Opposition Brief — Jackson v. Liquid Carbonic Corp.

| Se

FILED

vay 18 BOS

JOSEPH F. SPANIOL, JR.

No. 88-1586. . CLERK

In the |

Supreme Court of the United States.

OCTOBER TERM, 1988.

GEORGE JACKSON,

PETITIONER,

Vv.

LIQUID CARBONIC CORPORATION,

AND DAVID FARRELL anp BARRY MANUEL,

D/B/A INDUSTRIAL MEDICAL CENTER,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIOV4RI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brief of Respondent, Liquid

Carbonic Corporation in Opposition.

NORMAN HOLTz,*

SAMUEL LEITER,

HOLTZ AND GILMAN, P.C.,

274 Summer Street,

Boston, Massachusetts 02210.

(617) 426-1616

* Counsel of Record

May 18, 1989

BATEMAN & SLADE. INC. ind BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

se Does § 301 of the Labor

Management Relations Act, 29 U.S.C. §

185, pre-empt state-law privacy claims

asserted by a unionized employee after

his termination, when:

(a) the employee was employed as a

truck driver under a collective

bargaining agreement which authorized the

employer to issue reasonable rules and

regulations, and to require the covered

employees to undergo the periodic

physical examinations mandated by federal

highway safety laws; and

(b) the physical examinations

mandated under those laws required the

employees to furnish urine specimens for

urinalysis; and

ii

(c) the employer, in the exercise of

its contractual authority, and as a

condition of employment under the

agreement, prescribed a drug-screen for

the urine specimens furnished under those

pre-existing federal requirements; and

(d) the employee was terminated after

the prescribed drug-screen revealed the

presence of drugs in his urine; and

(e) the employee's union and

exclusive bargaining representative under

the collective-bargaining agreement did

not seek to arbitrate the employee's

claims under the grievance and

arbitration provisions of the

collective-bargaining agreement; and

(f) the privacy claims challenge the

iii

propriety and application of the

drug-screen.

Ze Does a federal court's

diversity-case ruling that § 301

pre-empts a state-law privacy claim

preclude the state from thereafter

determining the scope of its privacy law

with relation to claims of a similar

nature?

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES Vv

JURISDICTION 2

STATEMENT OF THE CASE

A. The Facts 4

B. Proceedings Below 7

SUMMARY OF ARGUMENT 13

REASONS FOR DENYING THE

PETITION

I. THE MAJORITY DID NOT

DEPART FROM THIS COURT'S

DECISIONS ON THE STANDARD

OF § 301 PRE-EMPTION LG

Il. THE MAJORITY DID NOT

DEPART FROM LINGLE ON THE

ISSUES OF WAIVER OR

WAIVABILITY 21

III. THE MAJORITY'S DECISION

DOES NOT RAISE ANY QUESTION

OF FEDERALISM 28

IV. THE MAJORITY'S DECISION

ACCORDS WITH THE SUBSTANTIAL

WEIGHT OF FEDERAL LAW ON

EMPLOYEE DRUG TESTING 36

CONCLUSION 45

Vv

TABLE OF AUTHORITIES

Cases

Page

Allis-Chalmers Corp. v Lueck,

471 U.S. 202 (1985) passim

Association of Western Pulp and

Paper Workers v. Boise Cascade

Corp.,

644 F. Supp. 183 (D. Or. 1985) 45

Bally v. Northeastern University,

403 Mass. 713, 532 N.E.2d 49

(1989) 36

Bi-Rite Enterprises, Inc. v.

Bruce Miner Co., Inc.

757 F.2d 440 (lst Cir. 1985) 34

Caterpillar Inc. v. Williams,

482 U.S. 386, 107 S. Ct. 2425

(1987) 30

City of Houston v. Hill,

107 S. Ct. 2502 (1987) 34

Commissioner of Internal Revenue

v. Bosch, 387 U.S. 456 (1967) Ja, wo

Horsemen's Benevolent and

Protective Association, Inc. v.

State Racing Commission,

403 Mass. 692, 532 N.E.2d 644

(1989) ae, Ber

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-1586

GEORGE JACKSON,

Petitioner,

Vv.

LIQUID CARBONIC CORPORATION,

and DAVID FARRELL and BARRY MANUEL,

d/b/a INDUSTRIAL MEDICAL CENTER,

Respondents.

BRIEF OF RESPONDENT

LIQUID CARBONIC CORPORATION

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

~

Defendant-Respondent Liquid Carbonic

Corporation ("L-Corp." ) opposes the

Petition for Writ of Certiorari filed by

Plaintiff-Petitioner George Jackson

("Jackson"). The Petition raises no

Significant legal issue, and misreads or

misapplies the governing decisions of

this Court.

JURISDICTION

This Court has jurisdiction under 28

U.S.C. § 1254(1). Removal jurisdiction

was asserted below under 28 U.S.C. § 1441

on grounds of diversity of citizenship

and requisite amount in controversy under

/

/

"App. 7a, 7la" refers to pages 7a

and la of the appendix to the Petition.

Similar references are used throughout

this brief.

STATEMENT OF THE CASE

A. The Facts

At the time of his dismissal by

L-Corp. in February, 1986, Jackson was

employed as a truck driver n° 2

bargaining unit of L-Corp. employees

covered by a collective-bargaining

agreement ("the Agreement" ) between

L-Corp. and a Local ("the Local") of the

Teamsters Union. As noted in the First

Circuit's majority opinion below,

Jackson's job was to haul "pressurized

gases ‘ ‘ - which were invariably

volatile [and] often hazardous." (App.

3a) During his ten years of employment

by L-Corp. (App. 2a), Jackson was

accordingly subject to the safety

regulations issued by the Federal Highway

Safety Administration of the United

States Department of Transportation.

These regulations mandated that covered

truck drivers submit to biennial medical

examinations which required, inter alia,

submission of urine specimens for

diabetes urinalysis. (App. 4a)

At all material times, the Agreement

empowered L-Corp. to issue "reasonable

rules and regulations, " and to require

the covered employees to undergo periodic

physical examinations. In addition, the

Agreement prohibited L-Corp. from

discharging employees except for "just

cause," and mandated arbitration of all

unresolved grievances. (App. 5a-6a,

74a-75a, 80a-82a)

In March, 1985, while the Agreement

was in effect, L-Corp. issued a directive

which added drug-screening to the

urinalysis already required of its truck

drivers under the federal program.

L-Corp. notified all the drivers’ that

their consent to the drug-screen was a

condition of continued employment.

Jackson consented, and neither he nor the

contracting Teamster Local challenged the

drug-screen at the time. (App. 4a-5a)

In January, 1986, Jackson took a

scheduled physical examination and

submitted a urine specimen, as he had

routinely done in the past on_- such

occasions. In February, 1986, L-Corp.

informed Jackson that the drug-screen of

his specimen had detected traces of

marijuana, and suspended him pending

retesting. A week later L-Corp.

discharged Jackson for the reason that

retesting had confirmed the presence of

drugs in his’ urine. (App. 5a, 74a)

Neither Jackson nor the Teamster Local

filed a formal grievance under the

Agreement against the discharge (App. 6a,

75a); mor have they ever attempted to

invoke any of the remedies available to

them under the Agreement, including

arbitration, against any action of

L-Corp. involved in this matter.

B. Proceedings Below

In December, 1986, Jackson commenced

an action for equitable relief and

damages against L-Corp. in the Middlesex

County Superior Court of Massachusetts.

The gravamen of the complaint was: (1)

that L-Corp.'s conduct constituted a

search and seizure of Jackson's urine in

violation of Mass. G.L. c. 12, § 11H-11I

,

("the Massachusetts Civil Rights Act"),

in that it breached his rights’ to

privacy, and to freedom from unreasonable

searches and seizures, as secured by the

state and federal constitutions; and (2)

that the alleged seizure and the testing

of the urine constituted an unreasonable

invasion of Jackson's privacy in

violation of Mass. G.L. Cc a.4, § 1B

("the Massachusetts Privacy act") .2/

( Jackson also Claimed relief on the

ground that his dismissal constituted a

wrongful discharge under Massachusetts

common-law; however, he did not appeal

from the District Court's dismissal of

this particular claim, see infra.) (App.

9a)

- The texts of the Massachusetts

Civil Rights Act, and the Massachusetts

Privacy Act, are set out at pages 3-5 of

the Petition.

L-Corp. removed the state-court

action to the United States District

Court for the District of Massachusetts

on grounds of diversity of citizenship

and requisite amount in controversy.

(App. 7a, 71a) (L-Corp. also originally

sought removal on the federal question

grounds that Jackson's action constituted

a suit for violation of a collective

bargaining agreement under § 301 of the

Labor Management Relations Act. Both the

District Court and the First Circuit

declined to address this basis of removal

jurisdiction. (App. 7a, n.2; 7la

On L-Corp.'s motion to dismiss,

treated as a motion for summary judgment,

the District Court granted summary

judgment for L-Corp. on all of Jackson's

Claims, including the wrongful-discharge

-i6-

Claim. The court held that all of these

claims necessarily implicated the terms

of the Agreement, and hence were

pre-empted by § 301 under the rule of

Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 213, 220 (1985). (App. 77a-83a)>/

In affirming the summary judgment,

the majority of the First Circuit's

three-judge review panel conducted an

extended analysis of the Massachusetts

Civil Rights and Privacy statutes, and

the decisions which the Massachusetts

Supreme Judicial Court ("SJC") had issued

thereunder to date. The majority found

that L-Corp.'s drug-testing plan did not

violate any right under either statute,

3/ The text of § 301 is set forth at

page 3 of the Petition.

=e

which was "presently established" and

existed independently of the Agreement.

(App. 29a, n. 3, emphasis supplied) The

majority found further that, if indeed

Jackson had any claim against L-Corp.

under either statute, it is based

on rights secured by [the] Agreement, and

must be pursued, therefore, only in the

arbitral forum." (Id. ) The majority

concluded that resolution of Jackson's

purported state law privacy claims

"'requires the interpretation of a

collective-bargaining agreement, '”" and

that Jackson's state-court action was

therefore pre-empted by § 301 under the

rule of Lingle v. Norge Division of Magic

Chef, Inc., 106 8. CSs, “O86 2eee, ree

(App. 55a) In support of its application

of the Lingle rule, the majority relied

-|12-

on Utility Workers Union of America,

AFL-CIO, Local No. 246, et al. Vv.

Southern California Edison Co., 852 F.2d

1083 (9th Cir. 1988), cert. denied No.

88-1180, March 20, 1989. (App. 4la-42a)

The dissenting opinion characterized

the majority's analysis of existing

Massachusetts Privacy law as a “guess,”

and held that the case should be remanded

to the state court for a determination of

the state law claims. (App. 59a, 69a)

Thereafter, the court denied

Jackson's petition for rehearing

(including a request for certification of

questions to the Massachusetts Supreme

Judicial Court concerning the two

statutes in issue), and suggestion for

rehearing en banc. (Petition at 24; App.

86a)

SUMMARY OF ARGUMENT

There is no merit to the contention

that the majority decision below

conflicts directly with the decisions of

this Court on the standard of § 301

pre-emption, and the waivability of

pre-empted state-law rights. (Petition

at 17-19, 28-34 This contention

misreads this Court's decisions, and

misrepresents the majority decision.

Contrary to the Petition at 19-28,

the majority decision raises no

federalism issue. The majority's

analysis of the existing state of

Massachusetts privacy law was an

appropriate exercise of the federal

court's well-settled authority to decide

state-law issues in diversity cases.

-14-

The majority's ruling would not preclude

Massachusetts from determining the scope

of its privacy law vis-a-vis employees

covered by collective-bargaining

agreements.

The majority's pre-emption ruling is

in accord with analogous cases from other

circuits. In addition, this Court has

recently denied certiorari in a case

which is identical with the case at bar.

Utility Workers Union of America,

AFL-CIO, Local No. 246, et al. v.

Southern California Edison Co., 852 F.2d

1083 (9th Cir. 1988), cert. denied No.

88-1180, March 20, 1989.

-15-

REASONS FOR DENYING THE PETITION

Be THE MAJORITY DID NOT DEPART FROM

THIS COURT'S DECISIONS ON THE STANDARD OF

§ 301 PRE-EMPTION.

A. In Lingle, this Court held that §

301 pre-empts a purported state-law claim

if the "pertinent principles of state law

require[] construing the relevant

collective-bargaining agreement." 108 s.

a at 1882, n.7. The Petition contends

that the majority flouted this rule by

finding only ". , - that petitioner's

state law claims were not yet so clearly

established by statute or judicial

explication" as to preclude analysis of

the Agreement. (Petition at 18-19)

The majority made no_ such finding.

It did acknowledge that Massachusetts

would be free in the future to endow

unionized employees with an "independent"

«the

right to be free from employer

drug-testing. (Age. 276, &.3)° But it

did not find, as the Petition suggests,

or even imply, that such action by the

state was in the offing. On the

contrary, it found that (1) no- such

independent right had been established,

as of the time of its decision, under the

state Civil Rights and Privacy statutes;

(2) the established rule for resolving a

workplace-privacy dispute under these

statutes was a balancing of the

employee's and the employer's respective

interests; and (3) the SJC would look to

collective bargaining agreements in

applying the balancing test in future

workplace drug-testing cases. (App.

15a-19a, 2la-29a, eB 46a) The last

finding was fully in keeping with the

=i7<

authority of the majority, as a federal

court sitting in diversity, to decide

unsettled state-law issues pending before

it.4/ b & constituted an integral

element of the state-law principles which

the majority determined. Based on these

principles, the majority concluded that

the requisite balance could not be struck

in the instant case without

interpretation of the Agreement. (App.

3la-4la). Hence, Jackson's claims were

pre-empted under Lingle. (App. 30a, 43a,

46a, 55a)

B. The Petiticn also contends that

the majority violated the Lingle rule, in

that (1) it found that Jackson's

state-claims were "'not necessarily

4/

— See further Part III infra.

=i Ba

independent of the labor contract,'"

whereas (2) the "proper test is not

whether state law claims are ‘not

necessarily independent’ of the

agreement, but whether they are

necessarily dependent on the agreement."

(Petition at 19)

Apart from this dubious wordplay,’

this contention misrepresents both the

established pre-emption standard and the

majority's decision. "Dependence" and

"independence" are merely the obverse

facets of the standard. This Court has

articulated the principle of § 301

pre-emption as "substantial dependence"

2/ This statement of the assertedly

"proper" test suggests that “Rot

independent of" and "dependent on" have

opposite or dissimilar meanings. But, if

anything, they are semantic equivalents.

=i Qo

on a labor contract. Lueck, 471 U.S., at

220-221, restated in Lingle, 108 S. Ct.

’

at 1881.- But it typically applies the

principle in terms of whether the

disputed state-claim is "sufficiently

independent" of the contract to escape

pre-emption. Lueck, 471, U.S., at

213-214. Lingle, 108 Ss. Ct., at

1881-1882.

The majority's approach incorporated

both aspects of the standard, with the

"dependence" principle as the point of

departure. (App. 13a-14a) In applying

the principle, it inquired whether, under

existing Massachusetts privacy law,

Jackson hada right, “independent” of the

Agreement, to be free from L-Corp.'s

drug-screen, in the absolute (i.e.

,

"necessary") sense of a constitutional or

o9H-

statutory prohibition of drug-testing.

It concluded that he did not. (App.

15a-30a, 34a-35a). It then inquired

whether Jackson had a "clearly

independent" right as a derivative of the

"pertinent principles" of Massachusetts

law. (App. 30a). In the context of the

balance-of-interest principle, the

majority said:

"The question for this court,

therefore, reduces to whether the

balance of interests between Jackson

and L-Corp. necessarily implicates

the Agreement in some _ substantial

sense."

(App. 30a -3la) Thus, the majority once

again invoked the "substantial

dependence" standard which the Petition

claims that it did not apply. And it

concluded that Jackson's claims were

"Clearly dependent" on the Agreement, and

iT we

thus pre-empted. (App. 54a)

C. There can be no doubt that the

majority scrupulously followed this Court

on the pre-emption standard. The

Petition's claim to the contrary is

patently false.

ii THE MAJORITY DID NOT DEPART FROM

LINGLE ON THE ISSUES OF WAIVER OR

WAIVABILITY.

A. Contrary to the Petition at

30-32, this Court did not decide in

Lingle either (1) that pre-emption and

waive! are separate issues in a § 301

pre-emption inquiry; or (2) that in

conducting such an inquiry, the federal

court must determine the waivability,

under state law, of state-claims that are

found not to exist independently of labor

contracts.

~~

In Lingle, the Court held that a

unionized employee's retaliatory-

Gischarge claim under ae state workers’

compensation statute was not pre-empted

under § 301, because it was based on a

right which was specifically created by

the statute and could be adjudicated

independently of the relevant labor

contract. 108 S. o. at 1882-1883,

1885. The rationale of this decision

reiterated the well-settled

nonpre-emptability of an individual

substantive right derived from "an

=23

independent body of law. In dicta,

the Court declined to decide "“[w]Jhether a

union may waive its members’ individual,

nonpre-empted state-law rights," a

question which the Court characterized as

"distinct from that of whether a claim is

pre-empted under § 301." 108 S. Ct., at

1883, n.9, emphasis on "nonpre-empted"

supplied. The Court added that, before

S&/ In Lueck, 471 U.S., at 213, n.8, the

Court said:

"In Alexander v. Gardner~Denver Co.,

San Osebe BO occ (1974), the Court

found that the NLRA conferred rights

‘on employees collectively to foster

the processes of bargaining,' Id., at

3 & and distinguished such rights

which could be waived by contract

between the parties, on the one hand,

from an individual's substantive

right derived from an independent

body of law that could not be avoided

by a contractual agreement, on the

other." (Emphasis supplied)

=24-

deciding that a state bar to waiver of

nonpre-empted state-claims could itself

be pre-empted, it would require clear

evidence that such waiver had been

intended. Id.

The dicta, on their face, applied

only to the waivability, and waiver, of

state-claims that are nonpre-empted

because they are found to exist

independently of a labor contract. This

is indeed a different question from

whether state-claims are dependent on a

labor contract, and thus pre-empted, in

the first instance.

AS to the latter issue, it is

well-settled that ”" ‘ . - State-law

rights that do not exist independently of

private agreements, and that as a result

can be waived or altered by private

oe

parties, are pre-empted by those

agreements." Lueck, S72.“ UscSs, Oe Bee.

emphasis supplied, and see tId., n.8,

referred to at n.6, supra. In this

sphere, waiver is not, as the Petition

erroneously urges, a separate issue from

pre-emption. It is rather an aspect of

the state-claim's dependency on the labor

contract which requires its pre-emption.

B. In specific reliance on this

teaching of Lueck, the majority below

found that Jackson's purported

state-claims depended to a great extent

on the concessions which his union might

have made to L-Corp. under the

Agreement. Thus, in the majority's view,

the scope of Jackson's

privacy-expectations would hinge on

»26e

whether the mandatory drug-screen was

a legitimate exercise of L-Corp.'s

managerial right to issue “reasonable

rules and conduct “required” physical

examinations. Since this determination

would necessarily entail interpretation

of the Agreement, Jackson's claims were

pre-empted und2r the rule of Lueck and

Lingle Apt 5a-3/a s9a-4la rhe

ma rity cited, at AprT 42a tne

The Petition erroneously

characterizes L-Corp.'s drug-testing plan

as “mandatory random Grug testing.”

(Petition at 31, emphasis supplied

Random ceSting inherently connotes a”.

program f testing at random of

persons withi: the class” covered by the

drug-test lirective. Horsemen's

Benevolent arn Protective Association,

Inc. v. State Racing Commission, 403

Mass. 692, 932 N.E.2d 644, 645 (1989

But L-Corp.'s plan applied to all member

of the bargaining unit as a condition of

continued employment. (App. 4a

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=28-

waivable by the union under Massachusetts

law. The Lingle dicta, supra, which the

Petition cites on the waivability issues,

and the authorities collected at p. 3l,

n.8 and p. 33, n.10 of the Petition, are

all inapposite, Since they apply only to

state-claims arising from independent

bodies of law, see n.6, supra.

Il. THE MAJORITY'S DECISION DOES NOT

RAISE ANY QUESTION OF FEDERALISM.

A. The Petition contends that the

majority's decision, if allowed to stand,

would lead to automatic removal on § 301

pre-emption grounds of any future state-

privacy claims similar to Jackson's, and

would bind the federal court on the

merits of the claims, thereby precluding

Massachusetts and its courts from ever

developing the scope of its privacy law

with relation to employee drug-testing.

(Petition at 22-23)

This confuses jurisdiction with

merits, and fails to grasp that, as this

Court has held, "§ 301 pre-emption

Says nothing about the substantive rights

a state may provide to workers’ when

adjudication of those rights does not

depend upon the interpretation of

[collective bargaining] agreements. '

Lingle, 1O8§ Ss. CS., at 1883. As the

Court opined, a state law could

conceivably cover only unionized workers

but remain unpre-empted if no collective-

bargaining agreement interpretation was

needed to resolve Claims brought

thereunder. i. at 1882, n.7. Thus

,

nothing in § 301 or the majority's ruling

a2.

below would bar Massachusetts in the

future from granting unionized workers

individual privacy rights against

drug-testing which were made clearly

independent of the interpretation of

collective-bargaining agreements. If the

state should do _ so, then state-court

actions grounded on such individual

state-rights would not be removable on §

301 pre-emption grounds. Caterpillar

Inc. v. Williams, 482 U.S. 386, 107 S.

Ct. 26259: S987). There is no basis for

the Petition's federalism claim.

B. Jurisdiction below was asserted

solely on diversity grounds. AS a

federal court setting in diversity, the

First Circuit review panel was obliged to

determine all the state-law issues

pending before it, including those which

-3)]-

had not as yet been settled by direct

decisions of the SJC. And, as to such

unsettled issues, the First Circuit was

obliged to predict what §

conscientiously believed the SJC would

find when confronted with them. Meredith

City of Winter Haven, 320 U.S. 228,

234-23/ (1943). Commissioner of Internal

Revenue v. Bosch, 387 U.S. 456, 464-465

(1967). In essaying such a prediction,

the First Circuit was entitled to

consider analogous decisions of the SJC,

scholarly works, and any other data

tending convincingly to show how the SJC

would decide the unsettled issues at

hand, taking into account the trends and

policies evinced by the relevant data.

Michelin Tires (Canada) L*d. v. First

National Bank of _Boston,

oe

F.2d 673, 682 (1st Cir. 1981). Wright,

Miller & Cooper, "Federal Practice and

Procedure," § 4507 (1988 ed.).

The body of the majority's opinion

discloses that it carefully and

conscientiously carried ouvt its mandate

as a diversity-court in predicting that

the SJC would bring collective-bargaining

agreements into play in deciding cases of

the instant nature. It is noteworthy

that the Petition does not challenge the

validity of any of the majority's stated

bases for this "confident" (App. 28a)

prediction. For instance, the Petition

does not challenge the majority's

conclusion that state privacy and

constitutional law generally track the

development of federal law. (Petition at

z1) It argues only that the majority's

mk

ruling has precluded Massachusetts from

ever making its own determination of the

matter. 26... at 22) However, this is

not the case, Since a diversity-court's

adjudication of unsettled state-law

issues does not bind the state's highest

court. Neu v. Grant, 548 F.2d 281, 283

(10th Cer. 1977). Given that the

Petition has advanced no convincing

reasons for questioning the majority's

findings, they are entitled to acceptance

by this Court. Bosch, supra, 387 U.S.,

at 464.

on The Petition requests this Court,

inter alia, to certify questions

concerning the state Civil Rights. and

Privacy statutes to the SJC. (Petition

at 23-27). However, it has advanced no

reason to believe that the First Circuit

erred in denying Jackson's prior request

=%4=

for such certification, see p. 12, supra.

Certification, where available, rests in

the sound discretion of the federal

court. Lehman Brothers’ v. Schein, 416

U.S. 386, 390-391 (1974). Where a

federal diversity-court feels that the

course which the state courts will take

is reasonably clear, as is the case here,

resort to certification is

inappropriate. City of Houston vy.

Hill, U.S. , 107 $.Ct. 2502, 2514

(1987). Bi-Rite Enterprises, Inc. vv.

Bruce Miner Co., Inc., 757 F.2d 440, 443,

n.3 (list Cir. 1985). Wright, Miller &

Cooper, "Federal Practice and Procedure, "

Supra, § 4248.

The Petition's request gains no

Support from the two drug-testing cases

which the SJC decided after the issuance

, '

f the ma rity 1eCc1ision. Petition at

‘| T H cm Or’ nr’ Y 2°) N E rd

i rl. norsemnen is IipIa, Sa Neo Ke f

AA 1 ; ' rem tes ~ . ss =

44 1989), involved a hallenge under

A + 4 ‘ . 1A £ i. } AA

nstitutior t a irug-testing program

piementea DY tne tate racing

nmission and does not address either of

the Massachusetts statutes at issue in

the instant ise. Id, at 648. The SJC

refused t find that mandatory,

without-cause irug-urinalysis of

race-track licencees was a reasonable

earch and seizure under the constitution

nerely because the racing industry is

i~avily regulated. It held that a

a: ry 7 ,-rmrictcranc 4% » 2 a@ _—

reasonadie needa t i ade Lie lcensees

urologic privacy had not been

liemonstrated. 532 N.E.2d at 650-652.

However, the noted that the case

presented no public safety issue, and

expressly reserved the result it would

reach if confronted with such a case.

Id, at 651, continuation of n. 3. Since

the instant case does present ds

substantial public safety issue, the

decision in Horsemen's obviously does not

warrant certification. This is even more

the case as to Bally v. Northeastern

University, 403 Mass. 713, 532 N.E.2d 49

(1989), also cited by the Petition in

this connection. The SJC construed the

state Privacy and Civil Rights statutes,

but in a context outside the scope of

private employment. Id, at 54.

IV. THE MAJORITY'S DECISION ACCORDS

WITH THE SUBSTANTIAL WEIGHT OF FEDERAI

LAW ON EMPLOYEE DRUG-TESTING.

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em yment t is this principle which

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! the najority found and the

etit loe not lispute, governs the

idjudicat f workplace-privacy

putes under Ma ichusetts law.

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tif at ror ntrusions on in

= workplace-privacy. In Skinner

Railway Labor Executives

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j Marcl y 189 thi Court held

that the irug-urinalysis mandated by

federal railroad-safety regulations for

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-44-

Agreement. As the majority found (App.

40a, 44a), the "reasonableness" of the

drug-screen could be tested only under

the grievance and arbitration provisions

of the Agreement, remedies which neither

Jackson nor his union attempted to

invoke. Therefore, following Utility

Workers, the majority concluded that the

Agreement was the sole source of the

elements of the state-law test for

resolving the asserted state-law claims;

hence the state-claims were pre-empted.

The majority's ruling, like the

identical ruling in Utility Workers,

accords with the substantial weight of

federal authority on § 301 pre-emption of

state tort claims by unionized employees

against employer-mandated drug-testing.

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

«484

(oan. CA. 1985). Laws v. Calmat, 852

F.2d 430 (9th Cir. 1988). Kirby v.

Allegheny Beverage Corp., 811 F.2d 253

(4th Cir. 1987). See Association of

Western Pulp and Paper Workers v. Boise

Cascade Corp., 644 F.Supp. 183 (D.Or.

1986)

CONCLUSION

The Petition has not raised any

special important reason for granting

review of the majority's decision in this

a =

case. Accordingly, the Petition should

be denied.

Respectfully submitted,

NORMAN HOLTZ

COUNSEL OF RECORD

HOLTZ AND GILMAN, P.C.

274 Summer Street

Boston, Massachusetts 02210

(617) 426-1616

SAMUEL LEITER

274 Summer Street

Boston, Massachusetts 02210

(617) 426-1616

Dated: May 18 , 1989