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  DAVID STIKES, on behalf of himself and|
v. No. 89-15208 CHEVRON U.S.A., INCORPORATED, a
BRIEF FOR APPELLANT In this action, an employee seeks to enforce the California right of privacy against a company that discharged him for refusing to "consent" to its random search of his private automobile. The case was originally filed in state court, but it was removed on the theory that the claim arose under federal law, and then dismissed because federal labor law is said to bar the State of California from providing the right of privacy to workers like plaintiff who are subject to collective bargaining agreements. This brief argues that (1) the case was improperly removed because there was no basis for federal jurisdiction; (2) the court below should have abstained from resolving the Supremacy Clause issue to permit the California courts to resolve underlying questions of California law; and (3) the court below erred in holding that federal law bars California from extending the right of privacy to union and nonunion workers alike. The case was filed in state court, asserting claims solely under state law. The lower court lacked jurisdiction of the case. Because Chevron's principal place of business is California, there was no diversity jurisdiction. 28 U.S.C. § 1332(c). Jurisdiction was improperly asserted under 29 U.S.C. § 185 and 28 U.S.C. § 1331, and the case was improperly removed under 28 U.S.C. § 1441.(1) This Court has jurisdiction under 28 U.S.C. § 1291 to review the judgment of dismissal entered by the district court on January 25, 1989. A timely notice of appeal was filed on February 9, 1989. See Rule 4(a)(1), F.R.A.P. 1. Does a claim that an employer violated an employee's state right of privacy "arise under" federal law solely because the employer asserts that the employee's claims are affected by a collective bargaining agreement, and therefore that such claims are preempted by section 301 of the Labor-Management Relations Act? (CR 15, 16, 35, 36) 2. When an employer contends that state law claims are forbidden by the United States Constitution, and preclusion depends on questions of state law, should a federal court abstain from deciding the federal question until the employer has presented the state law issues to the state courts and obtained an authoritative construction of state law from them? (CR 42, 43, 51) 3. Does the Supremacy Clause, coupled with section 301 of the Labor-Management Relations Act and the collective bargaining agreement applicable here, forbid the State of California from protecting its unionized as well as its nonunionized citizens against random searches of their private automobiles, by providing causes of action for wrongful discharges for refusing to consent to such searches? (CR 48) The rulings below, based entirely on issues of law, are reviewed de novo. A district court's decision not to abstain is often reviewed for abuse of discretion. Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1151 (9th Cir. 1988). However, whether state law is uncertain, and whether it is amenable to a construction that would obviate or narrow the constitutional issues, are legal questions that are reviewed de novo. D'Iorio v. Delaware County, 592 F.2d 681, 686 (3d Cir. 1978). Moreover, the abuse of discretion standard cannot be applied when the district court gives no reasons for a discretionary action. Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452-453 (9th Cir. 1980). If the district court's colloquy with appellant's counsel at oral argument is deemed an explanation for its decision not to abstain, it rested on a view of the law of preemption that is itself reviewed de novo. Lewis v. Anderson, 692 F.2d 1267, 1269 (9th Cir. 1982). A. Facts. Plaintiff-appellant David Stikes was employed by defendant-appellee Chevron USA, as a member of a maintenance crew working out of Chevron's offices near Coalinga, California. His employment was regulated by a variety of federal, state and local laws, as well as by a collective bargaining agreement ("CBA") between Chevron and the International Union of Petroleum and Industrial Workers. During Stikes' employment, he had never been disciplined; to the contrary, his performance evaluations were all favorable, many recommended his promotion, and Chevron had recognized his good performance less than four months before he was fired. CR 1, Exhibit H, ¶¶ 4, 16. Stikes traveled to work in his personal automobile, which he parked in a company parking lot. He did not use the car for work purposes, and there was no other convenient means of transportation to work. The nearest legal parking, apart from the company lot, was three miles away. Id., ¶¶ 34-36. In 1984, during the course of Stikes' employment, Chevron issued a policy asserting the right to search its employees for drugs, weapons, and other materials. On July 2, 1987, a Chevron security officer interrupted a training film that some of its employees, including Stikes, were watching, to demand a search of everybody in the room, including not only the employees' persons, but their lunchpails, lockers, and cars. Id., ¶ 5. At the time, Chevron refused to explain why it was conducting the search, id., ¶ 6; later it said the purpose was to find alcohol, narcotics, or firearms. Id., ¶¶ 18-19. However, Chevron did not contend that it had probable cause, reasonable suspicion, or indeed any basis at all for suspecting that any of the persons present possessed such items. Id., ¶¶ 22-26. Stikes allowed the search of his person, lunch, and locker, but refused to turn over the keys of his car so that it, too, could be searched. He reasoned that there was some reasonable relationship between his person, lunchpail, and locker and the workplace, and so he decided to allow those searches, hoping to preserve his means of livelihood. Id., ¶¶ 3, 6. But, he felt, in America an individual may not be subjected to searches without some ground for thinking that the individual has done something wrong, and so he drew the line at his car. Id., ¶¶ 29, 37. Chevron disputes Stikes's vision of America. Chevron believes that it is entitled to search workers and their personal property, even if not work-related, without any grounds. Thus, when Stikes refused to be searched, Chevron summarily fired him. Id., ¶ 8. Stikes filed a grievance asserting that, by firing him, Chevron had violated the CBA. Chevron disagreed, and the union refused to seek arbitration, because the "case cannot be arbitrated . . . because it has nothing to do with the union contract." Id., ¶ 33. B. Proceedings Below. On March 23, 1988, Stikes filed this action in California Superior Court. His complaint alleged that Chevron's search, and the search policy on which it was based, violated his right of privacy under the California Constitution. ER 51-62. He further claimed that his discharge for refusing to be searched both contravened the public policy of the State of California and was an "unlawful business practice" under California Code Section 17200, and that Chevron's conduct was malicious and had intentionally inflicted emotional distress on him. All of these torts were based on the privacy claim concerning the attempted random search of his car. Stikes' claim made no reference to a CBA, was not predicated on anything in a CBA, and could have been litigated without ever construing the CBA. On March 30, 1988, Stikes moved for a preliminary injunction compelling his reinstatement pending a decision on the merits, and a Superior Court hearing was set for April 15, 1988. However, at Chevron's request, Stikes stipulated to continue the hearing until April 29, and Chevron agreed to file its opposition to the preliminary injunction by April 22, 1988. Instead, however, on April 22 Chevron removed the case to the United States District Court for the Northern District of California, asserting that the complaint arose under federal law because the district court would have jurisdiction over it under section 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185. This jurisdiction, it was said, was based on the facts that Chevron is a party to a CBA with the International Union of Petroleum and Industrial Workers, and that this agreement regulates some of the terms and conditions of Stikes' employment. According to Chevron, the existence of this agreement validated the search policy and thus barred the State of California from giving Stikes the legal right not to be searched. On May 2, 1988, Stikes moved to remand the case to state court. Stikes pointed out that all of his claims were based exclusively on California law and that none of his California causes of action were based, in whole or even in part, on rights accorded him in the CBA. Stikes acknowledged Chevron's argument that his state law rights were waived by the CBA and also acknowledged that Chevron was entitled to litigate that waiver argument. Nevertheless, Stikes argued that California law did not recognize this waiver doctrine, but treated the right of privacy as inalienable; indeed, Stikes presented the district court with several California cases that had adjudicated private and public sector drug-testing programs, including some in unionized workplaces, in which there was no reference to a CBA. More important for purposes of the motion to remand, he contended that Chevron's arguments constituted no more than a federal law defense to his state law claims, and were not a basis for federal question jurisdiction. In response, Chevron disputed Stikes' analysis of California law. Chevron argued that the constitutional right of privacy is waivable, and thus the court would be required to construe the CBA to determine whether "plaintiff's union has explicitly or implicitly consented to the drug search program . . .." CR 20, at 9. Chevron then argued, without actually expounding the basis in the CBA, that the mere possibility of waiver meant that Stikes' rights under California law were "completely preempted" by section 301 of the LMRA, and the case therefore arose under federal law and had been properly removed. The district court denied the motion to remand without stating any reasons. CR 33, ER 1. Stikes then moved to reconsider the remand issue, presenting yet another California case that struck down a drug-testing program without construing a contract, as well as an opinion of California's Attorney General stating that employees' privacy rights vis-a-vis drug-testing programs could not be waived. CR 35-37. Stikes also moved the district court to abstain from deciding whether federal law barred California's enforcement of its common law regulation of drug-testing, in order to permit the California courts to resolve the dispute between the parties about the requirements of California law. In that way, Stikes contended, the state law question might be resolved in such a way that the federal courts could avoid addressing the validity of California's privacy law under federal law. CR 42-44. Chevron opposed both reconsideration and abstention, and moved for summary judgment on the ground that Stikes' claims were preempted by the CBA and section 301. Chevron argued that the preemption issue had necessarily been decided in its favor in the course of resolving the issue of federal jurisdiction, and that there was no reason to revisit that issue. With respect to abstention, Chevron denied that this case involved any questions of federal constitutional law, ignoring the fact that preemption means that a state rule is barred by the Supremacy Clause. Again the district court ruled against Stikes, denying both abstention and reconsideration, CR 54, ER 2, and again Judge Legge provided no opinion to explain his decision on a question that, during oral argument, he described as "difficult." ER 42. At that time, Judge Legge suggested that even if the state courts were to hold that the state law of privacy is inalienable, and therefore not waivable by a private agreement, federal law required him to look first at the CBA before he could decide whether a state law of privacy was enforceable. Id. at 41-42. Accordingly, he granted Chevron's motion for summary judgment, dismissing Stikes' state law claims on the ground that they were completely preempted by section 301. CR 59, ER 4. Neither in the course of this proceeding, nor during the processing of his grievance under the CBA, has Stikes received any ruling on the question of whether California law actually protects his privacy, or even on the question whether such state law protections have actually been waived. 1. In order for removal to be proper, there must have been federal question jurisdiction over Stikes' claim. Assuming for these purposes that Stikes' privacy claim could be waived by a CBA, such waiver is a defense to Stikes' claim, and is not a basis for removal. That is the clear holding of the Supreme Court in Caterpillar v. Williams, 482 U.S. 386 (1987), as reaffirmed in Oklahoma Tax Commission v. Graham, 109 S. Ct. 1519, 1521 (1989): state claims do not arise under federal law "even though an interpretation of the collective bargaining agreement might ultimately provide the employer a complete defense to the individual claims, and even though employee claims on the collective bargaining agreement would have been the subject of original federal jurisdiction." In Caterpillar, as here, the plaintiffs claimed a source of rights apart from the CBA -- in Caterpillar, contracts allegedly entered on an individual basis -- and the employer argued that these contractual rights had been waived by a CBA. The Supreme Court's decision that Caterpillar's waiver defense would have to be litigated in state court applies equally to Chevron's defense in this case. 2. Because Chevron's preemption arguments depend on its analysis of elements and defenses to state law privacy claims, if the district court had jurisdiction, it should have abstained to permit the California courts to resolve the state law questions. The district court decided, based on its reading of state law, that California is forbidden by the United States Constitution to give Stikes enforceable privacy rights. Yet, if a state court had adopted Stikes' view of California law, under which privacy rights cannot be waived by a CBA, it would have been unnecessary to reach the constitutional question because the court would not have had to consider the CBA. If, on the other hand, the state courts had decided, contrary to Stikes' argument, that his claim did depend on the CBA, Chevron could have returned to federal court to determine, under federal labor law principles, whether Stikes' state law claims could proceed and in what manner. 3. The lower court erred in concluding that the mere possibility that Stikes' privacy rights were waived by the CBA precluded judicial enforcement of Stikes' state privacy rights. The error is three-fold. First, the right asserted here is not waivable. Second, "waiver" is not a question of the meaning of the CBA. The standard for waiver of protected rights, under both federal and state law, is whether the rights have been clearly, unequivocally, and knowingly surrendered. As the Supreme Court recognized in Lingle v. Norge, 108 S. Ct. 1877 (1988), that is a question to be decided by the courts, separate and apart from any interpretation of the CBA. Third, even if waiver were simply a question of the meaning of the CBA, that does not mean that Chevron's bare assertion of "waiver" automatically preempts Stikes' privacy claims. Rather, the privacy claims are barred only if there has been a waiver, and although federal labor law principles would govern the resolution of the waiver issue, they would not require summary dismissal of Stikes' state law claims here. Indeed, Lingle recognizes that there may be questions about the CBA that come to the fore during the litigation of a state law claim, without preempting the basic state law claim itself. Instead, the court should first look to see whether the waiver claim is a substantial one, and if so, the question should be resolved under federal procedures, reserving the state law claims to be resolved in light of the decision on the waiver question. 4. Chevron's argument is based on the following propositions, each of which must be accepted in order to affirm the judgment below: (1) Stikes' privacy rights can be waived in collective bargaining; (2) Because Chevron has asserted that the CBA waives those rights, a court considering Stikes' state law claims would have to decide whether, in fact, his rights had been waived; (3) Because a court would have to consider whether the contract waived Stikes' rights, Stikes' privacy claim under state law depends on the meaning of the CBA; (4) Because Stikes' state claims depend on the meaning of the contract, they are necessarily preempted by section 301; and (5) Section 301 converts any state claims that it preempts into federal law claims, and so Stikes' claims arose under federal law, were properly removed from state court, and were properly dismissed without a hearing. In deciding this case, the Court will necessarily focus on the specifics of each party's arguments, but we urge the Court not to lose sight of the totality of Chevron's claim. Chevron argued, and the district court decided, that simply because state courts would have to consider the claim that Stikes' union gave away his privacy rights, the privacy rights themselves are destroyed by the preemptive effect of federal labor law and Stikes has been left with no rights to enforce beyond those accorded him by the CBA. Put another way, Chevron contends that, simply because it has invoked the contract in its arguments, and the Court will look at the contract when weighing those arguments, federal labor law requires that the state law claim be preempted. We submit that whatever the proper approach may be to resolving waiver defenses in cases such as this, Congress could not possibly have intended to empower employers to destroy state law claims simply by asserting the existence of a waiver in a CBA.
In order to understand why Judge Legge erred by accepting jurisdiction of the case, refusing to abstain, and holding that enforcement of Stikes' state-law rights was barred by federal law, it is first necessary to understand the claims that Stikes was making under state law. Stikes' state law claim is based on the right of privacy, which California expressly guarantees as an "inalienable" right of privacy in its Constitution. Article I, Section 1, as amended by the voters in 1972, provides as follows: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy. The California Supreme Court has repeatedly held that this section guarantees privacy rights to all Californians, and authorizes civil suits to enforce that right. E.g., White v. Davis, 13 Cal.3d 757, 774-775, 532 P.2d 857 (1975); City of Santa Barbara v. Adamson, 27 Cal.3d 123, 610 P.2d 436 (1980); Long Beach City Employees' Ass'n v. City of Long Beach, 41 Cal.3d 937, 948, 719 P.2d 660 (1986). See also In re William G., 40 Cal.3d 550, 563, 221 Cal. Rptr. 118 (1985) (right is "the foundation of individual rights guaranteed by our state and national Constitutions"). Moreover, numerous decisions have held that the state constitutional right of privacy (unlike the federal constitution) affords protection against private, not just governmental action. E.g., Cutter v. Brownbridge, 183 Cal. App. 3d 836, 228 Cal. Rptr. 545, 549 (1986); Bartling v. Superior Court, 163 Cal. App. 3d 186, 195, 209 Cal. Rptr. 220 (1984); Rulon-Miller v. IBM Corp., 162 Cal. App. 3d 241, 248, 255, 208 Cal. Rptr. 524 (1984); Kinsey v. Macur, 107 Cal. App. 3d 265, 272, 165 Cal. Rptr. 608 (1980); Porten v. University of San Francisco, 64 Cal. App. 3d 825, 829, 134 Cal. Rptr. 839 (1976); Laguna Pub. Co. v. Golden Rain, 131 Cal. App.2d 816, 851, 182 Cal. Rptr. 813, 834 (1982) ("Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone.") See also Chico Feminist Women's Hlth. Ctr v. Butte Glen Med. Soc., 557 F. Supp. 1190, 1203 (E.D. Cal. 1983). See also White v. Davis, 13 Cal.3d 757, 774-775, 533 P.2d 222 (1975), quoting parts of the voters' pamphlet as the authoritative legislative history of the constitutional right of privacy, making clear that the right of privacy extends to intrusions by business as well as government. Furthermore, there is little question that the right of privacy is violated when employees are required to submit to random searches of their private property, including their automobiles. Rather, a search may be conducted only if there is a showing of probable cause or, at the very least, a reasonable suspicion that the employee has engaged in wrongdoing or possesses contraband. In re William G., 40 Cal.3d 550, 563-564, 221 Cal. Rptr. 118, 125 (1985); People v. Gale, 46 Cal.2d 253, 257, 294 P.2d 13 (1956); Wirin v. Horrall, 85 Cal. App.2d 497, 504, 193 P.2d 470, 474 (1948). Cf. Blackstone, Commentaries, Book 2, ch. 1.(2) In the court below, Chevron did not dispute these aspects of Stikes' claim. Instead, it argued that Stikes' privacy rights could be waived as a matter of California law, and that, as a matter of fact, his rights had been waived in the CBA. Stikes disputed both aspects of this waiver argument, pointing to the language of the California Constitution, which describes privacy as an "inalienable" right, and arguing that employers may not lawfully insist that employees agree to give away their privacy rights as a condition of employment. And, in fact, California's Supreme Court and its appellate courts have repeatedly held that an employee cannot be compelled to waive constitutional or statutory rights as a condition of employment, even if a CBA purports to effect such a waiver. E.g., Long Beach City Employees' Ass'n v. City of Long Beach, 41 Cal.3d 937, 951, 719 P.2d 660 (1986); Judson Steel Corp. v. Workers Compensation Appeals Board, 22 Cal.3d 658, 665 n.5, 150 Cal. Rptr. 250 (1978); Fire Fighters Local 55 v. City of San Leandro, 181 Cal. App. 3d 179, 182-183, 226 Cal. Rptr. 238 (1986). Cf. Machinists Auto. Trades Dist. Coun. 190 v. Utility Trailer Sales, 141 Cal. App. 3d 80, 82-83, 190 Cal. Rptr. 98, app. dism., 464 U.S. 1005 (1983). Counsel also submitted to the district court several rulings where trial courts had found violations of employees' privacy rights and issued injunctions against drug-testing of employees, some of them in the private sector, without considering the contents of CBAs. CR 29, ER 63-91. Stikes' claim in this case, very simply put, is that he had a right of privacy in his personal automobile, and that the car could not be searched without probable cause, which admittedly was lacking here. Accordingly, when Chevron asked for the keys to his car, he had a right to refuse. When he was fired for refusing to tender his keys, he was fired in reprisal for asserting his right of privacy. The complaint alleges that Chevron committed various wrongs in the course of demanding a search and firing Stikes for refusing to "consent" -- the tort of wrongful discharge, the tort of intentional infliction of emotional distress, and violation of the statute forbidding "unlawful business practices" -- but each wrong is grounded on his claim that the right of privacy entitled him to refuse to permit a search of his car. Chevron contends that the rights that Stikes would otherwise have enjoyed were waived in the collective bargaining agreement. Stikes' response to this contention is two-fold: first, that state law does not permit waiver of his privacy rights, and second, there is nothing in the CBA that meets the standards for finding such waivers i.e., a clear, unmistakable, and knowing surrender of rights. Thus, the fact that there may be no affirmative right of privacy in the CBA does not mean that the CBA has waived preexisting privacy rights under California law.
I. THE POSSIBILITY THAT A COLLECTIVE BARGAINING AGREEMENT MIGHT BE HELD TO HAVE WAIVED A CLAIM BASED ON THE STATE CONSTITUTIONAL RIGHT OF PRIVACY DOES NOT TRANSFORM THAT CLAIM INTO A CLAIM ARISING UNDER FEDERAL LAW THAT MAY BE REMOVED TO DISTRICT COURT. The district court should not have reached the preemption issue because it lacked jurisdiction. Plaintiff filed claims based solely on California law. In its defense, Chevron argued that plaintiff's union had waived his right to assert those claims in its CBA, and that the determination of its waiver defense raises a federal question which is a proper basis for removal. However, as more fully explained below, because the Supreme Court has unanimously decided three times in recent years that federal defenses do not create federal jurisdiction, Chevron's defense does not transform Stikes' claim into one that arises under federal law. Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1 (1983); Caterpillar v. Williams, 482 U.S. 386 (1987); Oklahoma Tax Comm. v. Graham, 109 S. Ct. 1519 (1989). This rule against defensive removal applies even when the argument for preemption is based on the doctrine of "complete preemption" under section 301. Id. We acknowledge that some of this Court's decisions seem to point in a different direction, but as we explain infra at 20-23, they have improperly confined Caterpillar to its facts, or, by misstating those facts, they have in effect refused to follow Caterpillar at all. In this section, after reviewing Caterpillar, we discuss those cases and ask the Court to revisit them in light of the unanimous restatement and reaffirmance of Caterpillar's holding in Oklahoma Tax Commission. In Caterpillar, several employees sued under state law to enforce contracts which, they alleged, had been formed by Caterpillar's promises, made to them as individuals, that they would be protected against layoffs in the event the plant were closed. The promises were allegedly made both at times when the employees held managerial or salaried positions, which were outside the bargaining unit represented by a union, as well as at the time when the employees were demoted to hourly positions that were covered by the CBA. 482 U.S. at 389. Indeed, some of the promises may also have been made after the employees began working as part of the bargaining unit. 482 U.S. at 398 n.12. Although the Supreme Court affirmed this Court's holding that the case was improperly removed, it unanimously rejected this Court's reasoning. 482 U.S. at 391 n.4. According to the Supreme Court, the need to determine whether a plaintiff's complaint is properly pleaded does not deny a plaintiff the power to remain the master of his or her own claim; the plaintiff may opt to avoid federal jurisdiction by exclusive reliance on state law. 482 U.S. at 392. Even the doctrine of complete preemption does not rob a plaintiff of this right, so long as the state law claim is not substantially dependent on analysis of a CBA. Thus, the Caterpillar plaintiffs had asserted a breach of individual employment contracts, and even if they could also have asserted claims under the CBA, as masters of the complaint, they were free not to do so. 482 U.S. at 393. Because their complaint did not rely on the contract, or even address the relationship between the individual contracts and the collective agreement, the claims did not arise under section 301, and the case could not be removed based on the doctrine of complete preemption. Id. The Court then turned to the impact of Caterpillar's defense based on the rule of J.I. Case Co. v. NLRB, 321 U.S. 332 (1944), which limits the extent to which employers may adopt individual contracts that are inconsistent with the collective agreement. The Court had noted in Franchise Tax Board that complete preemption under section 301 does not apply whenever a suit merely "relates to" a CBA; it is only state suits to enforce a CBA that "arise under" section 301 and hence are removable. 463 U.S. at 25 n.28. Thus, in Caterpillar, the Court held that, even if the rule of J.I. Case might ultimately be employed so that the CBA superseded the rights that plaintiffs could otherwise have enjoyed under their individual contracts, that federal law defense would have to be litigated in state court: It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state courts will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a section 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule -- that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court. When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendant's option. But a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. If a defendant could do so, the plaintiff would be master of nothing. 482 U.S. at 398-399 (emphasis in original).(3) Caterpillar controls the removal issue in this case. As in Caterpillar, the plaintiff here alleges that his employer has violated a right apart from those created by the CBA. As in Caterpillar, the employer defends on the ground that the CBA between the employer and the plaintiff's union waived the right that would otherwise have been enjoyed by the plaintiff. And, as in Caterpillar, the employer removed the case from state to federal court on the theory that, because it is alleging that the CBA negates plaintiff's privacy rights, and that, because the courts will have to examine the CBA in order to resolve the waiver defense, the claim itself arises under section 301 and is removable. Therefore, as in Caterpillar, the waiver defense does not transform the claim itself into a federal claim that is within the district court's original jurisdiction. Accord, Local 57 v. Bechtel Power Corp., 834 F.2d 884, 889 (10th Cir. 1987). In a number of cases, however, this Court has authorized removal on the ground that plaintiffs' tort claims, based on intentional infliction of emotional distress, an implied covenant of good faith and fair dealing, or even privacy, might require reference to the CBA insofar as the employer had alleged that the claims were inconsistent with the CBA. The leading case on the subject is Young v. Anthony's Fish Grottos, 830 F.2d 993 (9th Cir. 1987), which has been applied uncritically to a number of other cases. However, as we now explain, these decisions were erroneous, and in any event are inconsistent with subsequent Supreme Court precedent. In Young, a former restaurant employee agreed to return to work there, after allegedly being specifically promised that she would be hired "on the same terms as before, subject to discharge only for just cause." 830 F.2d at 996. When she was fired on the very day she returned to work, supposedly without just cause, she sued in state court alleging breach of contract and a number of torts that depended on the contract. The Court held that the contract claim had been properly removed because it was completely preempted by section 301. Yet the discussion of the jurisdictional issue was summary, and indeed was analytically relevant only to the merits of preemption, not to removal. First, the Court invoked three of its own pre-Caterpillar cases holding that "any independent agreement of employment concerning [a] job position [covered by the CBA] could be effective only as part of the collective bargaining agreement." 830 F.2d at 997, citing e.g., Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468 (1984). Then it erroneously distinguished Caterpillar on the ground that it supposedly concerned only promises made while the employees were in positions not covered by the CBA. 830 F.2d at 998. Compare page 18, supra. Next, it said that federal law allowed unions to waive individual agreements. Id. And finally it ruled that, because there was no Supreme Court ruling subsequent to the pre-Caterpillar decisions such as Olguin that undermined those decisions, the pre-Caterpillar decisions would be followed. In fact, however, there was a great deal in Caterpillar that was inconsistent with pre-Caterpillar decisions such as Olguin. Indeed, more space in Young is devoted to discussing the footnote in Caterpillar that disapproved this Court's reasoning in Caterpillar itself than to explaining the three aspects of Caterpillar that make it clear that cases such as Olguin are no longer good law. The portions of Caterpillar that were ignored in Young include the following: (1) Caterpillar included a lengthy discussion of the role of waiver defenses, quoted above at 19-20, including the square holding that such defenses do not transform a claim under an allegedly independent agreement into a federal law claim that is removable under the doctrine of complete preemption.(4) (2) Some of the promises on which the Caterpillar plaintiffs sued were made at the time they were demoted back to the collective bargaining unit, 482 U.S. at 389, a time equivalent for legal purposes with time when Young returned to the bargaining unit and was given promises. (3) Caterpillar held that even if some of the promises on which the plaintiffs sued "were negotiated with [them] while the latter were covered by a collective agreement," 482 U.S. at 398 n.12, "this fact is irrelevant to the removal question. . . . [R]espondents' state law claims might be preempted by the NLRA, but they would not be transformed into claims arising under federal law." Id. Moreover, Supreme Court decisions subsequent to Young and its progeny have undermined their viability. Most recently, the Supreme Court explained the significance of Caterpillar in Oklahoma Tax Commission v. Graham, 109 S. Ct. 1519 (1989). The Oklahoma Tax Commission sued the Chickasaw Nation to collect taxes on receipts from one of its enterprises, but the Nation, interposing the federal defense of tribal immunity, removed the case to federal court. The Tenth Circuit found removal appropriate because, even though the complaint did not raise a federal question, "such a question is inherent within the complaint because of the parties subject to this action." 109 S. Ct. at 1520, quoting 846 F.2d at 1260. The Supreme Court unanimously rejected that argument in a peremptory per curiam opinion: In Caterpillar, we ruled that application of the well-pleaded complaint rule defeated federal question jurisdiction, and therefore removability, in a case in which the employees sued on personal state employment law contracts. We refused to characterize these state law claims as arising under federal law even though an interpretation of the collective bargaining agreement might ultimately provide the employer a complete defense to the individual claims, and even though employee claims on the collective bargaining agreement would have been the subject of original federal jurisdiction. The state law tax claims in the present case must be analyzed in the same manner. 109 S. Ct. at 1521 (emphasis added). As in Oklahoma Tax Commission, the status of the parties here, i.e., the fact that Stikes was represented in collective bargaining by the union, does not convert his state law claim into one based on the CBA, and even if Chevron's proffered interpretation of the CBA might offer a complete defense to Stikes' privacy claim, that does not create federal jurisdiction over that claim. See also Lingle v. Norge, 108 S. Ct. 1877, 1883 n.9 (1988) (waiver question should be resolved by the courts under a "clear and unmistakable waiver" standard, implying that question does not arise under section 301 requiring arbitral interpretation). For all these reasons, the district court erred in holding that the case had been properly removed, and the judgment should be vacated with instructions to remand the case to state court. II. ABSTENTION WOULD ALLOW THE CALIFORNIA COURTS TO ADDRESS STATE LAW QUESTIONS, INCLUDING THE ROLE PLAYED BY COLLECTIVE BARGAINING AGREEMENT IN LITIGATION OVER PRIVACY ISSUES, WHOSE RESOLUTION MIGHT AVOID THE NEED TO DECIDE WHETHER PRIVACY RIGHTS ARE PREEMPTED UNDER THE SUPREMACY CLAUSE. The Court need not decide whether Stikes' state law privacy claims are barred by the Supremacy Clause of the United States Constitution, in conjunction with federal labor law and the CBA, if it decides to abstain from addressing the federal questions pending determination of the underlying state law issues, in particular the issue of whether plaintiff's claim can be waived by his union in the CBA. It is a long-standing principle of federal jurisdiction that the federal courts should, where possible, avoid decisions on constitutional questions. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348 (1936) (Brandeis, J.). One of the standard ways to avoid unnecessary constitutional decisionmaking is by construing statutes in such a way that the constitutional question is not presented. E.g., DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Coun., 108 S. Ct. 1392, 1397 (1988). This principle takes on an added dimension when it is state law that is said to contravene the constitution, for three principal reasons. First, invalidation of state law calls into play considerations of comity between the state and federal governments that discourage unnecessary trampling of the state's rights and powers by federal authorities. Second, because the federal court's view of state law is not binding, the ruling on both the underlying state law questions and the application of constitutional law to the state law, as construed, could be seen as an advisory opinion. Moore v. Sims, 442 U.S. 415, 428 (1979). Third, when state law is construed by a federal court, the court inevitably makes decisions about state policies that ought to be left to the states to decide. For example, it is far preferable to let the states decide whether to run the risk of having state law invalidated, or to curb the reach of state law that causes the constitutional question to be approached. Or, to the extent that there is a choice among the ways in which state law may be construed to avoid constitutional questions, the state courts ought to be given the opportunity to make the policy choices that are implicit in deciding which limiting construction ought to be imposed on state law. Cf. Harris County Comm'rs Court v. Moore, 420 U.S. 77, 87-88 (1975) (state courts should have choice of remedies to be applied if there is a constitutional problem). Consequently, the Supreme Court has held in a long line of cases, beginning with Railroad Comm. v. Pullman, 312 U.S. 496 (1941), that it is incumbent on the federal courts to abstain from addressing the constitutionality of state law where the law fairly admits of a construction that would avoid the constitutional question. Harris Cy. Comm'rs Court v. Moore, 420 U.S. 77 (1975); United Gas Pipeline Co. v. Ideal Cement Co., 369 U.S. 134 (1962); AFL v. Watson, 327 U.S. 582 (1946). The courts have repeatedly applied Pullman abstention to avoid unnecessary rulings on preemption challenges to state laws. AFL v. Watson, supra; Congress of Industrial Org. v. McAdory, 325 U.S. 472, 476 (1945); IBEW Local 1245 v. Public Serv. Comm., 614 F.2d 206, 212-213 (9th Cir. 1980). In this case, there is a fundamental disagreement over whether the description in the California Constitution of the right of privacy as "inalienable" made Stikes' right not to have his car search nonwaivable by his union in the CBA. If the California courts were to hold that the CBA is irrelevant (because a possible waiver would not be recognized or because the standard for finding waivers does not depend on the meaning of a CBA), that would make it unnecessary for this Court to decide whether section 301 of the LMRA, in conjunction with the Supremacy Clause of the constitution, preempts the Stikes' privacy law claim. In the court below, Chevron's principal objection to abstention was that plaintiff had offered only speculation about the possibility that state law might be construed in such a way that the preemption question would be avoided. We disagree, and believe that the authority set forth on pages 41-42, infra, and 15-16, supra, shows that state law points strongly in the direction of a nonwaivable right. Although this Court in Utility Workers Local 246 v. Southern California Edison, 842 F.2d 1083, 1086 (9th Cir. 1988), was not prepared to recognize a non-waivable right against drug-testing because of the absence of reported state decisions on that subject, the right against car searches is long-established in California, supra page 14, and there is no reason to believe that the general rule against waiver would not apply to car searches as well.(5) If this Court upholds the removability of this case to federal court, the argument for abstention in this case is particularly strong because of this Court's decision in Utility Workers, supra. There, this Court stated that, because it could find no state decision holding that state privacy rights (there, with respect to drug-testing) may not be waived by a CBA, it would not itself hold that such rights are nonwaivable, and the state law claims were both preempted and removable. In light of that holding, any unionized employer confronted with a state-law-based privacy claim has an opportunity to seek removal based on section 301 preemption. Indeed, it might constitute malpractice for lawyers representing an employer to fail to seek removal, because if the case were removed, the employer could count on invoking the ruling in Utility Workers, yet if the case stayed in state court, the employer would risk the possibility that the privacy rights might ultimately be held nonwaivable, thus undercutting the state law basis of this Court's Utility Workers decision. In those circumstances, the state courts will never have an opportunity to pass on the underlying state law questions, and only by abstention could this Court gain assurance that its analysis of state law in Utility Workers, which under settled doctrine cannot be the final word on the subject, is indeed correct. Surely, the doctrine of removal based on preemption should not become a tool to prevent the state from ever deciding whether its own law is such that preemption is appropriate. We do not underestimate the difficulties posed for a party like Chevron asserting its rights under the federal constitution when a federal court directs that the state courts must first be given an opportunity to avoid constitutional issues by construing state law. Undersigned counsel have represented many plaintiffs asserting constitutional rights in cases where courts abstained, and we have strenuously argued against abstention because our clients preferred to be able to litigate their rights in a single proceeding rather than in two, as England v. Louisiana Board of Med. Exam., 375 U.S. 411 (1964), requires. But what is sauce for the plaintiff goose is sauce for the defendant gander. Of course, if the Court refuses to permit removal of cases such as this, both the federal and the state law issues can be resolved in one state court proceeding. Not only are the state courts as capable as the federal courts in applying the federal law of preemption to defensive questions such as waiver, but if state courts err in applying federal preemption law, a defendant always has the option of seeking review in the United States Supreme Court. If, however, a federal court errs in applying state law in a case that has been removed based on preemption grounds, a plaintiff has no way to obtain state court review on the state law question. But if the Court is prepared to hold that Chevron's defense created federal jurisdiction, the Court should not allow its speculations about state law to be turned into a permanent barrier against state enforcement of its constitutional provision on privacy. Because state court interpretation of that provision might well avoid the need for this Court to apply the federal labor laws to invalidate such state regulation, the district court should have abstained. III. THE POSSIBLE NEED TO REFER TO A COLLECTIVE BARGAINING AGREEMENT TO DETERMINE WHETHER STIKES' RIGHTS UNDER STATE PRIVACY LAWS HAVE BEEN WAIVED IN COLLECTIVE BARGAINING DOES NOT REQUIRE THAT THE STATE CLAIMS BE PREEMPTED BY THE CONTRACT. In order to understand why defendants' preemption argument must fail, it is useful to begin by briefly reviewing the development of federal labor and preemption law, culminating in recent decisions such as Lingle v. Norge, 108 S. Ct. 1877 (1988), that defeat Chevron's claim of preemption here. We then turn to a discussion of this Court's cases since Lingle, and show both how they differed from the issue presented here and how, in some important respects, they failed to take account of portions of the Supreme Court's opinion in Lingle. A. It is black letter law that, before a court may forbid a state to regulate conduct within its borders, such as employer searches of private automobiles at issue here, it must first conclude that Congress intended this result. As the Supreme Court has repeatedly stated in labor as well as other preemption cases, Congress' intent is "the ultimate touchstone." Allis-Chalmers v. Lueck, 471 U.S. 202, 208 (1985). Moreover, given the respect due the states in our federal system, there is a strong presumption against finding Congressional intent to preempt any state laws. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634 (1981). Neither the language of section 301, nor its legislative history, provides a basis for concluding that any substantive state regulation of employee rights is inconsistent with Congress' purpose. The purpose of section 301 was to assign the development of a federal common law of CBAs to the federal courts. Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957). Because this law has been developed by the unelected judiciary essentially on its own, without substantial guidance from Congress, the courts should be especially circumspect about making the policy judgments that are implicit when state laws, based on public policies deemed important by the several states, are overridden on the ground of conflict with section 301. In that regard, the Supreme Court has held that the application of state contract law to determine the meaning of CBAs would be inconsistent with the task assigned by Congress of developing a federal common law of labor contract to govern those agreements. Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962). But the Court has never done what Chevron asks this Court to do here, i.e., to hold that a substantive state regulation granting important rights to employees is completely superseded by the law of the CBA. In assessing this argument, we first note that Congress plainly intended that the federally-encouraged system of collective bargaining will exist side-by-side with a wide variety of federal laws governing substantive terms in the employment relationship, such as health and safety, pensions, and wages and hours. E.g., Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.; Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The subjects covered by these statutes are within the mandatory scope of bargaining, so that employers are expected to negotiate about them with unions and indeed to sign CBAs regulating them in one respect or another. See BNA, I The Developing Labor Law 773-786, 813-815 (2d ed. 1983). Yet employers must comply with their federal statutory duties in addition to whatever they agree to in CBAs on the same subjects. E.g., Jewell Ridge Coal Corp. v. Mine Workers Local 6167, 325 U.S. 161, 167 (1945). Among the forms of regulation of the employment relationship that Congress has subjected to public law, in addition to whatever private law is created by collective bargaining, is the discharge of employees because they have exercised their federal constitutional rights. McDonald v. City of West Branch, 466 U.S. 284 (1984). These federal statutes also create enforcement mechanisms which may be invoked notwithstanding any limitations that are imposed on the enforcement of contractual rights pertaining to the same subject matter. E.g., Barrentine v. Arkansas-Best Freight Syst., 450 U.S. 728 (1981). Congress has chosen not to permit the policies of these employment statutes to be subjected to interpretation and enforcement, and thus perhaps to be undermined, by private arbitration generally authorized by CBAs. This protection against preclusion by the grievance and arbitration procedure extends to the enforcement of federal constitutional rights under 42 U.S.C. § 1983. McDonald v. City of West Branch, 466 U.S. 284 (1984). Nor has Congress barred the states from imposing additional substantive terms and conditions on the employment relationship. To the contrary, the states have traditionally been allowed to legislate in such areas as workers compensation, wages and hours, and employment discrimination. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985). To be sure, in some statutes Congress has explicitly barred state regulation of the same subject. E.g., Section 514, Employee Retirement Income Security Act, 29 U.S.C. § 1144. But Congress' explicit decision to preempt state regulation of a few, select substantive subjects makes it highly unlikely that Congress intended to deny states the right to regulate other terms and conditions of employment not specifically preempted by federal legislation. See Malone v. White Motor Corp., 435 U.S. 497, 504-505 (1978). To the contrary, as the Court observed in holding that state minimum labor standards are not preempted, "It would turn the policy that animated the Wagner Act on its head to understand it to have penalized workers who have chosen to join a union by preventing them from benefiting from state labor regulations imposing minimum standards on non-union employers." Metropolitan Life Ins. Co. v. Massachusetts, supra, 471 U.S. at 755. Following this analysis, the Supreme Court has held that section 301 does not preempt claims made under a state law that sets forth minimum labor standards, so long as resolution of the state claim does not depend on the CBA. Lingle v. Norge, 108 S. Ct. 1877 (1988). As Illinois extended its law of retaliatory discharge to union and non-union employees alike, so too California extends its privacy rights to union and non-union employees alike, and therefore section 301 may not be used to second-guess that decision because there is plainly no need to consider the CBA in assessing Stikes' privacy claim, with one possible exception, to which we now turn. Chevron argues that, unlike Lingle's retaliatory discharge claim, Stikes' privacy claim depends on the CBA because any privacy rights that he would otherwise enjoy were waived in the agreement. But even if Stikes' claim were waived by his union, a matter which we discuss below, that is very different from the sort of dependence that has led the Supreme Court to find claims so dependent on a CBA that they are preempted by section 301. The only Supreme Court cases finding such preemption since Lucas Flour, where the plaintiffs avowedly relied on a CBA, are Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), and IBEW v. Hechler, 481 U.S. 851 (1987). But in Allis-Chalmers the plaintiff claimed that he suffered injury by the way in which the employer and insurer "tortiously" performed their alleged contractual duties; in Hechler the plaintiff claimed that the union had made certain commitments in the CBA and that she suffered injury from the union's "tortious" violation of the duties thus assumed. In those circumstances, the Supreme Court found that the alleged torts were no more than glorified claims of contractual violation. If a state could create a tort which is defined by the contractual obligation, it would be able to evade the Congressional "mandate[] that federal law govern the meaning given contract terms." 471 U.S. at 219-220. The state would also be able to deprive unions and employers of "their federal right to decide who is to resolve contract disputes." Id. at 220. Hence, preemption was required to protect "the congressional goal of a unified federal body of labor-contract law," id. at 220, and the fact that a plaintiff or a state chose to label the claim as a tort rather than a contract violation did not prevent the application of the preemption doctrine. But Allis-Chalmers and Hechler are a far cry from this case because plaintiff here does not rely on duties allegedly found in a contract. Instead, he places his entire reliance on tort duties found outside the CBA, and it is the employer who seeks refuge in the contract to exempt itself from duties that would otherwise be imposed on it by independent state laws. Therefore, the need to pass on the validity of this defense does not transform Stikes' claim from a state law privacy action to one seeking to enforce a CBA. Indeed, the Lingle Court recognized that some CBA-related issues may have to be decided in the course of litigating state law claims, without preempting the underlying cause of action itself. This issue was anticipated in a footnote where the Court noted the possibility that a state claim, which was nonwaivable under state law, might still be preempted because it was actually waived by the parties to a CBA. Id. at 1883 n.9. According to the Court, before finding such a waiver and thus confronting the question whether it would override state law, "we would require 'clear and unmistakable' evidence, see Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983), in order to conclude that such a waiver had been intended." Id. The Court did not say that the issue of whether a CBA waives state law involves the interpretation of a CBA that arises under section 301 and so must be resolved by an arbitrator. Instead, the Court indicated that waiver questions must be resolved by the courts -- "we would require clear and convincing evidence."(6) The Court made a similar point when discussing the possible need to refer to the CBA in order to formulate the plaintiff's relief: Although federal law would govern the interpretation of the agreement to determine the proper damages, the underlying state law claim, not otherwise preempted, would stand. Thus, as a general proposition, a state law claim may depend for its resolution upon both the interpretation of a collective bargaining agreement and a separate state law analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but the separate state law analysis would not be thereby preempted. 108 S. Ct. at 1885 n.12. Surely, if Lingle's need to refer to a CBA to establish her own claim for damages did not compel preemption of her entire claim, then a defendant's claims that refer to the CBA do not have a greater preemptive effect. For example, if an employer who is accused of retaliatory discharge asserts that the discharge would have happened anyway pursuant to a right allegedly enjoyed under the contract, that defense will not preempt the claim itself. E.g., Miller v. AT&T Network Sys., 850 F.2d 543, 549-550 (9th Cir. 1988); Smolarek v. Chrysler Corp., 858 F.2d 1165, 1171 (6th Cir. 1988). Therefore, the possibility of a defense based on the CBA here does not preempt plaintiff's claim. B. Chevron's principal argument below on the "preemption" issue was not really a preemption argument in the sense that federal labor laws prevent California from extending privacy protections to all unionized employees. Rather, Chevron argued that in this case, plaintiff's claims had been properly waived by his union and in that sense are "preempted" by section 301. Chevron further argued that only an arbitrator can consider the validity of this claim, but that this entire case must nonetheless be dismissed simply because a waiver defense has been raised. In this section of the brief we explain the three reasons why the court below erred in accepting this argument. First, this claim is not waivable as a matter of California law. Second, the waiver question does not depend on the meaning of the CBA as that phrase was used in Lingle, and so the Court must decide that question for itself rather than leaving the question for an arbitrator; at the very least, even if the initial ruling on waiver is made by an arbitrator, the Court should retain jurisdiction in the event that the arbitral decision permits prosecution of the state law claim. Third, the Court should rule that there was no waiver. 1. Assuming that the Court does not abstain on the issue of whether Stikes' union could have waived his rights under state privacy law, the Court should rule, in light of the state law cases cited in the Introduction to the Argument in this brief, that it may not be waived as a matter of California law. Although in Utility Workers Local 246, supra, and Laws v. Calmat, supra, the Court declined to hold that privacy rights against drug-testing cannot be waived, those rulings do not require a holding that Stikes' claim can be waived, for several reasons. First, the Court decided not to find nonwaivability there in part because there were at that time no published state court decisions establishing either that the privacy right would apply to such drug-testing, or that such application could not be waived. By contrast, the privacy claim in this case is directed not at urinalysis or similar drug-testing, but at the random search of employees' automobiles, and numerous published California decisions, in a line of precedent extending back 40 years, bar such random searches. E.g., People v. Gale, 46 Cal.2d 253, 257, 294 P.2d 13 (1956); Wirin v. Horrall, 85 Cal. App.2d 497, 504, 193 P.2d 470, 474 (1948). Moreover, numerous decisions hold that employees may not be required to waive their rights under California's constitution as a condition of employment. E.g., Long Beach City Employees' Ass'n v. City of Long Beach, 41 Cal.3d 937, 951, 719 P.2d 660 (1986); Fire Fighters Local 55 v. City of San Leandro, 181 Cal. App. 3d 179, 182-183, 226 Cal. Rptr. 238 (1986). See also Judson Steel Corp. v. Workers Compensation Appeals Board, 22 Cal.3d 658, 665 n.5, 150 Cal. Rptr. 250 (1978) (statutory right could not be waived by CBA). Second, an absence of published decisions on point would not be a sufficient basis for preemption. When a federal court is required to decide a point of state law, and the fe more resources
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