Lloyd W. Cramer; Daniel E. Lipich, Plaintiffs-appellants, v. Consolidated Freightways Inc., Defendant-appellee.guillermo Alfaro, Plaintiff,anddennis R. Blevins; Ray R. Casio; Steve Cunningham; Rick Dewoody; Alejandro Garcia; David v. Garcia; Raul C. Garcia; James A. Greco; Bruce A. Harvey; John K. Hatfield; Robert W. Hatfield; Lee A. Ingram; Zeno King, Jr.; John L. Lacroix; Gregory A. Landavazo; Melvin Leo Lewis; Enrique Lopez; Herbert Marcus; Ignacio v. Ochoa; Brian K. Pagne; Manuel Parra; James A. Proitte; Carlos Rivera; Harold James Taylor, Jr.; Thomas A. Scott; David W. Stephens; J.b. Stewart; Alfonso Wagner; Larry A. Wells; Robert P. Williams; Eric J. Wright; William A. Yesford; Miguel Abarajas; Sandra Ray Ambrose; Guillermo Amesola; Abelardo Apuan; Michael Vincent Arbanas; Carlos Argandora; Jose Abriero; Marcario Acellano; Fernando Avila; Michael E. Bannan; Arnold A. Barajas; Robert Barras; Mike Bartley; David Barton; Jan K. Beber; William Otis Beggs; Craig Anthony Berlene; Paul Eugene Boatwright; Brigido Bolivar; Raymond Bonia; Richard Boon; Roger J. Brass; Gary Brooks; Michael D. Brown; Joanne Brummer; Scott Bubier;eduardo S. Cardenas; Manuel Cardona; Mario Carillo; Harris A. Carter; Richard Ceniceros; Jack Clark; Kenneth L. Clark; Fernando A. Clavijo; Robert L. Clinton; Richard Contreras; Rance D. Cooper; Anthony Cordero; Armando Cordero; John L. Cordero; Rudy H. Couthart; Charles Davidson, Ii; Thomas Dersghy; Philip Digenova; Charles Dirner; Jimmy Dixon; al Dorame; Eddie Shepherd; Clifford J. Felton; Mike Fitzgerald; Jose Luis Flores; Rafael O. Flores; Ed Foor; Jerry France; Albert Alex Franco; Ramon B. Franco; Michael Gambino; Anthony Gapdora; Rober T. Garcia; Donald K. Glover; David P. Gomez; Manuel E. Gonzales; Gerald W. Goodwin; Devin Jonathan Gordon; Jonathan J. Gordon; Jerry Goforth; Bernal Gregetz; Jose Gutierrez; Jesse D. Haley; James Harper, Jr.; Sandra Heatley; Patrick L. Heron, Jr.; Randall William Hobbs; Narvell E. Hooks; Steve Hopkins; Tim Hosea; Gayle Lynn Hampton; James Hurlburt; John W. Jackson; James Robinson; William Jarrell; Alfredo Jimenez; Gary E. Johnson; Peter Karaban; Robert M. Kirkland; Larry Rissel; Cary Knight; Anne M. Knutzen; Patrick J. Knutzen; Ervin Kroll; Frank P. Lagumina; Herclio Lemus; Eloria Reyes; Richard E. Lucero; Enrique Mancilla; Clifford E. Maples; Guillermo Martin; Reguio Martin; Gilbert M. Martinez; Ronald A. Matthews; David E. May; Michael J. Mccarthy; Don R. Mcclary; William R. Mcfarland; Saul A. Mckechan; P.l. Medina; Pedro A. Monge; Alfred Montoya; Arthur Mora; Marcos Morales; Roy L. Mcfoot; Dewayne Mortensen, Ii; Mark Mulhern; Oscar Munoz; John Murray; Rayno Norducci; Hector Ochoa; Jorge Ochoa; Michael O'neal; Luis E. Ortega; Gilbert George Ortiz; Victor Parker; David Perales; Isidro Perales; Robert Portillo; Robin J. Quigley; Joseph R. Quilty, Ii; Robert Reynoso; Bryan Richard; Carlos Orozco Rivas; Gilbert C. Rivera; Howard Robinson; Audias Rodriguez; Hugo Rodriguez; Ruben Rodriguez; Tomas A. Rodriguez; John Rojas; Javier Roman; Armando Romero; Robert A. Rosas; Eugene A. Rose; Francisco J. Ruiz; C.w. Ryan; Catherine Schatz; Dennis Schatz; Steven Schilling; Norman W. Schoolcraft; Ernie Scolari; John P. Sorouse; Joseph Selcho; James Shinn; Nathan Shropshire; Richard F. Shumway; David Manual Sierras; David H. Smith, Jr.; Robert P. Smith; Clarence Satterland; James Bobby L. Stone; Alejandro Tirado; Fabrizio Torres; Brian Unzicker; Frank Valdez; Mario A. Vasquez, Jr.; Mario A. Vasquez, Sr.; Richard J. Vargas; Alexander Villa, Jr.; Guadalupe Reyes Waggoner; Waymond A. Walker; Robert Welsh; William M. Weston, Jr.; Robert Fritz Westreicher; Judy Len Wilson; Gary Wayne Yates; Denna Jean Yasania; Donald Ray Yoder; Lyle Archibald; Ewald Barth; Leroty O. Bell; Henry Camacho; Nick J. Carender; K.w. Carrithers; Jose Casillas; Armando Coronado; Richard Cota; Donald K. Cronk; Richard Joseph Diaz; Jack E. Dobson; Francisco Esparza; Jose C. Flores; Ernest W. Frick; Rudy Gomez; Joseph Gonzales; Michael Groom; Joaquin Hernandez; John Alfred Hill; Terry L. Johnson; Oscar H. Martin; , 255 F.3d 683 (9th Cir. 2001)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 255 F.3d 683 (2001)

Argued and Submitted En Banc December 18, 2000--San Francisco, CaliforniaFiled June 15, 2001


Jay Cordell Horton, Malena R. Leclair and Susan Ghormley, Horton, Barbaro & Reilly, Santa Ana, California, for plaintiffs-appellants Cramer et al., and Matthew L. Taylor and Michael D. Myers, Myers, Taylor & Siegel, Claremont, California, for plaintiffs-appellants Alfaro et al. and Hoffman et al.

Louise Ann Fernandez, Robert E. Mangels, Marc Marmaro, and Neil O. Andrus, Jeffer, Mangels, Butler & Marmaro, Los Angeles, California, and William A. Norris and Edward P. Lazarus, Akin, Gump, Strauss, Hauer & Feld, Los Angeles, California, for the defendants-appellees.

Appeals from the United States District Court for the Central District of California Irving Hill, District Judge, Presiding* D.C. No. CV-97-07860-IH, D.C. No. CV-98-00331LHM(ANx), D.C. No. CV-98-00332LHM(ANx)

BEFORE: Mary M. Schroeder, Chief Judge, Harry Pregerson, Stephen Reinhardt, Diarmuid F. O'Scannlain, A. Wallace Tashima, Sidney R. Thomas, M. Margaret McKeown, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez and Richard C. Tallman, Circuit Judges.

Opinion by Judge Fisher; Concurrence by Judge Tallman; Dissent by Judge O'ScannlainFISHER, Circuit Judge.

1

This appeal requires us to decide whether a plaintiff's state law privacy claim, based on California's penal code, is preempted under §§ 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. §§ 185. Resolution of this issue, in turn, leads us to clarify our Circuit's approach to §§ 301 preemption. We hold that because plaintiffs' privacy claims are not even arguably covered by the collective bargaining agreement ("CBA"), the claims are independent of the CBA and thus are not subject to §§ 301 preemption. Moreover, we hold that when an employer's surreptitious surveillance constitutes a per se violation of established state privacy laws, the employees affected thereby may bring an action for invasion of privacy regardless of the terms of the collective bargaining agreement governing their employment.

2

Consolidated Freightways ("Consolidated"), the defendant in this action, is a large trucking company.1 It concealed video cameras and audio listening devices behind two-way mirrors in the restrooms at its terminal in Mira Loma, California, ostensibly to detect and prevent drug use by its drivers. Employees at the terminal discovered the surveillance equipment when a mirror fell off the men's restroom wall, exposing a camera with a wire leading out through a hole in the wall behind it. Subsequent investigation revealed a similar hole in the wall behind the mirror in the adjoining women's restroom.

3

Under California Penal Code §§ 653n, "[a]ny person who installs or who maintains . . . any two-way mirror permitting observation of any restroom, toilet, bathroom, washroom, shower, locker room, fitting room, motel room, or hotel room, is guilty of a misdemeanor." Thus, Consolidated's installation of the two-way mirror was a direct violation of California criminal law.

4

Soon after discovery of the camera, truck driver Lloyd Cramer, an employee at the Mira Loma terminal, brought a class action suit in state court alleging invasion of privacy on behalf of all "individuals lawfully on the premises . . . who had a reasonable expectation of privacy while using[Consolidated's] restrooms." Guillermo Alfaro, another Consolidated employee, and 281 others brought a separate suit seeking damages for invasion of privacy and infliction of emotional distress. They also sought injunctive relief to end the use of the surveillance devices.

5

Consolidated removed both cases to federal court, contending that plaintiffs' state claims were preempted under §§ 301 of the LMRA because the claims required interpretation of the CBA between Consolidated and its employees' union to determine the employees' reasonable expectations of privacy. The cases were consolidated in the district court (as they have been for purposes of appeal).

6

Consolidated then moved to dismiss both cases, arguing that they were preempted by §§ 301. Cramer moved for class certification, and Alfaro, joined by Cramer, filed a motion to remand for lack of jurisdiction. The district court denied Alfaro and Cramer's motion to remand, granted Consolidated's motion to dismiss Cramer's suit, granted Consolidated's motion to dismiss Alfaro's suit as to all but nine plaintiffs who were not Consolidated employees, remanded the claims of the nine nonemployees to state court and denied Cramer's certification motion as moot. This appeal followed.

7

We have jurisdiction under 28 U.S.C. §§ 1291. We review a district court's finding of preemption under §§ 301 de novo. Audette v. ILWU, 195 F.3d 1107, 1111 (9th Cir. 1999). We reverse.

8

The history of §§ 301 preemption doctrine is well known, but worth summarizing again to explain how we have arrived at the current state of the law and to provide context for our discussion. As this court has noted, "[f]amiliarity [with the subject matter] has not bred facility." Galvez v. Kuhn, 933 F.2d 773, 774 (9th Cir. 1991).

9

Section 301 is on its face a jurisdictional statute, under which "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties." 29 U.S.C. §§ 185(a). Soon after passage of the LMRA, the Supreme Court ruled that §§ 301 authorized the federal courts to develop a federal common law of CBA interpretation. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451 (1957). The Court subsequently held that this federal common law preempts the use of state contract law in CBA interpretation and enforcement. Local 174, Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962).

10

In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), the Court expanded application of §§ 301 preemption beyond cases specifically alleging contract violation to those whose resolution "is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract." Id. at 220. Allis-Chalmers involved an employee's suit alleging his employer had handled his claim for disability benefits in bad faith, thereby violating state tort law. Id. at 206. Because the method of handling disability claims was specified in the CBA governing Lueck's employment, the Court interpreted his claim as essentially a recharacterized action for breach of the CBA, and held that it was preempted under §§ 301. Id. at 215 ("[I]t is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers' conduct breached that implied contract provision.").

11

The Court reiterated its test for preemption in Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). Although acknowledging that "the pre-emptive force of §§ 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization," the Court explained that §§ 301 preempts only "claims founded directly on rights created by collective-bargaining agreements, and also claims `substantially dependent on analysis of a collective-bargaining agreement.' " Id. at 394 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983) (internal quotation marks omitted); Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3 (1987)). The Court made clear that the complaints of employees covered by a CBA were not preempted if their claims were unrelated to the terms of the CBA, specifically rejecting the employer's contention that "all employment-related matters involving unionized employees be resolved through collective bargaining and thus be governed by a federal common law created by §§ 301." Id. at 396 n.10 (internal quotation marks omitted). Moreover, the Court held that a defense based on the terms of a CBA is not enough to require preemption: "[A ] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated." Id. at 399.

12

Attempting to clarify when claims are preempted under §§ 301, Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988), held that states may provide substantive rights to workers that apply without regard to a CBA; a state court suit seeking to vindicate these rights is preempted only if it "requires the interpretation of a collective-bargaining agreement." Id. at 413. In Lingle, the plaintiff's union had filed a grievance alleging discharge without just cause against her employer pursuant to a CBA at the same time the plaintiff had filed a suit in state court for retaliatory discharge. The Court held that the plaintiff's suit was not preempted:"[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the statelaw claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for §§ 301 pre-emption purposes." Id. at 409-10. The Court took pains to note that even if the CBA refers to the state law substantive right at issue, the claim is not preempted so long as it may be litigated without reference to the CBA. "[T]he mere fact that a broad contractual protection against discriminatory -or retaliatory -discharge may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state law violation dependent upon the terms of the private contract." Id. at 412-13.

13

Finally, Livadas v. Bradshaw, 512 U.S. 107 (1994), summarized and advanced the state of preemption doctrine. Livadas explained:

14

[T]he pre-emption rule has been applied only to assure that the purposes animating §§ 301 will be frustrated neither by state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," nor by parties' efforts to renege on their arbitration promises by "relabeling" as tort suits actions simply alleging breaches of duties assumed in collective-bargaining agreements.

15

In [Allis-Chalmers] and in Lingle . . . we underscored the point that §§ 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law, and we stressed that it is the legal character of a claim, as "independent" of rights under the collectivebargaining agreement (and not whether a grievance arising from "precisely the same set of facts " could be pursued) that decides whether a state cause of action may go forward. Finally, we were clear that when the meaning of contract terms is not the subject of dispute, the bare fact that a collectivebargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.

16

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

17

Based on these principles, Livadas held that because the plaintiff's claim required the court only to "look to" the CBA to determine her rate of pay, there was not even a"colorable argument" for preemption, because her claim was"entirely independent of any understanding embodied in the collectivebargaining agreement between the union and the employer." Id. at 124-25. Even though the Court looked to the CBA to determine the absence of a waiver of state law protections, it concluded that preemption was not required. See id. at 125.

18

The demarcation between preempted claims and those that survive §§ 301's reach is not, however, a line that lends itself to analytical precision. As the Supreme Court acknowledged in Livadas, "[T]he Courts of Appeals have not been entirely uniform in their understanding and application of the principles set down in Lingle and [Allis-Chalmers]." Id. at 124 n.18. And little wonder. "Substantial dependence" on a CBA is an inexact concept, turning on the specific facts of each case, and the distinction between "looking to" a CBA and"interpreting" it is not always clear or amenable to a bright-line test. See Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108-09 (9th Cir. 2000); Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993). Nevertheless, the interpretive principles the Supreme Court has articulated help guide us through the analytical thicket.

19

If the plaintiff's claim cannot be resolved without interpreting the applicable CBA -as, for example, in AllisChalmers, where the suit involved an employer's alleged failure to comport with its contractually established duties -it is preempted. See also Hechler, 481 U.S. at 861-62.2 Alternatively, if the claim may be litigated without reference to the rights and duties established in a CBA -as, for example, in Lingle, where the plaintiff was able to litigate her retaliation suit under state law without reference to the CBA -it is not preempted. See also Livadas, 512 U.S. at 124-25. The plaintiff's claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the plaintiff's claim. If the claim is plainly based on state law,§§ 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense. See Caterpillar, 482 U.S. at 398-99.

20

Moreover, alleging a hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim: adjudication of the claim must require interpretation of a provision of the CBA. A creative linkage between the subject matter of the claim and the wording of a CBA provision is insufficient; rather, the proffered interpretation argument must reach a reasonable level of credibility.3 Cf. Livadas, 512 U.S. at 124-25. The argument does not become credible simply because the court may have to consult the CBA to evaluate it; "look[ing] to" the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption. Id. at 125.

21

Where a party defends a state cause of action on the ground that the plaintiff's union has bargained away the state law right at issue, the CBA must include "clear and unmistakable" language waiving the covered employees' state right "for a court even to consider whether it could be given effect." Livadas, 512 U.S. at 125 (citing Lingle, 486 U.S. at 409-10 n.9). Thus, a court may look to the CBA to determine whether it contains a clear and unmistakable waiver of state law rights without triggering §§ 301 preemption.

22

Given this analytical framework, we conclude that several of our Circuit's opinions -all of which were decided before Livadas -state preemption principles that need to be clarified and corrected. In Utility Workers of America, Local No. 246 v. Southern California Edison Co., 852 F.2d 1083 (9th Cir. 1988), we held a union's allegation that an employer's unilaterally instituted drug testing policy violated the California Constitution was preempted because resolution of the claim was substantially dependent on analysis of the applicable CBA; but we went on to suggest that the claim was preempted because it "constitute[d] a properly negotiable subject for purposes of collective bargaining."4 Id. at 1086. Similarly, in Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988), we upheld dismissal on §§ 301 preemption grounds of an employee's suit challenging his employer's drug and alcohol testing program and his subsequent suspension for failing to participate. We held the testing to be "a working condition whether or not it is specifically discussed in the CBA," and noted that "[a]lthough the manner of discovering employee intoxication is not in the current CBA, the reference to `intoxication' seems to identify this arena as a subject for the collective bargaining process." Id. at 433; see also Schlacter-Jones v. General Tel., 936 F.2d 435, 441 (9th Cir. 1991) (characterizing plaintiff's claim in part as one that "cannot be assessed without examining the CBA to determine whether the Drug Policy was a valid term and condition of employment"); Stikes v. Chevron USA, Inc., 914 F.2d 1265, 1268, 1270 (9th Cir. 1990) (relying in part on Utility Workers and Laws to find privacy claim preempted; stating that "even if the California courts were to find the privacy right non-waiveable, the right is not absolute and its scope would involve consideration and possible interpretation of the collective bargaining agreement."). Taken together, these cases suggest that the preemptive force of §§ 301 is so strong that preemption must occur simply because the state right in question "is a properly negotiable subject for purposes of collective bargaining." Utility Workers, 852 F.2d at 1086.

23

In light of the principles we have reviewed, however, it is clear that this formulation of the standard would expand the scope of §§ 301 preemption far beyond the limits established in Lingle and Livadas, both of which caution against such a sweeping interpretation. See Livadas, 512 U.S. at 122-24 (rejecting the argument that enforcement of a generally applicable state law in cases involving union employees would improperly intrude on the collective bargaining process); Lingle, 486 U.S. at 409-10 (holding that the Illinois law protecting employees against retaliatory termination was not preempted, even though the employer's rationale for firing an employee necessarily related to "working conditions"). Regardless of whether drug testing is a "properly negotiable subject of collective bargaining" in the abstract, the relevant inquiry under Livadas and Lingle should have been whether the resolution of the employee's state law privacy challenge necessarily required interpretation of relevant provisions of the CBA. To the extent our prior cases held or implied that preemption was proper because of the mere possibility that the subject matter of the claim was a proper subject of the collective bargaining process, whether or not specifically discussed in the CBA, we today hold such statements to be an incorrect articulation of §§ 301 preemption principles. A state law claim is not preempted under §§ 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute.

24

We turn now to the specifics of the case before us. In arguing in favor of dismissal, Consolidated cites provisions of the CBA it negotiated with the International Brotherhood of Teamsters, Local No. 63, claiming these provisions brought its covert surveillance within the purview of the CBA. Article 26, Section 2 of the agreement forbids the use of camera surveillance for disciplinary reasons except to prove a charge of property theft or dishonesty. The section also specifies the procedure to be employed for the use of videotapes in the context of theft or dishonesty allegations.5 Article 35, Section 3 discusses alcohol and drug use and the procedures to be employed for drug testing. Consolidated contends that any employee claim based on its covert restroom surveillance requires recourse to these provisions of the CBA to determine the employees' reasonable expectations of privacy. Without such an analysis, Consolidated argues, the court would be unable to determine whether these expectations were violated.

25

As discussed above, we may look to a CBA to determine whether a plaintiff's claim necessarily implicates its terms without "interpreting" the agreement, as that word is used in the context of §§ 301 preemption. See Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d 1401, 1409-10 (9th Cir. 1992); see also Balcorta, 208 F.3d at 1108; Ramirez, 998 F.2d at 748. Doing so here, we find Consolidated's argument unpersuasive. The plaintiffs based their claims on the protections afforded them by California state law, without any reference to expectations or duties created by the CBA. Their claims are neither founded directly upon rights conferred in the CBA nor "substantially dependent upon" interpretation of the CBA terms. Caterpillar, 482 U.S. at 394. Rather, those claims are based on California's constitutional and statutory rights of privacy guaranteed to all persons, whether or not they may happen to work subject to a CBA. Although some such rights of privacy might well be subject to negotiation and be conditioned by the terms of a CBA, that is not the case here. The claims are independent of the CBA and not subject to §§ 301 preemption.

26

Consolidated's insistence that we must refer to the CBA because one provision mentions drug use and another contemplates the use of surveillance videotapes in certain specified circumstances does not change our analysis. Neither of these provisions purports to have any bearing on secret spying on Consolidated's employees in company restrooms -no matter how well-intentioned Consolidated's alleged purpose may have been in doing so. Indeed, the surreptitious nature of the violation of plaintiffs' privacy belies any notion of bargaining or consent to hidden cameras behind two-way mirrors. Consolidated cannot create a dispute as to the meaning of the terms of the CBA by picking out terms that refer to videotapes and drug use, particularly when a cursory examination of those provisions makes clear they apply to a completely different context and set of circumstances.6 In short, this is a classic example of a defendant's attempt to "inject[ ] a federal question into an action that asserts what is plainly a state-law claim [in order to] transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated." Caterpillar, 482 U.S. at 399. The Supreme Court has instructed that we are not to reward defendants who engage in such hypothetical exercises. See id.7

27

We need not "interpret" the CBA to see that it does not contemplate the surreptitious videotaping plaintiffs challenge in their state law claim. Consulting the CBA reveals the absence of such a provision. The district court's determination that the claim was preempted under §§ 301 was therefore erroneous.

28

Even if the CBA did expressly contemplate the use of two-way mirrors to facilitate detection of drug users, such a provision would be illegal under California law, and it is well established in California that illegal provisions of a contract are void and unenforceable. See Hedges v. Frink , 163 P. 884, 885 (Cal. 1917); Holm v. Bramwell, 67 P.2d 114, 117 (Cal. Dist. Ct. App. 1937). Section 653n of the California Penal Code makes the installation and maintenance of two-way mirrors permitting the observation of restrooms illegal without reference to the reasonable expectations of those so viewed. Determination of guilt under the statute is not dependent on context or subjective factors; use of the mirrors is a per se violation of the penal code, and an assumption that the mirrors will not be used is per se reasonable. See In re Deborah C., 635 P.2d 446, 452 n.9 (Cal. 1981); People v. Metcalf, 98 Cal. Rptr. 925, 927 (1971).8

29

Under settled Supreme Court precedent, "§§ 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law." AllisChalmers, 471 U.S. at 212; see also Galvez v. Kuhn, 933 F.2d 773, 777 (9th Cir. 1991) (noting that a state prohibition of illegal conduct applies regardless of the terms of a particular contract). Consolidated was therefore required to abide by the provisions of California penal law, and its employees had a right to assume their employer would obey the law.9 This assumption is inherently reasonable. Indeed, any contrary assumption would be irrational, because illegal behavior is unreasonable. See Miller v. AT&T Network Sys. , 850 F.2d 543, 550 n.5 (9th Cir. 1988) (explaining that criminal behavior is, by virtue of its illegality, per se unreasonable). Even if the CBA purported to reduce or limit this expectation in some way, that reduction would be illegal and therefore unenforceable. Because installation of two-way mirrors is immutably illegal, and freedom from the illegality is a "nonnegotiable state-law right[ ]," a court reviewing plaintiffs' claims that their privacy rights were violated need not interpret the CBA to arrive at its conclusion. Allis-Chalmers, 471 U.S. at 213. By definition, therefore, plaintiffs in this action were reasonable in expecting to be free of the two-way mirrors and hidden video cameras installed in the restrooms.

30

Consolidated argues that, under California law, violation of a right to privacy is necessarily context-dependent; if an individual consents to a certain action, even an invasive one, she cannot then claim her privacy rights were violated by the action. See Stikes, 914 F.2d at 1270. It cannot substantiate this blanket proposition. The cases Consolidated cites in support of its position involved mandatory drug testing in the workplace. See Schlacter-Jones, 936 F.2d at 437; Utility Workers, 852 F.2d at 1085; Laws, 852 F.2d at 433. To the extent the result in any of these cases may have been correct under the law as set forth in today's opinion, that result is irrelevant to the question before us. The conduct at issue here is fundamentally distinct from the imposition of mandatory urinalysis. When companies employ drug testing, the parameters of the tests are often outlined in CBAs so that employees know exactly what to expect. Moreover, drug testing, unlike covert restroom surveillance, is not performed surreptitiously and --most importantly -is not illegal under state law.

31

In any event, Consolidated relies on the expansive language in our earlier decisions which we have today disavowed --indicating that challenges to drug testing must be preempted because drug testing is "a properly negotiable subject for purposes of collective bargaining." Utility Workers, 852 F.2d at 1086. As discussed above, this language is not controlling; indeed, the Supreme Court came to precisely the opposite conclusion in Lingle: "[E]ven if dispute resolution pursuant to a collective bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for §§ 301 purposes. " 486 U.S. at 409-10. That a claim involves an issue theoretically subject to collective bargaining is irrelevant if the specific claim at issue may be resolved without interpretation of the CBA. See Balcorta, 208 F.3d at 1108 n.10.

32

Nor does California state court precedent support Consolidated's argument about the necessarily contextual nature of determinations concerning privacy rights. The California Supreme Court held in Hill v. National Collegiate Athletic Association, 865 P.2d 633 (Cal. 1994), that the NCAA's drug testing program did not violate student athletes' rights to privacy. This holding was based in part on the open and consensual nature of the testing, the complete information about the testing given to the athletes and the opportunity afforded them to refuse to participate. Id. at 26. Nothing in Hill suggests that all privacy determinations turn on issues of consent. Significantly, the court noted that the plaintiffs did not allege the NCAA's program was "contrary to law or public policy."10 Id., 26 Cal.Rptr.2d 834, 865 P.2d at 660. In this case, conversely, plaintiffs made just such an allegation. Furthermore, their contention is supported by California law. The California Supreme Court has described §§ 653n as "express[ing] a legislative policy against `clandestine observation of public restrooms,' rendering it`reasonable for users thereof to expect that their privacy will not be surreptitiously violated.' " Deborah C., 635 P.2d at 452 n.9 (quoting Metcalf, 98 Cal. Rptr. at 927). Issues of privacy implicated by drug testing programs may well be contextdependent. Issues of privacy implicated by the use of two-way mirrors for surreptitious surveillance are not.

33

Because a CBA cannot validly sanction illegal action, we hold the terms of the CBA were irrelevant to plaintiffs' claim of privacy violation. The district court's finding of preemption was therefore improper.

34

Alfaro and his co-plaintiffs also alleged a claim of intentional infliction of emotional distress. To demonstrate intentional infliction of emotional distress, a plaintiff must show the defendant's conduct was "extreme and outrageous." Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996) (applying California law). As we explained in Miller:

35

[Emotional distress] claims may not be preempted if the particular offending behavior has been explicitly prohibited by mandatory statute or judicial decree, and the state holds violation of that rule in all circumstances sufficiently outrageous to support an emotional distress claim. For example, if a plaintiff alleges that an employer's criminal behavior inflicted extreme emotional distress, the emotional distress claim need not be preempted. The behavior could be found sufficiently outrageous to permit recovery without regard to whether the behavior might be permitted under the CBA. Its outrageousness would be clear from the state's decision to make the behavior criminal . . . . Additionally, if the particular CBA does not govern the offending behavior, . . . then an emotional distress claim is not preempted.

36

Miller, 850 F.2d at 550 n.5; see also Galvez, 933 F.2d at 779-80. The conduct at issue here was a violation of California penal law, and therefore per se outrageous. Accordingly, §§ 301 does not preempt the emotional distress claim alleged by Alfaro and his co-plaintiffs to the extent the claim is premised on Consolidated's criminal use of hidden cameras and two-way mirrors in restrooms to conduct clandestine surveillance.

37

Conclusion

38

Section 301 does not preempt claims to vindicate nonnegotiable state law rights. Nor does it preempt claims for state law rights that, although potentially negotiable, do not reasonably require the court to interpret an existing provision of a CBA to resolve the dispute. Plaintiffs' privacy claims are therefore not preempted by §§ 301. The Alfaro plaintiffs' claim for intentional infliction of emotional distress is likewise not preempted.

39

Because the state law privacy claims in these cases were not preempted by §§ 301, the district court lacked removal jurisdiction over these actions. They must therefore be remanded to state court.

40

REVERSED and REMANDED.

3

The dissent's attempt to extract from the CBA's silence on the use of video cameras an implied consent to illegal videotaping from behind twoway mirrors is an example of "creative linkage " that strains credulity. See note 6, infra.

4

The complaint also alleged that the employer had violated the CBA, but the privacy claim was based solely on the California Constitution. Utility Workers, 852 F.2d at 1085.

5

The relevant section reads as follows:

The Employer may not use video cameras to discipline or discharge an employee for reasons other than theft of property or dishonesty. If the information on the video tape is to be used to discipline or discharge an employee, the Employer must provide the Local Union, prior to the hearing, an opportunity to review the video tape used by the Employer to support the discipline or discharge. Where a Supplement imposes more restrictive conditions upon use of video cameras for discipline or discharge, such restrictions shall prevail.

National Master Freight Agreement, Article 26, §§ 2.

6

The dissent appears willing to indulge in some unwarranted assumptions to lend credibility to Consolidated's attempt to invoke the CBA to justify its use of hidden cameras in the bathrooms. First, it transforms the CBA's silence on the use of videocameras (as distinguished from the use of videotapes) into an implied consent to secret taping from behind twoway mirrors. Second, asserting that Consolidated positions visible videocameras on its premises, including two "presumably visible" cameras in a different restroom, the dissent imputes to employees a willingness to sacrifice their privacy to secret restroom cameras. As an initial matter, it is not at all clear from the record that we can"presume" the visibility of any cameras Consolidated may have placed in its restrooms. Cramer's counsel stated at oral argument that any other restroom cameras were placed in the ceiling, hidden from view in a fake sprinkler head. In any event, the presence of visible cameras does not imply the expectation of or consent to additional secret cameras. Finally, notwithstanding that the California legislature has explicitly criminalized the use of videotaping through two-way mirrors, the dissent would override that clear statement of California law to indulge Consolidated's creative reading of the CBA. With respect, the dissent's approach illustrates the lengths to which one must go to tease preemption out of the contents of the CBA and plaintiffs' claims here.

The dissent's reliance on In re Amoco Petroleum Additives Co., 964 F.2d 706 (7th Cir. 1992), is misplaced. There, the video camera was located "in the ceiling of the entrance hallway, which enabled the [employer] to record who entered and left the locker room, and when, but not what they were doing inside." Id. at 707; see also Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993) ("It turned out to be infeasible to conceal the camera in the ceiling outside the locker room pointing toward the door, so instead the company installed it in the ceiling of the locker room itself, though pointing toward the door rather than toward the interior of the room."). Insofar as is apparent from the opinion, Amoco's installation of the camera did not violate any state laws. Id. at 1183 (noting specifically that the employer's action had not been made illegal under Illinois law).

7

Even if Consolidated alleged that the plaintiffs' union had waived their state law right to privacy in its negotiation of the CBA, evidence of such a waiver would need to be "clear and unmistakable " before a court could even consider whether to give it effect. See Livadas, 512 U.S. at 125; Lingle, 486 U.S. at 409-10 n.9. The record in this case contains no such evidence.

8

Consolidated argues that §§ 653n does not apply because California courts have limited the statute's scope to public restrooms. Consolidated misreads the law. As noted in both Deborah C. and Metcalf, §§ 653n reflects a public policy protecting individuals from surreptitious observation in all restrooms, public as well as private.

9

Consolidated argues that the terms of CBAs affecting employees in multiple states should supersede inconsistent state laws. This contention overreaches, however, because the LMRA certainly did not give employers and unions the power to displace any state regulatory law they found inconvenient. See Allis-Chalmers, 471 U.S. at 211-12 ("Nor is there any suggestion that Congress, in adopting §§ 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation . . . . In extending the pre-emptive effect of §§ 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.").

10

The dissent misapprehends the elements of California's privacy law, relying on Alarcon v. Murphy, 248 Cal. Rptr. 26, 29 (Cal. Ct. App. 1988), a court of appeal case decided before Hill. See Hill, 865 P.2d at 657 (stating elements of invasion of privacy). In any event, as discussed in text and as a careful reading of Hill indicates, Consolidated's videotaping invaded plaintiffs' privacy as a matter of law, thereby satisfying any need to establish both an objective and a subjective expectation of privacy.

TALLMAN, Circuit Judge, concurring in part and concurring in the judgment: