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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
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http://laws.findlaw.com/9th/9855657.html
LLOYD W. CRAMER; DANIEL E. LIPICH, No. 98-55657 Plaintiffs-Appellants, D.C. No. v. CV-97-07860-IH CONSOLIDATED FREIGHTWAYS, INC., Defendant-Appellee. GUILLERMO ALFARO, Plaintiff, and DENNIS R. BLEVINS; RAY R. CASIO; STEVE CUNNINGHAM; RICK DEWOODY; ALEJANDRO GARCIA; DAVID V. GARCIA; RAUL C. No. 98-56041 GARCIA; JAMES A. GRECO; BRUCE A. HARVEY; JOHN K. HATFIELD; D.C. No. ROBERT W. HATFIELD; LEE A. CV-98-00331- INGRAM; ZENO KING, JR.; JOHN L. LHM(ANx) LACROIX; GREGORY A. LANDAVAZO; MELVIN LEO LEWIS; ENRIQUE LOPEZ; HERBERT MARCUS; IGNACIO V. OCHOA; BRIAN K. PAGNE; MANUEL PARRA; JAMES A. PROITTE; CARLOS RIVERA; HAROLD JAMES TAYLOR, JR.; THOMAS A. SCOTT; DAVID W. STEPHENS; J.B. STEWART; 4479 ALFONSO WAGNER; LARRY A. WELLS; ROBERT P. WILLIAMS; ERIC J. WRIGHT; WILLIAM A. YESFORD; MIGUEL ABARAJAS; SANDRA RAY AMBROSE; GUILLERMO AMESOLA; ABELARDO APUAN; MICHAEL VINCENT ARBANAS; CARLOS ARGANDORA; JOSE ABRIERO; MARCARIO ACELLANO; FERNANDO AVILA; MICHAEL E. BANNAN; ARNOLD A. BARAJAS; ROBERT BARRAS; MIKE BARTLEY; DAVID BARTON; JAN K. BEBER; WILLIAM OTIS BEGGS; CRAIG ANTHONY BERLENE; PAUL EUGENE BOATWRIGHT; BRIGIDO BOLIVAR; RAYMOND BONIA; RICHARD BOON; ROGER J. BRASS; GARY BROOKS; MICHAEL D. BROWN; JOANNE BRUMMER; SCOTT BUBIER; EDUARDO S. CARDENAS; MANUEL CARDONA; MARIO CARILLO; HARRIS A. CARTER; RICHARD CENICEROS; JACK CLARK; KENNETH L. CLARK; FERNANDO A. CLAVIJO; ROBERT L. CLINTON; RICHARD CONTRERAS; RANCE D. COOPER; ANTHONY CORDERO; ARMANDO CORDERO; JOHN L. CORDERO; RUDY H. COUTHART; CHARLES DAVIDSON, II; 4480 THOMAS DERSGHY; PHILIP DIGENOVA; CHARLES DIRNER; JIMMY DIXON; AL DORAME; EDDIE SHEPHERD; CLIFFORD J. FELTON; MIKE FITZGERALD; JOSE LUIS FLORES; RAFAEL O. FLORES; ED FOOR; JERRY FRANCE; ALBERT ALEX FRANCO; RAMON B. FRANCO; MICHAEL GAMBINO; ANTHONY GAPDORA; ROBER T. GARCIA; DONALD K. GLOVER; DAVID P. GOMEZ; MANUEL E. GONZALES; GERALD W. GOODWIN; DEVIN JONATHAN GORDON; JONATHAN J. GORDON; JERRY GOFORTH; BERNAL GREGETZ; JOSE GUTIERREZ; JESSE D. HALEY; JAMES HARPER, JR.; SANDRA HEATLEY; PATRICK L. HERON, JR.; RANDALL WILLIAM HOBBS; NARVELL E. HOOKS; STEVE HOPKINS; TIM HOSEA; GAYLE LYNN HAMPTON;
JAMES HURLBURT; JOHN W.
JACKSON; JAMES ROBINSON;
WILLIAM JARRELL; ALFREDO
JIMENEZ; GARY E. JOHNSON; PETER
KARABAN; ROBERT M. KIRKLAND;
LARRY RISSEL; CARY KNIGHT; ANNE
M. KNUTZEN; PATRICK J. KNUTZEN;
ERVIN KROLL; FRANK P. LAGUMINA;
HERCLIO LEMUS; ELORIA REYES;
RICHARD E. LUCERO; ENRIQUE
MANCILLA; CLIFFORD E. MAPLES;
GUILLERMO MARTIN; REGUIO
MARTIN; GILBERT M. MARTINEZ;
RONALD A. MATTHEWS; DAVID E.
MAY; MICHAEL J. MCCARTHY;
DON R. MCCLARY; WILLIAM R.
MCFARLAND; SAUL A. MCKECHAN;
P.L. MEDINA; PEDRO A. MONGE;
ALFRED MONTOYA; ARTHUR MORA;
MARCOS MORALES; ROY L.
MCFOOT; DEWAYNE MORTENSEN,
II; MARK MULHERN; OSCAR MUNOZ;
JOHN MURRAY; RAYNO NORDUCCI;
HECTOR OCHOA; JORGE OCHOA;
MICHAEL O'NEAL; LUIS E. ORTEGA;
GILBERT GEORGE ORTIZ; VICTOR
PARKER; DAVID PERALES; ISIDRO
PERALES; ROBERT PORTILLO;
ROBIN J. QUIGLEY; JOSEPH R.
QUILTY, II; ROBERT REYNOSO;
BRYAN RICHARD; CARLOS OROZCO
RIVAS; GILBERT C. RIVERA;
HOWARD ROBINSON; AUDIAS
RODRIGUEZ; HUGO RODRIGUEZ;
RUBEN RODRIGUEZ; TOMAS A.
RODRIGUEZ; JOHN ROJAS; JAVIER
ROMAN; ARMANDO ROMERO;
ROBERT A. ROSAS; EUGENE A.
ROSE; FRANCISCO J. RUIZ; C.W.
RYAN; CATHERINE SCHATZ; DENNIS
SCHATZ; STEVEN SCHILLING;
NORMAN W. SCHOOLCRAFT; ERNIE
SCOLARI; JOHN P. SOROUSE; JOSEPH
SELCHO; JAMES SHINN;
NATHAN SHROPSHIRE; RICHARD F.
SHUMWAY; DAVID MANUAL SIERRAS;
DAVID H. SMITH, JR.; ROBERT P.
SMITH; CLARENCE SATTERLAND;
JAMES BOBBY L. STONE; ALEJANDRO
TIRADO; FABRIZIO TORRES; BRIAN
UNZICKER; FRANK VALDEZ; MARIO
A. VASQUEZ, JR.; MARIO A.
VASQUEZ, SR.; RICHARD J. VARGAS;
ALEXANDER VILLA, JR.; GUADALUPE
REYES WAGGONER; WAYMOND A.
WALKER; ROBERT WELSH; WILLIAM
M. WESTON, JR.; ROBERT FRITZ
WESTREICHER; JUDY LEN WILSON;
GARY WAYNE YATES; DENNA JEAN
YASANIA; DONALD RAY YODER;
LYLE ARCHIBALD; EWALD BARTH;
LEROTY O. BELL; HENRY CAMACHO;
NICK J. CARENDER; K.W.
CARRITHERS; JOSE CASILLAS;
ARMANDO CORONADO; RICHARD
COTA; DONALD K. CRONK; RICHARD
JOSEPH DIAZ; JACK E. DOBSON;
FRANCISCO ESPARZA; JOSE C.
FLORES; ERNEST W. FRICK; RUDY
GOMEZ; JOSEPH GONZALES; MICHAEL
GROOM; JOAQUIN HERNANDEZ; JOHN
ALFRED HILL; TERRY L. JOHNSON;
OSCAR H. MARTIN; ELY
MCDONAGLE; FULTON L. MITCHELL;
GRADY RICHARD NUTT; GILBERT
ORTIZ, JR.; MICHAEL T. PAUCH;
JEFFREY M. PHILLIPS; MICHAEL R.
PRESTON; BILLY C. RATLEDGE;
ALFRED G. RODRIGUEZ; GILBERT
ROSALES; OLIVER SONJY; JOHN
STURGES; DONALD F. WOODS; F.
THOMAS THORNE; RONALD M.
AUBERT; HARVEY GEORGE BEACH;
PAUL EDWARD BECKER; HAROLD
BURNLEY; KIM HARSHA; JOSEPH
CHAVEZ; PAUL E. COX; JOSEPH
DEFRANCIS; BILL JOE MCFARLAND;
WILLIAM E. MULDOON; JOSE A.
UDELL PETERSON; ANDREW
SLAUGHTER; AMOS TAYLOR; JIM H.
WILLOUGHBY; RICHARD ALVARADO;
HENRY H. ANDRADE; GARY A.
RAMIREZ; ARMAND S. RAMIREZ;
MASAO SHOBE; NOBLE A. CARSON;
ERIC G. FROMM; LUE G. GARY;
RICHARD ANTHONY LEON; JAMES R.
O'NEILL; JERRY STROTHER; TODD T.
STEVENS,
Plaintiffs-Appellants,
v.
CONSOLIDATED FREIGHTWAYS
CORPORATION, a Delaware
corporation; CNF TRANSPORTATION,
INC., a Delaware corporation, aka
Consolidated Freightways, Inc.;
MARK EPSTEIN, an individual;
DOUGLAS SCHUSTER, an individual;
DOE SECURITY INSTALLATION
COMPANY,
Defendants-Appellees.
CHARLES R. DAVIDSON, II;
GUILLERMO ALFARO; DAVID
FITZHUGH; STEVEN B. BUGARIAN;
IGNACIO LAWTON; DREW WHEAT;
DONALD STUBBLEFIELD,
Plaintiffs,
and
THERESA HOFFMAN; MASAO SHOBE,
No. 98-56154
Plaintiffs-Appellants,
D.C. No.
v.
CV-98-00332-
LHM(ANx)
CONSOLIDATED FREIGHTWAYS
CORPORATION, a Delaware
OPINION
corporation, aka Consolidated
Freightways Corporation of
Delaware; CNF TRANSPORTATION,
INC., a Delaware corporation, aka
Consolidated Freightways; MARK
EPSTEIN, an individual; DOUGLAS
SCHUSTER, an individual,
Defendants-Appellees.
Appeals from the United States District Court
for the Central District of California
Irving Hill, District Judge, Presiding*
Argued and Submitted
February 9, 2000--Pasadena, California
Filed April 26, 2000
Before: Diarmuid F. O'Scannlain,** Pamela Ann Rymer,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Rymer;
Partial Dissent by Judge Fisher
Appellant Lloyd Cramer, a Consolidated driver, brought a
class action in California state court alleging invasion of pri-
vacy. In another class action filed by appellant Guillermo
Alfaro, the complaint alleged invasion of privacy and inflic-
tion of emotional distress based on the surveillance.
Appellant Masao Shobe was an occasional employee of
Consolidated and a party in the Alfaro action; he claimed that
Consolidated refused to rehire him because of his participa-
tion in the suit. Appellant Theresa Hoffman asserted that she
was fired as part of a coverup because she witnessed the
installation of the surveillance devices. Shobe and Hoffman
contended that the secret cameras violated California Penal
Code SS 632 (electronic eavesdropping); 635 (possession of
eavesdropping devices); 647k (viewing bathroom interior);
and 653n (installing two-way mirror in bathroom), as well as
their right to privacy guaranteed by the California Constitu-
tion.
Consolidated removed the actions to federal court on the
ground that they were preempted by S 301 of the LMRA. The
district court granted Consolidated's motion to dismiss the
actions for failure to state a claim on which relief could be
granted.
On appeal, Cramer and Alfaro contended that the LMRA
could not preempt a lawsuit by union-represented employees
who claim that they are victims of illegal surveillance and
eavesdropping by their employers. Noting that Consolidated's
conduct violated at least the Penal Code provisions cited by
Shobe and Hoffman, they argued that resolution of their
claims did not entail interpretation of the CBA because there
was no possible interpretation that would allow criminal con-
duct by Consolidated.
Consolidated countered that the privacy claims could not be
resolved without interpreting and applying the CBA, which
specifically addressed the use of video surveillance and drug
interdiction, because the employees alleged (and had to
prove) that they reasonably expected to be free from video
surveillance, and that the surveillance undertaken unreason-
ably intruded on their reasonable expectations of privacy.
Consolidated also argued that S 301 preemption does not turn
on whether a privacy claim is based on a violation of state
law, but on whether it can be resolved without consideration
of a CBA.
[1] Section 301 preempts state-law claims that are founded
on rights created by a CBA, or are substantially dependent on
analysis of a CBA. Employee suits for violation of privacy
interests arising under California law are inextricably inter-
twined with the CBA.
[2] Plaintiffs asserting an invasion of privacy claim must
show that they had a personal and objectively reasonable
expectation of privacy that was infringed by an unreasonable
intrusion. Consent is normally a defense. Reasonableness of
the employees' expectations of privacy depended on the level
of management oversight allowed in the CBA, and the extent
to which this particular surveillance exceeded what Cramer
and Alfaro could reasonably expect.
[3] Privacy rights can be altered or waived under California
law, and must be considered in context. The extent to which
the CBA and the relationship between the parties in the work-
place allowed for surveillance informed the decision about
how reasonable the employees' expectations were that it
would not occur as it did.
[4] Because the California standard for privacy can be
altered by agreement, it is not a non-negotiable, independent
state-law right. A right is non-negotiable if state law does not
permit it to be waived, alienated, or altered by private agree-
ment. Given the negotiable right at issue in this case, there
was no basis for concluding that a different analysis applies
to a privacy claim founded on arguably illegal activities.
[5] While S 653n accords with a person's reasonable expec-
tations of privacy in general--and probably with the expecta-
tions of Consolidated's employees--it could not be said that
it absolutely did without examining the extent to which sur-
veillance, which the CBA assumed would occur, was con-
ducted at the terminal without the employees' knowledge and
consent.
[6] To demonstrate intentional infliction of emotional dis-
tress, a plaintiff must show that the conduct was extreme and
outrageous, exceeding all bounds of that usually tolerated in
civilized society. Whether the employees consented to sur-
veillance affected the extent to which it was "outrageous." [7]
Negligent infliction of emotional distress is a negligence
claim that the defendant breached a duty to protect the plain-
tiff's mental well-being. Resort to the CBA was required to
adjudicate the negligence claim for the same reason. [8] The
emotional distress claims were preempted.
[9] Hoffman and Shobe did not need to show that their pri-
vacy rights were violated. Their claim for retaliatory wrongful
termination was predicated on public policy, which they
alleged was privacy.
[10] Under California law, apart from the terms of an
employment contract, an employer has no right to terminate
employment for a reason that contravenes fundamental public
policy as expressed in a constitutional or statutory provision.
Tort claims for wrongful discharge arise when an employer
retaliates against an employee for refusing to violate a statute,
performing a statutory obligation, exercising a statutory right
or privilege, or reporting an alleged violation of a statute of
public importance. The cause of action thus turns on why the
employer took the action it did, and the existence of a source
of public policy to which the employee's claim is tethered.
[11] If a public policy that can be altered by agreement is
not the kind on which a wrongful discharge claim may be
based, a state court can make that determination with respect
to California's policy on privacy simply by looking to state
law. [12] Whereas the claims in Cramer and Alfaro rested on
the expectations of the parties, the claims for retaliatory
wrongful discharge rested on Consolidated's motivation in
firing Hoffman and not rehiring Shobe. This could be deter-
mined without reference to the CBA. Accordingly, neither
Hoffman's nor Shobe's claim was preempted.
Judge Fisher dissented in part, concluding that claims based
on Consolidated's secret bathroom spying were not pre-
empted because the parties to a CBA cannot contract for what
is illegal under state law.
_________________________________________________________________
COUNSEL
Jay C. Horton (argued), William O. Humphreys, and Malena
R. Leclair, Horton, Barbaro & Reilly, Santa Ana, California,
for plaintiffs-appellants Cramer et al. Michael D. Myers,
Christine Pollard, and Matthew L. Taylor (argued), Myers &
Pollard, Claremont, California, for plaintiffs-appellants Alfaro
et al. and Hoffman et al.
Robert E. Mangels, Marc Marmaro, Louis Ann Fernandez
(argued), and Neil O. Andrus, Jeffer, Mangels, Butler, and
Marmaro, Los Angeles, California, for the defendants-
appellees.
_________________________________________________________________
OPINION
RYMER, Circuit Judge:
These appeals raise the familiar issue of when state law
claims by employees covered by a collective bargaining
agreement are preempted.1 They all arise out of the surrepti-
tious videotaping of restrooms through two-way mirrors, an
activity that is arguably criminal in California. Employees at
the trucking terminal where this happened filed related actions
seeking recovery from their employer, Consolidated Freight-
ways Corporation of Delaware, for invasion of privacy
(Cramer and Alfaro); emotional distress (Alfaro); and dis-
charge in retaliation for their own conduct related to the sur-
veillance (Hoffman). The district court held that all the claims
in each action are preempted by Section 301 of the Labor
Management Relations Act, 29 U.S.C. S 185, 2 because deter-
mining whether privacy rights have been violated requires an
interpretation and application of the collective bargaining
agreement. The employees contend otherwise, primarily for
the reason that parties to a collective bargaining agreement
cannot negotiate for considerations that violate criminal stat-
utes. Following a long line of authority in this circuit, we
agree with the district court in Cramer and Alfaro that adjudi-
cation of these civil claims based on privacy rights depends
on the reasonableness of the employees' expectations and
this, in turn, depends on the extent to which they may have
bargained away their privacy interests. Therefore these claims
are preempted, whether or not the specific conduct at issue
may also be subject to criminal prosecution. The same is true
of Alfaro's claims for emotional distress; the employer's con-
duct is not outrageous just because a statutory prohibition
may have been violated, rather it depends upon the relation-
ship between the parties. Thus, we affirm both Cramer and
Alfaro.
However, claims based upon retaliatory discharge in viola-
tion of public policy are different. Under California law, they
turn on the employer's motivation -- not the employees'
expectations. Accordingly, we reverse Hoffman .
I
Consolidated Freightways is a large trucking company
whose drivers and non-supervisory employees at the Mira
Loma, California trucking terminal are subject to a collective
bargaining agreement between Consolidated and the Interna-
tional Brotherhood of Teamsters, Local No. 63. Article 26,
Section 2 of the Master Agreement provides that"[t]he
Employer may not use video cameras to discipline or dis-
charge an employee for reasons other than theft of property or
dishonesty" and stipulates to a procedure to be followed if
video tapes are used to support discipline or discharge. Other
provisions acknowledge concern about substance abuse, pre-
scribe drug testing procedures, and establish a process for
grieving disputes arising under the agreement.
Evidently as part of an effort to detect and deter the use of
drugs by its drivers, Consolidated installed video cameras and
audio listening devices behind two-way mirrors in the rest-
rooms at the Mira Loma terminal.3 Employees discovered the
surveillance equipment in September 1997.
Local 63 filed a grievance on September 22, 1997, and on
September 27 Lloyd Cramer, a truck driver employed at the
Mira Loma terminal, brought a class action in the Superior
Court for the State of California in Riverside County alleging
invasion of privacy on behalf of all "individuals lawfully on
the premises . . . who had a reasonable expectation of privacy
while using defendants' restrooms." Another suit was filed in
state court by Guillermo Alfaro (joined by 281 others), seek-
ing damages for invasion of privacy as well as for infliction
of emotional distress, and an injunction to stop Consolidated's
use of the allegedly illegal devices. Consolidated removed
both actions to federal district court, asserting that the claims
fall within the preemptive reach of S 301.
Consolidated moved in both actions to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure; conversely,
Alfaro filed a motion to remand for lack of federal jurisdic-
tion, in which Cramer joined. Various motions were filed with
respect to class certification in Cramer, but the district court
considered the remand and dismissal motions first. The court
denied the motions to remand; granted Consolidated's motion
to dismiss in Cramer and denied the request for certification
as moot; and granted the motion to dismiss in Alfaro as to the
273 employees and remanded the claims of nine non-
employees to state court.
Meanwhile, Theresa Hoffman and Masao Shobe also filed
an action in state court. Hoffman claimed that while at work,
she witnessed installation of some of the surveillance devices
and that she was fired as part of a cover-up. As a "casual
employee" under the collective bargaining agreement, Shobe
regularly worked short stints for Consolidated at the Mira
Loma terminal. Although he was not working at the time, he
joined as a party in the Alfaro action. Thereafter, Shobe
applied to be rehired but alleges that he was rejected because
of his participation in the Alfaro suit. Both claim that installa-
tion of the secret cameras violated California Penal Code
SS 632, 635, 647k and 653n as well as their constitutional
rights of privacy under Article 1, Section 1 of the California
Constitution, and that Consolidated's job actions were taken
to conceal the existence of crimes in Hoffman's case, and in
Shobe's, to punish him for filing a lawsuit to protect and
enforce his constitutional privacy rights. Consolidated
removed and moved to dismiss on grounds of preemption;
Hoffman and Shobe in turn sought a remand. The district
court found both claims preempted, and dismissed the action.
All parties have timely appealed.
II
Invasion of Privacy
(Hoffman and Alfaro)
Cramer4 and Alfaro argue that the LMRA cannot preempt
a lawsuit by union employees who claim they are victims of
illegal surveillance and eavesdropping activities by their
employers. They point out that the LMRA only preempts state
lawsuits which are "substantially dependent" on a CBA, see
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), and that
employees covered by a collective bargaining agreement may
assert legal rights "independent" of the agreement. Id. at 396.
"Independent" means that "resolution of the state-law claim
does not require construing the collective bargaining agree-
ment." See Lingle v. Norge Division of Magic Chef, 486 U.S.
399, 407 (1988). Specifically relying on Allis-Chalmers, and
Miller v. AT&T Network Sys., 850 F.2d 543 (9th Cir. 1988),
Cramer and Alfaro submit that their state law claims are inde-
pendent of the CBA because the collective bargaining agree-
ment cannot, as a matter of law, authorize conduct that is
illegal under state law. In their view, Consolidated's conduct
was illegal and prohibited by at least four sections of the Cali-
fornia Penal Code: S 653n,5 which makes it a misdemeanor to
install a two-way mirror in a bathroom; S 647(k),6 which
criminalizes viewing the interior of a bathroom;S 632,7 which
makes it illegal to eavesdrop by means of electronic recording
devices; and S 635,8 which prohibits the possession of eaves-
dropping devices. As there is no possible interpretation of the
CBA that would allow the criminal surveillance at issue in
this case, Cramer and Alfaro maintain there will be no need
to interpret the collective bargaining agreement in the course
of the litigation.
Consolidated counters that no matter how the employees'
privacy claim is cast, it cannot be determined without inter-
pretation and application of the collective bargaining agree-
ment, which specifically addresses the use of video
surveillance and drug interdiction, because the employees
allege (and must prove) that they reasonably expected to be
free from video surveillance and that the surveillance
undertaken unreasonably intruded on their reasonable expec-
tations of privacy. Consolidated further contends that S 301
preemption does not turn on whether a privacy claim is based
upon an alleged violation of a criminal statute, a constitutional
provision, or some other source of substantive rights under
state law but instead, depends upon whether the state claim
can be resolved without consideration of the collective bar-
gaining agreement. Finally, it submits, the general proposition
that parties to a collective bargaining agreement cannot agree
to something illegal under state law is largely irrelevant in this
case, where the critical issue is whether Consolidated's
alleged violation invaded the employees' reasonable expecta-
tions of privacy.
[1] We do not write on a clean slate in this area. It is by
now well-settled that Section 301 preempts state law claims
which are founded on rights created by a collective bargaining
agreement, or which are "substantially dependent on analysis
of a collective bargaining agreement." Stikes v. Chevron
U.S.A., Inc., 914 F.2d 1265, 1268 (9th Cir. 1990). More par-
ticularly, we have held in a long line of cases that employee
suits for violation of privacy interests arising under California
law are inextricably intertwined with the collective bargaining
agreement. "This is because a violation of California's consti-
tutional 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 unreason-
able . . . intrusion.' " Id. at 1269 (quoting Alarcon v. Murphy,
248 Cal. Rptr. 26, 29 (Cal. Ct. App. 1988)). Thus, in Stikes,
we confronted a union employee's claim for violation of his
right to privacy on account of Chevron's policy requiring
employees to submit to random searches of their persons and
property. We concluded that the "district court could not
ascertain Stikes' expectations of privacy at the workplace
without considering the conditions of his employment enu-
merated in the collective bargaining agreement." Id. at 1269.
Before that, in Laws v. Calmat, 852 F.2d 430, 431-32 (9th
Cir. 1988), and Utility Workers of America v. Southern Cali-
fornia Edison Co., 852 F.2d 1083, 1085-87 (9th Cir. 1988),
we held that state law privacy challenges to a union employ-
er's drug and alcohol testing programs are substantially
dependent upon the collective bargaining agreement, whether
or not specifically discussed in the agreement, because a drug
or alcohol program is a working condition and the conditions
of a union employee's employment are governed by the col-
lective bargaining agreement. Most recently, we revisited
whether claims for invasion of privacy rights arising out of an
employer's drug testing program were preempted in
Schlacter-Jones v. General Telephone of California , 936 F.2d
435 (9th Cir. 1991). Again holding they were, we reasoned
that a collective bargaining agreement governs the working
conditions of employment, a testing program is a working
condition whether or not it is specifically discussed, and
"[w]hen a working condition such as drug testing is subject to
bargaining, and the employee's claim is rooted in the expecta-
tions of the parties, determining liability will necessarily
involve contract interpretation and the claim will be preempt-
ed." Id. at 441.
[2] Cramer and Alfaro contend that we need not follow this
line of authority because restroom surveillance is different
from drug testing in that drug testing is not illegal in Califor-
nia whereas it is illegal to install a two-way mirror in a bath-
room. See Cal. Penal Code S 653n. We cannot agree. While
the level of culpability and the consequences may be differ-
ent, the claim for relief is not; here as in the random search
and drug-testing cases, the employees complain of an inva-
sion of privacy contrary to their rights under the California
Constitution. As we recognized in Stikes, under California law
plaintiffs asserting an invasion of privacy claim must show
that they had a personal and objectively reasonable expecta-
tion of privacy that was infringed by an unreasonable intru-
sion. Stikes, 914 F.2d at 1269. This depends on the "deal
struck between labor and management." Schlacter-Jones, 936
F.2d at 441. The reason is that consent is normally a defense
to a privacy action.9 As the California Supreme Court articu-
lated the point in Hill v. National Collegiate Athletic Ass'n,
26 Cal. Rptr.2d 834, 849 (Cal. 1994):
[T]he plaintiff in an invasion of privacy case must
have conducted himself or herself in a manner con-
sistent with an actual expectation of privacy, i.e., he
or she must not have manifested by his or her con-
duct a voluntary consent to the invasive actions of
defendant. If voluntary consent is present, a defen-
dant's conduct will rarely be deemed "highly offen-
sive to a reasonable person" so as to justify tort
liability.
Further,
[i]n determining the " `offensiveness' " of an inva-
sion of a privacy interest, common law courts con-
sider, among other things: "the degree of the
intrusion, the context, conduct and circumstances
surrounding the intrusion as well as the intruder's
motives and objectives, the setting into which he
intrudes, and the expectations of those whose pri-
vacy is invaded."
Id. at 850 (quoting Miller v. National Broadcasting Co., 187
Cal. App.3d 1463, 1483-84, 232 Cal. Rptr. 668, 679 (Cal. Ct.
App. 1986)). Thus, in this case as in the case of employer
search or drug testing programs that we have previously con-
sidered, the reasonableness of the employees' expectations of
privacy will depend upon the level of management oversight
allowed in the collective bargaining agreement and the extent
to which this particular surveillance exceeds what Cramer and
Alfaro could reasonably expect.10
[3] They argue that this cannot be so for several reasons
directly related to the illegality of the surveillance activities.
First, Cramer and Alfaro emphasize the Supreme Court's
statement in Allis-Chalmers that "S 301 does not grant the
parties to a collective-bargaining agreement the ability to con-
tract for what is illegal under state law." Allis-Chalmers, 471
U.S. at 212. They maintain that criminal conduct is, by defini-
tion, outrageous, see Galvez v. Kuhn, 933 F.2d 773, 780 (9th
Cir. 1991), and cannot be a condition that it is possible for a
collective bargaining agreement to condone. While the argu-
ment has considerable force, it ultimately fails to save their
claim because the civil right to privacy, regardless of source,
can be waived for the reasons we have already explained. As
the Court went on to explain the difference between obliga-
tions that are "independent" of a labor contract from those
that are not:
In extending the pre-emptive effect of S 301 beyond
suits for breach of contract, it would be inconsistent
with congressional intent under that section to pre-
empt state rules that proscribe conduct, or establish
rights and obligations, independent of a labor con-
tract.
Therefore, state-law rights and obligations that do
not exist independently of private agreements, and
that as a result can be waived or altered by agree-
ment of private parties, are pre-empted by those
agreements.
Allis-Chalmers, 471 U.S. at 212-13 (footnote omitted). This
is precisely the situation here, as privacy rights can be altered
or waived under California law and must be considered in
context. See Hill, 26 Cal. Rptr.2d at 850. No one suggests that
the subject of surveillance is an improper subject for collec-
tive bargaining. Cf. Utility Workers, 852 F.2d at 1086 (noting
that drug testing is proper subject for collective bargaining
and does not implicate the sort of "nonnegotiable state-law
rights" that Allis-Chalmers indicates might preclude preemp-
tion); Schlacter-Jones, 936 F.2d at 441 (noting that "the ques-
tion is not solely whether a state law claim is`nonnegotiable';
it is whether it is `independent' of the collective bargaining
agreement"). Thus, the extent to which the collective bargain-
ing agreement and the relationship between the parties in the
workplace allow for surveillance will inevitably inform the
decision about how reasonable the employees' expectations
were that it would not occur as it did.
Galvez represents quite a different situation. There, the
employee sued for damages for an assault. Being assaulted by
a supervisor is not only outrageous, it is non-waivable. Fur-
ther, Galvez's claim could be resolved without interpreting
the collective bargaining agreement because liability for the
assault turned entirely on the employer's intent. Unlike these
cases, the outcome in Galvez in no way depended on the rea-
sonableness of the employee's expectations.
[4] The same is true of other cases upon which Cramer and
Alfaro rely. Miller, Jineno v. Mobil Oil Corp., 66 F.3d 1514
(9th Cir. 1995), Ramirez v. Fox Television Station, Inc., 998
F.2d 743 (9th Cir. 1993), and Chmiel v. Beverly Wilshire
Hotel Co., 873 F.2d 1283 (9th Cir. 1989), all involve claims
by a union employee arising out of alleged discrimination by
the employer contrary to state law. In this context we have
held that when a state construes its discrimination statutes to
rely on standards of discriminatory discharge that are inde-
pendent of any standard of reasonable treatment set forth in
the collective bargaining agreement, then termination of
employment allegedly in violation of those statutory standards
can be resolved under those standards without reference to the
collective bargaining agreement. In other words, a Miller-type
case only raises a factual dispute under an established state
standard; such cases can be fully determined by deciding if
the employer intended to discriminate. Unlike these cases, the
California "standard" for privacy assumes that it can be
altered by agreement. Because it can be, it plainly is not a
"nonnegotiable, independent state-law right" under Allis-
Chalmers. As we recognized in Miller,"[t]he concept `nonne-
gotiable' is clear. A right is nonnegotiable if the state law
does not permit it to be waived, alienated, or altered by pri-
vate agreement." Miller, 850 F.2d at 546. Given the negotia-
ble right at issue here, there is no basis for concluding that a
different analysis applies to a privacy claim founded on argu-
ably illegal, by contrast with legal but also invasive, activities.
[5] Next, Cramer and Alfaro submit that California Penal
Code SS 653n and 647(k) flatly ban surveillance through two-
way mirrors in bathrooms regardless of whether there is an
expectation of privacy. Whether or not this is so for purposes
of criminal prosecution, there is no question that the civil tort
on which they proceed in this case does turn on the existence
of a reasonable expectation of privacy. Alternatively, they
contend that California case law interpreting S 653n is clear
that the expectation of privacy that people have in a restroom
is reasonable as a matter of law. They point to People v. Met-
calf, 98 Cal. Rptr. 925, 927 (Cal. App. 1971), in which the
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,"
and to People v. Triggs, 106 Cal. Rptr. 408, 414 (Cal. 1973),
overruled on other grounds People v. Lilienthal, 150 Cal.
Rptr. 910, 912 n.4 (Cal. 1978), and Young v. Superior Court
of Tulare County, 129 Cal.Rptr. 422, 425 (Cal. Ct. App.
1976), which also indicate that the expectation of privacy a
person has when he enters a restroom is reasonable. However,
these are Fourth Amendment cases in which a person accused
of criminal conduct occurring in a public restroom has chal-
lenged the use of evidence obtained through surreptitious sur-
veillance on the footing that it was an unreasonable search of
an area in which he had a reasonable expectation of privacy.
See also In re Deborah C., 177 Cal. Rptr. 852, 858 (Cal.
1981) (prosecution for theft based on fitting room surveil-
lance). We are aware of no California authority interpreting
S 653n to apply to employees who are parties to a collective
bargaining agreement, or applying the constitutional right of
privacy in the context of surveillance other than in Hill. Hill
expressly conditions the right to privacy on consent and cir-
cumstances. Accordingly, while S 653n undoubtedly accords
with a person's reasonable expectations of privacy in general
-- and probably with the expectations of Consolidated's
employees -- we cannot say that it absolutely does without
examining the extent to which surveillance, which the collec-
tive bargaining agreement assumes will occur, is conducted at
the terminal with the employees' knowledge and consent.
Additionally, Cramer and Alfaro argue that their actions are
not preempted under the test for preemption we adopted in
Miller and applied in Jimeno. In deciding whether Miller's
discrimination claim was preempted we considered
(1) whether the CBA contains provisions that govern
the actions giving rise to a state claim, and if so, (2)
whether the state has articulated a standard suffi-
ciently clear that the state claim can be evaluated
without considering the overlapping provisions of
the CBA, and (3) whether the state has shown an
intent not to allow its prohibition to be altered or
removed by private contract.
Miller, 850 F.2d at 548 (footnote omitted). For reasons we
have already discussed, none of these factors cuts in favor of
non-preemption of a privacy claim.
Finally, Cramer and Alfaro suggest that we should not hold
their claims preempted because to do so would give employ-
ers license to violate the criminal laws without recourse. We
fail to see how, as employers can be criminally prosecuted for
violations of S 653n, and will surely lose in the grievance pro-
cess itself if, as the employees here contend, surveillance has
in fact been conducted without authority. Our decision in no
way sanctions what Consolidated did; it merely prescribes the
forum and the form in which the dispute must go forward.
Accordingly, the privacy claims are preempted, and were
properly dismissed.
III
Emotional Distress
(Alfaro)
Alfaro asserts additional causes of action for the intentional
and negligent infliction of emotional distress. In effect these
are "parasite" claims that track the principal claim for inva-
sion of privacy. We therefore address them summarily, as for
essentially the same reasons, they, too, are preempted.
[6] To demonstrate intentional infliction of emotional dis-
tress, a plaintiff must show that the conduct was "extreme and
outrageous," Sabow v. United States, 93 F.3d 1445, 1454 (9th
Cir. 1996) (applying California law), " `exceed[ing] all
bounds of that usually tolerated in civilized society.' " Id. at
1455 (quoting Davidson v. Westminster, 185 Cal. Rptr. 252,
259 (Cal. 1982)). Whether the employees consented to sur-
veillance affects the extent to which the surveillance about
which Alfaro complains is "outrageous." See Sariakis v.
United Airlines, 166 F.3d 1272, 1278 (9th Cir. 1999) (under
California law "determining whether an employer's conduct
is outrageous requires an interpretation of the terms of the
CBA . . ."); see also Miller, 850 F.2d at 551 (construing Ore-
gon law, but noting that outrageousness could depend upon
the collective bargaining agreement and that "we cannot
assume that the employer's behavior was outrageous for pur-
poses of an emotional distress claim just because the
employer may have violated a statutory prohibition against
discrimination").
[7] The tort of negligent infliction of emotional distress is
simply a negligence claim alleging that the defendant
breached a duty to protect the plaintiff's mental well-being.
See Potter v. Firestone Tire & Rubber Co. 25 Cal. Rptr.2d
550, 562 (Cal. 1993) ("[T]here is no independent tort of negli-
gent infliction of emotional distress"); Burgess v. Superior
Court, 9 Cal. Rptr.2d 615, 618 (Cal. 1992) ("We have repeat-
edly recognized the negligent causing of emotional distress is
not an independent tort, but the tort of negligence.") (internal
quotations and alterations omitted). For the same reason that
resort to the collective bargaining agreement is required to
adjudicate Alfaro's claim for intentional infliction of emo-
tional distress, it is necessary to resolve the negligence claim:
the extent to which the employees consented to surveillance
is a factor in determining whether Consolidated had a duty not
to be surveillant in the restrooms. Alfaro argues that we have
repeatedly held that outrageous and illegal conduct is outside
the terms of a collective bargaining agreement, citing Galvez
as an example. However, as we have discussed, an assault
such as happened in Galvez is neither more nor less outra-
geous depending upon the conditions governing conduct in
the workplace, whereas the outrageousness of the conduct
here does depend on the degree of surveillance contemplated
through the collective bargaining agreement.
[8] Accordingly, Alfaro's claims for emotional distress are
preempted.11
IV
Discharge in Violation of Public Policy
(Hoffman)
The gist of Hoffman's claim is that she was preemptively
fired in an attempt to keep her from reporting illegal surveil-
lance activity to law enforcement officials. Her theory is that
whistleblowers are protected from retaliation by statute in
California, see Cal. Labor Code S 1102.5(b),12 and that Cali-
fornia courts have held that terminations in violation of
S 1102.5 give rise to a cause of action for wrongful termina-
tion in violation of public policy. See, e.g., Garcia v. Rockwell
Int'l, 232 Cal.Rptr. 490 (Cal. App. 1987) (public policy for-
bids retaliation by employer against employee who disclosed
information regarding employer's violation of law to govern-
ment agency), abrogated on other grounds, Gantt v. Sentry
Ins., 4 Cal. Rptr.2d 874 (Cal. 1992). She points out that the
conduct she witnessed is criminalized by Cal. Penal Code
SS 653n, 647(k), 632, and 635, and that privacy is explicitly
protected in the California Constitution. Shobe rests his claim
that he was not rehired in retaliation for being a party in the
Alfaro litigation on the right to bring a lawsuit alleging viola-
tion of his privacy rights. Both argue that it will be unneces-
sary to interpret the collective bargaining agreement because
the issue of whether Consolidated fired Hoffman to cover-up
its criminal acts, and refused to rehire Shobe because of his
legal action, is strictly a factual inquiry under state law.
[9] Consolidated's position is that because an essential ele-
ment of all "public policy" wrongful termination claims is
that the employer's conduct must have violated some funda-
mental public policy, and the violation upon which Hoffman
and Shobe rely is the alleged invasion of their privacy rights,
they must establish that Consolidated in fact violated the stat-
utory or constitutional provisions protecting the right to pri-
vacy. This Consolidated believes they cannot do without
interpreting the collective bargaining agreement. If this were
the issue -- that is, if the claim could be made out only if the
employees first prove that Consolidated in fact violated their
privacy rights -- then this case would be exactly like Cramer
and Alfaro. However, the focus here is different: "[A]n
employee need not prove an actual violation of law; it suffices
if the employer fired him for reporting his `reasonably based
suspicions' of illegal activity." Green v. Ralee Engineering
Co., 78 Cal.Rptr.2d 16, 29 (Cal. 1998). Put another way,
Hoffman and Shobe do not need to show that their own pri-
vacy rights were actually violated (which would depend upon
the reasonableness of their expectations), rather that their
claim for retaliatory wrongful termination is predicated on
important public policy -- which they allege is privacy.
[10] Under California law, "[a]part from the terms of an
express or implied employment contract, an employer has no
right to terminate employment for a reason that contravenes
fundamental public policy as expressed in a constitutional or
statutory provision." Turner v. Anheuser-Busch, Inc., 32
Cal.Rptr.2d 223, 231 (Cal. 1994). To state a cause of action
for wrongful discharge in violation of fundamental public pol-
icy, an employee must prove that his dismissal violated a pol-
icy that is fundamental, beneficial for the public, and
embodied in statute or constitutional provision."Tort claims
for wrongful discharge typically arise when an employer
retaliates against an employee for `(1) refusing to violate a
statute . . . [,] (2) performing a statutory obligation . . . [,] (3)
exercising a statutory right or privilege . . .[, or] (4) reporting
an alleged violation of a statute of public importance." Id. at
234 (quoting Gantt v. Sentry Ins., 4 Cal. Rptr.2d 874, 878
(Cal. 1992)). Thus the cause of action turns on why the
employer took the action it did, and the existence of a source
of public policy to which the employee's claim is "tethered."
Gantt, 4 Cal. Rptr.2d at 881.
[11] Consolidated argues that public policy wrongful dis-
charge claims must be based upon a fundamental policy that
is not subject to revision through agreement of private parties
(as privacy rights are), see Green, 78 Cal. Rptr.2d at 21 (dis-
cussing genesis of requirement that Tameny13 claim implicate
public policy); and that there can be no viable public policy
claim based upon privacy rights because they may be altered
by agreement. However, it seems to us that both points have
to do with whether a viable cause of action is stated under
California law, which is an issue that the federal courts cannot
reach without jurisdiction.14 The only question for us to decide
is whether the collective bargaining agreement will have to be
construed in the course of litigating this action. We think not,
for if Consolidated is correct that a public policy which can
be altered by agreement is not the kind of public policy upon
which a wrongful discharge claim may be based, a state court
can make that determination with respect to California's pol-
icy on privacy simply by looking to state law. Thus, Consoli-
dated's reliance on Stikes, Laws, Utility Workers, and
Schlacter-Jones, each of which involves a job action taken as
a result of a search that the employee later contends invaded
his privacy rights, is misplaced. Instead, this case is closer to
Lingle, where an employee covered under a collective bar-
gaining agreement brought an action for retaliatory discharge
for filing a workers' compensation claim, and the Court held
that the state claims were not preempted because their resolu-
tion turns on the employer's motivation in discharging the
employee -- not on interpretation of the agreement. Lingle,
486 U.S. at 407.
[12] In sum, whereas the claims for invasion of privacy in
Cramer and Alfaro rest on the expectations of the parties, the
Hoffman claims for retaliatory wrongful discharge rest on
Consolidated's motivation in firing Hoffman and not rehiring
Shobe. See Schlacter-Jones, 936 F.2d at 441 (contrasting a
Lingle claim that centers on the motivation of the employer
with a privacy claim which rests "primarily on the expecta-
tions of the parties and the powers" of the employer). This can
be determined without reference to the collective bargaining
agreement. Accordingly, neither Hoffman's nor Shobe's
claim is preempted. We therefore reverse dismissal and
remand with instructions for Hoffman to be remanded to the
Superior Court for Riverside County.
AFFIRMED as to Cramer and Alfaro; REVERSED AND
REMANDED as to Hoffman.
_________________________________________________________________
FISHER, Circuit Judge, dissenting in part:
There was . . . no way of knowing whether you were
being watched at any given moment. . . . It was even
conceivable that they watched everybody all the
time. . . . You had to live -- did live, from habit that
became instinct -- in the assumption that every
sound you made was overheard, and, except in dark-
ness, every movement scrutinized.
George Orwell, 1984 6-7 (Signet Classic 1992) (1949).
In this era of diminished privacy, where television trans-
forms to reality what used to be considered fiction, see, e.g.,
Edmund L. Andrews, Europe's `Reality' TV: Chains and Big
Brother, N.Y. Times, April 11, 2000, at A4 (describing a tele-
vision game show called "Big Brother" for which contestants
"are sealed for 100 days in a house where cameras and micro-
phones record them 24 hours a day"), perhaps one should not
be troubled by the blatant invasion of privacy at issue in this
case. But I simply cannot agree that federal labor law intends
to preempt states from protecting their citizens -- even those
working under collective bargaining agreements -- from the
kind of bathroom spying secretly and unilaterally employed
by Consolidated Freightways, Inc.
Consolidated's clandestine surveillance of its employees
and others using cameras hidden behind two-way mirrors was
criminal conduct, in clear violation of California law. The
California Penal Code unambiguously prohibits installing
two-way mirrors in restrooms, see Cal. Penal Code S 653n,
and bars using a camera to look through a hole or opening
into a restroom, see id. S 647(k)(1). Although the majority
describes Consolidated's conduct as "arguably criminal in
California," maj. op. at 4491, there is nothing "arguable"
about the criminal nature and impropriety of Consolidated's
actions.
The Supreme Court has explicitly stated that: "Clearly,
S 301 does not grant the parties to a collective-bargaining
agreement the ability to contract for what is illegal under state
law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212
(1985). Nevertheless, the majority finds all of the Cramer and
Alfaro plaintiffs' claims to be preempted byS 301, even
though (1) the collective bargaining agreement ("CBA") in
question does not discuss -- even implicitly -- surreptitious
surveillance of restrooms1 and (2) if the CBA did contain such
provisions, those provisions would be void as violations of
California criminal law, see 1 B.E. Witkin, Summary of Cali-
fornia Law, Contracts SS 430-31, at 386-88 (9th ed. 1987). In
my view, it defies logic to suggest that a court must interpret
a CBA to determine whether the parties' agreement permits
illegal conduct. Therefore, I respectfully dissent from Parts II
and III of the majority opinion to the extent the majority finds
the plaintiffs' claims to be completely preempted.
************
Preemption of an employee's state tort claim turns on
whether that claim "confers nonnegotiable state-law rights on
employers or employees independent of any right established
by contract, or, instead, whether evaluation of the tort claim
is inextricably intertwined with consideration of the terms of
the labor contracts." Allis-Chalmers, 471 U.S. at 213 (empha-
sis added). The majority quotes Miller v. AT&T Network Sys-
tems, 850 F.2d 543, 546 (9th Cir. 1988), for the proposition
that "[a] right is nonnegotiable if the state law does not permit
it to be waived, alienated, or altered by private agreement."
Maj. op. at 4501 (internal quotation marks omitted). The
majority then finds that "[g]iven the negotiable right at issue
here, there is no basis for concluding that a different analysis
applies to a privacy claim founded on arguably illegal, by
contrast with legal but also invasive, activities. " Id. The
majority's conclusion that the plaintiffs' right to be free from
two-way mirror observation was "negotiable" (and, therefore,
that there is no principled basis upon which to distinguish
such claims based on illegal conduct from those in which the
conduct is less offensive) lies at the heart of my disagreement
with its analysis.
It is true that we generally regard California privacy claims
as involving negotiable rights that are subject toS 301 pre-
emption. See, e.g., Stikes v. Chevron USA, Inc., 914 F.2d
1265, 1270 (9th Cir. 1990). As the majority suggests, this is
because "consent is normally a defense to a privacy action."
Maj. op. at 4498 (emphasis added). However, I do not believe
this general rule supports the majority's conclusion that pri-
vacy claims must always be preempted.
The various privacy cases cited by the majority are not only
distinguishable, they also do not stand for the proposition that
every privacy claim will be preempted by S 301. Most of the
cases relied upon by the majority involve an employer's right
to institute mandatory drug testing in the workplace. See
Schlacter-Jones v. General Tel., 936 F.2d 435, 437 (9th Cir.
1991) (employee terminated following positive drug test);
Laws v. Calmat, 852 F.2d 430, 433 (9th Cir. 1988) (employee
suspended for refusing to submit to a urine test); Utility Work-
ers of Am. v. Southern Cal. Edison Co., 852 F.2d 1083, 1085
(9th Cir. 1988) (challenge to employer's institution of random
drug testing program under which employees receive one
day's notice of selection for testing). Our decisions in these
cases were based on an underlying determination that "an
employee's right to be free from mandatory drug testing is
properly a subject of collective bargaining," Schlacter-Jones,
936 F.2d at 442, rather than on a blanket rule that all privacy
claims necessarily require interpretation of a CBA. As we
noted recently in Balcorta v. Twentieth Century-Fox Film
Corp., _______ F.3d _______, 2000 WL 350562 (9th Cir. 2000):
Dicta from a few of our earlier complete preemption
cases suggested that the doctrine extends much fur-
ther than the "interpretation" test allows. In a few
cases dealing with state constitutional privacy
claims, we suggested that any claim that is "a prop-
erly negotiable subject for purposes of collective
bargaining" is completely preempted. More recently,
however, we have made it clear that the outcome in
those cases did not turn on the expansive dicta about
complete preemption. . . . [B]oth the Supreme Court
and this court have rejected the broad swath of com-
plete preemption that the dicta in Laws and Utility
Workers of America would suggest.
Id. at *4 n.10 (quoting Utility Workers of Am., 852 F.2d at
1086) (citations omitted). Unlike the conduct at issue here,
drug testing is neither surreptitious activity on the part of an
employer nor illegal under state law; therefore, as Balcorta
suggests, there is no reason for us to bind ourselves to the
expansive language of our previous drug testing cases when,
as here, it is inappropriate to do so.
The majority's reliance on California state court precedent
to support its broad holding is also misplaced. Hill v. National
Collegiate Athletic Association, 26 Cal. Rptr. 2d 834 (Cal.
1994), was written in the context of drug testing of college
athletes, whose activities by their nature "involve[ ] close reg-
ulation and scrutiny of [their] physical fitness and bodily con-
dition," and who regularly undergo physical examinations,
including urinalysis, and "frequently disrobe in the presence
of one another . . . in locker room settings where private bod-
ily parts are readily observable by others of the same sex." Id.
at 860.2 The court also emphasized the openness and consen-
sual nature of the testing. See id. "Thus, athletes have com-
plete information regarding the NCAA's drug testing program
and are afforded the opportunity to consent or refuse before
they may be selected for testing."3 Id. at 860-61.
Nothing in Hill suggests that someone who is surrepti-
tiously spied upon in a bathroom by criminal means has any-
thing other than a reasonable expectation of privacy as a
matter of law. Hill simply does not create the blanket rule
inferred by the majority, see maj. op. at 4502 ("Hill expressly
conditions the right to privacy on consent and circum-
stances."), or stand for the proposition that, regardless of the
context or the nature of the "surveillance" in a particular case,
consent is always a question of fact (thereby requiring inter-
pretation of a CBA, if one exists). Quite the contrary: the
supreme court explained that "[w]hether a legally recognized
privacy interest is present in a given case is a question of law
to be decided by the court," and the availability of consent as
a defense will turn on whether it is "appropriate in view of the
nature of the claim and the relief requested." Hill, 26 Cal.
Rptr. 2d at 859. Significantly, the court noted that the Hill
plaintiffs had not contended that the NCAA's conduct was
"contrary to law or public policy." Id. at 861.
In contrast to the conduct at issue in Hill, the California
Supreme Court has described S 653n as "express[ing] a legis-
lative policy against `clandestine observation of public rest-
rooms,' rendering it `reasonable for users thereof to expect
that their privacy will not be surreptitiously violated.' " In re
Deborah C., 177 Cal. Rptr. 852, 858 n.9 (Cal. 1981) (quoting
People v. Metcalf, 98 Cal. Rptr. 925, 927 (Cal. Ct. App.
1971)). I do not believe the California Supreme Court, under
the reasoning of Hill or otherwise, has precluded this court
from concluding on the facts presented here that the plaintiffs
as a matter of law had a reasonable expectation of privacy --
that they would not be videotaped in Consolidated's rest-
rooms through two-way mirrors -- and to that extent their pri-
vacy claims are not preempted by S 301.4
I also disagree with the majority's analysis of Alfaro's
emotional distress claims. This court's preemption decisions
do not establish a per se rule that such claims must be pre-
empted by S 301. Compare Sariakis v. United Airlines, 166
F.3d 1272, 1278 (9th Cir. 1999) (claim of emotional distress
resulting from mandatory drug testing is preempted), with
Galvez v. Kuhn, 933 F.2d 773, 779-80 (9th Cir. 1991) (claim
of emotional distress resulting from assault not preempted
because "[c]ompliance with the CBA . . . cannot temper the
potential outrageousness of the conduct"). Miller, upon which
the majority relies, discussed how the factual distinctions
underlying such claims can affect preemption analysis:
[Emotional distress] claims may not be preempted if
the particular offending behavior has been explicitly
prohibited by mandatory statute or judicial decree,
and the state holds violation of that rule in all cir-
cumstances sufficiently outrageous to support an
emotional distress claim. For example, if a plaintiff
alleges that an employer's criminal behavior
inflicted extreme emotional distress, the emotional
distress claim need not be preempted. The behavior
could be found sufficiently outrageous to permit
recovery without regard to whether the behavior
might be permitted under the CBA. Its outrageous-
ness would be clear from the state's decision to
make the behavior criminal.
Miller, 850 F.2d at 550 n.5 (emphasis added).
This case is analogous to Galvez v. Kuhn, in which we held
that an employee's claim for intentional infliction of emo-
tional distress was not preempted by S 301. Applying the rea-
soning set forth in Miller and Allis-Chalmers, Galvez
examined the nature of the conduct underlying the employee's
basic tort claim, rather than just the claim itself. See id. at 779.
In particular, we noted in Galvez that "appellees' alleged
assault and battery is made criminal by state law. " Id. at 780.
Thus, the majority's restrictive consideration of just the
basic tort claims alleged by the plaintiffs is erroneous. I
believe we must also look to the specific conduct underlying
each tort claim (in this case, installation of two-way mirrors
in restrooms and the use of cameras to view the restrooms
through holes hidden behind those mirrors) to determine
whether that conduct affects our analysis.
To do so is consistent with Supreme Court precedent,
which supports the proposition that S 301 does not preempt
claims based on conduct that is per se illegal under state law.
See Allis-Chalmers, 471 U.S. at 212 ("Clearly, S 301 does not
grant the parties to a collective-bargaining agreement the abil-
ity to contract for what is illegal under state law."). The
majority does not adequately explain how its holding can be
reconciled with Allis-Chalmers. Contrary to the majority's
suggestion, the facts of this case are not "precisely the situa-
tion" that the Court described as being subject to preemption
in Allis-Chalmers, maj. op. at 4500; rather, as the language
quoted above makes clear, this case involves the very situa-
tion the Court believed would not be preempted.
The majority recognizes that the plaintiffs' argument,
grounded as it is in Allis-Chalmers and Galvez, has "consider-
able force," but concludes that this case is distinguishable.
Maj. op. at 4499-4501. In the majority's view, the emotional
distress claim in Galvez was based on conduct that "is neither
more nor less outrageous depending upon the conditions gov-
erning conduct in the workplace" while the same claim in this
case "depend[s] on the degree of surveillance contemplated
[by the CBA]." Maj. op. at 4505.
I disagree. Such a distinction cannot be supported by prece-
dent or the facts of this case.
In particular, I find unpersuasive the majority's argument
that the plaintiffs' claims, which are in part based on conduct
that is per se illegal (in other words, not subject to waiver by
consent or otherwise by the citizens of California), are com-
pletely preempted because "[n]o one suggests that the subject
of surveillance is an improper subject for collective bargain-
ing." Id. at 4500. The majority paints with too broad a brush.
Cf. Balcorta, 2000 WL 350562, at *4 n.10 (noting that a
claim is not preempted simply because the subject of the
claim is appropriate for negotiation). Comparison to the
underlying facts in Galvez is instructive. Galvez's alleged
assault occurred when his foreman sped up a conveyor,
thereby forcing Galvez to attempt to remove and stack the
cartons on the conveyor belt at a rate that resulted in injury.
Galvez, 933 F.2d at 774-75. In Galvez, therefore, we could
have concluded that the claim for emotional distress was pre-
empted because workplace safety and operating procedures
are both proper subjects for collective bargaining. We did not
reach that conclusion because the particular conduct at issue
was criminal in nature and was not a proper subject for col-
lective bargaining. Likewise, although it is certainly true that
surveillance is a common, appropriate subject for collective
bargaining, the illegal, clandestine surveillance of restrooms
through holes hidden behind two-way mirrors is most defi-
nitely not. This is true even if such surveillance is conducted
for the laudable purpose of deterring and detecting drug use
by truck drivers; regardless of Consolidated's objective, the
means utilized by the company were illegal.
For these reasons, I would hold that the plaintiffs' privacy
and emotional distress claims are not preempted byS 301, to
the extent those claims stem from Consolidated's criminal use
of hidden cameras and two-way mirrors to observe its
employees in restrooms.5 I respectfully dissent from the por-
tions of the majority's opinion, set forth in Parts II and III,
that establish that California tort claims are preempted by
S 301 of the LMRA even if the State of California deems the
underlying conduct to constitute criminal activity . As the
Supreme Court explained in Allis-Chalmers,"it would be
inconsistent with congressional intent under [S 301] to pre-
empt state rules that proscribe conduct . . . independent of a
labor contract." Allis-Chalmers, 471 U.S. at 212. I would take
heed of the Court's observation, thereby avoiding the unfortu-
nate result of the majority's opinion: unnecessary and
improper interference with a state's ability to define the con-
tours of its criminal laws and to protect its citizens from viola-
tions of those laws.
_______________________________________________________________
FOOTNOTES
*These actions were assigned to Hon. Irving Hill, who entered judg-
ment in Cramer v. Consolidated Freightways, Inc., CV 97-7860-IH, No.
98-56154. Alfaro v. Consolidated Freightways Corp., SA CV 98-331, No.
98-56041, and Davidson v. Consolidated Freightways Corp. (Hoffman),
SA CV 98-332-LMG, No. 98-56154, were reassigned following Judge
Hill's death in March 1998 to Hon. Linda H. McLaughlin.
**Judge O'Scannlain was drawn to replace Judge Wiggins. He has read
the briefs, reviewed the record, and listened to the oral argument tapes.
1 Cramer v. Consolidated Freightways, Inc., No. 98-55657, and Alfaro
v. Consolidated Freightways Corp., No. 98-56041, were consolidated inthe district court and for calendaring purposes on appeal. We consider the
invasion of privacy claim that is common to both Cramer and Alfaro in
Part II, and the emotional distress claim and other statutory claims raised
only in Alfaro in Part III. We also heard argument on the appeal in a
related case, Hoffman v. Consolidated Freightways, No. 98-56154, at the
same time. Counsels' cooperation in presenting a coordinated argument
was helpful and appreciated by the court. The issues raised in Hoffman are
slightly different, as the claims are for retaliatory discharge in violation of
public policy. We address these claims in Part IV.
2 The claims of several non-employees in Alfaro were remanded to state
court and are not at issue on this appeal.
3 The parties appear to differ on whether the surveillance was entirely of
the common areas, but the dispute is not material to our decision.
4 Cramer preliminarily contends that federal jurisdiction cannot exist
because his complaint does not mention an employer/employee relation-
ship. However, these facts were evident in his request for class certifica-
tion and were, in any event, properly before the court through
Consolidated's petition for removal. See Olguin v. Inspiration Cons. Cop-
per Co., 740 F.2d 1468, 1473 (9th Cir. 1984) (court may look beyond facts
pleaded in complaint to ascertain facts that would appear in a "well plead-
ed" complaint), overruled on other grounds , Allis-Chalmers Corp. v.
5 Any person who installs or who maintains after April 1, 1970,
any two-way mirror permitting observation of any restroom, toi-
let, bathroom, washroom, shower, locker room, fitting room,
motel room, or hotel room, is guilty of a misdemeanor.
Cal. Penal Code S 653n.
6 Every person who commits any of the following acts is guilty of
disorderly conduct, a misdemeanor:
(K) Anyone who looks through a hole or opening, into, or other-
wise views, by means of an instrumentality, including [a] . . .
camera, . . . the interior of a bathroom . . . with the intent to
invade the privacy of a person or persons inside.
Cal. Penal Code S 647(k).
7 Every person who, intentionally and without the consent of all
parties to a confidential communication, by means of any elec-
tronic amplifying or recording device, eavesdrops upon or
records the confidential communication, . . . shall be punished
. . . .
Cal. Penal Code S 632(a).
8 Every person who manufactures, assembles, sells, offers for sale,
advertises for sale, possesses, transports, imports, or furnishes to
another any device which is primarily or exclusively designed or
intended for eavesdropping upon the communication of another
. . . shall be punished . . . .
Cal. Penal Code S 635(a).
9 Cal. Penal Code S 653n, upon which Cramer and Alfaro principally
rely, does not provide a private cause of action for invasion of privacy.
Thus they must proceed on a general tort claim for invasion of privacy
under the California Constitution, Article 1, Section 1. While civil reme-
dies are provided for violations of Penal Code SS 632 and 635, S 632
explicitly hinges on the absence of consent. Section 637.2, which provides
the private cause of action for violations of Section 635, requires proof
that the plaintiff was "injured" by the eavesdropping equipment, which in
turn also depends on consent. See Cal. Penal Code S 632; People v.
Canard, 65 Cal. Rptr. 15, 29 (Cal. Ct. App. 1967).
10 Faced with a somewhat similar situation, where eight female workers
complained they had been subjected to video surveillance in the locker
room in violation of their right to privacy, the Seventh Circuit deemed the
action to arise under S 301 because the employer had a non-frivolous argu-
ment that this kind of surveillance was implicitly authorized by the man-
agement rights clause of the CBA. See Brazinski v. AMOCO Petroleum
Additives Co., 6 F.3d 1176 (7th Cir. 1993), earlier opinion, In re AMOCO
Petroleum Additives Co., 964 F.2d 706 (7th Cir. 1992). However, there is
no indication that the surveillance AMOCO conducted was prohibited by
the state's criminal laws, so it does not speak directly to the point before
us.
11 Although Alfaro appears also to allege causes of action for violation
of Cal. Penal Code S 635, which criminalizes the possession of eavesdrop-
ping equipment, and Cal. Penal Code S 632, which prohibits eavesdrop-
ping on confidential communications, he does not argue these claims
separately. We therefore deem them abandoned on appeal but note that,
in any event, consent is a defense.
12 Section 1102.5(b) provides:
No employer shall retaliate against an employee for disclosing
information to a government or law enforcement agency, where
the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute.
Cal. Labor Code S 1102.5(b).
13 Tameny v. Atlantic Richfield Co., 164 Cal.Rptr. 839 (Cal. 1980) (hold-
ing that at-will employees may recover tort damages from employers if
they can show they were discharged in contravention of fundamental pub-
lic policy).
14 The same is true of Consolidated's further argument that Hoffman's
reliance on S 1102.5 of the Labor Code is misplaced. Whether it is or isn't
is a question that goes to the merits (or lack thereof) of her claim, not to
whether interpretation of the collective bargaining agreement is required.
1 The CBA provision relied upon by Consolidated to support preemption
is entitled "Use of Video Cameras for Discipline and Discharge."
Although this provision implicitly suggests that videotaping might occur,
it does not discuss or permit the use of surreptitious video surveillance
techniques, much less the use of two-way mirrors to accomplish such sur-
veillance.
2 Presumably, Consolidated's bathroom videotapes were viewable by
anyone, regardless of the sex of the viewer or the viewed.
3 Here, the plaintiffs were never told about the hidden cameras or two-
way mirrors, and were never given the opportunity to consent to bathroom
surveillance. At most, they knew some kind of legal video surveillance
might occur.
4 Justice George's separate concurrence and dissent strongly supports
this conclusion:
[E]ven if an employer discloses before hiring an employee that
it intends to engage in visual surveillance of the employee rest-
rooms and requires all employees to consent to such surveillance
as a condition of employment, a state constitutional privacy chal-
lenge to such conduct would not necessarily founder on the
ground that, in view of the explicit warnings and consent, the
employees had no reasonable expectation of privacy.
Hill, 26 Cal. Rptr. 2d at 878 (George, J., concurring and dissenting).
5 The plaintiffs' privacy and emotional distress claims could proceed
under SS 647k and 653n even though the other bases of their claims are
preempted. Cf. Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d
1401, 1413 (9th Cir. 1992) (finding that a portion of a claim was not pre-
empted even though the remainder of the claim was preempted); Perugini
v. Safeway Stores, Inc., 935 F.2d 1083, 1088 (9th Cir. 1991) (applying
preemption analysis to distinctive "segments" of the same claim and
reaching different conclusions as to each segment).
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