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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
________________________________________________
)
LABOR RELATIONS DIVISION OF CONSTRUCTION )
INDUSTRIES OF MASSACHUSETTS; ASSOCIATED )
GENERAL CONTRACTORS’ LABOR DIVISION; )
BUILDING TRADES EMPLOYERS’ ASSOCIATION )
OF BOSTON AND EASTERN MASSACHUSETTS; )
NEW ENGLAND MECHANCICAL CONTRACTORS’ )
ASSOCIATION; BOSTON CHAPTER, NATIONAL ) C.A. No. 1:15-cv-10116-RWZ
ELECTRICAL CONTRACTORS’ ASSOCIATION; )
PLUMBING-HEATING-COOLING CONTRACTORS’ )
ASSOCITION OF GREATER BOSTON; BARLETTA )
ENGINEERING CORPORATION; and CENTURY )
DRYWALL, INC. )
Petitioners, )
)
v. )
)
MAURA HEALEY, IN HER CAPACITY AS THE )
ATTORNEY GENERAL FOR THE COMMONWEALTH )
OF MASSACHUSETTS )
Defendant. )
________________________________________________)
MEMORANDUM OF LAW OF AMICUS CURIAE MASSACHUSETTS AFL-CIO AND
SEIU STATE COUNCIL IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
In November 2014, voters overwhelmingly approved a ballot initiative requiring
Massachusetts employers to provide five sick days per year. Now, seven associations of
unionized construction employers and two individual unionized construction employers petition
this Court to allow them to continue denying sick leave to their employees. Petitioners seek a
radical result that would prevent not only their employees from enjoying the benefits of the new
Sick Time Law, but would affect hundreds of thousands of other unionized workers as well.
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Although the Petitioners’ complaint centers on a large array of specific building trades in the construction industry,
the relief petitioners seek, if granted, would apply to a remarkable number of workers covered by collective
bargaining agreements in the Commonwealth. An incomplete list of such workers includes the following
professions: bakery and confectionary, bartenders, bookkeepers, brewers, bus drivers, cafeteria and food service, car
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Their theory is that the new law will require interpretation of the wage sections of their
various collective bargaining agreements, thus preempting any enforcement efforts pursuant to
Section 301 of the Labor-Management Relations Act (“LMRA”). 29 U.S.C. § 185. However, the
U.S. Supreme Court has repeatedly “underscored the point that § 301 cannot be read broadly to
pre-empt nonnegotiable rights conferred on individual employees as a matter of state law.”
Livadas v. Bradshaw, 512 U.S. 107, 123 (1994) (“Livadas”). Compounding Petitioners’ dilemma
is another longstanding rule that a need to interpret a CBA to determine damages does not result
in preemption. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, n. 12 (1988)
(“Lingle”).
Moreover, the Sick Time Law is a complex statute that not only requires employers to
provide sick leave, but also includes provisions concerning anti-retaliation, amount of pay owed
during leave, and limits on an employer’s ability to require a doctor’s note or advance notice of
leave. Because the Sick Time Law does not take effect until July 1, no claims have actually been
made. When they do arise, it will be in a multitude of circumstances and under differing
collective bargaining agreements (“CBAs”), each of which will require careful case-by-case
adjudication. Declaratory Judgment is an improper vehicle to consider this almost endless array
of hypothetical claims.
For these reasons, Defendant’s Motion to Dismiss should be granted.
I. Statement of Interest
The interests of proposed amici Massachusetts AFL-CIO and SEIU State Council are
contained on pages 2-5 of their Motion for Leave to Participate as Amicus Curiae.
rental clerks, cashiers, chauffeurs, chemists, clinicians, concierge, cooks, custodians, engineers, factories and
manufacturing, gaming, home health aides, housekeepers, industrial laundry and linen, janitors, lab technicians,
longshoremen, machinists, meatpackers, mechanics, motion picture technicians, musicians, nurses, nursing home
and rehabilitation, parking attendants and valets, retail clerks, riggers, security guards, stagehands, stock clerks,
textile workers, truckers, waiters and waitresses, and warehouse clerks.
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II. The Complaint
Petitioners are employer associations in the construction industry and are signatories to
CBAs with building trade unions or individual employers in the construction industry that are
signatories to CBAs. Complaint ¶¶ 2-9. Petitioners allege that determination of employees’
hourly rates under the Sick Time Law will require unspecified interpretation of unspecified
provisions of unspecified CBAs in unspecified cases. Complaint ¶ 20. Petitioners make an
equally unspecific allegation that the Sick Time Law’s provisions in M.G.L. c. 149, § 148C(j)
require interpretation of CBAs. Complaint ¶ 21. This section states that
Nothing in [the Sick Time Law] shall be construed to discourage employers from
adopting or retaining sick time policies more generous than policies that comply with the
requirements of [the Sick Time Law] and nothing in [the Sick Time Law] shall be
construed to diminish or impair the obligation of an employer to comply with any
contract, collective bargaining agreement, or any employment benefit program or plan in
effect on the effective date of [the Sick Time Law] that provides to employees greater
earned sick time rights than the rights established under [the Sick Time Law].
M.G.L. c. 149, § 148C(j).
Based on these allegations, Petitioners request that the Court declare that the Sick Time
Law is facially preempted by Section 301. Complaint ¶¶ 26-27. Petitioners further request that
the court enjoin the Attorney General from issuing civil citations under the Sick Time Law
against employers who are signatories to CBAs and from granting private rights of action to
employees who are members of collective bargaining units. Complaint, Prayer for Relief, ¶ 2.
Essentially, Petitioners seek to have the court enjoin any enforcement of the Sick Time Law
against unionized employers. While Petitioners do not claim employees who are members of
collective bargaining units do not have the right to earned sick leave pursuant to the Sick Time
Law, it asks the Court to deprive these employees of any forum to enforce that right and other,
related rights.
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Petitioners do not enclose any CBAs with their Complaint. This is perhaps because
Petitioners’ CBAs contain no reference whatsoever to sick leave. See Affidavit of Tolman and
attached Exhibits.
III. Argument
Petitioners’ case misconstrues the nature of Section 301 Preemption. Petitioners take a
doctrine that, in carefully defined situations, seeks to prevent courts from using state law to
interpret CBAs and transmogrifies it into an all-devouring beast that consumes the state law
rights of employees and leaves nothing in its wake. An examination of the history and bounds of
Section 301 preemption shows that this transformation is not only radical and new, but wholly
wrong. There can be no dispute that states have the right to establish minimum labor standards,
such as the Sick Time Law, and that Section 301 does not interfere with that right.
A. States Have the Right to Establish Minimum Labor Standards for all
Workers, Including those Workers Covered by CBAs
It has long been recognized that the states have the ability to regulate conduct in the
workplace by enacting minimum labor standards. “States possess broad authority under their
police powers to regulate the employment relationship to protect workers within the State.”
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985) (“Metropolitan Life Ins.
Co.”) (quoting from DeCanas v. Bica, 424 U.S. 351, 356 (1976)).
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In enacting the interlocking
set of federal labor laws governing labor relations, including the National Labor Relations Act
and the LMRA, the federal government did not intend to displace the States’ rights to create
minimum labor standards. E.g. id. at 756 (“there is no suggestion in the legislative history of the
[NLRA] that Congress intended to disturb the myriad state laws then in existence that set
2
Minimum labor standards are a concept shared by cases involving Machinists preemption and cases involving
Section 301 preemption. See also Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985). Machinists preemption
has no role in this case, see footnote 5, infra, and cases involving Machinists preemption, such as Metropolitan Life
Ins. Co. are cited merely to help explain the meaning of the phrase “minimum labor standards.”
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minimum labor standards, but were unrelated in any way to the process of bargaining or self-
organization.”); Livadas, 512 U.S. at 123 (Section 301 “cannot be read broadly to preempt
nonnegotiable rights conferred upon employees as a matter of state law”) These state minimum
labor standards thus apply to union and non-union employees alike, for “[i]t would turn the
policy that animated the [NLRA] on its head to understand it to have penalized workers who
have chosen to join a union by preventing them from benefiting from state labor regulations
imposing minimal standards on nonunion employers.” Livadas, 512 U.S. at 129 (quoting from
Metropolitan Life Ins. Co., 471 U.S. at 756). See also Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 212 (1985) (“Lueck”) (rejecting the notion that unions and employers could exempt
themselves from “state labor standards”: “Clearly, [LMRA] § 301 does not grant the parties to a
collective-bargaining agreement the ability to contract for what is illegal under state law.”); see
also Rhode Island Hospitality Ass'n v. City of Providence ex rel. Lombardi, 667 F.3d 17, 32 (1st
Cir. 2011) (applying the minimum labor standards doctrine).
B. Pursuant to the Right to Establish Minimum Labor Standards,
Massachusetts Voters Enacted the Sick Time Law by Ballot Initiative in
November of 2014
In November of 2014, the voters of Massachusetts passed a new minimum labor standard
in the form of the Sick Time Law. The Sick Time Law was passed by an overwhelming majority
of voters (59.4%) in a ballot initiative.
3
Minimum labor standards are those which set labor
standards “independent of the collective-bargaining process [that] devolve on [employees] as
individual workers, not as members of a collective organization.” Metropolitan Life Ins. Co.,
471 U.S. at 755 (internal quotations omitted). The Sick Time Law provides just those sorts of
individual benefits, independent of the bargaining process: It gives employees the right to forty
hours off per year, M.G.L. c. 149, § 148C(d), for certain illness-related reasons, id. at 148C(c),
3
https://www.sec.state.ma.us/ele/elepdf/rov14.pdf at pgs. 56-57 (last visited April 17, 2015).
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with the guarantee of their normal pay when an employer has more than eleven employees, id. at
148C(d). The Sick Time Law also provides employees with the right not to be required to
provide a doctor’s note when out for less than 24 consecutively scheduled work hours, id. at
148C(f), and to only be required to provide advance notice when the need for sick leave is
“foreseeable,” id. at 148C(g). Further, the Sick Time Law allows employees to use their earned
sick leave without fear of retaliation or negative employment consequences. Id. All of these are
individual rights which are not displaced by the NLRA and which Unions and Employers cannot
contract away under the guise of Section 301 preemption.
C. Section 301 Preemption
To understand why the Sick Time Law is not displaced by Section 301 of LMRA, it is
important to understand the history and context of Section 301. Section 301 is a modest section,
which, by its terms, allows suits for violations of “contracts between an employer and a labor
organization representing employees in an industry affecting commerce, or between any such
labor organization” to be brought in any U.S. District Court having jurisdiction over the parties.
29 U.S.C. § 185(a). The U.S. Supreme Court long ago interpreted this section to authorize
federal courts to fashion a federal law of contracts for the interpretation and enforcement of
CBAs. Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 451 (1957) (“Lincoln Mills”).
The U.S. Supreme Court later concluded that state courts could entertain suits under Section 301,
but were required to apply the federal law of contracts developed under Lincoln Mills in
interpreting CBAs rather than any state law of contracts. Teamsters v. Lucas Flour Co., 369 U.S.
95, 103-104 (1962); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962). These cases
emphasized the need for a single body of law for interpreting CBAs. E.g., Teamsters v. Lucas
Flour, 369 U.S. at 103 (“The possibility that individual contract terms might have different
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meanings under state and federal law would inevitably exert a disruptive influence upon both the
negotiation and administration of collective agreements.”).
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Principal among the concern for
uniformity is the federal labor policy favoring arbitration, which “is at the very heart of the
system of industrial self-government” governed by Section 301. United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 581 (1960).
Relying on its conclusion that CBAs were required to be interpreted under an exclusively
federal body of law, the U.S. Supreme Court went on to develop a body of law governing
Section 301 preemption. Based on its concerns with uniformity, the Supreme Court held that the
state tort claim at issue was preempted by Section 301 in a suit in which the plaintiff argued the
defendant had not acted in good faith in administering a disability plan governed by a CBA.
Lueck, 471 U.S. at 220-21. The Court held that, where “the resolution of a state-law claim is
substantially dependent upon analysis of the terms of the agreement made between the parties in
a labor contract, that claim must either be treated as a § 301 claim… or dismissed as pre-empted
by federal labor-contract law.” Id. at 220 (internal citations omitted). However, the Court
emphasized the limited nature of its holding:
[There is not] 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. Clearly, § 301 does not grant the parties to a collective-bargaining agreement
the ability to contract for what is illegal under state law. In extending the 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.
4
Later cases interpreted Lucas Flour to establish a doctrine of Section 301 preemption, see Allis-Chalmers v.
Lueck, 471 U.S. 202, 209-210 (1985), though Lucas Flour itself does not use the word preemption except in passing
reference to the entirely separate doctrine of preemption of suits within the exclusive jurisdiction of the National
Labor Relations Board. Lucas Flour, 369 U.S. at 97, 101 n. 9.
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Id. at 211-12 (footnotes omitted) (emphasis supplied). Correspondingly, the Court relied heavily
on the fact that the tort claim at issue was not independent of the labor contract in question and
instead concluded that “[t]he duties and rights established through the state tort thus derive from
the rights and obligations established by the contract.” Id. at 217.
These limitations on the scope of Section 301 played out in subsequent Supreme Court
cases. In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), the court determined
that a plaintiff’s claim under a state law forbidding retaliation for filing a worker’s compensation
claim was not preempted under Section 301 where the CBA at issue had a provision preventing
the plaintiff’s employer from discharging her without just cause. Id. at 401. The Court reasoned
that the elements of plaintiff’s claim were “purely factual questions” and did not require
interpretation of a CBA. Id. at 407. The Supreme Court again limited the scope of Section 301
preemption, reiterating that “pre-emption should not be lightly inferred in this area, since
establishment of labor standards falls within the traditional police powers of the state.” Id. at 412
(quoting from Fort Halifax v. Coyne, 482 U.S. 1, 21 (1987)).
In Livadas v. Bradshaw, 512 U.S. 107 (1994), the Supreme Court’s most recent ruling on
Section 301 preemption, the Court held that a state administrative agency’s refusal to enforce a
statute requiring payment of wages due to employees upon termination against unionized
employers was invalid because it abridged employees’ rights under the National Labor Relations
Act (“NLRA”). Id. at 110. In reaching this conclusion, the Court rejected the claim made by the
defendants that Section 301 preempted the application of the state law at issue to employees
covered by a CBA with an arbitration clause. Id. at 121-25. As it did in every previous case, the
Supreme Court underlined the fact that Section 301 preemption was a confined doctrine that
served discrete interests. Id. at 122-24. The court emphasized that Section 301 “cannot be read
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broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state
law.” Id. at 123. It also indicated 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 does not require the claim to be extinguished.” Id. at 124.
Vitally, in each of these cases, the U.S. Supreme Court engaged in a careful analysis of
whether a state cause of action, as applied to the facts of a particular case, was preempted by
Section 301. Lueck, 471 U.S. at 209 (“The question posed here is whether this particular
Wisconsin tort, as applied, would frustrate the federal labor-contract scheme established in §
301.”) (emphasis supplied); Lingle, 486 U.S. at 413 (“In sum, we hold that an application of state
law is preempted by [Section 301] only if such application requires the interpretation of a
collective-bargaining agreement.”) (emphasis supplied); Livadas, 512 U.S. at 124-25, n. 19
(analyzing the individual plaintiff’s claim for Section 301 pre-emption and upon finding that it
was not pre-empted, stating that “[t]his is not to say, of course, that a [claim under this state law]
could never be pre-empted by § 301.”)
Further, the aspect of the federal law of labor contracts which each case sought to
preserve was the requirement that issues which the parties to a CBA agreed to bring before an
arbitrator in fact be brought before an arbitrator. See Lueck, 471 U.S. at 219 (noting preemption
is important to “preserve the central role of arbitration in our system of industrial self-
government”) (quoting Warrior & Gulf Nav. Co., 363 U.S. at 581); Lingle, 486 U.S. at 411
(noting the importance of preserving the role of arbitration in the interpretation of CBAs);
Livadas, 512 U.S. at 122 (primary purpose of Section 301 federal common law is to “assure that
agreements to arbitrate grievances would be enforced, regardless of the vagaries of state law….”)
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In sum, Section 301 preemption is a circumscribed doctrine intended to ensure that a
consistent body of law is applied in interpreting CBAs. The doctrine carefully balances federal
labor policy with states’ power to regulate the workplace. It is explicitly not a means by which
unionized employers may exempt themselves from state minimum labor standards. Section 301
preemption is applied on a case-by-case basis: In each case, the court determines if analyzing
liability involves resolving an interpretive dispute between the parties regarding the meaning of
the terms of a particular CBA. Section 301 preemption’s main goal is to preserve the parties’
agreement to have certain claims heard by a labor arbitrator. These careful distinctions are
important and cannot be ignored without destabilizing the balance between the rights of the
union and nonunion workforce and the state and federal government’s ability to act within the
employment sphere.
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D. Petitioners Ask this Court to Do What the Supreme Court Found Unlawful
in Livadas
The actual Section 301 Preemption doctrine directly contrasts with the claims Petitioners
bring in this case. While they use the phrases of Section 301 Preemption in their complaint,
Petitioners’ obvious goal in bringing this case is to exempt themselves from the Sick Time Law’s
requirement that they provide employees with up to 40 hours of sick leave each year. Petitioners
notably do not ask the court to declare that the substantive requirements of the Sick Time Law
are preempted as to employees covered by a CBA. Instead they ask the court to declare that all
modes of recourse for enforcing these rights are cut off by Section 301.
5
There are two additional types of federal labor law pre-emption that are not at issue in this case, both of which
arise under the National Labor Relations Act, rather than the LMRA. One is “Garmon preemption,” which
preserves the exclusive jurisdiction of the National Labor Relations Board over claims within its sphere. San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). The second is “Machinists preemption,” which
prevents states from placing a thumb on the scale in labor-management disputes, but has no effect on the ability of
states to implement minimum labor standards like those at issue in this case. Metropolitan Life Ins. Co., 471 U.S. at
755-757; Machinists v. Wisconsin Employees Relations Comm’n, 471 U.S. 724, 750 (1976). See also Metropolitan
Milwaukee Ass’n of Commerce, Inc. v. City of Milwaukee, 332 Wis.2d 459, 510-512 (2011) (separately analyzing
Garmon, Machinists, and Section 301 preemption; finding that none preempted city’s sick leave ordinance).
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The mismatch between Petitioners’ clear goals and roundabout means to obtain them
shows that Section 301 preemption does not play the role Petitioners claim. Section 301
preemption “does not grant the parties to a collective-bargaining agreement the ability to contract
for what is illegal under state law,” Lueck, 471 U.S. at 212, and “cannot be read broadly to pre-
empt nonnegotiable rights conferred on individual employees as a matter of state law,” Livadas,
512 U.S. at 123. Indeed, attempts by administrative agencies to read Section 301 preemption to
per se prevent enforcement of state law rights against employers who are signatories to CBAs
have been found to illegally abridge the NLRA § 7 rights of employees. Id. at 132.
In asking this court to declare the Sick Time Law unenforceable as to all employers who
are signatories to CBAs, Petitioners seek a result generally forbidden under Livadas. The only
scenario in which Petitioners’ goal is not proscribed by federal law is one in which every
potential claim under the Sick Time Law by private-sector employees covered by a CBA is
preempted by Section 301, because, as outlined above, Section 301 preemption is applied on a
case-by-case basis. For this reason, when a Wisconsin appellate court was confronted with a
nearly identical claim it rejected Petitioners’ argument. Metropolitan Milwaukee Ass’n of
Commerce v. City of Milwaukee, 332 Wis.2d 459, 512-13 (2011). The court reasoned that
“Section 301 Preemption does not invalidate a state law but instead preempts the application of a
state law in the context of a particular case.” Id. at 512.
The reasoning of Metropolitan Milwaukee Ass’n of Commerce applies here. Petitioners
cannot show that every potential claim (or even most potential claims) under the Sick Time Law
are preempted by Section 301. While some claims in some cases
6
might involve the
interpretation of a CBA, many others would simply involve “purely factual questions,” Lingle,
6
Petitioners’ case is not such a case, because none of the CBAs they have negotiated provide for any sick leave.
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486 U.S. at 407, and thus not be subject to pre-emption. Here is a small sample of potential
claims in which no interpretation of a CBA is involved:
A claim by an employee that he or she was fired for insisting that he or she was
entitled to time off under the Sick Time Law. See M.G.L. c. 149, § 148C(i)
Compare Lingle, supra.
A claim by an employee seeking an injunction that she be allowed to take time off
for qualifying reasons when he or she has worked 1,200 hours in the current
calendar year but has been told by her employer that she cannot use any sick leave
whatsoever. See M.G.L. c. 149, § 148C(d).
A claim by an employee who takes a single sick day and is required to produce a
doctor’s note and is fired for not doing so. See M.G.L. c. 149, § 148C(f).
A claim by an employee that he was told by his employer that she could not take
sick time when he woke up with the flu because he did not provide one week’s
notice. See M.G.L. c. 149, § 148C(g).
A claim by an employee that he was denied a promotion because he took four sick
days the previous year. See M.G.L. c. 149, § 148C(h).
A claim by a group of employees seeking a declaration that their employer
violated the Sick Time Law when they were required, on multiple occasions, to
utilize an entire day’s worth of sick leave when they were absent from work for
only one or two scheduled work hours. See M.G.L. c. 149, § 148C(c)(7).
A claim by an employee seeking an injunction allowing him to use sick time to
care for his parent, after he was told by his employer that he was not allowed to
take sick time to care for his sick parent. See M.G.L. c. 149, § 148C(c)(1).
A claim by an employee that she was fired when she notified the Attorney
General of a violation of the Sick Time Law. See M.G.L. c. 149, § 148C(i).
A claim by the Attorney General that an employer failed to post a notice of
employees’ rights under the Sick Time Law at the only site at which its
employees work. See M.G.L. c. 149, § 148(o).
Petitioners ask this court to hold that, for employees under a CBA, all of these claims, as well as
the many other types of claims that imagination cannot conceive but reality will produce, are
preempted by Section 301. They ask that the court so find without any specifics whatsoever.
Petitioners do not specify which CBA, let alone which term of that CBA, will be required to be
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interpreted. Nor do they point to the specific aspects of claims that require preemption. This
they cannot do, because they are seeking to have this court declare that every potential claim for
every employee under every CBA will be pre-empted. Such a broadside attack on a state statute
creating individual rights for employees simply does not fit within the framework of Section 301
preemption.
Perhaps most jarringly, Petitioners ask the court to take this unprecedented action when
their own CBAs have no provisions concerning sick time that the Court could even plausibly
interpret. A field of claims that might be pre-empted against other employers – such as a claim
that the ambiguous accrual formula under a CBA did not provide sufficient sick time under the
Sick Time Law or a claim that unclear terms of the CBA indicate that sick leave may not be used
for all purposes allowed under the Sick Time Law – are clearly not preempted against the
Petitioners, since their contracts have no provisions regarding sick time which a court would be
required to “refer to,” let alone actually interpret, as is required for Section 301 preemption. See
Livadas, 512 U.S. at 125.
The provisions of the Sick Time Law pointed to by the Petitioners in their Complaint do
not change this analysis. Petitioners first indicate that all claims under the Sick Time Law
“require a determination of the ‘hourly rate’ of a worker covered by a collective bargaining
agreement.” Complaint ¶ 20. While certain claims might require the court to determine
employees’ hourly rate, many will not, including the claims listed supra which involve an
employee seeking to take the time off without reprisal, rather than pay for that time off. And this
provision will be wholly irrelevant for any employer with fewer than eleven employees, as they
are only required to provide unpaid sick leave. M.G.L. c. 149, §§ 148C(d)(3), (4), (6).
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Even in that subset of cases in which a determination of an employee’s hourly rate is
required, Section 301 preemption does not necessarily occur. If liability can be determined
without a determination of an employee’s hourly rate, then preemption does not occur even if the
hourly rate must be assessed for damages. See Livadas, 512 U.S. at 124. For example, if an
employer refuses to pay anything for an employee’s sick time earned under the Sick Time Law,
it has violated the Sick Time Law, regardless of that employee’s regular rate. Compare M.G.L.
c. 149, § 148C(a) (employers must pay the effective minimum wage for earned paid sick time).
Further, when determination of an employee’s hourly rate is required in assessing liability, that
determination does not lead to Section 301 preemption unless the parties have a dispute as to the
employee’s hourly rate. See Livadas, 512 U.S. at 124 (noting that, in previous Supreme Court
cases “we were clear 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.”). In order to trigger preemption,
such a dispute must be bona fide and involve actual interpretation of the terms of the CBA.
Martin v. Shaw’s Supermarkets, Inc., 105 F.3d 40, 42 (1
st
Cir. 1997) (in order to trigger Section
301 preemption, there must be “a real interpretive dispute and not merely a pretended dispute.
Indeed, the Supreme Court [in Livadas] has said that the need merely to refer to the agreement in
passing will not necessarily preempt.”) (emphasis in original).
The provision of the Sick Time Law cited by the Petitioners, Complaint ¶ 21, stating that
it does not “diminish or impair the obligation of an employer to comply with any… collective
bargaining agreement… in effect on the effective date of this section that provides employees
greater earned sick time rights than the rights established under this section” does not help
Petitioners at all. This section preserves the contractual rights of employees above and beyond
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those provided by the Sick Leave Law, but in no way undercuts their minimum protections under
the Sick Leave Law. If an employee claims a violation of his or her contractual rights above
what is provided by the Sick Leave Law, this is not the provenance of a claim under the Sick
Leave Law. Conversely, if an employee claims a violation of his or her rights under the Sick
Leave Law, this provision does not affect whether the court will need to engage in contractual
interpretation, as it does not permit employers to waive or otherwise affect any statutory rights.
Petitioners thus have not presented any basis for a finding that all potential claims under the Sick
Time Law will be preempted by Section 301.
If Petitioners’ claim goes forward as a facial challenge to the Sick Time Law, it will be a
brave new world for Section 301 preemption. Section 301 preemption will no longer strike a
careful balance between the need to have a uniform body of federal contract law for interpreting
CBAs and the state law employment rights of unionized employees. Instead, employees who
join a union that negotiates a CBA will forfeit their state law employment rights, radically
disrupting the balance between the union and non-union sectors. Such a regime exactly mirrors
the one found unlawful by the Supreme Court in Livadas. Such a result is not correct; Livadas
itself would have come out differently if it were. Finally, this change would also raise serious
federalism concerns that the Supreme Court has repeatedly flagged, by displacing the traditional
and broad role of the states to regulate their workforce whenever a CBA is present. For these
reasons, Petitioners’ claims must be dismissed.
E. Petitioners’ Claim Is not Ripe for Adjudication
For similar reasons, Petitioners’ claim that the Sick Time Law is preempted by Section
301 is not ripe for adjudication. This is because Petitioners’ declaratory judgment claim does not
address any particular anticipated lawsuit, but every potential lawsuit under the Sick Time Law.
Case 1:15-cv-10116-RWZ Document 17 Filed 04/17/15 Page 15 of 21
16
In order for a claim to be ripe for adjudication, it must pass a two-part test. Ernst &
Young v. Depositors, 45 F.3d 530, 535 (1
st
Cir. 1995) (citing Abbott Labs v. Gardner, 387 U.S.
136, 149 (1967)). First, the court must determine that the issue is fit for review, a test that
“typically involves subsidiary queries concerning finality, definiteness, and the extent to which
resolution of the challenge depends upon facts that may not be sufficiently developed.” Ibid.
“[T]he critical question concerning fitness for review is whether the claim involves uncertain and
contingent events that may not occur as anticipated or may not occur at all.” Id. at 536 (quoting
from Massachusetts Ass’n of Afro-American Police, Inc. v. Boston Police Dep’t, 973 F.2d 18, 20
(1
st
Cir. 1992)). Second, the court must consider the “extent to which hardship looms,” which
typically revolves around whether the “challenged action creates a direct and immediate dilemma
for the parties.” Id. at 535 (internal quotations and citations omitted).
Analysis of Section 301 preemption requires knowledge of the exact facts of the claim
which an employer avers is preempted. This is because, while express or field preemption of
state law generally present “purely legal questions,”
[t]his is not the case, however, for preemption questions under the RLA, or its parallel
provision in § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. [See
Hawaiian Airlines v. Norris, 512 U.S. 246, 260, 114 S.Ct. 2239 (1994)] (describing these
standards as “virtually identical”). … [T]he question of whether a state law is preempted
by virtue of a CBA, “requires [a] case-by-case factual analysis to determine the extent to
which a state law claim will require interpretation of a CBA.” [In re Bentz Prods. Co.,
253 F.3d 283, 285 (7
th
Cir. 2001)] (discussing preemption under § 301 of the LMRA).
Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 760 (7th Cir. 2008). (“Wisconsin Cent.”)
The court in Wisconsin Cent. analyzed an employer’s declaratory judgment claim
seeking a court order, under the provision of the Railway Labor Act (“RLA”) equivalent to
Section 301, preventing all enforcement of a state wage and hour law against that employer
because that claim involved interpretation of a CBA. Id. at 755. The Court found this claim not
fit for review because it was “impossible to determine at this stage of the proceedings whether a
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17
disagreement will exist that will require an arbitrator, under the terms of the RLA, to engage in…
CBA interpretation.” Id. at 760. As to the second ripeness requirement, the court found no
hardship warranting review, noting that the potential hardship that a finding of Section 301
preemption would avoid “is not [the employer’s] need to comply with the State’s overtime
requirements or the current investigation, but is rather the possibility that it will need to defend
itself in an enforcement action ultimately preempted due to the need for an arbitrator, rather than
a court, to interpret the CBAs.” Id. at 761. Because neither of the prongs for ripeness was met,
the court dismissed the case as unripe.
Similarly, the court in Alaska Airlines Inc. v. Schurke, 193 L.R.R.M. 2150, 2012 WL
503862 (W.D. Wash. 2012) found that a facial claim that a Washington employment statute was
preempted by the RLA’s provision equivalent to Section 301 not to be ripe for review:
[The Employer] does not base its declaratory judgment action on a particular flight
attendant’s claim; it seeks to preempt the [state agency’s] investigation of all claims.
Consequently, the court cannot even begin to analyze the issues presented in this matter.
Id. at *12. See also id. at *9 (court cannot analyze Section 301 pre-emption absent a specific
employee’s complaint).
The Petitioners in this case have brought a claim that is even less ripe than those brought
by the employers in Wisconsin Ltd. and Schurke. The employer in Schurke sought to have the
court declare all potential claims against that employer were preempted by Section 301. That
was not ripe. The employer in Wisconsin Ltd. sought to have the court declare that a pending
investigation against that employer was preempted by Section 301. That was also not ripe. In
contrast, Petitioners seek to have the court declare all potential claims under the Sick Leave Law
against them and every other employer who has signed a CBA declared preempted by Section
301, before the relevant law has even gone into effect. This is clearly not ripe. There is no way
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to know which, if any, of the potential claims under the Sick Leave Law will require
interpretation of a CBA and which, if any, of those claims will involve a disagreement about the
meaning of the CBA. While Petitioners may be able to present a ripe dispute in some future case
involving a dispute about a particular employee’s rights under a particular CBA in a particular
factual scenario, they simply have not done so here.
F. Section 301 Preemption Does Not Require Extinguishment of any Claim Brought by
the Attorney General Because the Attorney General Cannot Exhaust the Grievance
and Arbitration Process
The animating principle of Section 301 preemption is preservation of the arbitrator’s
jurisdiction. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (“A rule that permitted an
individual to sidestep available grievance procedures would cause arbitration to lose most of its
effectiveness...”). Still, a labor arbitrator’s jurisdiction is not absolute. Even though “federal
labor policy requires that individual employees wishing to assert contract grievances must
attempt use of the contract grievance procedure,” Republic Steel Corp. v. Maddox, 379 U.S. 650,
652 (1965), a failure to exhaust will be excused by a union’s breach of its duty of fair
representation. Vaca v. Sipes, 386 U.S. 171, 185 (1967). In such cases, an employee may ask a
court to directly interpret the terms of a CBA. Vaca, 386 U.S. at 187. Since employees can be
excused from exhausting grievance procedures, it must be that a party without any access to
arbitration will also be excused.
The Attorney General has not agreed to have an arbitrator hear any claims it might bring
against unionized employers. This is because “[a]rbitration is strictly a matter of consent and
thus is a way to resolve those disputes – but only those disputes – that the parties have agreed to
submit to arbitration.” Granite Rock Co. v. International Broth. of Teamsters, 561 U.S. 287, 299
(2010) (internal citations and quotations omitted). Arbitration agreements between two private
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19
parties do not bind government agencies to utilize arbitration when they have a dispute with one
of those parties and do not deprive government agencies of the right to bring statutory claims.
E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (2002).
Without an obligation to arbitrate, the Attorney General can proceed in court. “The First
Circuit has stated that in deference to agreed-to remedies, courts ordinarily dismiss state claims
pre-empted by § 301 so long as relief can be provided within the CBA process.” Clee v. MVM,
Inc., --- F.Supp.3d ---, 2015 WL 1055820, *8 (D.Mass. 2015) (Wolf, J.) (emphasis added); Vera
v. Saks, 335 F.3d 109, 116-119 (2
nd
Cir. 2003) (employee’s failure to exhaust grounds for
dismissal on Section 301 preemption grounds); Sokos v. Hilton Hotels Corp., 283 F.Supp.2d 42,
52-53 (Dist.D.C. 2003). Because the Attorney General can neither exhaust the grievance
procedure, nor obtain relief through it, its enforcement actions must not be extinguished pursuant
to Section 301 preemption.
G. If Petitioners Seek an Injunction Covering Public Employers or Unionized
Employers without Collective Bargaining Agreements, Their Claims Are Baseless
Finally, to the degree Petitioners seek a declaration that claims by unionized employees
not covered by the LMRA or not subject to a CBA, their claim is overbroad. See Complaint ¶¶
26-27 (requesting declaration as to Section 301 preemption’s impact on all collectively bargained
employees, without regard to whether they are subject to a CBA, in the private sector, or covered
by the RLA). See also 29 U.S.C. § 185(a) (Section 301 covers suits for violations of “contracts
between an employer and a labor organization”); 29 U.S.C. § 142(3) (LMRA’s definition of
“employer” and “labor organization” derived from 29 U.S.C. §§ 151-169’s definition of
“employer” and “labor organization”); 29 U.S.C. § 152(2) (excluding federal and state
governments and employers covered by the RLA from definition of “employer”).
IV. Conclusion
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Petitioners have not stated a claim upon which relief can be granted. Their facial attack
on the application of the Sick Time Law to unionized employees is outside the scope of Section
301 Preemption. In addition, Petitioners’ claim is not ripe. Given these fatal flaws, Petitioners
attempt to exempt themselves and every other employer who has signed a CBA from the
requirements of the Sick Time Law should be dismissed.
Respectfully submitted,
MASSACHUSETTS AFL-CIO
By its attorneys,
_/s/ Jasper Groner________________
Donald J. Siegel, Esq. BBO #461500
James A.W. Shaw, Esq. BBO #670993
Louis A. Mandarini, Esq. BBO #669293
Jasper Groner, Esq., BBO #682403
SEGAL ROITMAN, LLP
111 Devonshire Street, 5th Fl.
Boston, MA 02109
(617) 742-0208
Dated: April 17, 2015 jgroner@segalroitman.com
SERVICE EMPLOYEES STATE COUNCIL
OF MASSACHUSETTS OF THE SERVICE
EMPLOYEES INTERNATIONAL UNION
By its attorney,
/s/ Katherine D. Shea_________________
Katherine D. Shea
BBO# 549771
Pyle Rome Ehrenberg PC
2 Liberty Square, 10th Floor
Boston, MA 02109
(617) 367-7200
Dated: April 17, 2015 kshea@pylerome.com
Case 1:15-cv-10116-RWZ Document 17 Filed 04/17/15 Page 20 of 21
21
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent by First Class Mail to those indicated as non-registered participants
on this, the 17th day of April, 2015.
/s/ Jasper Groner
Jasper Groner
Case 1:15-cv-10116-RWZ Document 17 Filed 04/17/15 Page 21 of 21
