Cramer

dissenting:

I respectfully dissent from the Court’s opinion in this very sensitive application of the federal Labor Management Relations Act (“Act”) to a freely negotiated collective bargaining agreement (“CBA”) between Consolidated Freightways (“Consolidated”) and its union-member employees.

No doubt, the majority is correct in the formulation of the rule we should apply in this case: the plaintiffs’ state law claim is preempted under Section 301 of the Act if Consolidated can assert a “reasonable” invocation of a provision of the CBA which makes the resolution of the plaintiffs’ claim depend on its interpretation. Majority Opinion at 688. Such formulation is familiar and is substantially similar to that used in other Circuits. E.g., Martin v. Shaw’s Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir.1997) (“[S]ection 301 preempts a state-law claim wherever a court, in passing upon the asserted state-law claim, would be required to interpret a plausibly disputed provision of the collective bargaining agreement.” (emphasis added)); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1181 (7th Cir.1993) (noting that state law privacy claim was preempted because “it was arguably…

Opinion by Judge FISHER; Concurrence by Judge RICHARD C. TALLMAN; Dissent by Judge O’SCANNLAIN.

This appeal requires us to decide whether a plaintiffs state law privacy claim, based on California’s penal code, is preempted under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 . Resolution of this issue, in turn, leads us to clarify our Circuit’s approach to § 301 preemption. We hold that because plaintiffs’ privacy claims are not even arguably covered by the collective bargaining agreement (“CBA”), the claims are independent of the CBA and thus are not subject to § 301 preemption. Moreover, we hold that when an employer’s surreptitious surveillance constitutes a per se violation of established state privacy laws, the employees affected thereby may bring an action for invasion of privacy regardless of the terms of the collective bargaining agreement governing their employment.

I.

Consolidated Freightways (“Consolidated”), the defendant in this action, is a large trucking company. 1 It concealed video cameras and audio listening devices behind two-way mirrors in the restrooms at its terminal in Mira Loma, California, ostensibly to detect and prevent drug use…

concurring in part and concurring in the judgment:

I agree with parts I, II, and III of the majority opinion: plaintiffs’ claims are not preempted because the CBA did not contemplate surreptitious surveillance of bathrooms through two-way mirrors. However, the Court’s alternative holding unnecessarily interprets ambiguous California law and threatens the ability of similarly situated parties to negotiate legitimate limitations on privacy. I respectfully disagree with parts IV and V of the majority opinion.

California law clearly protects individuals from covert observation in certain traditionally private places, such as restrooms and fitting rooms. See Cal.Penal Code § 653n. Rather than merely hold that Consolidated’s covert actions here were illegal, the Court today holds that even in future contract negotiations, the parties could not reduce privacy expectations in the bathrooms of California workplaces. See Majority Op. at 695-96 (“Even if the CBA purported to reduce or limit this expectation in some way, that reduction would be illegal and therefore unenforceable.”). It is not clear to me that California courts would preclude such negotiations between well-represented…