Petition for Writ of Certiorari — Stikes v. Chevron U. S. A., Inc.
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vA FILED
90-14 31
No. 90- MAR 12 199]
OhrOE—OF THE CLERK
In the
SUPREME COURT OF THE UNITED STATES
October Term, 1990
DAVID STIKES, an individual, on behalf of himself
and all other persons similarly situated,
Petitioners,
Vv.
CHEVRON U:S.A., INCORPORATED, a Pennsylvania
Corporation; and DOES 1 through 50, inclusive,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Paul Alan Levy Robert N. Jacobs
(Counsel of Record)
Alan B. Morrison _ Suite 25A
12240 Venice Boulevard
Public Citizen Los Angeles, CA 90066
Litigation Group (213) 397-6693
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 833-3000
Attorneys for Petitioners
March 12, 199]
QUESTIONS PRESENTED
1. May an employer whose employees are governed by
a collective bargaining agreement (“CBA”) remove the state
law privacy claim of a discharged employee to federal court,
thereby preventing the state court from construing the appli-
cable state law, on the ground that the state law claim may be
preempted by the CBA and section 301 of the Labor-Man-
agement Relations Act (“LMRA”’), because the CBA argua-
bly waives the privacy rights of the employee?
2. Does the mere existence of a CBA, regardless of its
content, which the employer contends undercuts or defeats
the state law privacy claim by a discharged employee, wholly
preempt the state claim so that a court may dismiss the claim
without determining either the relevance of the CBA to the
claim under state law, or the actual way in which the CBA
applies tothe specific conduct that forms the basis of the state
law claim?
*
PARTIES BELOW
All parties in the lower courts are identified in the
caption.
TABLE OF CONTENTS
Page
Questions Presented «.............00000. a enasiagaluaieksieaeamadienasedin l
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Statutory and Constitutional sires Involved ............. 2
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Be IN ccstnensicceasas SSA sindceiceoseinicadaiblstinbbanadinsadatcibatl 3
B. The California Law of Privacy .............ccceseeeceees 4
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REASONS FOR GRANTING THE WRIT .......ccccc00. 10)
The Decision Below Conflicts With Decisions ot
This Court and of Other Circuits, and Presents
Extremely Important Questions of Federalism. 0.0.0.0... 10)
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Conclusion .occcccccccccce. ae eee ee ee Er ye *4
IV
TABLE OF AUTHORITIES
Cases Page:
AFL v. Watson,
B27 U.S. SRZ ( 1DAG) oncrececccsesescerrsesscsrsccnnsecessesnsncnnanencncnes 19
Allis-Chalmers Corp. v. Lueck,
AT1 US. 202 (1985) .....ccccscrcsccceccccsscscssssscsssssensesesssesrsnenes 20
Bartling v. Superior Court,
163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984) ........ 5
Brown v. Holiday Stationstores,
723 F. Supp. 396 (D. Minn. 1989) .........ccesseceeneseeeneens 22
Caterpillar v. Williams,
482 U.S. 386 (1987) ........ccccccccseesccssessensnssesesensesnes passim
City of Santa Barbara v. Adamson,
27 Cal. 3d 123, 610 P.2d 456 (1980) .........cccceceeseeeeeeees 5
Coppinger v. Metropolitan North,
861 F.2d 33 (2d Cir. 1988) ........ccccceseceeeensnensenencessenees 6
Cutter v. Brownbridge,
183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (1986) ........ 5
Deborah C..,
30 Cal. 3d 125, 635 P.2d 446 (1981) ......cccccceeeeeseeeeeesees 6
* Dougherty v. Parsec,
872 F.2d 766 (6th Cir. 1989) ......cccceeeeneneen 23
ee
Druker v. Sullivan,
SSB FBG 1Z72 ( Bat Civ. UGB) cacecececcrsesinsensececccasascaesacses 19
Fire Fighters Local 55 v. City of San Leandro,
181 Cal. App. 3d 179, 226 Cal. Rptr. 238 (1986) ........ 5
Franchise Tax Board v. Laborers Vacation Trust.
SEP We WUD seicinschctoccanscmnmanscaniaiaianeier ese 15
Glass Molders v. Wickes Cos.,
707 F. Supp. 174 (D.N.J. 1989) ..o..ccccccccccccccsccsscssecseeses, 16
Hanks v. General Motors.
906 F.2d 341 (8th Cir, 1990) oocccccccccccccccccecceseveseeeeeee, 22
IBEW. Hechler.
5 aR, OTRO cre. #8 20
IBEW \. Public Service Committée,
GEG Fe FIG (OU Cae, NGG aasceescsesennceccnnetecrecercearrereses 19
J. Case Co. v. NLRB.
8 She: BOE BEE Cttnintiiiil nna 15
Judson Steel Corp. v. Workers Comp. Appeals Board,
22 Cal. 3d 658. 150 Cal. Rptr. 250 (1978) vooccccccccccsseeees 5
Kinsey v. Macur,
107 Cal. App. 3d 265, 165 Cal. Rptr. 608 (1980) ........ 5
Laguna Public Co. v. Golden Rain,
131 Cal. App. 3d 816, 182 Cal. Rptr. $13 (1982) ........ 5
Lingle v. Norge,
OE, FOE PUD vivsscsdctddisuecccccindeet passim
vl
Long Beach City Employees’ Association v. City of Loug
Beach,
41 Cal. 3d 937, 719 P.2d 660 (1986) occ ceeeeees 4.5
Luck v. Southern Pacific,
218 Cal. App. 3d 1, 267 Cal. Rptr. 618 (1990) ........... 6
Machinists Automobile Trades District Coun. 190 v.
Utility Trailer Sales,
141 Cal. App. 3d 80, 190 Cal. Rptr. 98,
app. dism., 464 U.S. 1005 (1983) wees 3, 23
Machinists Local 967 v. General Electric Co.,
713 F. Supp. 547 (N.D.N.Y. 1989) .....cccccceeeeeeeees 16, 22
Makray v. Sara Lee Corp.,
736 F. Supp. 793 (N.D. Ill. 1990)... 23
Matter of Chicago, Milwaukee RR Co.,
852 F.2d 960 (7th Cir. 1988) .......... einen: a ae
Metlakatla Indian Cmnyy. v. Egan,
DES UTE. SSS CIBER) cseserscseesenerereerrersnrsereeneenetnsssnnensennnnn 19
Metropolitan Edison Co. v. NLRB,
OOD US. GES (IBES) cecererrererrnerereneennenimin Oe OF
Miller v. Fairchild Industries,
668 F. Supp. 461 (D. Md. 2°87) .ecccsscssssccsccssssssssssnsennee 16
National Treasury Employees Union \. Von Raab.
SD U.S. GSB (IGE) ceererecsecsrsvnsessessascerscrneresnesseserenserennenes 6
Vil
Oklahoma Tax Commission \. Graham,
489 U.S. 838 (1989) ooccccccccceccccsssssssseessesenereeeeeee 14,17, 18
Pantoja v. Texas Gas & Transm..,
ce SNe Us WON cxreimnasshicnnsinstnassemnssernecnnene: al
Piumbers Local 57 v. Bechtel Power Corp..
PS ee Ct Gs CF FE catttterrnnercemncacsvrenietinetinns 16
Porten v. University of San Francisco,
64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) .......... 5
Rulon-Miller v. IBM Corp.,
162 Cal. App. 3d 241, 208 Cal. Rptr. 524 (1984) ........ 5
Semore v. Pool,
217 Cal. App. 3d 1087, 266 Cal. Rptr. 280 (1990) ...... S
Smolarek v. Chrysler Corp.,
AED ED siiniininesetiiaspnesinansinibinniabiaansbndianivetannn 16, 22
Steelworkers v. Enterprise Wheel & Car,
PE a FE iced saiidciaadatcbiiclaedactedhialietiaihions 11
Steelworkers v. Rawson,
as a lait Se 20
Street, Electric Railway Division 1287 v. Dalton.
206 F. Supp. 629 (E.D. Mo. 1962) ...........cccccceceees 19
Teamsters Local 174. Lucas Flour Co..
Lt, . RIC ener Oe erie a 20
Textile Workers v. Lincoln Mills.
BS BO | Te. { PRS Ren DRE Cee LAA. eee 19
Vill
White v. Davis.
tLe me pay Rt) © ps7), 1) nee 6.3
Young v. Anthony's Fish Grottos,
BID F.2b GOS CBeia Cr. NGI) nneecnrceccsscerecccseccescsssecsccsssens Is
Constitutions and Statutes
United States Constitution,
Article VI, 9 2, Supremacy Clause ..........ccceseeeeees 8
y LOR Tod D>. | | | peenneeneeDN INN DENOTED DD nENT INDE 2
Oe BIN hoi cisniesisitsinnipwicinnnbiecsneniectnniinciicinasiilinkennninanaainnin 2
Labor-Management Relations Act,
29 U.S.C. § 151 et seq.
Section 301, 29 U.S.C. § 185 ....cccccecceeeeeneeneneeees passim
National Labor Relations Act,
29 U.S.C. $8 151 ef SEG. .......ccccccrsccserssceseensenessesesencesenenees 17
California Constitution
pO S| EEE
California Business & Professions Code.
a TD cc cccnchigsnnntsdanmainnenennansnaanmenaninteanennianntnabnaan 7
In the
SUPREME COURT OF THE UNITED STATES
October Term. 1990
No. 90-
DAVID STIKES, an individual, on behalt of himself
and all other persons similarly situated,
Petitioners,
Vv.
CHEVRON U:S.A., INCORPORATED. a Pennsylvania
Corporation; and DOES | through 50, inclusive,
Respondents.
PETITION FOR A WRIT OF CERTIORAR!
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
David Stikes and the class of all persons similarly situ-
ated hereby petition the Court to issue a writ of certiorari to
review the decision of the United States Court of Appeals for
the Ninth Circuit that affirmed the removal and dismissal ot
this action.
OPINIONS BELOW
The opinion of the court of appeals is reported at 914
F.2d 1265, and is set torth in the Appendix (“Pet. App.) at
pages la-13a. The district court did not issue an opinion, but
discussed the issues with counsel at hearings and then issued
orders refusing to remand the case to state court, Pet. App.
14a-15a, refusing to reconsider remand or to abstain to
permit central issues of state law to be decided in state court,
Pet. App. 16a-17a, and granting summary judgment for de-
fendants on grounds of federal preemption. Pet. App. 1&a-
19a.
JURISDICTION
The court of appeals issued its decision on September
17, 1990. Pet. App. la-13a. A timely petition for rehearing
was denied on December 12, 1990. Pet. App. 20a-21a. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
Article I, Section 1 of the California Constitution provides as
follows:
All people are by nature free and independent
and have inalienable rights. Among these are en-
joying and defending life and liberty, acquiring. pos-
sessing, and protecting property, and pursuing and
obtaining safety, happiness and privacy.
28 U.S.C. § 1331 provides as follows:
The district courts shall have original jurisdic-
tion of all civil actions arising under the Constitution,
laws, or treaties of the United States.
Section 301 of the Labor-Management Relations Act, 29
U.S.C. § 185, provides as follows in pertinent part:
(a) Suits for violation of contracts between an
employer and a labor organization representing
employees in an industry affecting commerce as
defined by this Act, or between any such labor or-
ganizations, may be brought in any district court ot
the United States having jurisdiction of the parties,
without respect to the amount in controversy or
without regard to the citizenship of the parties.
STATEMENT
A. Facts.
Petitioner David Stikes, a citizen of California, was
employed by respondent Chevron USA, a corporation whose
principal place of business is in California. His employment
was regulated by a variety of federal, state and local laws, as
well as by a collective bargaining agreement (“CBA”), be-
tween Chevron and the International Union of Petroleum
and Industrial Workers, which had no express language
concerning privacy or searches. Stikes traveled to work in his
personal automobile, which he parked ina company parking
lot. He did not use the car for work purposes, and there was
no other convenient means of transportation to work. The
nearest legal parking, apart from the company lot. was three
miles away.
In 1984, during the course of Stikes’ employment, Chev-
ron issued a policy asserting the right to search its employees
for drugs, weapons, and other materials. On July 2, 1987, a
Chevron security officer interrupted a training film that
petitioner and other employees were watching, to demand a
search of everybody in the room. including not only the
emplovees’ persons, but their lunchpails. lockers and cars.
Chevron later explained that the purpose was to find alcohol,
narcotics or firearms, but it did not contend that it had
probable cause, reasonable suspicion, or, indeed, any basis at
all for suspecting that any of the persons present possessed
such items.
Fearful of losing his job for refusing, petitioner allowed
the search of his person, lunch and locker, but refused to turn
over the keys of his car so that it, too, could be searched. He
recognized that there was some reasonable relationship
between his person, lunchpail, and locker and the workplace.
But, he felt, in America an individual may not be subjected to |
searches without some ground for thinking that the individual
has done something wrong, and so he drew the line at his car.
Chevron disputes Stikes’ vision of America. Chevron
believes that it is entitled to search workers and their personal
property, even if not work-related, without any grounds.
Thus, when Stikes refused to be searched, Chevron summa-
rily fired him. Stikes filed a grievance asserting that, by firing
him, Chevron had violated the CBA. Chevron disagreed, and
the union refused to seek arbitration, because the “case
cannot be arbitrated .. . because it has nothing to do with the
union contract.” Clerk’s Record Below, Item 1, Exhibit H, 9]
33.
B. The California Law of Privacy.
To understand the questions of jurisdiction and preemp-
tion that are presented here, it is necessary to review the
settled and unsettled issues of the Calitornia law of privacy.
Article I, Section 1 of the California Constitution expressly
guarantees an “inalienable” right ot privacy. The California
Supreme Court has repeatedly held that this section author-
izes Civilsuits toenforce that right. E.g., White v. Davis, 13 Cal.
3d 757, 774-776, 533 P.2d 222 (1975): Long Beach City Em-
ployees’ Ass'n v. City of Long Beach, 41 Cal. 3d 937, 948, 719
—
P.2d 660 (1986). See also City of Santa Barbara ». Adamson,
27 Cal. 3d 123, 610 P.2d 436 (1980). Numerous decisions of
the California Courts of Appeal have held that the state
constitutional right of privacy (unlike the federal constitution)
affords protection against private, not just governmental
action. E.g., Cutter v. Brownbridge, 183 Cal. App. 3d 836, 228
Cal. Rptr. 545,549 (1986): Bartling v. Superior Court, 163 Cal.
App. 3d 186, 195, 209 Cal. Rptr. 220 (1984); Rulon-Miller v.
IBM Corp., 162 Cal. App. 3d 241, 248, 255, 208 Cal. Rptr. $24
(1984): Kinsey v. Macur, 107 Cal. App. 3d 265, 272, 165 Cal.
Rptr. 608 (1980); Porten v. University of San Francisco, 64 Cal.
App. 3d 825, 829, 134 Cal. Rptr. 839 (1976); Laguna Pub. Co.
v. Golden Rain, 131 Cal. App. 3d 816, 851, 182 Cal. Rptr. 813,
834 (1982). Dictum in White v. Davis, supra, 13 Cal. 3d at 774-
775, supports these holdings.
Hotly disputed in this case has been the question whether
an employee's privacy rights can be waived in the CBA as a
matter of California law, and whether, as a matter of fact,
petitioner's rights had been waived in this CBA. Petitioner
pointed to the language of the California Constitution, which
describes privacy as an “inalienable” right, and relied on
California cases holding that an employee’s purported waiver
of constitutional or statutory rights as a condition of employ-
ment, evenina CBA, is invalid. E.g., Long Beach Cuy Employ-
ees’ Ass nv. Citv of Long Beach, 41 Cal. 3d 937, 951, 719 P.2d
660 (1986): Judson Steel Corp. v. Workers Compensation
Appeals Board, 22 Cal. 3d 658, 665 n.5, 150 Cal. Rptr. 250
(1978): Fire Fighters Local 55 v. City of San Leandro, 181 Cal.
App. 3d 179, 182-183, 226 Cal. Rptr. 238 (1986). Cf. Machi-
nists Auto. Trades Dist. Coun. 190 v. Utility Trailer Sales. \ 4)
Cal. App. 3d 80, 82-83, 190 Cal. Rptr. 98, app. dism.. 464 U.S.
1005 (1983). In recent years, the California Courts of Appeal!
have divided on the question whether the right of privacy Is
waivable in the context of employment in tne private sector.
Compare Semore \. Pool. 217 Cal. App. 3d 1087, 1097, 206
Cal. Rptr. 280 (1990), with Luck v. Southern Pacific, 218 Cal.
App. 3d 1, 267 Cal. Rptr. 618 (1990).
Under California law, whether there has been an inva-
sion ot privacy depends, in part, on the “reasonable expecta-
tions” of the parties. Deborah C., 30Cal. 3d 125, 137,635 P.2d
446 (1981). The parties dispute whether, under California
law, a CBA is relevant to that determination. Petitioner
pointed below to the fact that, of the many California cases
discussing a right to privacy in the workplace, none relied on
the existence or contents of a CBA or of any other contract,
in deciding whether there was a reasonable expectation of
privacy.! Respondent, for its part, insisted that a CBA would
necessarily be a part of any determination of reasonable
expectations, but it pointed only to federal court decisions
finding preemption of California privacy claims as evidence
of such a rule of state law.
C. Proceedings Below.
On March 23, 1988, petitioner filed this action in Califor-
nia Superior Court.? His complaint alleged that Chevron’s
search, and the search policy on which it was based, violated
his right of privacy under the California Constitution. He
| Indeed, the cases discussing the federal constitutional
protections against drug-testing also proceed without the slight -
est reliance on the CBA’s that cover those workplaces. E.g.,
National Treasury Employees Union v. Von Raab, 489 U.S. 656
(1989); Coppinger v. Metro North, 861 F.2d 33 (2d Cir. 1988).
- This case was filed as a class action, and John Doe de-
fendants were named under California procedure. However,
because of the course of the litigation, which quickly focused on
the preemption issue, the specific defendants were never
identified and served. In this petition, Stikes alone ts identified
as “petitioner, and Chevron as “respondent. —
- |
further alleged that his discharge for refusing to be searched
both contravened the public policy of the State of California
and was an “unlawful business practice” under California
Code Section 17200, and that Chevron’s conduct was mali-
cious and had intentionally inflicted emotional distress on
him. All of these torts were based on Chevron’s decision to
search Stikes’ car and to fire him for refusing to consent to
that search. The claim made no reference to a CBA, was not
predicated on anything in a CBA, and could have been liti-
gated without ever construing the CBA.
Petitioner moved for a preliminary injunction to compe!
his reinstatement pending a decision on the merits. However,
before a hearing could be held, respondent removed the case
to the United States District Court tor the Northern District
of California, asserting that the complaint arose under fed-
eral law because the district court would have jurisdiction
over it under section 301 of the Labor-Management Rela-
tions Act (“LMRA”), 29 U.S.C. § 185. Jurisdiction was based
solely on the fact that respondent is a party to a CBA that
regulates some of the terms and conditions of petitioner’s
employment, although it says nothing specitic about Chev-
ron’s right to search employees or their cars. According to
respondent, the existence of this agreement alone not only
supported removal; but also validated the search policy and
thus barred the State of California trom giving petitioner the
legal right not to be searched.
Petitioner moved to remand the case to state court. He
pointed out that all of his claims were based exclusively on
Calitornia law and that none of his California causes of action
were based, in whole or even in part, on rights accorded him
in the CBA. He acknowledged respondent’s argument that
his state law rights were waived by the CBA and also acknow-
ledged that respondent was entitled to litigate that waiver
argument. Inresponse, petitioner argued first that Calitornia
law did not recognize this waiver doctrine. and second that
Chevron’s arguments constituted no more than a federal law
defense to his state law claims, and hence were not a basis for
federal question jurisdiction. Respondent, for its part, ar-
gued that the mere possibility of waiver meant that Stikes’
rights under California law were “completely preempted” by
section 301 of the LMRA, and that, therefore, the case arose
under federal law and had been properly removed. The
district court denied the motion to remand without stating
any reasons.
Petitioner then moved to reconsider the remand issue,
and also moved the district court to abstain from deciding
whether federal law barred California’s enforcement of its
common law regulation of drug-testing, in order to permit the
California courts to decide the unsettled questions of Calitor-
nia law, such as whether petitioner’s privacy claim was waiv-
able. In that way, he contended, the tederal courts could
avoid addressing the validity of California’s privacy law in
light of federal law under section 301. Respondent opposed |
both reconsideration and abstention, and moved tor sum- |
mary judgment on the ground that petitioner’s claims were |
entirely preempted by the CBA and section 301. Respondent |
argued that the preemption issue had necessarily been de-
cided in its favor in the course of resolving the issue of federal
jurisdiction and that there was no reason to revisit that issue.
With respect to abstention, respondent contended that there
was no reason to abstain because this case did not involve any
questions of federal constitutional law, ignoring the fact that
section 301, on which it relied, is a federal statute and that it
comes into play only because, under the Supremacy Clause of
Article VI of the United States Constitution, federal law, such
as section 301, overrides inconsistent state law. Again the
district court ruled against petitioner, denying both absten-
tion and reconsideration, and again the court provided no
opinion to explain its decision. Accordingly, it granted sum-
mary judgment. dismissing petitioner's state law claims on the
LS
ground that they were completely preempted by section 301.
The court of appeals affirmed. It upheld removal by
ruling that, when an employer asserts the defense of section
301 preemption, the issues of preemption and removal juris-
diction are the same -- that is, a case is removable whenever
there is section 301 preemption. Pet. App. 6a-7a. Turning to
what thus became the dispositive question of preemption, the
panei correctly noted that section 30] preempts not only
claims that are founded on rights created by a CBA, but also
claims that are “substantially dependent” on a CBA. Id. 7a.
The panel ruled that petitioner’s privacy claims necessarily
“substantially depend” on the CBA by focusing on the waiver
defense raised by respondent, not the claims pleaded by
petitioner. According to the court, petitioner’s privacy claims
depend on the CBA because privacy is a waivabie right, and
the courts would have to examine the CBA to decide whether
there had been a waiver. Jd? 8a. Moreover, California law
makes privacy dependent ona person’s “reasonable expecta-
tions” of privacy, and one of the many factors that go into a de-
termination of any employee's “reasonable expectations” is
the meaning of the employee’s CBA. /d. 10a.
Finally, the court acknowledged that petitioner had
asked the district court to abstain to allow the California
courts to address the unanswered state law issues which are
at the core of the case. However, the court refused to abstain
on the ground that preemption does not rise to the level of a
constitutional question that warrants abstention, and that, in
any event, analysis of the CBA would be required whether the
CBA came into the case through waiver (as two previous
Ninth Circuit preemption opinions had held) or through a
determination of the employee’s reasonable expectations.
Id. 12a.
10
REASONS FOR GRANTING THE WRIT
The Decision Below Conflicts With Decisions
of This Court and of Other Circuits, and
Presents Extremeiy Important Questions of Federalism.
Overview
The rulings below on jurisdiction, abstention and preemp-
tion are, taken individually, seriously at odds with decisions of
this Court and those of other circuits. But the need for review
is greatly magnified because, taken together, they have tun-
damentally altered the way in which state law claims will be
litigated whenever an employer is subject toa CBA. Accord-
ingly, the petition first discusses the combined impact of the
rulings, and then explains how the rulings below individually
conflict with other authority of this and other courts.
At the heart of the merits of this case are questions of
state law: may the right of privacy be waived as a condition of
employment; and, in deciding a privacy case in a union
workplace, may or must a court consider the CBA, and to
what extent? The questions presented for this Court's con-
sideration, however, are not ones of state law. Rather, they
raise the federal law issues of which forum -- federal or state
court -- ought to resolve the questions of state law, along with
whatever federal law issues may be implicated depending on
the results of the state law inquiry, and whether it is possible
to recognize the state’s interest in protecting its citizens’
privacy, while still honoring the principles of federal law that
govern the interpretation, application and enforcement of
CBA’s.
The practical effect of the decision below is that state law
rights of privacy, and indeed other state law rights, can never
be asserted by unionized workers, regardless of whether
there is actually a CBA surrendering those rights. Union
a
1]
workers thus become second class citizens, stripped by fed-
eral law of any state law privacy protections and entitled to
only those privacy protections that their unions obtain in
collective bargaining. Indeed, the opinion below precludes
the state courts even from determining, as a matter of state
law, what role, if any, they would accord the CBA in assessing
employee privacy claims, despite the fact that, under the
court's analysis, both preemption and removal depend on
assumptions about what the state courts would say if they did
consider such a case. Although the Ninth Circuit did not
assert these propositions, their truth may be seen by consid-
ering three hypothetical cases.
First, assume a CBA that, as reasonably construed, does
not bear on privacy: (1) the company does not agree to any
limit on its powers in the area of worker privacy, and (2) the
union does not agree to allow the employer to do anything
proscribed by the right of privacy. The question then is, how
would the California right of privacy be enforced? It could
never be litigated in state court because the employer could
obtain removal and preemption merely by asserting (a) that
the contract supports its action in some way, (b) that the court
has to look at the CBA to decide whether it does in fact sup-
port the employer's position, (c) that the need to look preempts
the state claim, and (d) that preemption takes the case out of
State court. Nor could the state right be enforced in arbitra-
tion, because an arbitrator, on ascertaining that the CBA is
silent on the question, would hold that he lacks the power to
grant reliet because his only job is to enforce the agreement.
Steelworkers \. Enterprise Wheel & Car, 363 U.S. 593, 597
(1960).
Second, assume (1) that the CBA’s actual Meaning tilts
slightly in favor of the employer, (2) that California law would
require a state court to give consideration to a CBA as one ot
many factors bearing on the reasonable expectation of pri-
vacy, but (3) that each and every one of the other factors
12
strongly favors the employee so that, if a court were empow-
ered to weigh the CBA in the balance, !t would plainly hold
that there was nonetheless a reasonable expectation of pri-
vacy. Again, (a) the employee could not enforce his state law
rights in state court because the case would be removed, (b)
he would lose in federal court because of the broad view of
breemption taken by the Ninth Circuit, and (c) if the union
took the case to arbitration, the arbitrator, whose only job ts
toentorce the CBA, would have to rule against the employee
because the CBA does not grant him a contract-based right,
which is the only basis on which the arbitrator may rule in the
employee's favor.
Third, assume that the CBA actually says that the em-
ployer must abide by all state privacy rights. Still, the em-
ployer could argue that it construes the CBA to mean some-
thing else, ard that the case is removable because the courts
must look at the CBA to learn whether the employer's
argument is correct, and the claim is preempted because the
presence of the CBA alone is determinative. In that case an
arbitrator could protect the employee, because the CBA
incorporates state law, but he could not award the same
amount of relief that California deems necessary to deter
wrongdoing and compensate victims of tortious discharge --
namely, full compensatory damages (not just back pay) and
punitive damages in appropriate cases. In this hypothetical,
the CBA grants rights that are parallel to state law, precisely
the sort of case that Lingle v. Norge, 486 U.S. 399 (1988), holds
isnot preempted. Yet under the Ninth Circuit's analysis, the
case 1s removable and the state claims are preempted.
The first two hypotheticals are not imaginary. Peti-
tioner’s union apparently regarded the first as an accurate de-
scripticn of the CBA here, supra at 4, and respondent never
denied that the second was this case: rather, it argued that the
question of what the CBA actually provides or whether the
other factors outweigh it “has [no] bearing” on the question
LS
13
of preemption. Respondent's Court of Appeals Brief, at 33.
And the third hypothetical is simply a logical outgrowth of the
first two. While the court of appeals discussed the various —
legal doctrines independently, it never contronted their com-
bined impact.
On the other hand, petitioner's contentions here would
provide the courts with mechanisms to vindicate the state
interest in protecting its citizens in circumstances where the
CBA, whatever the employer may contend it means, does not
in fact provide the employer with a defense. Thus, if the case
were not removable, the state courts would be able to deter-
mine whether, as a matter of state law, the CBA was relevant
to the employer's defense and, if so, they would, like the
tederal courts, apply the principles of federal labor law to that
detense, as the constitution requires them to do. Those
principles, equally applicable in state and tederal court,
would include requiring contract questions to be arbitrated,
where appropriate. Even if the case could be removed,
abstention would allow the tederal court to retain jurisdiction
to ensure the application of federal labor law principles if the
state court’s resolution of the state law issue made it neces-
sary to do so. And, regardless of the forum in which the
tederal law principles were applied, petitioner’s preemption
analysis would permit the courts to decide those elements of
the claims and the defenses that do not depend on tederal
law, while leaving to tederal labor law procedures -- either 2"
arbitration or a judicial determination of “clear and unmis-
takable waiver” -- the decision about how the CBA bears on
the case.
The Ninth Circuit ignored these suggested means by
which courts could accommodate the federal and state inter-
ests that are at stake in cases such as this. Instead, while
honoring the federal interests, the lower courts obliterated
those of the states. But. beyond this overall result that
seriously undermines principles of tederalism. as we now
14
show, the rulings below also run counter to decisions of this
Court and of other tederal circuits. Accordingly, the Court
should grant certiorari to prevent the gross and wholly unnec-
essary infringements of state power that were wrought by the
decision below,
Removal
The court below treated the issue of preemption under
section 301 and the nght of removal to federal court as one
and the same -- all cases in which section 301 preempts state
law are removable, and hence the only significant question
once removal is sought based on section 30] preemption ts
whether there ts, in tact, preemption. Inso holding, the court
of appeals not only acted contrary to this Court’s opinion
concerning removal of cases based on alleged preemption by
section 301 in Caterpillar v. Williams, 482 U.S. 386 (1987), but
it *gnored this Court's analysis of Caterpillar in Oklahoma Tax
Commission v. Graham, 489 U.S. 838 (1989).
In Caterpillar,employees sued under state law to entorce
contracts which, they alleged, were formed by Caterpillar’s
promises, made to them individually, that they would not be
laid oft if the plant were closed. Although this Court atfirmed
the holding that the case was improperly removed, it unani-
mously rejected the Ninth Circuit's reasoning. /d. at 391 n.4.
The Court ruled that, even though a court must determine
whether a plaintiff's complaint, properly pleaded, is a federal
or state claim, the plaintiff may opt to avoid federal jurisdic-
tion by exclusive reliance on state law. /d. at 392. Even the
doctrine of complete preemption does not rob a plaintiff of
~ this right. so long as the state law claim is not substantially
dependent ona CBA. Thus, the Calerpillar plaintitts asserted
a breach of individual employment contracts, and even if they
could also have asserted claims under the CBA, as masters of
their complaint, they were tree not to do so. Id. at 394-395,
Se ae ee
15
~
Because the complaint did not rely ona CBA, or even address
the relationship between the individual contracts and the
CBA, the claims did not arise under section 301, and the case
could not be removed based on the doctrine of complete
preemption. /d. at 395,
The Court then turned to Caterpillar’s defense based on
the rule of J. Case Co. v. NLRB, 321 U.S. 332 (1944), which
limits the extent to which employers may adopt individual
contracts that are inconsistent with the CBA. The Court had
previously said that complete preemption under section 30]
does notapply when a suit merely “relates to” a CBA; itis only
state suits toenforce a CBA that “arise under” section 301 and
hence are removable. Franchise Tax Board v. Laborers Vaca-
tion Trust, 463 U.S. 1, 25 n.28 (1983). Therefore, the Court
held, even if the rule ot J./. Case might ultimately be applied
so that the CBA superseded the rights that plaintiffs could
otherwise have enjoyed under individual contracts, that ted-
eral law defense must be litigated in state court:
[T]he presence of a federal question, even a
section 30] question, in a defensive argument does
not overcome the paramount policies embodied in
the well-pleaded complaint rule .... [A] defendant
cannot, merely by injecting a tederal question into
an action that asserts what is plainly a state-law
claim, transtorm the action into one arising under
tederal law, thereby selecting the forum in which
the claim shall be litigated.
482 US. at 398-399 (emphasis in original).
Caterpillar controls the removal issue here. As in Cater-
pillar, the plaintitf here alleges that his employer violated
rights apart trom those created by the CBA. As in Caterpil-
lar, the employer detends on the ground that the CBA evis-
16
cerates the right that the plaintiff would otherwise enjoy.
And, as in Caterpillar, the employer removed the case from
state court on the theory that, because it asserts that the CBA
negates petitioner’s state law rights, and because the courts
will have to examine the CBA in order to resolve this defense,
the claim itself arises under section 301 and is removable. Ac-
cordingly, as in Caterpillar, the waiver defense does not
transform the claim itself into a federal claim that is within a
district court’s original jurisdiction, and removal is improper.
The Tenth Circuit has followed Caterpillar by barring
removal of state law claims based on the contention that they
were waived in a CBA. Plumbers Local 57 v. Bechtel Power
Corp., 834 F.2d 884, 889-890 (10th Cir. 1987); accord, Miller
v. Fairchild Industries, 668 F. Supp. 461, 467 (D. Md. 1987)
(detendant claimed that supplemental CBA released all
clainisin connection with plantclosing). The Sixth Circuit has
also held that the mere fact that, in addressing a defense
based on an interpretation of a CBA, the state court might
ultimately hold that a plaintiff's claim is preempted, does not
warrant removal of that claim to federal court. Smolarek v.
Chrysler Corp., 879 F.2d 1326, 1333-1334 and n.3 (6th Cir.
1989) (en banc) (case remanded even though interpretation
ot CBA might show absence of discriminatory animus). District
court decisions in other circuits have reached that conclusion
as well. E.g., Machinists Local 967 v. General Elec. Co... 713 F.
Supp. 547, 554-555 (N.D.N.Y. 1989): Glass Molders v. Wickes
Cos., 707 F.Supp. 174, 178 (D.N.J. 1989). The decision below
conflicts with each of these decisions, as well as with Calerpil-
lar itself.
The court of appeals distinguished Caterpillar, saying
that there this Court forbade removal because plaintiffs’
claims “involved jobs outside the bargaining unit and were
based on the argument that the CBA did not apply to plain-
tiffs at all.” Pet. App. 9a. This distinction not only has the
effect of confining Caverpillar to its facts, but is erroneous. In
17
Caterpillar the employer argued that plaintiffs there were
suing On promises that had been made while they were in the
bargaining unit, but this Court ruled that the distinction was
“irrelevant to the removal question. ... [The] state law claims
might be preempted by the NLRA, but they would not be
transformed into claims arising under federal law.” 482 U.S.
at 398 n.12. As for the fact cited by the court below -- that in
Caterpillar the employees’ claims “were based on the argu-
ment that the [CBA] did not apply,” Pet. App. 9a -- petitioner,
too, argues that the CBA does not preclude his privacy claim,
just as the Caterpillar plaintiffs contended with respect to
their contractua! claims. The employers in both cases, of
course, argued that it would be necessary to consider the
CBA because the CBA could supersede the state law right,
but this Court held that the question of whether the CBA was
relevant had to be litigated in state court.
Nor can it matter, for jurisdictional purposes. whether
the CBA enters the case through a “waiver” detense or
because it is one Of many factors that a court considers in
determining whether there is a reasonable expectation of
privacy. In either case, if petitioner presented his evidence
showing a reasonable expectation of privacy but failed to
mention the CBA, his case would not be dismissed for that
reason. Rather, respondent would submit the CBA as part ot
its case. Accordingly. under either view of state law, it is
respondent that raises the CBA as a defense, and the claim
itself does not arise under state law, and hence the preemp-
tion argument must be made in the state court, to which this
case should have been remanded.
The lower court also retused to apply Oklahoma Tax
Commission because the facts of that case did not involve
section 301. See Pet. App. 9a. But petitioner cited Oklahoma
Tax Commission, not because of any tactual similarity, but
because of the way it characterized Caterpillar. which was at
odds with the way the Ninth Circuit has understood the case.
18
Thus, in Oklahoma Tax Commission, this Court described
Caterpillar as a case in which:
We refused to characterize these state lawclaims as
arising under federal law even though an interpre-
tation of the collective bargaining agreement might
ultimately provide the employer a complete de-
fense to the individual claims, and even though
employee claims on the collective bargaining agree-
ment would have been the subject of original fed-
eral jurisdiction.
489 US. at 841.
Similarly, here, even if the CBA were to provide respondent
with a complete defense against Stikes’ privacy claims, the
privacy claims do not arise under federai law.
In both Franchise Tax Board and Caterpillar, this Court
unanimously corrected the Ninth Circuit’s misstatements of
the law of removal based on preemption. Not only has the
Ninth Circuit now refused to accept this Court’s characteriza-
tion of its.own holding in Caterpillar, but in a line of cases
stretching back to the year Caterpillarwas decided, e.g., Young
v. Anthony's Fish Grottos, 830 F.2d 993 (9th Cir. 1987), that
court has essentially disregarded Caterpillar by confining it to
its facts.
The court below felt free to disregard Oklahoma Tax
Commission's analysis because the Ninth Circuit had ana-
lyzed Caterpillar betore Oklahoma Tax Commission was
decided. andthe treatment of Caverpillar in the latter case was
seen as mere dictum. Our suggestion of rehearing en banc
sought to correct these abuses, but it was denied without
opinion ten weeks after it was filed. At this point, only this
Court can rescue litigants in the Ninth Circuit from the
persistent refusal of the court below to come to terms with
19
Caterpillar. We urge the Court to grant certiorari to bring that
court back into tine with the law of federal jurisdiction.*
Preemption
The court below also held that the possibility that a CBA
might be relevant, under state law, to the question whether
State privacy rights were waived, operated as a complete bar
to even the attempt to litigate those state law privacy claims.
That ruling is also contrary to the reasoning of several other
circuits, as well as to the discussion of cases involving ques-
tions of both state and federal law in Lingle v. Norge. 486 US.
399 (1988). Accordingly, certiorari should be granted to
consider this question as well.
Section 301 assigned the development of a federal
common law of CBA’s to the federal courts, Textile Workers
v. Lincoln Mills, 353 U.S. 448 (1957). Petitioner recognizes
that the application of state contract law to determine the
>If federal courts had jurisdiction over claims such as peti-
tioner’s, the abstention doctrine would provide yet another way
in which the federal courts could ensure that the state courts had
the final say on whether the CBA was relevant to the privacy
issue under siate law. Contrary to the holding of the court below
that preemption is not a sufficient “constitutional” question to
warrant application of the abstention doctrine, this Court has
abstained to avoid the need to decide whether state law claims
were preempted, e.g., AFL v. Watson, 327 U.S. 582, 593-599
(1946); see also Metlakatla Indian Cmnty. v. Egan, 363 U.S. 555,
561-563 (1960), and other courts have done so as well. Drukes
v. Sullivan, 458 F.2d 1272, 1274 (ist Cir. 1972): Street. Electric
Railway Div. 1287 v. Dalton, 206 F. Supp. 629, 634 (E.D. Mo.
1962) (three-judge court). Even the Ninth Circuit, in a decision
cited by petitioner below but ignored by the panel, has held that
federal labor law) preemption questions should be avoided
through abstention. /BEW v. Public Serv. Comm... 614 F.2d 206,
213 (9th Cir. 1980).
20
meaning ot CBA’s would be inconsistent with the need for
uniform principles of law to govern those agreements. Team-
sters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962). This
Court has also held that, when a plaintiff asserts a tort claim
which turns on the contention that the defendant has violated
either the CBA itself, or a duty assumed in the CBA, the
principles of federal law must govern the enforcement of that
claim despite the tact that the plaintiff denominates the claim
as One in “tort” under state law, rather than as one in
“contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202
(1985) (tortious breach of contractual duty); JBEW v. Hech-
ler, 481 U.S. 851 (1987) (alleged duty assumed in CBA);
Steelworkers v. Rawson, 1108. Ct. 1904 (1990) (implied duty
basedon CBA). Insucha case, the state law tort claim is “sub-
stantially dependent on analysis of the CBA.” Caterpillar,
supra,482 U.S. at 394. But the Court has never done what the
court below did here, .e., hold that a substantive state law
granting important rights to employees is completely super-
seded by the mere existence of the CBA, without even
examining its language or effect.
To the contrary, in Lingle v. Norge, 486 U.S. 399 (1988),
this Court recognized that some CBA-related issues may
have to be decided in the course of litigating state law claims,
but that necessity did not preempt the underlying cause of ac-
tion itself. Even the waiver issue raised in this case was
anticipated in a footnote, where the Court noted the possibil-
ity that a state claim, which was nonwaivable under state law,
might still be preempted because it was actually waived by the
parties toa CBA. /d. at 409-410n.9. According to this Court,
before finding such a waiver and thus confronting the ques-
tion whether it would override state law, “we would require
‘clear and unmistakable’ evidence, see Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 708 (1983), in order to conclude
that such a waiver had been intended.” 486 U.S. at 410 n.9.
The possible need to reter to the CBA did not preempt the
tJ
state law claims, as the panel here believed; nor did the Court
say that the issue of whether a CBA waives state law involves
the interpretation of aCBA that must be resolved by standard
section 301 principles, 4e., by an arbitrator. Instead, the
Court indicated that waiver questions must be resolved by the
courts -- “we would require ‘clear and unmistakable’ evidence.”
Id. (emphasis added).
The Court made a similar point when discussing the
possible need to refer to a CBA in order to formulate a
plaintiff's reliet:
Although federal law would govern the interpreta-
tion of the agreement to determine the proper
damages, the underlying state law claim, not other-
wise preempted, would stand. Thus, as a general
proposition, a state law claim may depend for its
resolution upon both the interpretation of a collec-
tive bargaining agreement and a separate state law
analysis that does not turn on the agreement. In
such a case, federal law would govern the interpre-
tation of the agreement, but the separate state law
analysis would not be thereby preempted.
486 U.S. at 413 n.12 (emphasis added).
Since Lingle was decided, the lower courts have wrestled with
the question how much “dependence” on a CBA is too much
to avoid preemption, and how much a state law claim may
require interpretation ot a CBA, yet still permit the “separate
state law analysis” to be litigated in court while deferring to
federal law principles to interpret the CBA. Several other
circuits have resolved this question in ways that are inconsis-
tent with the Ninth Circuit’s approach, whichis that any need
to look at a CBA 1s too much.
Thus, tor example. in cases in other circuits involving
22
retaliatory discharges in violation of public policy, of the sort
that this Court held was not preempted in Lingle, employers
frequently claim that the real reason for the discharge was
based on something that the contract expressly forbids, such
as excessive absenteeism. In order to address this defense,
the employee must show that the alleged contractual reason
either does not exist or is a charade. In either event, the
employer's assertion of the CBA responds to one of the
elements of the employee's claim (e., bad motive), but the
circuits are unanimous that such reference to the CBA is not
enough to preempt state law claims. Smolarek v. Chrysler
Corp., 879 F.2d 1326, 1334 (6th Cir. 1989) (en banc) (handi-
cap discrimination claim); Pantoja v. Texas Gas & Transm.,
890) F.2d 955, 959-960 (7th Cir. 1989) (claim of retaliation for
earlier suit based on CBA); Hanks v. General Motors, 906
F.2d 341, 344 (8th Cir. 1990) (emotional distress claim): see
also Brown v. Holiday Stationstores, 723 F.Supp. 396, 405-407
(D. Minn. 1989); Machinists Local 967 v. General Elec. Co..,
713 F. Supp. 547, 554-555 (N.D.N.Y. 1989). But, if the
decision below is correct, the mere possibility that the CBA
might undercut an element of the plaintiff's claim (here, the
“reasonable expectation” of privacy), would be sufficient to
require complete and automatic preemption of the state law
claim.
The decision below is also contrary to decisions in other
circuits that have allowed state law claims to go forward,
despite the fact that the claim could be undermined by an
interpretation of the CBA, where, after application of federa!
law principles, it is decided that the CBA, as correctly con-
strued, does not actually undercut the state law claim. The
Seventh Circuit, for example, has ruled that, if employers
raise a defense that a CBA supersedesa state right enjoyed by
employees generally, the CBA-related defense should be
arbitrated, and then the state claim is to be considered if the
arbitral result so allows. Matter of Chicago, Milwaukee RR
25
Co., 852 F.2d 960, 967-968 (7th Cir. 1988). See also Dougheriy
v. Parsec, 872 F.2d 766 (6th Cir. 1989) (after arbitrator
decided CBA not violated, court could decide remaining tort
issues ); Makray v. Sara Lee Corp., 736 F. Supp. 793, 798-800
(N.D. I. 1990) (court decided whether CBA waived state law
rights, and found no preemption because CBA was too
ambiguous to meet Metropolitan Edison standard tor waiver ).*
A similar procedure should be used to assess respondent’s
contentions with respect to the CBA here. There is no reason
to think that Congress intended to decree that a mere asser-
tion thata CBA undercuts a state claim suffices to plunge that
claim into a black hole from which it can never be considered.
Under the panel’s holding, union employees are de-
prived of rights that state law accords to employees generally,
even if, in fact, the CBA, as correctly construed, would not aid
the employer’s case. See supra 10-13. It is only the most
poorly counseled employer who cannot find a way to bring a
CBA-related consideration into a discharge case, and so the
rule adopted by the court below could completely eviscerate
the power of states to protect unionized employees.
Indeed, if the law of federal preemption is that any state
law that takes cognizance of the CBA as one of many factors
in deciding whether an employer has misbehaved is com-
pletely preempted, the result may be to discourage states
from allowing their courts to take that factor into account,
thus undercutting rather than advancing collective bargain-
4 Indeed. in Machinists Auto. Trades Dist. Coun. 190 vy.
Unulity Trailer Sales, 141 Cal. App. 3d 80, 82-83. 190 Cal. Rptr.
98, app. dism., 404 U.S. 1LOOS (1983), the court examined the
record of the partics’ negotiations and decided that there was no
agreement about the applicability of the state law right at issue
there. This Courts dismissal of the employer's preemption
appeal for want of a substantial federal question is binding
precedent here.
24
ing over such issues. Because there is no reason to believe that
Congress intended to preempt completely all state law where
a CBA might, but also might not, undercut the state law claim,
and because other courts have reached different conclusions
about how Lingle ought to be applied in such circumstances,
the Court should grant certiorari to review the preemption
question presented here.
CONCLUSION
The petition for a writ of certiorari should be granted.
Paul Alan Levy
(Counsel of Record )
Alan B. Morrison
Public Citizen Litigation Group
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 833-3000
Robert N. Jacobs
Suite 25A
12240 Venice Boulevard
Los Angeles, California 90066
(213) 397-6693
Attorneys tor Petitioners
March 12, 199]
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Davip STIKES, an individual, on
behalf of himseif and all other
persons similarly situated, No. 89-15208
Plaintiff-Appellant,
i D.C. No.
: r = CV-88-1476-CAL
CHEVRON USA, INC., a OPINION
Pennsylvania Corporation; and
Does | through 50, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles A. Legge, District Judge, Presiding
Argued and Submitted
April 20, 1990—San Francisco, California
Filed September 17, 1990
Before: Procter Hug, Jr. and Mary M. Schroeder, Circuit
Judges, and James A. von der Heydt,* District Judge.
Opinion by Judge Schroeder
*Honorable James A. von der Heydt, Senior United States District Judge
for the District of Alaska, sitting by designation.
la
EEE EE
2a STIKES V. CHEVRON
SUMMARY
Constitutional Law/Labor
Affirming a district court grant of summary judgment, the
court of appeals held that the Labor Management Relations
Act preempted a state cause of action for violation of an
employee’s right to privacy under the California Constitu-
tion.
Appellant David Stikes’ refused to submit to a search of his
private automobile parked on company property of his
employer. An existing collective bargaining agreement
between the employer and a union stressed the importance of
safe work conditions, and provided that the employer would
consider safety suggestions made by the union and the
employees and that the union would encourage its members
to cooperate with the safety program. As part of its safety pro-
gram, the employer required its employees to submit to ran-
dom searches of their persons and property. When Stikes
refused to submit to the search of his automobile, the
employer discharged him. Stikes filed suit in state court alleg-
ing infringement of his right to privacy under the California
Constitution, wrongful discharge in violation of public pol-
icy, intentional infliction of emotional distress, and unfair
business practices. After the employer re-noved the action to
federal court, Stikes moved for remand on the theory that his
complaint stated causes of action based solely on state law
precluding federal jurisdiction. The district court denied this
motion and another for feceral abstention until the Califor-
nia courts could determine whether the right to privacy could
be waived by a collective bargaining agreement. Summary
judgment was granted for the employer.
[1] Supreme Court precedent directs that section 301 of the
LMRA preempts state law claims that are founded on rights
created by a collective bargaining agreement, or that are sub-
STIKES V. CHEVRON 3a
stantially dependent on analysis of a collective bargaining
agreement. [2] Ninth Circuit case law expressly holds that in
a Suit by an employee against an employer for violation of pri-
vacy interests protected by the California Constitution, a
determination of the claim would substantially depend upon
an analysis of the collective bargaining agreement and would,
therefore, be preempted by the LMRA. [3] Stikes’ right to pri-
vacy claim was inextricably intertwined with the collective
bargaining agreement. [4] The district court could not ascer-
tain Stikes’ expectations of privacy at the workplace without
considering the conditions of his employment enumerated in
the collective bargaining agreement. Neither could that court
assess whether the employer's search of the car constituted an
unreasonable intrusion without understanding the scope of
the employer’s powers under the collective bargaining agree-
ment. [5] The court of appeals has expressly declined to con-
strue California’s privacy guarantee as a non-waiveable right.
[6] Abstention was not appropriate because, even if the Calli-
fornia courts found the privacy right non-waiveable, the right
is not absolute, and its scope would invoive consideration
and possible interpretation of the collective bargaining agree-
ment.
COUNSEL
Paul Alan Levy and Alan B. Morrison, Public Citizen Litiga-
tion Group, Washington, D.C., and Robert N. Jacobs, Los
Angeles, California, for the plaintiff-appellant.
C. Douglas Floyd, Pillsbury, Madison and Sutro, San Fran-
cisco, California, for the defendants-appellees.
OPINION
SCHROEDER, Circuit Judge:
Chevron, USA terminated David Stikes’ employment with
Chevron after Stikes refused to permit his employer to search
4a STIKES V. CHEVRON
his car that was parked in the company parking lot. Stikes
appeals the district court’s order denying his motions to
remand and to abstain, and granting summary judgment in
favor of his former employer, Chevron, USA. The district
court held that Stikes’ claims of violation of his right to pri-
vacy, wrongful discharge in violation of public policy, inten-
tional infliction of emotional distress, and unfair business
practices were completely preempted by section 301 of the
Labor Management Relations Act of 1947 (LMRA), 29
U.S.C. § 185 (1988), and hence were properly removable to
federal court and subject to summary judgment on the merits.
We affirm.
FACTS AND PROCEEDINGS BELOW
Stikes was employed by Chevron as a maintenance worker
from June 1983 until July 1987. The conditions of his
employment were governed by a collective bargaining agree-
ment (CBA) which recognized Chevron’s right to manage,
direct and determine its work force as well as to demote or
discharge any employee for cause. The CBA also stressed the
importance of safe work conditions and provided that Chev-
ron would consider safety suggestions made by the Union and
the employees and that the Union would encourage its mem-
bers “to cooperate with the Safety Program.”
In September of 1984, Chevron instituted a policy as part
of its safety program requiring its employees to submit to ran-
dom searches of their persons and property. Pursuant to this
policy, on July 2, 1987, Chevron’s security chief ordered
Stikes to submit to a search of his private vehicle which was
parked on company property. Stikes refused to submit to the
search, whereupon Chevron discharged him.
Stikes filed a suit in state court alleging that Chevron was
liable for (1) infringement of his right to privacy in violation
of Article 1, section | of the California Constitution; (2)
wrongful discharge in violation of public policy; (3) inten-
-
STIKES V. CHEVRON 5a
tional infliction of emotional distress; and (4) unfair business
practices. Chevron removed the action to federal district
court. Stikes moved for remand on the theory that his com-
plaint stated causes of action based solely on state law and
that therefore no federal question jurisdiction existed.
The district court denied Stikes’ motion on the ground that
Stikes’ state law claims were completely preempted by section
301 of the LMRA, 29 U.S.C. § 185, because the resolution of
Stikes’ right to privacy and attendant claims required inter-
pretation of the CBA. Stikes also moved for abstention,
asserting that the district court should await a determination
by the California courts as to whether under California law,
the right to privacy could be waived by a collective bargaining
agreement. The district court denied this motion as well. The
district court then granted Chevron’s unopposed motion for
summary judgment on the ground that Stikes’ claims were
preempted under section 301. This appeal followed.
DISCUSSION
The principal issue before us is whether Stikes’ cause of
action for interference with his State of California constitu-
tional right to privacy is completely preempted by section 301
of the LMRA and therefore removable to federal district
court.
Ordinarily, a defendant may remove a suit to federal court
only if the suit could have been brought there originally. 28
U.S.C. § 1441(a)(1988):; Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987); Jackson v. Southern California Gas Co.,
881 F.2d 638, 641 (9th Cir. 1989); Hyles v. Mensing, 849 F.2d
1213, 1215 (9th Cir. 1988). Under the well-pleaded com-
plaint rule, “federal jurisdiction exists only when a federal
question is presented on the face of [a plaintiff's complaint].”
Caterpillar, 482 U.S. at 392. A federal defense. including the
defense of preenfption. may not form the basis of federal
jurisdiction. “even if both parties concede that the federal
6a STIKES V, CHEVRON
defense is the only question truly at issue.” /d. at 2430 (cita-
tions omitted); see Oklahoma Tax Com'n v. Graham, 489
U.S. 838, 109 S. Ct. 1519, 1521 (1989).
The complete preemption doctrine, however, provides an
exception to the well-pleaded complaint rule. Caterpillar, 482
U.S. at 393; Whitman v. Raley’s, Inc., 886 F.2d 1177, 1180-81
(9th Cir. 1989); Jackson, 881 F.2d at 641. Under that doc-
trine
The pre-emptive force of a statute [may be] so ‘ex-
traordinary’ that it ‘converts an ordinary state
common-law complaint into one stating a federal
claim for purposes of the well-pleaded complaint
rule.’ Once an area of state law has been completely
pre-empted, any claim purportedly based on that
pre-empted state law is considered, from its incep-
tion, a federal claim....
Caterpillar, 482 U.S. at 393 (quoting Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 65 (1987)(footnote omitted)).
Section 301 of the LMRA is an example of a statute which
has such a powerfully preclusive effect. Caterpillar, 107 S. Ct.
2430; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209
(1985); Jackson, 881 F.2d at 642. It confers jurisdiction in the
district courts of the United States over “suits for violation of
contracts between an employer and a labor organization rep-
resenting employees. .. .”’ 29 U.S.C. § 185(a). Its preemptive
force is so powerful that it displaces entirely any state cause
of action for violation of a collective bargaining agreement.
Section 301(a) of the Labor Management Relations Act provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting com-
merce as defined in this chapter . . . may be brought ir any district
court of the United States having jurisdiction of the parties ... .
29 U.S.C. § 185(a).
STIKES V. CHEVRON 7a
Franchise Tax Bd. of California v. Construction Laborers
Vacation Trust for Southern California, 463 U.S. 1, 23 (1983).
Many suits by employees against employers are not in the
form of suits for breach of the collective bargaining agree-
ment, yet may nonetheless implicate provisions of the agree-
ment. This has given rise to some thorny jurisdictional
questions. See generally Note, Preemption of State Law
Claims After Lingle v. Norge, 34 Vill. L. Rev. 1035, 1050-58,
1071-77 (1989)(authored by Michelle Smith Nofer).
[1] During the past decade, the Supreme Court has handed
down a number of decisions defining the scope of section
301’s preemptive effect. At least two principles have emerged.
First, section 301 preempts state law claims which are
founded on rights created by a collective bargaining agree-
ment. Caterpillar, 482 U.S. at 394; Gulden v. Crown Zeller-
bach Corp., 890 F.2d 195, 198 (9th Cir. 1989); see, e.g.,
United States v. Rawson, 110 S. Ct. 1904, 1909-11 (1990);
International Brotherhood of Elec. Workers v. Hechler, 481
U.S. 851, 861 (1987); Allis-Chalmers, 471 U.S. at 220. Sec-
ond, section 301 preempts state law claims which are
“ ‘substantially dependent on analysis of a collective bargain-
ing agreement.’” Caterpillar, 482 U.S. at 394 (quoting
Hechler, 481 U.S. at 859 n.3); accord, Lingle v. Norge Division
of Magic Chef, Inc., 486 U.S. 399, 405-06, 410 (citations
omitted); Gulden, 890 F.2d at 198.
[2] In order to determine whether Stikes’ state law claim of
privacy substantially depends upon an interpretation of the
collective bargaining agreement, we must examine the ele-
ments of that claim to ascertain if any of the elements require
a construction of the agreement. See Lingle, 486 U.S. at 405-
410; Gulden, 890 F.2d at 198-99; Tellez v. Pacific Gas and
Elec. Co., Inc., 817 F.2d 536, 539 (9th Cir.), cert. denied, 484
U.S. 908 (1987); see also, Sluter v. United Mine Workers of
America, 892 F.2d 549, 553 (7th Cir. 1989); Jackson v. Liquid
Carbonic Corp., 863 F.2d 111, 116-119 (1st Cir. 1988). cert
8a STIKES V. CHEVRON
denied, 109 S. Ct. 3158 (1989). Two recent Ninth Circuit
decisions, like this case, involve suits by an employee against
an employer for violation of privacy interests protected by
the California Constitution. In both cases we expressly held
that a determination of a claim based on the California right
to privacy would substantially depend upon an analysis of the
collective bargaining agreement and would therefore be pre-
empted. Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988); Utility
Workers of America v. Southern California Edison Co., 852
F.2d 1083, 1085-87 (9th Cir. 1988), cert. denied, 109 S. Ct.
1530 (1989). Laws and Utility Workers both involved chal-
lenges to an employer’s imposition of a drug and alcohol test-
ing program. In Laws, a plaintiff employee refused to submit
to a urine test and was suspended. The employee alleged that
the drug program and his subsequent suspension violated his
California constitutional right to privacy. We found Laws’
claim subject to removal from state court on preemption
grounds. We reasoned that a drug and alcohol testing pro-
gram is a working condition “whether or not it is specifically
discussed in the CBA.” Laws, 852 F.2d at 433. We further
noted that Laws’ state law claim arose out of his suspension,
an issue covered by the collective bargaining agreement. /d.
In Utility Workers, 852 F.2d at 1086, we considered whether
the California Constitution created a nonnegctiable right to
privacy such that resolution of the privacy claim might not
involve the CBA. We concluded that “drug testing does not
implicate the sort of ‘nonnegotiabdle state law rights’ that pre-
clude preemption under section 301.” /d. (citation omitted).
Rather, “an employer’s decision to institute a drug testing
program is a proper subject for collective bargaining.” /d.
Laws and Utility Workers require us to find Stikes’ privacy
claim preempted.
Stikes asks us to revisit our Laws and Utility Workers
decisions in light of the Supreme Court’s recent holding in
Oklahoma Tax Commission, 109 S. Ct. at 1519. That case
involved a state’s action against an Indian tribe to recover
excise taxes. The tribe removed the case to federal district
STIKES V. CHEVRON 9a
court, asserting federal question jurisdiction on the ground
that the suit was barred by tribal sovereign immunity. The
Supreme Court found the action not properly removable
because the federal question appeared in the defense and not
on the face of the plaintiff's well-pleaded complaint.
Oklahoma is inapposite to the case at bar because it does
not involve an area of federal law subject to the complete pre-
emption corollary to the well-pleaded complaint rule. Stikes
argues that Oklahoma nonetheless requires a modification of
Laws and Utility Workers because it relied upon the Supreme
Court’s prior holding in Caterpillar, a case which did involve
an issue of section 301 preemption. Caterpillar held that an
employee’s state law claims were not subject to removal
“even though an interpretation of the collective bargaining
agreement might ultimately provide the employer a complete
defense to the individual |state] claims... .” Jd. at 1521 (cit-
ing Caterpillar, 482 U.S. at 396-98). The Court found
removal inappropriate in Caterpillar because plaintiffs’
claims in that case involved jobs outside the bargaining unit
and were based on the argument that the collective bargaining
agreement did not apply to plaintiffs at all. Caterpillar, 482
U.S. at 388-89, 394-95. In Laws, 852 F.2d at 433-34, we
expressly considered the effect of Caterpillar upon removal of
a claim based on California’s constitutional right to privacy.
Laws, like Stikes here, argued that the employer in that case
could not remove a state privacy claim to federal court based
on a federal defense of preemption. We rejected Laws’ argu-
ment on the ground that unlike the claims of the employees
in Caterpillar who asserted rights based upon individual
employment contracts outside the scope of the collective bar-
gaining agreement, Laws’ right to privacy claim was not
“wholly separate from the CBA” but rather was “inextricably
intertwined” with it because it involved a working condition.
Id. (citing Ali.s Chalmers, 471 U.S. at 213).
[3] Stikes’ right to privacy claim is inextricably intertwined
with the collective bargaining agreement. This is because a
10a STIKES V. CHEVRON
violation of California’s constitutional right to privacy
requires both that an individual have a “personal and objec-
tively reasonable expectation of privacy” and that the expec-
tation “has been infringed by an unreasonable . . . intrusion.”
Alarcon v. Murphy, 201 Cal.App.3d 1, 5, 248 Cal. Rptr. 26, 29
(Ct. App. 1988); see In re Deborah C., 30 Cal. 3d i25, 137,
177 Cal. Rptr. 852, 635 P.2d 446 (1981); Chico Feminist
Women's Health Center v. Scully, 208 Cal.App.3d 230, 240-
42, 256 Cal. Rptr. 194, 199-200 (Ct. App. 1989), People v
Superior Court(Safeco Insur. County), 61 Cal.App.3d 584,
588, 594, 210 Cal. Rptr. 695, 703-04 (Ct. App. 1985):
Armenta v. Superior Court of Santa Barbara County, 132 Cal.
Rptr. 586, 588, 592 (Ct. App. 1976). See also Flesh v. Board
of Trustees of Joint School Dist. 2, 786 P.2d 4, 8-9 (Mont.
1990)(to “determine whether a privacy interest is protected
under the [Montana] State Constitution, we apply a two-part
test: (1) whether the person involved had a subjective or
actual expectation of privacy; and, (2) whether society is will-
ing to recognize that expectation as reasonable.” (citations
omitted)).
[4] Here, the district court could not ascertain Stikes’
expectations of privacy at the workplace w.ihout considering
the conditions of his employment enumerated in the collec-
tive bargaining agreement. See Jn re Deborah, 30 Cal. 3d at
137 (“What constitutes a ‘reasonable’ expectation of privacy
depends on the circumstances and is measured by common
habits in the use of domestic and business properties.” (cita-
tions omitted)). By the same token, it could not assess
whether Chevron’s search of the car constituted an unreason-
able intrusion without understanding the scope of Chevron’s
powers provided for in the collective bargaining agreement.
Other circuits have similarly concluded that section 301
preempts state invasion of privacy claims. In Liguid Car-
bonic, 863 F.2d at 118, the First Circuit held that an employ-
ee’s claim that his employer’s drug testing program violated
his statutory right to privacy depended upon whether the test-
STIKES V. CHEVRON lla
ing was reasonable in light of the circumstances. This necessi-
tated an interpretation of the CBA because the CBA defined
the dimensions of the employee’s “cognizabie expectation of
privacy.” /d. at 118-19. In Kirby v. Alleghany Beverage Corp..,
811 F.2d 253 (4th Cir. 1987), an employee brought a state
invasion of privacy claim against his employer based on his
employer’s search of his person and request to search his
automobile. The Fourth Circuit determined that the analysis
of the employee’s claim would require reference to the CBA
to ascertain whether the employer’s actions were reasonable
in light of that agreement. /d. at 255-56. Thus, unlike the CBA
in Caterpillar, the CBA here does not provide a defense to
Stikes’ invasion of privacy claim. Rather, it is part and parcel
of the prima facie claim itself, subjecting that claim to federal
jurisdiction.
[5] Stikes next contends that the California right to privacy
is not negotiable and cannot be affected by a collective bar-
gaining agreement. We have expressly declined to construe
California’s privacy guarantee as a non-waiveable right.
Utility Workers, 852 F.2d at 1086. Stikes distinguishes that
case on the ground that Utility Workers involved drug testing
as opposed to a random search of an employee’s automobile,
suggesting that the privacy interests here are more compel-
ling. The distinction cuts the other way. If anything, a urine
analysis or similar search of a person’s body constitutes a far
greater intrusion of privacy than a car search. Furthermore.
even if California courts were to deem the right to privacy
nonnegotiable in the collective bargaining process, suits
based upon a violation of that right might nonetheless fall
within section 301’s preemptive grip. As the Supreme Court
explained in Lingle
While it may be true that most state laws that are not
pre-empted by § 301 will grant nonnegotiable rights
that are shared by all state workers, we note that ne!-
ther condition ensures nonpre-emption. It is con-
ceivable that a State could create 4 remedy that.
12a STIKES V. CHEVRON
although nonnegotiable, nonetheless turned on the
interpretation of a collective-bargaining agreement
for its application. Such a remedy would be pre-
empied by § 301.
486 U.S. at 407-08 n.7.
Stikes’ privacy claim was completely preempted by section
301 and properly dismissed on the merits. Appellant's
remaining claims of wrongful discharge, intentional infliction
of emotional distress and unfair business practices are
peripheral to the privacy claim. Stikes does not argue that
they should be independently remanded if we agree with the
district court and find the privacy claim completely pre-
empted. See Edelman v. Western Airlines, Inc., 892 F.2d 839,
844-45 (9th Cir. 1989)(section 301 preempted the gravamen
of plaintiffs complaint and therefore preempted parasitic
claims dependent upon that claim as well).
[6] Appellant’s final contention on appeal is that the district
court should have abstained from deciding the federal pre-
emption issue under the Pullman Abstention Doctrine. The
Pullman Abstention Doctrine prevents federal courts from
unnecessarily deciding constitutional questions. Rai/road
Comm. v. Pullman, 312 U.S. 496, 499-500 (1941). The ques-
tion of section 301 preemption does not rise to the level of a
constitutional question in abstention jurisprudence. C7
Knudsen Corp. v. Nevada State Dairy Comm., 676 F.2d 374.
377 (9th Cir. 1982). See generally C. Wright, The Law of Fed-
eral Courts 303-308 (4th ed. 1983). Appellant nevertheless
reasons that if the California courts were to deem the right to
privacy nonnegotiable, the federal courts would not have to
address the question of whether the LMRA preempts the pri-
vacy right. The right to privacy under California law, fiow-
ever, is based in major part upon the parties’ reasonable
expectations and these, of necessity, involve the working con-
ditions agreed upon in the collective bargaining agreement.
Thus, even if the California courts were to find the privacy
STIKES V, CHEVRON 13a
right non-waiveable, the right is not absolute and its scope
would involve consideration and possible interpretation of
the collective bargaining agreement. Pullman Abstention,
therefore, is not appropriate for this reason as well and the
district court properly refused to abstain.
AFFIRMED.
l4a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DAVID STIKES, an individual,
on behalf of himself and all other
persons similarly situated,
No. C-88-1476-CAL
Vv.
)
)
)
)
Plaintiff, )
)
)
)
)
CHEVRON USS.A.,
INCORPORATED, a Pennsylvania )
corporation; and DOES | through )
50, inclusive, )
Defendants.
—"~—— “~~
ORDER
Plaintiff has moved to remand the action to state
court. The court has reviewed the moving and opposing
papers, the record in the case, the arguments of counsel,
and the applicable authorities.
IT IS ORDERED that:
l. Plaintiff's motion for remand is denied.
Z A status conference will be held in this case
and in case No. C-88- 1000 on September 23, 198& at 11:00
a.m.
ISa
Dated: August 8. 1988.
lyf
CHARLES A. LEGGE
UNITED STATES
DISTRICT JUDGE
loa ‘
United States District Court
Northern District of California
DAVID STIKES, an individual, ) No. C 8&8 1476 CAL
on behalt of himself and all other)
persons similarly situated, ) ORDER DENYING
) PLAINTIFF DAVID
) STIKES* MOTIONS
Plaintiff, ) (1) FOR RECON-
) SIDERATION AND
VS. ) (2) FOR
) ABSTENTION
CHEVRON U.S.A., )
INCORPORATED, a )
Pennsylvania corporation; and __)
DOES | through 50, inclusive, —_)
)
Defendants. }
)
Plaintiff's motions (1) tor reconsideration of order
denying motion for remand or, in the alternative, tor
certification of order for interlocutory appeal, and (2) to
abstain, came on regularly tor hearing betore the Honor-
able Charles A. Legge on November 4, 1988, both plaintitt
and defendant appeared through their counsel of record.
The Court, having reviewed the papers tiled in support of
and in opposition to said motions, and having heard the
argument of counsel, and upon proot being made to the
satisfaction of the Court,
Hereby ORDERS. that said motions be, and the
same hereby are, denied.
7a
Dated: January, 1989.
JAN 16 9x9 CHARLES AL LEGGE
Judge of the United States
District Court
18a
United States District Court
Northern District of California
DAVID STIKES, an individual, ) No. C88 1476 CAL
on behalf of himself and all other )
persons similarly situated, ) ORDER GRANT-
) ING MOTION
Plaintiff, |) FORSUMMARY
) JUDGMENT
VS. ) AND JUDGMENT
) THEREON
CHEVRON U.S.A., )
INCORPORATED, a )
Pennsylvania corporation; and _ +)
DOES | through 50, inclusive, _)
)
Defendants. )
)
The motion of defendant CHEVRON U.S.A. INC.
for an order granting summary judgment in its favor upon
the complaint filed herein, came on regularly for hearing
on November 9, 1988 and January 13, 1989, before the
Honorable Charles A. Legge of the United States District
Court for the Northern District of California. Pillsbury,
Madison & Sutro appeared as counsel for said defendant.
and Robert N. Jacobs appeared on behalf of plaintiff
David Stikes.
The Court, having examined the written memo-
randa of counsel, the Declaration of T. M. Boyle and the
pleadings on file in this action, and having heard the argu-
ments of counsel, and upon proot being made to the
Ya
satisfaction ot the Court.
Hereby ORDERS that the motion of defendant
Chevron U.S.A. Inc. for summary judgment in its favor
upon the complaint be, and the same hereby is, granted.
Pursuant thereto,
It is further ORDERED, ADJUDGED and DE-
CREED that judgment be entered in favor of defendant
Chevron U.S.A. Inc. and against plaintiff David Stikes as
prayed for in the answer of said defendant to the complaint
on file in this action and that said deferdant recover its
costs Of suit herein.
Dated: JAN 19 1989
CHARLES A. LEGGE
Judge of the United States
District Court
20a
FILED
DEC 12 1990
CLERK, U.S. COURT
OF APPEALS
NOT FOR PUBLICATION
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID STIKES, an individual, ) No. &9-15208
on behalf of himself and all other )
persons similarly situated, ) D.C. # CV-88-1476-
) CAL
Plaintiff-Appellant, ) (Northern California)
)
v. )
)
CHEVRON USA, INC., a ) ORDER
Pennsylvania Corporation; and _)
Does 1 through 50, inclusive, )
)
Detendants-Appellees. —_)
)
Before: Judges HUG and SCHROEDER, Circuit
Judges, and VON DER HEYDT,”* District Judge.
* Honorable James A. von der Heydt, Senior United
States District Judge for the District of Alaska, sitting by
designation.
2la
The panel as constituted above has voted to deny
the petition for rehearing and to reject the suggestion tor
rehearing en banc.
The full court has been advised of the suggestion
for rehearing en banc and no judge of the court has
requested a vote on the suggestion for rehearing en banc.
Fed. R. App. P. 35.
The petition for rehearing is denied and the sugges-
tion tor rehearing en banc is rejected.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.