Cramer

These appeals raise the familiar issue of when state law claims by employees covered by a collective bargaining agreement are preempted. 1 They all arise out of the surreptitious videotaping of restrooms through two-way mirrors, an activity that is arguably criminal in California. Employees at the trucking terminal where this happened filed related actions seeking recovery from their employer, Consolidated Freightways Corporation of Delaware, for invasion of privacy (Cramer and Alfaro); emotional distress (Alfaro); and discharge in retaliation for their own conduct related to the surveillance (Hoffman). The district court held that all the claims in each action are preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 , 2 because determining whether privacy rights have been violated re *1127 quires an interpretation and application of the collective bargaining agreement. The employees contend otherwise, primarily for the reason that parties to a collective bargaining agreement cannot negotiate for considerations that violate criminal statutes. Following a long line of authority in this circuit, we agree with the district court in Cramer and Alfaro that…

dissenting in part:

George Orwell, 1984 6-7 (Signet Classic 1992) (1949).

In this era of diminished privacy, where television transforms to reality what used to be considered fiction, see, e.g., Edmund L. Andrews, Europe’s 'Reality’ TV: Chains and Big Brother, N.Y. Times, April *1136 11, 2000, at A4 (describing a television game show called “Big Brother” for which contestants “are sealed for 100 days in a house where cameras and microphones record them 24 hours a day”), perhaps one should not be troubled by the blatant invasion of privacy at issue in this case. But I simply cannot agree that federal labor law intends to preempt states from protecting their citizens — even those working under collective bargaining agreements- — from the kind of bathroom spying secretly and unilaterally employed by Consolidated Freightways, Inc.

Consolidated’s clandestine surveillance of its employees and others using cameras hidden behind two-way mirrors was criminal conduct, in clear violation of California law. The California Penal Code unambiguously prohibits installing two-way mirrors in restrooms, see Cal.Penal Code § 653n, and bars using a camera to look through a hole or opening into a…