THIS CAUSE came before Court upon Plaintiff's Petition for Remand for lack of subject matter jurisdiction pursuant to 28 U.S.C. SEC. 1447(c). The plaintiff also seeks Counsel's fees pursuant to Section 1447(c).

BACKGROUND

Plaintiff Theodore J. Horne Jr. filed this action in state court alleging a violation of his right to privacy as guaranteed by the Florida Constitution. *fn1 The complaint prays for a declaration that Defendant Southern Bell Telephone and Telegraph Company ("Southern Bell") Horne's employer cannot require Horne to submit to psychiatric examinations under threat of termination or disciplinary action.

Southern Bell removed the action to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. SEC.(S) 1331 1441 and 1446. Southern Bell asserts that Horne's claim requires an interpretation of the collective bargaining agreement covering Southern Bell employees and that such a requirement makes Horne's action a cause arising under the laws of the United States. The federal law that Southern Bell invokes is Section 301 of the Labor Management Relations Act (LMRA). Section 301 of the LMRA 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 or between any such labor organizations may be brought in any district court of the United States having jurisdiction of the parties without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. SEC. 185(a) (West 1978).

Horne disputes the federalization of his claim. Therefore he prays for remand to state court as well as Counsel's fees and costs both pursuant to 28 U.S.C. SEC. 1447(c). Court disagrees with Horne's position.

STANDARD OF REVIEW

In removal cases the burden of establishing federal question jurisdiction is on the removing party. Winters Government Securities v. Nafi Employees Credit Union 449 F. Supp. 239 242 (S.D. Fla. 1978). "The presence or absence of federal question jurisdiction is governed by the 'well pleaded complaint rule ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.

" Caterpillar Inc. v. Williams 482 U.S. 386 392 96 L. Ed. 2d 318 107 S. Ct. 2425 (1987). In analyzing the complaint Court must "determine whether a federal claim is 'necessarily presented by [the] plaintiff even if [the] plaintiff has couched his pleadings exclusively in terms of state law.'" Dean Witter Reynolds Inc. v. Schwartz 550 F. Supp. 1312 1313 (S.D. Fla. 1982) (quoting Schultz v. Coral Gables Federal Savings & Loan Association 505 F. Supp. 1003 1008 (S.D. Fla. 1980)).

"If a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily 'arises under' federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust 463 U.S. 1 24 77 L. Ed. 2d 420 103 S. Ct. 2841 (1983).Section 301 of the LMRA completely preempts any state cause of action based on a collective bargaining agreement. Franchise Tax 463 U.S. at 23. Therefore "claims founded directly on rights created by collective-bargaining agreements and also claims 'substantially dependent on analysis of a collective bargaining agreement '" arise under federal law. Caterpillar 482 U.S. at 394.

ANALYSIS

On its face the complaint requests a declaration of Horne's right to privacy in psychological decisions. Horne relies on Article I SEC. 23 of the Florida Constitution which provides:

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.

Fla. Const. Art. I SEC. 23. The Supreme Court of Florida has interpreted the right to privacy guaranteed by Section 23 as encompassing the right to make choices about medical treatment. In Re Guardianship of Browning 568 So. 2d 4 10 (Fla. 1990) (upholding a surrogate's exercise of a patient's right to forego artificially provided sustenance). For the purposes of removal therefore Court assumes that Horne has stated a valid cause of action under state law.

The issue of whether Section 301 preempts Horne's privacy claim under Florida Constitutional law is one of first impression for this Court. A privacy action may be analogized to a tort action. In a Fifth Circuit case similar to Horne's employees asserted a tort claim against their employer as a result of forced medical examinations. Strachan v. Union Oil Co. 768 F.2d 703 704-705 (5^th Cir. 1985).

The Fifth Circuit determined that Section 301 of the LMRA preempted such a tort claim. Strachan 768 F.2d at 703. Relying on Strachan the Fourth Circuit found that Section 301 of the LMRA similarly preempts an invasion of privacy claim arising from a physical search. Kirby v. Allegheny Beverage Corp. 811 F.2d 253 256 (4th Cir. 1987). This court finds the analogy between tort and privacy claims apt. Viewing Horne's claim through the prism of tort actions Court concludes that Horne "may not resort to state tort claims in substitution for [his] rights under the grievance procedure in a collective bargaining agreement." Strachan 768 F.2d at 704-705. *fn2

Moreover this case does not fall within the two acknowledged exceptions to federal preemption in the labor law context: (1) peripheral concerns of the LMRA; and (2) deeply rooted local policies. Ramsey v. Signal Delivery Serv. Inc. 631 F.2d 1210 1212 (5th Cir. 1980). Clearly threats of disciplinary action and termination of employment are not peripheral to the concerns of the LMRA. As to the second exception although Florida protects an individual's privacy rights as evidenced by Section 23 of the Florida Constitution such protection does not rise to the level necessary to oust federal jurisdiction.

In Ramsey the Fifth Circuit found that a tort claim for emotional distress resulting from disciplinary actions in the workplace does not constitute a local policy exception. Ramsey 631 F.2d at 1212. In light of Court's analogy between privacy actions and tort actions therefore Court finds that a privacy claim arising from threatened disciplinary action and termination does not constitute an exception to federal preemption.

Horne further attempts to side-step federal preemption by asserting that he is not a member of the Communication Workers of America Southern Bell's employees' union. Horne has no employment contract independent of the collective bargaining agreement. Therefore the union is his exclusive representative and he is a member of the collective bargaining unit. Ford Motor Co. v. Huffman 345 U.S. 330 338 97 L. Ed. 1048 73 S. Ct. 681 (1953) ("The employees represented often are members of the organization which represents them at the bargaining table but it is not essential that they be such."). *fn3

Having found that Horne's privacy claim arises under Section 301 of the Labor Management Relations Act and that such a claim is subject to federal preemption the Court concludes that remand of this case would be inappropriate. Moreover because Court declines to remand it must also deny Horne's motion for Counsel's fees and costs. 28 U.S.C.A. SEC. 1447(c) (West 1992) ("An order remanding the case may require payment of just costs and any actual expenses including Counsel fees incurred as a result of the removal.") *fn4

CONCLUSION

Based on the foregoing analysis it is hereby

ORDERED AND ADJUDGED that Horne's Petition to Remand is DENIED. It is further

ORDERED AND ADJUDGED that Horne's Motion for Counsel's Fees and Costs be and the same is hereby DENIED.

DONE AND ORDERED in Chambers at Miami Florida this 23rd day of June 1992.