Opposition Brief — Teamsters Brewery & Soft Drink Workers Local Union 896, International Brotherhood of Teamsters v. Anheuser-Busch, Inc.

No. 97-1661

IN THE ‘

Supreme Court of the United States

OCTOBER TERM, 1997

TEAMSTERS BREWERY & SOFT DRINK WORKERS

LOCAL UNION 896, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, AFL-CIO,

Petitioner,

TA

ANHEUSER-BUSCH, INC., ROBERT WARNER, a.k.a.,

BOB WARNER, and Does | Through 100, Inclusive,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

[O THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

WILLIAM L. COLE

Counsel of Record

LAWRENCE A. MICHAELS

MITCHELL, SILBERBERG & KNUPP LLP

11377 West Olympic Boulevard

Los Angeles, California 90064-1683

(310) 312-2000

Attorneys for Respondents

ANHEUSER-BUSCH, INC. and ROBERT WARNER

Lawyers Brief Service * Appellate Brief Printers * (213) 613-1013 * (714) 720-1510

wie

QUESTION PRESENTED

Did the lower court properly uphold Summary judg-

ment for Respondents, based on the finding that R*=spon-

dent Anheuser-Busch’s right to conduct work place

searches was governed by the collective bargaining

agreement between Anheuser-Busch and Petitioner

Teamsters Union, and therefore state law claims chal-

lenging Anheuser-Busch’s right to conduct such a work

place search were preempted by Section 301 of the

Labor Management Relations Act?

‘ais

PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the

proceeding.

Respondent Anheuser-Busch, Inc.’s parent company

is Anheuser-Busch Companies, Inc. The only non-

wholly owned subsidiary of respondent Anheuser-

Busch, Inc. is Somerset Distributors, LLC.

- iii -

TABLE OF CONTENTS

Page

Pueessun PRESENTED. ....6..0652.. i

PARTIES TO THE PROCEEDING. ........ ii

Reames Wr AWEOMUIT IOS: . ok ck Vv

I, se ee l

I er Go ss ee |

weeeeretee SUWEMWOD a See SO ee l

pemsmeemns OF THE CASE ........... 2

REASONS FOR DENYING THE PETITION ... 3

A. The Ninth Circuit Order Is Non-

MERE SRR Dt aera a cane men 4

B. The Petition Wildly Misrepre-

sents The Facts Of The Dispute,

And How The Law Was Applied

oy ome Gres Ow. Cc ee we 4

1. The Union’s Misrepresenta-

es aS ee 4

2. The Union’s Misrepresenta-

eo es ee 8

C. The Ninth Circuit’s Order Is

Consistent With This Court’s

So 10

ee

Page

D. The Ninth Circuit’s Order Is

Consistent With Other Ninth

Cae Ce i eae a ey 14

E. The Full Ninth Circuit Un-

animously Rejected Petitioner’s

Suggestion For Rehearing En

Oe Ss se eee ee lee 17

F. The Ninth Circuit’s Order Is

Consistent With Decisions From

I NN Sa ee ae 18

Ret ¢ Ros el eg eee ee a 21

-V-

TABLE OF AUTHORITIES

Page

Cases

- Bagby v. General Motors Corp.,

VIG Ve She Ce 8 cs a se 18

Blanchard v. Simpson Plainwell Paper Co.,

925 F. Supp. 510 (W.D. Mich. 1995). ...... 19

Caterpillar, Inc. v. Williams,

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

Pe see Fee i a a 10

Consolidated Rail Corp. v. Railway

Labor Executives’ Ass'n.,

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

[ar a ee te oo ec ge ee 1]

Hawaiian Airlines v. Norris,

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

ia? We MOO LIPO) 6 oes re 13

In Re Amoco Petroleum Additives Co..,

76 7.20 700 Gate 19s. 2s SS 18, 19

Jackson v. Liquid Carbonic Corporation,

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

cert. denied, 490 U.S. 1107,

109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989) . . . .18

Kelly v. Mercoid Corporation,

776 F. Supp. 1246 (N.D. Ill. 1991). ....... 19

Kirby v. Allegheny Beverage Corp.,

etl PAG 25s Ce Chr 108). k = 18

= Yi «

Page

Laws v. Calmat,

SS2 FAG 430 (Pee Ce. APS cs Riaiw 8 oes 16

Lingle v. Norge Division of Magic Chef, Inc.,

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

Bad Le A EE hs 6 Re ee 10

Livadas v. Bradshaw,

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

20 LE Se CEO a 6 Oi 12,43

Majors v. U.S. Air, Inc.,

San F. SOM, Bao Ge Oe. 1FSE) ke a 19

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

O71 F.26 Sas Cie es Ae) 6 oe A ER 18

Romero v. Hilton Hotels Corp.,

137 L.R.R.M. (BNA) 2647

(i: SE Ba se ea ee A 17

Schlacter-Jones v. General Telephone,

S356 F206 S35 CO Aa Sar i ew 15

Scott v. Machinists Automotive Trades

Dist. Lodge No. 190,

O27 FFE See Ce Ga hs is alae Fee 17

Stikes v. Chevron USA, Inc..,

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

cert. denied, 500 U.S. 917,

111 S.Ct. 2015, 114 L.Ed.2d 101 (1991). . .14, 17

Strachan v. Union Oil Co..,

768 F.26 Tes Corn CAE: Teh & 6s ORR 18

- Vil -

Page

Sweigart v. Delmotte,

148 L.R.R.M. (BNA) 2413

(E.D. Pa. 1994), affirmed,

Fe i Ae Ge ac A ss 5 kw eS 18

Utility Workers of America, Local No. 246 v.

Southern California Edison Company,

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

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

Se aa et CON) 6 we ok a we 16, 17, 20

Statutes

ann SUC Ce ae 13

Labor Management Relations Act,

Section 301

So Ui B 1Oe 6x ks S 1, 3, 4, 10, 12-14, 17-19

Rules

United States Supreme Court Rule 15.1. ....... 4

(Ste OS

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents Anheuser-Busch, Inc. (“Anheuser-

Busch”) and Robert Warner (collectively “Respon-

dents”) respectfully submit this Opposition to the instant

Petition for Writ of Certiorari.

OPINIONS BELOW

The Ninth Circuit’s November 3, 1997 order affirm-

ing the summary judgment for Respondents, which was

not reported, is attached to the Petition as Appendix A.

The Ninth Circuit’s December 23, 1997 order denying

the petition for rehearing and suggestion for rehearing en

banc is attached as Appendix B to the Petition.

The May 24, 1996 judgment for Respondents and the

District Court’s May 13, 1996 “Decision, Findings of

Fact, Conclusions of Law and Order Granting Summary

Judgment for Defendants” (i.e., Respondents) are at-

tached to the Petition as Appendix C and Appendix D,

respectively.

JURISDICTION

Respondents agree with Petitioner’s statement of

jurisdiction.

STATUTES INVOLVED

1. Section 301 of the Labor Management Rela-

tions Act, 29 U.S.C. § 185.

me We

STATEMENT OF THE CASE

This Petition seeks review of the Ninth Circuit’s

unpublished one-line order affirming the District Court’s

grant of summary judgment for Respondents. (“We

AFFIRM the District Court’s grant of summary judg-

ment to appellees.”). Petitioner’s request for rehearing

was denied by the Ninth Circuit panel deciding the

appeal (Circuit Judges Pregerson, D.W. Nelson and

Hawkins), and the full Ninth Circuit unanimously re-

jected Petitioner’s suggestion for rehearing en banc.

In this action, Petitioner Teamsters Union Local 896

(the “Union” or “Petitioner”) challenged the right of

Respondent Anheuser-Busch, Incorporated (“Anheuser-

Busch” or the “Company” or “Respondent’”) to conduct

searches of employees’ vehicles parked on Company

premises. The action arises out of a search of the Com-

pany’s “employee parking lot” which occurred on

August 18, 1995 as part of Anheuser-Busch’s efforts to

maintain a drug free work place at its Los Angeles

brewery.

On that occasion, Anheuser-Busch conducted a search

of its own parking lot, for drugs contained in cars. This

was done during regular working hours. The Company

engaged an outside service, which utilized trained dogs

to detect the smell of drugs in cars parked in the parking

lot. In each instance when a canine detected the scent of

drugs and the scent was confirmed by a second canine,

the employee who owned the vehicle was asked to come

to the parking lot, and was asked to sign a written con-

sent to permit a search of the vehicle. Employees were

advised that failure to cooperate with the search would

result in discharge from employment.

The Union brought this action in Los Angeles County

Superior Court, on behalf of its members employed at

=

Anheuser-Busch’s Los Angeles Brewery (the “Union

employees”). Those employees work for Anheuser-

Busch pursuant to a collective bargaining agreement

between the Company and the Union. Anheuser-Busch

removed the action to federal Court, based on federal

question jurisdiction and diversity of citizenship.

The District Court granted summary judgment for

Anheuser-Busch on the grounds that each of the Unicn’s

claims was preempted by Section 301 of the Labor

Management Relations Act. (Appendix D.) The Ninth

Circuit affirmed.

REASONS FOR DENYING THE PETITION

The Ninth Circuit’s short, unpublished order sum-

marily affirming the summary judgment for Respondents

is nonprecedential. Although the Union mischarac-

terizes both the facts giving rise to this dispute and the

legal conclusions reached by the courts below, an exami-

nation of the findings of the lower courts clearly demon-

Strates that the judgment was perfectly consistent with

and properly applied the controlling § 301 preemption

principles established by this Court.

The Ninth Circuit’s order is also consistent with the

Ninth Circuit’s prior decisions, as well as decisions from

other circuits. There is no “confusion” in the lower

courts or conflict between the circuits as to any question

raised by this case, nor is there any question which is of

such importance to warrant review by this Court.

In fact, the full Ninth Circuit unanimously rejected

Petitioner’s suggestion for a rehearing en banc.

a

A. The Ninth Circuit Order Is Non-

precedential.

The Ninth Circuit’s order summarily affirms the

District Court’s order granting Respondents’ summary

judgment. The order does not explain the basis for the

ruling. (Appendix A) The order cannot be cited to or

relied upon 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 im-

portant and far reaching as Petitioner suggests, they

deserve a full discussion and analysis by a court of

appeals before consideration by this Court. There is no

sound or compelling reason for this Court to use its

sought after resources to rehash well-settled preemption

rules based on the Ninth Circuit’s one-line order.

B. The Petition Wildly Misrepresents

The Facts Of The Dispute, And How

The Law Was Applied By The

Courts Below.

Rule 15.1 of this Court provides that “a brief in oppo-

sition to a petition for a writ of certiorari ... should

address any perceived misstatements of fact or law set

forth in the petition.” In the instant case, Petitioner has

wildly misrepresented both the facts and the law.

1. The Union’s Misrepresentations

of Fact.

In its Petition, the Union asserts that this case in-

volves employees who were “confined” in a “prison-like

caged area ... like so many holocaust victims.” Petition

=e

at 3. The Petition goes on to recite a story that is

dramatically at odds with the evidentiary record, and the

factual findings of the courts below.

The truth is reflected in the District Court’s findings

of fact.' Those findings make it clear that, contrary to

the Union’s assertions, no employee at Anheuser-

Busch’s plant was “confined” at all, much less “caged

like a holocaust victim.” Rather, the District Court

expressly found, employees were free to leave the plant

at any time, but were informed that they would be sub-

ject to termination from employment if they refused to

cooperate with Anheuser-Busch’s search.2_ The District

' The District Court granted summary judgment for Anheuser-Busch

based on admissions taken from the deposition of the Union’s

designated representative. Despite ihe Union's contrary represen-

tations to this Court, the facts which supported summary judgment

below were entirely undisputed.

2 This finding was based on, among other things, the deposition of

the Union's representative, who unequivocally testified that the only

constraint placed on employees to require their cooperation with the

drug search was the possibility of termination; i.e., the fact that an

employee who left the Brewery premises without consenting to a

search upon request would be subject to termination of employment.

The Union's representative testified:

“Q. Other than the threat of termination for

refusing to consent or violating plant rules,

are you aware of any other threat or

constraint that was placed on employees on

that night?

{Objection omitted.]}

A. To my knowledge, no, sir.

Q. As you understand it, the only conse-

quence that any employee was told they

would suffer if they left the plant without

signing the consent and passing through the

turnstile was that they would lose their job?

(continued)

me eS

Court’s findings of fact included the following:

“5. Union employees at the Los

Angeles Brewery clock in and out of

the brewery by inserting an electronic

badge to pass through a ‘turnstile’

between the brewery plant and the

employee parking lot.

6. There is no physical obstruction

which would prevent a person from

leaving the brewery premises, or

entering the employee parking lot,

without passing through these turn-

stiles, but an employee is subject to

discharge if he or she does leave in a

way as to avoid these _ turnstiles.

Guards are stationed in such a manner

as to inform any employee attempting

to avoid these turnstiles that they must

go through the turnstiles or face

termination.

7. The Union’s claim of ‘false impri-

sonment’ is based on the fact that

employees were threatened’ with

(fn. ——

hat was the only consequence; correct?

A. The only consequence that I was

informed of, yes, sir.

Q. As you understand it, if an employee

had chosen not to pass through the

turnstiles but rather walk around the guard

shack into the parking lot, get in their car

and leave, they would have been ter-

minated; correct?”

A. Yes.

EE

:

x

termination if they left the brewery

premises without consenting to a

vehicle search, or without clocking

out by passing through the turnstiles.”

(Appendix D.)

Further, as the District Court expressly found,

Anheuser-Busch’s right to conduct such a search was

governed by the collective bargaining agreement be-

tween Anheuser-Busch and the Union. The District

Court found:

“9. Under work rules adopted by

Anheuser-Busch, any Union employee

who leaves plant premises during

working hours is subject to discipline

up to and including discharge, for ‘job

abandonment.’

10. Anheuser-Busch has a history of

conducting certain types of work

place searches-searches which the

Union has acknowledged are permis-

sible under the collective bargaining

agreement.”

(Appendix D.)?

3 Five Anheuser-Busch employees who were disciplined for

refusing to consent to a search, or because drugs or paraphernalia

were found in their vehicles, filed grievances through Petitioner

Union, or another union representing other groups of Anheuser-

Busch employees. In all five cases, the unions asserted that

Anheuser-Busch breached the collective bargaining agreement in

conducting the search. In all five cases, the arbitrators concluded

that the search was permitted by the collective bargaining agree-

ments, including the agreement between Petitioner Union and

Anheuser-Busch.

In its Petition, the Union asserts that the events giving rise to this

(continued)

+, oe

2. The Union’s Misrepresentations

Of Law.

The Union suggests that the lower court “reasoned

that any transaction between the Company and its em-

ployees is ipso facto covered by the Company’s collec-

tive bargaining agreement with the Union, and therefore

preempted ...” Petition at 9. Thus, the Union argues,

the lower court “require[d] employees covered by collec-

tive bargaining agreements to give up rights under state

law which are independent of such agreements.” /d.

(emphasis added).

The lower court, however, made no such finding.

Rather, the District Court’s Conclusions of Law

(affirmed by the one sentence opinion of the Ninth Cir-

cuit) expressly found that the rights at issue were not

independent of the collective bargaining agreement:

“1. The claims of Plaintiff Union are

preempted under Section 301 of the

Labor Management Relations Act, 29

U.S.C. § 185. The Union’s claims

are inextricably intertwined with

the collective bargaining agreement

between the Union and Anheuser-

(fn. continued) : : ; :

dispute were “entirely independent” of the collective bargaining

agreement, and that the agreement did not authorize the searches.

The Union characterizes this as “the indisputable absence of any

provision in the collective bargaining agreement even purporting [to

apply to this dispute].” Describing this statement as “disingenuous”

would be a grave disservice to this Court. The District Court, the

Ninth Circuit, and five different arbitrators all concluded that

Anheuser-Busch’s collective bargaining agreements did regulate the

Company's authority to conduct work place searches, and all five

arbitrators concluded that the search was permissible under those

agreements, including the Teamsters’ agreement.

“—e

Busch, and require interpretation of

that agreement for their resolution.

Stikes v. Chevron USA, Inc., 914 F.2d

1265 (9th Cir. 1990), cert. denied, 500

U.S. 917 (1991); Schlacter-Jones vy.

General Telephone, 936 F.2d 435, 441

(9th Cir. 1991); Laws v. Calmat, 852

F.2d 430, 433 (9th Cir. 1988).”

(Appendix D.) (Emphasis added.)*

Thus, the lower courts did not find that the “mere

existence” of a collective bargaining agreement pre-

empted all state law, as the Union contends. Rather,

the lower courts found that the issues raised in this par-

ticular lawsuit, arising out of this particular work place

search, were “inextricably intertwined with the collec-

tive bargaining agreement, and require[d] interpretation

of that agreement for their resolution.” Jd. That is ex-

actly the standard for determining preemption which has

been repeatedly announced by this Court, as discussed

below.

In short, a comparison of the Union’s Petition with

the lower courts’ findings of fact and conclusions of law

4 Not only does the Union misrepresent the lower courts’ conclu-

sions of law, the Petition does not even mention the three cases

expressly relied on by the District Court in reaching this conclusion

of law.

> The Union purports to state the issue raised by its Petition as

follows:

“Was the lower court’s finding that state

law is completely preempted by the mere

existence of a collective bargaining agree-

ment, leaving individual union members

without redress for violation of important

state constitutional and statutory rights,

erroneous?”

re

makes one thing very clear: This Petition does not seek

resolution of an important legal issue, nor does it seek to

resolve a conflict among the lower courts. Rather, this

Petition asks the Supreme Court to re-review the specific

factual findings made by the courts below in this specific

case.

The fact that the Union finds it necessary to mis-

represent the facts found below, and the law applied

below, demonstrates that the Union is well aware that

there is no valid reason to grant certiorari in this case. If

certiorari were warranted in this case, it would be un-

necessary for the Union to manufacture a very different

case, with findings of fact and conclusions of law totally

at odds with what was actually found by the courts

below.

C. The Ninth Circuit’s Order Is Consis-

tent With This Court’s Section 301

Cases.

The Ninth Circuit’s order is entirely consistent with

this Court’s Section 301 preemption cases. This Court

has repeatedly held that claims which depend on the

interpretation of a collective bargaining agreement for

their resolution are preempted by Section 301. Cater-

pillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct.

2425, 96 L.Ed.2d 318 (1987). As this Court explained in

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

399, 405-06, 411, 108 S.Ct. 1877, 100 L.Ed.2d 410

(1988):

“(Ijf the resolution of a _ state-law

claim depends upon the meaning of

a collective-bargaining agreement,

the application of state law ... is

pre-empted and federal labor-law

ek eee ee VD hi

A” SO

et oe

principles ... must be employed to

resolve the dispute.

[JJudges can determine questions of

State law involving labor-management

relations only if such questions do

not require construing collective-

bargaining agreements.”

(emphasis added).

In considering whether a state law claim requires

analysis of a collective bargaining agreement, and is

therefore preempted, this Court has emphasized that it is

necessary to consider both express and implied terms of

the agreement. In Consolidated Rail Corp. v. Railway

Labor Executives’ Ass’n., 491 U.S. 299, 109 S.Ct. 2477,

105 L.Ed.2d 250 (1989), this Court held that a dispute

over a railroad’s adoption of a drug testing program

could only be resolved by interpretation of implied

terms in the applicable collective bargaining agreement,

based on the parties’ past practice and the “law of the

shop.” The Court explained:

“Neither party relies on any express

provision of the agreement; indeed,

the agreement is not part of the record

before us. As the parties acknowl-

edge, however, collective-bargaining

agreements may include implied, as

well as express, terms. Furthermore,

it is well established that the parties’

‘practice, usage and custom’ is of

significance in interpreting their agree-

ment. This Court has observed: ‘A

collective bargaining agreement ...

calls into being a new common law —

—

o 32

the common law of a particular indus-

try or of a particular plant.’ ”

491 U.S. at 311-12 (citations omitted) (emphasis added).

This Court’s established Section 301 analysis has not

been changed by Livadas v. Bradshaw, 512 U.S. 107,

114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). In fact, Livadas

reaffirmed the Court’s prior holdings that claims which

depend on interpretation of the collective bargaining

agreement for their resolution are preempted by Section

301. Livadas involved a claim which was not dependent

on the collective bargaining agreement. Livadas dealt

with a California statute which imposed a penalty on

employers who failed to pay wages due to an employee

immediately upon discharge. This Court held that union

employees were entitled to recover this penalty, just as

non-union employees are. The Court explained that

enforcement of this state law right did not require inter-

pretation of the collective bargaining agreement:

“(T]he primary text for deciding

whether Livadas was entitled to a

penalty was not the Food Store Con-

tract, but a calendar. The only issue

raised by Livadas’s claim, whether

Safeway ‘wilfully fail[ed] to pay’ her

wages promptly upon _ severance,

Cal.Lab.Code Ann. §203 (West

1989), was a question of state law,

entirely independent of any under-

standing embodied in the collective-

bargaining agreement between the

union and the employer.”

rey

512 U.S. at 124-125.°

In the instant case, in contrast, the District Court

expressly found, and the Ninth Circuit affirmed, that the

Union’s claims were:

; . Significantly, this Court noted that even a claim under Cal. Labor

Code § 203 could be preempted by Section 301 where the collective

bargaining agreement was at issue. Livadas, 512 U.S. at 125, n.19.

Similarly, in Hawaiian Airlines v. Norris, 512 U.S. 246, 114

S.Ct. 2239, 2245, 129 L.Ed.2d 203 (1994), this Court stressed the

rule that any claim which requires interpretation of the collective

bargaining agreement is preempted:

“We have defined minor disputes as those

involving the interpretation or application

of existing labor agreements. See, e.g.,

Consolidated Rail Corp. v. Railway Labor

Exec. Assn., 491 U.S. 299, 305, 109 S.Ct.

2477, 2482, 105 L.Ed.2d 250 (1989) (‘The

distinguishing feature of [a minor dispute]

is that the dispute may be conclusively

resolved by interpreting the existing

[(CBA]’); Pittsburgh & Lake Erie R. Co. v.

Railway Labor Executives Assn., 491 U.S.

490, 501, n. 12, 109 S.Ct. 2584, 2592, 105

L.Ed.2d 415 (1989) (‘Minor disputes are

those involving the interpretation or

appiication of existing contracts’); Brother-

hood of R.R. Trainmen, 353 U.S., at 33, 33,

77 S.Ct., at 637 (minor disputes are ‘con-

troversies over the meaning of an existing

collective bargaining agreement’); Slocum

| v. Delaware, L. & W.R. Co., 339 U.S. 239,

243, 70 S.Ct. 577, 94 L.Ed. 795 (1950)

(RLA “arbitral mechanism is meant to

provide remedies for ‘adjustment of rail-

road-employee disputes growing out of the

. interpretation of existing agreements’).”

512 U.S. at 256 (emphasis added).

ie

“inextricably intertwined with the col-

lective bargaining agreement between

the Union and Anheuser-Busch, and

require[d] interpretation of that agree-

ment for their resolution.”

Although the Union’s Petition first ignores and then

misrepresents this finding, the fact remains that this case

involves nothing more than a garden-variety application

of well-established preemption principles — principles

which this Court has repeatedly endorsed.

D. The Ninth Circuit’s Order Is Consis-

tent With Other Ninth Circuit Cases.

The Ninth Circuit’s order affirming summary judg-

ment for Respondents is also consistent with, and sup-

ported by, numerous other Ninth Circuit cases, holding

state law privacy and related claims were preempted

under nearly identical circumstances.

Stikes v. Chevron USA, Inc., 914 F.2d 1265 (9th Cir.

1990), cert. denied, 500 U.S. 917, 111 S.Ct. 2015, 114

L.Ed.2d 101 (1991) is directly on point. There, the

plaintiff sued his employer in state court alleging, inter

alia, that his employer violated his right to privacy under

the California Constitution when it fired him for refusing

to permit a search of his vehicle parked in the company

parking lot. The employer removed the case to federal

court under Section 301. The district court denied the

plaintiff’s motion to remand and granted summary judg-

ment for the employer, holding that the plaintiff’s claims

were preempted by Section 301.

The Ninth Circuit affirmed, ruling:

“Stikes’ right to privacy claim is

inextricably intertwined with the

ERE re rrr

2

collective bargaining agreement. This

is 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

expectation ‘has been infringed by an

unreasonable ... intrusion.’ ([Cita-

tions].... Here, the district court

could not ascertain Stikes’ expecta-

tions of privacy at the workplace

without considering the conditions of

his employment enumerated in the

collective bargaining agreement.”

Id. at 1269.

Based on this finding of preemption, the Ninth Circuit

upheld summary judgment for the employer:

“Stikes’ privacy claim was completely

preempted by section 301 and prop-

erly dismissed on the merits.”

Id. at 1270.

Similarly, in Schlacter-Jones v. General Telephone,

936 F.2d 435, 439 (9th Cir. 1991) (upholding summary

judgment on a claim for invasion of privacy under

California Constitution based on implementation of a

drug and alcohol testing program), the Ninth Circuit

explained that the preemption doctrine requires dismissal

of such state law claims:

“The district court reasoned that

GTE’s drug testing policy trumps

state law claims for breach of

implied contract and the covenant

of good faith and fair dealing, as

well as Schlacter-Jones’s claims for

~.' =

intentional infliction of emotional

distress and fraud, because these

claims implicate the conditions of her

employment and thus are ‘substan-

tially dependent’ on the CBA for

resolution. It also held that her state

constitutional claims for violation of

her rights to privacy and due process

implicate the CBA ... In so doing,

the district court recognized that

claims that implicate a_ collective

bargaining agreement must be con-

strued as a § 301 claim and adjudi-

cated under federal labor law or be

dismissed as _ preempted. Allis-

Chalmers, 471 U.S. at 220, 105 S.Ct.

at 1918-19; Harris, 897 F.2d at 402-

aeee We agree that each of

Schlacter-Jones’s claims is _ pre-

empted.” [footnote omitted]

On numerous other occasions, the Ninth Circuit has

reached the exact same conclusion. See e.g., Utility

Workers of America, Local No. 246 v. Southern Califor-

nia Edison Company, 852 F.2d 1083, 1086 (9th Cir.

1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1530, 103

L.Ed.2d 835 (1989)(“we find that Local 246’s state-law

claims cannot be resolved without reference to the col-

lective bargaining agreement and that they should there-

fore be dismissed as preempted by section 301”); Laws

v. Calmat, 852 F.2d 430, 433 (9th Cir. 1988) (“[WJe

must hold that [the employee’s] claim is also

‘substantially dependant upon’ the Calmat-Union CBA.

[The employee’s] conditions of employment are gov-

erned by the CBA. A drug and alcohol testing program,

upon which all employees’ continued employment

vit.

depends, is a working condition whether or not it is

specifically discussed in the CBA.” (emphasis added));

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

301); 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).’

E. The Full Ninth Circuit Unanimously

Rejected Petitioner’s Suggestion

For Rehearing En Banc.

Not only does the Ninth Circuit’s order comport with

its prior Section 301 decisions, the full Ninth Circuit

unanimously rejected Petitioner’s suggestion for a

; rehearing en banc. (Appendix B) The fact that not even

one Circuit Judge voted to rehear this case en banc fur-

. ther demonstrates that the order is in the mainstream,

. and does not warrant further review by this Court.

OO et ORD: (a aad

7 While the Ninth Circuit has not considered when a false imprison-

ment 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).

- -

F. The Ninth Circuit’s Order Is Consis-

tent With Decisions From Other

Circuits.

Far from creating a conflict between the circuits, the

Ninth Circuit’s order 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 (3d Cir.

1995) (Section 301 preempts state law violation of pri-

vacy 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); Jn 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 surveil-

lance cameras in employee locker room are preempted

by Section 301); Bagby v. General Motors Corp., 976

F.2d 919, 921-22 (Sth Cir. 1992) (defamation and inten-

tional 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 per-

son and vehicle preempted by Section 301); Strachan v.

Union Oil Co., 768 F.2d 703, 705-6 (Sth Cir. 1985)

-19-

(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 im-

prisonment 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 imprison-

ment and defamation claims arising out of theft inves-

tigation preempted).

The Union argues that the circuit courts are “frac-

tured” over how the preemption doctrine should be ap-

plied. The Union cites a number of cases which it

characterizes as applying the doctrine “broadly” or “nar-

rowly.” This characterization, however, is self-serving

and based purely on whether the Union agrees or dis-

agrees with the results of the various courts’ decisions.

The controlling fact is that all of the cases cited by the

Union apply the same standard — whether the dispute

requires interpretation of a collective bargaining agree-

ment. Consequently, although the Union argues with a

particular court’s conclusion as to whether a particular

set of facts do or do not require interpretation of a col-

lective bargaining agreement, the preemption principle is

well understood and uniformly applied by each lower

court.

Here, there is no possible question that resolution of

the dispute did and does require interpretation of the

collective bargaining agreement. “Privacy in the work-

place ... is an ordinary subject of bargaining. The

extent of privacy is a ‘condition’ of employment.” Jn Re

Amoco Petroleum Additives Co., 964 F.2d 706, 710

(7th Cir. 1992). The Union does not cite a single case

.

holding that an employer’s right to conduct searches of

its Own premises is not an appropriate subject for collec-

tive bargaining, or that a collectively bargained right to

conduct such searches could possibly fail to preempt a

state law challenge to the search.

Furthermore, as noted above, five different arbitrators

have upheld Anheuser-Busch’s right to conduct such

searches under applicable collective bargaining agree-

ments. See fn. 3, supra. For decades, this Court has

endorsed the resolution of disputes such as this one

through the collective bargaining and arbitration process.

The Ninth Circuit summarized this Court’s endorsement

succinctly in Utility Workers of America, 852 F.2d at

1087-88:

“Federal labor policy places great

weight upon ensuring the availability

of grievance procedures as ‘a uniform

and exclusive method for orderly

settlement of employee grievances.’

Republic Steel Corp. v. Maddox, 379

U.S. 650, 653, 85 S.Ct. 614, 617, 13

L.Ed.2d 580 (1965). ‘Arbitration is

the means of solving the unforesee-

able by molding a system of private

law for all the problems which may

arise and to provide for their solution

in a way which will generally accord

with the variant needs and desires of

the parties.” United Steelworkers v.

Warrior & Gulf Navigation Co., 363

U.S. 574, 581, 80 S.Ct. 1347, 1352, 4

L.Ed.2d 1409 (1960). ‘A rule that

permitted an individual to sidestep

available grievance procedures

would cause arbitration to lose most

«St.

of its effectiveness, ... as well as

eviscerate a central tenet of federal

labor-contract law under § 301 that

it is the arbitrator, not the court, who

has the responsibility to interpret the

labor contract in the first instance.’

Allis-Chalmers, 471 U.S. at 220, 105

S.Ct. at 1916.”

(Emphasis added.) Petitioner here does not seek resolu-

tion of an important or conflicted legal principle.

Rather, Petitioner seeks the very “rule that permit(s] an

individual to sidestep available grievance procedures,”

which this Court cautioned against in Allis-Chalmers.

This Petition should be denied.

CONCLUSION

For all the foregoing reasons, the petition should be

denied.

DATED: May 8, 1998.

Respectfully submitted,

William L. Cole

Counsel of Record

Lawrence A. Michaels

Mitchell, Silberberg & Knupp LLP

Attorneys for Respondents

ANHEUSER-BUSCH, INC.

and ROBERT WARNER