Reply Brief — Consolidated Freightways Inc. v. Cramer

FILED

<< NOV 27 2001

No. 01-432

“OPFICE OFTHE CLERK

IN THE

Supreme Court of the Anited States

CONSOLIDATED FREIGHTWAYS, INC.,

Petitioner,

Vv.

LLOYD W. CRAMER, et al.

Respondents.

CONSOLIDATED FREIGHTWAYS CORPORATION, ef al.

Petitioners,

Vv.

GUILLERMO ALFARO, et al.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

ROBERT E. MANGELS E. BARRETT PRETTYMAN, JR.*

LOUISE ANN FERNANDEZ LORANE F. HEBERT

JENNIFER RAPPOPORT HOGAN & HARTSON L.L.P.

JEFFER, MANGELS, BUTLER 555 Thirteenth Street, N.W.

& MARMARO LLP Washington, D.C. 20004

2121 Avenue of the Stars (202) 637-5685

Los Angeles, CA 90067

(310) 203-8080

* Counsel of Record Counsel for Petitioners

TABLE OF AUTHORITIES

CASES:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

aii cneet canes ihc nei scctdstnancccedanccone

Anderson v. Ford Motor Co., 803 F.2d 953

(8th Cir. 1986), cert. denied, 483 U.S. 1011

EEE iiakiihsehccsiincaehssiibainkceciiiiaicnthaninlandnadciniencenienasetns

Consolidated Rail Corp. v. Railway Labor

Execs.’ Ass’n, 491 U.S. 299 (1989)... ese

Hill v. NCAA, 865 P.2d 633 (Cal. 1994)...........00..

In re Amoco Petroleum Additives Co., 964

A FO te Bi iiciscsasitcenccctndioserssnnssecssees

In re Deborah C., 635 P.2d 446 (Cal. 1981)...........

International Bhd. of Elec. Workers v. Hech-

a ais & ft.) SCN sonnn

Keehr v. Consolidated Freightways of Del.,

Inc., 825 F.2d 133 (7th Cir. 1987)..............:ce0

Knafel v. Pepsi Cola Bottlers of Akron, Inc.,

899 F.2d 1473 (6th Cir. 1990)..............csscesssseees

Kohl’s Food Stores, Inc. v. Hyland, 32 F.3d

Ee I Ba iistacceinenadasitchdtbcrnessnsisaresavaces

Lingle v. Norge Div. of Magic Chef, Inc., 486

ee ee enicncitdcesiaisteicichbnascpcrnndacdssascenseinare

People v. Metcalf, 98 Cal. Rptr. 925 (Ct. App.

IEE cakabapinchgesncndilicsia ici snsiinaennsaiieeicnanaesiinnss

People v. Triggs, 506 P.2d 232 (Cal. 1973)...........

Peterson v. BMI Refractories, 132 F.3d 1405

eI: UII ids sat thcacopirapetaphabanieandontdancesiecanee

Schmidt v. Ameritech Corp, 115 F.3d 501

RR ais SE achachisacvsdiaaneiaiiithcnices pcasenhaitnenansnenne

Sprewell v. Golden State Warriors, 266 F.3d

Se AE NED ws ctcnisinchbeapidneepiansrddniebinerbscecesnss

ss

TABLE OF AUTHORITIES—Continued

Page

STATUTES:

We UBER 8 GD wcctasiniecrcctimieiaaianietn passim

Cal. Pensl Cinta S Gat is icsciscntdviictiaiinnenis passim

IN THE

Supreme Court of the Anited States

No. 01-432

CONSOLIDATED FREIGHTWAYS, INC.,

Petitioner,

Vv.

LLOYD W. CRAMER, ef ai.,

Respondents.

CONSOLIDATED FREIGHTWAYS CORPORATION, ef ai.

Petitioners,

Vv.

GUILLERMO ALFARO, et all.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

Respondents do not deny the importance of this case. This

Court has long recognized that “[{i]f the policies that animate

§ 301 are to be given their proper range,” Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 210 (1985), all state law

claims that “depend[{] upon the meaning of a collective-

bargaining agreement” for their resolution must be pre-

2

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

399, 406 (1988). The en banc Ninth Circuit held that a court

may “look to” a CBA “to determine whether a plaintiffs

claim necessarily implicates its terms without ‘interpreting’

the agreement.” Pet. App. 16a. That holding—which

represents the court’s attempt to “clarif[y] and correct[]” the

Ninth Circuit’s prior “approach to § 301 preemption,” Pet.

App. 6a, 13a—threatens to erode this Court’s § 301 jurispru-

dence and undermine the federal policies this Court has

endeavored to promote. The court’s holding is binding on all

federal courts in the nine states the Ninth Circuit comprises

and establishes the analytical framework to be applied in

every § 301 preemption case. It will thus affect the interpre-

tation of innumerable CBAs. !

The en banc Ninth Circuit’s holding therefore warrants this

Court’s review. Indeed, respondents make little attempt to

argue otherwise, focusing instead on the Ninth Circuit’s

alternative holding. Their arguments notwithstanding, that

holding—which “threatens the ability of *** parties to

negotiate legitimate expectations of privacy,” Pet. App.

23a—-provides an equally compelling basis for review.

1. a. Respondents altogether ignore the multiple conflicts

created by the en banc Ninth Circuit’s principal holding. As

we explained, that holding directly conflicts with this Court’s

precedents holding that § 301 preempts any state law claim

that “depends upon the meaning of a collective-bargaining

agreement” for its resolution. Lingle, 486 U.S. at 406. See

Pet. 12-17. In particular, the decision below conflicts with

Allis-Chalmers Corp. v. Lueck, 471 U.S. at 214-215, and

International Brotherhood of Electrical Workers v. Hechler,

481 U.S. 851, 861-862 (1987), in which this Court held that

1 Indeed, the Ninth Circuit has already applied the decision below in

another case. See Sprewell v. Golden State Warriors, 266 F.3d 979, 990-

992 (2001).

3

tort claims were preempted because reference to the CBA at

issue was required to determine whether it created an implied

duty or obligation. Indeed, as we noted, the fact that the

CBA here expressly contemplates the use of video surveil-

lance—which respondents do not deny—makes this an even

stronger case for preemption than either Allis-Chalmers or

Hechler. See Pet. 14-16. Respondents, however, do not offer

any response.

b. We also explained how the Ninth Circuit’s holding

conflicts with this Court’s precedents recognizing that CBAs

“may include implied, as well as express, terms.” Consoli-

dated Rail Corp. v. Railway Labor Execs.’ Ass'n, 491 U.S.

299, 311 (1989). See Pet. 17-18. Although the en banc

Ninth Circuit essentially repudiated this line of authority, see

Pet. App. 13a-15a, respondents again have nothing to say.

c. Except to note that other decisions apparently did not

involve allegations of criminal conduct, respondents fail to

address the conflicts between the en banc Ninth Circuit’s

principal holding and the decisions of numerous other federal

circuits that have faithfully adhered to this Court’s precedents

and held that §301 preempts claims _ involving

““condition{s]’ of employment,” such as workplace privacy.

In re Amoco Petroleum Additives Co., 964 F.2d 706, 710 (7th

Cir. 1992). See Pet. 18-22.2 As the dissent below recog-

nized, “Consolidated’s argument [in favor of preemption] is

much stronger than arguments other courts have accepted for

the purposes of finding preemption” in other cases, Pet. App.

29a (emphasis added), including the Seventh Circuit in Jn re

Amoco Petroleum Additives Co., supra, where the court held

that workplace privacy claims were preempted even though

the CBA at issue contained “not one word” about surveil-

lance. 964 F.2d at 709. The irreconcilable conflict between

2 As we explain below, respondents’ attempt to distinguish these

cases on the basis of alleged criminal conduct is unavailing.

4

the Seventh Circuit’s decision in Amoco and the decision

below alone merits this Court’s review.

d. Instead of confronting these undeniable conflicts,

respondents attempt to defend the en banc Ninth Circuit’s

principal holding by arguing that a “clear and unmistakable”

waiver of their privacy rights was required and that “even a

cursory look at the [CBA] shows that it is silent on the

subject of placement of cameras.” Opp. 17. See id. at 17-20.

But that attempt cannot save the en banc Ninth Circuit’s

erroneous decision. Even if a “clear and unmistakable”

waiver were necessary, whether there has been such a waiver

would still require reference to, and interpretation of, the

CBA because it expressly deals with the subject of video

surveillance. In any event, the Ninth Circuit’s holding was

not based on the absence of a “clear and unmistakable”

waiver, so the need for review remains. See Pet. 16a, 18a.

2. Respondents spend most of their efforts attempting to

persuade this Court to deny certiorari because—in their

view—the challenged surveillance violated § 653n of the

California Penal Code. Their arguments, however, are mere

red herrings that should be rejected. To begin with, the Ninth

Circuit did not rely on § 653n in holding that it “need not

‘interpret’ the CBA to see that it does not contemplate the

surreptitious videotaping plaintiffs challenge in their state

law claim.” Pet. App. 18a. Thus, respondents’ arguments in

this respect do not respond at all to the need for review of the

en banc court’s principal holding.

Moreover, respondents’ reliance on § 653n to establish

their claims does not remove their claims from the preemp-

tive scope of § 301. Respondents have brought civil claims

for invasion of privacy. As we explained—and respondents

3 The authorities who investigated the conduct in this case and de-

clined to press charges apparently took a contrary view. See Pet. 6.

5

do not contend otherwise—to prevail on those civil claims

respondents must show “‘a reasonable expectation of

privacy on [their] part.’” Pet. App. 30a n.6 (quoting Hill v.

NCAA, 865 P.2d 633, 655 (Cal. 1994)). If respondents

consented to the challenged surveillance through their union

in the CBA, that “ ‘obviously affect[ed] [their] expecta-

tions’ ” of privacy. Pet. App. 33a (quoting Hill, 865 P.2d at

655).

That is true regardless of whether the challenged surveil-

lance in fact violated § 653n or whether § 653n confers a

“‘*nonnegotiable state-law right[]’” to be “free[] from the

illegality [of two-way mirror surveillance].” Pet. App. 19a

(quoting Allis-Chalmers, 471 U.S. at 213).5 The en banc

Ninth’s Circuit’s contrary conclusion—that a person con-

senting to such surveillance nevertheless has a reasonable

expectation of privacy as a matter of law—cannot withstand

scrutiny. As Judge O’Scannlain explained in his dissent, to

establish a “reasonable expectation on [his] part,” a plaintiff

4 Respondents do not dispute that their union was authorized to

consent on their behalf. Nor do they dispute that the CBA provides them

with the traditional remedy of arbitration.

5 We note again that such propositions are highly questionable at

best. See Pet. 24 &n.15. As Judge O’Scanniain observed in his dissent,

“jt is far from clear whether Consolidated’s videotaping violated § 653n,”

as the California Supreme Court has indicated that the statute would

appear to prohibit only “ ‘clandestine, unexpected’ viewing.” Pet. App.

31a n.7 (quoting In re Deborah C., 635 P.2d 446, 452 452 (Cal. 1981))

(emphasis added by dissent). Thus, “one of the modes of ‘observation’

from which § 653n does not make [respondents] ‘immune’ is an ‘ex-

pected’ viewing from behind a two-way mirror.” /d. “Such a viewing

would be ‘expected’ if [respondents] consented to it in the CBA.” Jd.

Any other interpretation “would allow the State to prosecute criminally

someone who erects a two-way mirror at the invitation of the person he is

videotaping.” /d. Thus, even assuming, as respondents contend (Opp.

19), that in California criminal statutes cannot be waived—a broad

for which the cases cited by respondents do not stand—

§ 653n simply cannot be read to prohibit consensual viewing.

6

must demonstrate both that he had a “subjective” expectation

of privacy and that his expectation was reasonable. See Pet.

App. 30a & n.6. And as he further pointed out, “there simply

is no decision of the California Supreme Court which holds

as a matter of law that one has a subjective expectation of

privacy from illegal intrusions to which one has consented.”

Pet. App. 32a (emphasis added). Indeed, as he put it, it is

“doubt[ful] that there will ever be such a holding of the

California Supreme Court” because it would “lead to the

ridiculous situation in which I could invite someone to

videotape me behind a two-way mirror, only to then tum

around and sue that person for violating my right to ‘pri-

vacy.’” /d. (emphasis in original).

In short, respondents’ privacy claims turn on whether re-

spondents had a “reasonable expectation of privacy on their

part” in the restrooms at the Mira Loma terminal. That

depends on whether they consented, through their union, to

the challenged workplace surveillance. And whether they

consented to that surveillance “depends upon the meaning”

of the CBA. Lingle, 486 U.S. at 406. As the dissent below

recognized and the initial panel concluded, Section 653n does

not change any of this.®

3. a. Once this much is clear, respondents’ arguments fall

by the wayside. For instance, respondents argue that their

claims are not preempted because “parties to a collective

bargaining agreement cannot agree to allow conduct that is

illegal under state law.” Opp. 8. See id. at 7-9. But this case

is not about whether the CBA’s video surveillance provisions

6 Although respondents “principally rely,” Pet. App. 51a n.9-—and in

reaching its alternative holding the en banc Ninth Circuit exclusively

relied—upon § 653n, respondents also contend that that the challenged

surveillance violated other provisions of the California Penal Code. See

Pet. 9 n.6. As the initial panel concluded in its decision, those provisions

also “hinge[] on the absence of consent,” Pet. App. 52a n.9, so they

likewise have no effect on the preemption of respondents’ claims.

eT en ee Ne eT re ee eee

7

are enforceable. As discussed, this case is about whether

respondents can prove they had a “reasonable expectation of

privacy on their part” in the restrooms at the Mira Loma

terminal and prevail on their claims for damages. If respon-

dents consented to the challenged surveillance through their

union in the CBA, that “ ‘obviously affect[ed] [their] expec-

tations.’” Pet. App. 33a (quoting Hill, 865 P.2d at 655).

b. Respondents also argue that there is no need to inter-

pret the CBA because “California’s courts have held that the

state’s constitution and criminal law provides users of a

restroom with a reasonable expectation of privacy as a matter

of law.” Opp. 11 (emphasis in original). As discussed,

however, an invasion of privacy claim also requires a “sub-

jective” expectation of privacy. And as Judge O’Scannlain

observed in his dissent, even if the expectation of privacy in a

restroom is “reasonable” as a matter of California law, that

“does not establish * * * whether [respondents] had a subjec-

tive expectation of privacy in the restroom.” Pet. App. 32a.’

c. Finally, respondents argue that their claims are “inde-

pendent” of the CBA because they can be resolved without

reference to the CBA. See Opp. 13-17. As the foregoing

makes clear, that contention is simply without merit.®

7 Indeed, even cases on which respondents rely (Opp. 11-12) stand

only for the proposition that one has a reasonable expectation of privacy

from observation to which one has not consented. See, e.g., People v.

Metcalf, 98 Cal. Rptr. 925, 927 (Ct. App. 1971) (holding that § 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”) (emphases added). See also

Pet. App. 31a n.7 (noting that People v. Triggs, 506 P.2d 232 (Cal. 1973),

has been clarified by the California Supreme Court to “extend{] only to

‘clandestine, unexpected’ viewing”) (quoting Jn re Deborah C., 635 P.2d

at 452) (emphasis added by dissent).

8 Seeking to avoid this conclusion, respondents mischaracterize this

case as one involving a “defense” that “might involve interpretation of the

ee

4. a. Respondents fare no better when it comes to the

conflicts created by the Ninth Circuit’s alternative holding.

Indeed, although we explained how that holding contravenes

this Court’s rulings that even state law claims conferring

“non-negotiable state-law rights” are preempted unless they

are sufficiently independent of the CBA (Pet. 23-25), respon-

dents do not address this fundamental conflict.9

b. Attempting to deny the circuit conflict created by the

en banc Ninth Circuit’s alternative holding, respondents

argue that the decision below is “entirely consistent” with a

number of decisions of other federal circuits holding that

various claims were not preempted by § 301. Opp. 20. See

id. at 20-23 & n.6. None ofthe cases cited by respondents,

however, involved workplace privacy claims. Moreover,

each of those decisions dealt with claims that—unlike

respondents’ privacy claims here—were clearly outside the

scope of a CBA. The claims held not preempted were either -

those involving assault, battery, or other conduct not “an

ordinary subject of bargaining,” Amoco, 964 F.2d at 710, see

e.g., Peterson v. BMI Refractories, 132 F.3d 1405, 1413

(11th Cir. 1998); Anderson v. Ford Motor Co., 803 F.2d 953,

958-959 (8th Cir. 1986), cert. denied, 483 U.S. 1011 (1987),

or those brought for wrongful discharge or discrimination

under state laws that did not require reference to a CBA for

are Opp. 16 (emphasis in original). That attempt fails because

whether respondents had “a reasonable expectation of privacy on [their]

part”—which cannot be determined without reference to the CBA—is

clearly one of the elements of a privacy claim which respondents must

prove to prevail. Hill, 865 P.2d at 655.

9 That conflict provides a compelling basis for review, particularly as

it generates uncertainty concerning the enforcement of nationwide

CBAs—like the one in this case—which commonly deal with issues of

workplace privacy. See Pet. 27-30. Under the Ninth Circuit’s approach,

unions and employers would have to search laws state by state before

agreeing to a CBA.

i a |

9

their application. See, eg., Kohl’s Food Stores, Inc. v.

Hyland, 32 F.3d 1075, 1078 (7th Cir. 1994); Knafei v. Pepsi

Cola Bottlers of Akron, Inc., 899 F.2d 1473,-1482 (6th Cir.

1990). In any event, to the extent any of the decisions cited

by respondents is in fact “entirely consistent” with the

decision below, as respondents assert, that would only

deepen the circuit conflict and thus heighten the need for this

Court’s review.!°

c. Respondents also purport to take Consolidated to task

for asserting that other federal circuits have “uniformly” held

that § 301 preempts workplace privacy claims. Opp. 23

(quoting Pet. 25). Respondents’ reproof is based on two

cases in which courts held that privacy claims were not

preempted. See Opp. 23-24. Neither of those cases, how-

ever, involved workplace privacy claims.

In Schmidt v. Ameritech Corp, 115 F.3d 501 (7th Cir.

1997), for instance, an employee brought an invasion of

privacy claim against his employer for monitoring his

telephone calls while he was on a leave of absence. In

holding that his claim was not preempted, tlie Court noted that

the employee “[{was] not making any claim about surveil-

lance of his workplace telephone [or] his workplace envi-

ronment,” but rather a claim that he “had the same right to

protection for his customer information as all other [of his

employer’s] customers.” Jd. at 504, 505. Similarly, in Keehr

v. Consolidated Freightways of Delaware, Inc., 825 F.2d 133

(7th Cir. 1987), an employee brought an invasion of privacy

claim based on a supervisor’s rude comments about his wife.

That claim obviously had nothing to do with an invasion of

10 Respondents contend that each of those decisions “adopted a rule

that lawsuits arising out of prohibited activity by an employer are not

preempted.” Opp. 22. Not one of those decisions, however, held that a

claim was preempted merely because the conduct involved was allegedly

unlawful.

10

“workplace” privacy. Thus, in stark contrast to this case, in

these two cases there was clearly no need to interpret the

CBA to resolve the plaintiffs’ claims.

d. Finally, respondents attempt to distinguish the work-

place privacy decisions with which the en banc Ninth Cir-

cuit’s alternative holding conflicts on the ground that they

apparently did not involve allegations of criminal conduct.

See Opp. 24-26. For the reasons discussed above, respon-

dents’ reliance on § 653n to distinguish these cases is simply

misplaced.!!

* * *

For the foregoing reasons, and those stated in the petition,

the petition for a writ of certiorari should be granted, and the

judgment reversed.

Respectfully submitted,

ROBERT E. MANGELS E. BARRETT PRETTYMAN, JR.*

LOUISE ANN FERNANDEZ LORANE F. HEBERT

JENNIFER RAPPOPORT HOGAN & HARTSON L.L.P.

JEFFER, MANGELS, BUTLER 555 Thirteenth Street, N.W.

& MARMARO LLP Washington, D.C. 20004

2121 Avenue of the Stars (202) 637-5685

Los Angeles, CA 90067

(310) 203-8080

* Counsel of Record Counsel for Petitioners

1! Even if these cases were somehow distinguishable, the Ninth Cir-

cuit’s alternative holding would still conflict with decisions holding that

claims based on conduct that might have been criminal were nevertheless

preempted by § 301. See Pet. 26 (discussing cases).