Opposition Brief — Stikes v. Chevron U. S. A., Inc.

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a APR 15 1090

No. 90-1431

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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,

CHEVRON U.S.A. INCORPORATED,

a Pennsylvania Corporation;

and Does | through 50, inclusive,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

C. DOUGLAS FLOYD

(Counsel of Record)

JAMES N. ROETHE

LAURIE J. ROBERTSON

225 Bush Street

Post Office Box 7880

San Francisco, CA 94120-7880

Telephone: (415) 983-1000

Attorneys for Respondent

PILLSBURY, MADISON & SUTRO

Of Counsel

BOWNE OF SAN FRANCISCO. INC + 190 NINTH ST + SF. CA 94103 + (415) 8664-2300

QUESTION PRESENTED

Is a claimed invasion of the California right of privacy based on

a workplace search completely preempted by section 301 of the

Labor Management Relations Act (29 U.S.C. § 185) where

resolution of that claim is inextricably intertwined with the terms

of the applicable collective bargaining agreement relating to the

workplace rights and duties of the parties?

AFFILIATED CORPORATIONS

Pursuant to Supreme Court Rule 29.1, respondent identifies

the following as its parent corporation and subsidiaries (except

wholly owned subsidiaries):

Chevron Corporation (parent)

Mozambique Gulf Oil Company (subsidiary).

In addition, respondent has an ownership interest in the follow-

ing publicly traded companies:

Felix Oil Company

Horizon Gold Corporation.

iil

TABLE OF CONTENTS

Reasons Why The Petition Should Be Denied ...........

Conclusion

Oe I Se Se ae ie Se et ee a oe a ae oe ee ae or a fr ce i ee i oe oh oe a a a a oe er a er

Page

TABLE OF AUTHORITIES

Cases

Page

Ackerman v. Western Elec. Co., Inc., 860 F.2d 1514 (9th

Re EE ean diac iLc lui ee Ula ee ght eh Nuk ve ks £8

Alarcon v. Murphy, 201 Cal.App.3d 1 (1988) ........... 7

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985) .

Armenta v. Superior Court, 61 Cal.App.3d 584 (1976) ... = 7

Brown v. Holiday Stationstores, Inc., 723 F.Supp. 396

I EO ig ce Sen eta aout het ob 6 12

Burrows v. Superior Court, 13 Cal.3d 238 (1974) ........ 7

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ....3, 6, 8,9

Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283 (9th

I eC Ge a hake he 9 6 12

Doyle v. State Bar, 32 Cal.3d 12 (1982)................ 7

ie oe Tremere ©, Fe Cae 1S CIDR). ow ev ceive veecss 5,7

Intern. Ass’n of Machinists by McCadden v. GE Co., 713

ef Be a ee 12

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

1988), certiorari denied 490 U.S. 1107 (1989) ........ 1]

Jackson v. Southern California Gas Co., 881 F.2d 638 (9th

0 ee Te et kU eat oi 12

Kirby v. Allegheny Beverage Corp., 811 F.2d 253 (4th Cir.

1987), certiorari denied 110 S.Ct. 1133 (1990) ........ 1]

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988) .......... 4, i0

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399

PO a Luau eens ene cae keh e§ beKees 6, 10, 12

Loder v. Municipal Court, 17 Cal.3d 859 (197%), certiorari

es BO ) . : SER 7

Luck v. Southern Pacific Transportation Cc o., 218

Cal.App.3d 1 (1990), certiorari denied 111 S.Ct. 344

SED Scab vied tee tetalene san eee ener Ess 10

Makray v. Sara Lee Corp., 736 F.Supp. 793 (N.D.IIl. 1990) 12

Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir.

RN ee Oa een ee CU Ce ene ieenk tee aN bike ahs 12

Miller v. Fairchild Industries, Inc., 668 F.Supp. 461 (D.Md

MRS FEDS ne ARSENE eg Soo nar na, ne ee 12

TABLE OF AUTHORITIES

CASES

Oklahoma Tax Commission v. Graham, 489 U.S. 838

CRIN 5.5 0s 60S ad a kar Cae ieee aes eae ene 3

Pantoja v. Texas Gas and Transmission Corp., 890 F.2d 955

(7th Cir. 1989), certiorari denied 110 S.Ct. 3272 (1990) 12

People ex rel. Franchise Tax Bd. v. Superior Court, 164

oF 8 8 8 er er eer rare ere rer 7

People v. Stritzinger, 34 Cal.3d 505, 511 (1983) ......... 7

Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir. 1989),

certiorari denied 110 S.Ct. 539 (1989) ............... 12

Strachan v. Union Oil Co., 768 F.2d 703 (Sth Cir. 1985) 11

Utility Workers of America v. Southern Cal. Edison, 852

F.2d 1083 (9th Cir. 1988), certiorari denied 489 U.S.

PU UND occ ka acenekn Wee Sareea case mae eae 4,10

Valley Bank of Nevada v. Superior Court, 15 Cal. 3d 652

CONTED Cs. cbda se Uad PAR Ad ERD ARTE ER Ge Te 7

Constitutions

California Constitution

Res © GR Bs sa vc ck oo ee bee es 3

Statutes and Codes

Title 29, United States Code:

oF ee errr ree ere ee rr ee 3

I OE cb heen Chock pene oe passim

No. 90-1431

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,

¥.

CHEVRON U.S.A. INCORPORATED,

a Pennsylvania Corporation;

and Does | through 50, inclusive,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

A. Statement of Facts.

Petitioner, David Stikes, was employed by Chevron as a main-

tenance worker at Chevron’s Kettleman Hills production facility.

At all times during the course of that employment, petitioner was

represented by the International Union of Petroleum and Indus-

trial Workers (“IUPIW”). The terms and conditions of his

employment were established by a collective bargaining agree-

ment between the IUPIW and Chevron. Pet. App. 4a.

Chevron had a written policy prohibiting unauthorized drugs,

intoxicating beverages, firearms or other weapons at its Kettleman

Hills facility. The policy provided that, as a safety precaution and

to prevent theft of property, all persons and vehicles brought onto

Company property were subject to search. Pet. App. 4a; Supp.ER

12.' The policy expressly provided that employees who refused to

comply with a search request would be subject to discipline, up to

and including discharge. Ibid. Petitioner acknowledged in writing

having received and read a written notice of this policy. Ibid.

On July 1, 1987, in response to the discovery of what appeared

to be drug paraphernalia in a Company-owned vehicle, Chevron

conducted a security inspection of its employees at Kettleman

Hills in accordance with its published policy. Pet. App. 4a; ER 55,

4 13; 56, 418. Petitioner, while permitting a search of his

lunchpail, locker, and pockets, refused to permit Chevron’s secur-

ity representative to inspeci his vehicle, which was parked on

Company property. Id.; ER 55, 7 16. As a result, petitioner was

terminated from employment.

The collective bargaining agreement recognizes Chevron’s nght

to manage, direci and determine its workforce and to demote or

discharge an employee for cause, and acknowledges the recogni-

tion of both Chevron and the IUPIW that safe working conditions

and practices are essential in the prevention of personal injury and

damage to equipment. Pet. App. 4a; Agreement (Supp.ER 18-

82), Arts. I1.C, IX.B, XX.A. In addition, the union agreed to

encourage its members to work in a safe manner and “to cooper-

ate with the Safety Program.” Art. XX.A. The agreement also

provides employees or the union with a three-step grievance

procedure that culminates in binding third-party arbitration for

the purpose of settling disputes. Arts. VII and VIII. A “just cause

provision” of the agreeinent permits employees to protest a

demotion or discharge. Art. I X.B.’

' References to the ER and the Supp.ER are to the Excerpts and

Supplemental Excerpts of Record filed in the court of appeals.

> Here the union did initiate a grievance on petitioner’s behalf shortly

after his discharge, and pursued it through the first two stages, but

B. Proceedings Below.

1. On March 23, 1988, petitioner filed an action against

Chevron and the IUPIW in the United States District Court for

the Northern District of California urder section 301 of the Labor

Management Relations Act (““LMRA”’) and the National Labor

Relations Act, 29 U.S.C. § 151, et seq. (No. C 88 1000 CAL), in

which he alleged that “Chevron’s conduct, both in unilaterally

promulgating its search-and-seizure policy and in firing David

Stikes for refusing to submit to a search of his car pursuant to this

policy, is in violation of the terms of the collective bargaining

agreement attached hereto as Exhibit A.” Supp.ER 9-10, § 28.

The complaint also states a claim against the IUPIW for breach

of its duty of fair representation and an unfair labor practice.

Supp.ER 10, {| 29. That action was stayed pending the Ninth

Circuit’s decision in the present case, and remains pending in the

district court.

On the same day that he filed his federal section 301 acticn

claiming that his discharge violated the collective bargaining

agreement, petitioner filed the present action against Chevron in

California state court alleging that the search and his subsequent

discharge violated his right of privacy under Article I, section 1,

of the California Constitution.’ On April 22, 1988, Chevron

removed petitioner’s state court action to the United States

District Court for the Northern District of California on the

ground that petitioner’s state claims were completely preempted

by section 30] of the LMRA. The district court denied peti-

tioner’s motion for remand. The court then granted Chevron’s

motion for summary judgment on the ground that the action

should be dismissed as completely preempted by federal law.

2. The court of appeals affirmed. The court explicitly recog-

nized that, under this Court’s decisions in Caterpillar, Inc. v.

Williams, 482 U.S. 386 (1987) and Oklahoma Tax Commission

abandoned it before the final. binding arbitration stage was concluded.

Supp.ER 2, ¥ 1: 10, 4 29; 83; 84.

* Petitioner also alleged other state law theories that, as the court of

appeals held, were dependent on the disposition of his privacy claim.

Pet. App. 12a.

v. Graham, 489 U.S. 838 (1989), “[a] federal defense, including

the defense of preemption, may not form the basis of federal

jurisdiction * * *.” Pet. App. Sa. The sourt also recognized, how-

ever, that under the “complete preemption” doctrine, “ ‘the pre-

emptive force of a statute [may be] so “extraordinary” that it

“converts an ordinary state common-law complaint into one

stating a federal claim for purposes of the well-pleaded complaint

rule” ’” (id. at 6a, quoting Caterpillar, supra, 482 U.S. at 393),

and that “section 301 of the LMRA is an example of a statute

which has such a powerfully preclusive effect” (id. at 6a).

The court of appeals noted that this Court’s decisions establish

that section 301 completely preempts state law claims either that

are founded on rights created by a collective bargaining agree-

ment, or “which are ‘substantially dependent on analysis of a

collective bargaining agreement’ ” (id. at 7a, quoting Caterpillar,

482 US. at 394), and that to determine whether a claim substan-

tially depends upon an interpretation of the collective bargaining

agreement, “we must examine the elements of that claim to

ascertain if any of the elements require a construction of the

agreement” id. at 7a).

The court then examined the elements of petitioner’s privacy

claim. It noted that in two previous decisions it had held that “a

determination of a claim based on the California right to privacy

would substantially depend upon an anatysis of the collective

bargaining agreement and would therefore be preempted.” Id. at

8a.* The court concluded that petitioner's privacy claim “is

inextricably intertwined with the collective bargaining agree-

ment” because “a violation of California’s constitutional right to

privacy requires both that an individual have a ‘personal and

objectively reasonable expectation of privacy’ and that the expec-

tation ‘has been infringed by an unreasonable * * * intrusion.’ ”

Id. at 9a-!10a.

“Here, the district court could not ascertain Stikes’ expec-

tations of privacy at the workplace without considering the

* Utility Workers of America, Local 246 v. Southern California

Edison Co., 852 F.2d 1083, 1086 (9th Cir. 1988), certiorari denied, 489

U.S. 1078 (1989); Laws v. Calmat, 852 F.2d 430, 433 (9th Cir. 1988).

conditions of his employment enumerated in the collective

bargaining agreement. See In 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.”

Id. at 10a.

As the court also recognized, the complete preemption issue

presented in this case is fundamentally different from that in

Caterpillar, because “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.” Id. at 11a (emphasis

added).

REASONS WHY THE PETITION SHOULD BE DENIED

In an effort to create an issue worthy of this Court’s attention

where none exists, the petition misstates the issues, mischaracter-

izes the opinion of the court of appeals, and misconstrues this

Court’s decisions considering the preemptive force of section 301.

On the only issue presented—whether a claim that a workplace

search violates the California right of privacy is substantially

dependent on the provisions of the applicable collective bargain-

ing agreement—there is no conflict among the circuits and no

inconsistency with any decision of this Court. Nor does this case

present any “extremely important question of federalism.” Pet.,

p. 10. It is petitioner, not the Ninth Circuit, who has misunder-

stood and “disregarded” (Pet., p. 18) this Court’s decisions and

the reasons why the removal and subsequent dismissal of peti-

tioner’s complaint were clearly correct.

1. As the court of appeals recognized, section 301 of the

LMRA is the leading example of a federal statute whose preemp-

tive force is so extraordinary that it completely preempts both

state law claims that are founded directly on rights created by a

collective bargaining agreement and those that are “ ‘substantially

dependent on analysis of a collective bargaining agreement.’ ”

Caterpillar, supra, 482 U.S. at 393-394, quoting Electrical Work-

ers v. Hechler, 481 U.S. 851, 859, n. 3 (1987). Contrary to

plaintiff's erroneous contention that “only state suits to enforce a

CBA * * * ‘arise under’ section 301 and hence are removable”

(Pet., p. 15), it is settled beyond any possible question that “[i]f

the policies that animate section 301 are to be given their proper

range ** * the preemptive effect of section 301 must extend

beyond suits alleging contract violations.” Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 210 (1985). As this Court reaffirmed in

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399

(1988):

“[I]f the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement, the applica-

.tion of state law (which might lead to inconsistent results

since there could be as many state-law principles as there are

States) is pre-empted and federal labor-law principles—

necessarily uniform throughout the nation—must be em-

ployed to resolve the dispute.” Id. at 406.

Thus, section 301 preemption extends beyond contract disputes to

a Claim framed in terms of state tort law if resolution of the claim

is “inextricably intertwined with consideration of the terms of [a]

labor contract.” Allis-Chalmers Corp. v. Lueck, supra, 471 U.S. at

213,

2. The petition is based entirely on the erroneous suppositions

that the provisions in the collective bargaining agreement are

irrelevant to the determination of petitioner's claim that his

privacy rights were violated by a workplace search, that his

privacy claim could have been litigated without considering the

provisions of the collective bargaining agreement (Pet., p. 7), and

that the collective bargaining agreement could be relevant, if at

all, only “defensively” to determine whether it constituted a

“waiver” of petitioner’s privacy claim. Pet., pp. 5, 7, 8, 9, 10, 15,

16, 17, 18. As the court of appeals held, none of these assertions is

correct. Petitioner’s pivotal claim that a federal “defense” of

“waiver” provides no basis for removal is beside the point.

Removal in this case was not based on any alleged defense of

waiver, but on the fact that, under clearly established law,

petitioner's own claim for relief cannot be resolved without

careful analysis of the provisions of the collective bargaining

agreement that necessarily have an important bearing on the

scope and reasonableness of his workplace privacy expectations.”

3. California law could not be clearer that in determining

whether the nmght of privacy has been violated, a court must

consider all of the facts and circumstances bearing on the weight

and significance of the interest in disclosure, on the one hand, and

the intrusion on reasonable privacy expectations, on the other.

Under California law, “the right to privacy is not absolute”

(People v. Stritzinger, 34 Cal.3d 505, 511 (1983)), and depends

upon “striking a-balance” between the competing interests in

disclosure and privacy under all of the circumstances. Valley

Bank of Nevada v. Superior Court, 15 Cal.3d 652, 657-658

(1975); see, e.g., Doyle v. State Bar, 32 Cal.3d 12, 21 (1982);

Loder v. Municipal Court, 17 Cal.3d 859, 864 (1976), certiorari

denied, 429 U.S. 1109 (1977). That balance turns in significant

part on “whether a person has exhibited a reasonable expectation

of privacy” in the particular circumstances. Burrows v. Superior

Court, 13 Cal.3d 238, 243 (1974) (emphasis added). Accord,

People ex rel. Franchise Tax Bd. v. Superior Court, \64

Cal.App.3d 526, 540 (1985) (“The basic test of whether there

has been a violatien of the constitutional right of privacy is

whether a person’s personal and objectively reasonable expecta-

tion of privacy has been infringed * * *”); Jn re Deborah C., 30

Cal.3d 125, 137 (1981) (“[w]hat constitutes a ‘reasonable’

expectation of privacy depends on the circumstances and is

measured by common habits in the use of domestic and business

properties’) (emphasis added); Alarcon v. Murphy, 201

Cal.App.3d 1, 5 (1988); Armenta v. Superior Court, 61

Cal.App.3d 584, 588 (1976). Cf. O'Connor v. Ortega, 480 U.S.

709, 715 (1987) (“the reasonableness of an expectation of pni-

vacy, as well as the appropriate standard for a search, is under-

* Similarly, petitioner’s assertion that the Ninth Circuit’s decision

found preemption based on the “mere existence” of a collective bargain-

ing agreement (Pet., second question presented and pp. 7, 20) is

specious.

stood to differ according to context”). And, foremost among the

circumstances bearing on the strength and reasonability of the

interests in privacy and disclosure in the context of a workplace

search are the provisions of the applicable collective bargaining

agreement.

4. Petitioner's assertion that the Ninth Circuit “focus[ed] on

the [defense of] waiver* ** not the claims pleaded by peti-

tioner” (Pet., p. 9) is clearly wrong. The court of appeals

explicitly reaffirmed that removal may not be based solely on the

existence of a federal preemption defense. Supra, p. 4. The point,

rather, is that the collective bargaining agreement defines and

governs the workplace relationship between the parties and there-

fore necessarily has an important bearing on the interests of the

parties and the scope of the reasonable expectations against which

any privacy mghts enjoyed by petitioner are required to be

measured. Pet. App. 9a-10a. The elements of plaintiff's own claim

for relief therefore brought the provisions of the collective bar-

gaining agreement into play. A court would have to interpret the

agreement to determine the legitimate interests and expectations

of Chevron and its employees and to draw the appropriate balance

between them in the context of this workplace search.

5. The state claims in Caterpillar, Inc. v. Williams, 482 US.

386 (1987) (Pet., pp. 14-16) arose in an entirely different

context. The plaintiffs in Caterpillar filed an action in state court

in which they elecied to rely on contractual rights that arcse while

they were in non-union management positions and before they

were demoted to positions covered by the collective bargaining

agreement. The collective bargaining agreement was interjected

into the suit only by way of the employer’s defense—i.e., that

after plaintiffs were demoted, the collective bargaining agreement

somehow superseded any contract rights arising earlier. Caterpil-

lar, supra, 482 U.S. at 394-397. By contrast, the only contract

that governed petitioner's employment relationship with Chevron

was the collective bargaining agreement. And because petitioner's

affirmative claim for relief itself necessarily involved interpreta-

tion of that agreement, this action was properly removed, and

subsequently dismissed, as completely preempted by section 30].

Petitioner’s reliance on Caterpillar again rests on the mis-

characterization of the issue as whether the collective bargaining

agreement in this case constituted a “waiver” of plaintiff's privacy

rights. However, as previously discussed, reference to the collec-

tive bargaining agreement is required in this case, not to resolve a

defense, but to determine plaintiff's own claim for relief. As the

court of appeals explained, “[h]Jere, the district court could not

ascertain Stikes’ expectations of privacy at the workplace without

considering the conditions of his employment enumerated in the

collective bargaining agreement. * * * By the same token, it could

not assess whether Chevron’s search of the car constituted an

unreasonable intrusion without understanding the scope of Chev-

ron’s powers provided for in the collective bargaining agreement.”

Pet. App. 10a.

6. Petitioner's further contention that the decision of the

court of appeals would permit removal even if the collective

bargaining agreement, properly construed, would not defeat the

reasonable privacy expectations of the employee (Pet., pp. 11-12,

23, 25) misses the central point of this Court’s section 301

preemption decisions. This Court has repeatedly held that any

State law claim that is “substantially dependent” upon the process

of construing a collective bargaining agreement is completely

preempted by section 301, regardless of the outcome of that

process, because of the overriding necessity for uniformity in the

application of federal labor law. See, e.g., Allis-Chalmers, supra,

471 U.S. at 210, 213. In this case, to determine whether the

collective bargaining agreement’s provisions relating to the work-

place rights and obligations of the employer and the employees do

or do not strengthen or undermine the reasonable privacy expec-

tations of the employees and the countervailing interest of the

employer in disclosure, the provisions of the agreement must first

be interpreted and applied. Where a state law claim is substan-

“This is well illustrated by petitioner's “hypotheticals” (Pet.,

pp. 11-12) that, alternatively, posit that the collective bargaining agree-

ment “as reasonably construed” does not bear on privacy; that the

agreement's “actual meaning tilts slightly in favor of the employer”; and

that the agreement should be construed to require the employer to

adhere to state privacy protections. Pet., pp. 11, 12. Similarly, peti-

tially dependent on such a process, it is completely preempted.

This does not leave the employee remediless or “completely

eviscerate” (Pet., p. 25) protections of unionized employees. The

employee’s remedy instead lies under the provisions of the appli-

cable collective bargaining agreement, as demonstrated by peti-

tioner’s pending federal action alleging that his discharge violated

section 301. Supra, p. 3.’

Nor does the decision below in any way conflict with Lingle v.

Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988). Pet.,

pp. 19-21. To the contrary, Lingle explicitly reaffirms Allis-

Chalmers’ central premise—that preemption is dependent upon

whether the asserted claim, regardless of how it is framed, must

be resolved with reference to the collective bargaining agreement.

471 US. at 211. In Lingle, this Court found that resolution of

plaintiffs claim of retaliatory discharge for filing a workers’

compensation claim required no analysis of the collective bargain-

ing agreement and, indeed, was completely “ ‘independent’ of the

collective bargaining agreement.” 486 U.S. at 407. By contrast, in

this case, the Ninth Circuit correctly concluded that the Califor-

nia privacy claim was “inextricably intertwined” with the CBA.

Pet. App. 9a. While petitioner asserts (contrary to clear author-

ity)® that California courts would hold that the right of privacy

cannot be “waived “ in collective bargaining, this Court in Lingle

explicitly concluded that even where a right is claimed to be

tioner's second “question presented” asserts that the Ninth Circuit’s

decision is erroneous because it finds preemption even though a court

has not determined “the actual way in which the CBA applies to the

specific conduct that forms the basis of the state law claim.”

’ Moreover, petitioner’s exaggerated arguments disregard that under

this court’s decisions (and under the decision below), on/y claims that

are substantially dependent on the terms of a collective bargaining

agreement are preempted. All other state law protections and reguiations

of working conditions are unaffected.

* Luck v. Southern Pacific Transportation Co., 218 Cal.App.3d 1, 28

(1990), certiorari denied 111 S.Ct. 344 (1990) (consent to drug testing

under a CBA would be lawful); Laws v. Calmat, supra, 852 F.2d at 433;

Utility Workers of America v. Southern Cal. Edison, supra, 852 F.2d

1086 (drug testing does not implicate “nonnegotiable state-law nghts’’).

“non-negotiable,” complete preemption still occurs where inter-

pretation of the bargaining agreement is required for its determi-

nation. 486 U.S. at 408, n. 7. As the court of appeals in the

present case correctly held in rejecting petitioner’s Pullman

abstention argument:

“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 privacy right. The right to privacy

under California law, however, is based in major part upon

the parties’ reasonable expectations and these, of necessity,

involve the working conditions agreed upon in the collective

bargaining agreement. Thus, even if the California courts

were to find the privacy right non-waiveable, the right is not

absolute and its scope would involve consideration and possi-

ble 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.” Pet. App. 12a-13a.

7. There is also no conflict in the circuits. As the Court of

Appeals for the First Circuit recognized in an analogous case

alleging an invasion of the Massachusetts privacy right, it is clear

that California courts “would view the collective bargaining

process aS an appropriate datum in constructing the needed

balance between the worker’s privacy rights and the legitimate

concerns of management.” Jackson v. Liquid Carbonic Corp., 863

F.2d 111, 117 (1st Cir. 1988), certiorari denied 490 U.S. 1107

(1989), citing Laws v. Calmat, supra, 852 F.2d at 433, 434, n. 5,

and Utility Workers of America, Local 246 v. Southern California

Edison Co., supra, 852 F.2d at 1086. Other circuits as well have

held that section 301 completely preempts employee challenges to

the validity of employer actions involving employee drug testing

and searches under state law. See, e.g., Kirby v. Allegheny

Beverage Corp., 811 F.2d 253 (4th Cir. 1987), certiorari denied

110 S.Ct. 1133 (1990) (privacy claim based upon search of

person and request to search automobile); Strachan v. Union Oil

Co., 768 F.2d 703, 705 (Sth Cir. 1985) (workplace search cases

are “grist for the mill of grievance procedures and arbitration”).

There are no reported cases to the contrary. The decisions

referred to by petitioner as allegedly creating a conflict (Pet.,

pp. 16, 22-23) are completely inapposite. None involved a

claimed privacy intrusion, and, in stark contrast to the present

case, none would have required resort to the provisions of the

collective bargaining agreement to determine whether the plain-

tiff had established a right to relief.’

* For example, Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir.

1989), certiorari denied 110 S.Ct. 539 (1989); Pantoja v. Texas Gas

and Transmission Corp., 890 F.2d 955 (7th Cir. 1989), certioran denied

110 S.Ct. 3272 (1990); Makray v. Sara Lee Corp., 736 F.Supp. 793

(N.D.Il. 1990); Miller v. Fairchild Industries, Inc., 668 F.Supp. 461

(D.Md. 1987); Brown v. Holiday Stationstores, Inc., 723 F.Supp. 396

(D.Minn. 1989); and Intern. Ass'n of'Machinists by McCadden v. GE

Co., 713 F.Supp. 547 (N.D.N.Y. 1989) all involved claims for retalia-

tory discharge or statutory discrimination that , like the claim addressed

by this Court in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399 (1988), were not in any way dependent on the provisions of the

collective bargaining agreement, and therefore were not preempted The

holdings in these cases are entirely consistent with those of the Ninth

Circuit, which also treats statutory discrimination claims as not pre-

empted by section 301. See e.g., Jackson v. Southern California Gas

Co., 881 F.2d 638, 644 (9th Cir. 1989); Chmiel v. Beverly Wilshire

Hotel Co., 873 F.2d 1283, 1286-1287 (9th Cir. 1989); Ackerman v.

Western Elec. Co., Inc., 860 F.2d 1514, 1517 (9th Cir. 1988); Miller v.

AT&T Network Systems, 850 F.2d 543, 550 (9th Cir. 1988). None of

petitioner’s cases involves a claim that, like the right of privacy in this

case, is substantially dependent upon the provisions of a collective

bargaining agreement.

CONCLUSION

For these reasons, the petition for a writ of certiorari should be

denied.

Respectfully submitted,