Opposition Brief — Utility Workers Union v. Southern California Edison Co.

OF ER

Supreme Court, U.S,

MEIEED

2 '] FRB 16 1989

JOSEPH F. SPANIOL, JR,

No. 88-1180 ecient

In the

Supreme Court of the United States

October Term, 1988

4—

UTILITY WORKERS UNION OF AMERICA,

AFL-CIO, LOCAL NO. 246, and ALAN ROOK,

Petitioners,

V.

SOUTHERN CALIFORNIA EDISON COMPANY,

Respondent.

~

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS

FOR THE NINTH CIRCUIT

>

Charles R. Kocher

John W. Evans

Mark E. Mikulka*

2244 Walnut Grove Avenue, Suite 349

Rosemead, California 91770

Telephone: (818) 302-3272

Attorneys for Respondent

Southern California Edison Company

*Counsel of Record

QUESTIONS PRESENTED

1. Whether state law claims for invasion of privacy of union

employees working at a nuclear generating station are

preempted by Section 301 of the Labor Management Relations

Act, 29 U.S.C. § 185, when:

(a) the collective bargaining agreement recognizes the em-

ployer’s right to manage the nuclear power plant, to direct

the working force and to implement reasonable safety

rules and require their observance; and

(b) the claims challenge the propriety of a drug screen

urinalysis implemented as a term and condition of em-

ployment by the employer under its contractual authority

to manage the facility and implement safety and work

rules; and

(c) the union has filed a grievance over the implementatior

of the drug screen.

2. Whether the Ninth Circuit’s decision is in conflict with the

Sixth Circuit’s decision in Smolarek v. Chrysler Corp., 858 F.2c

1165 (6th Cir. 1988).

il

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

JURISDICTION

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

REASONS FOR DENYING THE PETITION

CONCLUSION

lll

10

a — ~

ili

TABLE OF AUTHORITIES

Cases

Allis-Chalmers Corp. v. Lueck,

Pog Gh Re 1) .) ne

Association of Western Pulp and Paper Workers

v. Boise Cascade Corp., 644 F.Supp. 183 (D. Or. 1986)

Caterpiller Inc. v. Williams,

482 U.S. 386, 107 S.Ct. 2425, (1987)

International Brotherhood of Electrical

Workers v. Hechler, 481 U.S. 851 (1987)

Jackson v. Liquid Carbonic Corp.,

863 F.2d 111 (1st Cir. 1988)

Kirby v. Allegheny Beverage Corp.,

811 F.2d 253 (4th Cir. 1987)

Lingle v. Norge Division of Magic Chef, Inc.,

486 US. , 108 S.Ct. 1877 (1988)

McDonell v. Hunter, 809 F.2d 1302

ES So a

People ex rel. Franchise Tax Board v. Superior Court,

164 Cal. App.3d 526, 210 Cal. Rptr. 695 (1985)

Price v. PSA, Inc., 829 F.2d 871 (9th Cir. 1987),

cert. denied, 108 S.Ct. 1732 (1988)

Rushton v. Nebraska Public Power District,

844 F.2d 562 (8th Cir. 1988) .

Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.),

cert. denied, 479 U.S. 986 (1986)

Smolarek v. Chrysler Corp., 858 F.2d 1165

(6th Cir. 1988)

Strachan v. Union Oil Co., 768 F.2d 703

(5th Cir. 1985)

Page(s)

8, 9, 10

TABLE OF AUTHORITIES

(Continued)

Cases

Constitutions and Statutes

California Constitution

Article I Section 1

Section 13

Labor Management Relations Act

Section 301 (29 U.S.C. § 185)

National Labor Relations Act

Section 8(a)(1) (29 U.S.C. § 158(a)(1))

Section 8(a)(5) (29 U.S.C. § 158(a)(5))

28 U.S.C. § 1254(1)

28 U.S.C. § 1441

Rules

Federal Rules of Civil Procedure, Rule 54

Supreme Court Rule 17

Secondary Authority

Restatement (Second) of Torts § 652B (1977

Page(s)

NN

passim

NN

N

ooo

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

—_@—

Ne. 88-1180

—+

UTILITY WORKERS UNION OF AMERICA,

AFL-CIO, LOCAL NO. 246, and ALAN ROOK,

Petitioner:

v.

SOUTHERN CALIFORNIA EDISON COMPANY,

Responden

—>

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

—

Defendant-Respondent Southern California Edison Compan

(“SCE”) opposes the petition for writ of certiorari filed by Plaintiff:

Petitioners Utility Workers Union of America, AFL-CIO, Loc

No. 246, and Alan Rook (collectively referred to herein as “Loc

246”). No significant legal issue is presented by the petition an

Local 246 misapprehends governing case authority of this Cou

and the circuit courts.

JURISDICTION

Jurisdiction is based on 28 U.S.C. § 1254(1) for review t

writ of certiorari. Jurisdiction below was invoked pursuant —

Section 301 of the Labor Management Relations Act, 29 U.S.C.

185 (“Section 301”) and 28 U.S.C. § 1441.

STATEMENT OF THE CASE

In its petition, Local 246 sets forth a “Statement of the Cas

which purports to relate the facts and procedural history of t!

instant matter. SCE respectfully submits the following statement

of the case, which describes the seminal history of this dispute

and corrects several significant inaccuracies in the petition.

As the operator of the San Onofre Nuclear Generating Station

(“SONGS”), SCE has implemented several personnel screening

devices for controlling access to the “Protected Area” at the

station, a security area encompassing the nuclear reactors and to

which access is strictly governed. No worker is permitted

unescorted access to the Protected Area until a comprehensive

background investigation and psychological evaluation have

been completed. Additionally, all individuals — including those

represented by Local 246 — are searched upon entry into the

Protected Area.

In September 1984 a drug screen urinalysis was put into

effect without prior negotiations with Local 246, which thereafter

filed a grievance asserting that the implementation of the drug

screen was not authorized by the applicable Collective Bargaining

Agreement between Local 246 and SCE. In addition, Local 246

filed a charge with the National Labor Relations Board (“NLRB”)

alleging that SCE’s unilateral implementation of the drug screen

program was an unfair labor practice in violation of Section

8(a)(1) and 8(a)(5) of the National Labor Relations Act (““NLRA”),

29 U.S.C. §§ 158(a)(1) and 158(a)(5). The NLRB deferred the

charge to arbitration and Local 246 did not pursue the matter or

otherwise challenge SCE’s actions in court. (App.3a-4a.)!

Approximately two years after this drug screen was first

implemented, SCE made certain changes in its administration,

including modification of the test schedule so that the nuclear

workers would not know the annual test date well in advance.

On December 8, 1986, Local 246 filed a grievance asserting that

this modification violated the Collective Bargaining Agreement.

(App.4a.)

Despite the fact that it had grieved the implementation of

the modified drug screen, Local 246 filed this action in state

court on December 10, 1986, alleging a breach of contract under

Section 301 as well as violations of the California Constitution,

Article 1, Sections 1 and 13, which confer a right of privacy and

freedom from unreasonable search and seizure. The state court

‘App.3a-4a” refers to pages 3a-4a of the appendix to the petition. Similar

references are used throughout this brief.

issued a temporary restraining order on that date. SCE remove

the case to federal court. (App.4a.) After the parties submitte

several briefs on the issues of pendent and subject matt

jurisdiction, the district court issued an order dismissing the fir

three causes of action of the underlying complaint on the grour

that the state law claims asserted therein were preempted |

federal law. Because Local 246 had not exhausted the grievan

and arbitration procedures, the state law causes of action we

not cognizable under Section 301. (App.14a-15a.)

The district court found that it had concurrent jurisdictic

with the NLRB over the remaining Section 301 cause of actic

and issued a preliminary injunction in aid of arbitration —

despite the concomitant findings that Local 246 would not suff

irreparable harm if the drug screen were implemented and th

the parties’ Collective Bargaining Agreement provided th

grievances be arbitrated in chronological order. (App.17a-20a.

After the district court certified the order dismissing t

state law claims pursuant to Rule 54 of the Federal Rules of Ci

Procedure, both parties filed appeals to the rulings adverse

them. The Ninth Circuit determined that Local 246’s state le

privacy claims were substantially dependent upon analysis

the Collective Bargaining Agreement and constituted a prof

negotiable subject for collective bargaining. (App.6a.) The cot

specifically noted that resolution of the claimed state li

violations rests upon Articles VI and X.N of the Collecti

Bargaining Agreement, which recognizes SCE’s right to mana

the plant, to direct the working force and to implement a

enforce reasonable safety rules. In light of the fact that resoluti

of Local 246’s claims required reference to and reliance on t

Collective Bargaining Agreement, the Ninth Circuit upheld t

dismissal of the state constitutional law claims.’ (App.6a-8a.) T

Ninth Circuit denied Local 246’s request for rehearing en ba

(App.12a.)

2? The Ninth Circuit also held that the district court should have dismissed

Section 301 claim itself in light of Local 246’s failure to comply with availe

grievance procedures. It also concluded that the district court erred in issu

a preliminary injunction against implementation of the drug testing prog)

pending arbitration. Local 246 contests neither of these holdings by

Ninth Circuit. (Petition at 3-4 n.2.)

SUMMARY OF ARGUMENT

This case presents no issue which would warrant granting

the petition for writ of certiorari. Local 246’s assertion that the

Ninth Circuit departs from this Court's rulings in Caterpillar Inc.

v, Williams, 482 U.S. 386, 107 S.Ct. 2425 (1987), and Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. _, 108 S.Ct. 1877 (1988),

is based on a fundamental misreading of those cases. In addition,

Local 246’s argument that the Ninth and Sixth Circuits are in

conflict is wrong: the Sixth Circuit case cited by Local 246 is in

total harmony with relevant Ninth Circuit authority. The Ninth

Circuit's ruling in this case was based on long-standing and

unequivocal case authority, including this Court's rulings. It was

soundly reasoned, is in accord with analogous cases from other

circuits and provides no basis for scrutiny by this Court.

REASONS FOR DENYING THE PETITION

Supreme Court Rule 17 sets forth a detailed list of reasons

for granting review on writ of certiorari and also states that

review is granted “only when there are special and important

reasons therefor.” None of the reasons for granting review

enumerated by Local 246 obtains in this case, nor are there any

other “special and important reasons” for granting review on

writ of certiorari

First, Local 246 has persisted in both misplaced reliance on

Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425 (1987), and

a fundamental misreading of the case. Caterpillar sets forth the

standard for removal under Section 301, and the propriety of

removal is not and has never been at issue in this case. Local

246's discussion of the “complete preemption” doctrine and

defensive” preemption is immaterial to the instant dispute.

Contrary to Local 246's assertion, neither the Ninth Circuit

nor the Supreme Court in Caterpillar reached the issue of whether

the state law claims asserted in that case were preempted by

As Local 246 concedes in its petition, the underlying complaint contained a

cause of action for breach of the Collective Bargaining Agreement under

Section 301, thus. removal was appropriate on the face of the complaint

irrespective of the nature of the state law claims (Petition at 3-4.)

federal labor law. Both courts held simply that removal w

improper because on the face of the complaint the claims we

grounded in state, not federal law, and did not constitute “artful

} pleaded” Section 301 claims. The substantive preemption questic

was expressly reserved by both the Ninth Circuit (786 F.2d 92

937 (9th Cir. 1986)) and the Supreme Court on review (482 U.

at__n.13, 107 S.Ct. at 2433 n. 13). Caterpillar itself, then, mak

clear that the merits of the preemption issue, i.e., whether sta

claims are extinguished by federal law, is an issue distinct fro

the issue of the jurisdictional basis of their removal to feder

court. See also Price v. PSA, Inc., 829 F.2d 871 (9th Cir. 1987), cei

denied, 108 S.Ct. 1732 (1988).

Local 246 asserts that like the plaintiffs in Caterpillar,

“chose” not to rely on the applicable Collective Bargainir

Agreement but on state law. (Petition at 4-5.)* Caterpillar is whol

distinguishable. In that case, the plaintiffs alleged breach |

individual employment agreements made when plaintiffs we

non-union employees, outside the aegis of the bargainir

agreement. For purposes of removal, this Court determined th

the state law claims were neither grounded in the agreeme

nor substantially dependent on analysis of the agreement f

their resolution. Critical to this Court’s decision was the fact th

the claims raised did not address or require any interpretatic

of the relationship between the alleged individual contracts ar

the collective bargaining agreement. 482 U.S. at __, 107 S.¢

at 2431. The labor agreement in that case would come into pl.

only in defense of the state law wrongful discharge claims. |

at _, 107 S.Ct. at 2432.° Here, of course, as the district cou

and the Ninth Circuit correctly found, SCE’s right to impleme

and later modify a drug testing program is mandated by t

Collective Bargaining Agreement itself and resolution of t

state law claims necessarily requires consideration of the Colle

tive Bargaining Agreement.

-

Local 246’s assertion is not accurate. Local 246 did choose to rely on |

Collective Bargaining Agreement when it fashioned its state court complai

It sued SCE for breach of contract (the Collective Bargaining Agreeme

and sought an injunction pending arbitration under the Collective Bargaini

Agreement.

> Again, this Court in Caterpillar neither decided the substantive preempt

issue nor did it suggest that all allegations of preemption under Section

are “defensive” as Local 246 seems to suggest. See Allis-Chalmers Corp. v Luc

471 U.S. 202 (1985).

Although Local 246 has labeled the claims “constitutional”

violations, the challenge is to the conduct of SCE undertaken

under the authority of the parties’ Collective Bargaining Agree-

ment. Article X.N. of that Agreement requires SCE to provide

for the safety of its employees and grants to SCE the right to

promulgate and enforce “reasonable” safety rules. Additionally,

Article VI, the management rights clause, reserves to SCE the

broad right to manage and direct the plant and its employees.

(App.6a.) If Local 246 objects te SCE’s exercise of its rights under

these or any other provisions of the Collective Bargaining

Agreement, this claim may be pursued through the grievance

procedure to binding arbitration by virtue of Articles IV and V.

Such a challenge may ultimately resolve whether an action

undertaken by SCE — such as the modification of its drug testing

program at SONGS — is an unreasonable exercise of management

discretion, an unreasonable safety or work rule or an unreasonable

intrusion upon its employees. In recognition that the grievance/

arbitration procedure provides the appropriate forum for resolv-

ing such employer/employee issues, Local 246 filed a grievance

protesting the initial drug test requirement and is pursuing it

through arbitration. A grievance was also filed under the

grievance /arbitration provisions of the Collective Bargaining

‘Agreement in connection with the December 1986 modification

at issue here.

Thus, even Loca! 246 recognizes that SCE’s claim of right

derives from the Collective Bargaining Agreement and any

challenge to that right is governed by that Agreement. Accord-

ingly, as the district court and Ninth Circuit determined, Local

2406's state law “constitutional” claims are preempted by Section

301, a ruling totally compatible with this Court's opinion in

Caterpillar.

Similarly, The Ninth Circuit opinion does not conflict with

this Court's ruling in Lingle. In Lingle, in fact, this Court reaffirmed

that Section 301 jurisdiction obtains where plaintiffs’ claims can

be resolved only by reference to the terms of a collective

bargaining agreement. In that case, which involved a claim of

retaliatory discharge based on the state workers’ compensation

statute, no reference to the parties’ bargaining agreement was

necessary. Illinois law provided that protection from retaliatory

discharge is non-negotiable and applies to both union and non-

union employees. Well established pertinent principles of Illinois

2 ADDO A Ne Oat

NE HE

law would not require a court to construe the collective bargaining

agreement. 486 US. at , 108 S.Ct. at 1882-83.

In this case, however, both the claim that drug testing violates

union employees’ right to privacy and the claim that such testing

is an unconstitutional search and seizure necessarily depend for

their resolution on an analysis of the Collective Bargaining

Agreement. As Local 246 itself concedes, state law privacy rights

are not absolute. (Petition at 4.) Such claims have at their core

the individual’s right to be free of objectively unreasonable

searches or intrusions. See RESTATEMENT (SECOND) OF TORTS §

652B (1977); People ex rel. Franchise Tax Board v. Superior Court, 164

Cal. App.3d 526, 540-41, 210 Cal. Rptr. 695, 703-04 (1985) (basic

test of whether California’s constitutional right of privacy has

been violated “is whether a person’s personal and objectively

reasonable expectation of privacy has been infringed by unrea-

sonable governmental! intrusion”). Regardless of the state law

label attached to the claims, the reasonableness of SCE’s drug

test program at SONGS and the privacy expectations of its

employees are a function of Articles VI and X of the Agreement

which recognize SCE’s right to manage the plant, direct the

working forces, and implement reasonable safety requirements.

Employee privacy at SCE is not independent of the Collective

Bargaining Agreement but, instead, is defined by it.

Privacy rights do not exist in a vacuum nor are they devoid

of variance. It is clear that the “reasonableness” of both the

expectation of privacy and the intrusion depends on the circum-

stances. There is no “fixed” standard. Even if a state privacy

right itself could not be “waived,” the expectation of privacy

may certainly be altered. Under federal constitutional provisions

similar to the ones relied on by Local 246, the highly regulated

character of an industry and the nature of the work place may

affect the expectation of privacy by an employee and the

justification for the intrusion. See, e.g., Rushton v. Nebraska Public

Power District, 844 F.2d 562 (8th Cir. 1988) (random drug testing

of employees at publicly-owned nuclear power plant upheld);

Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S.

986 (1986) (random drug testing of horse racing jockeys upheld)

and McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (random

urine screens of prison correctional officers upheld). Thus, the

extent of a “right to privacy” in the workplace is dependent on

the circumstances of employment.

One of the obvious “circumstances” of employment here

extant is that there is a Collective Bargaining Agreement,

negotiated with an employer engaged in a highly regulated and

safety-conscious industry which, by virtue of the safety and

management rights clauses, may delimit an employee's expectation

of privacy. It is clear that objective “reasonableness” is at the

core of incursions on an employee's privacy, and that the

determination of “reasonableness” is properly a function em-

braced in the Collective Bargaining Agreement. Particularly

where, as here, an employer has the right to impose reasonable

safety or work rules, the reasonableness of such requirements

must be tested by the grievance and arbitration provisions

contained in the Collective Bargaining Agreement. See Strachan

». Union Oil Co., 768 F.2d 703 (5th Cir. 1985); Kirby v. Allegheny

Beverage Corp., 811 F.2d 253 (4th Cir. 1987); Jackson v. Liquid

Carbonic Corp., 863 F.2d 111 (1st Cir. 1988), discussed infra. As

noted, Local 246 clearly recognizes this maxim of labor law; it

has filed a grievance alleging that the drug screen violates the

Collective Bargaining Agreement. Thus, it was entirely proper

for the district court and@ Ninth Circuit to find that the state law

privacy claims were preempted by and governed by Section 301.

Local 246’s preoccupation with_the issue of “waiver” is

prompted by misplaced reliance on dicta in Lingle. In footnote

9 the Court refused to decide whether a union could waive

non-preempted state law rights (such as protection from retal-

iation for filing a workers compensation claim in that case) but

noted that such waiver would require clear evidence of an intent

to waive those rights. 486 U.S. at__in.9, 108 S.Ct. at 1882 n.9.

As noted, however, the Lingle case involved non-negotiable, state

law rights which did not depend on a collective bargaining

agreement for their enforcement, i.c., as it clearly stated in

footnote 9, the Court was addressing waiver of non-preempted

state law rights. As to claims such as the state law privacy claims

in this case, which, because of the very nature of the claims,

depend for their resolution on the contents and interpretation

of a collective bargaining agreement, the claims are preempted

and the footnote is irrelevant. It is one thing to possess an

absolute right to bring a lawsuit in retaliation for filing a workers

compensation claim, which the state courts have determined to

be non-negotiable (the case in Lingle) and quite another to possess

a right such as the privacy protection claimed herein, which, as

Local 246 concedes, is not absolute and the nature and scope of

which depend substantially on the parties’ Collective Bargaining

Agreement.

his

Nig

Lotal 246 has simply missed the thrust of the Lingle case.

This Cour affirmed that its decision “should make clear that

interpretation of<qllective bargaining agreements remains firmly

in the arbitral realm; judges can determine questions of state law

involving labor-managementyelations only if such questions do

not require construing collective aining agreements.” Id. at

at , 108 S. Ct. at 1884. See also Allis=Ghalmers v. Lueck, 471

U.S. 202 (1985); International Brotherhood of Electric#Workers v.

Hechler, 481 U.S. 851 (1987).

Finally, there is no conflict among the Circuit courts. Local

246’s attempt to create such a conflict based on Smolarek v. Chrysler

Corp., 858 F.2d 1165 (6th Cir. 1988) is unavailing. In its own

brief, in fact, Local 246 notes that the Ninth Circuit has concurred

with the Smolarek holding that a union employee’s claims based

on state anti-discrimination statutes are not pre-empted by Section

301. (Petition at 20-21 n.13). The instant case has nothing

whatsoever to do with state anti-discrimination laws.

Local 246 also fails to point out to this Court that the Ninth

Circuit's ruling is in total harmony with analogous cases from

the Fourth and Fifth Circuits and, most recently, the First Circuit.

In Strachan v. Union Oil Co., 768 F.2d 703 (5th Cir. 1985), two

union employees suspected of on-duty drug use were suspended

and later reinstated after drug tests proved negative. Both filed

grievances over the company’s action and, in addition, filed a

court action alleging state tort claims which, like Local 246’s

claim herein, included invasion of privacy. One of the employees

claimed that he was forced to submit to searches of his person

(blood and urine testing), his automobile and his locker. Id. at

705. The Fifth Circuit rejected the notion that the invasion of

privacy claim was a claim independent of the collective bargaining

agreement:

These various claims by the appellants demonstrate

clearly an attempt to create major state court claims out

of matters which are all part of a company claim of

right under a collective bargaining agreement, and the

employee's right to challenge such claims through

grievance procedure ending in binding arbitration. /d.

The Fifth Circuit determined that Section 301 preempted the

invasion of privacy claims and stated that if the plaintiffs wanted

to challenge the drug testing program, the “obvious remedy”

was to refuse the searches and file a grievance if disciplinary

action was taken, and thereby test the reasonableness of the

10

searches. To hold otherwise would destroy “the critically im-

portant aspect of collective bargaining which is involved in the

establishment of the grievance procedure to protest breaches of

labor contracts. .. .” Id. Accord; Kirby v. Allegheny Beverage Corp.,

811 F.2d 253 (4th Cir. 1987) (state law privacy claim based on

employer's requirement that employee suspected of illegal drug

use undergo search of person and automobile was preempted by

Section 301); Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1st Cir.

1988) (since resolution of union employee's claim for invasion

of privacy under state law following the failure of an employer-

ordered drug test could not be made without interpreting a

collective bargaining agreement claim was preempted under

Section JUL) Assucimtisnof Western Puly and Paper Workers v. Boise

Cascade Corp., 644 F.Supp. 183 (D. Or. 1986) (claim alleging that

an employer's alcohol and drug testing program violated em-

_ployees’ common law right of privacy preempted by Section

301). Thus, no conflict exits among the Circuit courts.

—+

CONCLUSION

Local 246 has raised no “special and important” reason in

its petition to justify granting review of the Ninth Circuit's

decision in this case. Accordingly, the petition should be denied.

Dated: February 16, 1989.

Respectfully submitted,

Charles R. Kocher

John W. Evans

Mark E. Mikulka

By

Mark E. Mikulka

Attorneys for Respondent

Southern California Edison

Company