Labor Relations Division of Co v. Healey

2016 | Cited 0 times | First Circuit | December 16, 2016

United States Court of Appeals For the First Circuit

No. 15-1906


Petitioners, Appellants,


MAURA T. HEALEY, in her capacity as Attorney General for the Commonwealth of Massachusetts,

Respondent, Appellee.


[Hon. Rya W. Zobel, U.S. District Judge]


Thompson and Barron, Circuit Judges, McConnell,* District Judge.

James F. Grosso and Miranda S. Jones, with whom O'Reilly, Grosso & Gross, P.C. was on brief, for appellant. Pierce O. Cray, with whom Maura Healey, Douglas S. Martland, and the Office of the Massachusetts Attorney General were on brief, for appellee.

* Of the District of Rhode Island, sitting by designation.

Lindsey Powell, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Alisa B. Klein, Attorney Appellate Staff, M. Patricia Smith, Solicitor of Labor, Beverly I. Dankowitz, Acting Associate Solicitor, Radine Legum, Counsel for Labor-Management Relations, and Adam R. Pulver, Attorney, Civil Rights and Labor-Management Division, were on brief for amicus curiae United States of America. MacKenzie Fillow, Senior Counsel, Zachary W. Carter, Corporation Counsel, Jill Maxwell, Of Counsel, Margaret O'Hora, Of Counsel, David Smart, Of Counsel, and Ksenya Hentisz, Of Counsel, on brief for amicus curiae City of New York; Dennis Herrera, City Attorney, and Francesca Gessner, Deputy City Attorney, on brief for amicus curiae City and County of San Francisco; George Jepsen, Attorney General, on brief for amicus curiae State of Connecticut; Ian Warner, Legal Counsel to the Mayor of Seattle, on brief for amicus curiae City of Seattle; Jeremy Farrell, Corporation Counsel, on brief for amicus curiae City of Jersey City; Khalifah L. Shabazz, Corporation Counsel, on brief for amicus curiae City of East Orange; Domenick Stampone, Corporation Counsel, on brief for amicus curiae City of Paterson; and David L. Minchello, Corporation Counsel, on brief for amicus curiae City of Plainfield. Jasper Groner, Donald J. Siegel, James A.W. Shaw, Louis A. Mandarini, and Segal Roitman, LLP, on brief for amicus curiae Massachusetts AFL-CIO. Mark A. Gottlieb, on brief for amici curiae A Better Balance, Coalition for Social Justice-Education Fund, Inc., Massachusetts Public Health Association, and the Public Health Advocacy Institute, Northeastern University School of Law. Ingrid I. Nava, Katherine D. Shea, David B. Rome, and Pyle Rome and Ehrenberg, P.C., on brief for amici curiae SEIU Local 32BJ, 1199 SEIU United Healthcare East, SEIU Local 509, UFCW Local 791, UFCW Local 1445, UFCW Local 328, United Steelworkers Local 8751, and UNITE HERE Local 26.

December 16, 2016

BARRON, Circuit Judge. In this case, a group of

construction-industry employers' associations and employers

("employers") seek relief from a broad category of enforcement

actions that may be brought under the Massachusetts Earned Sick

Time Law ("ESTL"), Mass. Gen. Laws ch. 149, § 148C. Specifically,

the employers contend that the ESTL "is preempted" by Section 301

of the Labor-Management Relations Act, 29 U.S.C. § 185(a), "with

respect" to those employers in the state who are parties to

collective bargaining agreements ("CBAs") with unions. On that

basis, the employers seek a judgment "prohibiting" the

Massachusetts Attorney General from "[g]ranting private rights of

action to employees who are members of collective bargaining units"

and "[e]nforcing civil sanctions pursuant to [the ESTL] against

employers who are signatory [sic] to collective bargaining


The District Court dismissed the suit for failure to

state a claim insofar as it constituted a facial, preemption-based

challenge to the ESTL, and for want of jurisdiction on ripeness

grounds insofar as it represented an as-applied preemption-based

challenge to particularized, future actions to enforce the

measure. Due to the claim-specific inquiry that we must undertake

in order to determine Section 301's preemptive effect, however, we

conclude that the employers' unusual request for sweeping pre-

enforcement relief is not ripe for adjudication no matter how it

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is best characterized along the facial/as-applied spectrum. For

that reason, we dismiss the suit for want of jurisdiction.


We start by describing the contours of both the

Massachusetts ESTL and federal preemption under Section 301. We

then will be better able to describe the basis for this suit and

the District Court's reasons for dismissing it.


In 2014, voters in Massachusetts overwhelmingly approved

the ESTL through the initiative process. The ESTL broke new ground

in Massachusetts by providing that employers of a certain size

must compensate their employees for the sick time that they use

for specified purposes. Mass. Gen. Laws ch. 149, §§ 148C(a)-(d).

To ensure compliance with the ESTL, the law provides

that the Attorney General "shall enforce [the law] and may obtain

injunctive or declaratory relief for this purpose." Id. at

§ 148C(l). That same subsection of the ESTL further provides that

"[v]iolation of [the ESTL] shall be subject to" various provisions

of Massachusetts law that, among other things, permit the

imposition of civil penalties. Id.; see also id. at §§ 27C & 150.

In addition to providing for enforcement by the Attorney

General, the ESTL also authorizes an "aggrieved" employee to bring

actions under the ESTL, provided that such an employee first files

the complaint with the Attorney General to notify her of the

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impending suit. Id. at §§ 148C(l) & 150. After filing the

complaint with the Attorney General, the aggrieved employee must

wait ninety days to bring the suit unless the Attorney General

permits the employee to file the suit before the ninety-day period

has run. Id.

Finally, the ESTL authorizes the Attorney General to

promulgate regulations "to carry out the purpose and provisions"

of the law. Id. at § 148C(n). The Attorney General exercised

that authority on July 3, 2015 by promulgating regulations that

defined certain terms in the ESTL, some of which the employers

point to in pressing their preemption-based challenge. 940 C.M.R.

§§ 33.01-33.11. Specifically, the ESTL provides that covered

employers must compensate their employees for such paid sick time

"at the same hourly rate as the employee" would have been paid had

the employee not taken leave. Mass. Gen. Laws ch. 149, § 148C(a).

The regulations promulgated by the Attorney General define the

"same hourly rate" to mean "the employee's regular hourly rate"

for employees paid a uniform hourly rate. 940 C.M.R. § 33.02.

For "employees who receive different pay rates for hourly work

from the same employer," the regulations permit an employer to use

a "blended rate, determined by taking the weighted average of all

regular rates of pay over the previous pay period." Id.

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Section 301 of the National Labor Relations Act long

pre-dates the ESTL. It was enacted in 1947, and it provides:

"Suits for violation of contracts between an employer and a labor

organization representing employees . . . may be brought in any

district court of the United States having jurisdiction of the

parties, without respect to the amount in controversy or without

regard to the citizenship of the parties." 29 U.S.C. § 185(a).

Notwithstanding its phrasing, Section 301 is "more than

jurisdictional -- [] it authorizes federal courts to fashion a

body of federal law for the enforcement of [CBAs]." Textile

Workers Union v. Lincoln Mills of Ala., 353 U.S. 448 , 450-51

(1957). Moreover, soon after Lincoln Mills, the Supreme Court in

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95 , 103 (1962),

explained that, in light of the congressional command in Section

301 to "fashion . . . a body of federal law for the enforcement of

[CBAs]," state courts were not "free to apply individualized local

rules when called upon to enforce such agreements." Rather, "in

enacting § 301[,] Congress intended doctrines of federal labor law

uniformly to prevail over inconsistent state rules." Id. at 104.

The result is that Section 301 preempts state-law "suits

alleging [CBA] violations." Allis-Chalmers Corp. v. Lueck, 471

U.S. 202 , 213 (1985). There is no shortage of complexities

concerning precisely what consequences flow from Section 301

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preemption, but we need not delve into all of them here. For

present purposes, it suffices to say that, by virtue of Section

301's preemptive effect, a state-law claim for breach of a CBA

often must be dismissed so that the claim may be arbitrated in

accord with an agreement to arbitrate such a breach that the

governing CBA contains. See, e.g., id. at 220-21; see also Lucas

Flour, 369 U.S. at 105 (holding that the CBA in that case

"expressly imposed upon both parties the duty of submitting the

dispute in question to final and binding arbitration"). As the

Court has explained, "[t]he need to preserve the effectiveness of

arbitration was one of the central reasons that underlay the

Court's [preemption] holding in Lucas Flour." Lueck, 471 U.S. at


The Court has also made clear, however, that "[t]he

requirements of § 301 as understood in Lucas Flour cannot vary

with the name appended to a particular cause of action." Id. at

220. Thus, in Lueck, a claim styled as a "tort claim for breach

of a good-faith obligation under a contract" was held preempted

under Section 301 -- and thus dismissed -- because the "right[]"

the plaintiff asserted was fundamentally "rooted" in the CBA, which

had provided that a dispute over the employer's compliance with

the predicate right under the CBA was subject to arbitration. Id.

at 219-20 (noting that a "rule that permitted an individual to

sidestep available grievance procedures would . . . eviscerate a

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central tenet of federal labor contract law" -- the primacy of the

arbitrator in CBA interpretation). In this way, too, Section 301

preemption ensures that "interpretation of [CBAs] remains firmly

in the arbitral realm." Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 , 411 (1988).

There are limits, though, to Section 301's preemptive

reach. The Court has explained that "it would be inconsistent with

congressional intent under [Section 301] to preempt state rules

that . . . establish rights and obligations, independent of a labor

contract." Lueck, 471 U.S. at 212. That is because Section 301

"says nothing about the substantive rights a State may provide to

workers when adjudication of those rights does not depend upon the

interpretation of such agreements." Lingle, 486 U.S. at 409.

Accordingly, "the bare fact that a [CBA] will be consulted in the

course of state-law litigation" pursuant to a state-law cause of

action that confers a right independently of the CBA is not

sufficient, in consequence of Section 301 preemption, to require

the dismissal of the state-law cause of action. Livadas v.

Bradshaw, 512 U.S. 107 , 124 (1994); see also Lueck, 471 U.S. at

211 ("[N]ot every dispute . . . tangentially involving a provision

of a [CBA] is preempted by § 301."). For example, when "liability

is governed by independent state law, the mere need to 'look to'

the [CBA] for damages computation is no reason to hold the state-

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law claim defeated by § 301." Livadas, 512 U.S. at 125 (internal

citation omitted).1


It is against this legal background that the employers

filed this suit in the U.S. District Court for the District of

Massachusetts in 2015. The employers did so before any action to

enforce the ESTL had been filed against any employer who is a party

to a CBA by either the Attorney General or by any aggrieved

employee. But the employers contend in the currently operative

complaint, which is styled as "Amended Petition for Declaratory

1 Even when Section 301 preempts a state-law claim, there may be different ways of disposing of the claim. Cavallaro v. UMass Mem'l Healthcare, Inc., 678 F.3d 1 , 6 (1st Cir. 2012). "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 thus must be sent to arbitration. Rueli v. Baystate Health, Inc., 835 F.3d 53 , 59 (1st Cir. 2016) (quoting Cavallaro, 678 F.3d at 6). But, as the Court has emphasized, "[h]olding the plaintiff's cause of action substantively extinguished may not . . . always be the only means of vindicating the arbitrator's primacy as the bargained-for contract interpreter." Livadas, 512 U.S. at 124 n.18. Thus, we have previously noted some "uncertaint[y]" as to "when a state law claim implicating Section 301 should proceed as a federal claim, or simply be dismissed." Pruell v. Caritas Christi, 645 F.3d 81 , 85 n.4 (1st Cir. 2011); see also Lingle, 486 U.S. at 403 n.2 (emphasizing that "state courts have concurrent jurisdiction over § 301 claims" (citing Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962)))

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Relief II," that Section 301 preemption nonetheless entitles them

to sweeping relief from the ESTL's eventual enforcement.

Specifically, in that complaint, the employers seek "a

judgment declaring that [the ESTL] is preempted with respect to

employers who are signatory [sic] to collective bargaining

agreements." Second, the employers seek "a judgment prohibiting

the Attorney General from: [(1)] Granting private rights of action

to employees who are members of collective bargaining units; and

[(2)] Enforcing civil sanctions pursuant to [the ESTL] against

employers who are signatory [sic] to collective bargaining


In support of the contention that Section 301 preemption

entitles the employers to the relief they seek, the complaint

alleges the following facts. First, the complaint asserts that

the construction-industry employers and the members of the

construction-industry employers' associations that bring this

action are parties to CBAs. Next, the complaint alleges that

"[a]ny and all state law claims brought under the [ESTL] would

require a determination of the 'hourly rate' of a worker covered

by a [CBA,] which would necessitate an analysis and interpretation

of the terms of the [CBAs] made between the parties in a labor

contract." And, finally, quoting subsection (j) of the ESTL, Mass.

Gen. Laws ch. 149, § 148C(j), the complaint asserts that the ESTL

"further necessitates an analysis and interpretation of the terms

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of the [CBAs] made between the parties in a labor contract to

determine whether the [ESTL] 'diminishes or impairs the

obligations of an employer to comply with any contract, [CBA], or

any employment benefit program or plan . . . that provides to

employees greater earned sick time rights'" than the ESTL.

The Attorney General responded to the employers' suit in

the District Court by moving to dismiss under both Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). The District Court ruled

as follows.

Construing the complaint as a "facial preemption

challenge" against the ESTL, the District Court first concluded

that the employers would not be able to show that "all claims to

benefits under the" ESTL for all unionized workers in the state

would depend on CBA interpretation. Labor Relations Div. v.

Healey, Civil Action No. 15-10116-RWZ, 2015 WL 4508646 , at *7 (D.

Mass. July 9, 2015) (emphasis omitted). The District Court

reasoned that many conceivable ESTL claims brought against

employers who are parties to a CBA would not so depend on CBA

interpretation -- claims, for instance, involving workers earning

a "uniform hourly wage," or claims not involving a wage dispute at

all, such as retaliation. Id. Thus, the District Court held, the

employers' challenge failed the familiar test laid out in United

States v. Salerno, 481 U.S. 739 , 745 (1987), which requires

plaintiffs bringing a facial challenge to a statute to show that

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there are no set of circumstances under which that statute would

be valid. Id. As a result, the District Court dismissed what it

characterized as the employers' facial challenge under Rule


The District Court then considered the employers'

challenge to the ESTL "as an as-applied challenge" to only those

enforcement actions (whether brought by the Attorney General or by

employees) that would involve CBA interpretation. Id. at *8-*9.

The District Court held, however, that, so understood, the

complaint was not ripe for adjudication because, at the time the

complaint was filed, "the purported application of the [ESTL] to

[the employers] ha[d] been -- at best -- hypothetical." Id. at

*9. The District Court emphasized that no employee had, to that

point, brought a claim for paid sick time under the ESTL. Id.

"Neither," the District Court observed, "ha[d] the Attorney

General." Id. On this basis, the District Court concluded that

the employers' as-applied challenge "[did] not present" a

justiciable case or controversy under the Article III, and

therefore the District Court dismissed the case under Rule 12(b)(1)

for lack of subject matter jurisdiction. Id.

The employers now appeal.


Although the Attorney General does not dispute that the

suit, if understood to be a facial challenge to the ESTL, is ripe

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for adjudication, we are obliged to determine ripeness for

ourselves. See City of Fall River v. FERC, 507 F.3d 1 , 6 (1st

Cir. 2007) (noting that "the question of ripeness may be considered

on a court's own motion" (internal quotation marks and citation

omitted)). And, after doing so, we hold, as the United States

contends as amicus, that this case, even if characterized as a

facial challenge, is not ripe and thus must be dismissed for lack

of jurisdiction.2


The "'basic rationale' of the ripeness inquiry is 'to

prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements'" in

violation of Article III's case or controversy requirement. Roman

Catholic Bishop of Springfield v. City of Springfield, 724 F.3d

78 , 89 (1st Cir. 2013) (quoting Abbott Labs. v. Gardner, 387 U.S.

136 , 148 (1967)). As the Supreme Court has put it, "the question

in each case is whether the facts alleged, under all the

circumstances, show that there is a substantial controversy,

between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a declaratory

judgment." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 , 127

2 We also acknowledge the helpful amicus briefs filed by the City of New York, et al., the Massachusetts AFL-CIO, the Public Health Advocacy Institute et al., and SEIU Local 32BJ, et al.

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(2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270 ,

273 (1941)).

In line with these principles, a claim is ripe only if

the party bringing suit can show both that the issues raised are

fit for judicial decision at the time the suit is filed and that

the party bringing suit will suffer hardship if "court

consideration" is withheld. McInnis-Misenor v. Me. Med. Ctr., 319

F.3d 63 , 70 (1st Cir. 2003) (quoting Abbott Labs., 387 U.S. at

149). In considering the fitness prong of the ripeness inquiry,

we have emphasized that a "claim is not ripe for adjudication if

it rests upon contingent future events that may not occur as

anticipated, or indeed may not occur at all." City of Fall River,

507 F.3d at 6 (quoting Texas v. United States, 523 U.S. 296 , 300

(1998)). In a similar vein, we have explained that "[t]he

conditional nature of the claims" strongly counsels against a

finding of hardship. McInnis-Misenor, 319 F.3d at 73.

The burden to prove ripeness is on the party seeking

jurisdiction. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18 , 25 (1st Cir. 2007). The pleading standard for satisfying

the factual predicates for proving jurisdiction is the same as

applies under Rule 12(b)(6) -- that is, the plaintiffs must "state

a claim to relief that is plausible on its face." See Román-

Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43 , 45 n.3, 49 (1st

Cir. 2011); Silha v. ACT, Inc., 807 F.3d 169 , 174 (7th Cir. 2015)

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(collecting cases from other circuits). In evaluating such claims,

we must separate out factual assertions from legal conclusions.

As the Court instructed in Ashcroft v. Iqbal, 556 U.S. 662 , 678

(2009), "the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice."

Our review for ripeness is de novo. Riva v. Massachusetts, 61

F.3d 1003 , 1007 (1st Cir. 1995) ("[A] trial court's determination

on a paper record that the case before it lacks ripeness presents

a question of law subject to plenary review.").


We start by considering whether the employers' pre-

enforcement request for relief against the Attorney General is fit

for judicial resolution. In contending that it is, the employers

acknowledge that they seek relief from ESTL actions that have not

yet been brought. But, they contend, Section 301 preemption would

block any such suit.3 Therefore, the employers contend that there

3 The complaint seeks generally a declaration that the ESTL "is preempted by Section 301." But, as we have suggested above, preemption in this context is a complex concept with varying consequences. See Livadas, 512 U.S. at 124 n.18. The complaint goes on, however, to seek preemption-based relief -- namely, that the Attorney General is "precluded from enforcing" the ESTL or authorizing suit to enforce the ESTL by aggrieved employees. That request for relief assumes that the consequences of preemption here would be to prevent any such ESTL suit from going to court. All the employers' briefing proceeds on a similar understanding of

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is no reason to wait to provide them the relief they seek because,

even at this early stage, the case is sufficiently developed to be

adjudicated. We do not agree.4

Unlike a typical claim of field preemption, a claim of

preemption under Section 301 that is lodged against a suit to

enforce a state-law cause of action, such as one granted by a

measure like the ESTL, does not involve "purely legal questions,

where the matter can be resolved solely on the basis of the state

and federal statutes at issue." Wis. Cent., Ltd. v. Shannon, 539

F.3d 751 , 759 (7th Cir. 2008). Rather, Section 301 preemption can

"defeat[]" a claim brought under the ESTL -- and thus support the

employers' request for relief in this case -- only if the specific

claim that is brought is determined to depend upon the provisions

of the CBA. Livadas, 512 U.S. at 125. But, as this case comes to

what preemption would entail. Accordingly, we decide the case on that basis. 4 We recognize, as the Court has recently explained, that "[t]he doctrines of standing and ripeness 'originate' from the same Article III limitation," and therefore that the ripeness analysis we undertake has commonalities with the injury-in-fact analysis we undertake when considering issues of standing. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 , 2341 n.5 (2014) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 , 335 (2006)). But, in this case, the parties have reasonably cast the jurisdictional issue as one that implicates ripeness, and, we note, the Seventh Circuit has applied the ripeness inquiry to evaluate Article III jurisdiction in the very similar case of Wisconsin Central, Ltd. v. Shannon, 539 F.3d 751 , 759 (7th Cir. 2008). We follow that same course.

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us, it is not sufficiently developed to be fit for such a claim-

specific preemption inquiry.

The Seventh Circuit's analysis of ripeness in the quite

similar preemption-based challenge presented in Shannon is

instructive. 539 F.3d at 759-61. There, the court considered an

employer's challenge to a state agency official's possible

enforcement of a state overtime law under the Railway Labor Act,

which has a preemption provision that operates in the same claim-

specific manner as does preemption under Section 301. See Shannon,

539 F.3d at 754-56; see also Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 , 260 (1994). Even in the somewhat more developed

state of that case, however, the Seventh Circuit held that the

claim was not fit for adjudication because the state agency's

investigation had not "progressed to a point where it [could] be

determined what dispute, if any, the parties [would] have over the

CBAs' terms," Shannon, 539 F.3d at 760, as there are "many

scenarios where CBAs may be implicated as part of a state or

federal cause of action, but preemption/preclusion of the claim

[would be] unnecessary," including situations "where reference to

the CBA is only necessary for computing damages," id. at 758.

If anything, the ripeness problem is even more acute

here. At this pre-enforcement stage, there is no particular claim

that has been identified at all. We thus cannot perform the

requisite claim-specific preemption analysis as to any claim that

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may be brought, as we have before us only hypothetical ESTL claims,

the details of which are not known.

To the extent that the employers contend that no details

about a particular ESTL claim need be known because all ESTL claims

are necessarily CBA-dependent, that contention is not supported by

facts alleged in the complaint. In so concluding, we may take as

true the questionable statement in the employers' complaint that

"[a]ny and all state law claims brought under the [ESTL] would

require a determination of the 'hourly rate' of a worker covered

by a [CBA]." But, even if we accept that contention, we do

not accept the further assertion in the employers' complaint that

all claims brought under the ESTL that require a determination of

an employee's hourly rate thereby trigger Section 301 preemption.

That contention is one of law, not fact, see Iqbal, 556 U.S. at

679, and it is plainly not sustainable.

For example, as the District Court rightly explained,

ESTL enforcement actions may turn on issues concerning "liability"

under the ESTL that are entirely independent of any CBA terms that

may govern the hourly rate of pay for an employee, Livadas, 512

U.S. at 125, such as whether an employer retaliated against an

employee for bringing an ESTL claim or whether an employee took

leave for a permissible purpose under the law. See Healey, 2015

WL 4508646 , at *7. Because the "liability" portion of the claim

in such actions would be "governed by independent state law," there

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would be "no reason to hold the state-law claim defeated by § 301"

in such cases, even if the need arose to "'look to' the [CBA]" to

calculate an employee's hourly rate under the ESTL for the purpose

of calculating his "damages." Livadas, 512 U.S. at 125; see also

Lingle, 486 U.S. at 413 n.12 (even where "federal law would govern

the interpretation of [a CBA] to determine the proper damages, the

underlying state-law claim, not otherwise pre-empted, would


Similarly, we may accept as true the questionable

allegation in the employers' complaint that all claims to enforce

the ESTL on behalf of unionized employees will require a court to

"determine whether the [ESTL] 'diminishes or impairs the

obligations of an employer to comply with any . . . [CBA] . . .

that provides to employees greater earned sick time rights'" than

the ESTL. But, even if we do so, it does not follow that ESTL

claims brought against the employers will depend upon the CBA.

Often, the Attorney General or an aggrieved employee will be

seeking relief under the ESTL that is plainly greater than the

relief afforded by the CBA. In such a case, liability under the

law is still determined by the ESTL and not the CBA, insofar as

Section 301 "cannot be read broadly to preempt nonnegotiable rights

conferred on individual employees as a matter of state law."

Livadas, 512 U.S. at 123. In other words, the "legal character of

[such] a claim" is still "'independent' of rights under the [CBA]"

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because the question confronting a court concerns whether the

employer, notwithstanding the CBA, has violated the ESTL. Id.5

As a result, the employers seek to have us adjudicate a necessarily

fact-dependent dispute about how an ESTL suit would relate to an

underlying CBA in advance of us having any actual claims that

present the facts that would be relevant to our assessment of that


To be sure, at some point, some action may be brought

under the ESTL against an employer who is a party to a CBA. And

such an action may even be brought by an aggrieved employee, who

is also a party to that labor agreement.6 In the event such a suit

5 It would seem likely that the employers would be the ones who would assert that some CBA-created obligation to provide greater benefits than those provided under the ESTL trumps the requirements of the ESTL. But the Court has made clear that a defense based on preemption under Section 301 may not be used to bring the underlying state-law claim into federal court. See Caterpillar Inc. v. Williams, 482 U.S. 386 , 398 (1987). For that reason, we question whether a federal court would even have jurisdiction to decide a case arising in this speculative posture. 6 Of course, the employers do also seek, in substantial part, advance relief from actions that would be brought by the Attorney General rather than by an aggrieved employee. But the Attorney General is not alleged in the employers' complaint to be a party to any CBA and thus would not appear herself to be bound by any CBA terms, including those mandating arbitration of disputes over its meaning. Cf. Waffle House v. EEOC, 534 U.S. 279 , 293 (2002) (holding that a private arbitration agreement between an employee and an employer could not bind a nonparty governmental agency, the EEOC, and thus that the agreement -- which was enforceable against the employee under the Federal Arbitration Act -- did not limit the types of remedies the agency could seek in an enforcement action it initiated under Title VII); see also Pruell, 645 F.3d at 83 ("[R]emoval and dismissal based on complete preemption under [Section 301] must start with a plaintiff covered by a CBA . . . ."

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is brought, we would know at that time the details of the actual

ESTL claim presented. We therefore would be well positioned to

assess whether that particular claim -- though predicated on the

ESTL -- nevertheless depended on a provision of the governing CBA.

And we would then also be able to determine whether, in

consequence, the actual claim brought should be dismissed in accord

with provisions in that CBA requiring that a dispute over its terms

be arbitrated or whether preemption requires instead that the claim

be addressed in some other manner. See Roman Catholic Bishop, 724

F.3d at 92 (withholding consideration on ripeness grounds of the

plaintiff's challenge to future applications of a city

preservation ordinance until the plaintiff "settled upon any plan

for future use of the property that would necessarily entail

changes to the [c]hurch's exterior" and thus trigger the

(emphases in original)). And the employers provide us with no insight into how Section 301 preemption would apply when a state- law claim arguably dependent on CBA interpretation is brought by a CBA nonparty to enforce rights of CBA parties. But, given the other problems that we have identified with finding this case to be fit for resolution at this time and that are present no matter which party brings an ESTL action, we need not decide how or whether Section 301 preemption might apply to an ESTL action brought by the Attorney General herself. We do note, though, that it would surely be better to make any such decision in the context of a real and concrete dispute rather than as to a hypothetical one. See id. at 85 (holding that it would be "unwise, even perhaps inappropriate" to consider whether state-law claims asserted on behalf of a putative class were preempted by Section 301 before learning whether the named plaintiffs were covered by CBAs and thus "whether any CBA [would be] implicated in claims asserted by the named plaintiffs").

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application of the ordinance). But no such suit has been brought,

and thus no such claim-specific inquiry can be made. We are

therefore asked to resolve a hypothetical and abstract dispute

rather than a real and concrete one. See McInnis-Misenor, 319

F.3d at 72 (holding that the plaintiff's claim was unripe because

it "depends on future events that may never come to pass, or that

may not occur in the form forecasted" and thus was "largely

hypothetical" (quoting Ernst & Young v. Depositors Econ. Prot.

Corp., 45 F.3d 530 , 537 (1st Cir. 1995))). Accordingly, we

conclude that this case does not satisfy the first prong of the

ripeness inquiry, as it is too contingent on as-yet-unknown

features of as-yet-unspecified claims to be fit for adjudication

at this time. See id. at 73; see also Shannon, 539 F.3d at 760.

Our analysis under the first prong of the ripeness

inquiry also dictates the outcome as to the second prong, which

concerns the harm to the parties seeking relief that would come to

those parties from our "withholding of a decision" at this time.

McInnis-Misenor, 319 F.3d at 73. Here, too, the analysis "focuses

on 'direct and immediate' harm. It is unconcerned with wholly

contingent harm." Id. (quoting W.R. Grace & Co. v. United States

EPA, 959 F.2d 360 , 367 (1st Cir. 1992)). As we have just explained,

this case fails to satisfy the first prong because it is contingent

on the details of future ESTL claims that are not now known. For

the same reason, the harm to the employers from any delay in having

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their case adjudicated is necessarily also contingent. See

Shannon, 539 F.3d at 761 (noting that the case did not present a

"circumstance where the [state agency's] investigation and

subsequent enforcement of the [s]tate's overtime laws would

invariably lead to a finding of preemption," and thus that the

hardship the plaintiff alleged -- the "need to defend itself in an

enforcement action ultimately [held to be] preempted due to the

need for an arbitrator, rather than a court, to interpret [] CBAs"

-- would not necessarily come to pass because any enforcement

action actually brought by the state agency might not necessarily

be preempted).7


Our focus on the claim-specific nature of Section 301

preemption also points the way to our resolution of the final issue

7 The hardship showing is especially uncertain as to any future ESTL claim brought by the Attorney General, even if any such claim were determined to depend upon the interpretation of a provision of the CBA. After all, because the employers do not allege that the Attorney General is a party to any such CBA, the actual preemptive effect of Section 301 on any such ESTL action is far from clear. See Waffle House, 534 U.S. at 293; see also Pruell, 645 F.3d at 83. Nor is the employers' hardship showing appreciably stronger as regards the request for relief against the Attorney General as to her role under the ESTL with respect to actions brought by aggrieved employees. The Attorney General does not appear to have any role in authorizing such actions beyond permitting them to be filed in court somewhat sooner than otherwise would be allowed by operation of the ESTL itself. See Mass. Gen. Laws ch. 149, §§ 148C(l) & 150. Withholding adjudication of this challenge, therefore, at most would appear to permit some as-yet- unfiled lawsuit by an employee -- which may or may not be preempted -- to be brought a few months earlier than it otherwise could be.

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that the employers raise. They contend that the District Court

erred in refusing to consider certain CBAs to which some of them

are parties and that had been attached to the employers' opposition

to the Attorney General's motion to dismiss. It is true that,

"[u]nder certain 'narrow exceptions,'" district courts may

consider "some extrinsic documents . . . without converting a

motion to dismiss into a motion for summary judgment." Freeman v.

Town of Hudson, 714 F.3d 29 , 36 (1st Cir. 2013) (quoting Watterson

v. Page, 987 F.3d 1 , 3 (1st Cir. 1993)). But the only exception

that is arguably applicable here -- for documents "central to

plaintiffs' claim" -- does not apply. Id. (quoting Watterson, 987

F.2d at 3).

The employers offer no persuasive explanation for how

the terms of the CBAs that the employers contend the District Court

wrongly failed to consider could, on their own, meaningfully

advance the preemption-based request for relief. The employers

therefore offer no account of how those CBAs are central to their

claim. The terms of those CBAs do not on their own suffice to

show that those CBAs can determine the outcome of the Section 301

inquiry without regard to the actual ESTL claim brought, nor do

the employers explain how the CBAs might do so. For that reason,

the preemption analysis in any actual enforcement action will

necessarily depend on the specifics of the actual ESTL claim that

is brought, even in a case in which one of the CBAs in question is

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operative. It is thus only once the specifics of an actual claim

are known that it will be possible to determine both how that claim

relates to the governing CBA and how that claim may implicate

Section 301 preemption. We therefore see no basis for reversing

the District Court's ruling regarding the CBAs in question, even

if we were to assume, favorably to the employers, that our review

of the District Court's ruling in this regard is de novo. See id.

at 36 n.5.


For these reasons, the suit is dismissed for lack of


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