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Protecting citizens' rights in the courts
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  Paul Alan Levy
Robert N. Jacobs
March 12, 1991 1. May an employer whose employees are governed by a collective bargaining agreement ("CBA") remove the state law privacy claim of a discharged employee to federal court, thereby preventing the state court from construing the applicable state law, on the ground that the state law claim may be preempted by the CBA and section 301 of the Labor-Management Relations Act ("LMRA"), because the CBA arguably waives the privacy rights of the employee? 2. Does the mere existence of a CBA, which the employer contends undercuts the state law privacy claim by a discharged employee, wholly preempt the state claim so that a court may dismiss the claim without determining either the relevance of the CBA to the claim under state law, or the actual way in which the CBA applies to the specific conduct that forms the basis of the state law claim? All parties in the lower courts are identified in the caption. In the
Petitioners, Respondents. David Stikes and the class of all persons similarly situated hereby petition the Court to issue a writ of certiorari to review the decision of the United States Court of Appeals for the Ninth Circuit that affirmed the removal and dismissal of this action. The opinion of the court of appeals is reported at 914 F.2d 1265, and is set forth in the Appendix ("Pet. App.") at pages 1a-13a. The district court did not issue an opinion, but discussed the issues with counsel at hearings and then issued orders refusing to remand the case to state court, Pet. App. 14a-15a, refusing to reconsider remand or to abstain to permit central issues of state law to be decided in state court, Pet. App. 16a-17a, and granting summary judgment for defendants on grounds of federal preemption. Pet App. 18a-19a. The court of appeals issued its decision on September 17, 1990. Pet. App. 1a-13a. A timely petition for rehearing was denied on December 12, 1990. Pet. App. 20a-21a. This Court has jurisdiction under 28 U.S.C. § 1254(1). Article I, Section 1 of the California Constitution 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.
28 U.S.C. § 1331 provides as follows: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, provides as follows in pertinent part: (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined by this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. A. Facts. Petitioner David Stikes, a citizen of California, was employed by respondent Chevron USA, a corporation whose principal place of business is in 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. 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. 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 petitioner and other employees were watching, to demand a search of everybody in the room, including not only the employees' persons, but their lunchpails, lockers, and cars. Chevron later explained that the purpose was to find alcohol, narcotics, or firearms, but it 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. Fearful of losing his job for refusing, petitioner 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 recognized that there was some reasonable relationship between his person, lunchpail, and locker and the workplace. 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. Chevron disputes Stikes's vision. 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. 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." Clerk's Record Below, Item 1, Exhibit H, ¶ 33. B. The California Law of Privacy. To understand the questions of jurisdiction and preemption that are presented here, it is necessary to review the settled and unsettled issues of the California law of privacy. Article I, Section 1 of the California Constitution, expressly guarantees an "inalienable" right of privacy. The California Supreme Court has repeatedly held that this section authorizes civil suits to enforce that right. E.g., White v. Davis, 13 Cal. 3d 757, 774-775, 532 P.2d 857 (1975); Long Beach City Employees' Ass'n v. City of Long Beach, 41 Cal. 3d 937, 948, 719 P.2d 660 (1986). See also City of Santa Barbara v. Adamson, 27 Cal. 3d 123, 610 P.2d 436 (1980). Numerous decisions of the California Courts of Appeal 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. 3d 816, 851, 182 Cal. Rptr. 813, 834 (1982). Dictum in White v. Davis, supra, 13 Cal. 3d at 774-775, supports these holdings. Hotly disputed in this case has been the question whether an employee's privacy rights can be waived in the CBA as a matter of California law, and whether, as a matter of fact, petitioner's rights had been waived in this CBA. Petitioner pointed to the language of the California Constitution, which describes privacy as an "inalienable" right, and relied on California cases holding that an employee's purported waiver of constitutional or statutory rights as a condition of employment, even in a CBA, is invalid. 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). In recent years, the California Courts of Appeal have divided on the question whether the right of privacy is waivable in the context of employment in the private sector. Compare Semore v. Pool, 217 Cal. App. 3d 1087, 1097, 266 Cal. Rptr. 280 (1990), with Luck v. Southern Pacific, 218 Cal. App. 3d 1, 267 Cal. Rptr. 618 (1990). Under California law, whether there has been an invasion of privacy depends, in part, on the "reasonable expectations" of the parties. Deborah C., 30 Cal. 3d 125, 137, 635 P.2d 446 (1981). The parties dispute whether, under California law, a CBA is relevant to that determination. Petitioner pointed below to the fact that, of the many California cases discussing a right to privacy in the workplace, none relied on the existence or contents of a CBA or of any other contract, in deciding whether there was a reasonable expectation of privacy.(1) Respondent, for its part, insisted that a CBA would necessarily be a part of any determination of reasonable expectations, but it pointed only to federal court decisions finding preemption of California privacy claims as evidence of such a rule of state law. C. Proceedings Below. On March 23, 1988, petitioner filed this action in California Superior Court.(2) 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. He further alleged 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 Chevron's decision to search Stikes' car and to fire him for refusing to consent to that search. The 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. Petitioner moved for a preliminary injunction to compel his reinstatement pending a decision on the merits. However, before a hearing could be held, respondent 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. Jurisdiction was based solely on the fact that respondent is a party to a CBA that regulates some of the terms and conditions of petitioner's employment, although it says nothing specific about Chevron's right to search employees or their cars. According to respondent, the existence of this agreement alone not only supported removal, but also validated the search policy and thus barred the State of California from giving petitioner the legal right not to be searched. Petitioner moved to remand the case to state court. He 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. He acknowledged respondent's argument that his state law rights were waived by the CBA and also acknowledged that respondent was entitled to litigate that waiver argument. In response, petitioner argued first that California law did not recognize this waiver doctrine, and second that Chevron's arguments constituted no more than a federal law defense to his state law claims, and hence were not a basis for federal question jurisdiction. Respondent, for its part, argued that the mere possibility of waiver meant that Stikes' rights under California law were "completely preempted" by section 301 of the LMRA, and that, therefore, the case arose under federal law and had been properly removed. The district court denied the motion to remand without stating any reasons. Petitioner then moved to reconsider the remand issue, and 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 decide the unsettled questions of California law, such as whether petitioner's privacy claim was waivable. In that way, he contended, the federal courts could avoid addressing the validity of California's privacy law in light of federal law under section 301. Respondent opposed both reconsideration and abstention, and moved for summary judgment on the ground that petitioner's claims were entirely preempted by the CBA and section 301. Respondent 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, respondent contended that there was no reason to abstain because this case did not involve any questions of federal constitutional law, ignoring the fact that section 301, on which it relied, is a federal statute and that it comes into play only because, under the Supremacy Clause of Article VI of the United States Constitution, federal law, such as section 301, overrides inconsistent state law. Again the district court ruled against petitioner, denying both abstention and reconsideration, and again the court provided no opinion to explain its decision. Accordingly, it granted summary judgment, dismissing petitioner's state law claims on the ground that they were completely preempted by section 301. The court of appeals affirmed. It upheld removal by ruling that, when an employer asserts the defense of section 301 preemption, the issues of preemption and removal jurisdiction are the same -- that is, a case is removable whenever there is section 301 preemption. Pet App. 6a-7a. Turning to what thus became the dispositive question of preemption, the panel correctly noted that section 301 preempts not only claims that are founded on rights created by a CBA, but also claims that are "substantially dependent" on a CBA. Id. 7a. The panel ruled that petitioner's privacy claims necessarily "substantially depend" on the CBA by focussing on the waiver defense raised by respondent, not the claims pleaded by petitioner. According to the court, petitioner's privacy claims depend on the CBA because privacy is a waivable right, and the courts would have to look at the CBA to decide whether there had been a waiver. Id. 8a. Moreover, California law makes privacy dependent on a person's "reasonable expectations" of privacy, and one of the many factors that go into a determination of any employee's "reasonable expectations" is the meaning of the employee's CBA. Id. 10a. Finally, the court acknowledged that petitioner had asked the district court to abstain to allow the California courts to address the unanswered state law issues which are at the core of the case. However, the court refused to abstain on the ground that preemption does not rise to the level of a constitutional question that warrants abstention, and that, in any event, analysis of the CBA would be required whether the CBA came into the case through waiver (as two previous Ninth Circuit preemption opinions had held) or through a determination of the employee's reasonable expectations. Id. 12a. The rulings below on jurisdiction, abstention and preemption are, taken individually, seriously at odds with decisions of this Court and those of other circuits. But the need for review is greatly magnified because, taken together, they have fundamentally altered the way in which state law claims will be litigated whenever an employer is subject to a CBA. Accordingly, the petition first discusses the combined impact of the rulings, and then explains how the rulings below individually conflict with other authority of this and other courts. At the heart of the merits of this case are questions of state law: may the right of privacy be waived as a condition of employment; and, in deciding a privacy case in a union workplace, may or must a court consider the CBA, and to what extent? The questions presented for this Court's consideration, however, are not ones of state law. Rather, they raise the federal law issues of which forum -- federal or state court -- ought to resolve the questions of state law along with whatever federal law issues may be implicated depending on the results of the state law inquiry, and whether it is possible to recognize the state's interest in protecting its citizens' privacy, while still honoring the principles of federal law that govern the interpretation, application and enforcement of CBA's. The practical effect of the decision below is that state law rights of privacy, and indeed other state law rights, can never be asserted by unionized workers, regardless of whether there is actually a CBA surrendering those rights. Union workers thus become second class citizens, stripped by federal law of any state law privacy protections and entitled to only those privacy protections that their unions obtain in collective bargaining. Indeed, the opinion below precludes the state courts even from determining, as a matter of state law, what role, if any, they would accord the CBA in assessing employee privacy claims, despite the fact that, under the court's analysis, both preemption and removal depend on assumptions about what the state courts would say if they did consider such a case. Although the Ninth Circuit did not assert these propositions, their truth may be seen by considering three hypothetical cases. First, assume a CBA that, as reasonably construed, does not bear on privacy: (1) the company does not agree to any limit on its powers in the area of worker privacy, and (2) the union does not agree to allow the employer to do anything proscribed by the right of privacy. The question then is, how would the California right of privacy be enforced? It could never be litigated in state court because the employer could obtain removal and preemption by asserting (a) that the contract supports its action in some way, (b) that the court has to look at the CBA to decide whether it does in fact support the employer's position, (c) that the need to look preempts the state claim, and (d) that preemption takes the case out of state court. Nor could the state right be enforced in arbitration, because an arbitrator, on ascertaining that the CBA is silent on the question, would hold that he lacks the power to grant relief because his only job is to enforce the agreement. Steelworkers v. Enterprise Wheel & Car, 363 U.S. 593, 597 (1960). Second, assume (1) that the CBA's actual meaning tilts slightly in favor of the employer, (2) that California law would require a state court to give consideration to a CBA as one of many factors bearing on the reasonable expectation of privacy, but (3) that each and every one of the other factors strongly favors the employee so that, if a court were empowered to weigh the CBA in the balance, it would plainly hold that there was nonetheless a reasonable expectation of privacy. Again, (a) the employee could not enforce his state law rights in state court because the case would be removed, (b) he would lose in federal court because of the broad view of preemption taken by the Ninth Circuit, and (c) if the union took the case to arbitration, the arbitrator, whose only job is to enforce the CBA, would have to rule against the employee because the CBA does not grant him a contract-based right, which is the only basis on which the arbitrator may rule in the employee's favor. Third, assume that the CBA actually says that the employer must abide by all state privacy rights. Still, the employer could argue that it construes the CBA to mean something else, and that the case is removable because the courts must look at the CBA to learn whether the employer's argument is correct, and the claim is preempted because the presence of the CBA alone is determinative. In that case an arbitrator could protect the employee, because the CBA incorporates state law, but he could not award the same amount of relief that California deems necessary to deter wrongdoing and compensate victims of tortious discharge -- namely, full compensatory damages (not just back pay) and punitive damages in appropriate cases. In this hypothetical, the CBA grants rights that are parallel to state law, precisely the sort of case that Lingle v. Norge, 486 U.S. 399 (1988), holds is not preempted. Yet under the Ninth Circuit's analysis, the case is removable and the state claims are preempted. The first two hypotheticals are not imaginary. Petitioner's union apparently regarded the first as an accurate description of the CBA here, supra at 2, and respondent never denied that the second was this case; rather, it argued that the question of what the CBA actually provides or whether the other factors outweigh it "has [no] bearing" on the question of preemption. Respondent's Court of Appeals Brief, at 33. And the third hypothetical is simply a logical outgrowth of the first two. The court of appeals discussed the various doctrines independently, but never confronted their combined impact. On the other hand, petitioner's contentions here would provide the courts with mechanisms to vindicate the state interest in protecting its citizens in circumstances where the CBA, whatever the employer may contend it means, does not in fact provide the employer with a defense. Thus, if the case were not removable, the state courts would be able to determine whether, as a matter of state law, the CBA was relevant to the employer's defense and, if so, they would, like the federal courts, apply the principles of federal labor law to that defense, as the constitution requires them to do. Those principles, equally applicable in state and federal court, would include requiring contract questions to be arbitrated, where appropriate. Even if the case could be removed, abstention would allow the federal court to retain jurisdiction to ensure the application of federal labor law principles if the state court's resolution of the state law issue made it necessary to do so. And, regardless of the forum in which the federal law principles were applied, petitioner's preemption analysis would permit the courts to decide those elements of the claims and the defenses that do not depend on federal law, while leaving to federal labor law procedures -- either an arbitration or a judicial determination of "clear and unmistakable waiver" -- the decision about how the CBA bears on the case. The Ninth Circuit ignored these suggested means by which courts could accommodate the federal and state interests that are at stake in cases such as this. Instead, while honoring the federal interests, the lower courts obliterated those of the states. But, beyond this overall result that seriously undermines principles of federalism, as we now show, the rulings below also run counter to decisions of this Court and of other federal circuits. Accordingly, the Court should grant certiorari to prevent the gross and wholly unnecessary infringements of state power that were wrought by the decision below. Removal The court below treated the issue of preemption under section 301 and the right of removal to federal court as one and the same -- all cases in which section 301 preempts state law are removable, and hence the only significant question once removal is sought based on section 301 preemption is whether there is, in fact, preemption. In so holding, the court of appeals not only acted contrary to this Court's opinion concerning removal of cases based on alleged preemption by section 301 in Caterpillar v. Williams, 482 U.S. 386 (1987), but it ignored this Court's analysis of Caterpillar in Oklahoma Tax Commission v. Graham, 489 U.S. 838 (1989). In Caterpillar, employees sued under state law to enforce contracts which, they alleged, were formed by Caterpillar's promises, made to them individually, that they would not be laid off if the plant were closed. Although this Court affirmed the holding that the case was improperly removed, it unanimously rejected the Ninth Circuit's reasoning. Id. at 391 n.4. The Court ruled that, even though a court must determine whether a plaintiff's complaint, properly pleaded, is a federal or state claim, the plaintiff may opt to avoid federal jurisdiction by exclusive reliance on state law. Id. 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 a CBA. Thus, the Caterpillar plaintiffs asserted a breach of individual employment contracts, and even if they could also have asserted claims under the CBA, as masters of their complaint, they were free not to do so. Id. at 393. Because the complaint did not rely on a CBA, or even address the relationship between the individual contracts and the CBA, 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 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 CBA. The Court had previously said that complete preemption under section 301 does not apply when 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. Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1, 25 n.28 (1983). Therefore, the Court held, even if the rule of J.I. Case might ultimately be applied so that the CBA superseded the rights that plaintiffs could otherwise have enjoyed under individual contracts, that federal law defense must be litigated in state court: [T]he 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 . . .. [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. 482 U.S. at 398-399 (emphasis in original). Caterpillar controls the removal issue here. As in Caterpillar, the plaintiff here alleges that his employer violated rights apart from those created by the CBA. As in Caterpillar, the employer defends on the ground that the CBA eviscerates the right that the plaintiff would otherwise enjoy. And, as in Caterpillar, the employer removed the case from federal court on the theory that, because it asserts that the CBA negates plaintiff's state law rights, and that, because the courts will have to examine the CBA in order to resolve this defense, the claim itself arises under section 301 and is removable. Accordingly, as in Caterpillar, the waiver defense does not transform the claim itself into a federal claim that is within a district court's original jurisdiction, and removal is improper. The Tenth Circuit has followed Caterpillar by barring removal of state law claims based on the contention that they were waived in a CBA, Plumbers Local 57 v. Bechtel Power Corp., 834 F.2d 884, 889-890 (10th Cir. 1987), accord, Miller v. Fairchild Industries, 668 F. Supp. 461, 467 (D. Md. 1987) (defendant claimed that supplemental CBA released all claims in connection with plant closing). The Sixth Circuit has also held that the mere fact that, in addressing a defense based on an interpretation of a CBA, the state court might ultimately hold that a plaintiff's claim is preempted, does not warrant removal of that claim to federal court. Smolarek v. Chrysler Corp., 879 F.2d 1326, 1333-1334 and n.3 (6th Cir. 1989) (en banc) (case remanded even though interpretation of CBA might show absence of discriminatory animus). District court decisions in other circuits have reached that conclusion as well. E.g., Machinists Local 967 v. General Elec. Co., 713 F. Supp. 547, 554-555 (N.D.N.Y. 1989) (same); Glass Molders v. Wickes Cos., 707 F. Supp. 174, 178 (D.N.J. 1989). The decision below conflicts with each of these decisions, as well as with Caterpillar itself. The court of appeals distinguished Caterpillar, saying that there this Court forbade removal because plaintiffs' claims "involved jobs outside the bargaining unit and were based on the argument that the CBA did not apply to plaintiffs at all." Pet App. 9a. This distinction not only has the effect of confining Caterpillar to its facts, but is erroneous. In Caterpillar the employer argued that plaintiffs there were suing on promises that had been made while they were in the bargaining unit, but this Court ruled that the distinction was "irrelevant to the removal question. . . . [The] state law claims might be preempted by the NLRA, but they would not be transformed into claims arising under federal law." 482 U.S. at 398 n.12. As for the fact cited by the court below -- that in Caterpillar the employees' claims "were based on the argument that the [CBA] did not apply," Pet. App. 9a -- petitioner, too, argues that the CBA does not preclude his privacy claim, just as the Caterpillar plaintiffs contended with respect to their contractual claims. The employers in both cases, of course, argued that it would be necessary to consider the CBA because the CBA could supersede the state law right, but this Court held that the question of whether the CBA was relevant had to be litigated in state court. Nor can it matter, for jurisdictional purposes, whether the CBA enters the case through a "waiver" defense or because it is one of many factors that a court considers in determining whether there is a reasonable expectation of privacy. In either case, if petitioner presented his evidence showing a reasonable expectation of privacy but failed to mention the CBA, his case would not be dismissed for that reason. Rather, respondent would submit the CBA as part of its case. Accordingly, under either view of state law, it is respondent that raises the CBA as a defense, and the claim itself does not arise under state law, and hence the preemption argument must be made in the state court, to which this case should have been remanded. The lower court also refused to apply Oklahoma Tax Commission because the facts of that case did not involve section 301. See Pet. App. 9a. But petitioner cited Oklahoma Tax Commission, not because of any factual similarity, but because of the way it characterized Caterpillar, which was at odds with the way the Ninth Circuit has understood the case. Thus, in Oklahoma Tax Commission, this Court described Caterpillar as a case in which: 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. 489 U.S. at ---. Similarly, here, even if the CBA were to provide respondent with a complete defense against Stikes' privacy claims, the privacy claims do not arise under federal law. In both Franchise Tax Board and Caterpillar, this Court unanimously corrected the Ninth Circuit's misstatements of the law of removal based on preemption. Not only has the Ninth Circuit now refused to accept this Court's characterization of its own holding in Caterpillar, but in a line of cases stretching back to the year Caterpillar was decided, e.g., Young v. Anthony's Fish Grottos, 830 F.2d 993 (9th Cir. 1987), that court has essentially disregarded Caterpillar by confining it to its facts. The court below felt free to disregard Oklahoma Tax Commission's analysis because the Ninth Circuit had analyzed Caterpillar before Oklahoma Tax Commission was decided, and the treatment of Caterpillar in the latter case was seen as mere dictum. Our suggestion of rehearing en banc sought to correct these abuses, but it was denied without opinion ten weeks after it was filed. At this point, only this Court can rescue litigants in the Ninth Circuit from the persistent refusal of the court below to come to terms with Caterpillar. We urge the Court to grant certiorari to bring that court back into line with the law of federal jurisdiction.(3) Preemption The court below also held that the possibility that a CBA might be relevant, under state law, to the question whether state privacy rights were waived, operated as a complete bar to even the attempt to litigate those state law privacy claims. That ruling is also contrary to the reasoning of several other circuits, as well as to the discussion of cases involving questions of both state and federal law in Lingle v. Norge, 486 U.S. 399 (1988). Accordingly, certiorari should be granted to consider this question as well. Section 301 assigned the development of a federal common law of CBA's to the federal courts, Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957). Petitioner recognizes that the application of state contract law to determine the meaning of CBA's would be inconsistent with the need for uniform principles of law to govern those agreements. Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962). This Court has also held that, when a plaintiff asserts a tort claim which turns on the contention that the defendant has violated either the CBA itself, or a duty assumed in the CBA, the principles of federal law must govern the enforcement of that claim despite the fact that the plaintiff denominates the claim as one in "tort" under state law, rather than as one in "contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) (tortious breach of contractual duty); IBEW v. Hechler, 481 U.S. 851 (1987) (alleged duty assumed in CBA); Steelworkers v. Rawson, 110 S. Ct. 1904 (1990) (implied duty based on CBA). In such a case, the state law tort claim is "substantially dependent on analysis of the CBA," Caterpillar, supra, 482 U.S. at 394. But the Court has never done what the court below did here, i.e., hold that a substantive state law granting important rights to employees is completely superseded by the mere existence of the CBA, without even examining its language or effect. To the contrary, in Lingle v. Norge, 486 U.S. 399 (1988), this Court recognized that some CBA-related issues may have to be decided in the course of litigating state law claims, but that necessity did not preempt the underlying cause of action itself. Even the waiver issue raised in this case 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 409 n.9. According to this 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., 486 U.S. at 409 n.9. The possible need to refer to the CBA did not preempt the state law claims, as the panel here believed; nor did the Court say that the issue of whether a CBA waives state law involves the interpretation of a CBA on the theory that it arises under section 301, 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 unmistakable' evidence." Id. (emphasis added). The Court made a similar point when discussing the possible need to refer to a CBA in order to formulate a 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. 486 U.S. at 413 n.12 (emphasis added). Since Lingle was decided, the lower courts have wrestled with the question how much "dependence" on a CBA is too much to avoid preemption, and how much a state law claim may require interpretation of a CBA, yet still permit the "separate state law analysis" to be litigated in court while deferring to federal law principles to interpret the CBA. Several other circuits have resolved this question in ways that are inconsistent with the Ninth Circuit's approach, which is that any need to look at a CBA is too much. Thus, for example, in cases in other circuits involving retaliatory discharges in violation of public policy, of the sort that this Court held was not preempted in Lingle, employers frequently claim that the real reason for the discharge was based on something that the contract expressly forbids, such as excessive absenteeism. In order to address this defense, the employee must show that the alleged contractual reason either does not exist or is a charade. In either event, the employer's assertion of the CBA responds to one of the elements of the employee's claim (i.e., bad motive), but the circuits are unanimous that such reference to the CBA is not enough to preempt state law claims. Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (6th Cir. 1989) (en banc) (handicap discrimination claim); Pantoja v. Texas Gas & Transm., 890 F.2d 955 (7th Cir. 1989) (claim of retaliation for earlier suit based on CBA); Hanks v. General Motors, 906 F.2d 341, 344 (8th Cir. 1990) (emotional distress claim); see also Brown v. Holiday Stationstores, 723 F. Supp. 396, 405-406 (D. Minn. 1989); Machinists Local 967 v. General Elec. Co., 713 F. Supp. 547, 554-555 (N.D.N.Y. 1989). But, if the decision below is correct, the fact that the CBA might undercut an element of the plaintiff's claim (here, the "reasonable expectation" of privacy), would be sufficient to require complete and automatic preemption of the state law claim. The decision below is also contrary to decisions in other circuits that have allowed state law claims to go forward, despite the fact that the claim could be undermined by an interpretation of the CBA, where, after application of federal law principles, it is decided that the CBA, as correctly construed, does not actually undercut the state law claim. The Seventh Circuit, for example, has ruled that, if employers raise a defense that a CBA supersedes a state right enjoyed by employees generally, the CBA-related defense should be arbitrated, and then the state claim is to be considered if the arbitral result so allows. Matter of Chicago, Milwaukee RR Co., 852 F.2d 960, 967-968 (7th Cir. 1988). See also Dougherty v. Parsec, 872 F.2d 766 (6th Cir. 1989) (after arbitrator decided CBA not violated, court could decide remaining tort issues); Makray v. Sara Lee Corp., 736 F. Supp. 793, 798-800 (N.D. Ill. 1990) (court decided whether CBA waived state law rights, and found no preemption because CBA was too ambiguous to meet Metropolitan Edison standard for waiver).(4) A similar procedure should be used to assess respondent's contentions with respect to the CBA here. There is no reason to think that Congress intended to decree that a mere assertion that a CBA undercuts a state claim suffices to plunge that claim into a black hole from which it can never be considered. Under the panel's holding, union employees are deprived of rights that state law accords to employees generally, even if, in fact, the CBA, as correctly construed, would not aid the employer's case. See supra 11-15. It is only the most poorly counseled employer who cannot find a way to bring a CBA-related consideration into a discharge case, and so the rule adopted by the court below could completely vitiate the power of states to protect unionized employees. Indeed, if the law of federal preemption is that any state law that takes cognizance of the CBA as one of many factors in deciding whether an employer has misbehaved is completely preempted, the result may be to discourage states from allowing their courts to take that factor into account, thus undercutting rather than advancing collective bargaining over such issues. Because there is no reason to believe that Congress intended to preempt completely all state law where a CBA might, but also might not, undercut the state law claim, and because other courts have reached different conclusions about how Lingle ought to be applied in such circumstances, the Court should grant certiorari to review the preemption question presented here. The petition for a writ of certiorari should be granted. Paul Alan Levy (Counsel of Record) Alan B. Morrison Public Citizen Litigation Group
Robert N. Jacobs
Attorneys for Petitioners March 12, 1991 1. Indeed, the cases discussing the federal constitutional protections against drug-testing also proceed without the slightest reliance on the CBA's that cover those workplaces. E.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Coppinger v. Metro North, 861 F.2d 33 (2d Cir. 1988). 2. This case was filed as a class action, and John Doe defendants were named under California procedure. However, because of the course of the litigation, which quickly focused on the preemption issue, the specific defendants were never identified and served. In this petition, Stikes alone is identified as "petitioner", and Chevron as "respondent." 3. If federal courts had jurisdiction over claims such as petitioner's, the abstention doctrine would provide yet another way in which the federal courts could ensure that the state courts had the final say on whether the CBA was relevant to the privacy issue under state law. Contrary to the holding of the court below that preemption is not a sufficient "constitutional" question to warrant application of the abstention doctrine, this Court has abstained to avoid the need to decide whether state law claims were preempted, e.g., AFL v. Watson, 327 U.S. 582, 593-599 (1946); see also Metlakatla Indian Cmnty. v. Egan, 363 U.S. 555, 561-563 (1960), and other courts have done so as well. Druker v. Sullivan, 458 F.2d 1272, 1274 (1st Cir. 1972); Street, Electric Railway Div. 1287 v. Dalton, 206 F. Supp. 629, 634 (E.D. Mo. 1962) (three-judge court). Even the Ninth Circuit, in a decision, cited by petitioner below but ignored by the panel, has held that federal labor law preemption questions should be avoided through abstention. IBEW v. Public Serv. Comm., 614 F.2d 206, 213 (9th Cir. 1980). 4. Indeed, in 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), the court examined the record of the parties' negotiations and decided that there was no agreement about the applicability of the state law right at issue there. This Court's dismissal of the employer's preemption appeal for want of a substantial federal question is binding precedent here. more resources
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