United States Court of Appeals For the First Circuit

No. 20-1470

ANDREA ROSE,

Plaintiff, Appellant,

v.

RTN FEDERAL CREDIT UNION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Chief Judge, Selya, Circuit Judge, and Gelpí,* District Judge.

Raven Moeslinger, with whom Law Office of Nicholas F. Ortiz, P.C. was on brief, for appellant. Liam Tomas O'Connell, with whom Natalie M. Cappellazzo and Nutter McClennen & Fish LLP were on brief, for appellee.

June 10, 2021

* Of the District of Puerto Rico, sitting by designation. SELYA, Circuit Judge. This appeal requires us to examine

the jurisdictional reach of section 301 of the Labor Management

Relations Act (LMRA),

(a). Plaintiff-appellant

Andrea Rose argues that the district court applied section 301 too

expansively and asks us to reverse certain of the district court's

rulings favorable to her employer, defendant-appellee RTN Federal

Credit Union (RTN) — rulings that flowed from the district court's

assessment of section 301's broad preemptive effect. Concluding,

as we do, that the district court's application of section 301 was

beyond reproof, we affirm the judgment below.

I

We start by rehearsing the relevant facts and travel of

the case. Rose has been employed by RTN as a member service

representative — an hourly-wage position — since September 2014.

The position falls under the carapace of a collective bargaining

agreement (the CBA) between RTN and the Office and Professional

Employees International Union, AFL-CIO, Local 6 (the Union). Rose

ordinarily works forty to forty-five hours a week at RTN's branch

in Hudson, Massachusetts. She alleges, however, that RTN

periodically requires her to report to its branch in Dedham,

Massachusetts. Working in Dedham extends Rose's usual commute by

roughly an additional hour each way, but she alleges that she is

not compensated for the extra time and expense involved in such a

journey.

- 2 - Chafing at this perceived inequity, Rose sued RTN in a

Massachusetts state court. Her complaint asserted four separate

violations of the Commonwealth's labor laws: nonpayment of earned

wages, see

, 150; nonpayment of

minimum fair wages, see

ch. 151, § 1; nonpayment of overtime,

see id. ch. 151, §§ 1A, 1B; and failure to maintain proper payroll

records and issue suitable pay stubs, see id. ch. 149, § 148; id.

ch. 151, § 15;

(2).

All four of Rose's claims derive from a common nucleus

of operative fact — her intermittent treks to and from Dedham —

and a particular provision of state labor law. That provision,

(4)(b), stipulates that an employee who

"regularly works at a fixed location" must be compensated for the

extra time and expense involved in traveling to a location other

than her "regular work site."1 The regulation does not elaborate

on the meaning of several of its component terms (such as "fixed

location").

1 The regulation reads:

If an employee who regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee shall be compensated for all travel time in excess of his or her ordinary travel time between home and work and shall be reimbursed for associated transportation expenses.

(4)(b).

- 3 - Rose's complaint sought recovery of compensation for

unpaid wages and expenses, as well as unpaid overtime (to the

extent that her added travel time was in excess of a forty-hour

work week). It also sought damages for RTN's alleged failure to

account for her travel time and to maintain required payroll

records.

RTN removed the suit to the federal district court. See

. In its notice of removal, RTN represented that

Rose's claims, although articulated exclusively in state-law

terms, implicated federal interests in a manner sufficient to

trigger federal question jurisdiction. See

(conferring jurisdiction over cases "arising under the

Constitution, laws, or treaties of the United States"); see also

Lawless v. Steward Health Care Sys., LLC,

(1st Cir.

2018). Federal question jurisdiction is, of course, a form of

subject matter jurisdiction. See Valentin v. Hosp. Bella Vista,

(1st Cir. 2001); see also Prou v. United

States,

(1st Cir. 1999).

To be sure, federal question jurisdiction ordinarily

implies satisfaction of the well-pleaded complaint rule, which

provides that "federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff's properly

pleaded complaint." Caterpillar Inc. v. Williams,

(1987). But this general rule — like most general rules —

- 4 - admits of exceptions. A defendant may remove a case to federal

court under federal question jurisdiction by virtue of complete

preemption — a jurisdictional doctrine that operates when "the

pre-emptive force of a [federal] statute is so 'extraordinary'

that it 'converts an ordinary state common-law complaint into one

stating a federal claim.'"

at 393 (quoting Metro. Life Ins.

Co. v. Taylor,

(1987)). Here, RTN invoked the

complete preemption doctrine and removed Rose's suit on the theory

that a federal statute (the LMRA) transmogrified Rose's state-law

claims into federal claims.

Rose moved to remand the case, arguing that her claims

"ar[ose] exclusively under state law." RTN opposed the motion and

cross-moved for judgment on the pleadings. Following a hearing,

the district court denied Rose's remand motion. The court

concluded that "[a]djudication of Rose's claims requires

interpretation of the collective bargaining agreement" and, thus,

supported the premise that federal question jurisdiction existed.2

The court reserved decision on RTN's cross-motion.

In a written rescript, the district court subsequently

granted RTN's motion for judgment on the pleadings. See Rose v.

RTN Fed. Credit Union, No. 19-cv-11854, slip op. (D. Mass. Dec. 9,

2The district court did not originally offer an explanation for its refusal to remand but explicated its reasoning at a later time.

- 5 - 2019) (unpublished). The court noted the CBA's directive that

"any differences," if not otherwise settled between RTN and Union

representatives, would have to be resolved by arbitration. Id. at

2. Since the CBA's broadly worded grievance provision encompassed

Rose's claims, Rose was bound to its terms. See id. at 3; see

also Republic Steel Corp. v. Maddox,

(1965)

("[F]ederal labor policy requires that individual employees

wishing to assert contract grievances must [at least] attempt use

of the contract grievance procedure agreed upon by employer and

union as the mode of redress." (emphasis omitted)). And because

Rose had made no attempt to arbitrate her claims, her suit could

not proceed. See Rose, slip op. at 2-3.

The court then administratively closed the case,

presumably to allow Rose an opportunity to grieve and arbitrate

her claims. Rose declined this opportunity. Instead, she later

urged the court to enter judgment in RTN's favor, thus allowing

her to perfect this appeal.

II

We afford de novo review both to the district court's

denial of the motion to remand and to its subsequent entry of

judgment on the pleadings. See Rueli v. Baystate Health, Inc.,

(1st Cir. 2016). In this instance, our review

takes place against the background principle that section 301 of

the LMRA, see

(a), completely preempts any state-

- 6 - law cause of action "founded directly on rights created by

collective-bargaining agreements" or "substantially dependent on

analysis of a collective-bargaining agreement." Caterpillar,

; see Franchise Tax Bd. of Cal. v. Constr. Laborers

Vacation Tr. for S. Cal.,

(1983).

A

Before us, Rose's chief contention is that her state-

law claims can and should be adjudicated independently of the CBA.

In her view, her claims do not "depend on a court interpreting any

of [the CBA's] provisions" and, thus, complete preemption is

inapposite. We do not agree.

It is by now apodictic that the LMRA thoroughly occupies

the field of labor contract disputes. See Allis-Chalmers Corp. v.

Lueck,

(1985) (concluding that any "questions

relating to what the parties to a labor agreement agreed, and what

legal consequences were intended to flow from breaches of that

agreement, must be resolved by reference to uniform federal law").

Even so, the LMRA's reach is not unlimited: "not every dispute

concerning employment, or tangentially involving a provision of a

collective-bargaining agreement, is preempted by [section] 301."

State laws that establish substantive rights, obligations, or

prohibitions independent of any labor contract do not implicate

the same sort of federal questions. See

. In the

last analysis, LMRA preemption of a given state-law claim depends

- 7 - upon whether the claim's adjudication appears to be "inextricably

intertwined with consideration of the terms of [a] labor contract."

; see Cavallaro v. UMass Memorial Healthcare, Inc.,

(1st Cir. 2012).

When the removal of a case to a federal court is

challenged, the removing party normally "bears the burden of

persuasion vis-à-vis the existence of federal jurisdiction." BIW

Deceived v. Local S6, Industrial Union of Marine and Shipbuilding

Workers,

(1st Cir. 1997). That burden, though,

is not necessarily a heavy one. This is such a case: a state-

law claim may escape LMRA preemption only if it requires no more

than "bare" consultation of a CBA, without dispute as to "the

meaning of [any] contract terms." Livadas v. Bradshaw,

(1994). If a claim plausibly requires interpretation of

one or more provisions of a CBA, it comes within the LMRA's

preemptive sweep. See Adames v. Executive Airlines, Inc.,

(1st Cir. 2001).

The border between interpretation and bare consultation

can be hazy and, therefore, "difficult to plot." Lawless,

(citing Livadas,

n.18). This case,

however, does not closely approach the border: on their face,

Rose's state-law claims require more than bare consultation of the

CBA. They substantially depend on construing the terms of the

- 8 - agreement (the CBA) that RTN and the Union negotiated. We explain

briefly.

Importantly, Massachusetts case law is sparse with

respect to the portion of the regulation upon which Rose relies

(subsection 27.04(4)(b)). The only pertinent reported case is

Taggart v. Town of Wakefield,

(Mass. App. Ct. 2010).

That decision makes pellucid that applying the regulation is a

fact-sensitive exercise, especially because the regulation itself

leaves critical terms undefined. See

. For instance,

the Taggart court noted that the term "fixed location," as used in

the regulation, "concerns the nature of the employee's present

work site at the time the employee is required to report to that

site."

A site that "change[s] from day to day, or after a

short period of time . . . [cannot] be considered 'fixed.'"

. So, too, an employee reports to a "fixed" location to

the extent that her destination is "'stationary' and 'not subject

to change'" for the duration of her reporting period, even if the

assignment itself is a temporary one.

. What is more,

"the relevance of the length of the assignment will depend

significantly on the industry to which it is being applied."

.

In the case at hand, the fact-sensitive nature of the

inquiry counsels persuasively in favor of analyzing the terms of

the CBA. It is not clear how often RTN requires Rose to report to

- 9 - Dedham, how long her assignments to that site last, or under what

circumstances those assignments arise. The pertinent CBA

provisions, when analyzed, may shed needed light on these subjects.

For example, those assignments may or may not fall within the CBA's

express provision governing "temporary transfers," which states:

When, in the case of a temporary situation, two (2) weeks or less, management shall have the right to select the employee to be transferred from the selected Branch Office. Without limiting managements' [sic] right to make the transfer decision, [RTN] agrees that seniority of employees will be taken into consideration at the time of transfer. Temporary transfers of two (2) or more weeks shall be offered at the appropriate branch office to volunteers first. If there are no volunteers, the least senior person the appropriate classification shall be transferred.

And Rose's eligibility for benefits under 454 Mass. Code Reg.

27.04(4)(b) may well depend upon how this provision is interpreted.

Cf. Taggart,

(concluding that plaintiffs were

ineligible for added travel compensation where CBA anticipated a

temporary assignment).

That Rose's state-law claims require interpretation of

the CBA's temporary transfer provision suffices to ground the

application of LMRA preemption.3 After all, "[f]ederal subject-

3 Although the district court did not specifically mention the temporary transfer provision, we may affirm the court's judgment "for any valid reason that finds support in the record."

- 10 - matter jurisdiction exists as long as—at the time of removal—there

was a seemingly valid or genuine argument that adjudication of the

plaintiff's claim would require construction of the CBA." Lawless,

. So it is here.

If more were needed — and we do not believe that it is

— we have left no doubt that any claim that entails a court

"determining what (if anything) is owed" to an employee who is

within a bargaining unit will almost always "depend[] at least

arguably on interpretations and applications of the CBA at issue."

Cavallaro,

. In this case, we think it more than

arguable — indeed, plain — that adjudicating Rose's state-law wage

claims will "require construing and applying the various

'peculiarities of industry-specific wage and benefit structures'

embodied in the CBA."

(quoting Adames,

). Given

that the CBA adds qualifications to wage rates in light of a

variety of factors and also adds qualifications to when and how

overtime is to be computed, the need for such interpretations seems

unavoidable. Provisions such as those governing "hours of work,"

"premium time," "overtime," and "classification and wages" will

have to be analyzed. And Rose's record-keeping claim exists

downstream of these provisions because "[a]ccurate records

. . . depend on what the CBA provided as wages."

Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,

(1st Cir. 2000).

- 11 - Rose resists this conclusion. She relies upon Livadas,

where the Supreme Court held that an employee's state-law claim,

through which she sought to charge her employer for late payment

of wages owed upon discharge, did not require interpretation of a

CBA. See

. But she is comparing cantaloupes

with coconuts. In Livadas, there was no dispute "over the amount

of the penalty to which [the employee] would be entitled," and the

case was susceptible to resolution simply by consulting a calendar

(rather than the CBA).

.

This case, by contrast, is more analogous to Adames.

There, the plaintiffs (flight attendants) sought relief under

Puerto Rico law for, among other things, uncompensated work time,

overtime, meal periods, and sick leave. See

. We

held that the merits of the attendants' claims substantially

depended on interpreting the CBA between their union and Executive

Airlines (their employer). See

. The attendants'

suit required the court to go beyond mere reference to the CBA in

order to lend meaning to ambiguous state-law terms (e.g., "company

policy"), to gauge how different CBA provisions impacted the

accrual of work hours and benefits within a fixed period, and to

ascertain the attendants' "regular" pay rate for the purposes of

calculating relief owed.

As in Adames, Rose's claims likewise demand that a court

assess what blocs of her time were compensable under the CBA, and

- 12 - at what rate. Rose tries to frame these questions as susceptible

to straightforward resolution, suggesting (for example) that

determining the overtime compensation due to her would require no

more than multiplying her extra commuting time by time-and-one-

half at her regular rate of pay.4 But determining Rose's regular

rate of pay and the extent to which the commuting hours are

overtime hours requires interpretation of various provisions of

the CBA. Compare

(finding claims preempted when CBA

interpretation was necessary to determine whether a claim's

"factual predicates" give rise to liability), with Lab. Rels. Div.

of Constr. Indus. of Mass., Inc. v. Healey,

(1st

Cir. 2016) (declining to find claim preempted when liability

existed "entirely independent of any CBA terms"). Thus, Rose's

wage claims depend "upon what the CBA provides [with respect to

wages] . . . even if these amounts were in turn altered or enlarged

by state statutory provisions." Cavallaro,

.

B

Rose has a fallback position, which focuses on the CBA's

grievance provision.5 She notes that the district court ruled that

4Rose's very framing of the question sends up a red flag. The case law is littered with admonitions that artful pleading of facts cannot be employed as a means of avoiding LMRA preemption. See, e.g., BIW Deceived,

; Oglesby v. RCA Corp.,

(7th Cir. 1985). 5Rose did not advance this line of argument before the district court. But RTN, though noting that the district court said that this line of argument had not been raised, has not asked

- 13 - this provision bound her to pursue her claims through arbitration.

See Rose, slip op. at 2-3. That ruling was in error, she contends,

because the grievance provision neither encompasses her claims nor

offers her any responsive remedy. This contention lacks force.

We agree that, as a general matter, a plaintiff is not

bound to arbitrate statutory claims that are wholly separate and

apart from CBA-related rights and obligations. See, e.g., O'Brien

v. Town of Agawam,

(1st Cir. 2003). Here,

however, Rose's claims engender analysis and interpretation of the

CBA, see text supra, thereby placing them squarely within the maw

of the broadly worded grievance provision.6 See Allis-Chalmers,

; Rueli,

.

Striking from another angle, Rose describes arbitration

as ill-suited to afford her relief because the process "only

appl[ies] to 'any differences as to the interpretation of the

[CBA]' . . . [and] the CBA does not contain a provision Rose could

invoke in order to recover wages and expenses due under the

us to hold that the line of argument is foreclosed by waiver. See Teamsters Union, Local No. 59 v. Superline Transp. Co.,

(1st Cir. 1992) ("If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."). Given this curious procedural posture, we elect to meet the argument head on. 6 The grievance provision is contained in Article XXIX of the CBA. It applies to any dispute between RTN and an employee within the bargaining unit that involves "differences as to the interpretation of the [CBA] . . . ."

- 14 - Massachusetts travel time regulations." This boils down to a

plaint that arbitration offers Rose no suitable remedy. Such a

plaint reflects an overly "casuistic reading of the contract [that]

cannot be accepted." Republic Steel,

. Arbitrators

traditionally enjoy wide latitude to fashion solutions to

problems, and that latitude is especially appropriate in cases —

like this one — in which "[t]he draftsmen [of a CBA] may never

have thought of what specific remedy should be awarded to meet a

particular contingency." Steelworkers of Am. v. Enter. Wheel &

Car Corp.,

(1960).

That ends this aspect of the matter. We hold that this

case comes within the jurisdictional reach of the LMRA and that

the district court did not err either in denying Rose's motion to

remand or in granting judgment on the pleadings for RTN.

III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 15 -