# Opposition Brief — Jackson v. Liquid Carbonic Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1107

## Text

| 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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er LI imstances Oo! nis

em yment t is this principle which

ieriie tne Dalance f-interests test

! the najority found and the

etit loe not lispute, governs the

idjudicat f workplace-privacy
putes under Ma ichusetts law.

Morse e! the highly regulated

iracte! f industry and the nature

t AA. 4 -y T) ne
tif at ror ntrusions on in
= workplace-privacy. In Skinner
Railway Labor Executives
; it 4 IER Cases
j Marcl y 189 thi Court held
that the irug-urinalysis mandated by
federal railroad-safety regulations for
I vate rail I id employees Was a

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1119%3A2. Public record. Not legal advice.