Plaintiff a truck driver was employed by defendant from 1976 until January 1986 when he was discharged after testing positive for marijuana use. He filed suit in Middlesex County Superior Court on December 16 1986 seeking reinstatement an injunction barring further drug testing and compensatory damages based on theories of state tort law the state privacy statute Mass. Gen. L. ch.214 SEC. 1B (1986) and the state civil rights statute Mass. Gen. L. ch.12 11H 11I (1986). Defendant removed the case to this Court asserting both federal question jurisdiction and diversity of citizenship. *fn1

Now before me is defendant's motion for summary judgment on the ground that plaintiff's claims are pre-empted by federal law. *fn2 For the reasons set out below the motion is allowed.

As a preliminary matter plaintiff has moved to strike the factual allegations contained in paragraphs 5-16 of the affidavit of Melvin Dashevsky who was at the relevant time defendant's Northeast Operations Manager. The affidavit describes the genesis of the drug testing program its relationship to the collective-bargaining agreement between defendant and Teamsters Chauffeurs Warehousemen and Helpers Local Union No. 49 ("Local 49") and what occurred with respect to plaintiff's discharge. Plaintiff does not dispute the accuracy of Dashevsky's statements only their relevance. Because the collective-bargaining agreement is central to the resolution of this case United Steelworkers of America v. Warrior and Gulf Navigation Co. 363 U.S. 574 581-82 (1960) the motion to strike is denied.

From the allegations of the complaint and the undisputed facts contained in the Dashevsky affidavit (and attachments) the following scenario emerges. Plaintiff while in defendant's employ was a member of a collective-bargaining unit represented by Local 49. At the time of plaintiff's discharge defendant and Local 49 were parties to a collective-bargaining agreement ("the Agreement").

In January 1986 when plaintiff reported for a physical examination required by defendant and the United States Department of Transportation he was also required to supply a urine sample for drug testing. Before the January 1986 test plaintiff had compiled a nine-year record of satisfactory work for defendant free of any disciplinary action. At the time of the test defendant had no reason to believe that plaintiff was a drug user. Indeed plaintiff has never ingested marijuana. Further the testing procedures were flawed as the samples were inadequately labeled.

On February 13 1986 defendant notified plaintiff that he was suspended without pay pending further investigation of the drug test results. One week later defendant discharged plaintiff because on re testing the urinalysis again indicated marijuana use. Plaintiff's request for an independent drug test was refused. After his discharge plaintiff was unemployed for six months. He of course lost income and suffered emotional distress from both his unemployment and the events leading up to it.

Article XIII of the Agreement prohibits defendant from discharging or suspending employees except for just cause and Article XII outlines the grievance procedure for employee claims of wrongful suspension or discharge culminating in arbitration if necessary. Plaintiff apparently did not file a grievance or complaint. *fn3 Shortly after his discharge however two union representatives and plaintiff met with officials of defendant and discussed his termination. No further action was taken.

The complaint is premised on three theories. The first claim is under the Massachusetts Civil Rights Statute Mass. Gen. L. ch.12 SEC.(s) 11H III for violation of plaintiff's civil rights to be free from unreasonable searches and seizures under the state and federal constitutions. Plaintiff's second claim is for violation of Mass. Gen. L. ch.214 SEC. 1B the privacy statute and the third for wrongful termination in violation of public policy.

Defendant contends that stripped to their essentials all of plaintiff's claims reduce to wrongful discharge that this is covered by the collective-bargaining agreement and that the exclusive remedy for breach of that agreement is under Section 301 of the Labor Management Relations Act 29 U.S.C. 185 (1982). Plaintiff disputes neither the assertion that the Agreement provides remedies for wrongful discharge nor that federal law provides the exclusive remedy for breach of the Agreement. He asserts simply that his claims founded on state common and statutory law as well as the state and federal constitutions are independent of any contractual terms in the collective-bargaining agreement.

"The law is completely clear that employees may not resort to state tort or contract claims in substitution for their rights under the grievance procedures in a collective-bargaining agreement." Strachan v. Union Oil Co. 768 F.2d 703 704 (5th Cir.1985). The test is whether the tort action "confers non-negotiable state law rights on employers or employees independent of any right established by contract or instead whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract." Allis-Chalmers Corp. v. Lueck 471 U.S. 202 213 (1985).

Plaintiff describes the wrongful discharge count as a tort claim independent of the contract embodied in the Agreement. Because the Agreement explicitly prohibits defendant from firing employees except for just cause the wrongful discharge claim is in essence that defendant violated its obligation under the Agreement and that complaint may be presented only under SEC. 301. See Bertrand v. Quincy Market Cold Storage & Warehouse 728 F.2d 568 (1st Cir.1984) (employee claim of wrongful discharge is pre-empted by Sec. 301 despite plaintiff's pleading of state law tort of breach of implied covenant of good faith and fair dealing); Ether v. Amoco Oil Co. No. 86-C-9841 (N.D. Ill. March 30 1987) (Westlaw Allfeds database) (claim for wrongful discharge based on firing after positive drug test in violation of company policy encompassed in "just cause" provision of contract and therefore within Sec. 301).

Plaintiff's first and second theories are premised on his complaint that defendant's "conduct" interfered with his constitutionally (state and federal) and statutorily protected right to privacy. The only "conduct" alleged is the institution of the particular drug testing program *fn4 the coercive testing of plaintiff pursuant thereto and his discharge based on the test results. All aspects of such conduct are encompassed within and circumscribed by the Agreement.

The Agreement contemplates that employees will undergo periodic physical examinations. Article IX(e) provides for payment thereof by defendant and for payment of wages to the employee for time spent at such examination. It is undisputed that defendant in March 1985 promulgated a rule called Transportation Bulletin I-13 which required that each company driver be tested for drug and alcohol abuse as part of this periodic physical examination. Plaintiff in his complaint acknowledges that he was informed of the policy and that he signed a consent to urine testing albeit under duress. Under Article XXI(2) defendant has "the right to post reasonable rules and regulations from time to time which shall not in any way conflict with any of the provisions of this Agreement." The drug testing requirement is a "rule and regulation" within the meaning of Article XXI and plaintiff has pointed to no conflict between it and any other provisions of the Agreement and I have discerned none. Plaintiff does not challenge the right of defendant to institute a drug testing program. Instead he claims the right not to be subjected to testing in the manner directed by defendant i.e. under threat of loss of job and without probable cause or at least suspicion. Plaintiff thus concedes that the particulars of defendant's drug testing program were negotiable. See Allis-Chalmers 471 U.S. at 213. In essence then plaintiff alleges that the rule requiring testing was not "reasonable" within the meaning of the contract.

Article XII establishes a procedure for processing "any grievance involving the meaning application or interpretation of the provisions of [the] Agreement." This clause is unquestionably broad enough to include a challenge to the reasonableness of defendant's drug rule. See Kirby v. Allegheny Beverage Corp. 811 F.2d 253 256 (4th Cir.1987).

The first and second claim must therefore proceed initially in accordance with the terms of the contract and eventually under Sec. 301. See Allis-Chalmers Corp. v. Lueck 471 U.S. at 219-20. Accord Utility Workers Union of America Local No. 246 AFL-CIO v. Southern California Edison Co. CV 86-8250-HLH (TX) slip. op. (C.D. Cal. Feb. 11 1987) (claim for violation of state constitutional right to privacy and to be free from unreasonable searches and seizures under employer's random drug testing program pre-empted); Association of Western Pulp and Paper Workers v. Boise Cascade Corp. 644 F. Supp. 183 (D. Or. 1986) (state cause of action for violation of privacy under employer's drug testing program not independent of collective-bargaining agreement).

Defendant's motion for summary judgment is allowed. Judgment may be entered for defendant.

JUDGMENT

In accordance with the Memorandum of Decision dated October 30 1987 it is

ORDERED that judgment be and it is hereby entered for defendant.