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
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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.
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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).
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● 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 
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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.
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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.
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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 

 

2 Though 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.
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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 
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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 
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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 statelaw 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).
- 11 -

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 
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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

 

4 This standard does not necessarily apply to interpretation 

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., 
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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).
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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 

 

5 In 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.
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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, 
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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.
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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.
- 18 -

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. 
- 19 -

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.
- 20 -

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 
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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 
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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 
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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 
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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 
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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.