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David Stikes an individual on behalf of himself and all other persons similarly situated Plaintiff-Appellant
vs.
Chevron USA Inc. a Pennsylvania Corporation; and Does 1 through 50 inclusive Defendants-Appellees
 
Case:
No. 89-15208
 
Location:
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 
Date:
April 20, 1990 Argued and Submitted San Francisco California
September 17, 1990 Filed
 
Attorneys:
Paul Alan Levy and Alan B. Morrison Public Citizen Litigation Group Washington District of Columbia and Robert N. Jacobs Los Angeles California for the Plaintiff-Appellant.
C. Douglas Floyd Pillsbury Madison and Sutro San Francisco California for the Defendants-Appellees.
 
Court:
Procter Hug Jr. and Mary M. Schroeder and James A. von der Heydt * District Court.
 
Author:
The Hon. Justice Schroeder
 

Honorable James A. von der Heydt Senior United States District Court for the District of Alaska sitting by designation.

Chevron USA terminated David Stikes' employment with Chevron after Stikes refused to permit his employer to search his car that was parked in the company parking lot. Stikes appeals the district court's order denying his motions to remand and to abstain and granting summary judgment in favor of his former employer Chevron USA. The district court held that Stikes' claims of violation of his right to privacy wrongful discharge in violation of public policy intentional infliction of emotional distress and unfair business practices were completely preempted by section 301 of the Labor Management Relations Act of 1947 (LMRA) 29 U.S.C. SEC. 185 (1988) and hence were properly removable to federal court and subject to summary judgment on the merits. We affirm.

FACTS AND PROCEEDINGS BELOW

Stikes was employed by Chevron as a maintenance worker from June 1983 until July 1987. The conditions of his employment were governed by a collective bargaining agreement (CBA) which recognized Chevron's right to manage direct and determine its work force as well as to demote or discharge any employee for cause. The CBA also stressed the importance of safe work conditions and provided that Chevron would consider safety suggestions made by the Union and the employees and that the Union would encourage its members "to cooperate with the Safety Program."

In September of 1984 Chevron instituted a policy as part of its safety program requiring its employees to submit to random searches of their persons and property. Pursuant to this policy on July 2 1987 Chevron's security chief ordered Stikes to submit to a search of his private vehicle which was parked on company property. Stikes refused to submit to the search whereupon Chevron discharged him.

Stikes filed a suit in state court alleging that Chevron was liable for (1) infringement of his right to privacy in violation of Article 1 section 1 of the California Constitution; (2) wrongful discharge in violation of public policy; (3) intentional infliction of emotional distress; and (4) unfair business practices. Chevron removed the action to federal district court. Stikes moved for remand on the theory that his complaint stated causes of action based solely on state law and that therefore no federal question jurisdiction existed.

The district court denied Stikes' motion on the ground that Stikes' state law claims were completely preempted by section 301 of the LMRA 29 U.S.C. SEC. 185 because the resolution of Stikes' right to privacy and attendant claims required interpretation of the CBA. Stikes also moved for abstention asserting that the district court should await a determination by the California courts as to whether under California law the right to privacy could be waived by a collective bargaining agreement. The district court denied this motion as well. The district court then granted Chevron's unopposed motion for summary judgment on the ground that Stikes' claims were preempted under section 301. This appeal followed.

DISCUSSION

The principal issue before us is whether Stikes' cause of action for interference with his State of California constitutional right to privacy is completely preempted by section 301 of the LMRA and therefore removable to federal district court.

Ordinarily a defendant may remove a suit to federal court only if the suit could have been brought there originally. 28 U.S.C. SEC. 1441(a)(1988); Caterpillar Inc. v. Williams 482 U.S. 386 392 96 L. Ed. 2d 318 107 S. Ct. 2425 (1987); Jackson v. Southern California Gas Co. 881 F.2d 638 641 (9th Cir.989); Hyles v. Mensing 849 F.2d 1213 1215 (9th Cir. 1988). Under the well-pleaded complaint rule "federal jurisdiction exists only when a federal question is presented on the face of [a plaintiff's complaint]." Caterpillar 482 U.S. at 392. A federal defense including the defense of preemption may not form the basis of federal jurisdiction "even if both parties concede that the federal defense is the only question truly at issue." Id. 107 S. Ct. at 2430 (citations omitted); see Oklahoma Tax Com'n v. Graham 489 U.S. 838 109 S. Ct. 1519 1521 103 L. Ed. 2d 924 (1989).

The complete preemption doctrine however provides an exception to the well-pleaded complaint rule. Caterpillar 482 U.S. at 393; Whitman v. Raley's Inc. 886 F.2d 1177 1180-81 (9th Cir. 1989). Jackson 881 F.2d at 641. Under that doctrine

The pre-emptive force of a statute [may be] so 'extraordinary' that it 'converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' Once an area of state law has been completely pre-empted any claim purportedly based on that pre-empted state law is considered from its inception a federal claim.

Caterpillar 482 U.S. at 393 (quoting Metropolitan Life Ins. Co. v. Taylor 481 U.S. 58 65 95 L. Ed. 2d 55 107 S. Ct. 1542 (1987) (footnote omitted)).

Section 301 of the LMRA is an example of a statute which has such a powerfully preclusive effect. Caterpillar 107 S. Ct. at 2430; Allis-Chalmers Corp. v. Lueck 471 U.S. 202 209 85 L. Ed. 2d 206 105 S. Ct. 1904 (1985); Jackson 881 F.2d at 642. It confers jurisdiction in the district courts of the United States over "suits for violation of contracts between an employer and a labor organization representing employees." *fn1 29 U.S.C. SEC. 185(a). Its preemptive force is so powerful that it displaces entirely any state cause of action for violation of a collective bargaining agreement. Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for Southern California 463 U.S. 1 23 77 L. Ed. 2d 420 103 S. Ct. 2841 (1983).

Many suits by employees against employers are not in the form of suits for breach of the collective bargaining agreement yet may nonetheless implicate provisions of the agreement. This has given rise to some thorny jurisdictional questions. See generally Note Preemption of State Law Claims After Lingle v. Norge 34 Vill. L. Rev. 1035 1050-58 1071-77 (1989) (authored by Michelle Smith Nofer).

During the past decade the Supreme Court has handed down a number of decisions defining the scope of section 301's preemptive effect. At least two principles have emerged. First section 301 preempts state law claims which are founded on rights created by a collective bargaining agreement. Caterpillar 482 U.S. at 394; Gulden v. Crown Zellerbach Corp. 890 F.2d 195 198 (9th Cir. 1989); see e.g. United States v. Rawson 495 U.S. 362 109 L. Ed. 2d 362 110 S. Ct. 1904 1909-11 (1990); International Brotherhood of Elec. Workers v. Hechler 481 U.S. 851 861 95 L. Ed. 2d 791 107 S. Ct. 2161 (1987);

Allis-Chalmers 471 U.S. at 220. Second section 301 preempts state law claims which are " 'substantially dependent on analysis of a collective bargaining agreement.' " Caterpillar 482 U.S. at 394 (quoting Hechler 481 U.S. at 859 n.3); accord Lingle v. Norge Division of Magic Chef Inc. 486 U.S. 399 405-06 410 100 L. Ed. 2d 410 108 S. Ct. 1877 (citations omitted); Gulden 890 F.2d at 198.

In order to determine whether Stikes' state law claim of privacy substantially depends upon an interpretation of the collective bargaining agreement we must examine the elements of that claim to ascertain if any of the elements require a construction of the agreement. See Lingle 486 U.S. at 405-410; Gulden 890 F.2d at 198-99; Tellez v. Pacific Gas and Elec. Co. Inc. 817 F.2d 536 539 (9th Cir.) cert. denied 484 U.S. 908 98 L. Ed. 2d 209 108 S. Ct. 251 (1987); see also Sluder v. United Mine Workers of America 892 F.2d 549 553 (7th Cir. 1989); Jackson v. Liquid Carbonic Corp. 863 F.2d 111 116-119 (1st Cir. 1988) cert. denied 490 U.S. 1107 104 L. Ed. 2d 1021 109 S. Ct. 3158 (1989).

Two recent Ninth Circuit decisions like this case involve suits by an employee against an employer for violation of privacy interests protected by the California Constitution. In both cases we expressly held that a determination of a claim based on the California right to privacy would substantially depend upon an analysis of the collective bargaining agreement and would therefore be preempted. Laws v. Calmat 852 F.2d 430 (9th Cir. 1988); Utility Workers of America v. Southern California Edison Co. 852 F.2d 1083 1085-87 (9th Cir. 1988) cert. denied 489 U.S. 1078 109 S. Ct. 1530 103 L. Ed. 2d 835 (1989).

Laws and Utility Workers both involved challenges to an employer's imposition of a drug and alcohol testing program. In Laws a plaintiff employee refused to submit to a urine test and was suspended. The employee alleged that the drug program and his subsequent suspension violated his California constitutional right to privacy. We found Laws' claim subject to removal from state court on preemption grounds. We reasoned that a drug and alcohol testing program is a working condition "whether or not it is specifically discussed in the CBA." Laws 852 F.2d at 433. We further noted that Laws' state law claim arose out of his suspension an issue covered by the collective bargaining agreement. Id.

n Utility Workers 852 F.2d at 1086 we considered whether the California Constitution created a nonnegotiable right to privacy such that resolution of the privacy claim might not involve the CBA. We concluded that "drug testing does not implicate the sort of 'nonnegotiable state law rights' that preclude preemption under section 301." Id. (citation omitted). Rather "an employer's decision to institute a drug testing program is a proper subject for collective bargaining." Id. Laws and Utility Workers require us to find Stikes' privacy claim preempted.

Stikes asks us to revisit our Laws and Utility Workers decisions in light of the Supreme Court's recent holding in Oklahoma Tax Commission 109 S. Ct. at 1519. That case involved a state's action against an Indian tribe to recover excise taxes. The tribe removed the case to federal district court asserting federal question jurisdiction on the ground that the suit was barred by tribal sovereign immunity. The Supreme Court found the action not properly removable because the federal question appeared in the defense and not on the face of the plaintiff's well-pleaded complaint.

Oklahoma is inapposite to the case at bar because it does not involve an area of federal law subject to the complete preemption corollary to the well-pleaded complaint rule. Stikes argues that Oklahoma nonetheless requires a modification of Laws and Utility Workers because it relied upon the Supreme Court's prior holding in Caterpillar a case which did involve an issue of section 301 preemption. Caterpillar held that an employee's state law claims were not subject to removal "even though an interpretation of the collective bargaining agreement might ultimately provide the employer a complete defense to the individual [state] claims. " Id. 109 S. Ct. at 1521 (citing Caterpillar 482 U.S. at 396-98).

Court found removal inappropriate in Caterpillar because plaintiffs' claims in that case involved jobs outside the bargaining unit and were based on the argument that the collective bargaining agreement did not apply to plaintiffs at all. Caterpillar 482 U.S. at 388-89 394-95. In Laws 852 F.2d at 433-34 we expressly considered the effect of Caterpillar upon removal of a claim based on California's constitutional right to privacy. Laws like Stikes here argued that the employer in that case could not remove a state privacy claim to federal court based on a federal defense of preemption.

We rejected Laws' argument on the ground that unlike the claims of the employees in Caterpillar who asserted rights based upon individual employment contracts outside the scope of the collective bargaining agreement Laws' right to privacy claim was not "wholly separate from the CBA" but rather was "inextricably intertwined" with it because it involved a working condition. Id. (citing Allis Chalmers 471 U.S. at 213).

Stikes' right to privacy claim is inextricably intertwined with the collective bargaining agreement. This is because a violation of California's constitutional right to privacy requires both that an individual have a "personal and objectively reasonable expectation of privacy" and that the expectation "has been infringed by an unreasonable intrusion." Alarcon v. Murphy 201 Cal. App. 3d 1 5 248 Cal. Rptr. 26 29 (Ct. App. 1988); see In re Deborah C. 30 Cal. 3d 125 137 177 Cal. Rptr. 852 635 P.2d 446 (1981); Chico Feminist Women's Health Center v. Scully 208 Cal. App. 3d 230 240-42 256 Cal. Rptr. 194 199-200 (Ct. App. 1989); People v. Superior Court (Safeco Insur. County) 210 Cal. Rptr. 695 703-04 (Ct. App. 1985); Armenta v. Superior Court of Santa Barbara County 61 Cal. App. 3d 584 132 Cal. Rptr. 586 588 592 (1976).

See also Flesh v. Board of Trustees of Joint School Dist. 2 241 Mont. 158 786 P.2d 4 8-9 (Mont. 1990)(to "determine whether a privacy interest is protected under the [Montana] State Constitution we apply a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and (2) whether society is willing to recognize that expectation as reasonable." (citations omitted)).

Here the district court could not ascertain Stikes' expectations of privacy at the workplace without considering the conditions of his employment enumerated in the collective bargaining agreement. See In re Deborah 30 Cal. 3d at 125 177 Cal. Rptr. 852 635 P.2d 446 ("What constitutes a 'reasonable' expectation of privacy depends on the circumstances and is measured by common habits in the use of domestic and business properties." (citations omitted)). By the same token it could not assess whether Chevron's search of the car constituted an unreasonable intrusion without understanding the scope of Chevron's powers provided for in the collective bargaining agreement.

Other circuits have similarly concluded that section 301 preempts state invasion of privacy claims. In Liquid Carbonic 863 F.2d at 118 the First Circuit held that an employee's claim that his employer's drug testing program violated his statutory right to privacy depended upon whether the testing was reasonable in light of the circumstances. This necessitated an interpretation of the CBA because the CBA defined the dimensions of the employee's "cognizable expectation of privacy." Id. at 118-19.

In Kirby v. Allegheny Beverage Corp. 811 F.2d 253 (4th Cir. 1987) an employee brought a state invasion of privacy claim against his employer based on his employer's search of his person and request to search his automobile. The Fourth Circuit determined that the analysis of the employee's claim would require reference to the CBA to ascertain whether the employer's actions were reasonable in light of that agreement. Id. at 255-56. Thus unlike the CBA in Caterpillar the CBA here does not provide a defense to Stikes' invasion of privacy claim. Rather it is part and parcel of the prima facie claim itself subjecting that claim to federal jurisdiction.

Stikes next contends that the California right to privacy is not negotiable and cannot be affected by a collective bargaining agreement. We have expressly declined to construe California's privacy guarantee as a non-waiveable right. Utility Workers 852 F.2d at 1086. Stikes distinguishes that case on the ground that Utility Workers involved drug testing as opposed to a random search of an employee's automobile suggesting that the privacy interests here are more compelling. The distinction cuts the other way.

If anything a urine analysis or similar search of a person's body constitutes a far greater intrusion of privacy than a car search. Furthermore even if California courts were to deem the right to privacy nonnegotiable in the collective bargaining process suits based upon a violation of that right might nonetheless fall within section 301's preemptive grip. As the Supreme Court explained in Lingle

While it may be true that most state laws that are not pre-empted by SEC. 301 will grant nonnegotiable rights that are shared by all state workers we note that neither condition ensures non-preemption. It is conceivable that a State could create a remedy that although nonnegotiable nonetheless turned on the interpretation of a collective-bargaining agreement for its application. Such a remedy would be pre-empted by SEC. 301.

486 U.S. at 407-08 n.7.

Stikes' privacy claim was completely preempted by section 301 and properly dismissed on the merits. Appellant's remaining claims of wrongful discharge intentional infliction of emotional distress and unfair business practices are peripheral to the privacy claim. Stikes does not argue that they should be independently remanded if we agree with the district court and find the privacy claim completely preempted. See Edelman v. Western Airlines Inc. 892 F.2d 839 844-45 (9th Cir. 1989)(section 301 preempted the gravamen of plaintiff's complaint and therefore preempted parasitic claims dependent upon that claim as well).

Appellant's final contention on appeal is that the district court should have abstained from deciding the federal preemption issue under the Pullman Abstention Doctrine. The Pullman Abstention Doctrine prevents federal courts from unnecessarily deciding constitutional questions. Railroad Comm. v. Pullman 312 U.S. 496 499-500 85 L. Ed. 971 61 S. Ct. 643 (1941). The question of section 301 preemption does not rise to the level of a constitutional question in abstention jurisprudence. Cf. Knudsen Corp. v. Nevada State Dairy Comm. 676 F.2d 374 377 (9th Cir. 1982). See generally C. Wright The Law of Federal Courts 303-308 (4th ed. 1983).

Appellant nevertheless reasons that if the California courts were to deem the right to privacy nonnegotiable the federal courts would not have to address the question of whether the LMRA preempts the privacy right. The right to privacy under California law however is based in major part upon the parties' reasonable expectations and these of necessity involve the working conditions agreed upon in the collective bargaining agreement. Thus 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. Pullman Abstention therefore is not appropriate for this reason as well and the district court properly refused to abstain.

AFFIRMED.

 
Notes:

*fn1 Section 301(a) of the Labor Management Relations Act provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter may be brought in any district court of the United States having jurisdiction of the parties

29 U.S.C. SEC. 185(a).