Lydon v. Boston Sand

• Court: Court of Appeals for the First Circuit
• Decided: April 9, 1999
• Docket: 98-1978
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1978



                          JOSEPH LYDON,



                      Plaintiff, Appellant,



                                v.



                  BOSTON SAND & GRAVEL COMPANY,



                       Defendant, Appellee.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Edward F. Harrington, U.S. District Judge]



                       ____________________



                              Before



                 Selya and Stahl, Circuit Judges,



and Shadur, Senior District Judge.



                      _____________________



     James T. Masteralexis for appellant.

     Robert P. Corcoran, with whom Gleeson & Corcoran was on brief,

for appellee.


____________________



                         April 9, 1999

                       ____________________          SHADUR, Senior District Judge.  This labor dispute

presents a collision at the intersection of judicial doctrines that

in this instance would operate at cross-purposes:  on the one hand

the doctrine of complete federal preemption, and on the other hand

both the limitations on that doctrine and the independent principle

of judicial estoppel.  Appellant Joseph Lydon ("Lydon") has sought

to resolve his quarrel with his employer, appellee Boston Sand and

Gravel Co. ("Boston Sand"), in two successive forums:  first by an

attempted arbitration between Lydon's union and Boston Sand

pursuant to their collective bargaining agreement ("CBA"), and then

by Lydon's lawsuit in a Massachusetts state court pursuant to that

state's workers' compensation laws.  

          When Lydon initially filed his grievance under the CBA,

leading in turn to the union's invocation of the arbitration

remedy, Boston Sand successfully argued before the arbitrator that

the parties had already agreed his claims should instead be decided

under state statutes.  When Lydon then did file suit in a state

court, Boston Sand removed the case to federal court, urging that

Lydon's state law claims were preempted by federal labor laws.

          Finding that the state law claims were indeed preempted,

the district court entered a summary judgment of dismissal in favor

of Boston Sand.  For the reasons stated in this opinion, we hold

that while Lydon's claims might ordinarily be preempted, they are

not preempted here because of Boston Sand's prior litigating

position.  We therefore remand this case to the district court with

a direction that it be remanded to the state court of origin.

                              Facts

          Boston Sand hired Lydon as a cement truck driver in 1984. 

In July 1991 Lydon suffered a work-related neck injury that

prevented him from working.  He received weekly workers'

compensation payments until May 1993, when he settled his claim and

received a lump sum payment that was projected to cover four years

of weekly payments based on Lydon's expected period of disability.

          During those four years Lydon was presumed as a matter of

Massachusetts law (Mass. Gen. L. ch. 152,  148) to be unable to

work.  Nonetheless Lydon did some driving for another concrete

company, Sherman Concrete, from fall 1993 to spring 1995.

          In April 1995 Lydon attempted to return to work for

Boston Sand.  After a physician determined that he was physically

able to do so, Lydon met with Vice President David McNeil

("McNeil") and attempted to substantiate his physical ability to

return to work by noting his interim job with Sherman Concrete. 

McNeil informed Lydon that because he had worked for another

company for a year and a half, Boston Sand considered Lydon to have

quit his job and forfeited his seniority rights.  Lydon's union,

Teamsters Local 379, then presented a written request for Lydon's

reinstatement, which Boston Sand denied.

          That request led to an exchange of letters between the

union's attorneys and Boston Sand's attorneys.  In December 1995

union attorney Paul Kelly ("Kelly") wrote to Boston Sand attorney

Robert Corcoran ("Corcoran") that a worker who received a lump sum

settlement and was absent from work because of the state statutory

presumption of incapacity, but who then wished to return to work,

had no remedy under the CBA and that such a claim can arise only

under statutory law.  Corcoran responded the following month by

agreeing with Kelly's assessment but taking it a step further,

stating:

            It is Boston Sand's position that an

            injured worker claiming a right of

            reinstatement following a lump sum

            settlement can assert such a claim only in

            court under the statute, and not as a

            grievance under the contract.



Kelly confirmed a few weeks later by writing back that the union

was in agreement that "the reinstatement rights of workers who

enter into lump sum agreements are not covered by the collective

bargaining agreement and, as such, must be asserted in judicial

proceedings."

          After the May 1997 expiration of the four-year statutory

presumption of Lydon's incapacity to work, his private attorney

threatened to sue Boston Sand under the state workers' compensation

statute.  That threat led to negotiations that resulted in Lydon's

returning to work on August 11, 1997, but with seniority preference

only over those hired in or after July 1997.  That minimal

preference left Lydon significantly farther down on the seniority

list--with an accompanying loss of benefits--than he would have

been if he had been reinstated with the seniority rights of his

original 1984 date of hire.

          On August 17, 1997 the union filed a grievance against

Boston Sand, claiming that its refusal to grant Lydon seniority

based on his 1984 date of hire violated the CBA.  That grievance

proceeded to arbitration, where the arbitrator held that the

dispute was not arbitrable because the parties had previously

agreed (in the already-described 1995-96 exchange of letters) that

reinstatement rights, which the arbitrator determined included both

rehiring and seniority, were not covered by the CBA and could be

enforced only under state statutes.  In the face of the explicit

references to "reinstatement rights" in the letters, the arbitrator

rejected Lydon's argument that the 1995-96 agreement covered only

rehiring and not seniority.  Further, the arbitrator agreed

substantively with the parties' exchange of letters in finding that

the CBA did not at all address the rights of workers who received

lump sump settlements, so that it could not be considered

inconsistent with the state statute.

          Lydon then filed a civil suit in Massachusetts state

court, claiming that Boston Sand violated Mass. Gen. L. ch. 152,

 75A and 75B because it discriminated against him by failing to

reinstate his original seniority rights when he started back to

work.  As stated earlier, Boston Sand removed the suit to federal

court on the predicate that the state law claims were preempted by

Section 301 of the Labor Management Relations Act, 29 U.S.C.  185

("Section 301").

     Lydon's appeal disputes the district court's entry of 

summary judgment in favor of Boston Sand on that ground.  As

always, our review of the district court's award of summary

judgment is de novo (Wightman v. Springfield Terminal Ry., 100 F.3d

228, 230 (1st Cir. 1996)).

                       Preemption Doctrine

     Certain aspects of federal labor law have long been

construed to preempt the field--they not only provide for federal

jurisdiction over contract disputes but also prohibit certain state

law actions in the same subject area.  In the labor law context,

the statutory foundation for such complete preemption is found in

Section 301(a):

          Suits for violation of contracts between

          an employer and a labor organization

          representing employees in an industry

          affecting commerce as defined in this

          chapter . . . may be brought in any

          district court of the United States having

          jurisdiction of the parties, without

          respect to the amount in controversy or

          without regard to the citizenship of the

          parties.



     From those simple words, a complex preemption

jurisprudence has grown in stages.  Initially state courts were

simply prevented from applying local rather than federal law in

deciding contract disputes about CBAs (see Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962)), but then the doctrine was

extended to preempt state law remedies whenever resolution of a

plaintiff's claim is substantially dependent on analysis of a CBA's

terms (Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)).  Such

preemption is necessary, according to the Supreme Court, to retain

consistency in the interpretation of terms common to CBAs and to

prevent parties from relabeling as state law claims their actions

that in actuality arise under a CBA (see, e.g., Livadas v. Bradshaw, 512 U.S. 107, 122-23 (1994)).

     Nonetheless the doctrine does not preclude all state law

claims that are somehow linked to a labor dispute.  Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988)

(emphasis added) states the test for determining whether a

particular state remedy has been preempted by federal law:

          [I]f the resolution of a state-law claim

          depends upon the meaning of a collective-

          bargaining agreement, the application of

          state law (which might lead to

          inconsistent results since there could be

          as many state-law principles as there are

          States) is pre-empted and federal labor-

          law principles--necessarily uniform

          throughout the Nation--must be employed to

          resolve the dispute.



Mere parallelism between a state law claim and a federal contract

claim does not necessarily require state court interpretation of

the CBA--that is, as long as the state claim can be resolved

without construing the agreement itself, it is not preempted by

Section 301 (id. at 409-10).  Furthermore, "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" (Livadas, 512 U.S. at 124, citing and thereafter

quoting from Lingle, 486 U.S. at 413 n.12).  

     Courts 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.  As we have said of that dichotomy, "[o]ur premise is that

this means a real interpretive dispute" (Martin v. Shaw's

Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir. 1997)(emphasis in

original)).  Our task here, then, is to determine the extent to

which the analysis of Lydon's state causes of action under Sections

75A and 75B is dependent on the CBA.

     We have twice before addressed the preemptive effect of

federal labor law over those same state provisions.  In Martin, 105

F.3d at 44 we found both Sections 75A and 75B preempted by federal

labor law, and in Magerer v. John Sexton & Co., 912 F.2d 525, 529-

30 (1st Cir. 1990) we found Section 75B preempted.  Both  cases

found the claims preempted because of a proviso present in each

statutory section:

          In the event that any right set forth in

          this section is inconsistent with an

          applicable collective bargaining

          agreement, such agreement will prevail.



     Martin, 105 F.3d at 44 and Magerer, 912 F.2d at 529

reasoned that the quoted provision required courts to interpret the

relevant CBA to determine whether it was inconsistent with the

state statute.  So even if the state cause of action did not itself

require the court to construe the CBA, the inconsistency clauses of

the state statutes would require such interpretation.  Thus, for

example, Martin's state claims were held preempted "not because the

collective bargaining agreement is inconsistent with the state

claims asserted, but because it may be so and requires

interpretation" (Martin, 105 F.3d at 44 (emphasis in original)). 

Martin recognized that its analysis would result in preemption of

Section 75A and 75B claims in some troubling cases that would not

otherwise be precluded (id.).  But it went on to observe that

either the legislature or the unions could avoid that problem by

modifying the statutes or the CBAs (id.)--neither of which occurred

in this case.  Accordingly, Boston Sand urges this Court to follow

the rationale of Martin and Magerer and to find Lydon's claims

preempted as well.

     Matters are not so easy as Boston Sand would have it, for

this case presents an interesting twist to the preemption analysis: 

Here the arbitrator chosen by the parties has already held--

pointing expressly to Boston Sand's attorney Corcoran's letter

taking that position--that the parties had agreed in 1995-96 that

the CBA did not apply to (indeed, did not even attempt to address)

Lydon's claims.  Furthermore, the arbitrator (on whom the parties

have conferred the authority to interpret the CBA) found that

because the CBA did not purport to cover reinstatement of workers

who received lump sum settlements for a workers' compensation

claim, the CBA and the statute could not be inconsistent.

     With that conclusion having been arrived at pursuant to

the parties' agreement, neither the district court nor we have any

occasion to interpret the CBA or the parties' 1995-96 letter-based

agreement to determine the already-resolved question of whether the

state statutory remedies are consistent or inconsistent with those

provided in the CBA.  That determination has already been made--

first by the parties, then by the arbitrator.  Neither Martin nor

Magerer requires us to find Lydon's claims preempted.

     Boston Sand further argues, however, that the substance

of Lydon's discrimination claims would require more than mere

reference to the CBA.  It argues that resolution of the state law

claims would require both reliance on a duty created by the CBA 

and interpretation of the CBA's seniority provisions.  In an effort

to support that contention, Boston Sand cites Flibotte v. Pennsylvania Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir. 1997):

          A state-law claim can "depend" on the

          "meaning" of a collective bargaining

          agreement in two ways.  First, a claim so

          qualifies if it alleges conduct that

          arguably constitutes a breach of a duty

          that arises pursuant to a collective

          bargaining agreement.  See United

          Steelworkers v. Rawson, 495 U.S. 362, 369

          (1990)("[A] state-law tort action against

          an employer may be pre-empted by  301 if

          the duty to the employee of which the tort

          is a violation is created by a

          collective-bargaining agreement and

          without existence independent of the

          agreement.").  Second, a claim so

          qualifies if its resolution arguably

          hinges upon an interpretation of the

          collective bargaining agreement.  SeeAllis-Chalmers Corp. v. Lueck, 471 U.S.

          202, 220 (1985)(finding section 301

          preemption "when resolution of a state-law

          claim is substantially dependent upon

          analysis of the term of an agreement made

          between the parties in a labor contract"). 

          If a state-law claim depends on the

          meaning of the collective bargaining

          agreement in either of these ways--that

          is, under Rawson's "duty" rubric or under

          Allis-Chalmers's "interpretation"

          rubric--it is preempted.



     Boston Sand's position seeks to draw force from the first

of those alternatives and the notion that seniority rights

typically stem from a CBA.  But again the situation before us

differs materially from that norm, because Boston Sand has

previously agreed with the union as Lydon's representative that the

CBA did not address the statutory workers' compensation issues--

that only the state statute does that and defines Lydon's rights--

and because the arbitrator found that agreement (including the

consequent rights that define Lydon's place in the workforce)

binding.

     Indeed, the parties' express agreement that the CBA does

not cover their dispute operates here just as any stipulation about

any other legal issue in a case would.  For example, had the

parties stipulated in 1995 to a definition of seniority rights

without reference to the preexisting CBA, that stipulation would

continue to bind them at this stage of the proceedings.  Neither

party could now attempt to rely on a different definition of the

term.  In the same way, both sides here have agreed that the CBA

did not even address the issues at stake between them.  Just so,

one party--Boston Sand--cannot now renege on its agreement in an

effort to avoid answering the other's state law claims.

     We therefore reject the notion that Lydon's claims are

preempted by Section 301.  Indeed, that outcome is fortified

(independently, in a way) by a concept that has already been

implicated somewhat in our analysis and that we will now discuss in

more detail:  the doctrine of judicial estoppel.

                        Judicial Estoppel

     Judicial estoppel "precludes a party from asserting a

position in one legal proceeding which is contrary to a position it

has already asserted in another" (Patriot Cinemas, Inc. v. General

Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987)).  That doctrine's

dual goals are to maintain the integrity of the judicial system and

to protect parties from opponents' unfair strategies (id. at 214). 

Indeed, "[i]f parties feel free to select contradictory positions

before different tribunals to suit their ends, the integrity and

efficacy of the courts will suffer" (id.).  According to Patriot

Cinemas, id. at 212 (internal quotation marks and citations

omitted), the doctrine "should be employed when a litigant is

playing fast and loose with the courts, and when intentional self-

contradiction is being used as a means of obtaining unfair

advantage."  Although the doctrine varies somewhat among states and

among federal circuits (18 James W. Moore et al. (Lawrence B.

Solum, ed.), Moore's Federal Practice  134.30, at 134-62 to -63

(3d ed. 1998)), our application of the doctrine requires that the

party being estopped have succeeded previously with a position

directly inconsistent with the one it currently espouses (see Gensv. RTC, 112 F.3d 569, 572 (1st Cir. 1997), quoting Patriot Cinemas,

834 F.2d at 212; see also Casas Office Mach., Inc. v. Mita Copystar

Am., Inc., 42 F.3d 668, 676 (1st Cir. 1994)).

     Lydon urges that judicial estoppel principles should

prevent Boston Sand from arguing here that federal law is Lydon's

exclusive remedy. As he points out, at the arbitration  proceeding

Boston Sand succeeded with precisely the opposite argument--that

the parties had already agreed that state law provided Lydon's

exclusive remedy and that the CBA did not address the issue.  

     Boston Sand's inconsistency is both patently unfair to

Lydon and destructive to the integrity of the judicial system. 

Boston Sand should not be allowed to argue successfully in each of

two potential forums that Lydon's claims should be heard in the

other, thereby depriving Lydon of any tribunal in which to bring

his action.  Not only does that strategy place Lydon at an unfair

disadvantage and force him to embrace inconsistent arguments, but

also it erodes the credibility of the court system and the efficacy

of private arbitration agreements.  If parties are allowed to argue

one position to get out of arbitration and then to argue the exact

opposite to avoid related court battles, the value of arbitrators

as decisionmakers (a value that has repeatedly been stressed by the

Supreme Court, particularly in the context of labor matters) will

be vitiated.

     Here Lydon filed his suit in state court in direct

reliance on Boston Sand's assertions--both in the 1995-96 exchange

of letters and in its arguments before the arbitrator--that it

viewed the state court as the appropriate forum for the dispute. 

We therefore also draw upon the judicial estoppel doctrine in

holding that Boston Sand cannot be permitted to circumvent its

earlier agreement with Lydon that the existing dispute should be

resolved in the state courts under the state statutes (while we

express no substantive view, of course, on the merits of the state 

law claims).  That doctrine operates, independently of the earlier

discussion in this opinion, to hold Boston Sand to its own and the

arbitrator's conclusions that Lydon must present his claims in

state court and that the CBA does not purport to cover the disputed

issue.

                   Subject Matter Jurisdiction

     We recognize that there is something troubling about the

conclusion that we have announced.  After all, if it had not been

for the parties' 1995-96 agreement and the ensuing arbitration

decision confirming that agreement, the traditional Lingle analysis

would most likely have triggered federal preemption of Lydon's

claims.  That is so because the merits of Lydon's state claims

could otherwise have required interpretation of the CBA.  For

example, assessing whether Lydon faced adverse employment

action--one of the necessary elements of his discrimination claim

(see MacCormack v. Boston Edison Co., 423 Mass. 652, 662, 672

N.E.2d 1, 7 (1996))--might well have required interpretation of the

CBA to determine whether Boston Sand had a duty to grant Lydon the

benefit of his original seniority.

     If in other circumstances the Lingle line of cases could

thus lead to preemption of Lydon's claims, the question is whether

the parties should be able in a sense to contract out of federal

jurisdiction by agreeing that the CBA is not implicated in the

case.  This is not a situation involving state-federal concurrent

jurisdiction, where parties often forgo potential federal

jurisdiction by the plaintiff choosing to sue in a state court and

by the defendant simply not removing the case to a federal court. 

By contrast, in the field occupied by Section 301 (broadly

construed), Congress and the Supreme Court have determined that the

federal courts should have exclusive jurisdiction.  Not only have

they conferred jurisdiction over such claims on the federal courts,

but they have also prohibited state courts from hearing them. 

Indeed, for that very reason courts have been cautioned to give

careful consideration to the application of judicial estoppel when

subject matter jurisdiction is at stake (18 Charles Alan Wright et

al., Federal Practice and Procedure: Jurisdiction  4477, at 784

(1981 & 1998 supp.)).

     But those concerns do not apply here.  What the parties

agreed to in prior proceedings--and what the arbitrator relied on

in coming to his decision that the dispute was not arbitrable--was

that the CBA simply did not address the seniority rights of workers

returning to work after lump sum workers' compensation settlements. 

Thus the parties agreed (and the arbitrator held) that there would

be no need for a state court to interpret the CBA, because it would

find nothing relevant to interpret in that agreement.  Or to phrase

the matter a bit differently, it is the Massachusetts statutes and

not the CBA that have been agreed by the parties to define Lydon's

rights of priority vis-a-vis other employees.

     In fact, any determination that would question the result

here on subject matter jurisdictional grounds would be at odds with

circuit precedent.  In Sweeney v. Westvaco Co., 926 F.2d 29, 37-41

(1st Cir. 1991) we determined "that LMRA  301 preemption . . .

concerns what law a decision maker must apply, not what forum must

decide the dispute" (id. at 39, emphasis in original), so that the

preemption doctrine did not impose a limitation on federal courts'

subject matter jurisdiction.  If as we held in Sweeney Section 301

preemption is a waivable defense, it really follows a fortiori that

a litigant such as Boston Sand, which has not merely failed to

assert (that is, has not simply waived) the issue but has actively

(and successfully) advanced a position taking the issue out of the

ambit of Section 301, could not now contest subject matter

jurisdiction here.

     Simply put, Lydon is not stripped of his capacity to

bring his claims in state court by Section 301 preemption, because

it has been definitively established as between the parties that

there is no need to interpret the CBA to assess those claims.  That

is what the parties have agreed to, that is what the arbitrator

found, and that is what we rely on in finding there is no Section

301 preemption.

                            Conclusion

     We remand this case to the district court with directions

to remand the case to the Superior Court of Massachusetts, Suffolk

County.  It is so ordered.  In so doing, we express no views on the

substantive merits of Lydon's claims.