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NADANA C. KELLY Plaintiff
vs.
MERCOID CORPORATION Defendant
 
Case:
No. 86 C 9689
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
 
Date:
September 27 1991 Decided September 30 1991 Docketed
 
Court:
James H. Alesia United States District Judge.
 
Author:
The Hon. Justice Alesia
 

Plaintiff Nadana C. Kelly ("Kelly") brings this action against her former employer Mercoid Corporation ("Mercoid"). This action arises out of Kelly's discharge by Mercoid for her refusal to submit to a urinalysis test. Kelly originally filed her complaint for damages reinstatement backpay and other relief in the Chancery Division of the Circuit Court of Cook County Illinois ("the state court"). Mercoid subsequently removed the case to this Court on two grounds: that Kelly's claims were preempted under Section 301 of the Labor Management Relations Act of 1947 29 U.S.C. SEC. 185(a) ("Section 301") and that Kelly's complaint alleged a violation of the Fourth Amendment to the United States Constitution.

Kelly's complaint as amended consists of four counts. In Count I Kelly alleges that Mercoid violated Kelly's right under the Fourth Amendment to the United States Constitution to be free from unreasonable search add seizure. In Count II Kelly asserts a parallel claim under Article I Section 6 of the Illinois Constitution. In Count III Kelly claims that Mercoid unreasonably invaded her privacy in violation of Article I Section 6 of the Illinois Constitution. Finally in Count IV Kelly asserts a state law tort claim against Mercoid for unreasonably intruding upon Kelly's seclusion and solitude and casting her in a false light in the public eye.

Mercoid filed a motion for summary judgment as to all counts of Kelly's complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. In its motion Mercoid also requested an award of its attorneys' fees and costs pursuant to Rule 11 of the Federal Rules of Civil Procedure. This Court referred Mercoid's motion to Executive Magistrate Judge Lefkow for a Report and Recommendation. On February 21 1990 the Magistrate Judge issued her report recommending that this Court enter summary judgment in favor of Mercoid as to Count I that Counts II through IV be remanded to the state court and that no attorneys' fees or costs be awarded. Mercoid subsequently filed objections to the Magistrate Judge's Report and Recommendation. This Court has reviewed the parties' underlying briefs the Magistrate Judge's Report and Recommendation Mercoid's objections and Kelly's response. For the reasons set forth in this opinion we adopt in part and reject in part the Magistrate Judge's Report and Recommendation sustain Mercoid's objections grant Mercoid's motion for summary judgment as to all counts and grant in part Mercoid's request for attorneys' fees and costs under Rule 11.

  1. Facts
Mercoid manufactures products which require the handling of mercury a toxic substance that is subject to standards and regulations promulgated by the Federal Occupational Safety and Health Administration ("OSHA"). Pursuant to OSHA's standards and recommendations Mercoid adopted a policy requiring certain employees who worked with open mercury to submit to physical examinations including urinalysis to be performed by a medical doctor at an outside clinic every other month.

Mercoid hired Kelly in November 1974 as a machine operator and assembler. After approximately one and one-half years Mercoid transferred Kelly to the setting department where her duties included inspecting mercury in sealed tubes. Kelly remained in the setting department until on or about July 1986 when Mercoid transferred Kelly to the tube department where the mercury switches are manufactured.

On or about June 19 1986 prior to Kelly's transfer to the tube department she attended a meeting. At that meeting Mercoid distributed to all employees in attendance including Kelly a document consisting of over 30 pages and entitled "Mercoid Corporation - The Safe Handling of Mercury - Instruction for Employees." Included within this document among other things was a three-page memorandum explaining Mercoid's policy of requiring employees who worked with open mercury to submit to physical examinations including urinalysis. Someone from management read the entire document aloud to all employees in attendance and Kelly herself read at least the three-page memorandum contained within the document. *fn1 In addition all employees including Kelly signed a document indicating that they had "RECEIVED AND READ THE ENGINEERING BULLETIN CONCERNING THE SAFE HANDLING OF MERCURY INSTRUCTIONS FOR EMPLOYEES."

Upon her transfer to the tube department Kelly began performing various duties in the mercury switch manufacturing process. Kelly claims that no one ever informed her that her contact with mercury in the tube department would be any different from that in her prior department. Initially Kelly's duties in the tube department included clipping spot painting soldering and flashing mercury tubes. During her employment in this department Kelly claims that she never saw open mercury or residue of open mercury.

On Friday September 5 1986 Elliot Sanoguel ("Sanoguel") Kelly's supervisor generally announced to Kelly and the others in her department that they were scheduled to report to Callahan Clinic on the following Monday September 8 1986 and reminded them to stop and pick up their urine specimen bottles. Notwithstanding this announcement and reminder her attendance at the June 19 1986 meeting her admission that she read the three-page memorandum on the safe handling of mercury and her signature indicating that she had received notice of the urinalysis testing Kelly claims that she was unaware of any urinalysis testing requirement. Kelly also claims that she did not know that other tube department employees were undergoing urinalysis testing nor did she know of the procedure to be followed or the reason for such testing.

The following Monday Kelly reported to work as usual. At about 10:00 a.m. Sanoguel instructed Kelly and some of the other tube department employees to punch out and report to the clinic. After arriving at the clinic Kelly and her co-workers signed in and Kelly noticed that her co-workers had their urine specimen bottles. When the receptionist asked Kelly for her bottle Kelly responded that she did not have it so the receptionist sent Kelly to see the physician. Kelly claims that she asked the nurse at the clinic for a bottle but the nurse said that she did not have one. The physician then examined Kelly told Kelly that she was fine and released Kelly to return to work. Kelly then returned to work but left early because she was not feeling well and was worried about her father who was in the hospital.

On the following day September 9 1986 Kelly returned to work as usual and Sanoguel directed Kelly to see the Personnel Manager John Mulcrone ("Mulcrone"). After arriving at Mulcrone's office a meeting commenced. In addition to Kelly and Mulcrone Ted Grzanka ("Grzanka") the plant manager and Jenny Kalwa ("Kalwa") the union steward were present. During this meeting Mulcrone informed Kelly that she could not return to the workplace until she submitted to urinalysis which required her to fill a gallon bottle with urine over a period of 24 hours. Kelly claims that she informed Mulcrone that she would submit to the test if it was done under medical supervision if they would inform her of the reasons for the test and if they would insure confidentiality. *fn2 Mulcrone explained to Kelly that the urine sample was needed to ensure that Kelly was not being exposed to mercury. Mulcrone and Grzanka also advised Kelly that she should have read the pamphlet they had given her and Kelly understood that to be the pamphlet regarding mercury. The parties discussed several alternatives and failed to reach a compromise. After the meeting Kelly left the workplace.

A few days later Kelly telephoned OSHA and told a representative about the test. According to Kelly the OSHA representative told her that he did not understand why Mercoid would require Kelly to submit to urinalysis when she did not work with open mercury and that he did not know why Mercoid would require Kelly to provide a full gallon of urine. During this conversation the OSHA representative asked Kelly if she would submit to urinalysis if she could pick up the bottle directly from Callahan Clinic and then return the bottle directly to the clinic and Kelly responded that she would do so. With Kelly's consent the OSHA representative later telephoned Mulcrone to see if he would agree to this arrangement. Kelly claims that on the following morning the OSHA representative called her back and told her that Mulcrone insisted upon Kelly picking up the bottle at Mercoid's offices.

Approximately one week after the meeting held on September 9 1986 Kalwa telephoned Kelly to inform her that Mercoid had filed her and that a grievance had been filed on her behalf. In November 1986 a meeting was held concerning the grievance. Kelly Mulcrone Sanoguel Kalwa and Joe Needham ("Needham") the business representative for the union were present at this meeting. During the meeting Kelly maintains that she reiterated her willingness to submit to the urinalysis under supervised conditions. Needham took statements from Mulcrone and Kelly the meeting was adjourned and another meeting was set for December 8 1986.

Before December 8 1986 Kelly retained her attorney and filed her complaint in the state court. At that time Kelly's attorney took over the negotiations for Kelly and after discussing the matter of the upcoming meeting with Kelly and learning of Kelly's desire to visit with her mother that day Kelly's attorney advised Kelly that the December 8th meeting could be canceled. Both Kelly's attorney and Kelly herself advised the union of the decision to cancel the meeting. The meeting was never rescheduled. On February 25 1987 the union rendered its decision not to arbitrate Kelly's grievance.

At all times relevant to this action Kelly was a member of Local 1031 of the International Brotherhood of Electrical Workers ("the union"). During Kelly's period of employment the union and Mercoid had negotiated a series of collective bargaining agreements. Although the most recent collective bargaining agreement ("the agreement") between the union and Mercoid had expired on April 30 1986 Section 2 of the agreement provided for automatic renewal from year to year thereafter unless Mercoid or the union gave notice to the other party to amend modify or terminate within not less than sixty days notice prior to any expiration date. Neither party sent any such notice. On May 2 1986 Mercoid notified the union that it would no longer collect union dues because the agreement had expired. Nevertheless Mercoid and the union continued to follow the grievance and arbitration provisions of the expired agreement.

Indeed in July 1986 Kelly filed a grievance in connection with a dispute over her paycheck. The union processed that grievance according to the terms of the grievance and arbitration clause of the expired agreement. In September 1986 Kelly again invoked the grievance and arbitration procedures of the agreement in connection with the urinalysis dispute. In addition at all times relevant to this action Kelly expressed complete satisfaction with the union's representation of her.

  1. Discussion
As the Magistrate Judge correctly noted under Rule 56 summary judgment is appropriate only where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct. 2505 (1986). Guided by these standards we evaluate Mercoid's motion.

Mercoid argues that the terms of the agreement especially the grievance and arbitration clause were entitled to a presumption of effectiveness and intended by the parties to be in effect. Furthermore argues Mercoid Kelly's claims are simply claims for breach of the agreement which will certainly require interpretation of the agreement for resolution and as such are preempted by Section 301 of the Labor Management Relations Act. According to Mercoid because Kelly has not exhausted her grievance procedures under the agreement nor has she alleged that the union breached its duty of fair representation prerequisites to a suit under Section 301 Mercoid is entitled to summary judgment. Alternatively Mercoid contends that Counts I through III of Kelly's complaint are constitutional claims and therefore require governmental or state action. Because there is no such action here Mercoid argues that Counts I through III fail on this additional ground. Finally Mercoid asserts that summary judgment is appropriately entered on Count IV because the event which allegedly invaded Kelly's privacy never took place.

In response Kelly argues that no agreement existed and consequently that Section 301 does not apply. In addition Kelly contends that regardless of the existence of an agreement her claims do not "require construing" the agreement and therefore are independent of Section 301. Finally Kelly asserts that there is sufficient state action to sustain her constitutional claims. We address these various arguments in turn.

  1. Existence of the Collective Bargaining Agreement
As an initial matter this Court must determine whether there was a collective bargaining agreement in existence between Mercoid and the union before we reach the preemption issue. In its objections Mercoid argues that the Magistrate Judge erroneously concluded that no agreement existed. According to Mercoid the actions of the parties clearly manifested an intent to be bound by the grievance and arbitration provisions. Conversely Kelly asserts that the Magistrate Judge properly concluded that no agreement existed and that Mercoid has failed to demonstrate that the parties intended the agreement to continue. We agree with Mercoid.

An examination of the agreement is enlightening. Section 2 Article 1 of the agreement provides that:

This Agreement shall remain in full force and effect until April 30 1986 and then shall automatically renew itself from year to year thereafter unless the Company or the Union gives written notice to the other party to amend modify or terminate within not less than sixty (60) days prior to any expiration date.

[ By its terms the agreement was to automatically renew unless Mercoid or the union gave notice to the other party of its decision to amend modify or terminate. No notice of termination was tendered by either party. In fact only one event may be conceivably characterized as an amendment to the agreement. On May 2 1986 Mercoid informed the union that it would no longer collect union dues. It is uncontroverted that this is the only change that Mercoid sought to make. It is similarly uncontroverted that the union did not seek to make any changes. Therefore the express contractual language employed by Mercoid and the union supports a finding of the "effectiveness" of the agreement.

Equally important even if the agreement did expire by its terms on April 30 1986 it is clear that the parties by their actions did intend to be bound by provisions of the agreement after its expiration. Stated another way in this Court's view the agreement remained in effect as a result of the mutual conduct of the parties. See e.g. United Paperworkers Int'l Union v. Wells Badger Indus. Inc. 835 F.2d 701 (7th Cir. 1987); Overby v. Chevron USA Inc. 884 F.2d 470 (9th Cir. 1989).

For example in Wells Badger the collective bargaining agreement expired on January 1 1985. As a result of unsuccessful contract re-negotiations defendant on February 14th circulated a memo informing its employees that certain changes in "wages hours and working conditions" would be made. 835 F.2d at 702. Thereafter on February 19th defendant circulated a second memo stating that with the exception of the specific changes contained in the first memo the Wages/Benefits, Hours of Work and Work Rules will remain the same as they were prior to February 14th, 1985. 835 F.2d at 702. During this period of time the arbitration provision was not in issue. 835 F.2d at 702-03. Approximately seven months later on September 24 1985 a union member was discharged on the basis of the new attendance policy implemented by defendant after the contract expired. 835 F.2d at 703. The union filed a grievance on behalf of the fired employee and argued an interim agreement existed by virtue of the February memoranda. After the union filed the grievance the union and defendant selected an arbitrator and set a date for arbitration. 835 F.2d at 703.

Armed with these salient facts the Seventh Circuit concluded that the agreement remained in effect notwithstanding the express termination date. According to the Seventh Circuit in order to establish the existence of a collective bargaining agreement all that is required is conduct manifesting an intention to abide and be bound by the terms of an agreement. 835 F.2d at 704 (quoting Capital-Husting Co. v. NLRB 671 F.2d 237 (7th Cir. 1982)). Guided by this standard the Court was satisfied that the parties subsequent course of conduct was factually sufficient to objectively ascertain the parties' intent. 835 F.2d at 704. In affirming the district court's finding that both parties intended the arbitration provision to extend beyond the term of the original contract the Seventh Circuit held that:. Because we find that the arbitration provision of the expired collective bargaining agreement was implicitly extended past the expiration date of the agreement by the company's memos and that the company itself acknowledged this obligation when it joined the Union in selecting an arbitrator and setting a date for arbitration we find that no genuine issue of material fact exists as to the intent of the parties to arbitrate post-contract disputes.

Wells Badger 835 F.2d at 705. *fn3

In her report the Magistrate Judge relied by analogy on Overby v. Chevron and concluded that Mercoid failed to demonstrate that there was a mutual intent to be bound by any of the terms of the collective bargaining agreement. We disagree. First the union on two separate occasions after April 30 1986 (arguably the expiration date of the agreement) invoked the grievance clause on behalf of Kelly. On or about July 18 1986 Kelly filed a grievance with the union in connection with a dispute over her paycheck. Mercoid responded to the grievance on or about July 25 1986. The union and Kelly did not pursue the matter. Further in September 1986 Kelly invoked the grievance procedure of the agreement in connection with the urinalysis dispute. With respect to this grievance representatives from the union and Mercoid met with Kelly in an attempt to resolve the dispute. *fn4 Thereafter on February 25 1987 the union notified Kelly that it would not seek arbitration of the grievance underlying this lawsuit. As the foregoing demonstrates the union recognized its obligations under the grievance and arbitration clause and evidenced an intent to be bound by its terms.

Second at no time did Mercoid ever indicate that the grievance and arbitration clause was not in effect. On the contrary Mercoid continued to adhere to the grievance and arbitration provision without any objection to its use by the union and Kelly. Unlike Overby there is no evidence which demonstrates that the parties did not intend to be bound by this clause. With the exception of Mercoid's notice to the union that it would no longer collect union dues there is no evidence of any other change modification or amendment to the agreement. The lack of changes coupled with continued adherence to the grievance and arbitration clause clearly manifests Mercoid's intent to be bound by the provisions of the collective bargaining agreement with the sole exception of collecting union dues.

In this Court's view it is undisputed that both the union and Mercoid have exhibited the requisite intent to be bound by the provisions of the agreement. As the Court finds that the agreement has not expired we next address Mercoid's preemption argument under Section 301 of the Labor Management Relations Act. *fn5

  1. Preemption Under Section 301
Section 301 provides in pertinent part that "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce may be brought in any district court of the United States having jurisdiction of the parties " 29 U.S.C. SEC. 185(a). In essence Section 301 confers jurisdiction on the federal courts over disputes involving collective bargaining agreements and "also authorizes the courts to fashion 'a body of federal law for the enforcement of these collective bargaining agreements.'" United Steelworkers of America v. Rawson U.S. 110 S. Ct. 1904 1909 109 L. Ed. 2d 362 (1990) (quoting Textile Workers v. Lincoln Mills of Alabama 353 U.S. 448 451 1 L. Ed. 2d 972 77 S. Ct. 912 (1957)). Moreover the preemptive force of Section 301 is very powerful as it displaces any "state-law cause of action for violation of collective bargaining agreements . . . ." Rawson 110 S. Ct. at 1909. In addition to contract claims state law tort actions are also subject to preemption under Section 301. Allis-Chalmers Corp. v. Lueck 471 U.S. 202 218 85 L. Ed. 2d 206 105 S. Ct. 1904 (1985).

The Supreme Court has set forth various tests to determine when a cause of action will be preempted. See Allis-Chalmers 471 U.S. at 213-14 (" the question is whether the . . . tort is sufficiently independent of federal contract interpretation to avoid preemption . . . . "); Lingle v. Norge Division of Magic Chef Inc. 486 U.S. 399 108 S. Ct. 1877 1885 100 L. Ed. 2d 410 (1988) (". . . we hold that an application of state law is pre-empted by SEC. 301 . . . only if such application requires the interpretation of a collective bargaining agreement.") In other words the preemption analysis must focus on whether the cause of action requires interpretation of the collective bargaining agreement. With these standards as our benchmark we address the preemption issue.

Kelly argues that her privacy claims which challenge the reasonableness of Mercoid's urinalysis policy are independent of the collective bargaining agreement. According to Kelly her claims arise under the mandate of Illinois public policy and require no interpretation of the agreement. Conversely Mercoid asserts that Kelly's claims require an interpretation of Article I Section 4 *fn6 of the collective bargaining agreement which authorizes Mercoid to govern the safety of its employees through its mercury testing policy.

Even though the agreement does not make explicit reference to Mercoid's urinalysis policy this does not mean an interpretation of the contract is not required. Douglas v. American Info. Tech. Corp. 877 F.2d 565 572-73 (7th Cir. 1989). Moreover while Kelly's suit does not explicitly allege a breach of the agreement (perhaps artfully done to attempt to escape Section 301) in this Court's view her claims clearly implicate and arise under the provisions of the agreement. In her amended complaint she challenges the working conditions at Mercoid which require employees who handle open mercury to submit to urinalysis. Clearly Mercoid has the authority under this agreement to implement reasonable rules to assure the safety and health of its employees. *fn7

Numerous authorities have held that constitutional claims virtually identical to those asserted by Kelly (in Counts II and III) are preempted by Section 301. While the parties and the Magistrate Judge have not cited Seventh Circuit authority and our own research has disclosed none we are satisfied that analogous authority from other circuits is instructive and persuades us that Counts II and III are preempted. For example in Laws v. Calmat 852 F.2d 430 (9th Cir. 1988) plaintiff argued that his right to privacy afforded him under the Constitution of the State of California was violated by defendant's unilaterally implemented mandatory urinalysis testing for drugs and alcohol. The court determined that plaintiff's claim was "substantially dependent upon" the collective bargaining agreement which governed employees' working conditions and was therefore preempted by Section 301. Thereafter the court granted defendant's motion for summary judgment for plaintiff's failure to exhaust his administrative remedies. Laws 852 F.2d at 434. See also Stikes v. Chevron USA Inc. 914 F.2d 1265 1270 (9th Cir. 1990) (employee's action for infringement of his right to privacy in violation of the California Constitution preempted by Section 301 and dismissed on summary judgment) cert. denied __ U.S.__ 114 L. Ed. 2d 101 111 S. Ct. 2015 (1991); Schlacter-Jones v. General Telephone 936 F.2d 435 439-40 (9th Cir. 1991) (same); Jackson v. Liquid Carbonic Corp. 863 F.2d 111 120-22 (1st Cir. 1988) (employee's claims that his right to privacy and right to be free from unreasonable search and seizure under the Massachusetts Constitution were violated by defendant's urinalysis policy preempted by Section 301) cert. denied 490 U.S. 1107 104 L. Ed. 2d 1021 109 S. Ct. 3158 (1989).

Similarly it is well-established that Count IV of Kelly's amended complaint which asserts a state law tort claim for invasion of privacy is preempted by Section 301. See Kirby v. Allegheny Beverage Corp. 811 F.2d 253 256 (4th Cir. 1987); Willis v. Reynolds Metals Co. 840 F.2d 254 (4th Cir. 1988); Strachan v. Union Oil Co. 768 F.2d 703 (5th Cir. 1985). *fn8 Therefore we conclude that Counts II III and IV of Kelly's amended complaint are preempted by Section 301. *fn9

Finally we must address whether Kelly states a cause of action under Section 301. Generally speaking in order to bring an action under Section 301 against an employer a plaintiff must exhaust "any grievance or arbitration remedies provided in the collective-bargaining agreement." Del Costello v. Int'l Bhd. Of Teamsters 462 U.S. 151 163 76 L. Ed. 2d 476 103 S. Ct. 2281 (1983). Moreover a plaintiff must establish that the union breached its duty of fair representation. Chauffeurs Teamsters & Helpers Local No. 391 v. Terry 494 U.S. 558 110 S. Ct. 1339 1344 108 L. Ed. 2d 519 (1990). See Del Costello 462 U.S. at 164-65; Smith v. Colgate-Palmolive Co. No. 90-3677 943 F.2d 764 1991 U.S. App. at 23 (7th Cir. 1991). It is undisputed that Kelly is unable to sustain her burden. In fact Kelly stated in her deposition that she was completely satisfied with the union's representation of her. Moreover she does not allege in her amended complaint that she exhausted her remedies under the grievance and arbitration clause. Rather plaintiff merely alleged that she filed a grievance with the union and that the union chose not to arbitrate. Therefore summary judgment is granted in Mercoid's favor on Counts II III and IV.

  1. Count I -- Fourth Amendment Claim
For different reasons summary judgment is appropriately granted in Mercoid's favor on Count I. In Count I of her amended complaint Kelly purportedly asserts that Mercoid's urinalysis policy violated her Fourth Amendment right to be free from unreasonable search and seizure. The Magistrate Judge properly concluded that Count I was fatally defective as there was no governmental conduct. Kelly did not object to this portion of the Magistrate Judge's report. We agree with the Magistrate Judge's well-reasoned analysis that Kelly's "claim" under the Fourth Amendment is wholly deficient. Consistent with the Magistrate Judge's recommendation we grant Mercoid's motion for summary judgment on Count I.
  1. Deficiency of Counts II III and IV
In this Court's opinion even if Section 301 does not preempt Kelly's claims under the Illinois Constitution and her tort cause of action for invasion of privacy it would promote judicial economy and fairness to the litigants to retain supplemental jurisdiction *fn10 over Kelly's state law claims rather than remand to the state court. The Supreme Court in Carnegie-Mellon Univ. v. Cohill 484 U.S. 343 108 S. Ct. 614 98 L. Ed. 2d 720 (1988) set forth the various factors a district court must consider before it decides to exercise its pendent jurisdiction. A district court "should consider and weigh in each case and at every stage of the litigation the factors of judicial economy convenience fairness and comity." Carnegie-Mellon 108 S. Ct. at 618. In our view the traditional notions of fairness and efficiency support retaining jurisdiction. This case has been pending in federal court for over four years discovery has been completed and this Court is fully conversant with the facts and issues of the case. Further the issues raised by Kelly in Counts II through IV do not involve complex questions of Illinois law and may be readily resolved by the Court on Mercoid's motion for summary judgment. Salazar v. City of Chicago No. 89-3551 940 F.2d 233 1991 U.S. App. 17905 at 30 (7th Cir. 1991); Newport Limited v. Sears Roebuck & Co. 941 F.2d 302 307 1991 U.S. App. 19844 (5th Cir. 1991). Therefore we address the merits of Mercoid's motion for summary judgment with respect to Counts II through IV.
  1. Absence of Governmental Action: Counts II and III
In addition to being preempted by Section 301 Counts II and III are deficient in another respect -- they advance no plausible theory under which state action may be found. In Count II Kelly alleges that Mercoid violated her right under Article I Section 6 of the Illinois Constitution to be free from unreasonable search and seizure. Similarly in Count III Kelly claims that Mercoid unreasonably invaded her privacy in violation of Article I Section 6 of the Illinois Constitution. In its underlying briefs and in its objections to the Magistrate Judge's report Mercoid argues that summary judgment must be entered against Kelly on Counts II and III because she failed to allege (and indeed cannot allege) any state action. *fn11 In other words Mercoid asserts that actions by a private employer to implement health and safety procedures does not offend the Illinois Constitution.

In its objections which we sustain Mercoid cites Barr v. Kelso-Burnett Co. 106 Ill. 2d 520 478 N.E.2d 1354 1356-57 88 Ill. Dec. 628 (1985) and People v. Smith 72 Ill. App. 3d 956 964 390 N.E.2d 1356 1363 28 Ill. Dec. 766 (1st Dist. 1979). Both of these cases make patently clear that Article I Section 6 of the Illinois Constitution protects against governmental action.

Counts II and III of Kelly's amended complaint are devoid of any allegations of state action for the fundamental reason that this case does not present constitutional issues. Kelly's failure to even address Mercoid's arguments on this point in her underlying response brief illustrates the frivolousness of these counts. Therefore as Kelly has wholly filed to allege any state action which would support her claims of unreasonable search and seizure (Count II) or unreasonable invasion of privacy (Count III) in violation of Article I Section 6 of the Illinois Constitution summary judgment must be granted on Counts II and III.

  1. Invasion of Privacy: Count IV
By the same token summary judgment must be entered in Mercoid's favor on County IV of Kelly's amended complaint. In Count IV Kelly improperly combines two privacy claims and purports to assert a claim for unreasonable intrusion upon her seclusion and false lights invasion of privacy. While it is unclear which privacy cause of action Kelly asserts it is clear to this Court that she has failed to allege a cognizable action under either theory.

In Miller v. Motorola Inc. 202 Ill. App. 3d 976 560 N.E.2d 900 148 Ill. Dec. 303 (1st Dist. 1990) the Illinois Appellate Court recognized that in order to establish a cognizable claim for unreasonable intrusion upon seclusion a plaintiff must plead and prove the following elements:

  1. an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the intrusion must be offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs must be private; and (4) the intrusion causes anguish and suffering.
Miller 202 Ill. App. 3d at 981 560 N.E.2d at 904. However whether such a state created privacy right exists is a matter of contention among the Illinois Appellate Courts and this conflict has not been resolved by the Illinois Supreme Court. Lovgren v. Citizens First Nat'l Bank 126 Ill. 2d 411 417 534 N.E.2d 987 989 128 Ill. Dec. 542 (1989); Owusu v. Grzyb 749 F. Supp. 897 907 (N.D. Ill. 1990).

In this Court's opinion Mercoid's requirement that its employees who handle open mercury submit to urinalysis testing does not constitute an unreasonable intrusion into the seclusion of another. In fact even if the Illinois Supreme Court were to recognize such an action Kelly would be unable to meet her burden for the simple reason that she never submitted to such a test. Obviously therefore she has not and cannot demonstrate an unauthorized intrusion. To the extent that Kelly asserts a privacy cause of action based on unreasonable intrusion summary judgment is appropriately entered on Count IV.

Moreover Kelly's "false lights" claim in Count IV is wholly inadequate. In Lovgren v. Citizens First Nat'l Bank the Illinois Supreme Court recognized this branch of invasion of privacy as creating a cause of action where a plaintiff is placed "before the public in a false light" which would "be highly offensive to a reasonable person." Lovgren 126 Ill. 2d at 418-19 534 N.E.2d at 989-90; Restatement (Second) of Torts SEC. 652E (1977). To be actionable the statement must be publicized. Lovgren 126 Ill. 2d at 418 534 N.E.2d at 989. The Restatement has defined what constitutes making a matter public "by communicating it to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Restatement (Second) Torts SEC. 652D comment a; Zechman v. Merrill Lynch Pierce Fenner & Smith 742 F. Supp. 1359 1372 (N.D. Ill. 1990).

Application of these standards to the instant case reveals that Kelly's claim is wholly inadequate. First Kelly does not allege that Mercoid made any statements or attributed any conduct to her which would place her in a false position. Further there is no allegation of publicity. To the extent that Count IV of Kelly's amended complaint sounds in false lights invasion of privacy summary judgment is granted in Mercoid's favor.

  1. Attorneys' Fees and Costs
Finally consistent with our decision to grant Mercoid's motion for summary judgment in its entirety we also reject the Magistrate Judge's recommendation denying sanctions under Rule 11 of the Federal Rules of Civil Procedure. As an initial matter the Magistrate Judge addressed the motion for sanctions only as it relates to the federal questions of preemption and search and seizure under the Fourth Amendment to the United States Constitution. Accordingly she declined to evaluate the motion as it relates to Counts II III and IV because she concluded that these counts should be remanded to the state court. *fn12

With respect to the preemption argument the Magistrate Judge concluded that sanctions were inappropriate as Kelly prevailed on this point. On the other hand even though the Magistrate Judge recognized that Count I was "not an objectively reasonable pleading and was obviously faulty she did not recommend sanctions because Mercoid's opposition to it was incidental to its main thrust which was preemption." (Report and Recommendation at 16). We do not agree.

Rule 11 of the Federal Rules of Civil Procedure provides that where an attorney or a party files pleadings that are not reasonably based on the law or in fact or a good faith argument for the extension of existing law sanctions are appropriate for expenses incurred including attorneys' fees. Fed. R. Civ. P. 11. For purposes of Rule 11 litigation is deemed "frivolous" where a party or his attorney fails to make a reasonable inquiry into the facts or the law. Brown v. Fed'n of State Medical Bds. 830 F.2d 1429 1435 (7th Cir. 1987).

In this Court's view Counts I through III of Kelly's amended complaint which purport to allege violations of the Fourth Amendment of the United States Constitution and the Illinois Constitution are so specious and baseless as to warrant the imposition of sanctions. It appears to this Court that Kelly made no reasonable inquiry under Rule 11. Cursory research would have clearly indicated that government action or state action is required to state cognizable claims for unreasonable search and seizure and invasion of privacy under the United States and Illinois Constitutions. See e.g. Hoffa v. United States 385 U.S. 293 17 L. Ed. 2d 374 87 S. Ct. 408 (1966); Sanders v. A.J. Canfield Co. 635 F. Supp. 85 (N.D. Ill. 1986); Barr v. Kelso-Burnett Co. 106 Ill. 2d 520 478 N.E.2d 1354 1356-57 88 Ill. Dec. 628 (1985); People v. Smith 72 Ill. App. 3d 956 964 390 N.E.2d 1356 1363 28 Ill. Dec. 766 (1st Dist. 1979). By the same token Count IV of Kelly's amended complaint is similarly not reasonably based in law or fact. As Kelly never submitted to a urinalysis test her argument that her privacy was invaded or an unreasonable search and seizure occurred is fundamentally flawed. Accordingly we reject the Magistrate Judge's recommendation to deny sanctions on these grounds. *fn13

Conversely in light of the fact that preemption under Section 301 is a very fluid and evolving area of the law Kelly's position regarding Mercoid's preemption argument was not so tenuous as to warrant the imposition of sanctions. Therefore this Court affirms that portion of the Magistrate Judge's recommendation which denied sanctions on the preemption issue.

While this Court recognizes the difficulties inherent in determining what share of Mercoid's litigation expenses are attributed to challenging Kelly's constitutional and invasion of privacy arguments in Counts I through IV as opposed to advancing its preemption argument directed at all counts we believe that Mercoid bears the burden of establishing with specificity the fees and costs generated in connection with the arguments raised to Kelly's constitutional and privacy claims in Counts I through IV. Therefore we direct Mercoid to submit to this Court on or before October 7 1991 a petition and affidavit which accurately calculates Mercoid's reasonable attorneys' fees and costs only as they relate to Kelly's constitutional and privacy claims raised in Counts I through IV. *fn14

  1. Conclusion
For the reasons stated in this opinion this Court rejects that portion of Executive Magistrate Judge Lefkow's Report and Recommendation denying Mercoid's motion for summary judgment on Counts II III and IV of the amended complaint and instead grants Mercoid's motion for summary judgment on Counts II III and IV. The Court adopts that portion of the Magistrate Judge's Report and Recommendation granting Mercoid's motion for summary judgment on Count I. Finally the Court rejects the Magistrate Judge's recommendation denying the imposition of sanctions against Kelly pursuant to Rule 11 of the Federal Rules of Civil Procedure and instead grants in part Mercoid's request for attorneys' fees and costs under Rule 11.
 
Notes:

*fn1 For the record we note that Kelly's deposition testimony is inconsistent as to whether she read the three-page memorandum herself. Nevertheless Kelly's counsel stipulated during the deposition that Kelly in fact read the three-page memorandum.

*fn2 On this point we note that Kelly vacillated in her deposition testimony.

*fn3 By the same token in Overby v. Chevron the Ninth Circuit recognized this same legal principle but concluded that on the facts before it there was no mutual intent on the part of the employer and the union to be bound by provisions of the expired agreement. 884 F.2d at 474. Rather the court found that the employer's unilateral intent to be bound was insufficient. Therefore the contract expired by its terms and was not enforceable in a Section 301 action. 884 F.2d at 474.

*fn4 On each occasion the grievance was handled pursuant to the grievance procedure set forth in the agreement. Article 2 Section 2 of the agreement provided for a two-step grievance procedure. An employee would file a grievance with the union. The union would present the grievance to Mercoid. Within five days after presentation of the grievance Mercoid was to respond to each grievance. The matter was then considered terminated unless Mercoid received contrary notice from the union within ten days. In the event this grievance procedure did not resolve the situation under Article 2 Section 3 of the agreement both the union and Mercoid had the option of requesting binding arbitration. Arbitration was not mandatory under the agreement.

*fn5 On July 30 1991 the Court ordered the parties to brief the applicability of the Supreme Court's recent decision in Litton Financial Printing Div. v. NLRB __ U.S. 111 S. Ct. 2215 (1991) as it relates to this issue. In Litton the Court addressed and refined the presumption of "arbitrability" after the expiration of a collective bargaining agreement as was set forth in Nolde Bros.' Inc. v. Bakery & Confectionery Workers Union 430 U.S. 243 51 L. Ed. 2d 300 97 S. Ct. 1067 (1977). In Litton the Court limited the Nolde Bros. presumption to disputes arising under the contract. 111 S. Ct. at 2225. A post-expiration grievance arises under the contract only in three circumstances: (1) "it involves facts and occurrences that arose before expiration (2) where an action taken after expiration infringes a right that accrued or vested under the agreement or (3) under normal principles of contract interpretation the disputed contractual right survives expiration of the remainder of the agreement." 111 S. Ct. at 2225. For the reasons previously discussed the Court is satisfied that the third factor is applicable to the instant case.

*fn6 Article I Section 4 provides in pertinent part that: "It is recognized and agreed by the Company and the Union that the management of the Company is vested solely in the Company and the Company may determine work processes and enact Company policies which are not in conflict with the Agreement."

*fn7 On October 2 1987 the Board of Review of the Illinois Department of Employment Security concluded that Kelly was properly discharged for misconduct. The Board further determined that Mercoid's urinalysis policy was reasonable as it reflected Mercoid's desire to protect its workers from excessive exposure to mercury.

*fn8 Contrary authority does exist. In Keehr v. Consolidated Freightways 825 F.2d 133 (7th Cir. 1987) the Seventh Circuit held that plaintiffs' claims for invasion of privacy were not preempted by Section 301. However the facts in Keehr are readily distinguishable from the instant case. In Keehr plaintiff filed a tort claim against defendant as a result of a supervisor's abusive and sexually derogatory comments made regarding plaintiff's wife. Clearly this factual scenario did not require interpreting the labor contract. 825 F.2d at 137.

*fn9 We do not reach the preemption issue with respect to Kelly's Fourth Amendment claim (Count I). As discussed more fully within this Memorandum Opinion we agree with the Magistrate Judge that summary judgment is properly granted on this Count on alternative grounds.

*fn10 The doctrine of pendent jurisdiction was codified by Congress and is now known as "Supplemental Jurisdiction." 28 U.S.C. SEC. 1367. The statutory prequisites for exercising supplemental jurisdiction are satisfied.

*fn11 We note for the record that the Magistrate Judge declined to address these arguments. Therefore we review de novo the merits of Mercoid's arguments.

*fn12 However the Magistrate Judge sternly cautioned Kelly to consider the dismissal of these counts "rather than risk sanctions under Section 2-611 of the Illinois Code of Civil Procedure." (Report and Recommendation at 16). We agree with the Magistrate Judge that Counts II through IV of Kelly's amended complaint suffer from incurable deficiencies and are not objectively reasonable pleadings.

*fn13 We note for the record that before and after Mercoid filed its motion for summary judgment and sanctions counsel for defendant in letters dated April 15 1987 and April 27 1987 which cited controlling precedent from the Supreme Court and Seventh Circuit strongly urged plaintiff's attorney to withdraw her lawsuit.

*fn14 At the outset the Court cautions Mercoid that it will carefully scrutinize its fee petition. This Court will not award sanctions where the fees reflect an excessive expenditure of time and effort for the nature of the task performed. Accordingly we urge Mercoid to carefully review its petition for reasonableness prior to submission to the Court.