, it follows that a claim of preemption based on
the NLRB's authority to enforce the duty of fair representation
-- unlike Garmon preemption -- can be waived. Accordingly, to
the extent that the union seeks to argue that the commission's
case is preempted based on a form of preemption that extends
beyond Garmon preemption, such arguments have been waived.
Amended final judgments affirmed.