Opposition Brief — Anderson v. Anheuser-Busch Cos., Inc.

Supreme Court of the Unfitedr&éatestue currx

OCTOBER TERM, 199 SUPREME COURT, U.S.

*

STEVE ANDERSON, SCOTT ANDERSON, ALEX BILICH,

SANTIAGO CASILLAS, CHARLIE COLLINS, GREGORY

DE ROSSI, LARRY DILLON, CORNELIUS HINES,

DENNIS KNITTEL, HECTOR MARTINEZ, CURTIS MCDOWELL,

TOM RAYMO, MICHAEL SCOTT, EDWARD SIMBER,

STEVE SIMON, NOAH SMITH, MICHAEL SYMONDS,

WILLIE WESLEY, STEVE WILSON,

Petitioners,

" Vv.

ANHEUSER BUSCH COMPANIES, INC., ANHEUSER BUSCH,

INC., RUSS WHITMEYER AND ASSOCIATES, INC., WELLS

FARGO GUARD SERVICES, a Corporation, AUGUST BUSCH III,

an Individual, JOHN BURKE, an Individual, CHRIS HARDIN, an

Individual, GEORGE LOGAN, an Individual, ROBERT WARNER, an

Individual, GARY PRINDIVILLE, an Individual, RUSS

WHITMEYER, an Individual, LETA WHITMEYER, an Individual,

and DOES 1 through 100 Inclusive

Respondents.

Son

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

———

RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION

4

JOHN B. GOLPER (Counsel of Record)

JEFFREY P. FUCHSMAN

BALLARD, ROSENBERG & GOLPER

10 Universal City Plaza, 16th Floor

Universal City, California 91608-1097

(818) 508-3700

Counsel for Respondents

ANHEUSER-BUSCH COMPANIES, INC., ANHEUSER-

BUSCH, INC., AUGUST BUSCH III, JOHN BURKE,

GARY PRINDIVILLE, ROBERT WARNER, GEORGE

LOGAN, CHRIS HARDIN, RUSS WHITMEYER AND

ASSOC., INC., RUSS WHITMEYER, and LETA »)

WHITMEYER | NV"

i

PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the proceeding.

Respondent Anheuser-Busch Companies, Inc. does not

have any parent company or non-wholly owned subsidiaries.

Respondent Anheuser-Busch Companies, Inc. is the parent

company of respondent Anheuser-Busch, Inc. The only non-

wholly owned subsidiary of respondent Anheuser-Busch, Inc.

is Somerset Distributors, LLC. Respondent Russ Whitmeyer

And Associates, Inc. does not have any parent company o1

non-wholly owned subsidiaries.

ii

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING ............ i

TABLE OF CONTENTS ............000000% i |

TABLE GF AUTHORIIIBS ... ccc ce deecece iv |

STATEMENT OF THE CASE. .2.. 00 cccediws 1

A. The Petition Mischaracterizes The

Factual Circumstances Surrounding ;

The August 18, 1995 Drug Search

SE kos te a eo ee bk ae Secs 2

B. ABI’s Right To Conduct The August 18,

1995 Search Has Been Upheld By Five

NE CIEE op a ce 9K 6B a ctw 8 |

REASONS FOR DENYING THE PETITION ..... 5

A. This Court Previously Denied Two

Earlier Petitions Which Were Based

On Identical Facts And Raised

Identical Issues And Arguments As

pe 5

B. The Ninth Circuit’s Decision Is

I sat N's wie! 6.4 0 ce 6090 6% 6

C. The Ninth Circuit’s Decision Is

Consistent With This Court’s

I I or er oc 6 wees a bes ‘|

CONTENTS - continued

D. The Ninth Circuit’s Decision Is

Consistent With Other Ninth

es So a

E. The Ninth Circuit’s Decision Is

Consistent With Decisions From

Co A oa Wie 5 a elie ve % BS

F. The Ninth Circuit’s Decision Is

Independently Supported On State

fess ae ss alee «ee a Kes

(_AMRAIED) 60 A UNS) ale 2 HRS Ped 4

iv

TABLE OF AUTHORITIES

Page

Cases:

In Re Amoco Petroleum Additives Co.

964 F.26 706 (7 Cir. 1992) 2 www ce ee 11

Bagby v. General Motors Corp.

970 £26 99 GEC BR)... Ee. 11

Blanchard v. Simpson Plainwell Paper Co.

925 F. Supp. 510 (W.D. Mich. 1995) ...... 12

Consolidated Rail Corp. v. Railway Labor Exec. Assn.

491 U.S. 299, 109 S. Ct. 2477,

TUS Ges De OS eas 7

Caterpillar, Inc. v. Williams

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

oe Ae i re 7

Dancy v. Fina Oil & Chemical Co.

921 F. Supp. 1532 (E.D. Tex. 1996) ........ 12

Espinal v. Northwest Airlines

pe AD.) rr 11

Felt v. Atchison, Topeka & Santa Fe Railway Co.

GO Fi38 T686 Gee Cer. 1995) wee 11

Hawaiian Airlines v. Norris

512 U.S. 246, 114 S. Ct. 2239,

129 L. Ed. 2d 203 (1994) ..... 2, 7, 8, 9, 10, 11

Vv

AUTHORITIES - Continued

Page

Jackson v. Liquid Carbonic Corporation

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

490 U.S. 1107, 109 S. Ct. 3158,

104 i. Se. 2G Ee Cie eS 12

Kelly v. Mercoid Corporation

776 F. Supp. 1246 (N.D. Ill. 1991) ........ 12

Kirby v. Allegheny Beverage Corp.

Sli F208 Zoo (Ge, ISG) ee ae. &. 12

Laws v. Calmat

So2 F420 450 Om Cir. 1908) ww wk 12

Lingle v. Norge Div. of Magic Chef

486 U.S. 399, 108 S. Ct. 1877,

Me he, Ges oe Ge Cees Se A a 7

Livadas v. Bradshaw

512 U.S. 107, 114 S. Ct. 2068,

129 L. Ed. 2d 93 (1994) ...... y a A Me

Majors v. U.S. Air, Inc.

340 &.. S0pp. Boe (D. Mid: 1961) ©... ee. 12

Mock v. T.G. & Y. Stores Co.

Fil F.26 Sea CIO Cis 1902): oe ee, 11

Proffitt v. International Paper Co.

953 F. Supp. 207 (S.D. Ohio 1996) ........ 12

vi

AUTHORITIES - Continued

Ramirez v. Fox Television Station

956 F.2d 748 CG Gt. 1958) iv eee 8

Romero v. Hilton Hotels Corp.

137 L.R.R.M. (BNA) 2647 (D. Hawaii 1991) .. 10

Schlacter-Jones v. General Tel. of California

936 F.2d 435 (Oth Cir. 1991) .......4.2. 9, 11

Scott v. Machinists Automotive Trades

Dist. Lodge No. 190

$27 F.2d S09 Gh Cir. 1967) 0 ww eee ee. 10

Stikes v. Chevron USA, Inc.

914 F.2d 1265 (9th Cir. 1990),

cert. denied, 500 U.S: 917, 111 S. Ct. 2015,

134 B.Sc. ee Ge ye ct Pwd os 9, 10

Strachan v. Union Oil Co.

ro Re & 7. [> No . SR one ee 12

Sweigart v. Delmotte

148 L.R.R.M. (BNA) 2413 (E.D. Pa. 1994),

affirmed, 74 F.3d 1228 (3rd Cir. 1995) ...... 11

Utility Workers of America, Local No. 246

v. Southern California Edison, Co.

852 F.2d 1083 (9th Cir. 1988),

cert. denied, 489 U.S. 1078, 109 S. Ct. 1530,

EOS Sa. Se ee Gee ae ke. oe IE 10

vii

AUTHORITIES - Continued

Page

Wall v. Americold Corp.

1997 U.S. Dist. LEXIS 10366

SS SS. ere ‘trecmitun.e 12

Statutes:

99 U.S.C. Gectiom 151 2... ww cc ccc cecccccces 8

29 U.S.C. Section 185....... ccc cccsccseseces 1

42 U.S.C. Sectiom 1963 ......ccccvccvcscne 8

Cal. Civil Code Section 52.i(b)..........-5+-:- 13

Cal. Labor Code Section 203 ...........--.- 8,9

Rules:

Ninth Circuit Rule 36-3 ........--0ee eee 2, 6

1

STATEMENT OF THE CASE

The petition seeks this Court’s review of the Ninth

Circuit’s unpublished memorandum opinion summarily

affirming the district court’s order granting respondents’

motion to dismiss.’ Petitioners argue review of the Ninth

Circuit’s order is warranted to clear up the "confusion" in the

Ninth Circuit and other courts over the scope of preemption

under Section 301 of the Labor Management Relations Act

("LMRA") [29 U.S.C. § 185].

As demonstrated below, this Court’s review of the Ninth

Circuit’s decision is unwarranted. First, this Court has

already denied two earlier petitions arising out of the same

drug search operation, and which raised identical issues and

arguments as the petition in the instant case.2 Moreover, the

Ninth Circuit’s unpublished memorandum at issue is non-

'The Ninth Circuit’s July 27, 1998 memorandum opinion is

attached as appendix A to the petition. The district court’s

December 16, 1996 order granting respondents’ motion to dismiss

is attached to the petition as appendix B.

On May 18, 1998, this Court denied the petition for a writ of

certiorari in the matter entitled Cameron, et al. v. Anheuser Busch,

Inc., et al., No. 97-1468. Notably, counsel for petitioners herein

also represented the petitioners in Cameron. Petitioners’ brief

herein is virtually identical to the brief previously filed by the

Cameron petitioners. On June 8, 1998, this Court also denied the

petition for a writ of certiorari in the matter entitled Teamsters,

etc. v. Anheuser-Busch, Inc., et al., No. 97-1661. Fifteen of the

nineteen petitioners in the instant case were members of the

Teamsters local union that filed the petition in Teamsters.

Respondents submit that the petitioners’ arguments which were

rejected by this Court when denying the petitions in Cameron and

Teamsters are no more persuasive the third time around.

2

precedential.? The memorandum hardly creates any conflicts

between the circuits to be resolved by this Court. In

addition, the Ninth Circuit’s memorandum is completely

consistent with a long line of earlier Ninth Circuit decisions

which uniformly applied Section 301 preemption principles

to bar state law privacy and related claims under nearly

identical circumstances, as well as with numerous decisions

from other circuits. Contrary to petitioners’ assertion, the

Ninth Circuit’s decision is also entirely consistent with this

Court’s Section 301 cases, including the decisions in Livadas

v. Bradshaw, 512 U.S. 107, 114.S. Ct. 2068, 129 L. Ed. 2d

93 (1994), and Hawaiian Airlines v. Norris, 512 U.S. 246,

114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994). Finally, six of

the twelve claims asserted by petitioners were dismissed on

independent state law grounds. The ruling is entirely

consistent with California law, and should not be reviewed

by this Court.

A. The Petition Mischaracterizes The Factual

Circumstances Surrounding The August 18, 1995 Drug

Search At Issue

The petition grossly exaggerates the factual circumstances

surrounding the August 18, 1995 drug search at issue and

ignores facts that are important for the Court’s consideration

of the petition. The relevant facts are all part of the record

below.

‘Pursuant to Ninth Circuit Rule 36-3, the decision may not

even be cited to or by other courts in the Ninth Circuit.

3

Most notably, the petitioners were all employed with

respondent Anheuser-Busch, Inc. ("ABI") pursuant to a

collective bargaining agreement ("CBA") between ABI and

their respective unions. The CBA’s include provisions for

drug testing, discipline and discharge, safety, and a grievance

and arbitration } socedure to challenge alleged violations of

tue CBA. The CBA covering petitioners Collins and Knittle

also contains an express "Management rights" clause.

For at least ten years before the August 18, 1995 search,

ABI posted conspicuous signs at the employee entrances and

exits advising employees of ABI’s right to search employees

and their vehicles parked on ABI property. ABI had an

established practice to randomly search employees and

employee property on ABI premises, and to discipline

employees that refused to allow the search. ABI even used

trained "sniff dogs" in an earlier locker room search. None

of petitioners’ unions ever challenged ABI’s right to conduct

searches, or to discipline employees as a result of the search

or for refusing to allow the search, prior to the August 18,

1995 parking lot search at issue. The August 18, 1995

search was also consistent with ABI’s longstanding policy

prohibiting use or possession of drugs in the workplace.

ABI retained respondent Russ Whitmeyer And Associates,

Inc. ("Whitmeyer"), a company with substantial experience

assisting employers with drug elimination programs, to

conduct the August 18, 1995 parking lot search. Whitmeyer

used trained drug sniffing dogs to identify vehicles containing

drug residue. If an employee’s vehicle was identified as

"positive," the employee was taken to a private room, along

with his union steward, and asked to consent to a search of

his vehicle and possessions. If the suspected employee

refused to allow the search, the employee was suspended

subject to termination. If illegal drugs or paraphernalia were

4

discovered during the search, the employee was also

suspended subject to termination. At no time during the

search operation was anyone, including the petitioners, ever

physically prevented from leaving the facility or subjected to

any physical force.

B. ABI’s Right To Conduct The August 18, 1995 Search

Has Been Upheld By Five Separate Arbitrators

Petitioners Bilich, Simon and Smith were terminated as

a result of the search; Bilich for refusing to consent to the

search, and Simon and Smith for possession of drugs.

Petitioners Bilich, Simon and Smith filed grievances under

the CBA challenging their terminations, and ABI’s right to

conduct the August 18, 1995 search, generally. The

grievances were pursued to arbitration, and all three

arbitrators held that ABI had the management right to

conduct the August 18, 1995 search based on the terms of the

CBA and its established practice to search employees on its

property. Two other arbitrators reached the same conclusion

in connection with grievances that were filed by other

employees that were either terminated for refusing to consent

to a search, or because drugs or paraphernalia were found in

their vehicles.° In all five cases, the unions asserted that

ABI breached the CBA in conducting the search. In all five

‘Petitioner Anderson also filed a grievance challenging ABI’s

conduct but the grievance was resolved by his union and ABI at the

pre-arbitration step of the grievance procedure.

‘These two employees were petitioners in the Cameron case.

As discussed above, the Ninth Circuit affirmed the dismissal of

their action based on Section 301 preemption, and this Court

denied their petition for certiorari.

5

cases, the arbitrators concluded that the search was permitted

by the CBA. It is disingenuous, at est, for petitioners to

assert that the CBA’s are not at issue.

REASONS FOR DENYING THE PETITION

This Court has already denied two previously filed

petitions which were based on identical facts, and which

raised identical issues and arguments as the instant petition.

The Ninth Circuit’s short, unpublished memorandum

summarily affirming the dismissal of petitioners’ complaint

is non-precedential. The memorandum is consistent with

other Ninth Circuit decisions, decisions from other circuits,

and this Court’s Section 301 cases. There is no "confusion"

in the lower courts or conflict between the circuits as to any

question raised by this case which is of such importance to

warrant relief by this Court. The Ninth Circuit’s decision is

also independently supported on state law grounds.

A. This Court Previously Denied Two Earlier Petitions

Which Were Based On Identical Facts And Raised

Identical Issues And Arguments As The Instant

Petition

This Court has twice denied petitions raising the identical

issues and arguments that are raised by petitioners here. As

discussed above, the petitions filed in the Cameron and

Teamsters cases arose out of the same August 18, 1995 drug

search operation at issue here. In both cases, the Ninth

Circuit affirmed the dismissal of the state law claims based

on Section 301 preemption, and unanimously rejected

6

petitions for rehearing en banc.® The petitioners in Cameron

are represented by the same attorney as petitioners herein,

and fifteen of the nineteen petitioners herein were members

of the Teamsters local union that filed the petition in

Teamsters. The Anderson petitioners raise the same issues

and arguments that were rejected by this Court when denying

the petitions in Cameron and Teamsters. Indeed, the brief

filed by the Anderson petitioners is taken almost word for

word from the brief filed by the Cameron petitioners.

Petitioners’ arguments are no more persuasive the third time

around.

B. The Ninth Circuit’s Decision Is Non-precedential

The Ninth Circuit’s short unpublished memorandum

summarily affirms the district court’s order dismissing

petitioners’ complaint. The memorandum cannot be cited to

or by other courts in the Ninth Circuit (Ninth Circuit Rule

36-3), much less by courts in other circuits. If the Section

301 issues raised by this case are as important and far

reaching as petitioners suggest, they deserve a full discussion

and analysis by a court of appeal before consideration by this

Court. There is no sound reason for this Court to decide

broad preemption issues based on the Ninth Circuit’s short

unpublished memorandum.

°That not even one Circuit Judge voted to rehear either case en

banc further demonstrates that the Ninth Circuit’s Section 301

analysis is in the mainstream, and does not warrant further review

by this Court.

7

C. The Ninth Circuit’s Decision Is Consistent With This

Court’s Section 301 Cases

The Ninth Circuit’s decision is entirely consistent with

this Court’s Section 301 preemption cases. As this Court has

held, claims founded on rights created by a CBA are

preempted by Section 301. Caterpillar, Inc. v. Williams, 482

U.S. 386, 394, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987).

Moreover, state law claims which are substantially dependent

on the analysis of a CBA are also preempted by Section 301.

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-6,

108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988). In considering

whether a state law claim requires analysis of a CBA and,

therefore, is preempted, it is necessary to consider both

express and implied terms of the CBA. Consolidated Rail

Corp. v. Railway Labor Exec. Assn., 491 U.S. 299, 109 S.

Ct. 2477, 105 L. Ed. 2d 250 (1989) ("Conrail").

This Court’s established Section 301 analysis has not been

limited by Livadas or Hawaiian Airlines (referred to by

petitioners as "Norris"). In Hawaiian Airlines, this Court

held that the plaintiff’s state law "whistle blower" claim was

not preempted by the Railway Labor Act ("RLA") because

only the employer’s motivation for the plaintiff's discharge

was at issue, not any rights or provisions under the CBA.

Hawaiian Airlines, 129 L. Ed. 2d at 220. Significantly, this

Court relied heavily on the earlier decision in Conrail, supra.

In Conrail, this Court concluded that an employer’s unilateral

implementation of a drug testing policy was a "minor

dispute" within the meaning of the RLA and, therefore,

subject to the grievance and arbitration procedures of the

CBA even though the CBA did not contain express provisions

on drug testing. In discussing the Conrail decision, this

Court noted that characterizing a dispute as "minor" under

the RLA "is another way of saying that the dispute does not

8

involve rights that exist independent of the CEA." Hawaiian

Airlines, 129 L. Ed. 2d at 219 (emphasis added).

The instant case does not involve a state law whistle

blower claim that only concerns respondents’ motives. On

the contrary, unlike in Hawaiian Airlines, respondents’

motives are of no consequence here. Moreover, this Court’s

recognition that privacy rights relating to drug testing do not

exist independent of a CBA further supports the Ninth

Circuit’s decision that petitioners’ state law privacy and

related claims are preempted by Section 301.’

In Livadas, a unionized employee brought a civil rights

action against California’s wage enforcement agency under

42 U.S.C. § 1983 based on the agency’s refusal to enforce

the employee’s statutory claim for late payment of wages

under Cal. Labor Code § 203. This Court held that the

agency’s blanket refusal to enforce unionized employees’

statutory claims for late payment of wages under Cal. Labor

Code § 203 interfered with the employees’ exercise of union

activities and, therefore, was preempted by the National

Labor Relations Act ("NLRA"), 29 U.S.C. § 151 ef seg.

Livadas, 129 L. Ed. 2d at 101-2. This Court rejected the

agency’s argument that Section 301 prohibited its

enforcement of Cal. Labor Code § 203 for unionized

employees. In concluding that Section 301 did not compel

the agency’s enforcement policy, this Court noted that

"It is also noteworthy that the holding in Hawaiian Airlines is

based on the same rationale applied by the Ninth Circuit when

holding state law discrimination claims are not preempted by

Section 301. Ramirez v. Fox Television Station, 998 F.2d 743,

748-49 (9th Cir. 1993) (state law discrimination claim is not

preempted by Section 301 because only the employer’s

discriminatory inient is at issue).

9

Section 301 preemption has generally been applied to

preclude state laws relating to the interpretation or

enforcement of a CBA, or re-labeled state tort claims that

derive from the CBA (like petitioners’ claims here).

Livadas, 129 L. E. 2d at 109. Where the state law claim is

independent of rights under a CBA, Section 301 preemption

does not apply. Livadas, 129 L. Ed. 2d at 110. This Court

held that Section 301 did not bar the agency’s enforcement of

Cal. Labor Code § 203 because the employee’s entitlement

to a statutory penalty for her employer’s late payment of

wages was not derived from the CBA. /d. Significantly,

this Court noted, however, that even a claim under Cal.

Labor Code § 203 could be preempted by Section 301 where

the CBA was at issue. Livadas, 129 L. Ed. 2d at 110-11 n.

19.

The Ninth Circuit’s decision here is completely consistent

with Livadas, Hawaiian Airlines, and this Court’s other

Section 301 cases. There is no compelling reason to review

the Ninth Circuit’s decision.

D. The Ninth Circuit’s Decision Is Consistent With Other

Ninth Circuit Cases

The decision affirming the dismissal of petitioners’

complaint is also supported by other Ninth Circuit cases

holding state law privacy and related claims are preempted

by Section 301 under nearly identical circumstances.

Schlacter-Jones v. General Te!. of California, 936 F.2d 435,

440-42 (9th Cir. 1991) (Section 301 preempts state law

privacy, fraud, conspiracy, intentional infliction of emotional

distress, contract and coveuant of good faith and fair dealing

claims arising out of employer’s unilaterally imposed drug

testing policy); Stikes v. Chevon USA, Inc., 914 F.2d 1265,

1269 (9th Cir. 1990), cert. denied, 500 U.S. 917, 111S. Ct.

10

2015, 114 L. Ed. 2d 101 (1991) (state law claims for

invasion of privacy, wrongful discharge and intentional

infliction of emotional distress arising out of employer’s

vehicle search policy preempted by Section 301); Utility

Workers of America, Local No. 246 v. Southern California

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

denied, 489 U.S. 1078, 109 S. Ct. 1530, 103 L. Ed. 2d 835

(1989) (state law privacy and wrongful termination claims

arising out of employer’s unilateral random drug testing

program preempted by Section 501); Laws v. Calmat, 852

F.2d 430, 433 (9th Cir. 1988) (Section 301 preempts state

law privacy claim based on employer’s unilateral drug testing

policy); Scott v. Machinists Automotive Trades Dist. Lodge

No. 190, 827 F.2d 589, 594 (9th Cir. 1987) (defamation

claim arising out of misconduct investigation preempted by

Section 301).

There is nothing in Hawaiian Airlines or Livadas that

would warrant review of the Ninth Circuit’s decision here.

These cases actually further support the Ninth Circuit’s

preemption ruling because they reaffirm that claims which do

not exist independent of a CBA, like petitioners’ claims here,

are preempted. As this Court has held, claims relating to an

employer’s drug testing/search policy are not independent of

‘While the Ninth Circuit has not considered when a false

imprisonment claim may be preempted, it has repeatedly held

claims which are merely "peripheral" to a preempted privacy claim

are also preempted. Stikes, 914 F.2d at 1270. See Romero v.

Hilton Hotels Corp., 137 L.R.R.M. (BNA) 2647, 2649-50 (D.

Hawaii 1991) (assault, battery, false imprisonment, and infliction

of emotional distress claims arising out of employer’s theft

investigation preempted by Section 301).

11

a CBA. The earlier Ninth Circuit cases all follow this

principle.?

E. The Ninth Circuit’s Decision Is Consistent With

Decisions From Other Circuits

Far from creating a conflict between the circuits, the

Ninth Circuit’s decision is consistent with the great weight of

authority from other circuits as well. See, e.g., Sweigart v.

Delmotte, 148 L.R.R.M. (BNA) 2413, 2415-17 (E.D. Pa.

1994), affirmed, 74 F.3d 1228 (3rd Cir. 1995) (Section 301

preempts state law violation of privacy claim resulting from

employer’s surveillance of employee bathroom); Mock v.

T.G. & Y. Stores Co., 971 F.2d 522, 529-30 (10th Cir.

1992) (state law claims for invasion of privacy, defamation,

false imprisonment, intentional infliction of emotional

distress, wrongful termination, and covenant of good faith

and fair dealing arising from employer’s interrogation of

employees were preempted by Section 301); In Re Amoco

Petroleum Additives Co., 964 F.2d 706, 710 (7th Cir. 1992)

(state law claims for invasion of privacy and infliction of

emotional distress based on employer’s use of surveillance

cameras in employee locker room are preempted by Section

301); Bagby v. General Motors Corp. , 976 F.2d 919, 921-22

Petitioners incorrectly assert that recent Ninth Circuit

decisions have adopted a more narrow application of Section 301

preemption after Livadas and Hawaiian Airlines. Felt v. Atchison,

Topeka & Santa Fe Railway Co., 60 F.3d 1416 (9th Cir. 1995);

Espinal v. Northwest Airlines, 90 F.3d 1452 (9th Cir. 1996).

These cases follow earlier Ninth Circuit decisions holding that

statutory discrimination claims are non-negotiable and, therefore,

not preempted by Section 301. On the other hand, privacy and

related claims are negotiable, and are preempted by Section 301.

Schlacter-Jones, 936 F.2d at 442.

- 12

(Sth Cir. 1992) (defamation and intentional infliction claims

arising out of theft investigation preempted); Jackson v.

Liquid Carbonic Corporation, 863 F.2d 111, 119 (1st Cir.

1988), cert. denied, 490 U.S. 1107, 109 S. Ct. 3158, 104 L.

Ed. 2d 1021 (1989) (state law invasion of privacy claim

based on employee’s termination for failing drug test

preempted by Section 301); Kirby v. Allegheny Beverage

Corp., 811 F.2d 253, 256 (4th Cir. 1987) (invasion of

privacy claim based on employer’s request to search

employee’s person and vehicle preempted by Section 301);

Strachan y. Union Oil Co., 768 F.2d 703, 705-6 (Sth Cir.

1985) (defamation, false imprisonment, and false arrest

claims arising out of drug investigation preempted by Section

301); Blanchard v. Simpson Plainwell Paper Co., 925 F.

Supp. 510 (W.D. Mich. 1995) (false imprisonment claim

arising out of drug investigation preempted); Kelly v.

Mercoid Corporation, 776 F. Supp. 1246, 1253-55 (N.D. Ill.

1991) (state law privacy claim based on employee's

termination for refusing urinalysis test preempted by Section

301); Majors v. U.S. Air, Inc., 525 F. Supp. 853, 857 (D.

Md. 1981) (false imprisonment and defamation claims arising

out of theft investigation preempted).

Even petitioners recognize that the lower courts generally

continue to hold state law privacy and related claims are

preempted by Section 301. Proffitt v. International Paper

Co., 953 F. Supp. 207, 211-12 (S.D. Ohio 1996); Dancy v.

Fina Oil & Chemical Co., 921 F. Supp. 1532, 1537-38

(E.D. Tex. 1996); Wall v. Americold Corp., 1997 U.S. Dist.

LEXIS 10366 (E.D. Pa. 1997).

Petitioners argue that the lower courts are "confused" and

need further guidance on the application of Section 301 to

privacy and related claims. Respondents disagree. The few

district court or state court decisions that have concluded

13

privacy related claims are not preempted are contrary to the

great weight of authority. These cases are inconsistent with

the mainstream decisions on Section 301 preemption. That

petitioners and a few, isolated iower courts may be

"confused" does not warrant review of the Ninth Circuit’s

decision.

F. The Ninth Circuit’s Decision Is Independently

Supported On State Law Grounds

The district court dismissed the first, second, seventh,

eighth, ninth and tenth causes of action on the independent

grounds that these claims were barred by California state law

in addition to Section 301."° (appendix B) Petitioners did

not challenge the district court’s dismissal of these claims on

state law grounds before the Ninth Circuit. The ruling is

entirely consistent with California law, and should not be

reviewed by this Court.

The first cause of action was for violation of Cal. Civil Code

§ 52.1(b); the second cause of action was for false imprisonment;

the seventh cause of action was for defamation; the eighth cause of

action was for false arrest; the ninth cause of action was for

malicious prosecution; and the tenth cause of action was for abuse

of process.

14

CONCLUSION

For all the foregoing reasons, the petition should be

denied.

DATED: November 17, 1998

Respectfully submitted,

JOHN B. GOLPER (Counsel of Record)

JEFFREY P. FUCHSMAN

BALLARD, ROSENBERG & GOLPER

10 Universal City Plaza, 16th Floor

Universal City, California 91608-1097

(818) 508-3700

Counsel for Respondents

ANHEUSER-BUSCH COMPANIES, INC.,

ANHEUSER-BUSCH, INC., AUGUST

BUSCH Il, JOHN BURKE, GARY

PRINDIVILLE, ROBERT WARNER,

GEORGE LOGAN, CHRIS HARDIN,

RUSS WHITMEYER AND ASSOC., INC.,

RUSS WHITMEYER, and LETA

WHITMEYER