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 restroom, see id. § 647(k)(l). Although the majority describes Consolidated’s conduct as “arguably criminal in California,” maj. op. at -, there is nothing “arguable” about the criminal nature and impropriety of Consolidated’s actions.

The Supreme Court has explicitly stated that: “Clearly, § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 , 105 S.Ct. 1904 , 85 L.Ed.2d 206 (1985). Nevertheless, the majority finds all of the Cramer and Alfaro plaintiffs’ claims to be preempted by § 301, even though (1) the collective bargaining agreement (“CBA”) in question does not discuss — even implicitly — surreptitious surveillance of restrooms 1 and (2) if the CBA did contain such provisions, those provisions would be void as violations of California criminal law, see 1 B.E. Witkin, Summary of California Law, Contracts §§ 430-31, at 386-88 (9th ed.1987). In my view, it defies logic to suggest that a court must interpret a CBA to determine whether the parties’ agreement permits illegal conduct. Therefore, I respectfully dissent from Parts II and III of the majority opinion to the extent the majority finds the plaintiffs’ claims to be completely preempted.

* * * ❖ * *

Preemption of an employee’s state tort claim turns on whether that claim “confers nonnegotiable 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 contracts.” Allis-Chalmers, 471 U.S. at 213 , 105 S.Ct. 1904 (emphasis added). The majority quotes Miller v. AT & T Network Systems, 850 F.2d 543, 546 (9th Cir.1988), for the proposition that “[a] right is nonnegotiable if the state law does not permit it to be waived, alienated, or altered by private agreement.” Maj. op. at-(internal quotation marks omitted). The majority then finds that “[gjiven the negotiable right at issue here, there is no basis for concluding that a different analysis applies to a privacy claim founded on arguably illegal, by contrast with legal but also invasive, activities.” Id. The majority’s conclusion that the plaintiffs’ right to be free from two-way mirror observation was “negotiable” (and, therefore, that there is no principled basis upon which to distinguish such claims based on illegal conduct from those in which the conduct is less offensive) lies at the heart of my disagreement with its analysis.

It is true that we generally regard California privacy claims as involving negotiable rights that are subject to § 301 preemption. See, e.g., Stikes v. Chevron USA, Inc., 914 F.2d 1265, 1270 (9th Cir.1990). *1137 As the majority suggests, this is because “consent is normally a defense to a privacy action.” Maj. op. at - (emphasis added). However, I do not believe this general rule supports the majority’s conclusion that privacy claims must always be preempted.

The various privacy cases cited by the majority are not only distinguishable, they also do not stand for the proposition that every privacy claim will be preempted by § 301. Most of the cases relied upon by the majority involve an employer’s right to institute mandatory drug testing in the workplace. See Schlader-Jones v. General Tel, 936 F.2d 435, 437 (9th Cir.1991) (employee terminated following positive drug test); Laws v. Calmat, 852 F.2d 430, 433 (9th Cir.1988) (employee suspended for refusing to submit to a urine test); Utility Workers of Am. v. Southern Cal. Edison Co., 852 F.2d 1083, 1085 (9th Cir.1988) (challenge to employer’s institution of random drug testing program under which employees receive one day’s notice of selection for testing). Our decisions in these cases were based on an underlying determination that “an employee’s right to be free from mandatory drug testing is properly a subject of collective bargaining,” Schlader-Jones, 936 F.2d at 442 , rather than on a blanket rule that all privacy claims necessarily require interpretation of a CBA. As we noted recently in Balcorta v. Twentieth Century-Fox Film Corp. ,—F.3d-, 2000 WL 350562 (9th Cir.2000):

Id. at-n. 10 (quoting Utility Workers of Am., 852 F.2d at 1086 ) (citations omitted). Unlike the conduct at issue here, drug testing is neither surreptitious activity on the part of an employer nor illegal under state law; therefore, as Balcorta suggests, there is no reason for us to bind ourselves to the expansive language of our previous drug testing cases when, as here, it is inappropriate to do so.

The majority’s reliance on California state court precedent to support its broad holding is also misplaced. Hill v. National Collegiate Athldic Association, 7 Cal.4th 1 , 26 Cal.Rptr.2d 834 , 865 P.2d 633 (1994), was written in the context of drug testing of college athletes, whose activities by their nature “involve! ] close regulation and scrutiny of [their] physical fitness and bodily condition,” and who regularly undergo physical examinations, including urinalysis, and “frequently disrobe in the presence of one another ... in locker room settings where private bodily parts are readily observable by others of the same sex.” Id. at 860, 865 P.2d 633 . 2 The court also emphasized the openness and consensual nature of the testing. See id. “Thus, athletes have complete information regarding the NCAA’s drug testing program and are afforded the opportunity to consent or refuse before they may be selected for testing.” 3 Id. at 860-61, 865 P.2d 633 .

Nothing in Hill suggests that someone who is surreptitiously spied upon in a bathroom by criminal means has anything other than a reasonable expectation of privacy as a matter of law. Hill simply does *1138 not create the blanket rule inferred by the majority, see maj. op. at- (“Hill expressly conditions the right to privacy on consent and circumstances.”), or stand for the proposition that, regardless of the context or the nature of the “surveillance” in a particular case, consent is always a question of fact (thereby requiring interpretation of a CBA, if one exists). Quite the contrary: the supreme court explained that “[w]hether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court,” and the availability of consent as a defense will turn on whether it is “appropriate in view of the nature of the claim and the relief requested.” Hill, 26 Cal. Rptr.2d at 859 , 865 P.2d 633 . Significantly, the court noted that the Hill plaintiffs had not contended that the NCAA’s conduct was “contrary to law or public policy.” Id. at 861, 865 P.2d 633 .

In contrast to the conduct at issue in Hill , the California Supreme Court has described § 653n as “expressing] a legislative policy against ‘clandestine observation of public restrooms,’ rendering it ‘reasonable for users thereof to expect that their privacy will not be surreptitiously violated.’ ” In re Deborah C., 80 Cal.3d 125 , 177 Cal.Rptr. 852 , 858 n. 9, 635 P.2d 446 (1981) (quoting People v. Metcalf, 22 Cal.App.3d 20 , 98 Cal.Rptr. 925, 927 (1971)). I do not believe the California Supreme Court, under the reasoning of Hill or otherwise, has precluded this court from concluding on the facts presented here that the plaintiffs as a matter of law had a reasonable expectation of privacy— that they would not be videotaped in Consolidated’s restrooms through two-way mirrors — and to that extent their privacy claims are not preempted by § 301. 4

I also disagree with the majority’s analysis of Alfaro’s emotional distress claims. This court’s preemption decisions do not establish a per se rule that such claims must be preempted by § 301. Compare Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir.1999) (claim of emotional distress resulting from mandatory drug testing is preempted), with Galvez v. Kuhn, 933 F.2d 773, 779-80 (9th Cir.1991) (claim of emotional distress resulting from assault not preempted because “[c]ompliance with the CBA ... cannot temper the potential outrageousness of the conduct”). Miller , upon which the majority relies, discussed how the factual distinctions underlying such claims can affect preemption analysis:

Miller, 850 F.2d at 550 n. 5 (emphasis added).

This case is analogous to Galvez v. Kuhn, in which we held that an employee’s claim for intentional infliction of emotional distress was not preempted by § 301. Applying the reasoning set forth in Miller and Allis-Chalmers, Galvez examined the nature of the conduct underlying the employee’s basic tort claim, rather than just the claim itself. See id. at 779. In partic *1139 ular, we noted in Galvez that “appellees’ alleged assault and battery is made criminal by state law.” Id. at 780.

Thus, the majority’s restrictive consideration of just the basic tort claims alleged by the plaintiffs is erroneous. I believe we must also look to the specific conduct underlying each tort claim (in this case, installation of two-way mirrors in restrooms and the use of cameras to view the restrooms through holes hidden behind those mirrors) to determine whether that conduct affects our analysis.

To do so is consistent with Supreme Court precedent, which supports the proposition that § 301 does not preempt claims based on conduct that is per se illegal under state law. See Allis-Chalmers, 471 U.S. at 212 , 105 S.Ct. 1904 (“Clearly, § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law.”). The majority does not adequately explain how its holding can be reconciled with Allis-Chalmers . Contrary to the majority’s suggestion, the facts of this case are not “precisely the situation” that the Court described as being subject to preemption in Allis-Chalmers , maj. op. at 1131; rather, as the language quoted above makes clear, this case involves the very situation the Court believed would not be preempted.

The majority recognizes that the plaintiffs’ argument, grounded as it is in Allis-Chalmers and Galvez, has “considerable force,” but concludes that this case is distinguishable. Maj. op. at 1131-32. In the majority’s view, the emotional distress claim in Galvez was based on conduct that “is neither more nor less outrageous depending upon the conditions governing conduct in the workplace” while the same claim in this case “depend[s] on the degree of surveillance contemplated [by the CBA].” Maj. op. at 1133.

I disagree. Such a distinction cannot be supported by precedent or the facts of this case.

In particular, I find unpersuasive the majority’s argument that the plaintiffs’ claims, which are in part based on conduct that is per se illegal (in other words, not subject to waiver by consent or otherwise by the citizens of California), are completely preempted because “[n]o one suggests that the subject of surveillance is an improper subject for collective bargaining.” Id. at 1131. The majority paints with too broad a brush. Cf. Balcorta, 209 F.3d at 1130 n. 10 (noting that a claim is not preempted simply because the subject of the claim is appropriate for negotiation). Comparison to the underlying facts in Gal-vez is instructive. Galvez’s alleged assault occurred when his foreman sped up a conveyor, thereby forcing Galvez to attempt to remove and stack the cartons on the conveyor belt at a rate that resulted in injury. Galvez, 933 F.2d at 774-75 . In Galvez, therefore, we could have concluded that the claim for emotional distress was preempted because workplace safety and operating procedures are both proper subjects for collective bargaining. We did not reach that conclusion because the particular conduct at issue was criminal in nature and was not a proper subject for collective bargaining. Likewise, although it is certainly true that surveillance is a common, appropriate subject for collective bargaining, the illegal, clandestine surveillance of restrooms through holes hidden behind two-way mirrors is most definitely not. This is true even if such surveillance is conducted for the laudable purpose of deterring and detecting drug use by truck drivers; regardless of Consolidated’s objective, the means utilized by the company were illegal.

For these reasons, I would hold that the plaintiffs’ privacy and emotional distress claims are not preempted by § 301, to the extent those claims stem from Consolidated’s criminal use of hidden cameras and two-way mirrors to observe its employees in restrooms. 5 I respectfully dissent from *1140 the portions of the majority’s opinion, set forth in Parts II and III, that establish that California tort claims are preempted by § 301 of the LMRA even if the State of California deems the underlying conduct to constitute criminal activity. As the Supreme Court explained in Allis-Chamers, “it would be inconsistent with congressional intent under [§ 301] to preempt state rules that proscribe conduct ... independent of a labor contract.” Allis-Chalmers, 471 U.S. at 212 , 105 S.Ct. 1904 . I would take heed of the Court’s observation, thereby avoiding the unfortunate result of the majority’s opinion: unnecessary and improper interference with a state’s ability to define the contours of its criminal laws and to protect its citizens from violations of those laws.

. The CBA provision relied upon by Consolidated to support preemption is entitled "Use of Video Cameras for Discipline and Discharge.” Although this provision implicitly suggests that videotaping might occur, it does not discuss or permit the use of surreptitious video surveillance techniques, much less the use of two-way mirrors to accomplish such surveillance.

. Presumably, Consolidated's bathroom videotapes were viewable by anyone, regardless of the sex of the viewer or the viewed.

. Here, the plaintiffs were never told about the hidden cameras or two-way mirrors, and were never given the opportunity to consent to bathroom surveillance. At most, they knew some kind of legal video surveillance might occur.

. Justice George's separate concurrence and dissent strongly supports this conclusion:

. The plaintiffs' privacy and emotional distress claims could proceed under §§ 647k and 653n even though the other bases of their *1140 claims are preempted. Cf. Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d 1401 , 1413 (9th Cir.1991) (finding that a portion of a claim was not preempted even though the remainder of the claim was preempted); Pe-rugini v. Safeway Stores, Inc., 935 F.2d 1083, 1088 (9th Cir.1991) (applying preemption analysis to distinctive "segments" of the same claim and reaching different conclusions as to each segment).