Opposition Brief — Consolidated Freightways Inc. v. Cramer
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No. 01-432
Supreme Court of the United States
IN THE
a |
CONSOLIDATED FREIGHTWAYS, INC., et al.,
V.
Petitioners,
LLOYD W. CRAMER, et a/.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CourRT OF APPEALS FOR THE NINTH CIRCUIT
JOINT BRIEF IN OPPOSITION
MIcHAEL D. Myers
MATTHEW L. TayLor*
ALAN L. SIEGEL
Myers, TAYLOR & SIEGEL
675 West Foothill Boulevard
Suite 200
Claremont, CA 91711
(909) 398-4200
Attorneys for Respondents
in Alfaro v. Consolidated
Freightways
* Counsel of Record
Jay CorDeLL Horton
MA tena R. LECLaIR
Horton, BARBARO & REILLY
200 NortH MAIN STREET
SECOND FLOOR
P.O. Box 4279
Santa Ana, CA 92702
(714) 835-2122
Attorneys for Respondents
in Cramer vy. Consolidated
Freightways
170548
COUNSEL PRESS
(800) 274-3321 + (800) 359-0859
i
QUESTIONS PRESENTED FOR REVIEW
Respondents submit that the real issues for review are
as follows:
1. Whether the 10-1 decision by the en banc panel of
the Ninth Circuit Court of Appeals correctly held that the
federal Labor Management Relations Act, 29 U.S.C. § 185,
does not preempt state lawsuits by union employees seeking
damages and injunctive relief arising from their employer’s
illegal use of hidden surveillance and eavesdropping devices
in employee restrooms, when such conduct clearly violates
no fewer than four state criminal statutes?
2. Can acollective bargaining agreement be interpreted
to allow conduct by an employer that violates independent
state criminal law?
ii
TABLE OF CONTENTS
Questions Presented for Review ................
Dee CS eg hi ha kee i it
Introduction and Summary of Argument .........
Seabees OE Oi CO ee oi kk bee Rac kkewndbakes
A.
Background Facts about the Actions Alleged
i TO CE ined b.vkb Sis wae ewe ess
Procedural History of the Case and the
En Banc Decision by the Ninth Circuit ....
Reasons for Denying the Writ ..................
I.
A Writ Of Certiorari Should Not Be Granted
Because The Ninth Circuit’s Opinion Follows
Supreme Court Precedent That A Collective
Bargaining Agreement Cannot Allow
Conduct That Is Illegal Under State Law ...
Respondents’ Independent Actions Under
State Law Alleging Only State Causes Of
Action Are Not Preempted By The Labor
Management Relations Act ..............
The Ninth Circuit’s Opinion In This Case
Follows Supreme Court Precedent That
Waivers Of State Rights Must Be “Clear
And Unmistakable” ....... ccc ccsccess
13
Contents
Page
IV. The Ninth Circuit’s Opinion In This Case
Does Not Conflict With Decisions From
Other Circuits .......----eeeeeeeereeee 20
A. Other Circuits Hold that Lawsuits
Arising out of Activities that violate
State Law are Not Preempted. ......- 20
B. At least Two Other Published Cases
Have Held that State Privacy Rights
Lawsuits Arising out of Prohibited
Conduct by an Employer are not
Preempted. ......---eeeeeerreerees 23
C. The Court of Appeals Cases Cited by
Consolidated Freightways are Easily
Distinguishable From this Case. ....-. 24
Caomchasio 22... cc ccccccccccccccsccccssesess 27
iv
TABLE OF CITED AUTHORITIES
Page
Cases:
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202
CEG es 6 vara wde bea wae sk ee aM AE eae eee passim
Anderson v. Ford Motor Company, 803 F.2d 953
(8th Cir. 1986), cert. denied, 483 U.S. 1011 .... 22
Benane v. International Harvester Company, 142
Cal. App. 2d Supp. 874, 299 P.2d 750 (1956)... 19
Berka v. Woodward, 125 Cal. 119, 57 P. 777
oP ree re ry eee eo eae pe 19
Bettis v. Oscar Mayer, 878 F.2d 192 (7th Cir.
SO iin iin FER IR Us 1 Sh ETRE Oka 22
Bickel v. City of Piedmont, 16 Cal. 4th 1040, 946
oe et Se Sree err rer ge re 19
Brazinski v. Amoco Petroleum, 6 F.3d 1176 (7th Cir.
| REVS SPER CTE LOE EE CLE TER TR ee eeLe 24, 25
Burundian v. Arkansas-Best Freight Systems,
ge By. Ser Seer yy ae 8
Caterpillar v. Williams, 482 U.S. 386 (1987) . .8, 13, 16, 17
Clark v. Newport News Shipbuilding, 937 F.2d 934
COU Ce TPE oi a eee AS asi 25, 26
De Haviland v. Warner Bros. Pictures, 67 Cal. App.
2d 225, 153 P.2d 983 (Cal. Ct. App. 1944) ..... 19
Vv
Cited Authorities
Page
Franchise Tax Board v. Construction Laborers
Vacation Trust for Southern California, 463 US.
CPOE se i ae es or ee 8
Galvez v. Kuhn, 933 F.2d 733 (9th Cir. i) 4 ae 22
Griess v. Consolidated Freightways, 882 F.2d 461
(10th Cir. 1989) .......eeee ee eee ee eeeeenes y Oe Re
Hill v. NCAA, 7 Cal. 4th 1, 26 Cal. Rptr. 2d 884
by | eed lett 15, 16
In re Amoco Petroleum Additives, 964 F.2d 706
(Tth Cir, 1992) .....scecscecccrecccsseccees 24, 25
Jackson v. Liquid Carbonic, 863 F.2d 111 (ist Cir.
1988), cert. denied, 490 U.S. 1107 (1989) ..... 25, 26
Jimeno v. Mobil Oil, 66 F.3d 1514 (9th Cir. 1995)... 22
Keehr v. Consolidated Freightways, 825 F.2d 133
(Tth Cir, 1987) ......cccccecsscencccseeeees 3, 23
Kirby v. Allegheny Beverage Corporation, 811 F.2d
253 (4th Cir. 1987) ....---ee cece reece 25
oT eee ne Oe at plea cuits 3, 21
SOUND ca vc ccc ledens seed en nce enre sere ts 3, 21
Lingle v. Norge Division of Magic Chef, 486 US.
SOO (19BT) ones cece ce teec ese enees 2, 13, 14, 18
vi
Cited Authorities
Livadas v. Bradshaw, 512 U.S. 107 (1994) ....14,
Loder v. City of Glendale, 14 Cal. 4th 846, 59 Cal.
MOE, DE GEG, TAS CIFFE) cccccccussecescasan
Martin Marrietta v. Maryland, 38 F.3d 1392 (4th Cir.
ey PPP Terr ee ren a ee
Metropolitan Edison Co. v. NLRB, 460 U.S. 693
CRDGED 8 once oGtk's edb c¥5 és ces Cs Zatleeeee
Miller v. AT & T, 850 F.2d 543 (9th Cir. 1988) ....
Milne Employees Association v. Sun Carriers, 960
ee BOGE COE DOPED « bv déccvaededHinsne
Owen v. Carpenter s Council, 161 F.3d 767 (4th Cir.
GODED ..csccccd cust oieninenessouhermsen
Parten v. Consolidated Freightways, 923 F.2d 580
(Ol Che GBR) oes few tars doses etiatisagee
Pennsylvania Nurses Association v. Pennsylvania
State Education Association, 90 F.3d 797 (3d Cir.
SUDEP oc escccbddtcvecddasancesamaschakwee
People v. Gibbons, 215 Cal.App. 3d 1204, 263 Cal.
Bute. SES GAG e o.a 6 vat dyevactsticesisceers
People v. Lilienthal, 22 Cal. 3d 891, 150 Cal. Rptr.
FIO GRE: THFGR oi. cc isacscdaviscankacsnse
People v. Metcalf, 22 Cal. App. 3d 20, 98 Cal. Rptr.
SED GD TE) <0 0nc.vbecsueesvusnsscnsea ee
Page
18, 19
vii
Cited Authorities
Page
CIDTBY co occa ccccccccccsesesscsscscevccecs 12, 16
Peterson v. BMI Refractories, 132 F.3d 1405
(11th Cir. 1998) ........ cece cece eee eee eeees 3, 20
Ralph v. Lucent, 135 F.2d 166 (1st Cir. 1998) ..... 21, 26
Ramirez v. Fox Television, 998 F.2d 743 (9th Cir.
WOUED caccccccdcasecdoccsvovessesescnsece 22
SEE ciicconeavencscadecnngswinécsveste re 3, 23
Smolarek v. Chrysler, 879 F.2d 1326 (6th Cir.
en banc, 1989), cert. denied, 493 U.S. 992 ..... 22
Taggart v. Trans World Airlines, 40 F.2d 269
(Sth Cir. 1994) ...... cece cece eee eee eeeeees 22
United Mine Workers v. Pennington, 381 U.S. 657
(19GS) cccccscccccccccccecececscaccccscses &
Western Surgical Supply v. Affleck, 110 Cal. App. 2d
388, 242 P.2d 929 (Cal. Ct. App. 1952) ......-. 19
White v. Davis, 13 Cal. 3d 757, 120 Cal. Rptr. 94
(IDPS) oc ccscccccscccesscccccsssacccecones 15
Wright v. Universal Maritime Service, 525 U.S. 70
(1998) 0... cece cc cccccceccsccceceeesceees 18
Young v. Superior Court of Tulare County, 57 Cal.
App. 3d 883, 129 Cal. Rptr. 422 (1976) ....... 12
vill
Cited Authorities
Page
Statutes:
po ok eet Pree eT Pere ee Pere 2
California Civil Code § 1598 ................5. 9
California Civil Code § 1599 .................. 9
California Civil Code § 1608 ................5. 9
California Civil Code § 1667 ..............005. 9
California Civil Code § 1668 .................. 9
California Civil Code § 3513 ..............045. 19
California Penal Code § 630 ..............04.. of
California Penal Code § 632 ....... 1, 5, 10, 14, 15, 25
California Penal Code § 635 ....... 1, 5, 10, 14, 15, 25
California Pezal Code § 637.2 ..............05. 14
California Penal Code § 647(k) ....... 1, 10, 11, 12, 25
California Penal Code § 653n ......... 1,9, 11, 12, 25
Other Authority:
California Constitution, art. 1,§ 1 .............. 15
l
Respondents in Cramer v. Consolidated Freightways and
Alfaro v. Consolidated Freightways submit the following joint
Brief in Opposition to the Petition for a Writ of Certiorari filed
by Petitioner Consolidated Freightways.
INTRODUCTION AND SUMMARY OF ARGUMENT
Petitioner Consolidated Freightways seeks to hide behind
the shield of federal preemption to escape liability for its
corporate criminal acts. Petitioner’s brief incorporates virtually
the same arguments it attempted to unsuccessfully advance in
the Ninth Circuit Court of Appeals. The en banc panel of the
Court of Appeals rejected those arguments in a 10-1 decision,
and numerous other circuits of the Court of Appeals have
rejected similar arguments in other cases. This Court should
reject those arguments as well, and it should deny the instant
Petition for Writ of Certiorari. (All references by Respondents
in this Opposition Brief will be to those contained in Petitioner’s
Appendix). 3
Petitioner Consolidated Freightways (“Petitioner” or
“Consolidated Freightways”) installed hidden, illegal
surveillance and eavesdropping devices in restrooms at its
commercial trucking terminal in Mira Loma, California. These
hidden surveillance and eavesdropping devices violate at least
four sections of the California Penal Code: § 653n (prohibits
use of two way mirrors in bathrooms); § 647(k) (prohibits using
holes or cameras to look into bathrooms); § 632 (prohibits
recording confidential communications), and § 635 (prohibits
possession of eavesdropping devices). California law provides
a private right of action for violation of Penal Code §§ 632 and
635, and California’s Constitution and common law provide a
private right of action for violation of the right to privacy.
Respondents are employees and others lawfully using the
commercial trucking terminal operated by Petitioner, and they
brought these lawsuits in California courts alleging only
California causes of action. The claims of the Respondents do
2
not arise from or depend on the terms of a collective bargaining
agreement.
This case presents the issue of whether the California state
lawsuits filed by the victims of these crimes are preempted by
§ 301 of the Labor Management Relations Act, 29 U.S.C. § 185
(“LMRA”). The en banc panel of the Ninth Circuit Court of
Appeals correctly held that the LMRA does not preempt these
lawsuits because the actions of Petitioner Consolidated
Freightways are clear violations of California law. Appendix at
18a-19a. The Ninth Circuit concluded that the collective
bargaining agreement cannot allow conduct that is illegal under
state law, so there is no need to “interpret” the collective
bargaining agreement to see if the conduct was allowed by its
terms. Appendix at 19a. Consequently, the action is
“independent” of the collective bargaining agreement and is,
therefore, not preempted. The Ninth Circuit’s decision in this
case follows all relevant Supreme Court precedent and does
not conflict with decisions from other circuits.
The Supreme Court has repeatedly held that § 301 of the
LMRA does not grant the parties to a collective bargaining
agreement the ability to negotiate or contract for conduct that is
illegal under state law. See, e.g., Allis-Chalmers Corp. v. Lueck,
471 U.S. 202 (1985). States may provide substantive rights to
workers without regard to the collective bargaining agreement,
and state law claims seeking to vindicate those rights will be
preempted only if it “requires the interpretation of a collective
bargaining agreement.” Lingle v. Norge, 486 U.S. 399 (1987).
The Court of Appeals in various circuits have followed the
clear rule from the Supreme Court and have held that lawsuits
arising out of unlawful activities by employers are not
preempted. See Griess v. Consolidated Freightways,' 882 F.2d
1. Ironically, a number of the published cases in this area are
decided against Consolidated Freightways. In at least three published
(Cont'd)
3
461 (10th Cir. 1989); Kohl's Food Stores v. Hyland, 32 F.3d
1075 (7th Cir. 1994); Knafel v. Pepsi Cola, 899 F.2d 1473
(6th Cir. 1990); Peterson v. BMI Refractories, 132 F.3d 1405
(11th Cir. 1998). Contrary to the assertions by Petitioner, other
circuits have held that state privacy rights lawsuits are not
preempted when the actions by the employer are prohibited by
state law, so the Ninth Circuit’s opinion does not create a conflict
between the circuits. See Schmidt v. Ameritech, 115 F.3d 501
(7th Cir. 1997); Keehr v. Consolidated Freightways, 825 F.2d
133 (7th Cir. 1987).
STATEMENT OF THE CASE
A. Background Facts about the Actions Alleged in the
Complaint
In September of 1997, an employee of Consolidated
Freightways discovered by chance that Consolidated
Freightways had installed a surveillance camera in a hole in the
wall behind a two-way mirror in the men’s restroom at its
trucking terminal in Mira Loma, California. (Alfaro ER tab 2,
page 2.)* The mirror shifted after the employee closed the door,
and the employee was straightening the mirror when it fell off
(Cont'd)
cases, Consolidated Freightways has attempted to escape state liability
for its wrongful acts based on the argument that the claims were
preempted by federal law. The Court of Appeals in three different circuits
have rejected that argument. Nevertheless, Consolidated Freightways
continues to make the same argument in this case without bothering to
cite to the controlling authority previously decided against it. See Griess
v. Consolidated Freightways, 882 F.2d 461 (10th Cir. 1989); Parten v.
Consolidated Freightways, 923 F.2d 580 (8th Cir. 1991); Keehr v.
Consolidated Freightways, 825 F.2d 133 (7th Cir. 1987).
2. This appeal involves two separate but related cases that were
joined for appeal. There are two separate sets of excerpts of record. In
this brief, excerpts of record from Cramer v. Consolidated Fi reightways
are referred to as “Cramer ER”, and excerpts of record from Alfaro v.
Consolidated Freightways are referred to as “Alfaro ER”.
4
the wall, revealing the hidden camera. (Alfaro ER tab 2,
page 2.) Employees subsequently discovered that an identical
hole was cut into the wall behind the mirror of the adjoining
women’s restroom. (Alfaro ER tab 15, page 3.) The camera
was installed so that it faced out into the restroom and
photographed all users of the restroom. Discovery in the case
has disclosed that two additional cameras and a microphone
were hidden in the ceiling of another men’s restroom at the
facility.
Employees immediately called the Riverside County
Sheriff’s Department, which came out to investigate the crime
and confiscated three cameras from two men’s restrooms as
well as additional electronic recording equipment. (Alfaro ER
tab 9, page 4.) The Sheriff’s deputies confiscated cameras that
were hidden behind a two-way mirror and in fire sprinklers in
the ceilings of the restrooms. (Alfaro ER tab 9, page 4.)
The restrooms in question are used by Consolidated’s
approximately 700 employees who work at that facility. (Alfaro
ER tab 9, page 4.) They are also used by an unknown number
of invitees of the facility, including private security guards,
family members of employees, delivery persons, and
non-employee truckers who use the terminal. (Alfaro ER tab 9,
page 4.)
Discovery in this case and related cases has shown that at
least one of the cameras pointed at a urinal in the men’s restroom.
Consolidated Freightways produced 141 surveillance videotapes
during discovery, and those videotapes include hundreds of
scenes of men using urinals. Indeed, this should not be a disputed
point because Consolidated Freightways’s human resources
manager Mark Epstein has testified at deposition that the
cameras showed urinals, and that he watched them both live
and on videotape.’
3. Curiously, Petitioner Consolidated Freightways misleadingly
asserts in its Petition that “video cameras were directed away me on
t’
5
The illegal surveillance devices were all hidden, many in
elaborately crafted hiding places. In order to keep the installation
secret from the accounting staff at the facility, Consolidated
Freightways arranged to have the camera installation company
send false invoices for innocuous tasks such as changing
lightbulbs. To keep this charade alive, Consolidated Freightways
never used videotape evidence in any grievance or disciplinary
actions, because doing so would reveal the existence of the
cameras. Employees at the trucking terminal were not aware of
the installation of these cameras until they were discovered on
the night that the Sheriff’s Department confiscated the
equipment.
B. Procedural History of the Case and the En Banc
Decision by the Ninth Circuit
Based on these facts, Respondents/Plaintiffs joined together
to file a series of lawsuits against Consolidated Freightways in
California Superior Court. On October 7; 1997, 282 of the
employees joined together to file an action titled Alfaro v.
Consolidated Freightways. (Alfaro ER tab 1.) The Alfaro action
alleges six causes of action based on California law, namely:
(1) Violation of California’s Constitutional Right to Privacy;
(2) Violation of California Penal Code § 632 (prohibits the use
of electronic eavesdropping equipment); (3) Injunctive Relief;
(4) Intentional Infliction of Emotional Distress; (5) Negligent
Infliction of Emotional Distress; and (6) Violation of Caiifornia
Penal Code § 635 (prohibits the possession or installation of
eavesdropping equipment). On September 29, 1997, another
group of employees and others joined together to file a class-
(Cont'd)
urinals . . _and that no one was ever videoed while actually using those
facilities .. .” Petition at 6. Inexplicably, Petitioner has consistently
i ted these facts to the courts notwithstanding overwhelming
testimonial and documentary evidence to the contrary, including
deposition testimony of its own managers aud hundreds of hours of
videotapes showing urinals and the users of those urinals.
6
action lawsuit titled Cramer v. Consolidated Freightways in
the California Superior Court. (Cramer ER 1.) The Cramer action
was based on a single cause of action for breach of California’s
constitutional right to privacy.
Both the Cramer and Alfaro lawsuits were immediately
removed to U.S. District Court by Consolidated Freightways
— even before any discovery was done and before Consolidated
Freightways filed an Answer. Both lawsuits were dismissed by
the District Court on the ground that they were preempted by
the LMRA. Appendix at 72a and 79a. Plaintiffs in both actions
appealed to the U.S. Court of Appeals for the Ninth Circuit.
Initially, a three-judge panel of the Ninth Circuit affirmed the
District Court’s decision in a 2-1 opinion. Appendix at 35a.
Upon reconsideration, an 11-judge en banc panel of the Ninth
Circuit reversed the District Court in a 10-1 decision.
The en banc panel of the Ninth Circuit reviewed all of the
relevant U.S. Supreme Court precedent and concluded that
Respondents’ state lawsuits were not preempted. The en banc
panel held that Petitioner’s conduct at issue in this lawsuit was
illegal: “Section 653n of the California Penal Code makes the
installation and maintenance of two-way mirrors permitting the
observation of restrooms illegal without reference to the
reasonable expectations of those so viewed . . . use of the mirrors
is a per se violation of the penal code”. Appendix at 18a.
The majority opinion then states that “Under settled
Supreme Court precedent Ԥ 301 does not grant the parties to a
collective bargaining agreement the ability to contract for what
is illegal under state law’.” Appendix at 19a. Therefore, “Because
installation of two-way mirrors is immutably illegal, and
freedom from the illegality is a ‘nonnegotiable state law right’,
a court reviewing plaintiffs’ claims that their privacy rights were
violated need not interpret the CBA to arrive at its conclusion.”
Appendix at 19a. Accordingly, the 10-judge majority concluded
that the state law claims of the Respondents in this action are
not preempted by the LMRA.
7
Judge O’ Scannilain filed the lone dissent that was not joined
by any of the other 10 judges on the en banc panel.
Judge O’Scannlain agreed with the majority that the collective
bargaining agreement was “silent . . .on whether Consolidated’s
precise behavior is allowed”. Appendix at 27a. But Judge
O’Scannlain believed that the collective bargaining agreement’s
silence should be treated as an implied waiver of state criminal
laws regarding placement of cameras in bathrooms. Appendix
at 28a. Thus, the major distinction between the majority opinion
and the solo dissent of Judge O’Scannlain involves an
interpretation of California law about whether silence can be
interpreted as a waiver of state criminal law protection.
REASONS FOR DENYING THE WRIT
I.
A WRIT OF CERTIORARI SHOULD NOT BE GRANTED
BECAUSE THE NINTH CIRCUIT’S OPINION
FOLLOWS SUPREME COURT PRECEDENT THAT A
COLLECTIVE BARGAINING AGREEMENT CANNOT
ALLOW CONDUCT THAT IS ILLEGAL
UNDER STATE LAW
In its en banc decision, the Ninth Circuit followed
controlling precedent from the United States Supreme Court
that a collective bargaining agreement cannot allow conduct
that is illegal under state law. In 1985, the United States Supreme
Court decided the case of Allis-Chalmers Corp. v. Lueck, and it
is this case that provides the framework for deciding whether
the LMRA preempts state lawsuits arising out of illegal conduct
by an employer. 471 U.S. 202 (1985). In Allis-Chalmers, the
Supreme Court held that:
Clearly, § 301 [of the Labor Management
Relations Act] does not grant the parties to a
collective bargaining agreement the ability to
contract for what is illegal under state law.
471 U.S. 202, 212 (1985).
8
In 1988, the Supreme Court revisited the subject of LMRA
preemption in its Caterpillar v. Williams decision. 482 U.S. 386
(1987). In that case, the Court quoted from its earlier Allis-
Chalmers decision and stated that “it would be inconsistent with
congressional intent under [§ 301] to pre-empt state rules that
proscribe conduct, or establish rights and obligations,
independent of the labor contract.” 482 U.S. at 395.
The Caterpillar decision went on to examine this subject
in more length in footnote ten at page 396. In that footnote, the
Court stated that “Claims bearing no relationship to a collective
bargaining agreement beyond the fact that they are asserted by
an individual covered by such an agreement are simply not
pre-empted by § 301.” The Caterpillar Court then quoted in
the same footnote from its earlier case of Franchise Tax Board
v. Construction Laborers Vacation Trust for Southern California,
463 U.S. 1, 25 n.28 (1983):
Even under § 301 we have never intimated that
any action merely relating to a contract within the
coverage of § 301 arises exclusively under that
section. For instance, a state battery suit growing
out of a violent strike would not arise under § 301
simply because the strike may have been a violation
of an employer-union contract.
These Supreme Court cases, when taken together, stand
for a very simple rule: parties to a collective bargaining
agreement cannot agree to allow conduct that is illegal under
state law. Indeed, this rule is not unique in the context of LMRA
preemption. The Supreme Court has repeatedly stated the rule
in other contexts. For example, in Burundian v. Arkansas-Best
Freight Systems, 450 U.S. 728 (1981), the Supreme Court held
that the Fair Labor Standards Act takes precedence over
conflicting provisions in a collective bargaining agreernent.
Likewise, in United Mine Workers v. Pennington, the Court held
that the terms of a collective bargaining agreement may not
“disregard other laws.” 381 U.S. 657 (1965).
9
The Ninth Circuit was well aware of this controlling law.
The majority decision in this case cites to the rule from
Allis-Chalmers that Ҥ 301 does not grant the parties to a
collective bargaining agreement the ability to contract for what
is illegal under state law.” Appendix 19a. The Ninth Circuit’s
opinion, relying on the rule from Allis-Chalmers, stated that
“Consolidated was therefore required to abide by the provisions
of California penal law, and its employees had a right to assume
their employer would obey the law ... Even if the CBA
purported to reduce or limit this expectation in some way, that
reduction would be illegal and therefore unenforceable.”
Appendix 19a.
Consolidated Freightways attempts to argue in its Petition
for Writ of Certiorari that the Ninth Circuit was wrong because
the legality of its actions cannot be determined without reference
to the collective bargaining agreement. That argument is simply
wrong, The actions of Consolidated Freightways are an obvious
violation of California law, and there is no reason to interpret
the collective bargaining agreement to determine the legality of
Consolidated’s actions. As the Ninth Circuit concluded,
“installation of two-way mirrors is immutably illegal.” Appendix
at 19a. The eavesdropping and surveillance activities done by
Consolidated Freightways in this case are illegal under California
state law and are specifically prohibited by at least four separate
sections of the California Penal Code, including the following
sections:
a. California Penal Code § 653n. Section 653n
makes it a misdemeanor to install or maintain a two-
way mirror in a bathroom, to wit:
4. In that regard, the Ninth Circuit cited to both federal and state
law. California follows the common law rule that illegal contracts are
void and unenforceable. California has codified this rule in several of
its Civil Code sections, including §§ 1668, 1598, 1599, 1608, and 1667.
Under California law, any portion of a contract that attempted to allow
illegal conduct would be void.
10
Any person who installs or who maintains after
April 1, 1970, any two-way mirror permitting
observation of any restroom, toilet, bathroom,
washroom, shower, locker room, fitting room, motel
room, or hotel room, is guilty of a misdemeanor.
b. California Penal Code § 647(k). Section 647(k)
makes it a misdemeanor to engage in certain
specified acts, including:
Anyone who looks through a hole or opening,
into, or otherwise views, by means of any
instrumentality, including but not limited to, a
periscope, telescope, binoculars, camera, or
camcorder, the interior of a bathroom, changing
room, fitting room, dressing room, or tanning booth,
or the interior of any other area in which the occupant
has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons
inside.
c. California Penal Code § 632. Section 632
makes it illegal to eavesdrop or record confidential
communications by means of electronic recording
or amplification devices. The Complaint alleges
that Consolidated Freightways used hidden
surveillance devices to listen to and record employee
communications in the bathrooms and in other areas.
(Alfaro ER, tab 1.) Under case law, the statute
prohibits both audio and video recording of
communications. People v. Gibbons, 215 Cal.App.
3d 1204, 263 Cal. Rptr. 905 (1990) [Secret
videotaping of sexual acts without sound violates
the statute].
d. California Penal Code § 635. Section 635
makes it illegal to possess or sell eavesdropping
devices, such as the ones used for activities outlawed
in Penal Code § 632.
11
Petitioner’s violations of these statutes in the present case
are obvious. In an effort to shift attention away from its criminal
acts, Petitioner mistakenly argues that the lawsuit should be
preempted because the Court is required to interpret the
collective bargaining agreement to determine whether the
employees had an expectation of privacy while using the
restroom. Petitioner hopes by this circular argument to escape
liability for its corporate criminal acts.
Unfortunately for Petitioner, its argument ignores the fact
that California’s courts have held that the state’s constitution
and criminal law provide users of a restroom with a reasonable
expectation of privacy as a matter of law. There is simply no
need to interpret a collective bargaining agreement to determine
whether Petitioner’s actions violated state criminal law.
California Penal Code §§ 653n and 647(k) outlaw specified
types of surveillance in bathrooms regardless of whether there
is a determination of an expectation of privacy. The explicit
language of § 653n makes no mention about a “reasonable
expectation of privacy”. The statute simply outlaws the use of
two-way mirrors in certain locations. Indeed, cases interpreting
§ 653n have concluded that its very enactment indicates a public
policy that there is a reasonable expectation of privacy in a
restroom. For example, in People v. Metcalf, the California
Appellate Court held that “the enactment of [Penal Code] section
653n enunciates a public policy against clandestine observation
of public restrooms and renders it reasonable for users thereof
to expect that their privacy will not be surreptitiously violated.”
22 Cal. App. 3d 20, 23-24, 98 Cal. Rptr. 925 (1971). As the
Ninth Circuit concluded,
Section 653n of the California Penal Code makes
the installation and maintenance of two way mirrors
permitting the observation of restrooms illegal
without reference to the reasonable expectation of
those so viewed. Determination of guilt under the
12
statute is not dependent on context or subjective
factors; use of the mirrors is a per se violation of the
penal code...
Appendix at 18a.
Thus, neither California Penal Code §§ 647(k) nor 653n
requires an inquiry into whether Respondents’ expectation of
privacy in a restroom was reasonable. Even if such an analysis
were necessary under those statutes, California case law is clear
that the expectation of privacy that people have in a restroom is
reasonable as a matter of law. In People v. Triggs, the California
Supreme Court held that “[t]he expectation of privacy a person
has when he enters a restroom is reasonable . . .” 8 Cal. 3d 884,
891, 106 Cal. Rptr. 408, 412 (1973), disapproved on another
point in People v. Lilienthal, 22 Cal. 3d 891, 896 n.4, 150 Cal.
Rptr. 910 n.4 (Cal. 1978). Likewise, in People v. Metcalf, the
California Appellate Court held that it is “reasonable for users
thereof [of a bathroom] to expect that their privacy will not be
surreptitiously violated.” 22 Cal. App. 3d 20, 23-24, 98 Cal.
Rptr. 925 (1971). See also Young v. Superior Court of Tulare
County, 57 Cal. App. 3d 883, 887, 129 Cal. Rptr. 422, 425 (1976)
(“An occupant of a closed bathroom, the same as an occupant
of a closed bedroom, is entitled to an expectation of privacy far
greater than those persons in the common areas of a house . . .”).
Based on these California authorities, the Ninth Circuit
concluded that there would be no reason to interpret the
collective bargaining agreement to determine whether the
employees had a reasonable expectation of privacy. The Ninth
Circuit cited to Allis-Chalmers and then held that the LMRA
does not preempt the instant lawsuit because it arises from the
violation of the state criminal laws by the employer. As such,
no possible interpretation of the collective bargaining agreement
could allow conduct that is criminal under state law. Because
there is no reason to interpret the collective bargaining agreement
to determine if the illegal conduct is allowed, the state lawsuit
13
is “independent” of the collective bargaining agreement and is
not preempted. Appendix at 21a. This holding is entirely
consistent with Supreme Court authority and does not create
conflict with other circuits.
Il.
RESPONDENTS’ INDEPENDENT ACTIONS UNDER
STATE LAW ALLEGING ONLY STATE CAUSES OF
ACTION ARE NOT PREEMPTED BY THE LABOR
MANAGEMENT RELATIONS ACT
Respondents in these cases brought independent actions in
California courts alleging only California causes of action
unrelated to the collective bargaining agreement. These actions
are independent of the collective bargaining agreement because
they can be resolved by reference only to California state law,
and they should not be preempted.
The federal LMRA only preempts state law causes of action
that are “substantially dependent” on analysis of a collective
bargaining agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 220 (1985). If a state cause of action is not “substantially
dependent” on a collective bargaining agreement, then the
state case is mot preempted and there is no federal subject
matter jurisdiction. As the Supreme Court wrote in Caterpillar,
“ __aplaintiff covered by a collective bargaining agreement is
permitted to assert legal rights independent of the agreement
__.. ” 482 US. at 396. (Emphasis in original).
But what is meant by “independent” rights? The Supreme
Court has addressed that issue in a number of cases. In Lingle v.
Norge Division of Magic Chef, 486 U.S. 399 (1987), the Court
wrote that “independent” means that “resolution of the state-
law claim does not require construing the collective bargaining
agreement.” 486 U.S. at 407. In that case, the Court was faced
with a plaintiff who was subject to a collective bargaining
agreement that provided for arbitration of termination issues,
14
but the plaintiff chose instead to file a state-law wrongful
termination claim. The Court allowed the plaintiff to pursue his
state law cause of action for wrongful termination, holding that
the claim was not preempted by the LMRA for the following
reason:
[E]ven if dispute resolution pursuant to a
collective bargaining agreement, on the one hand,
and state law, on the other, would require addressing
precisely the same set of facts, as long as the state
law claims can be resolved without interpreting the
agreement itself, the claim is “independent” of the
agreement for § 301 preemption purposes.
Id. at 409-410.
The Supreme Court visited this same issue again in Livadas
v. Bradshaw, 512 U.S. 107 (1994). In Livadas, the Court stated
that “... when the meaning of contract terms [i.e. collective
bargaining agreement terms] is not the subject of dispute, the
bare fact that a collective bargaining agreement will be consulted
in the course of state law litigation plainly does not require the
claims to be extinguished.” /d. at 124.
In this case, Respondents filed actions that are
“independent” under California law and require no reference to
the collective bargaining agreement. Both the Cramer and Alfaro
Plaintiffs/Respondents filed causes of action for violation of
the right to privacy found and explicitly guaranteed in the
California Constitution. The A/faro Plaintiffs/Respondents also
brought causes of action for violation of California Penal Code
§§ 632 and 635. (Alfaro ER, Tab 1.) California Penal Code
§ 637.2 gives a private, civil right of action for violation of
California Penal Code §§ 632 and 635.
California’s protection of privacy rights is long-standing
and firm. In 1967, California’s Legislature explained in Penal
Code § 630 its policy reasons for enacting certain Penal Code
15
provisions protecting privacy (including §§ 632 and 635, which
are at issue in this case):
The Legislature hereby declares that advances
in science and technology have led to the
development of new devices and techniques for
the purpose of eavesdropping upon private
communications and that the invasion of privacy
resulting from the continual and increasing use of
such devices and techniques has created a serious
threat to the free exercise of personal liberties and
cannot be tolerated in a free and civilized society.
The Legislature by this chapter intends to protect
the right of privacy of the people of this state.
California’s Constitution contains an explicit guarantee of
the right to privacy. This right to privacy was added to Article
1, § 1 of the California Constitution by statewide initiative in
1972. The privacy rights protections covered by the California
Constitution were motivated by “the accelerating encroachment
on personal freedom and security caused by increased
surveillance and data collection activity in contemporary
society.” White v. Davis, 13 Cal. 3d 757, 773-774, 120 Cal. Rptr.
94, 105 (1975). Unlike federal constitutional privacy rights,
the privacy rights in the California Constitution apply to both
private and governmental intrusions on privacy. Hill v. NCAA,
7 Cal. 4th 1, 26 Cal. Rptr. 2d 834 (1994). Violations of the
constitutional right to privacy may be enforced with actions
for damages or injunctive relief. White v. Davis, 13 Cal. 3d 757,
at n.8.
As part of its long-standing commitment to privacy nights,
California allows private lawsuits for violation of privacy rights.
Within the past decade, California’s Supreme Court has decided
two cases that clearly and unambiguously set forth the elements
of a cause of action for violation of the constitutional right to
privacy. Hill v. NCAA, supra.,7 Cal. 4th at 34-38, 26 Cal. Rptr.
2d at 856-857; Loder v. City of Glendale, 14 Cal. 4th 846, 896,
16
59 Cal. Rptr. 2d 696, 728 (1997). Under Hill and Loder, all of
the elements of a cause of action for violation of the California
state right to privacy can be shown without reference to the
collective bargaining agreement. The Hil/] case holds that
“the observation of urination — a human excretory function —
obviously implicates privacy interests.” Hill, supra at 41.
Urination, and presumably other excretory functions, involve
legally-protected privacy rights whether or not they are directly
observed. Loder, supra, 14 Cal. 4th at 896. As discussed in detail
in section I of this brief, California’s courts have repeatedly
held that users of a restroom — even a public restroom — have
a reasonable expectation of privacy. See People v. Triggs, supra,
8 Cal. 3d at 891.
In order to escape the obvious fact that Respondents’ state
law claims do not require any reference to the collective
bargaining agreement, Petitioner Consolidated Freightways
mistakenly argues that the California state law claims should
be preempted because their defense might involve interpretation
of the collective bargaining agreement. Such an argument was
rejected by the Ninth Circuit in its en banc decision (Appendix
at 17a), and it has been repeatedly and decisively rejected by
the U.S. Supreme Court. In Caterpillar v. Williams, the Supreme
Court held that
it is now settled law that a case may not be removed
to federal court on the basis of a federal defense,
including the defense of preemption, even if the
defense is anticipated in the plaintiff’s complaint,
and even if both parties concede that the federal
defense is the only question truly at issue.
482 U.S. at 393. Caterpillar went on to hold that
[A] defendant cannot, merely by injecting a federal
question into an action that asserts what is plainly a
state-law claim, transform the action into one arising
under federal law, thereby selecting the forum in
17
which the claim shall be litigated . . . Congress has
long since decided that federal defenses do not
provide a basis for removal.
Id. at 399.
The Ninth Circuit correctly recognized that Respondents’
state law claims are based on “constitutional and statutory rights
of privacy guaranteed to all persons, whether or not they happen
to work subject to a [collective bargaining agreement]” and are,
thus, independent of the collective bargaining agreement.
Appendix at 16a. California law is sufficiently developed that
Respondents will be able to satisfy and prove their privacy rights
causes of action without reference to the collective bargaining
agreement, so these actions are “independent” and are not
preempted by the LMRA.
iil.
THE NINTH CIRCUIT’S OPINION IN THIS CASE
FOLLOWS SUPREME COURT PRECEDENT THAT
WAIVERS OF STATE RIGHTS MUST BE “CLEAR
AND UNMISTAKABLE”
Petitioner argues that interpretation of the collective
bargaining agreement is required to determine if Respondents
waived their privacy protections of the California Penal Code.
That argument is wrong because Supreme Court cases have
made it clear that waivers of state law rights in a collective
bargaining agreement must be “clear and unmistakable”. In the
present case, even a cursory look at the collective bargaining
agreement shows that it is silent on the subject of placement of
cameras in violation of state laws, so there is no “clear and
unmistakable” waiver of privacy rights in this case.
The “clear and unmistakable” test comes from a series of
United States Supreme Court cases over the past two decades.
In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), the
Supreme Court held that waivers of state law rights under a
18
‘collective bargaining agreement must be “clear and
unmistakable”. This same language was later quoted and
followed by the Supreme Court in Lingle v. Norge Division of
Magic Chef, Inc., 486 U.S. 399, 409-410 n.9 (1987), Livadas v.
Bradshaw, 512 U.S. 107, 125 (1994), and, most recently, in
Wright v. Universal Maritime Service, 525 U.S. 70 (1998).
In Livadas, the Supreme Court was faced with a case in
which it was argued that an employee had bargained away certain
protections in the California Labor Code by becoming a member
of a collective bargaining agreement. The Supreme Court
disagreed, and stated that:
There is no suggestion here that [the
employee’s] union sought or purported to bargain
away her protections under [California Labor Code]
§ 201 or § 203, a waiver that we have held would
... have to be “clear and unmistakable” [citations
omitted] for a court even to consider whether it could
be given effect...
512 US. at 125.
The Ninth Circuit’s en banc panel followed this “clear and
unmistakable” rule when dealing with waiver arguments
advanced by Petitioner. Appendix 13a. Petitioner claims that
two provisions of the collective bargaining agreement act as a
waiver of state law surveillance rights: Article 35, which deals
with drug testing but does not contain one word on the use or
placement of cameras (whether hidden or not), and Article 26,
which contains a procedural rule dealing with use of videotape
evidence at grievance hearings but is silent on the placement of
cameras.
However, as the Ninth Circuit concluded, even a “cursory
examination of those provisions makes clear they apply to a
completely different context and set of circumstances.”
19
Appendix 16a.° The Ninth Circuit concluded that neither of the
two provisions raised by Petitioner “purports to have any bearing
on secret spying on Consolidated’s employees in company
restrooms”. Appendix 16a. As Ninth Circuit Judge Fisher stated:
“(T]he collective bargaining agreement (“CBA”) in question
does not discuss — even implicitly —- surreptitious surveillance
of restrooms. . .” Appendix 63a. Indeed, even the sole dissenting
Ninth Circuit judge agreed that the collective bargaining
agreement is “silent” on the subject of placement of cameras.
Appendix at 27a.
Assuming, arguendo, that the two cited provisions could
possibly be construed as an attempted waiver of state law
protections, such a waiver would be invalid under California
law. Under California law, a person can waive a law “intended
solely for his benefit” but cannot waive a law “established for a
public reason”. California Civil Code § 3513. California’s courts
have held that penal statutes “are conclusive evidence that the
prohibited acts would be against the public interest’ and are,
thus, not waivable. De Haviland v. Warner Bros. Pictures,
67 Cal. App. 2d 225, 236, 153 P.24 983 (Cal. Ct. App. 1944).
See also Berka v. Woodward, 125 Cal. 119, 57 P. 777 (1899);
Benane v. International Harvester Company, 142 Cal. App. 2d
Supp. 874, 299 P.2d 750 (1956); Western Surgical Supply v.
Affleck, 110 Cal. App. 2d 388, 242 P.2d 929 (Cal. Ct. App. 1952).
Even if the criminal statutes at issue were waivable in California
(which they are not), waiver is only valid under California law
if it is the “intentional relinquishment or abandonment of a
known right”. Bickel v. City of Piedmont, 16 Cal. 4th 1040,
946 P.2d 427 (1997).
5. Under well-settled law, a court is allowed to examine a collective
bargaining agreement to determine if the claims are preempted without
actually “interpreting” the agreement. See Livadas v. Bradshaw, supra,
512 U.S. at 125; Milne Employees Associatio.: v. Sun Carriers,
960 F.2d 1401, 1410-11 (9th Cir. 1991).
20
In the present case, there was no waiver under California
law because the employees did not know about the surveillance,
and, as such, there was no “intentional relinquishment or
abandonment” of the Penal Code protections. As Judge Fisher
noted, “Indeed, the surreptitious nature of the violation of
plaintiffs’ privacy belies any notion of bargaining or consent to
hidden cameras behind two-way mirrors.” Appendix at 16a.
Based on these facts, the Ninth Circuit concluded that there
was no “clear and unmistakable” waiver of state criminal laws
by Respondents. This holding is completely in keeping with all
relevant Supreme Court precedent, and it follows California
state law on the subject of waiver of penal code protections.
IV.
THE NINTH CIRCUIT’S OPINION IN THIS CASE DOES
NOT CONFLICT WITH DECISIONS FROM
OTHER CIRCUITS
A. Other Circuits Hold that Lawsuits Arising out of
Activities that violate State Law are Not Preempted.
The Ninth Circuit’s en banc opinion in this case is entirely
consistent with the oft-repeated rule from other circuits that the
LMRA does not preempt state lawsuits arising from activities
prohibited by state law.
As discussed earlier, the Supreme Court has repeatedly held
that parties to a collective bargaining agreement cannot contract
for conduct that is illegal under state law. Therefore, lawsuits
alleging illegal or prohibited behavior by an employer do not
require interpretation of a collective bargaining agreement and
are not preempted by the LMRA. This simple rule has been
followed in all of the circuits, and the following cases from
various of the circuits are illustrative of this rule:
¢ Peterson v. BMI Refractories, 132 F.3d 1405 (11th Cir.
1998). In this case, a union employee sued his employer for
21
assault, battery, outrage (infliction of emotional distress), and
discrimination. The Eleventh Circuit held that the lawsuit was
not preempted because the right of an employee to be free from
criminal acts is nonnegotiable and does not require interpretation
of a collective bargaining agreement.
¢ Kohl’ Food Stores v. Hyland, 32 F.3d 1075 (7th Cir.
1994). In this case, a union employee brought an action against
his employer for refusing to reinstate him to a job in violation
of Wisconsin law. The Seventh Circuit held that the state lawsuit
was not preempted because the employer’s actions were illegal
under Wisconsin law.
¢ Knafel v. Pepsi Cola, 899 F.2d 1473 (6th Cir. 1990).
In this case, a union employee brought an action against her
employer alleging wrongful termination and emotional distress
after she was fired for making an EEOC complaint and for filing
an Ohio workers’ compensation claim. The Sixth Circuit cited
to Allis-Chalmers and held that the action was not preempted
because both federal law and Ohio law prohibited retaliatory
firing by an employer, and resolution of the Ohio state
claim did not require interpretation of a collective bargaining
agreement.
° Griess v. Consolidated Freightways, 882 F.2d 461 (10th
Cir. 1989). In this case, a union employee sued his employer
for retaliatory firing after he filed a workers’ compensation claim.
The Tenth Circuit held that retaliatory firing is prohibited by
Wyoming law, so the state lawsuit is not preempted.
¢ Owen v. Carpenter's Council, 161 F.3d 767 (4th Cir.
1998). In this case, a union employee sued her employer alleging
firing after she reported sexual harassment. The Fourth Circuit
held that Maryland law does not allow discrimination for
reporting sexual harassment, so her state lawsuit is not
preempted.
¢ Ralph v. Lucent, 135 F.2d 166 (1st Cir. 1998). In this
case, a union employee sued under the federal Americans with
22
Disabilities Act and Massachusetts handicap discrimination
statute. The First Circuit held that handicap discrimination is
barred by clear Massachusetts law without reference to the
collective bargaining agreement, so the state lawsuit was held
not preempted.
¢ Anderson v. Ford Motor Company, 803 F.2d 953 (8th
Cir. 1986), cert. denied, 483 U.S. 1011. In this case, union
workers brought a state action against their employers for fraud
and contract claims. The Eighth Circuit cited to Allis-Chalmers,
and concluded that the actions were not preempted because
“Fraud is acommon law tort deeply rooted in local standards of
individual and social responsibility.” Jd. at 957.
The cases listed above are only a small sampling of the
published Court of Appeals cases on the subject.* The published
cases show that the various circuits of the Court of Appeals
have adopted a rule that lawsuits arising out of prohibited activity
by an employer are not preempted if the state has clearly
prohibited the activity through its statutes or case law.
Thus, dozens of published cases show that the different circuits
of the Court of Appeals have heid that lawsuits involving such
prohibited actions as retaliatory discharge, fraud, discrimination,
and assault are not preempted.
The Ninth Circuit’s en banc decision in this case is entirely
in keeping with the line of authority cited above. In this case,
the Ninth Circuit held that the activities by Consolidated
Freightways were illegal and prohibited by California criminal
6. Other cases with similar holdings include: Bettis v. Oscar Mayer,
878 F.2d 192 (7th Cir. 1989); Smolarek v. Chrysler, 879 F.2d 1326
(6th Cir. en banc, 1989), cert. denied, 493 U.S. 992; Taggart v. Trans
World Airlines, 40 F.2d 269 (8th Cir. 1994); Galvez v. Kuhn, 933 F.2d
733 (9th Cir. 1991); Miller v. AT & T, 850 F.2d 543 (9th Cir. 1988);
Jimeno v. Mobil Oil, 66 F.3d 1514 (9th Cir. 1995); Martin Marrietta v.
Maryland, 38 F.3d 1392 (4th Cir. 1994); Ramirez v. Fox Television,
998 F.2d 743 (9th Cir. 1993); Pennsylvania Nurses Association v.
Pennsylvania State Education Association, 90 F.3d 797 (3d Cir. 1996).
23
law. That decision follows a long line of Court of Appeals cases
in similar situations, and it does not create any conflict between
the circuits.
B. At least Two Other Published Cases Have Held that
State Privacy Rights Lawsuits Arising out of Prohibited
Conduct by an Employer are not Preempted.
Consolidated Freightways argues in its Petition that other
decisions of other circuits have “uniformly” held that LMRA
preempts privacy rights cases. Petition at 25. That is not true,
and Consolidated Freightways should be well aware of that fact,
because one of the published cases is against Consolidated
Freightways. At least two published Court of Appeals cases have
held that state privacy rights lawsuits arising out of prohibited
conduct by an employer are not preempted by the LMRA.
In Schmidt v. Ameritech, the Seventh Circuit was faced with
a state privacy rights lawsuit from a union employee of a
telephone company who sued his employer for using confidential
telephone records to investigate his disability leave. 115 F.3d
501 (7th Cir. 1997). In that case, the Court concluded that both
state and federal law were violated by the employer: “We note
in this connection that Illinois has recognized a distinct privacy
right in one’s telephone records based on Article I, Section 6 of
the Illinois Constitution, which provides broader privacy
protection than does the U.S. Constitution.” Jd. at 506.
The Seventh Circuit held that the claim was not preempted
because it depended on the “scope of Illinois privacy law” and
not on the scope of the collective bargaining agreement.
Id. at 505.
In Keehr v. Consolidated Freightways, the Seventh Circuit
was faced with a privacy rights and infliction of emotional
distress claim from an emp!oyee who alleged that his employer
had made rude comments about his wife’s sexual practices after
a workplace argument. 825 F.2d 133 (7th Cir. 1987). Ajury had
found that the comments were “outrageous” and therefore
24
punishable unde; Indiana law. The Seventh Circuit concluded
that the suit was not preempted because the actions were
“outrageous”.
Thus, contrary to the assertions by Consolidated
Freightways in this case, there is no uniform rule against privacy
rights cases in the Court of Appeals decisions. To the contrary,
the cases all appear to follow the Supreme Court’s rule that
cases should be decided on a “case-by-case basis”. Allis-
Chalmers Corp. v. Lueck, supra, 471 U.S. at 220. In the two
cases cited above, the employer’s actions either violated state
law or were “outrageous”, so the state lawsuits were not
preempted. These two cases are consistent with the Ninth
Circuit’s en banc decision in the present case, which held that
the present lawsuit was not preempted after concluding that the
actions by Consolidated Freightways were illegal under
California law.
C. The Court of Appeals Cases Cited by Consolidated
Freightways are Easily Distinguishable From this Case.
Consolidated Freightways attempts to manufacture a
conflict between the circuits by citing to a series of privacy rights
cases that it contends create a conflict between the circuits.
However, all of the cases cited by Consolidated Freightways
are easily distinguishable from this case because they do not
involve employer conduct that is illegal.
In its Petition, Consolidated Freightways mistakenly claims
that the Seventh Circuit’s cases of Brazinski v. Amoco Petroleum
and Jn re Amoco Petroleum Additives Co. are in conflict with
the Ninth Circuit’s opinion in this case. In fact, both Brazinski
and Amoco are easily distinguishable from the present case, so
they are not conflicting precedent.
Brazinski and Amoco are two opinions originating from
the same case. Brazinski v. Amoco Petroleum, 6 F.3d 1176
(7th Cir. 1993); Jn re Amoco Petroleum Additives, 964 F.2d 706
: 25
(7th Cir. 1992). The case arose when Amoco Petroleum installed
“a video camera in the ceiling of the entrance hallway, which
enabled the firm to record who entered and left the locker room,
and when, but not what they were doing inside.” Amoco, 964
F.2d at 707. A lawsuit was brought against Amoco Petroleum
under Illinois state law with causes of action for violation of
privacy under Illinois common law and intentional infliction of
emotional distress.
The Brazinski/Amoco cases are distinguishable from the
present case because the Brazinski and Amoco cases did not
involve criminal acts by the employer. Apparently Illinois has
not chosen to criminalize the surveillance activities involved in
that case. Indeed, the Amoco Court noted that “Plaintiffs concede
that a collective bargaining agreement could authorize
surveillance .. .” 964 F.2d at 706. In contrast, the actions of
Consolidated Freightways in the present case are criminal and
prohibited by California Penal Code §§ 632, 635, 647(k), and
653n. It is settled law that a collective bargaining agreement
cannot authorize conduct that is illegal under state law, so the
distinction between legal acts and illegal acts is vitally important
to LMRA preemption analysis. See Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202 (1985). In the present case, one of the
central points in the Ninth Circuit’s opinion is that the collective
bargaining agreement cannot authorize the conduct at
issue because it is criminal, and the Ninth Circuit realized
that this was the critical distinction between the instant
case and the Seventh Circuit’s Amoco and Brazinski cases.
Appendix at 17a n.6.
Consolidated Freightways also cites to a series of cases from
other circuits holding that privacy rights cases are preempted,
including Jackson v. Liquid Carbonic, 863 F.2d 111 (1st Cir.
1988), cert. denied, 490 U.S. 1107 (1989); Kirby v. Allegheny
Beverage Corporation, 811 F.2d 253 (4th Cir. 1987); and Clark
v. Newport News Shipbuilding, 937 F.2d 934 (4th Cir. 1991).
Each of those cases is easily distinguishable from the instant
26
case because each involved drug testing or searches of employees
that were allowed by state law. In contrast, the instant case
involves activity that is prohibited by the criminal laws of
California.
For example, in Jackson v. Liquid Carbonic, supra., the
First Circuit dealt with a privacy rights claim from an employee
who had tested positive for drug use. The First Circuit went
through an exhaustive discussion about Massachusetts statutory
and common law, concluding that “Massachusetts has not
prohibited drug testing outright; in the commonwealth there is
no barrier to a person’s free and voluntary agreement to be tested.
By the same token, neither Massachusetts’ constitution nor its
statutory scheme accomplish proscription by indirection.”
863 F.2d at 115. Only after concluding that drug testing was
legal in Massachusetts did the First Circuit hold that the privacy
rights lawsuit was preempted. Thus, the Jackson case is easily
distinguishable because the employer’s conduct was not illegal.
Indeed, even within the First Circuit (which decided Jackson),
there are published cases holding that the LMRA does not
preempt state lawsuits alleging illegal conduct by an employer.
See Ralph v. Lucent, 135 F.2d 166 (1st Cir. 1998)
Petitioner’s claim of conflict between the circuits simply
does not hold up to scrutiny. Each of the cases cited by Petitioner
is distinguishable from the present case because each of the
cases relied upon by Petitioner arises out of an employer’s
conduct that is legal under state law. See, e.g., Clark v. Newport
News Shipbuilding, supra., [“Appellant cites to no independent
state law or policy regarding drug testing . . .”] As such, there is
no conflict between the circuits that would require this Court to
grant Certiorari.
CONCLUSION
For the foregoing reasons, Respondents submit that the
Petition for Writ of Certiorari should be denied.
MICHAEL D. MYERS
MatTHEw L. TayLor*
ALAN L. SIEGEL
Myers, TAYLOR & SIEGEL
675 West Foothill Boulevard
Suite 200
Claremont, CA 91711
(909) 398-4200
Attorneys for Respondents
in Alfaro v. Consolidated
Freightways
* Counsel of Record for
Respondents in Alfaro case
Respectfully submitted,
Jay CorDELL Horton
Ma tena R. LeC.air*
Horton, BARBARO & REILLY
200 NortH Main STREET
SECOND FLOOR
P.O. Box 4279
Santa Ana, CA 92702
(714) 835-2122
Attorneys for Respondents
in Cramer v. Consolidated
Freightways
* Counsel of Record for
Respondents in Cramer case
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.