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)

These actions were initially assigned to Hon. Irving Hill, who entered judgment in Cramer v. Consolidated Freightways, Inc., CV 97-7860-IH, No. 98-55657. Alfaro v. Consolidated Freightways Corp., SA CV 98-331, No. 98-56041, and Davidson v. Consolidated Freightways Corp. (Hoffman), SA CV 98-332-LMG, No. 98-56154, were subsequently reassigned to Hon. Linda H. McLaughlin.

This case is a consolidation of two separate appeals. In one, Consolidated Freightways, Inc. was the only defendant. The other named Consolidated Freightways Corp., CNF Transportation, Inc. (aka Consolidated Freightways, Inc.), two individuals and a Doe security installation company as defendants. For ease of reference, this opinion refers to the defendants collectively as "Consolidated."

We note that the Supreme Court recognized in Livadas that where the claim cannot be resolved without interpreting the CBA, " [h]olding the plaintiff's cause of action substantively extinguished may not . . . always be the only means of vindicating the arbitrator's primacy as the bargainedfor contract interpreter." Livadas, 512 U.S. at 124 n.18 (citing Collyer Insulated Wire, Gulf, & W. Sys. Co., 192 N.L.R.B. 837 (1971) (establishing the practice of holding in abeyance NLRB unfair labor practice cases involving interpretation of the CBAs where there is an applicable arbitration clause and requiring that the parties arbitrate any such interpretation question and then return to the Board for adjudication of any remaining legal and factual issues within the Board's jurisdiction)). Because we find that here there is no need to interpret the CBA to resolve the plaintiffs' claims, we do not address under what circumstances a practice of deferring the litigation pending an arbitrator's resolution of the contract interpretation issues rather than extinguishing the claim might be appropriate.

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.

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.

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.

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).

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.

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.

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.").

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:

agree with parts I, II, and III of the majority opinion: plaintiffs' claims are not preempted because the CBA did not contemplate surreptitious surveillance of bathrooms through two-way mirrors. However, the Court's alternative holding unnecessarily interprets ambiguous California law and threatens the ability of similarly situated parties to negotiate legitimate limitations on privacy. I respectfully disagree with parts IV and V of the majority opinion

California law clearly protects individuals from covert observation in certain traditionally private places, such as restrooms and fitting rooms. See Cal. Penal Code §§ 653n. Rather than merely hold that Consolidated's covert actions here were illegal, the Court today holds that even in future contract negotiations, the parties could not reduce privacy expectations in the bathrooms of California workplaces. See Slip Op. at 695-96 ("Even if the CBA purported to reduce or limit this expectation in some way, that reduction would be illegal and therefore unenforceable."). It is not clear to me that California courts would preclude such negotiations between well-represented parties if there were a compelling reason to permit observation. See, e.g., Hill v. NCAA, 865 P.2d 633, 655 (Cal. 1994) (" [T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant."); In re Deborah C., 635 P.2d 446, 452 n.9 (Cal. 1981) (" [S]section 653n is limited to a method of hidden spying . . . [not] that restrooms and fitting rooms are immune from all observation.").

It also appears that the majority's broad statement in its alternative holding threatens multi-state employers' ability to fulfill federally mandated safety requirements by negotiating with their employees. In light of the ambiguity in California law and the fact that we are remanding the claims to state court because the federal courts lack jurisdiction, a more narrow holding by this Court is clearly preferable.

O'SCANNLAIN, Circuit Judge, dissenting:

respectfully dissent from the Court's opinion in this very sensitive application of the federal Labor Management Relations Act ("Act") to a freely negotiated collective bargaining agreement ("CBA") between Consolidated Freightways ("Consolidated") and its union-member employees

No doubt, the majority is correct in the formulation of the rule we should apply in this case: the plaintiffs' state law claim is preempted under Section 301 of the Act if Consolidated can assert a "reasonable" invocation of a provision of the CBA which makes the resolution of the plaintiffs' claim depend on its interpretation. Majority Opinion at 7523. Such formulation is familiar and is substantially similar to that used in other Circuits. E.g., Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir. 1997) (" [S]section 301 preempts a state-law claim wherever a court, in passing upon the asserted state-law claim, would be required to interpret a plausibly disputed provision of the collective bargaining agreement." (emphasis added)); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1181 (7th Cir. 1993) (noting that state law privacy claim was preempted because "it was arguably within the scope of the [collective bargaining] agreement" (emphasis added)). Regrettably, the majority fails in its application of the rule to the CBA at issue in this case.

Because the CBA expressly provides for video surveillance of its covered employees, it cannot be so cavalierly ignored as the majority holds. Because the CBA can be reasonably interpreted to affect materially the resolution of the plaintiffs' state law claim here, their state law claim is preempted under federal law and therefore I must dissent.

Remarkably, the majority chooses to reach alternative holdings. In Part III, it concludes, with little elaboration, that Consolidated cannot assert even a reasonable interpretation of the CBA that makes its interpretation necessary to resolve the plaintiffs' claim. Majority Opinion at 7527. (" [A] cursory examination of those provisions makes clear they apply to a completely different context and set of circumstances."). In Part IV, the majority holds that, even if Consolidated could make such an argument, the California Penal Code trumps. Majority Opinion at 7529 ("Even if the CBA did expressly contemplate the use of two-way mirrors to facilitate detection of drug users, such a provision would be illegal under California law . . . ."). Neither holding is compelling.

As to the analysis in Part III, the elements of a right to privacy cause of action under California law require these plaintiffs to show, among other things, 1) that they had a subjective expectation of privacy in the restroom, and 2) that their subjective expectation of privacy was reasonable. Alarcon v. Murphy, 248 Cal. Rptr. 26, 29 (Cal. Ct. App. 1988) ("To determine whether there has been a violation of Alarcon's constitutional right of privacy, we determine whether his personal and objectively reasonable expectation of privacy has been infringed . . . ." (emphasis added)).

To what sources of information must we look in order to determine, under California law, whether an employee has a subjective and objectively reasonable expectation of privacy? The California Supreme Court tells us this much:" [T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant." Hill v. NCAA, 865 P.2d 633, 655 (Cal. 1994). And where might have the plaintiffs here had the "opportunit [y] to consent voluntarily " to the videotaping of which they complain? They had such an opportunity every time they entered the terminal in which they were videotaped. The record shows that Consolidated placed no fewer than six signs in and around the terminal housing the restroom which read: "NOTICE! 24 Hour Surveillance Recorded on Videotape." This is hardly irrelevant to their objective and subjective expectations of privacy.1

But more important to the purposes of preemption, the plaintiffs had an "opportunit [y] to consent voluntarily" to the videotaping in the CBA they signed with their employer. In the section entitled "Use of Video Cameras for Discipline and Discharge," the CBA provides:

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

This provision of the CBA makes explicit two things. First, the plaintiffs consented to be videotaped by Consolidated, subject to the restriction that the videotaping was for the purpose of "discipline or discharge" related to"theft of property or dishonesty." Second, the plaintiffs contemplated that they might want to place additional restrictions on Consolidated's use of video cameras through the mechanism of a"Supplement."2 A number of "Supplements" were agreed to between the plaintiffs and Consolidated. None of the terms in these "Supplements," however, placed any additional restrictions on Consolidated's use of video cameras.

What this provision of the CBA does not make explicit is whether Consolidated may use video cameras in the restroom, or whether Consolidated may use video cameras behind a two-way mirror. Of course, nor does it make explicit whether Consolidated may use video cameras in the hallway, or whether Consolidated may use video cameras on a tripod. I do not understand the majority to suggest, however, that a "cursory examination" of the CBA "makes clear" that Consolidated is barred from putting cameras in the hallway or from putting cameras on tripods. This, no doubt, is the case because, although the CBA does not explicitly say that Consolidated may do such things, nor does it explicitly say that Consolidated may not do such things.

Thus, the contract is silent, as contracts often are, on whether Consolidated's precise behavior is allowed. And, using traditional principles of contract interpretation, one could very easily make a reasonable argument that this silence should be interpreted to mean that the plaintiffs consented to Consolidated's behavior. Such an argument might take the following form: 1) the CBA explicitly places but one restriction upon Consolidated's use of video cameras; 2) the CBA contemplates that additional explicit restrictions might be placed thereupon; 3) no such additional explicit restrictions were ultimately imposed; 4) thus, one could reasonably conclude that the only restriction the CBA imposes on Consolidated's use of video cameras is the one explicitly set forth.3 Because the contract does not restrict the use of video cameras to areas other than the restroom, or to positions other than behind a two-way mirror, one could reasonably conclude that the plaintiffs in this case consented to the very videotaping on which their state law privacy claim is based. Accordingly, in order to resolve the plaintiffs' state law privacy claim, the Court must resort to interpretation of the CBA to determine whether this reasonable argument is a winning one.4

Not only is there a reasonable argument that the plaintiffs consented in the CBA to the videotaping, but Consolidated's argument in this regard is much stronger than arguments other courts have accepted for the purposes of finding preemption. For example, in a case remarkably similar to this one, the Seventh Circuit held that a suit which alleged that a company had violated state law privacy rights by installing video cameras in a restroom was preempted because the CBA may have authorized the practice, even though there was "not one word in the compact about cameras, locker rooms, or surveillance in general." In re Amoco Petroleum Additives Co., 964 F.2d 706, 709-10 (7th Cir. 1992). The court based preemption on a "management-rights" clause that the company argued left everything "neither regulated nor forbidden" to "its discretion." Id. at 709. The court further noted that several courts had held state law privacy suits over employee drug tests preempted "whether or not the collective bargaining agreement expressly mention [ed] drug tests." Id. at 710. Needless to say, Consolidated's argument regarding the interpretation of the CBA in this case, which does expressly authorize videotaping, is far more plausible than these.5

In Part IV, the majority relies on the California Penal Code to conclude that, even if one could reasonably argue that the employees consented in the CBA to Consolidated's videotaping, such consent does not matter. In order to reach this conclusion, the majority must rewrite California law.

To repeat: the elements of a right to privacy cause of action under California law require these plaintiffs to show two things: 1) that they had a subjective expectation of privacy in the restroom, and 2) that their subjective expectation of privacy was reasonable.6 Alarcon, 248 Cal. Rptr. at 29. The majority concludes that, because Consolidated's videotaping is presumably a misdemeanor under California Penal Code §§ 653n,7 any expectation of privacy the plaintiffs had in the restroom was reasonable as a matter of law. Fair enough. But this only establishes the second prong of the required showing; it does not establish the first prong, whether the plaintiffs had a subjective expectation of privacy in the restroom. Before the plaintiffs can establish that, the Court must resort to interpretation of the CBA to determine whether they consented to the videotaping.

Astonishingly, the majority ignores this first prong altogether. Which perhaps is unsurprising because there simply is no decision of the California Supreme Court which holds as a matter of law that one has a subjective expectation of privacy from illegal intrusions to which one has consented. Moreover, I doubt that there will ever be such a holding of the California Supreme Court. This is likely because, if the California Supreme Court did make such a holding, it would lead to the ridiculous situation in which I could invite someone to videotape me behind a two-way mirror, only to then turn around and sue that person for violating my right to"privacy."

Nonetheless, this is the interpretation of California law urged upon us by the majority in this case. As support, the majority can only muster the following assertion:"Nothing in Hill suggests that all privacy determinations turn on issues of consent." Majority Opinion at 7531. This is true. Hill never used the word "all." Instead, it used the word"obviously": " [T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant." Hill, 865 P.2d at 655 (emphasis added). What was "obvious" to the California Supreme Court in Hill should be obvious to everyone else who considers the question: a person's subjective expectation of privacy from an intrusion turns on whether he consented to the intrusion. The majority's conclusion otherwise can only be explained as an attempt to rewrite California law.

II

It is clear that the plaintiffs consented in the CBA to video surveillance. It is at least a "reasonable" interpretation of the CBA that the plaintiffs additionally consented therein to video surveillance behind two-way mirrors. Whether this reasonable interpretation is a winning one is a question that can be answered only by interpreting the CBA in the appropriate forum. Therefore, the plaintiffs' state law claim is preempted. This does not mean, of course, that the plaintiffs in this case have no remedy at all. It simply means that the plaintiffs must pursue their remedies under federal rather than state law. Indeed, the plaintiffs in this case submitted their claim to the grievance process provided for in the CBA, and they prevailed. Thus, not only are the majority's efforts misguided, but unnecessary as well. For these reasons, I respectfully dissent.8

In addition, the record indicates that the Riverside County Sheriff's Department investigated the use of video cameras in the men's restroom of Consolidated's facilities and found two additional video cameras in the ceiling in a different men's employees restroom which were not behind two-way mirrors and which were presumably visible. This served to put the plaintiffs further on notice that they may have been subject to videotaping in the restrooms of Consolidated's facilities.

Curiously, Consolidated's Supplemental Brief asserts that there was a second video camera in the ceiling of the restroom in which the two-way mirror and hidden camera were discovered. Such assertion is belied by the Sheriff's investigation report.

The term "Supplement" in this provision means a "Supplemental Agreement" setting forth additional terms to"each of the specific types of work performed by the various classifications of employees controlled by this Master Agreement."

The reporters are replete with cases employing such an interpretative method. E.g., Republic Pictures Corp. v. Rogers, 213 F.2d 662, 665 (9th Cir. 1954) (" [C]courts are loathe to impose limitations or restrictions upon the parties which are not expressly contained in their agreement or which do not arise by necessary implication, and without such implied restrictions the contract could not be effectively performed . . . ."); see also Margaret N. Kniffin, 5 Corbin on Contracts §§ 24.28 (Revised Ed. 1998) ("If the parties in their contract have specifically named one item . . . a reasonable interpretation is that they did not intend to include other, similar items not listed.").

The majority apparently feels that this legal effort to determine whether there is a reasonable argument that the plaintiffs consented in the CBA to the videotaping is beside the point because it instead relies on the surmise that "the surreptitious nature of the violation of plaintiffs' privacy belies any notion of bargaining or consent to hidden cameras behind two-way mirrors." Majority Opinion at 7527. By this statement, I understand the majority to be surmising that Consolidated would not need to hide cameras behind a two-way mirror if it truly thought that the plaintiffs had consented to the videotaping. With all due respect to the majority, our job is not to engage in dubious surmises about the thoughts of the parties, but, rather, to engage in the traditional legal analysis to be followed in section 301 preemption cases like the one before us.

At another point, the majority also appears to argue that the plaintiffs' state law rights can be preempted only by a "clear and unmistakable" waiver, rather than a "reasonable" argument regarding waiver, in the CBA. Majority Opinion at 7523, 7528 n.7. This would be the case, however, only if the plaintiffs' state law rights were"nonnegotiable." The Supreme Court made this clear in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988). The state law right at issue in Lingle, freedom from retaliatory discharge, was "nonnegotiable, " id. at 407 n.7, because "under [state] law, the parties to a collective-bargaining agreement may not waive the prohibition against retaliatory discharge," id. at 409 n.9. Thus, " [b]efore deciding whether such a state-law bar to waiver could be pre-empted under federal law by the parties to a collective-bargaining agreement, we would require `clear and unmistakable' evidence in order to conclude that such a waiver had been intended. " Id. at 409 n.9 (citations omitted). There is no "state-law bar to waiver " of the right to privacy in California. To the contrary, the California Supreme Court has held that the right to privacy can be extinguished by consent:" [T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant." Hill, 865 P.2d at 655.

The majority's attempt to distinguish these cases is non-responsive. Majority Opinion at 7527-28 n.6. The fact that the videotaping in these cases was not done, as far as we know, in violation of state criminal laws cannot save the majority's holding in Part III of its opinion. As I understand Part III, the majority holds that, without even considering the California criminal law, Consolidated cannot make a reasonable argument that the plaintiffs consented in the CBA to its videotaping. The majority does not invoke the California criminal law until its holding in Part IV of its opinion, which, as explained below, is deficient for separate reasons.

The majority appears to argue that the elements of a right to privacy cause of action under California law do not require the plaintiffs to show that they had a subjective expectation of privacy in the restroom. Majority Opinion at 7531-32 n.10. The majority appears to suggest that this is the case because Hill altered the elements recited in Alarcon. Id. I respectfully disagree. Nowhere in Hill did the Supreme Court state that it was overruling the understanding in Alarcon. Moreover, although Hill did not use the phrase "subjective expectation of privacy," it included as the second element of the cause of action "a reasonable expectation of privacy on the plaintiff's part." Hill, 865 P.2d at 655. I take this to mean that the plaintiff must show both that he had an expectation of privacy and that it was reasonable. This view is confirmed by the fact that the Court explained this element by noting that "the presence or absence of opportunities to con sent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant." Id. Indeed, in fashioning the elements of the right to privacy under the California Constitution, the Supreme Court drew upon both the California common law right to privacy and the federal constitutional right to privacy, id. at 848-53, both of which include a subjective expectation of privacy as one of their elements. Id. at 849-50 ("The plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of the defendant."); California v. Greenwood, 486 U.S. 35, 39 (1988) (" [T]he Fourth Amendment [is violated] only if respondents manifested a subjective expectation of privacy . . . that society accepts as objectively reasonable.").

It is far from clear whether Consolidated's videotaping violated §§ 653n. The majority assumes arguendo in Part IV that there is a reasonable argument that the plaintiffs consented in the CBA to the videotaping, but it nonetheless holds that the videotaping was illegal. In doing so, the majority extends California law in a manner that appears to contradict decisions by the California Supreme Court. Although the text of §§ 653n does not limit liability to "non-consensual" viewing, the California Supreme Court has appeared to do just that. In People v. Triggs, 506 P.2d 232 (Cal. 1973), the Supreme Court held that a criminal defendant had a reasonable expectation of privacy in a restroom on account of §§ 653n. Id. at 238. In a subsequent decision, however, the Supreme Court clarified that Triggs extended only to "clandestine, unexpected" viewing. In re Deborah C., 635 P.2d 446, 452 (Cal. 1981) (emphasis added). The Court based this clarification on the fact that "section 653n is limited to a method of . . . clandestine observation" and"implies no belief that restrooms and fitting rooms are immune from all observation." Id. at 452 n.9 (internal quotation marks omitted). Thus, it appears that one of the modes of "observation" from which §§ 653n does not make the plaintiffs "im mune" is an "expected" viewing from behind a two-way mirror. Such a viewing would be "expected" if the plaintiffs consented to it in the CBA. Indeed, to interpret §§ 653n otherwise (i.e., in the manner advanced by the majority) would allow the State to prosecute criminally someone who erects a two-way mirror at the invitation of the person he is videotaping!

In addition to the reasonable argument that the plaintiffs consented in the CBA to Consolidated's viewing, there are other facts which suggest that Consolidated's viewing was not "unexpected " to the plaintiffs, and, therefore, not in violation of §§ 653n. As already noted, Consolidated placed no fewer than six signs in and around the terminal in which the plaintiffs were videotaped that read: "NOTICE! 24 Hour Surveillance Recorded on Videotape." Moreover, there were two other video cameras in another restroom which were not behind two-way mirrors and which were presumably visible.

Finally, it is not surprising that following the Sheriff's investigation referred to in footnote 1, the Riverside Country District Attorney decided not to file any criminal charges against Consolidated, stating that "the conduct involved was not motivated by an intent that would warrant criminal prosecution."

I also dissent from Part V of the Court's opinion. The majority rests its conclusion in this Part on our decision in Miller v. AT & T Network Systems, 850 F.2d 543 (9th Cir. 1988). But, in Miller, regarding the tort of intentional infliction of emotion distress, we said: "Because the tort requires inquiry into the appropriateness of the defendant's behavior, the terms of the CBA can become relevant in evaluating whether the defendant's behavior was reasonable. Actions that the collective bargaining agreement permits might be deemed reasonable in virtue of the fact that the CBA permits them." Id. at 550. Only if "the particular CBA does not govern the offending behavior . . . [will] an emotional distress claim [not be] preempted." Id. at 550 n.5.

As explained above, there is a reasonable argument that the CBA governs Consolidated's behavior in this case, and, therefore, the plaintiffs' intentional infliction of emotional distress claim is preempted as well. Moreover, even if Consolidated's behavior constituted a misdemeanor under California law, which, as I noted above, is doubtful, it would not foreclose preemption: "we cannot assume that the employer's behavior was outrageous for purposes of an emotional distress claim just because the employer may have violated a statutory prohibition . . . ." Id. at 551.