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

D.C. No.

A. HARVEY; JOHN K. HATFIELD;

CV-98-00331-

ROBERT W. HATFIELD; LEE A.

LHM(ANx)

INGRAM; ZENO KING, JR.; JOHN L.

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;

7505

DAVID W. STEPHENS; J.B. STEWART;

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;

7506

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;

7507

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;

7508

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;

7509

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.

7510

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 En Banc

December 18, 2000--San Francisco, California

_________________________________________________________________

*These actions were initially assigned to Hon. Irving Hill, who entered

judgment in Cramer v. Consolidated Freightways, Inc., CV 97-7860-IH,

No. 98-55657. 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 subsequently reassigned

to Hon. Linda H. McLaughlin.

7511

Filed June 15, 2001

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Diarmuid F. O'Scannlain,

A. Wallace Tashima, Sidney R. Thomas,

M. Margaret McKeown, Raymond C. Fisher,

Ronald M. Gould, Richard A. Paez and Richard C. Tallman,

Circuit Judges.

Opinion by Judge Fisher;

Concurrence by Judge Tallman;

Dissent by Judge O'Scannlain

7512

7513

7514

Jay Cordell Horton, Malena R. Leclair and Susan Ghormley,

Horton, Barbaro & Reilly, Santa Ana, California, for

plaintiffs-appellants Cramer et al., and Matthew L. Taylor and

Michael D. Myers, Myers, Taylor & Siegel, Claremont, California,

for plaintiffs-appellants Alfaro et al. and Hoffman et

al.

Louise Ann Fernandez, Robert E. Mangels, Marc Marmaro,

and Neil O. Andrus, Jeffer, Mangels, Butler & Marmaro, Los

7515

Angeles, California, and William A. Norris and Edward P.

Lazarus, Akin, Gump, Strauss, Hauer & Feld, Los Angeles,

California, for the defendants-appellees.

_________________________________________________________________

FISHER, Circuit Judge:

This appeal requires us to decide whether a plaintiff's state

law privacy claim, based on California's penal code, is preempted

under § 301 of the Labor Management Relations Act

("LMRA"), 29 U.S.C. § 185. Resolution of this issue, in turn,

leads us to clarify our Circuit's approach to § 301 preemption.

We hold that because plaintiffs' privacy claims are not even

arguably covered by the collective bargaining agreement

("CBA"), the claims are independent of the CBA and thus are

not subject to § 301 preemption. Moreover, we hold that when

an employer's surreptitious surveillance constitutes a per se

violation of established state privacy laws, the employees

affected thereby may bring an action for invasion of privacy

regardless of the terms of the collective bargaining agreement

governing their employment.

I.

Consolidated Freightways ("Consolidated"), the defendant

cameras and audio listening devices behind two-way mirrors

in the restrooms at its terminal in Mira Loma, California,

ostensibly to detect and prevent drug use by its drivers.

_________________________________________________________________

1 This case is a consolidation of two separate appeals. In one, Consolidated

Freightways, Inc. was the only defendant. The other named Consolidated

Freightways Corp., CNF Transportation, Inc. (aka Consolidated

Freightways, Inc.), two individuals and a Doe security installation company

as defendants. For ease of reference, this opinion refers to the defendants

collectively as "Consolidated."

7516

Employees at the terminal discovered the surveillance equipment

when a mirror fell off the men's restroom wall, exposing

a camera with a wire leading out through a hole in the wall

behind it. Subsequent investigation revealed a similar hole in

the wall behind the mirror in the adjoining women's restroom.

Under California Penal Code § 653n, "[a]ny person who

installs or who maintains . . . 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." Thus, Consolidated's installation

of the two-way mirror was a direct violation of California

criminal law.

Soon after discovery of the camera, truck driver Lloyd

Cramer, an employee at the Mira Loma terminal, brought a

class action suit in state court alleging invasion of privacy on

behalf of all "individuals lawfully on the premises . . . who

had a reasonable expectation of privacy while using[Consolidated's]

restrooms." Guillermo Alfaro, another Consolidated

employee, and 281 others brought a separate suit seeking

damages for invasion of privacy and infliction of emotional

distress. They also sought injunctive relief to end the use of

the surveillance devices.

Consolidated removed both cases to federal court, contending

that plaintiffs' state claims were preempted under § 301

of the LMRA because the claims required interpretation of the

CBA between Consolidated and its employees' union to

determine the employees' reasonable expectations of privacy.

The cases were consolidated in the district court (as they have

been for purposes of appeal).

Consolidated then moved to dismiss both cases, arguing

that they were preempted by § 301. Cramer moved for class

certification, and Alfaro, joined by Cramer, filed a motion to

remand for lack of jurisdiction. The district court denied

Alfaro and Cramer's motion to remand, granted Consolidat-

7517

ed's motion to dismiss Cramer's suit, granted Consolidated's

motion to dismiss Alfaro's suit as to all but nine plaintiffs

who were not Consolidated employees, remanded the claims

of the nine nonemployees to state court and denied Cramer's

certification motion as moot. This appeal followed.

We have jurisdiction under 28 U.S.C. § 1291. We review

a district court's finding of preemption under § 301 de novo.

Audette v. ILWU, 195 F.3d 1107, 1111 (9th Cir. 1999). We

reverse.

II.

The history of § 301 preemption doctrine is well known,

but worth summarizing again to explain how we have arrived

at the current state of the law and to provide context for our

discussion. As this court has noted, "[f]amiliarity [with the

subject matter] has not bred facility." Galvez v. Kuhn, 933

F.2d 773, 774 (9th Cir. 1991).

Section 301 is on its face a jurisdictional statute, under

which "[s]uits for violation of contracts between an employer

and a labor organization representing employees in an industry

affecting commerce as defined in this chapter, or between

any such labor organizations, may be brought in any district

court of the United States having jurisdiction of the parties."

29 U.S.C. § 185(a). Soon after passage of the LMRA, the

Supreme Court ruled that § 301 authorized the federal courts

to develop a federal common law of CBA interpretation. Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 451

(1957). The Court subsequently held that this federal common

law preempts the use of state contract law in CBA interpretation

and enforcement. Local 174, Teamsters of Am. v. Lucas

Flour Co., 369 U.S. 95, 103-04 (1962).

In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), the

Court expanded application of § 301 preemption beyond cases

specifically alleging contract violation to those whose resolu-

7518

tion "is substantially dependent upon analysis of the terms of

an agreement made between the parties in a labor contract."

Id. at 220. Allis-Chalmers involved an employee's suit alleging

his employer had handled his claim for disability benefits

in bad faith, thereby violating state tort law. Id. at 206.

Because the method of handling disability claims was specified

in the CBA governing Lueck's employment, the Court

interpreted his claim as essentially a recharacterized action for

breach of the CBA, and held that it was preempted under

§ 301. Id. at 215 ("[I]t is a question of federal contract interpretation

whether there was an obligation under this labor

contract to provide the payments in a timely manner, and, if

so, whether Allis-Chalmers' conduct breached that implied

contract provision.").

The Court reiterated its test for preemption in Caterpillar,

Inc. v. Williams, 482 U.S. 386 (1987). Although acknowledging

that "the pre-emptive force of § 301 is so powerful as

to displace entirely any state cause of action for violation of

contracts between an employer and a labor organization," the

Court explained that § 301 preempts only "claims founded

directly on rights created by collective-bargaining agreements,

and also claims `substantially dependent on analysis of

a collective-bargaining agreement.' " Id. at 394 (quoting

Franchise Tax Bd. v. Construction Laborers Vacation Trust,

463 U.S. 1, 23 (1983) (internal quotation marks omitted);

Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3 (1987)). The

Court made clear that the complaints of employees covered

by a CBA were not preempted if their claims were unrelated

to the terms of the CBA, specifically rejecting the employer's

contention that "all employment-related matters involving

unionized employees be resolved through collective bargaining

and thus be governed by a federal common law created by

§ 301." Id. at 396 n.10 (internal quotation marks omitted).

Moreover, the Court held that a defense based on the terms of

a CBA is not enough to require preemption: "[A ] defendant

cannot, merely by injecting a federal question into an action

that asserts what is plainly a state-law claim, transform the

7519

action into one arising under federal law, thereby selecting the

forum in which the claim shall be litigated." Id. at 399.

Attempting to clarify when claims are preempted under

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

399 (1988), held that states may provide substantive rights to

workers that apply without regard to a CBA; a state court suit

seeking to vindicate these rights is preempted only if it "requires

the interpretation of a collective-bargaining agreement."

Id. at 413. In Lingle, the plaintiff's union had filed a

grievance alleging discharge without just cause against her

employer pursuant to a CBA at the same time the plaintiff had

filed a suit in state court for retaliatory discharge. The Court

held that the plaintiff's suit was not preempted:"[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 statelaw

claim can be resolved without interpreting the agreement

itself, the claim is `independent' of the agreement for § 301

pre-emption purposes." Id. at 409-10. The Court took pains to

note that even if the CBA refers to the state law substantive

right at issue, the claim is not preempted so long as it may be

litigated without reference to the CBA. "[T]he mere fact that

a broad contractual protection against discriminatory -- or

retaliatory -- discharge may provide a remedy for conduct

that coincidentally violates state law does not make the existence

or the contours of the state law violation dependent

upon the terms of the private contract." Id. at 412-13.

Finally, Livadas v. Bradshaw, 512 U.S. 107 (1994), summarized

and advanced the state of preemption doctrine. Livadas

explained:

[T]he pre-emption rule has been applied only to

assure that the purposes animating § 301 will be

frustrated neither by state laws purporting to determine

"questions relating to what the parties to a

labor agreement agreed, and what legal conse-

7520

quences were intended to flow from breaches of that

agreement," nor by parties' efforts to renege on their

arbitration promises by "relabeling" as tort suits

actions simply alleging breaches of duties assumed

in collective-bargaining agreements.

In [Allis-Chalmers] and in Lingle . . . we underscored

the point that § 301 cannot be read broadly to

pre-empt nonnegotiable rights conferred on individual

employees as a matter of state law, and we

stressed that it is the legal character of a claim, as

"independent" of rights under the collective-

bargaining agreement (and not whether a grievance

arising from "precisely the same set of facts " could

be pursued) that decides whether a state cause of

action may go forward. Finally, we were clear that

when the meaning of contract terms is not the subject

of dispute, the bare fact that a collectivebargaining

agreement will be consulted in the course

of state-law litigation plainly does not require the

claim to be extinguished.

Id. at 122-24 (internal citations and footnotes omitted).

Based on these principles, Livadas held that because the

plaintiff's claim required the court only to "look to" the CBA

to determine her rate of pay, there was not even a"colorable

argument" for preemption, because her claim was"entirely

independent of any understanding embodied in the collectivebargaining

agreement between the union and the employer."

Id. at 124-25. Even though the Court looked to the CBA to

determine the absence of a waiver of state law protections, it

concluded that preemption was not required. See id. at 125.

The demarcation between preempted claims and those that

survive § 301's reach is not, however, a line that lends itself

to analytical precision. As the Supreme Court acknowledged

in Livadas, "[T]he Courts of Appeals have not been entirely

7521

uniform in their understanding and application of the principles

set down in Lingle and [Allis-Chalmers]." Id. at 124 n.18.

And little wonder. "Substantial dependence" on a CBA is an

inexact concept, turning on the specific facts of each case, and

the distinction between "looking to" a CBA and"interpreting"

it is not always clear or amenable to a bright-line test. See

Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d

1102, 1108-09 (9th Cir. 2000); Ramirez v. Fox Television Station,

Inc., 998 F.2d 743, 748 (9th Cir. 1993). Nevertheless, the

interpretive principles the Supreme Court has articulated help

guide us through the analytical thicket.

If the plaintiff's claim cannot be resolved without interpreting

the applicable CBA -- as, for example, in Allis-

Chalmers, where the suit involved an employer's alleged failure

to comport with its contractually established duties -- it

if the claim may be litigated without reference to the

rights and duties established in a CBA -- as, for example, in

Lingle, where the plaintiff was able to litigate her retaliation

suit under state law without reference to the CBA -- it is not

preempted. See also Livadas, 512 U.S. at 124-25. The plaintiff's

claim is the touchstone for this analysis; the need to

interpret the CBA must inhere in the nature of the plaintiff's

_________________________________________________________________

2 We note that the Supreme Court recognized in Livadas that where the

claim cannot be resolved without interpreting the CBA, "[h]olding the

plaintiff's cause of action substantively extinguished may not . . . always

be the only means of vindicating the arbitrator's primacy as the bargainedfor

contract interpreter." Livadas, 512 U.S. at 124 n.18 (citing Collyer

Insulated Wire, Gulf, & W. Sys. Co., 192 N.L.R.B. 837 (1971) (establishing

the practice of holding in abeyance NLRB unfair labor practice cases

involving interpretation of the CBAs where there is an applicable arbitration

clause and requiring that the parties arbitrate any such interpretation

question and then return to the Board for adjudication of any remaining

legal and factual issues within the Board's jurisdiction)). Because we find

that here there is no need to interpret the CBA to resolve the plaintiffs'

claims, we do not address under what circumstances a practice of deferring

the litigation pending an arbitrator's resolution of the contract interpretation

issues rather than extinguishing the claim might be appropriate.

7522

claim. If the claim is plainly based on state law,§ 301 preemption

is not mandated simply because the defendant refers

to the CBA in mounting a defense. See Caterpillar, 482 U.S.

at 398-99.

Moreover, alleging a hypothetical connection between

the claim and the terms of the CBA is not enough to preempt

the claim: adjudication of the claim must require interpretation

of a provision of the CBA. A creative linkage between

the subject matter of the claim and the wording of a CBA provision

is insufficient; rather, the proffered interpretation argument

Livadas, 512 U.S. at 124-25. The argument does not become

credible simply because the court may have to consult the

CBA to evaluate it; "look[ing] to" the CBA merely to discern

that none of its terms is reasonably in dispute does not require

preemption. Id. at 125.

Where a party defends a state cause of action on the

ground that the plaintiff's union has bargained away the state

law right at issue, the CBA must include "clear and unmistakable"

language waiving the covered employees' state right

"for a court even to consider whether it could be given

effect." Livadas, 512 U.S. at 125 (citing Lingle, 486 U.S. at

409-10 n.9). Thus, a court may look to the CBA to determine

whether it contains a clear and unmistakable waiver of state

law rights without triggering § 301 preemption.

Given this analytical framework, we conclude that several

of our Circuit's opinions -- all of which were decided

before Livadas -- state preemption principles that need to be

clarified and corrected. In Utility Workers of America, Local

No. 246 v. Southern California Edison Co., 852 F.2d 1083

_________________________________________________________________

3 The dissent's attempt to extract from the CBA's silence on the use of

video cameras an implied consent to illegal videotaping from behind twoway

mirrors is an example of "creative linkage " that strains credulity. See

note 6, infra.

7523

(9th Cir. 1988), we held a union's allegation that an employer's

unilaterally instituted drug testing policy violated the California

Constitution was preempted because resolution of the

claim was substantially dependent on analysis of the applicable

CBA; but we went on to suggest that the claim was preempted

because it "constitute[d] a properly negotiable subject

in Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988), we upheld

dismissal on § 301 preemption grounds of an employee's suit

challenging his employer's drug and alcohol testing program

and his subsequent suspension for failing to participate. We

held the testing to be "a working condition whether or not it

is specifically discussed in the CBA," and noted that

"[a]lthough the manner of discovering employee intoxication

is not in the current CBA, the reference to `intoxication'

seems to identify this arena as a subject for the collective bargaining

process." Id. at 433; see also Schlacter-Jones v. General

Tel., 936 F.2d 435, 441 (9th Cir. 1991) (characterizing

plaintiff's claim in part as one that "cannot be assessed without

examining the CBA to determine whether the Drug Policy

was a valid term and condition of employment"); Stikes v.

Chevron USA, Inc., 914 F.2d 1265, 1268, 1270 (9th Cir.

1990) (relying in part on Utility Workers and Laws to find privacy

claim preempted; stating that "even if the California

courts were to find the privacy right non-waiveable, the right

is not absolute and its scope would involve consideration and

possible interpretation of the collective bargaining agreement.").

Taken together, these cases suggest that the preemp-

tive force of § 301 is so strong that preemption must occur

simply because the state right in question "is a properly negotiable

subject for purposes of collective bargaining." Utility

Workers, 852 F.2d at 1086.

_________________________________________________________________

4 The complaint also alleged that the employer had violated the CBA,

but the privacy claim was based solely on the California Constitution.

Utility Workers, 852 F.2d at 1085.

7524

In light of the principles we have reviewed, however, it

is clear that this formulation of the standard would expand the

scope of § 301 preemption far beyond the limits established

in Lingle and Livadas, both of which caution against such a

sweeping interpretation. See Livadas, 512 U.S. at 122-24

(rejecting the argument that enforcement of a generally applicable

state law in cases involving union employees would

improperly intrude on the collective bargaining process);

Lingle, 486 U.S. at 409-10 (holding that the Illinois law protecting

employees against retaliatory termination was not preempted,

even though the employer's rationale for firing an

employee necessarily related to "working conditions").

Regardless of whether drug testing is a "properly negotiable

subject of collective bargaining" in the abstract, the relevant

inquiry under Livadas and Lingle should have been whether

the resolution of the employee's state law privacy challenge

necessarily required interpretation of relevant provisions of

the CBA. To the extent our prior cases held or implied that

preemption was proper because of the mere possibility that

the subject matter of the claim was a proper subject of the collective

bargaining process, whether or not specifically discussed

in the CBA, we today hold such statements to be an

incorrect articulation of § 301 preemption principles. A state

law claim is not preempted under § 301 unless it necessarily

requires the court to interpret an existing provision of a CBA

that can reasonably be said to be relevant to the resolution of

the dispute.

III.

We turn now to the specifics of the case before us. In arguing

in favor of dismissal, Consolidated cites provisions of the

CBA it negotiated with the International Brotherhood of

Teamsters, Local No. 63, claiming these provisions brought

its covert surveillance within the purview of the CBA. Article

26, Section 2 of the agreement forbids the use of camera sur-

veillance for disciplinary reasons except to prove a charge of

property theft or dishonesty. The section also specifies the

7525

procedure to be employed for the use of videotapes in the

3 discusses alcohol and drug use and the procedures to be

employed for drug testing. Consolidated contends that any

employee claim based on its covert restroom surveillance

requires recourse to these provisions of the CBA to determine

the employees' reasonable expectations of privacy. Without

such an analysis, Consolidated argues, the court would be

unable to determine whether these expectations were violated.

As discussed above, we may look to a CBA to determine

whether a plaintiff's claim necessarily implicates its

terms without "interpreting" the agreement, as that word is

used in the context of § 301 preemption. See Milne Employees

Ass'n v. Sun Carriers, Inc., 960 F.2d 1401, 1409-10 (9th Cir.

1992); see also Balcorta, 208 F.3d at 1108; Ramirez, 998 F.2d

at 748. Doing so here, we find Consolidated's argument

unpersuasive. The plaintiffs based their claims on the protections

afforded them by California state law, without any reference

to expectations or duties created by the CBA. Their

claims are neither founded directly upon rights conferred in

the CBA nor "substantially dependent upon" interpretation of

the CBA terms. Caterpillar, 482 U.S. at 394. Rather, those

claims are based on California's constitutional and statutory

rights of privacy guaranteed to all persons, whether or not

they may happen to work subject to a CBA. Although some

_________________________________________________________________

5 The relevant section reads as follows:

The Employer may not use video cameras to discipline or discharge

an employee for reasons other than theft of property or

dishonesty. If the information on the video tape is to be used to

discipline or discharge an employee, the Employer must provide

the Local Union, prior to the hearing, an opportunity to review

the video tape used by the Employer to support the discipline or

discharge. Where a Supplement imposes more restrictive conditions

upon use of video cameras for discipline or discharge, such

restrictions shall prevail.

National Master Freight Agreement, Article 26, § 2.

7526

such rights of privacy might well be subject to negotiation and

be conditioned by the terms of a CBA, that is not the case

here. The claims are independent of the CBA and not subject

to § 301 preemption.

Consolidated's insistence that we must refer to the CBA

because one provision mentions drug use and another contemplates

the use of surveillance videotapes in certain specified

circumstances does not change our analysis. Neither of these

provisions purports to have any bearing on secret spying on

Consolidated's employees in company restrooms -- no matter

how well-intentioned Consolidated's alleged purpose may

have been in doing so. Indeed, the surreptitious nature of the

violation of plaintiffs' privacy belies any notion of bargaining

or consent to hidden cameras behind two-way mirrors. Consolidated

cannot create a dispute as to the meaning of the

terms of the CBA by picking out terms that refer to videotapes

and drug use, particularly when a cursory examination

of those provisions makes clear they apply to a completely

_________________________________________________________________

6 The dissent appears willing to indulge in some unwarranted assumptions

to lend credibility to Consolidated's attempt to invoke the CBA to

justify its use of hidden cameras in the bathrooms. First, it transforms the

CBA's silence on the use of videocameras (as distinguished from the use

of videotapes) into an implied consent to secret taping from behind twoway

mirrors. Second, asserting that Consolidated positions visible videocameras

on its premises, including two "presumably visible" cameras in

a different restroom, the dissent imputes to employees a willingness to

sacrifice their privacy to secret restroom cameras. As an initial matter, it

is not at all clear from the record that we can"presume" the visibility of

any cameras Consolidated may have placed in its restrooms. Cramer's

counsel stated at oral argument that any other restroom cameras were

placed in the ceiling, hidden from view in a fake sprinkler head. In any

event, the presence of visible cameras does not imply the expectation of

or consent to additional secret cameras. Finally, notwithstanding that the

California legislature has explicitly criminalized the use of videotaping

through two-way mirrors, the dissent would override that clear statement

of California law to indulge Consolidated's creative reading of the CBA.

With respect, the dissent's approach illustrates the lengths to which one

7527

classic example of a defendant's attempt to "inject[ ] a federal

question into an action that asserts what is plainly a state-law

claim [in order to] transform the action into one arising under

federal law, thereby selecting the forum in which the claim

shall be litigated." Caterpillar, 482 U.S. at 399. The Supreme

Court has instructed that we are not to reward defendants who

We need not "interpret" the CBA to see that it does not

contemplate the surreptitious videotaping plaintiffs challenge

in their state law claim. Consulting the CBA reveals the

absence of such a provision. The district court's determination

that the claim was preempted under § 301 was therefore erroneous.

_________________________________________________________________

must go to tease preemption out of the contents of the CBA and plaintiffs'

claims here.

The dissent's reliance on In re Amoco Petroleum Additives Co., 964

F.2d 706 (7th Cir. 1992), is misplaced. There, the video camera was

located "in the ceiling of the entrance hallway, which enabled the

[employer] to record who entered and left the locker room, and when, but

not what they were doing inside." Id. at 707; see also Brazinski v. Amoco

Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993) ("It turned out

to be infeasible to conceal the camera in the ceiling outside the locker

room pointing toward the door, so instead the company installed it in the

ceiling of the locker room itself, though pointing toward the door rather

than toward the interior of the room."). Insofar as is apparent from the

opinion, Amoco's installation of the camera did not violate any state laws.

Id. at 1183 (noting specifically that the employer's action had not been

made illegal under Illinois law).

7 Even if Consolidated alleged that the plaintiffs' union had waived their

state law right to privacy in its negotiation of the CBA, evidence of such

a waiver would need to be "clear and unmistakable " before a court could

even consider whether to give it effect. See Livadas, 512 U.S. at 125;

Lingle, 486 U.S. at 409-10 n.9. The record in this case contains no such

evidence.

7528

IV.

Even if the CBA did expressly contemplate the use of

two-way mirrors to facilitate detection of drug users, such a

provision would be illegal under California law, and it is well

established in California that illegal provisions of a contract

are void and unenforceable. See Hedges v. Frink , 163 P. 884,

885 (Cal. 1917); Holm v. Bramwell, 67 P.2d 114, 117 (Cal.

Dist. Ct. App. 1937). Section 653n of the California Penal

Code makes the installation and maintenance of two-way mir-

rors permitting the observation of restrooms illegal without

reference to the reasonable expectations of those so viewed.

Determination of guilt under the statute is not dependent on

context or subjective factors; use of the mirrors is a per se violation

of the penal code, and an assumption that the mirrors

will not be used is per se reasonable. See In re Deborah C.,

635 P.2d 446, 452 n.9 (Cal. 1981); People v. Metcalf, 98 Cal.

Under settled Supreme Court precedent, "§ 301 does

not grant the parties to a collective-bargaining agreement the

ability to contract for what is illegal under state law." Allis-

Chalmers, 471 U.S. at 212; see also Galvez v. Kuhn, 933 F.2d

773, 777 (9th Cir. 1991) (noting that a state prohibition of

illegal conduct applies regardless of the terms of a particular

contract). Consolidated was therefore required to abide by the

provisions of California penal law, and its employees had a

_________________________________________________________________

8 Consolidated argues that § 653n does not apply because California

courts have limited the statute's scope to public restrooms. Consolidated

misreads the law. As noted in both Deborah C. and Metcalf, § 653n

reflects a public policy protecting individuals from surreptitious observation

in all restrooms, public as well as private.

9 Consolidated argues that the terms of CBAs affecting employees in

multiple states should supersede inconsistent state laws. This contention

overreaches, however, because the LMRA certainly did not give employers

and unions the power to displace any state regulatory law they found

7529

assumption is inherently reasonable. Indeed, any contrary

assumption would be irrational, because illegal behavior is

unreasonable. See Miller v. AT&T Network Sys. , 850 F.2d

543, 550 n.5 (9th Cir. 1988) (explaining that criminal behavior

is, by virtue of its illegality, per se unreasonable). Even if

the CBA purported to reduce or limit this expectation in some

way, that reduction would be illegal and therefore unenforceable.

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. Allis-Chalmers, 471 U.S. at 213.

By definition, therefore, plaintiffs in this action were reasonable

in expecting to be free of the two-way mirrors and hidden

video cameras installed in the restrooms.

Consolidated argues that, under California law, violation of

a right to privacy is necessarily context-dependent; if an individual

consents to a certain action, even an invasive one, she

cannot then claim her privacy rights were violated by the

action. See Stikes, 914 F.2d at 1270. It cannot substantiate this

blanket proposition. The cases Consolidated cites in support

of its position involved mandatory drug testing in the workplace.

See Schlacter-Jones, 936 F.2d at 437; Utility Workers,

852 F.2d at 1085; Laws, 852 F.2d at 433. To the extent the

result in any of these cases may have been correct under the

law as set forth in today's opinion, that result is irrelevant to

the question before us. The conduct at issue here is fundamentally

distinct from the imposition of mandatory urinalysis.

_________________________________________________________________

inconvenient. See Allis-Chalmers, 471 U.S. at 211-12 ("Nor is there any

suggestion that Congress, in adopting § 301, wished to give the substantive

provisions of private agreements the force of federal law, ousting any

inconsistent state regulation . . . . In extending the pre-emptive effect of

§ 301 beyond suits for breach of contract, it would be inconsistent with

congressional intent under that section to preempt state rules that proscribe

conduct, or establish rights and obligations, independent of a labor contract.").

7530

When companies employ drug testing, the parameters of the

tests are often outlined in CBAs so that employees know

exactly what to expect. Moreover, drug testing, unlike covert

restroom surveillance, is not performed surreptitiously and --

most importantly -- is not illegal under state law.

In any event, Consolidated relies on the expansive language

in our earlier decisions -- which we have today disavowed --

indicating that challenges to drug testing must be preempted

because drug testing is "a properly negotiable subject for purposes

of collective bargaining." Utility Workers, 852 F.2d at

1086. As discussed above, this language is not controlling;

indeed, the Supreme Court came to precisely the opposite

conclusion in Lingle: "[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 claim can be resolved

without interpreting the agreement itself, the claim is `independent'

of the agreement for § 301 purposes. " 486 U.S. at

409-10. That a claim involves an issue theoretically subject to

collective bargaining is irrelevant if the specific claim at issue

may be resolved without interpretation of the CBA. See Bal-

corta, 208 F.3d at 1108 n.10.

Nor does California state court precedent support Consolidated's

argument about the necessarily contextual nature of

determinations concerning privacy rights. The California

Supreme Court held in Hill v. National Collegiate Athletic

Association, 865 P.2d 633 (Cal. 1994), that the NCAA's drug

testing program did not violate student athletes' rights to privacy.

This holding was based in part on the open and consensual

nature of the testing, the complete information about the

testing given to the athletes and the opportunity afforded them

to refuse to participate. Id. at 659. Nothing in Hill suggests

that all privacy determinations turn on issues of consent. Significantly,

the court noted that the plaintiffs did not allege the

_________________________________________________________________

10 The dissent misapprehends the elements of California's privacy law,

relying on Alarcon v. Murphy, 248 Cal. Rptr. 26, 29 (Cal. Ct. App. 1988),

7531

at 660. In this case, conversely, plaintiffs made just such an

allegation. Furthermore, their contention is supported by California

law. The California Supreme Court has described

§ 653n as "express[ing] a legislative policy against `clandestine

observation of public restrooms,' rendering it`reasonable

for users thereof to expect that their privacy will not be surreptitiously

violated.' " Deborah C., 635 P.2d at 452 n.9

(quoting Metcalf, 98 Cal. Rptr. at 927). Issues of privacy

implicated by drug testing programs may well be contextdependent.

Issues of privacy implicated by the use of two-way

mirrors for surreptitious surveillance are not.

Because a CBA cannot validly sanction illegal action,

we hold the terms of the CBA were irrelevant to plaintiffs'

claim of privacy violation. The district court's finding of preemption

was therefore improper.

V.

Alfaro and his co-plaintiffs also alleged a claim of

intentional infliction of emotional distress. To demonstrate

intentional infliction of emotional distress, a plaintiff must

show the defendant's conduct was "extreme and outrageous."

Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996)

(applying California law). As we explained in Miller:

[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 circumstances

sufficiently outrageous to support an

_________________________________________________________________

a court of appeal case decided before Hill. See Hill, 865 P.2d at 657 (stating

elements of invasion of privacy). In any event, as discussed in text and

as a careful reading of Hill indicates, Consolidated's videotaping invaded

plaintiffs' privacy as a matter of law, thereby satisfying any need to establish

both an objective and a subjective expectation of privacy.

7532

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 outrageousness

would be clear from the state's decision to

make the behavior criminal . . . . Additionally, if the

particular CBA does not govern the offending

behavior, . . . then an emotional distress claim is not

preempted.

Miller, 850 F.2d at 550 n.5; see also Galvez, 933 F.2d at 779-

80. The conduct at issue here was a violation of California

penal law, and therefore per se outrageous. Accordingly,

§ 301 does not preempt the emotional distress claim alleged

by Alfaro and his co-plaintiffs to the extent the claim is premised

on Consolidated's criminal use of hidden cameras and

two-way mirrors in restrooms to conduct clandestine surveillance.

Section 301 does not preempt claims to vindicate nonnegotiable

state law rights. Nor does it preempt claims for state

law rights that, although potentially negotiable, do not reasonably

require the court to interpret an existing provision of a

CBA to resolve the dispute. Plaintiffs' privacy claims are

therefore not preempted by § 301. The Alfaro plaintiffs' claim

for intentional infliction of emotional distress is likewise not

preempted.

Because the state law privacy claims in these cases were

not preempted by § 301, the district court lacked removal

jurisdiction over these actions. They must therefore be

remanded to state court.

7533

REVERSED and REMANDED.

_________________________________________________________________

TALLMAN, Circuit Judge, concurring in part and concurring

in the judgment:

I agree with parts I, II, and III of the majority opinion:

plaintiffs' claims are not preempted because the CBA did not

contemplate surreptitious surveillance of bathrooms through

two-way mirrors. However, the Court's alternative holding

unnecessarily interprets ambiguous California law and threatens

the ability of similarly situated parties to negotiate legitimate

limitations on privacy. I respectfully disagree with parts

IV and V of the majority opinion.

California law clearly protects individuals from covert

observation in certain traditionally private places, such as

restrooms and fitting rooms. See Cal. Penal Code § 653n.

Rather than merely hold that Consolidated's covert actions

here were illegal, the Court today holds that even in future

contract negotiations, the parties could not reduce privacy

expectations in the bathrooms of California workplaces. See

Slip Op. at 7530 ("Even if the CBA purported to reduce or

limit this expectation in some way, that reduction would be

illegal and therefore unenforceable."). It is not clear to me that

California courts would preclude such negotiations between

well-represented parties if there were a compelling reason to

permit observation. See, e.g., Hill v. NCAA, 865 P.2d 633, 655

(Cal. 1994) ("[T]he presence or absence of opportunities to

consent voluntarily to activities impacting privacy interests

obviously affects the expectations of the participant."); In re

Deborah C., 635 P.2d 446, 452 n.9 (Cal. 1981) ("[S]ection

653n is limited to a method of hidden spying . . .[not] that

restrooms and fitting rooms are immune from all observation.").

It also appears that the majority's broad statement in its

alternative holding threatens multi-state employers' ability to

7534

fulfill federally mandated safety requirements by negotiating

with their employees. In light of the ambiguity in California

law and the fact that we are remanding the claims to state

court because the federal courts lack jurisdiction, a more narrow

holding by this Court is clearly preferable.

_________________________________________________________________

O'SCANNLAIN, Circuit Judge, dissenting:

I respectfully dissent from the Court's opinion in this very

sensitive application of the federal Labor Management Relations

Act ("Act") to a freely negotiated collective bargaining

agreement ("CBA") between Consolidated Freightways

("Consolidated") and its union-member employees.

No doubt, the majority is correct in the formulation of the

rule we should apply in this case: the plaintiffs' state law

claim is preempted under Section 301 of the Act if Consolidated

can assert a "reasonable" invocation of a provision of

the CBA which makes the resolution of the plaintiffs' claim

depend on its interpretation. Majority Opinion at 7523. Such

formulation is familiar and is substantially similar to that used

in other Circuits. E.g., Martin v. Shaw's Supermarkets, Inc.,

105 F.3d 40, 42 (1st Cir. 1997) ("[S]ection 301 preempts a

state-law claim wherever a court, in passing upon the asserted

state-law claim, would be required to interpret a plausibly disputed

provision of the collective bargaining agreement."

(emphasis added)); Brazinski v. Amoco Petroleum Additives

Co., 6 F.3d 1176, 1181 (7th Cir. 1993) (noting that state law

privacy claim was preempted because "it was arguably within

the scope of the [collective bargaining] agreement" (emphasis

added)). Regrettably, the majority fails in its application of

the rule to the CBA at issue in this case.

Because the CBA expressly provides for video surveillance

of its covered employees, it cannot be so cavalierly ignored

as the majority holds. Because the CBA can be reasonably

7535

interpreted to affect materially the resolution of the plaintiffs'

state law claim here, their state law claim is preempted under

federal law and therefore I must dissent.

I

Remarkably, the majority chooses to reach alternative holdings.

In Part III, it concludes, with little elaboration, that Consolidated

cannot assert even a reasonable interpretation of the

CBA that makes its interpretation necessary to resolve the

plaintiffs' claim. Majority Opinion at 7527. ("[A] cursory

examination of those provisions makes clear they apply to a

completely different context and set of circumstances."). In

Part IV, the majority holds that, even if Consolidated could

make such an argument, the California Penal Code trumps.

Majority Opinion at 7529 ("Even if the CBA did expressly

contemplate the use of two-way mirrors to facilitate detection

of drug users, such a provision would be illegal under California

law . . . ."). Neither holding is compelling.

1

As to the analysis in Part III, the elements of a right to privacy

cause of action under California law require these plaintiffs

to show, among other things, 1) that they had a subjective

expectation of privacy in the restroom, and 2) that their subjective

expectation of privacy was reasonable. Alarcon v.

Murphy, 248 Cal.Rptr. 26, 29 (Cal. Ct. App. 1988) ("To

determine whether there has been a violation of Alarcon's

constitutional right of privacy, we determine whether his personal

and objectively reasonable expectation of privacy has

been infringed . . . ." (emphasis added)).

To what sources of information must we look in order to

determine, under California law, whether an employee has a

subjective and objectively reasonable expectation of privacy?

The California Supreme Court tells us this much:"[T]he presence

or absence of opportunities to consent voluntarily to

7536

activities impacting privacy interests obviously affects the

expectations of the participant." Hill v. NCAA, 865 P.2d 633,

655 (Cal. 1994). And where might have the plaintiffs here had

the "opportunit[y] to consent voluntarily " to the videotaping

of which they complain? They had such an opportunity every

time they entered the terminal in which they were videotaped.

The record shows that Consolidated placed no fewer than six

signs in and around the terminal housing the restroom which

This is hardly irrelevant to their objective and subjective

But more important to the purposes of preemption, the

plaintiffs had an "opportunit[y] to consent voluntarily" to the

videotaping in the CBA they signed with their employer. In

the section entitled "Use of Video Cameras for Discipline and

Discharge," the CBA provides:

The Employer may not use video cameras to discipline

or discharge an employee for reasons other

than theft of property or dishonesty. If the information

on the video tape is to be used to discipline or

discharge an employee, the Employer must provide

the Local Union, prior to the hearing, an opportunity

to review the video tape used by the Employer to

support the discipline or discharge. Where a Supplement

imposes more restrictive conditions upon the

_________________________________________________________________

1 In addition, the record indicates that the Riverside County Sheriff's

Department investigated the use of video cameras in the men's restroom

of Consolidated's facilities and found two additional video cameras in the

ceiling in a different men's employees restroom which were not behind

two-way mirrors and which were presumably visible. This served to put

the plaintiffs further on notice that they may have been subject to videotaping

in the restrooms of Consolidated's facilities.

Curiously, Consolidated's Supplemental Brief asserts that there was a

second video camera in the ceiling of the restroom in which the two-way

mirror and hidden camera were discovered. Such assertion is belied by the

Sheriff's investigation report.

7537

use of video cameras for discipline or discharge,

such restrictions shall prevail.

This provision of the CBA makes explicit two things. First,

the plaintiffs consented to be videotaped by Consolidated,

subject to the restriction that the videotaping was for the purpose

of "discipline or discharge" related to"theft of property

or dishonesty." Second, the plaintiffs contemplated that they

might want to place additional restrictions on Consolidated's

use of video cameras through the mechanism of a"Supplement."

2 A number of "Supplements" were agreed to between

the plaintiffs and Consolidated. None of the terms in these

"Supplements," however, placed any additional restrictions on

Consolidated's use of video cameras.

What this provision of the CBA does not make explicit is

whether Consolidated may use video cameras in the restroom,

or whether Consolidated may use video cameras behind a

two-way mirror. Of course, nor does it make explicit whether

Consolidated may use video cameras in the hallway, or

whether Consolidated may use video cameras on a tripod. I do

not understand the majority to suggest, however, that a "cursory

examination" of the CBA "makes clear" that Consolidated

is barred from putting cameras in the hallway or from

putting cameras on tripods. This, no doubt, is the case

because, although the CBA does not explicitly say that Consolidated

may do such things, nor does it explicitly say that

Consolidated may not do such things.

Thus, the contract is silent, as contracts often are, on

whether Consolidated's precise behavior is allowed. And,

using traditional principles of contract interpretation, one

could very easily make a reasonable argument that this silence

_________________________________________________________________

2 The term "Supplement" in this provision means a "Supplemental

Agreement" setting forth additional terms to"each of the specific types of

work performed by the various classifications of employees controlled by

this Master Agreement."

7538

should be interpreted to mean that the plaintiffs consented to

Consolidated's behavior. Such an argument might take the

following form: 1) the CBA explicitly places but one restriction

upon Consolidated's use of video cameras; 2) the CBA

contemplates that additional explicit restrictions might be

placed thereupon; 3) no such additional explicit restrictions

were ultimately imposed; 4) thus, one could reasonably conclude

that the only restriction the CBA imposes on Consolidated's

Because the contract does not restrict the use of video cameras

to areas other than the restroom, or to positions other than

behind a two-way mirror, one could reasonably conclude that

the plaintiffs in this case consented to the very videotaping on

which their state law privacy claim is based. Accordingly, in

order to resolve the plaintiffs' state law privacy claim, the

Court must resort to interpretation of the CBA to determine

_________________________________________________________________

3 The reporters are replete with cases employing such an interpretative

method. E.g., Republic Pictures Corp. v. Rogers , 213 F.2d 662, 665 (9th

Cir. 1954) ("[C]ourts are loathe to impose limitations or restrictions upon

the parties which are not expressly contained in their agreement or which

do not arise by necessary implication, and without such implied restrictions

the contract could not be effectively performed . . . ."); see also Margaret

N. Kniffin, 5 Corbin on Contracts § 24.28 (Revised Ed. 1998) ("If

the parties in their contract have specifically named one item . . . a reasonable

interpretation is that they did not intend to include other, similar items

not listed.").

4 The majority apparently feels that this legal effort to determine whether

there is a reasonable argument that the plaintiffs consented in the CBA to

the videotaping is beside the point because it instead relies on the surmise

that "the surreptitious nature of the violation of plaintiffs' privacy belies

any notion of bargaining or consent to hidden cameras behind two-way

mirrors." Majority Opinion at 7527. By this statement, I understand the

majority to be surmising that Consolidated would not need to hide cameras

behind a two-way mirror if it truly thought that the plaintiffs had consented

to the videotaping. With all due respect to the majority, our job is

not to engage in dubious surmises about the thoughts of the parties, but,

rather, to engage in the traditional legal analysis to be followed in section

301 preemption cases like the one before us.

7539

Not only is there a reasonable argument that the plaintiffs

consented in the CBA to the videotaping, but Consolidated's

argument in this regard is much stronger than arguments other

courts have accepted for the purposes of finding preemption.

For example, in a case remarkably similar to this one, the

Seventh Circuit held that a suit which alleged that a company

had violated state law privacy rights by installing video cameras

in a restroom was preempted because the CBA may have

authorized the practice, even though there was "not one word

in the compact about cameras, locker rooms, or surveillance

in general." In re Amoco Petroleum Additives Co., 964 F.2d

706, 709-10 (7th Cir. 1992). The court based preemption on

a "management-rights" clause that the company argued left

everything "neither regulated nor forbidden" to "its discretion."

Id. at 709. The court further noted that several courts

had held state law privacy suits over employee drug tests preempted

"whether or not the collective bargaining agreement

expressly mention[ed] drug tests." Id. at 710. Needless to say,

_________________________________________________________________

At another point, the majority also appears to argue that the plaintiffs'

state law rights can be preempted only by a "clear and unmistakable"

waiver, rather than a "reasonable" argument regarding waiver, in the

CBA. Majority Opinion at 7523, 7528 n.7. This would be the case, however,

only if the plaintiffs' state law rights were"nonnegotiable." The

Supreme Court made this clear in Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399 (1988). The state law right at issue in Lingle, freedom

from retaliatory discharge, was "nonnegotiable, " id. at 407 n.7, because

"under [state] law, the parties to a collective-bargaining agreement may

not waive the prohibition against retaliatory discharge," id. at 409 n.9.

Thus, "[b]efore deciding whether such a state-law bar to waiver could be

pre-empted under federal law by the parties to a collective-bargaining

agreement, we would require `clear and unmistakable' evidence in order

to conclude that such a waiver had been intended. " Id. at 409 n.9 (citations

omitted). There is no "state-law bar to waiver " of the right to privacy in

California. To the contrary, the California Supreme Court has held that the

right to privacy can be extinguished by consent:"[T]he presence or

absence of opportunities to consent voluntarily to activities impacting privacy

interests obviously affects the expectations of the participant." Hill,

865 P.2d at 655.

7540

Consolidated's argument regarding the interpretation of the

CBA in this case, which does expressly authorize videotaping,

2

In Part IV, the majority relies on the California Penal Code

to conclude that, even if one could reasonably argue that the

employees consented in the CBA to Consolidated's videotaping,

such consent does not matter. In order to reach this conclusion,

the majority must rewrite California law.

To repeat: the elements of a right to privacy cause of action

under California law require these plaintiffs to show two

things: 1) that they had a subjective expectation of privacy in

the restroom, and 2) that their subjective expectation of privacy

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5 The majority's attempt to distinguish these cases is non-responsive.

Majority Opinion at 7527-28 n.6. The fact that the videotaping in these

cases was not done, as far as we know, in violation of state criminal laws

cannot save the majority's holding in Part III of its opinion. As I understand

Part III, the majority holds that, without even considering the California

criminal law, Consolidated cannot make a reasonable argument that

the plaintiffs consented in the CBA to its videotaping. The majority does

not invoke the California criminal law until its holding in Part IV of its

opinion, which, as explained below, is deficient for separate reasons.

6 The majority appears to argue that the elements of a right to privacy

cause of action under California law do not require the plaintiffs to show

that they had a subjective expectation of privacy in the restroom. Majority

Opinion at 7531-32 n.10. The majority appears to suggest that this is the

case because Hill altered the elements recited in Alarcon. Id. I respectfully

disagree. Nowhere in Hill did the Supreme Court state that it was overruling

the understanding in Alarcon. Moreover, although Hill did not use the

phrase "subjective expectation of privacy," it included as the second element

of the cause of action "a reasonable expectation of privacy on the

plaintiff's part." Hill, 865 P.2d at 655. I take this to mean that the plaintiff

must show both that he had an expectation of privacy and that it was reasonable.

This view is confirmed by the fact that the Court explained this

element by noting that "the presence or absence of opportunities to con-

7541

majority concludes that, because Consolidated's videotaping

is presumably a misdemeanor under California Penal Code

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sent voluntarily to activities impacting privacy interests obviously affects

the expectations of the participant." Id. Indeed, in fashioning the elements

of the right to privacy under the California Constitution, the Supreme

Court drew upon both the California common law right to privacy and the

federal constitutional right to privacy, id. at 848-53, both of which include

a subjective expectation of privacy as one of their elements. Id. at 849-50

("The plaintiff in an invasion of privacy case must have conducted himself

or herself in a manner consistent with an actual expectation of privacy,

i.e., he or she must not have manifested by his or her conduct a voluntary

consent to the invasive actions of the defendant."); California v. Greenwood,

486 U.S. 35, 39 (1988) ("[T]he Fourth Amendment [is violated]

only if respondents manifested a subjective expectation of privacy . . . that

society accepts as objectively reasonable.").

7 It is far from clear whether Consolidated's videotaping violated

§ 653n. The majority assumes arguendo in Part IV that there is a reasonable

argument that the plaintiffs consented in the CBA to the videotaping,

but it nonetheless holds that the videotaping was illegal. In doing so, the

majority extends California law in a manner that appears to contradict

decisions by the California Supreme Court. Although the text of § 653n

does not limit liability to "non-consensual" viewing, the California

Supreme Court has appeared to do just that. In People v. Triggs, 506 P.2d

232 (Cal. 1973), the Supreme Court held that a criminal defendant had a

reasonable expectation of privacy in a restroom on account of § 653n. Id.

at 238. In a subsequent decision, however, the Supreme Court clarified

that Triggs extended only to "clandestine, unexpected" viewing. In re

Deborah C., 635 P.2d 446, 452 (Cal. 1981) (emphasis added). The Court

based this clarification on the fact that "section 653n is limited to a

method of . . . clandestine observation" and"implies no belief that restrooms

and fitting rooms are immune from all observation." Id. at 452 n.9

(internal quotation marks omitted). Thus, it appears that one of the modes

of "observation" from which § 653n does not make the plaintiffs "im-

mune" is an "expected" viewing from behind a two-way mirror. Such a

viewing would be "expected" if the plaintiffs consented to it in the CBA.

Indeed, to interpret § 653n otherwise (i.e., in the manner advanced by the

majority) would allow the State to prosecute criminally someone who

erects a two-way mirror at the invitation of the person he is videotaping!

In addition to the reasonable argument that the plaintiffs consented in

the CBA to Consolidated's viewing, there are other facts which suggest

7542

restroom was reasonable as a matter of law. Fair enough. But

this only establishes the second prong of the required showing;

it does not establish the first prong, whether the plaintiffs

had a subjective expectation of privacy in the restroom.

Before the plaintiffs can establish that, the Court must resort

to interpretation of the CBA to determine whether they consented

to the videotaping.

Astonishingly, the majority ignores this first prong altogether.

Which perhaps is unsurprising because 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.

Moreover, I doubt that there will ever be such a holding of the

California Supreme Court. This is likely because, if the California

Supreme Court did make such a holding, it would lead

to the ridiculous situation in which I could invite someone to

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

around and sue that person for violating my right to"privacy."

Nonetheless, this is the interpretation of California law

urged upon us by the majority in this case. As support, the

majority can only muster the following assertion:"Nothing in

Hill suggests that all privacy determinations turn on issues of

consent." Majority Opinion at 7531. This is true. Hill never

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that Consolidated's viewing was not "unexpected " to the plaintiffs, and,

therefore, not in violation of § 653n. As already noted, Consolidated

placed no fewer than six signs in and around the terminal in which the

Recorded on Videotape." Moreover, there were two other video cameras

in another restroom which were not behind two-way mirrors and which

were presumably visible.

Finally, it is not surprising that following the Sheriff's investigation

referred to in footnote 1, the Riverside Country District Attorney decided

not to file any criminal charges against Consolidated, stating that "the conduct

involved was not motivated by an intent that would warrant criminal

prosecution."

7543

used the word "all." Instead, it used the word"obviously":

"[T]he presence or absence of opportunities to consent voluntarily

to activities impacting privacy interests obviously

affects the expectations of the participant." Hill, 865 P.2d at

655 (emphasis added). What was "obvious" to the California

Supreme Court in Hill should be obvious to everyone else

who considers the question: a person's subjective expectation

of privacy from an intrusion turns on whether he consented to

the intrusion. The majority's conclusion otherwise can only

be explained as an attempt to rewrite California law.

II

It is clear that the plaintiffs consented in the CBA to video

surveillance. It is at least a "reasonable" interpretation of the

CBA that the plaintiffs additionally consented therein to video

surveillance behind two-way mirrors. Whether this reasonable

interpretation is a winning one is a question that can be

answered only by interpreting the CBA in the appropriate

forum. Therefore, the plaintiffs' state law claim is preempted.

This does not mean, of course, that the plaintiffs in this case

have no remedy at all. It simply means that the plaintiffs must

pursue their remedies under federal rather than state law.

Indeed, the plaintiffs in this case submitted their claim to the

grievance process provided for in the CBA, and they prevailed.

Thus, not only are the majority's efforts misguided,

but unnecessary as well. For these reasons, I respectfully dissent.

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8 I also dissent from Part V of the Court's opinion. The majority rests

its conclusion in this Part on our decision in Miller v. AT & T Network

Systems, 850 F.2d 543 (9th Cir. 1988). But, in Miller, regarding the tort

of intentional infliction of emotion distress, we said: "Because the tort

requires inquiry into the appropriateness of the defendant's behavior, the

terms of the CBA can become relevant in evaluating whether the defendant's

behavior was reasonable. Actions that the collective bargaining

agreement permits might be deemed reasonable in virtue of the fact that

the CBA permits them." Id. at 550. Only if "the particular CBA does not

govern the offending behavior . . . [will] an emotional distress claim [not

be] preempted." Id. at 550 n.5.

7544

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As explained above, there is a reasonable argument that the CBA governs

Consolidated's behavior in this case, and, therefore, the plaintiffs'

intentional infliction of emotional distress claim is preempted as well.

Moreover, even if Consolidated's behavior constituted a misdemeanor

under California law, which, as I noted above, is doubtful, it would not

foreclose preemption: "we cannot assume that the employer's behavior

was outrageous for purposes of an emotional distress claim just because

the employer may have violated a statutory prohibition . . . ." Id. at 551.

7545