United States Court of Appeals 

For the First Circuit 

No. 15-1906 

LABOR RELATIONS DIVISION OF CONSTRUCTION INDUSTRIES OF 

MASSACHUSETTS, INC.; ASSOCIATED GENERAL CONTRACTORS LABOR 

RELATIONS DIVISION; BUILDING TRADES EMPLOYERS' ASSOCIATION OF 

BOSTON AND EASTERN MASSACHUSETTS; NEW ENGLAND MECHANICAL 

CONTRACTORS' ASSOCIATION; NATIONAL ELECTRICAL CONTRACTORS' 

ASSOCIATION; PLUMBING-HEATING-COOLING CONTRACTORS' ASSOCIATION 

OF GREATER BOSTON; BARLETTA ENGINEERING CORPORATION; CENTURY 

DRYWALL, INC., 

Petitioners, Appellants, 

v. 

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

Commonwealth of Massachusetts, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

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

Before 

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 
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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 

agreements." 

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 preenforcement relief is not ripe for adjudication no matter how it 
- 4 - 

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

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

I. 

 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. 

A. 

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 
- 5 - 

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. 
- 6 - 

B. 

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 
- 7 - 

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 

219. 

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-
- 9 - 

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

citation omitted).1

C. 

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))) 
- 10 - 

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 

agreements." 

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 
- 11 - 

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 
- 12 - 

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 

12(b)(6).

 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. 

II. 

 Although the Attorney General does not dispute that the 

suit, if understood to be a facial challenge to the ESTL, is ripe 
- 13 - 

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 

A. 

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. 
- 14 - 

(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 RománOliveras 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) 
- 15 - 

(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."). 

B. 

We start by considering whether the employers' preenforcement 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 
- 16 - 

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. 
- 17 - 

us, it is not sufficiently developed to be fit for such a claimspecific 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 claimspecific 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 
- 18 - 

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 
- 19 - 

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 

stand"). 

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]" 
- 20 - 

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 

relationship. 

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 . . . ." 
- 21 - 

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 statelaw 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"). 
- 22 - 

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 
- 23 - 

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 

III. 

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-yetunfiled lawsuit by an employee -- which may or may not be preempted 

-- to be brought a few months earlier than it otherwise could be. 
- 24 - 

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 
- 25 - 

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. 

IV. 

For these reasons, the suit is dismissed for lack of 

jurisdiction.