Smith v. WGBH

• Court: Court of Appeals for the First Circuit
• Decided: September 27, 1993
• Docket: 93-1213
• Status: Published

Opinion

USCA1 Opinion

September 27, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1213

                                  LEANDERS H. SMITH,

                                Plaintiff, Appellant,

                                          v.

                          WGBH EDUCATIONAL FOUNDATION, INC.,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Leanders H. Smith on brief pro se.
            _________________
            Alan  D.  Rose,  Diane  G.  Rosse,  Marilee  Denelle  and  Nutter,
            ______________   ________________   ________________       _______
        McClennen & Fish on brief for appellee.
        ________________

____________________

____________________

Per   Curiam.     Leanders  H.   Smith  sued   WGBH
                      ____________

            Educational Foundation, Inc. (WGBH)  in state court, alleging

            that it had violated his rights under Massachusetts' workers'

            compensation  laws, M.G.L.  ch.  152,     75A,  75B, when  it

            refused  his request  to  return to  work  after being  on  a

            disability  leave during  which he had  received compensation

            benefits.  WGBH  removed Smith's action  to federal  district

            court,  and moved  for summary  judgment, which  the district

            court  granted.   Smith is  appealing that  order as  well as

            orders denying motions that the court disqualify itself  from

            hearing Smith's case, remand his case to the state court, and

            permit certain  depositions to  proceed.  We  affirm for  the

            reasons stated in the district court's orders, and  elaborate

            only  as  necessary to  clarify  the  court's briefly  stated

            reasons.

                      1.  Removal/Preemption.  In Magerer v. John  Sexton
                          __________________      _______    ____________

            &  Co., 912  F.2d  525  (1st  Cir.  1990),  we  held  that  a
            ______

            retaliatory discharge  claim brought under M.G.L.  ch. 152,  

            75B, was  completely preempted under section 301 of the Labor

            Management  Relations  Act, 29  U.S.C.     185(a), where  the

            plaintiff was  subject to  a collective bargaining  agreement

            which  contained  a  management   rights  clause  giving  the

            employer/defendant  the right  to  "discharge  employees  for

            proper cause."  Since the  definition of "proper cause" under

            the agreement could permit employer discharges  not permitted

            under  section 75B, we found  that the rights and obligations

            of  Magerer  and   his  employer  were   controlled  by   the

            contractual  provisions governing  discharge and  not  by any

independent state standard found in the workers' compensation

            laws of Massachusetts.  Id.  at 530.  In so doing,  we relied
                                    ___

            on the specific language in section 75B, which provided that,

            if  the  rights granted  employees  under  that section  were

            inconsistent  with  a  collective  bargaining  agreement, the

            agreement  was   to  prevail.    The   collective  bargaining

            agreement  between  WGBH  and  the  National  Association  of

            Broadcast   Employees   and   Technicians  (NABET)   contains

            essentially  the same  clause  as the  one  we considered  in

            Magerer.  Article XIX  of the agreement provides  that "[t]he
            _______

            right to  discipline and  discharge employees for  just cause

            shall  remain  the  prerogative  of  [WGBH]."    Thus,  under

            Magerer, Smith's section 75B claim requires interpretation of
            _______

            the collective bargaining agreement and for that reason it is

            completely  preempted  under   section  301   of  the   Labor

            Management Relations Act.  Id.
                                       ___

                      The district court's conclusion that  Smith's state

            law claims  were preempted was  also correct with  respect to

            Smith's claim under section  75A.  Like section  75B, section

            75A states that an applicable collective bargaining agreement

            which is inconsistent with the  rights granted in section 75A

            is  to  prevail  over section  75A.    Section  75A grants  a

            preference  in hiring to any  former employee who  has lost a

            job due  to a compensable injury  under workers' compensation

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over  other  applicants not  employed at  the time  when such

            former employee 

            seeks to  be rehired.  As  a general matter, Article  13.1 of

            WGBH's collective bargaining  agreement gives WGBH  "the sole

            and  exclusive  right to  make  all  decisions regarding  the

            management,  operation and  programming of  [its] operations,

            including determination of the number of employees covered by

            this  Agreement," suggesting that  WGBH may hire  or not hire

            employees as it sees fit and that it is not required to grant

            any  preference  to  former  employees who  have  lost  their

            employment  due to injuries  compensable under Massachusetts'

            workers' compensation law.   More specifically, Article  17.3

            of the  agreement requires WGBH to  rehire laid-off employees

            according to seniority.  For certain types of available work,

            moreover,  Article  3.7(a) also  states  a  hiring preference

            based on seniority  for regular staff employees who have been

            laid  off.   The  seniority principle  for rehiring  laid-off

            employees   is  inconsistent   with   section  75A's   hiring

            preference for  employees laid  off or discharged  because of

            injuries    compensable    under   Massachusetts'    workers'

            compensation  law.   Thus,  under the  reasoning of  Magerer,
                                                                 _______

            Smith's  section  75A claim  requires  interpretation  of the

            collective bargaining agreement and  for that reason it, too,

            is completely preempted.  

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Since Smith's claim  is completely preempted  under

            section  301, it states a federal claim and thus arises under

            federal law, Caterpillar, Inc. v. Williams, 482 U.S. 386, 393
                         _________________    ________

            (1987); Avco  Corp. v. Aero Lodge No.  735, 390 U.S. 557, 560
                    ___________    ___________________

            (1968); Magerer, 912 F.2d at 528, and not under Massachusetts
                    _______

            law.  Consequently, 28 U.S.C.   1445(c), which  prohibits the

            removal  to federal  court of  claims arising  under  a state

            workmen's compensation  law, does  not apply, and  removal of

            the  claim here  was proper.   See  Vantine v.  Elkhart Brass
                                           ____________     _____________

            Manufacturing  Co.,  762 F.2d  511,  517-18  (7th Cir.  1985)
            __________________

            (section 1445(c) did not bar removal of a claim brought under

            a  state's  workmen's  compensation laws;  under  the state's

            laws,  the  cause  of   action  arose  under  the  collective

            bargaining agreement  and thus  stated a federal  claim under

            section  301 which  rendered  removal to  the district  court

            proper);  Smith v.  Union Carbide  Corporation, 664  F. Supp.
                      _____     __________________________

            290, 292  (E.D.  Tenn. 1987)  (section  1445(c) did  not  bar

            removal  of  an  action  brought under  a  state's  workmen's

            compensation  law  because  the   plaintiff's  suit  was   an

            independent, judicially  created tort action, and  so did not

            arise  under the  state's  workmen's  compensation laws,  and

            because it  was preempted by federal labor  law and therefore

            arose under federal and not state law).  2.           Smith's
                                                                  _______

            Employment Status as of August 1989.  If Smith was subject to
            ___________________________________

            WGBH's collective bargaining agreement, dismissal of his suit

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was proper since his only remedy for his discharge was resort

            to   the  grievance  and   arbitration  procedures   of  that

            agreement.  See Allis-Chalmers Corporation v. Lueck, 471 U.S.
                        ______________________________    _____

            202, 220-21 (1985).   In affidavits,  Smith claimed that  his

            employment at WGBH had  ended before August 1989 and  that he

            was  not  subject  to the  WGBH-NABET  collective  bargaining

            agreement.  Accordingly, he argues that he was not bound by a

            1990 arbitral  decision which found that  WGBH had discharged

            him  for just cause,  and he says  that he is  free to sue in

            court.  In view of the overwhelming evidence to the contrary,

            we find that  his allegations do not establish  the existence

            of  a genuine  issue of  material fact  sufficient to  defeat

            WGBH's motion  for summary judgment.  Petitti  v. New England
                                                  _______     ___________

            Telephone  & Telegraph Co., 909  F.2d 28, 30  (1st Cir. 1990)
            __________________________

            (summary judgment is proper if evidence is so  one-sided that

            one party must prevail as a matter of law).

                      Smith claims  that  his employment  had  terminated

            before August  1989 under  Article 17.2(f) of  the collective

            bargaining  agreement.   That  article provided  for loss  of

            seniority by  employees absent  from work due  to injury  for

            more than 15  months, and  was understood by  the parties  to

            terminate  the employment  of such employees.   As  of August

            1989, Smith had  been on  disability leave for  more than  15

            months,  having  begun his  leave in  February  1986.   In an

            affidavit, WGBH's Human Resources Director, Michael Enwright,

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who  negotiated  WGBH's 1987-90  contract with  NABET, stated

            that  WGBH  had  accepted  the union's  demand  during  those

            negotiations  that Smith  be excluded  from the  operation of

            Article  17.2(f).   Smith's disability  leave began  in 1986,

            when the 1984-87 contract was  in effect, and Enwright stated

            in  his affidavit that that contract  did not contain Article

            17.2(f).  Smith has not introduced any affidavit by the union

            to the contrary, nor has he denied Enwright's sworn statement

            that the 1984-87 contract did not contain Article 17.2(f).  

                      In an  affidavit, Smith states  that John  Plausse,

            his  direct supervisor, had told him during his leave that he

            was  not subject  to  the  collective  bargaining  agreement.

            Nevertheless,  the  pleadings,   affidavits  and   underlying

            documentary   evidence   submitted   by   the   parties  show

            conclusively that, even if Plausse had told Smith that he was

            not subject  to  the collective  bargaining agreement,  Smith

            knew  that his employment  with WGBH had  not been terminated

            before August 1989 and that he continued to be subject to the

            collective bargaining  agreement.   Among the many  pieces of

            evidence, we highlight only the following:  Smith's complaint

            stating  that on or about November 22, 1989, WGBH had refused

            to allow him  to "return to work"; Smith's letter  to WGBH on

            August 2,  1989, notifying  Enwright that Smith  was changing

            his  "return  to  work"  date  from  September  18, 1989,  to

            September 1, 1989,  telling Enwright to  let Plausse know  of

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the change so that Plausse could make necessary plans, asking

            Enwright  whether his  vacation  time had  been adjusted  and

            informing  Enwright that  he would  be taking  the first  two

            weeks  of  October  off;  the  arbitration  transcript  which

            reveals that  the union arbitrated Smith's  November 22, 1989

            discharge (for misconduct not at issue here), that  Smith was

            consulted about and approved  NABET's and WGBH's selection of

            an  arbitrator, and  that Smith  attended the  arbitration on

            dates in 1989  and 1990  and actively assisted  the union  in

            presenting  evidence on  his  behalf; and  Smith's  affidavit

            stating  that he  is  still a  member  of NABET,  a  critical

            admission since  membership in  the union  is a  condition of

            employment under  the collective  bargaining agreement.   See
                                                                      ___

            Agreement Between NABET and WGBH Educational Foundation, Inc.

            1987-1990,  Art. 3.1.    Although Smith  argues that  certain

            letters  and documents show that  he was not  an employee for

            any purpose under the collective bargaining agreement  during

            his  leave, those letters and documents show only that he was

            not  classified as an "active" employee at that time and thus

            did  not have the  rights granted active  employees under the

            agreement (e.g., vacation, sick leave, and holiday benefits).

            The  collective  bargaining  agreement distinguishes  clearly

            between  the rights  of active  employees and  those of  non-

            active employees  on leave of  absence (see,  e.g., id.  Art.
                                                    _______________

            9.5(c), 9.7;  Art. XII);  nowhere does  it suggest that  non-

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active employees on leave  are not in the bargaining  unit or

            not subject  to the  grievance and arbitration  provisions of

            the contract.  

                      Smith's  other  claims are  without  merit for  the

            reasons stated in the orders being appealed.

                      Affirmed.
                      ________

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