Rueli v. Baystate Health, Inc. , 835 F.3d 53 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1198
    CATHERINE RUELI, et al.,
    Plaintiffs, Appellants,
    v.
    BAYSTATE HEALTH, INC., and BAYSTATE VISITING NURSE ASSOCIATION &
    HOSPICE, INC.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Mark G. Mastroianni, U.S. District Judge]
    Before
    Howard, Chief Judge, and
    Lynch and Lipez, Circuit Judges.
    Shannon Liss-Riordan, with whom Lichten & Liss-Riordan, P.C.
    was on brief, for appellants.
    Robert Morsilli, with whom Douglas J. Hoffman and Jackson
    Lewis P.C. were on brief, for appellees.
    August 23, 2016
    LIPEZ, Circuit Judge.     Plaintiffs are a putative class
    of unionized nurses who sued their employer in state court for
    unpaid wages and overtime pay for work performed outside their
    approved shifts. Their employer removed the case to federal court,
    citing the doctrine of complete preemption, under which claims
    requiring interpretation of     a   collective bargaining agreement
    ("CBA") are reclassified as federal claims.      The district court,
    finding that this case is controlled by our opinion in Cavallaro
    v. UMass Memorial Healthcare, Inc., 
    678 F.3d 1
    , 3-4 (1st Cir.
    2012), determined that complete preemption applies and therefore
    denied plaintiffs' motion to remand.     Separately, it granted the
    defendants' motion for judgment on the pleadings.          Plaintiffs
    appeal, challenging both orders.
    We must decide whether there is a plausible argument, as
    defendants contend,    that adjudicating   plaintiffs' claims will
    require the resolution of a genuine interpretive dispute about one
    or more provisions of the CBA.       If so, the putative state law
    claims   are   completely   preempted,   and   removal   was   proper.
    Separately, we must determine whether the plaintiffs, in agreeing
    to a CBA containing a grievance and arbitration provision, were
    precluded from bringing this suit, requiring the district court to
    grant judgment on the pleadings to defendants.
    We affirm.
    - 2 -
    I.
    Catherine Rueli and seven other named plaintiffs are
    employed     by       defendants-appellees         Baystate     Visiting     Nurse
    Association       &    Hospice,      Inc.    and     Baystate     Health,     Inc.
    ("Baystate").          Plaintiffs    are    visiting   nurses,    i.e.,     nurses
    responsible for traveling to patients' homes to provide care.                   As
    members    of     a   union,   the    Massachusetts      Nurses    Association,
    plaintiffs concede that they are subject to the terms of a CBA
    between that union and Baystate.                The agreement's provisions
    include:
    ● A preamble stating that "[i]t is the intent and
    purpose of this Agreement to promote orderly
    collective bargaining and the settlement of all
    differences or disputes through the grievance and
    arbitration procedures established herein."
    ● A salary schedule based on seniority, CBA § 3.1,
    App'x A, separate pay provisions for per diem
    nurses, 
    id. art. XXXV(5)-(6),
    and a separate "per
    visit" compensation scheme, 
    id. art. XXXVI.
    ● A number of provisions for premium pay, including
    time-and-a-half pay for hours worked beyond the
    standard 37 1/2-hour work week, 
    id. § 4.2,
    pay for
    on-call time, 
    id. §§ 4.4(B),
    5.3, 6.3(A), 31.1(3),
    and evening differential pay, 
    id. §§ 4.7(E),
                4.8(D), 5.4.
    ● A scheduling provision requiring that "[a] definite
    reporting time, working schedule and staffing
    schedule . . . shall be established by [Baystate],"
    and that "schedules shall not be changed without
    prior discussion between both parties."         
    Id. § 4.1(B).
    - 3 -
    ● A requirement that "[a]ll patient documentation
    shall be completed at the point of care or prior to
    the end of the employee[']s shift. Any variations
    from either of these requirements are subject to
    the employee's request and approval of the clinical
    manager which shall not be unreasonably withheld.
    To assist the manager in making her/his reasonable
    determination, a conversation shall take place in
    which the employee's and patient[']s needs will be
    discussed." 
    Id. § 4.1(C).
    ● A management rights clause, giving Baystate
    management "the recognized reserved right" "to
    schedule and assign work to employees; to determine
    the means, methods, processes, materials and
    schedules of operations; . . . to establish
    standards and to maintain the efficiency of
    employees; [and] to establish and require employees
    to observe [Baystate's] rules and regulations."
    
    Id. § 16.1.
    ● A grievance and arbitration provision allowing that
    "[g]rievances may be filed by a nurse, a group of
    nurses, the Unit Representative or Massachusetts
    Nurses Association." The provision requires that
    grievances first be submitted to an immediate
    supervisor, then, if not resolved, escalated to the
    President of Baystate, and, if still not resolved,
    grievances "shall be submitted to arbitration in
    accordance with the voluntary rules of the American
    Arbitration Association.     The decision of the
    Arbitrator shall be final and binding upon the
    employees[.]"   
    Id. The term
    "grievances" is not
    defined in the agreement.
    Plaintiffs   brought   suit    in   Hampden   County   Superior
    Court, claiming that the volume of work required them to work
    before and after their scheduled shifts and they were not paid for
    that time. In seeking wages owed and other relief under the Weekly
    Wage Act, Mass. Gen. Laws ch. 149, § 148, and the Overtime Act,
    Mass. Gen. Laws ch. 151, § 1B, they sue for themselves and on
    - 4 -
    behalf of a broad putative class: "all others similarly situated,
    namely all other individuals who are, and who have been, employed
    as nurses by Defendants who have not received all wages and
    overtime payments due to them."    Compl. ¶ 10.
    Plaintiffs   alleged    the    following   facts   in   their
    complaint, which we accept as true:
    ● "In their employment with Baystate, visiting nurses
    such as the named plaintiffs have been paid an
    hourly wage (ranging from approximately $28 to $38
    per hour)." 
    Id. at ¶
    13.1
    ● "Due to the volume of work assigned to them, the
    nurses are regularly required to work outside of
    their regularly scheduled shifts." 
    Id. at ¶
    15.
    ● "This unpaid work has included preparatory work
    before they have visited a patient and follow-up
    work after they have visited a patient." 
    Id. at ¶
    16.
    ● "As a result, the nurses often do not receive
    overtime payments to which they are entitled." 
    Id. at ¶
    17.
    ● "This unpaid work frequently consists of computer
    work in preparation for a visit with a patient, and
    computer work following up after a visit. Thus,
    much of this unpaid work is completed by the nurses
    while they are logged onto the Baystate computer
    system. Defendants are therefore aware of the work
    performed by the nurses outside of their regularly
    scheduled   shifts   for   which   they   are   not
    compensated." 
    Id. at ¶
    18.
    1  At the time of the complaint the minimum wage was eight
    dollars per hour, H.B. 4781, Gen. Ct., 2006 2d Ann. Sess., 2006
    Mass. Legis. Serv. Ch. 271, while today it stands at ten dollars
    per hour, Mass. Gen. Laws Ann. ch. 151, § 1.
    - 5 -
    Plaintiffs do not allege that any of the nurses informed Baystate
    about this additional unpaid work, or that they followed the
    grievance procedure laid out in the CBA.
    Baystate     removed    this    action    to    the   United   States
    District Court for the District of Massachusetts, arguing that
    these state statutory claims are "completely preempted" by § 301
    of the Labor Management Relations Act ("LMRA").                   See Livadas v.
    Bradshaw,   
    512 U.S. 107
    ,     121-25   (1994);    29    U.S.C.    §   185(a).
    Plaintiffs moved to remand the case to state court.                   Before that
    motion was decided, Baystate moved for judgment on the pleadings,
    arguing that "[i]f a claim is preempted, and plaintiffs have not
    pursued those claims through the grievance procedure under the
    relevant CBA, the claims are not only subject to removal, but also
    dismissal."    Agreeing that the claims are completely preempted,
    the district court denied plaintiffs' motion to remand, holding
    that our opinion in Cavallaro controlled and that plaintiffs'
    claims are completely preempted by § 301. Rueli v. Baystate Health
    Inc., No. 3:14-cv-10319-MGM, 
    2015 WL 132662
    , at *2-*3 (D. Mass.
    Jan. 9, 2015).    Believing that its finding of complete preemption
    required dismissal of the case, the district court then granted
    Baystate's motion for judgment on the pleadings. Rueli v. Baystate
    Health Inc., No. 3:14-cv-10319-MGM, slip. op. at 2-3 (D. Mass.
    Jan. 30, 2015).     Plaintiffs challenge both orders, arguing that
    Cavallaro does not control and complete preemption does not apply.
    - 6 -
    II.
    A. Complete preemption
    We outline complete preemption doctrine as it developed
    in the context of § 301 of the LMRA.2
    1. Creating federal jurisdiction
    "Complete preemption" is distinct from "[o]rdinary, or
    defensive, preemption." 
    Cavallaro, 678 F.3d at 4
    n.3. It "applies
    where a purported state claim . . . is re-characterized as a
    federal claim" such that it is said to arise under federal law and
    permit removal to federal court.          
    Id. at 4;
    see also 28 U.S.C.
    §§ 1331, 1441.     As one of our sister circuits has characterized
    the concept, "'[c]omplete preemption' is a misleadingly named
    doctrine."    Hughes v. United Air Lines, Inc., 
    634 F.3d 391
    , 393
    (7th Cir. 2011).    "Preemption normally is a defense . . . .             But
    'complete preemption' is not a defense.         It means that the claim
    itself arises under federal law" for purposes of the well-pleaded
    complaint rule.    
    Id. Section 301
    of the LMRA, enacted in 1947, creates federal
    subject   matter   jurisdiction    over    "[s]uits    for    violation    of
    contracts    between     an   employer    and   a     labor   organization
    2Though other federal statutes completely preempt state laws,
    see Metro. Life Ins. Co. v. Taylor, 
    481 U.S. 58
    (1987) (Employee
    Retirement Income Security Act); Beneficial Nat. Bank v. Anderson,
    
    539 U.S. 1
    , 11 (2003) (National Bank Act), we deal here only with
    the doctrine as it applies to the LMRA.
    - 7 -
    representing employees."          29 U.S.C. § 185(a).            The Supreme Court
    later   held    that   §   301   is   "more      than   jurisdictional     --[]   it
    authorizes federal courts to fashion a body of federal law for the
    enforcement of these collective bargaining agreements."                    Textile
    Workers Union of Am. v. Lincoln Mills of Ala., 
    353 U.S. 448
    , 450-
    51 (1957).      "[T]he subject matter of § 301(a) 'is peculiarly one
    that calls for uniform law.'"            Local 174, Teamsters v. Lucas Flour
    Co., 
    369 U.S. 95
    , 103 (1962) (quoting Pa. R.R. Co. v. Pub. Serv.
    Comm'n, 
    250 U.S. 566
    , 569 (1919)).
    It was against this background that the Supreme Court
    held that "the preemptive force of § 301 is so powerful as to
    displace entirely any state cause of action for violation of
    contracts between an employer and a labor organization.                    Any such
    suit is purely a creature of federal law . . . ."                    Franchise Tax
    Bd. v. Constr. Laborers Vacation Trust, 
    463 U.S. 1
    , 23 (1983)
    (internal       quotation        marks      omitted)       (footnote       omitted)
    (interpreting the holding of Avco Corp. v. Machinists, 
    390 U.S. 557
    ,    560    (1968)).      Although      "state       courts    have   concurrent
    jurisdiction over controversies involving collective-bargaining
    agreements," United Steelworkers of Am., AFL-CIO-CLC v. Rawson,
    
    495 U.S. 362
    , 368 (1990), defendants may choose to remove such
    cases to federal court.
    The Supreme Court has expanded the doctrine beyond its
    original scope, holding that "the pre-emptive effect of § 301 must
    - 8 -
    extend beyond suits alleging contract violations," in order to
    prevent plaintiffs from "evad[ing] the requirements of § 301 by
    relabeling their contract claims as claims for tortious breach of
    contract," i.e., to prevent them from avoiding complete preemption
    through artful pleading.         Allis-Chalmers Corp. v. Lueck, 
    471 U.S. 202
    , 210-11 (1985).         Lueck marked the beginning of a gradual
    expansion of complete preemption to any state law claims that
    satisfy one of two tests:              the claims must either be "founded
    directly on rights created by collective-bargaining agreements" or
    "substantially dependent on analysis of a collective-bargaining
    agreement."      Caterpillar Inc. v. Williams, 
    482 U.S. 386
    , 394
    (1987).
    We focus on the latter test for complete preemption,
    which    we   have   described    as    whether   "resolution"     of   a   claim
    "arguably      hinges   upon     an    interpretation   of   the    collective
    bargaining agreement."         Flibotte v. Penn. Truck Lines, Inc., 
    131 F.3d 21
    , 26 (1st Cir. 1997); see also BIW Deceived v. Local S6,
    Indus. Union of Marine & Shipbuilding Workers, 
    132 F.3d 824
    , 832
    (1st Cir. 1997).3       The qualifier "arguably" is necessary because,
    3 "Interpretation" of the CBA must be distinguished from mere
    "consultation." "[W]hen the meaning of contract terms is not the
    subject of dispute, the bare fact that a collective-bargaining
    agreement will be consulted" does not trigger complete preemption.
    
    Livadas, 512 U.S. at 124
    .      This principle applies where "[a]
    collective-bargaining agreement . . . contain[s] information such
    as rate of pay . . . that might be helpful in determining the
    damages to which a worker prevailing in a state-law suit is
    - 9 -
    at the outset of a case when defendants remove to federal court,
    "we cannot know the exact contours of the wage dispute and the
    precise CBA terms likely to require interpretation cannot be
    certain."   
    Cavallaro, 678 F.3d at 8
    .    This "arguably" test focuses
    on "the legal character of a claim," not its underlying facts.
    
    Livadas, 512 U.S. at 123
    .    "[E]ven if dispute resolution pursuant
    to a collective-bargaining agreement, on the one hand, and state
    law, on the other, would require addressing precisely the same set
    of facts, as long as the state-law claim can be resolved without
    interpreting the agreement itself, the claim is 'independent' of
    the agreement for § 301 pre-emption purposes."       Lingle v. Norge
    Div. of Magic Chef, Inc., 
    486 U.S. 399
    , 409-10 (1988).
    District courts need not conduct this analysis for every
    putative state law claim.    Where plaintiffs bring multiple state-
    law claims based on the "same nucleus of operative facts," the
    court need only determine whether one of them is completely
    preempted and, therefore, removable.       BIW 
    Deceived, 132 F.3d at 833
    (citing 28 U.S.C. § 1367(a)).       If so, the others may also be
    removed -- even if they are not completely preempted, they will be
    entitled."   Lingle v. Norge Div. of Magic Chef, Inc., 
    486 U.S. 399
    , 413 n.12 (1988). Hence, "[c]ourts confronted with state law
    claims must . . . locate the line between the need for mere
    consultation of [the] CBA, which does not demand federal
    preemption, and more active interpretation of that agreement,
    which does preempt the state law claims." Lydon v. Boston Sand &
    Gravel Co., 
    175 F.3d 6
    , 10 (1st Cir. 1999).
    - 10 -
    subject to supplemental jurisdiction in federal court.                        Id.;
    
    Cavallaro, 678 F.3d at 5
    .
    2. Disposition of completely preempted claims
    "When one turns from removal of the case to disposition
    of the claims, a different set of issues arise."                 
    Cavallaro, 678 F.3d at 6
    .       Where complete preemption applies, the CBA must be
    interpreted under the "evolving federal common law grounded in
    national labor policy," Bowen v. U.S. Postal Serv., 
    459 U.S. 212
    ,
    225    (1983),   rather    than   state    contract     law.     This    promotes
    "interpretive uniformity and predictability," which are thought to
    promote the orderly resolution of labor disputes.               
    Lueck, 471 U.S. at 211
    . In particular, "federal common-law rules of decision . . .
    assure that agreements to arbitrate grievances w[ill] be enforced,
    regardless of the vagaries of state law and lingering hostility
    toward extrajudicial dispute resolution."               
    Livadas, 512 U.S. at 122
    .
    The relevant CBA invariably              includes   an arbitration
    clause,    see   
    Lingle, 486 U.S. at 411
      n.11   (recognizing      that
    "[a]rbitrators     are     delegated      by   nearly   all     [CBAs]   as   the
    adjudicators of contract disputes"), and, under the federal common
    law applicable under § 301, there is a heavy presumption that
    claims requiring interpretation of the CBA are arbitrable.
    [W]hen a collective bargaining agreement
    contains an arbitration clause . . . "a
    presumption of arbitrability [is created] in
    - 11 -
    the sense that [a]n order to arbitrate the
    particular grievance should not be denied
    unless it may be said with positive assurance
    that the arbitration clause is not susceptible
    of an interpretation that covers the asserted
    dispute. Doubts should be resolved in favor
    of coverage."
    Local 285, Serv. Emps. Int'l Union v. Nonotuck Res. Assocs., 
    64 F.3d 735
    , 738 (1st Cir. 1995) (alterations in original) (quoting
    AT&T Techs., Inc. v. Commc'ns Workers of Am., 
    475 U.S. 643
    , 650
    (1986)); see also Otis Elevator Co. v. Int'l Union of Elevator
    Constructors, Local 4, 
    408 F.3d 1
    , 7 (1st Cir. 2005) (highlighting
    the "fundamental principle of industrial relations in the United
    States       that     labor   disputes       are   settled    through   voluntary
    arbitration rather than labor/management strife").                In most cases,
    a claim that requires interpretation of the applicable CBA is
    covered by "a broadly-phrased grievance and arbitration provision
    in the CBA," and such claims are dismissed "so long as relief can
    be provided within the CBA process."                
    Cavallaro, 678 F.3d at 6
    ;
    see also Jackson v. Liquid Carbonic Corp., 
    863 F.2d 111
    , 114 (1st
    Cir.       1988)    ("[C]laims   .   .   .   preempted   by   section   301   [are]
    relegated, in the first instance, to the grievance procedures
    available under the [CBA].").4
    This standard does not necessarily apply to interpretation
    4
    of an arbitration provision to determine whether it covers federal
    statutory claims. See Barrentine v. Ark.-Best Freight Sys., Inc.,
    
    450 U.S. 728
    , 745 (1981) (holding that Fair Labor Standards Act
    claims may be brought in federal court notwithstanding an
    arbitration provision in a CBA); Alexander v. Gardner-Denver Co.,
    - 12 -
    B. Massachusetts wage claims
    We need only determine whether one of the claims is
    completely preempted, given that they are based on the same facts.
    See 
    Cavallaro, 678 F.3d at 5
    ; BIW 
    Deceived, 132 F.3d at 833
    ; 28
    U.S.C. § 1367(a).   We focus on the Weekly Wage Act claim.         The Act
    requires that "[e]very person having employees in his service shall
    pay weekly or bi-weekly each such employee the wages earned by
    him" within a fixed time period after the work is performed.        Mass.
    Gen. Laws ch. 149, § 148.
    The Act "was intended and designed to protect wage
    earners from the long-term detention of wages by unscrupulous
    employers."   Melia v. Zenhire, Inc., 
    967 N.E.2d 580
    , 587 (Mass.
    2012) (quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc.,
    
    113 F. Supp. 2d 164
    , 167 (D. Mass. 2000)).          Consistent with its
    purpose to remedy the withholding of wages indisputably owed, the
    Act allows private plaintiffs to sue for treble damages, attorneys'
    fees, and costs, and allows the Attorney General of Massachusetts
    to seek criminal penalties.    Mass. Gen. Laws ch. 149, § 148.
    To prevail on a Weekly Wage Act claim, a plaintiff must
    "prove there are wages owed," though the Act itself provides no
    substantive   standard   for   determining   what    wages   are    owed.
    
    415 U.S. 36
    , 59-60 (1974) (holding that workers may bring Title
    VII discrimination claims in federal court notwithstanding an
    arbitration provision in a CBA).
    - 13 -
    
    Cavallaro, 678 F.3d at 8
    .         Consistent with its name, the Weekly
    Wage Act was intended to ensure that employers pay wages weekly or
    bi-weekly, not to create substantive standards for employee pay.
    See   Lipsitt    v.   Plaud,   
    994 N.E.2d 777
    ,   784-85    (Mass.   2013)
    (characterizing the Weekly Wage Act as a supplement to common law
    causes of action for breach of contract and quasi-contract to
    recover unpaid wages, with no mention of any role for the Act in
    creating substantive standards for wages).
    The    Supreme      Judicial   Court   of    Massachusetts      has
    emphasized the importance of the Weekly Wage Act to the public
    policy of the state.        
    Melia, 967 N.E.2d at 588
    (stating that the
    Act   "protect[s]     fundamental     public    policy,"   and    that   "the
    Legislature has highlighted the fundamental importance of the Wage
    Act").    Accordingly, the court has held that the protections of
    the Weekly Wage Act cannot be waived by workers.               Id.; see Mass.
    Gen. Laws ch. 149, § 148 ("No person shall by a special contract
    with an employee or by any other means exempt himself from this
    section . . . .").5          The Act does not "guarantee venue in a
    Massachusetts court," however, and if an employee enters a binding
    agreement with a forum selection clause, she must bring her Weekly
    5In Cavallaro, we assumed but did not decide that the
    statutory rights created by the Weekly Wage Act were 
    non-waivable. 678 F.3d at 7
    . Because Cavallaro predated Melia, we did not then
    have the benefit of the Massachusetts Supreme Judicial Court's
    holding that the rights created by the Wage Act cannot be waived.
    See 
    Melia, 967 N.E.2d at 588
    .
    - 14 -
    Wage Act claim in the agreed-upon forum.       
    Melia, 967 N.E.2d at 588
    -89; see also Dixon v. Perry & Slesnick, P.C., 
    914 N.E.2d 97
    ,
    99-100 (Mass. App. Ct. 2009) ("[C]laims under the Wage Act are
    arbitrable.").   The exception is where that forum would apply law
    that "would effectively deprive the employee of substantive rights
    guaranteed by the Wage Act."    
    Melia, 967 N.E.2d at 589
    .   "A forum
    selection clause that, in operation, would deprive an employee of
    substantive rights guaranteed by the Wage Act violates public
    policy and is unenforceable."    
    Id. at 590.
    C. Cavallaro
    Much of the dispute between the parties focuses on
    Cavallaro. In Cavallaro, as here, plaintiffs were unionized nurses
    suing their employers for back pay, including for hours worked
    before and after their scheduled shifts.   Specifically, plaintiffs
    alleged that they had "been deprived of compensation for work
    performed during their meal break, for work performed before and
    after shifts, and for time spent attending training sessions."
    
    Cavallaro, 678 F.3d at 2
    .      They brought thirteen Massachusetts
    state law claims, including a claim under the Weekly Wage Act.
    
    Cavallaro, 678 F.3d at 3
    .6
    6 Plaintiffs also brought a claim under the Overtime Act,
    Mass. Gen. Laws ch. 151, § 1A, which we referred to in Cavallaro
    as the Massachusetts Fair Minimum Wage Act. 
    Cavallaro, 678 F.3d at 9
    .   Because the district court had properly dismissed the
    Overtime Act claim on the ground that the statute does not apply
    to employees who work "in a hospital," Mass. Gen. Laws ch. 151,
    - 15 -
    We noted that "to succeed" on a Weekly Wage Act claim,
    "an employee must, among other things, prove there are wages owed."
    
    Id. at 8.
        We treated the question of whether wages were owed as
    incorporating the question of whether the CBA provided for wages
    that had not been paid.           And, because the CBA provisions governing
    whether     the    plaintiffs        had    performed       compensable       work     were
    ambiguous enough to plausibly give rise to an interpretive dispute,
    we   held   that    "determining          what    (if    anything)     is    owed    --   an
    inevitable        issue    here      --     depends       at     least      arguably      on
    interpretations and applications of the CBA at issue."                          Thus the
    claim was completely preempted.                  
    Id. We explained
    which provisions of the CBA plausibly would
    require     interpretation.             For      example,      adjudicating         whether
    plaintiffs were entitled to wages for training time would likely
    require     interpretation        of      the    CBA    provision      specifying      that
    "whether certain training programs are compensable depends on the
    employee     having       made   a     'timely'        request    to     attend."         
    Id. Similarly, whether
    wages were owed for meal time would likely
    require interpretation of the CBA provision stating that whether
    § 1A(16), we did not reach the question of whether adjudication of
    that claim would require interpretation of the CBA.      
    Id. The parties
    agree that the hospital employee exception does not apply
    to the visiting nurses in this case.
    - 16 -
    that time was compensable "depends upon whether a nurse remained
    in the 'patient care area.'"   Id.7
    III.
    We review de novo both the denial of the motion to
    remand, which is a question of federal subject matter jurisdiction,
    see BIW 
    Deceived, 132 F.3d at 830
    , and the grant of judgment on
    the pleadings as a matter of law, see 
    Flibotte, 131 F.3d at 25
    .
    A. Removal
    The question before us is whether resolving one of the
    claims would require a court to interpret the CBA.       As stated
    above, we focus on the Weekly Wage Act claim.    See BIW 
    Deceived, 132 F.3d at 833
    ; 
    Cavallaro, 678 F.3d at 5
    ; 28 U.S.C. § 1367(a).
    7 We also said in Cavallaro that "any claim for compensation
    above the state minima must be entirely dependent on the 
    CBA." 678 F.3d at 8
    . Baystate argues that this statement amounts to a
    holding that a claim for unpaid wages determined according to a
    wage schedule in a CBA, higher than the state minimum wage, is
    necessarily a claim to vindicate rights created by the CBA, an
    independent ground on which we must find complete preemption. See
    
    Caterpillar, 482 U.S. at 394
    . Plaintiffs respond that this reading
    of Cavallaro would run afoul of Livadas and Lingle, which in
    plaintiffs' view establish that suing for damages based on payment
    formulas in a CBA does not necessarily trigger complete preemption.
    See 
    Lingle, 486 U.S. at 413
    n.12 ("A collective-bargaining
    agreement may, of course, contain information such as rate of pay
    . . . that might be helpful in determining the damages to which a
    worker prevailing in a state-law suit is entitled.         Although
    federal law would govern the interpretation of the agreement to
    determine the proper damages, the underlying state-law claim, not
    otherwise pre-empted, would stand."); 
    Livadas, 512 U.S. at 124
    (quoting same passage from Lingle).         Because we hold that
    plaintiffs' Weekly Wage Act claim is completely preempted on other
    grounds, we need not resolve the disputed meaning of this statement
    in Cavallaro.
    - 17 -
    Plaintiffs    emphasize     that   they   do   not    rely    on    any
    provisions of the CBA to establish their claim.             To be sure, as
    plaintiffs acknowledge, no wages are owed under the CBA for hours
    worked outside scheduled shifts without approval.                Such approval
    is   available   based   on   either   "prior    discussion      between      both
    parties," CBA § 4.1(B), or, in the case of additional time to
    complete patient documentation, "approval of the clinical manager
    which shall not be unreasonably withheld," 
    id. § 4.1(C).
                   However,
    plaintiffs argue, these requirements are not at issue because under
    the Weekly Wage Act, wages are owed for all work the employer
    "suffers or permits" to be done, regardless of whether it would be
    compensable under the CBA.
    Plaintiffs    articulate     the     "suffered       or   permitted"
    standard as whether Baystate "knew or should have known they were
    working time outside of their shifts[] and did not pay them for
    their time." This formulation mirrors the standard for determining
    if overtime pay is owed under the state Overtime Act and the
    federal Fair Labor Standards Act.             See Vitali v. Reit Mgmt. &
    Research, LLC, 
    36 N.E.3d 64
    , 68-70 (Mass. App. Ct. 2015); Raposo
    v. Garelick Farms, LLC, 
    293 F.R.D. 52
    , 56 (D. Mass. 2013); Prime
    Commc'ns, Inc. v. Sylvester, 
    615 N.E.2d 600
    , 602 (Mass. App. Ct.
    - 18 -
    1993).   Baystate accepts this formulation, and we therefore apply
    the "suffered or permitted" standard.8
    With     that    background,      we    must   consider    whether
    plaintiffs'   Weekly      Wage   Act    claim    plausibly   would   require
    interpretation of the CBA.             We conclude that it would.         We
    acknowledge that actual knowledge is a matter of pure fact. Hence,
    if plaintiffs were able to vindicate their claims with proof of
    Baystate's actual knowledge of their unpaid hours, they could show
    that Baystate "suffered or permitted" them to work those hours
    without the need to interpret the CBA.               However, plaintiffs'
    complaint does not allege a basis for actual knowledge of all of
    the unpaid hours worked by the nurses.
    The only particularized allegation suggesting actual
    knowledge is that Baystate knew of all the hours worked on its
    computer system.     Compl. ¶ 18 ("[M]uch of this unpaid work is
    completed by the nurses while they are logged onto the Baystate
    computer system.       Defendants are therefore aware of the work
    performed by the nurses outside of their regularly scheduled shifts
    for which they are not compensated.").           In plaintiff's favor, we
    8 The Appeals Court of Massachusetts has expressly held that
    this "suffered or permitted" standard for compensable work applies
    in both FLSA and Overtime Act cases. 
    Vitali, 36 N.E.3d at 68-69
    ;
    see also Mullaly v. Waste Mgmt. of Mass., Inc., 
    895 N.E.2d 1277
    ,
    1281 (Mass. 2008) ("[The Overtime Act] was 'intended to be
    essentially identical' to the Fair Labor Standards Act[.]").
    However, the Massachusetts appellate courts have not as yet made
    any such holding with regard to the Weekly Wage Act.
    - 19 -
    assume arguendo that actual knowledge without more would suffice
    to show sufferance or permission.           Yet even accepting the further
    assumption that plaintiffs could show Baystate's actual knowledge
    of every hour worked on the computers, plaintiffs do not limit
    their claims to those hours.         They assert only that "much of this
    unpaid   work"   would    be    reflected   on   the   computer    logs.   
    Id. (emphasis added).
    Moreover, the work at issue was apparently performed by
    the visiting nurses off-site, including at patients' homes, away
    from the immediate gaze of their superiors.             We think it unlikely
    that plaintiffs can prove actual knowledge of those hours to
    Baystate solely on the basis of the computer logs.               Cf. Manning v.
    Boston Med. Ctr. Corp., 
    725 F.3d 34
    , 44 (1st Cir. 2013) (finding
    the   allegation   that    an    employer    had   actual   or    constructive
    knowledge under the FLSA of nurses' unpaid hours sufficient to
    survive a motion to dismiss, where "the employees' uncompensated
    work was performed on defendants' premises during operational
    hours, and in full view of defendants' managers and supervisors").
    We thus think it is not only plausible, but likely, that plaintiffs
    will need to rely on constructive knowledge for some, if not all,
    of the hours at issue.
    In other words, resolution of this dispute will likely
    involve a determination of whether Baystate should have known about
    the nurses' unpaid work.        Unlike actual knowledge, this issue must
    - 20 -
    be considered "in view of the employer's 'duty . . . to inquire
    into the conditions prevailing in his business.'"        
    Vitali, 36 N.E.3d at 69
    (alteration in original) (quoting Gulf King Shrimp
    Co. v. Wirtz, 
    407 F.2d 508
    , 512 (5th Cir. 1969)).   The constructive
    knowledge inquiry is not limited to facts -- it is intertwined
    with an analysis of the employer's duty to inquire into what
    workers are doing, and what reasonable diligence the employer must
    perform to ensure that unauthorized hours are not being worked.
    This inquiry into Baystate's obligations can be expected to require
    interpretation of the CBA.
    For example, determining whether Baystate was required
    to look beyond the nurses' time sheets might depend on whether it
    was entitled to rely on the provisions specifying that work hours
    cannot be changed without Baystate's permission, CBA §§ 4.1(B)-
    (C), and the management rights clause giving Baystate the right to
    create workplace rules and set schedules, 
    id. § 16.1.
         See also
    Martin v. Shaw's Supermarkets, Inc., 
    105 F.3d 40
    , 43-44 (1st Cir.
    1997) (holding that plaintiff's claim would require interpretation
    of the management rights clause of the CBA, and was therefore
    preempted); Fant v. New Eng. Power Serv. Co., 
    239 F.3d 8
    , 16 (1st
    Cir. 2001) (citing the management rights clause of the CBA in
    support of its holding that plaintiff's claims were completely
    preempted). Baystate reasonably could argue that, because of those
    provisions, any duty to inquire into employee hours is limited
    - 21 -
    when no request for permission to work additional hours has been
    made.
    The CBA, however, reflects the possibility that the
    permission requirement does not apply to every "extra" hour worked.
    The agreement provides that "[a]ll patient documentation shall be
    completed at the point of care              or    prior to the end of the
    employee[']s shift."        CBA § 4.1(C) (emphasis added).        Although the
    meaning of this provision is not clear, it arguably contemplates
    occasions when nurses will need to work overtime to complete
    patient documentation "at the point of care" -- albeit after "the
    end of the employee[']s shift" -- when the demands of patient care
    do not leave time for paperwork during the shift.              That is to say,
    it is plausible that determining the impact of the permission
    requirement     --    and,    more     broadly,     determining    Baystate's
    constructive knowledge -- will require interpreting CBA § 4.1(C)
    in     combination   with     the    permission     and   management     rights
    provisions.     Cf. Kobold v. Good Samaritan Reg'l Med. Ctr., Nos.
    13-33528, 13-35590, 13-35265, 
    2016 WL 4191521
    , at *6                (9th Cir.
    Aug.    9,   2016)   (holding   a    plaintiff's     state-law    wage   claims
    completely     preempted     because    a   CBA    provision   providing    for
    overtime "except when there is a change of schedule agreed upon by
    the Medical Center and nurse" would need to be interpreted).
    Resisting this conclusion, plaintiffs' brief warns us
    that a finding of complete preemption would amount to a finding
    - 22 -
    that "union employees have fewer rights under state wage laws than
    non-union employees," a result that "would effectively penalize
    workers for being union members."           This outcome would, plaintiffs
    suggest, contravene the Supreme Court's statement in Livadas that
    § 301 "cannot be read broadly to preempt nonnegotiable rights
    conferred on individual employees as a matter of state 
    law." 512 U.S. at 123-24
    ; see also 
    Lueck, 471 U.S. at 212
    ("[I]t would be
    inconsistent with congressional intent under [§ 301] to preempt
    state   rules   that    .    .   .   establish   rights    and     obligations,
    independent of a labor contract.");              Metro. Life Ins. Co.        v.
    Massachusetts, 
    471 U.S. 724
    , 751 (1985) (noting that the LMRA was
    not intended "to prevent the States from establishing minimum
    employment standards that labor and management would otherwise
    have been required to negotiate").
    Here, however, Baystate has not argued that plaintiffs
    have waived the substantive rights granted to them by Massachusetts
    wage statutes.    To the contrary, it takes the position that the
    nurses' claims may be pursued through the agreed-to grievance and
    arbitration procedure, which permits grievances to be filed by a
    nurse or a group of nurses.           In its motion for judgment on the
    pleadings,   Baystate       argued   that   plaintiffs    should    have   first
    brought   their   claims      through    the   grievance    and    arbitration
    procedure, emphasizing the intent of the CBA to channel all
    disputes into that process.             In Baystate's words, "the relief
    - 23 -
    sought by Plaintiffs in this case was available to them under the
    CBA's grievance procedure." In its brief on appeal, Baystate again
    argues that the relief sought by plaintiffs was available via the
    agreed-to dispute resolution mechanism.
    In Cavallaro, we expressly declined to decide whether
    the completely preempted Weekly Wage Act claim could be brought
    via the CBA grievance 
    process. 678 F.3d at 8
    ; see also 
    Livadas, 512 U.S. at 124
    n.18.             We need not decide this question here.
    Baystate's statements make clear that it interprets the CBA to
    allow plaintiffs to pursue the remedy they seek in arbitration,
    and that plaintiffs may rely on that interpretation when bringing
    their claims, such that "relief" for violations of the state wage
    statutes "can be provided within the CBA process."                 
    Cavallaro, 678 F.3d at 6
    .
    Because     the    Weekly       Wage    Act    claim    is    completely
    preempted, the entire action was removable to federal court and
    the motion to remand was properly denied.
    B. Judgment on the pleadings
    Plaintiffs,       in    their     opposition    to     the   motion   for
    judgment on the pleadings, omitted any discussion of the grievance
    and arbitration provision in the CBA, effectively waiving any
    argument that it did not apply to their claims.                    See Grenier v.
    Cyanamid   Plastics,    Inc.,       
    70 F.3d 667
    ,   678    (1st    Cir.   1995).
    Similarly, on appeal, plaintiffs omit any argument that their
    - 24 -
    claims are not covered by the grievance and arbitration requirement
    of the CBA.
    Under the federal common law applicable to completely
    preempted claims, claims are typically found to be arbitrable where
    the grievance and arbitration provision is "broadly-phrased" and
    "relief can be provided within the CBA process."    
    Cavallaro, 678 F.3d at 6
    ; see also Local 285, Serv. Emps. Int'l 
    Union, 64 F.3d at 738
    .   The mandatory grievance and arbitration provision at issue
    here covers all "grievances." Absent any argument to the contrary,
    we have no trouble determining that the provision is broad enough
    to encompass plaintiffs' claims.
    Hence, the CBA required the nurses to raise their wage
    claims through the grievance procedure in the first instance.   The
    court properly entered judgment on the pleadings and dismissed
    plaintiffs' claims.
    Affirmed.
    - 25 -
    

Document Info

Docket Number: 15-1198P

Citation Numbers: 835 F.3d 53

Filed Date: 8/23/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (30)

Albert A. Flibotte v. Pennsylvania Truck Lines, Inc. , 131 F.3d 21 ( 1997 )

Fant v. New England Power Service Co. , 239 F.3d 8 ( 2001 )

Otis Elevator Co. v. International Union of Elevator ... , 408 F.3d 1 ( 2005 )

Theresa Martin v. Shaw's Supermarkets, Inc. , 105 F.3d 40 ( 1997 )

George Jackson v. Liquid Carbonic Corporation , 863 F.2d 111 ( 1988 )

Andre Grenier v. Cyanamid Plastics, Inc. , 70 F.3d 667 ( 1995 )

Pennsylvania Railroad v. Public Service Commission , 40 S. Ct. 36 ( 1919 )

Gulf King Shrimp Company v. W. Willard Wirtz, Secretary of ... , 407 F.2d 508 ( 1969 )

Hughes v. United Air Lines, Inc. , 634 F.3d 391 ( 2011 )

Local 285, Service Employees International Union, Afl-Cio v.... , 64 F.3d 735 ( 1995 )

Cavallaro v. UMASS MEMORIAL HEALTHCARE, INC. , 678 F.3d 1 ( 2012 )

Biw Deceived v. Local S6, Industrial Union of Marine and ... , 132 F.3d 824 ( 1997 )

Joseph Lydon v. Boston Sand & Gravel Company , 175 F.3d 6 ( 1999 )

Cumpata v. Blue Cross Blue Shield of Massachusetts, Inc. , 113 F. Supp. 2d 164 ( 2000 )

Alexander v. Gardner-Denver Co. , 94 S. Ct. 1011 ( 1974 )

Barrentine v. Arkansas-Best Freight System, Inc. , 101 S. Ct. 1437 ( 1981 )

Textile Workers v. Lincoln Mills of Ala. , 77 S. Ct. 912 ( 1957 )

Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers v. ... , 82 S. Ct. 571 ( 1962 )

Avco Corp. v. Aero Lodge No. 735, International Ass'n of ... , 88 S. Ct. 1235 ( 1968 )

United Steelworkers of America, AFL-CIO-CLC v. Rawson , 110 S. Ct. 1904 ( 1990 )

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