*1 1H offset Sampson recover the loss-of-time principle violate the
from Mutual would offset
underlying policy’s the Mutual both provisions
provision and the reimbursement compensa- Massachusetts workers’ Sampson to for it would allow for the same loss.
recover twice
AFFIRMED. Plaintiff, JACKSON, Appellant,
George CORPORATION,
LIQUID CARBONIC Defendants, al., Appellees.
et
No. 87-2073. Appeals, Court of
United States
First Circuit. April 1988.
Heard Dec. 1988.
Decided Dec. Amended
As Rehearing and Denial of
As Amended on 29, 1988.
Rehearing En Banc Dec.
I. BACKGROUND Beginning plaintiff-appellant George Jackson toiled for defendant-appel- Liquid lee Corporation Carbonic (L-Corp), principally as a truckdriver. At all times hereto, material L-Corp and Local In- ternational Teamsters, Brotherhood of Chauffeurs, Warehousemen, and Helpers, parties were to a collective bargaining agreement (Agreement), Jackson, a un- member, ion part was of the bargaining Gail Strassfeld with whom Judith Miz- By unit. early plaintiff working was ner, Silverglate, Gertner, Fine, Good & Miz- out appellee’s terminal in Tewksbury, ner, Heins, Marjorie Massachusetts Massachusetts and engaged was in hauling Foundation, Boston, Civil Liberties Union pressurized gases which were Mass., were on —materials plaintiff, appel- brief for invariably volatile, hazardous, often and de- lant. serving of cautious handling. It was work where, of a kind suspects, one there might Norman Kathleen Edwards with whom practitioners, be old might there Holtz, Gilman, Holtz and and Brian P. P.C. practitioners bold there likely would —but Counsel, Boston, Mass., Curtis, Corporate (if be few any) old, practitioners. bold defendants, appellees. were on brief for compliance regulations issued COFFIN, BOWNES Before Highway Federal Safety Administra- SELYA, Judges. tion, Circuit (1987), see 49 C.F.R. 391.41 L- §
Corp’s required truckdrivers were to sub- mit to biennial medical examinations. The SELYA, Judge. Circuit necessitated, alia, examination inter that a specimen urine be taken and urinalysis presents appeal question, This a narrow performed to cheek for diabetes. significance. but one considerable It (1987). C.F.R. 391.43 But in March § an ex-em- decide whether requires that we appellee wrinkle; added a new it dissemi- invasion of claims for ployee’s state-law nated a document “Transportation entitled in the wake of the em- privacy, mounted Bulletin 1-13” in which it drug- announced inauguration of a ployer’s unilateral the urine samples would thereafter (on authority supposed testing program screened not only diabetes, but for the agreement), are of a collective presence of alcohol and various narcotic tenor of sec- by the terms and preempted drugs. L-Corp. then distributed consent Management Rela- 301 of the Labor forms and notified the permit- drivers that (1982).1 Act, tions 29 U.S.C. § ting these tests performed to be was a inquiry in the district court answered condition of continued employment. affirmative, the former em- and dismissed Although regard the ployee’s suit. Neither plaintiff Local 49 nor challenged close, the dis- we believe that question as protocol broadened management when appropriate result. trict court reached inaugurated Rather, it. signed Jackson therefore affirm. We any district brought may be ... part: merce in relevant 301 reads 1. Section having jurisdiction States United court between of contracts for violation Suit parties.... represent- organization employer and a labor 185(a) affecting § U.S.C. industry com- ing employees in an and controversy requisite amount, form, sched reported for his next consent 1332(a), jurisdiction U.S.C. is not in after the months several uled examination t issue.2 amended, a urine gave forma performed. tests were The new specimen. complaint Jackson’s alleged that *3 em- his 13, 1986, in February Jackson was On ployer had coerced him into providing the had marijuana been that traces of formed urine sample, then wrongfully tested it for later, notwithstanding A week detected. evidence drug ingestion, of leading to the use, he marijuana of all his denial supposed detection marijuana of requested “inde Plaintiff an dismissed. end of job his tenure. He fashioned three employer The de pendent” drug test. claim, statements of which may para- firing The stood. clined. phrased as follows: perti- the refer to juncture, we At this 1. The search and seizure of urine his Agreement. the of provisions nent without any previous suspicion of use (when was in effect both pact union violated the Rights Massachusetts Civil Act announced) program was drug-testing (MCRA), 12, 11H-11I, Mass.Gen.L. ch. §§ (when his appellant underwent and in 1986 by interfering with his com- examination). Article XXI medical and to be free from unreasonable searches “management fairly prised a standard seizures, and as secured both the state clause, right to L-Corp “the rights” giving (Count and I). federal constitutions regulations and post rules reasonable 2. The seizure and of his urine ” XII all Article rendered time to time.... constituted an unreasonable invasion of his applica- meaning, “involving disputes 214, in violation of Mass.Gen.L. ch. of, compliance tion, or interpretation (Count II). IB§ with, provisions of” the 3. His contrary dismissal was public grievance arbi- subject mandatory policy and, comprised pursued procedures. Jackson never tration (Count wrongful discharge III). him procedures grievance available thereunder, his dis- although, shortly after Contending that all of Jackson’s causes 49 met representatives of Local charge, of action preempted by were section situation. management discuss the with supra see note defendant moved dis- meeting, and lone After the informational miss any cogni- the suit failure to state complaint by any of formal in the absence zable 12(b)(6). claim. Fed.R.Civ.P. After took no employee, the union aggrieved briefing argument, extensive the dis- action. further trict granted court the motion. This appeal course,
ensued. In its any Jackson waived III, error in the dismissal of Count see matter, however, was far from over. Reply Brief at so we need not concern December, That appellant brought an ac- ourselves wrongful ter- tion in a Massachusetts state court seek- mination claim. alia, barring ing, injunction an further inter drug testing damages. award an case
L-Corp removed the
to the United
II. DISCUSSION
District of
States District Court
acknowl-
instance,
Massachusetts. Because
In this
the language of
citizenship
edged presence
diversity
not,
section
itself,
301 is
disposi-
necessity of ad-
spared the
jurisdiction
We are
L-Corp
premised
2.
also
this claim.
alter-
ques-
terms,
diversity
basis, viz.,
those
dressing
matter in
native
existence of a federal
hook
sufficient
independently
tion within
ambit
28 U.S.C.
1331—an
comprises an
hung.
hinged
company’s
on the
assertion
view
jurisdiction
federal
upon which
Appellant vigorously disputes
section
Agreement.
See
Thus,
considering
appel
dures available under
tive.
preempted
International Un
remaining
Paperworkers
lant’s
United
Inc.,
ion v. Misco
statute,
great heed to
pay
must
Dep’t
(1987)
(“where the
Congress’
intent.
Puerto Rico
L.Ed.2d
v. Isla Petroleum
provides grievance and ar
Consumer
contract
[labor]
Affairs
1350, 1354,
-U.S. -,
Corp.,
procedures
procedures,
those
bitration
(1988); Metropolitan
99 L.Ed.2d
must
must
be exhausted
courts
first
Life
Massachusetts, 471 U.S.
Insurance Co.
private
to the
settlement
order
resort
724, 738,
L.Ed.2d
dealing with
merits
mechanism without
construing
Our task
dispute”).
interpret
language is “to
statutory
Lueck, 471
Corp.
Allis-Chalmers
*4
in light of the
words of
statute[]
the[]
1904,
202,
206
105 S.Ct.
85 L.Ed.2d
U.S.
sought
Congress
to serve.”
purposes
(1985),
Supreme
the
the
Court articulated
Rights Or
Chapman v. Houston Welfare
analytical
framework within which we
600, 608,
441
99 S.Ct.
ganization,
U.S.
must determine whether Jackson’s
1905, 1911,
H5
nalysis,
interplay
for
elude that it cannot. Because
alcohol and narcotics based on
law,
concerns,
“balancing
of state
labor
legitimate
...
the individual’s
concern
use
contemporary
expectation
over
personal
securi
mosaic,
take
forms so intricate a
some
ty against
government’s
need
reasoning.
pains
explicate our
search”); National Treasury Employees
Raab,
(5th
Union v. Von
816 F.2d
prohibited
Massachusetts has not
Cir.1987) (upholding drug screens of cus
outright;
drug testing
in' the Common
by
urinalysis
toms officials
means of
no
person’s
wealth there is
barrier to a
free
within
ambit
reasonable conditions
voluntary
By
tested.
employment
“ubiqui
held
reasonable
token,
neither
same
Massachusetts’
balancing
entailing
tous
test
weigh
...
statutory
constitution nor its
scheme ac
ing
against
need
the search
its
complish
proscription
indirection. Con
—
intrusiveness”),
granted,
cert.
U.S.
sequently,
absolute
to be free
-,
(1988);
L.Ed.2d
exists,
drug testing
present,
Hunter,
McDonell v.
809 F.2d
1307-
In that
laws of the Commonwealth.
(8th Cir.1987)
(sanctioning uniform
sense, then,
particular
state law creates no
random drug
of correctional offi
Agreement.
independent
cers
of urinalysis
means
under same
*5
sure,
MCRA, to
be
creates a cause
balancing test);
Handel,
Shoemaker v.
795
against private party
of action
a
who inter
1136,
(3d Cir.)
F.2d
1141-44
(upholding ran
feres,
coercion,
rights
conferred
testing
dom urine
of jockeys and other
either the
or state constitution.
federal
against,
alia,
racetrack employees
inter
12,
In
Mass.Gen.L. ch.
11H.
order to
fourth
privacy challenges
amendment and
identify
indepen
whether a cause of action
Jersey Racing
where New
Commission has
dent of
under
exists
employees),
interests that
circumscribe interests
MCRA,
analyze
rights
we must
created
denied,
986,
t.
479 U.S.
107
by the
federal
state constitutions.
cer
577,
H7
statutes,
to the realities of contem-
stitution and
willful blindness
would view the col-
find, then, that em-
porary life. Unable to
bargaining process
lective
appropri-
as an
legitimate
ployers have no
interest
in an ate
constructing
datum in
the needed bal-
use,
employee’s drug
we are thrown back ance
privacy
between the worker’s
inquiry.
to the
That in-
reasonableness
legitimate
manage-
concerns of
is,
course,
quiry
little more than a short-
Laws,
ment. Accord
852 F.2d at
balancing
description
hand
test.
5;n.
Utility
America,
Workers
Local
Co.,
leaving
precincts
Before
of state
Southern
Edison
California
(9th
step.
Cir.1988).3
we take one further
Because Jack- 852 F.2d
claim,
pled statutory
son has
a
and because Where,
here,
state law does not create
statutory analysis
we find that
so valuable
right
is,
terms,
on its
clearly
own
larger inquiry,
to the
do not limit our-
we
independent of a
legal propriety
employ-
selves to the
agreement,
must,
conducting
we
pre-
attempt
er’s
to collect information about
emption inquiry,
possibility
look to the
employee drug
through drug testing,
use
right may
independent.
nonetheless be
pursue
aspect
privacy
the second
but
Lingle, 108
“perti-
1882. Yet if the
private
claim as well—disclosure of
infor-
nent principles of state
require[]
con-
unduly
mation. While
need not
we
dwell
struing the relevant collective-bargaining
claim,
on this facet of a
note
agreement,”
preempts
section 301
the state
interprets publication
that Massachusetts
law claim. Id. at 1882 n.
question
7. The
broadly:
private
“the disclosure of
facts
court, therefore,
for this
reduces to wheth-
employee among
employees
about an
other
er the balance of interests as between Jack-
corporation
the same
can constitute suf-
son
L-Corp necessarily implicates
publication
ficient
under the Massachusetts
Agreement in some substantial sense. We
right
Bratt,
statute.”
467 N.E.
does;
think that it
Jackson’s claimed
2d at
L-Corp’s
134. To the extent that
is enmeshed in the collective
testing plan contemplates sharing
re-
bargaining pact.
managerial person-
sults of the tests with
nel,
if
purpose
even
for the
of termi-
right subject
A
involving
to a balance
nating
employment
aof worker who
is,
parties
needs and interests of the
almost
tests,
implicates
fails the
it also
this statu-
of necessity,
parties
defined
them
*7
torily protected
privacy.
area of
Once
previously
selves. As this circuit has
rec
however,
again,
plan
whether the
thus vio- ognized, privacy rights in the Massachu
employee’s
lates an
privacy right depends
workplace
by
setts
are affected
a firm’s
upon
balancing
a
of the various factors
regulations.
own
Bratt v. International
inherent in the situation in order to deter-
352,
Corp.,
Business Machines
785 F.2d
publication
mine if
is reasonable.
Id. at
(1st Cir.1986) (internal
360-61
company
134-35.
regulations may
employee expec
enhance
privacy;
tation of
applying Massachusetts
While we do not doubt that
the SJC
law).
case,
give sharp
would
In
scrutiny
drug-testing
only legit
to
where the
programs,
equally
managerial
regulations
we
confident that
imate outlet for
Massachusetts, in interpreting
its own con-
employ
which
affect
the continued
dissenting
longer
3. Our
analysis
Agreement
brother credits us with a
would allow
of the
to be
essay.
“prejudge
reach than
commonwealth,
course,
We neither
the
foregone. The
re-
issue of what constitutes the elements of a state
right,
by
mains free to create such a
either
claim,”
post
“proscribe!
at
nor
]
enacting
sufficiently explicit
by
a
statute or
a
possibility
might
pri-
the
that the state
mandate
sufficiently pointed judicial explication of such
vacy
independent
laws which are
a
of ...
collec-
stand,
right.
a
But as matters now
neither the
bargaining agreement."
Id. at 33. We
legislature
Massachusetts
nor the SJC lead us in
that,
merely hold
if
such a claim exists
Jack-
supra.
approach
that direction. See text
If this
case,
rights
by
son’s
it is based on
secured
that
horse,”
"put[s]
post
the cart before the
at 33—
therefore,
only
pursued,
and must be
and we do not believe that is so—it is
L-Corp’s drug-testing
in the arbitral
forum.
yet emerged
because the horse has not
from the
bedrock,
plan compromises
independent,
stable.
established,
right, presently
state-law
agreement. They are
bargaining
the em
collective
working
ment and
conditions of
independent
the labor
management rights
necessarily
clause of
ployees is the
not
putative
contrary,
Agreement,
state-law
those claims
On the
contract.
rights
under
believe,
claim must look to the
defined
by scruti-
only, we
be resolved
can
fact,
claim
auspices. In
its
powers
evaluating
explicit
nizing and
considera
“inextricably intertwined with
Agree-
management
to
under the
granted
of the labor contract.”
the terms
all,
bargaining,
in the
ment. After
earlier
Lueck,
at 1912.
471 U.S.
105 S.Ct.
L-Corp
authority to
the union ceded
physical examinations
“required”
conduct
symbiosis,
nature
To illustrate the
regula-
“post
and to
reasonable rules
particular state-law claim
we look to the
determining
wheth-
Lueck,
employ-
supra.
his
tions.” See
by
asserted
who decried
tortiously
to which
handling
er’s
of insurance claims
er the
test
Jackson
bargaining
un-
right
bad faith.
his
subjected infringed
specifi-
in force dealt
which was
(or
Consti-
state law
federal
der
cally
of insurance
with the administration
tution,
matter),
single most
for that
Moreover,
claims.
“under
[state]
the test-
important consideration whether
appears
parties
an insurance
light
of the cir-
ing was “reasonable”
bargain
contract
free
about what
[were]
obtaining.
cumstances then
See O’Connor
performance
their contract
‘reasonable’
Ortega,
U.S.
Lueck,
obligation entails.”
471 U.S.
(1987)
opin-
(plurality
With this frame of reference
policy requires
similar safari
particular
address the
features of
case
of
stated,
Kelley
search
reasonableness.
us.
have
Jackson’s
before
As we
Schlumberger Technology Corp., 849 F.2d
privacy
inalterable
upon
claims do not rest
(1st
(reasonableness
of,
Cir.1988)
of
rights
free
and
which float
interpreting,
company’s implementation
drug-testing
therefore
require
do not
judged by “possibilities
policy
appar
accordingly.
to be
diminished
Only by probing
time).
too,
inquiry,
In
ent” at the
Agreement
contours of the
can one
vitally important.
context is
Article XXI of
program
answer whether the
legit-
Agreement
L-Corp
does not allow
imately implemented
auspices
under the
whim,
regulations at
issue
will or on
but
(the management
Article XXI
rights
employer’s prerogative
limits the
to the
clause).
(the
And
XII
Article
arbitration
promulgation of “reasonable” rules and clause) provides
only appropriate
ve-
regulations. To determine whether that
conducting
hicle for
examination.
observed,
boundary
logical
has been
short,
allegations
assessment of Jackson’s
starting place is a consideration of how the
necessarily involves an in-depth inquiry
Agreement
twigs
allocates the
which make
rights
obligations
into the
by
bestowed
aggregate
up
workplace rights
into a
Agreement.4
Jackson’s
management
employee
bundle and an
bun
can
by deciding
be resolved
whether
line,
propriety
dle. At the bottom
employer’s
conduct was “reasonable”
L-Corp’s drug-testing program must be as
contract,
taking
the labor
into ac-
light
practices
exigen
sessed in
of the
“expectations
count the
parties.”
of the
industry,
cies of the
factors which are rou
Lueck,
Id. 1086 1916). way, agreement.” same the collective United 106 at In much the Steelworkers, can resolved at because Jackson’s claims 363 U.S. at scope only meaning and by interpreting the Agreement in IX and XXI of Articles that, sum, as a union mem- In we believe L-Corp’s gauge propriety order to grieve ber, obligated to Jackson was —not implementation drug-testing policy, of a because, Massachu- under state sue— Here, the la- preempts section 301 them. dis- setts would look bor/management environment is dominated scope of the cern by sweeping management rights a clause. attempting supra. assert. See he was negotiat- permitted ignore a We are not clause, L-Corp, by resorting to Because provision collective-bargaining ed a implausibly to its purported not exercise merely familiarity its because employ- legitimate interest its business clauses, pejora- or breadth. Such whatever perform capacity to their work well ees’ about, legit- be bandied labels Bratt, safely, see 467 N.E.2d NLRB American National imate. See v. auspices n. did under the 135 & so 404-09, Co., 72
Insurance
Agreement,
of the
Jackson’s
(1952).
824, 829-32,
96 L.Ed.2d
preempted under section 301.
claim was
simply
is to
decide
duty
Our
this case
in or-
must be studied
whether the clause
are not uni-
Although the authorities
der
out the
claim. Accord
to make
form, other courts have also found claims
Workers,
F.2d
1086. Like
Utility
drug-testing programs vio-
employers’
court,
that it must.
the district
we believe
preempted
tort
to be
lated state
laws
management rights
instance,
degree
this
section 301
of imbri-
because
enough that
clause is broad
an arbitrator
cation between
dispute
easily
drug-testing
could
resolve a
agreements in force. For ex-
bargaining
L-Corp
between Jackson and
based
Co.,
ample,
v. Union Oil
Strachan
asserted
the latter under the
Cir.1985),
(5th
F.2d 703
Fifth Circuit
clause. See S.D.
Co. United
Warren
drug
fell
challenged
ruled that
tests
Union,
Paperworkers
845 F.2d
7-8
Int’l
squarely
scope
company’s
within
(1st Cir.1988); S.D.
v. United
Warren Co.
bargaining
“power
under the collective
...
Union,
Paperworkers
F.2d
Int’l
upon
insist
medical examina-
agreement to
J.,
(1st Cir.1988) (Coffin,
concur
831-33
tions_”
at 704. Such claims were
Id.
ring).
rule
such
promulgated
For a
grievance
mill of
“grist
termed
reasonable,
to be
it
clause
considered
at 705.
procedures and arbitration.”
legitimate
need
to some
“be related
Laws,
434;
852 F.2d at
Boise
See also
Hill
A.
business interest.” M.
Sinicro-
(claim
Cascade,
F.Supp.
at 186
At
pi, Management Rights
program
tort
drug-testing
violated state
very least,
testing
drug
edict falls col
in-
preempted because it necessitated
orably
E.g.,
within
rubric.
Associa
this
allowing
terpretation
provision
of contract
Pulp
Paper
Workers
Western
management to “institute reasonable work
Cascade,
F.Supp.
Boise
rules”).
(D.Or.1986).
finding preemption appropri
While
too,
and alcohol
Then
“[a]
case,
point
ate
hasten
out
program, upon
employees’
which all
contin-
up
section 301 does not swallow
working
employment depends,
ued
con-
only peripheral relation to the
which bear
specifically
dition
it is
dis-
Lueck,
terms of a labor contract. See
bargaining agree-
cussed in the [collective
(“not
every
U.S. at
We learn
where
the collective
the asserted
substantially separate
claim
state-law
on,
invasion of Jackson’s
centers
from,
require appreciable
not
inter
will
inextricably
in,
and is
intertwined
the rea-
of,
pretation
the labor contract
drug testing.
sonableness of
adjudication,
purpose
course of its
no
integers
Given the
that must be factored
by a
would be served
federal bar.
Lin
into
reasonableness,
the calculation of
example,
for
noted that
gle,
Court
how,
do not
Agree-
see
under state
if an
should conclude that
“even
arbitrator
ment can
equation.
be omitted from the
prohibit
particular
the contract does not
Though we intimate no view of
where
discriminatory
retaliatory discharge,
or
balance
be struck in Jackson’s
or
case
might might
that conclusion
not
con
other,
any
justification
we find insufficient
proper interpretation
sistent with a
of state
imposing by judicial
rigid
fiat a
limita-
just
law.” Id. at 1885. Because the
cause
give-and-take
tion on the
of the collective
provision
state-sponsored protec
bargaining process
entirely
which would
against retaliatory discharge
were
possibility
drug testing
remove the
coterminous, the state-law cause of action
labor/management
agenda.
If
independently
But
maintainable.
Id.
accurate,
equation
promi-
is to
it must
Lingle
wedge
broadly
does not drive the
so
nently
pact
feature the labor
and its due
as to embrace instances where the measure
total,
therefore,
construction. The sum
of the state claim must be sized in some
up
preemption.
adds
significant part by reference to the collec
bargaining pact.
true;
The reverse is
III. CONCLUSION
explicitly
Justice Stevens
reaffirmed the
principle of
preemption
bedrock
section 301
“pre-
are mindful of the need
We
Lueck, writing
and the cornerstone of
that:
the central role of arbitration
serve[]
long
“as
as the state-law claim can be
‘system
self-govern-
our
industrial
interpreting
agree
resolved without
Lueck,
ment’ ”.
U.S.
itself,
‘independent’
ment
the claim is
(quoting
Gulf,
at 1915
Warrior &
U.S.
preemption pur
1352).
80 S.Ct. at
As the
Court
(footnote omitted).
poses.”
at 1883
ordering
adjusting
declared: “The
competing
through
process
interests
us,
course,
The case
is a mirror
before
voluntary
free and
image
Lingle,
way
because there is
keystone
pro-
of the federal scheme to
pleaded
to assess the
tort
Flour,
peace.”
mote
taking
Agree-
industrial
Lucas
here without
account of the
103-04,
U.S. at
and arbitration collective-bargaining agreement, the state parcel ongoing process of of collective the remedy “independent” of plaintiff A should not was thus the bargaining”). law procedures bargaining agreement. Id. 108 bypass grievance allowed the collective to by the contract in a case S.Ct. at 1882. established labor clearly dependent where his claims so analysis in Allis- This was also followed interpretation of con- on of the terms that Lueck, Corp. Chalmers Allowing such end run tract. an would (1985), 85 206 S.Ct. L.Ed.2d surely of undermine the structure industri- extending that where the Court stated “[i]n self-government. al beyond the of pre-emptive effect § contract, go no Because resolu for breach of it would be We need further. suits “requires congressional of Jackson’s state-law inconsistent with intent interpretation proscribe pre-empt the collective ... state rules that to contract,” conduct, at 1883 n. Lingle, S.Ct. or and obli establish inexorably, unto night day, gations, follows as that independent a labor contract.” of the preempts section 301 maintenance of (emphasis at 1912 present suit in form. added). its preempts only Section 301 those “inextricably in state law that are AFFIRMED. tertwined with consideration of the terms 213, 105 contract.” Id. at labor BOWNES, Judge, (dissenting). Circuit at 1912. case, employee subjected In this was case, nothing In the there in instant is drug testing by employer his as
to random agreement the collective-bargaining employment. condition for The continued remotely subject even with the of urinalysis posi- results his test deals from were rights. majori- or presence marijua- drug privacy of The of traces na, employee, ty general his despite denial of therefore uses broad marijuana request management rights giving use and his for an inde- clause the em- test, pendent drug summarily ployer post fired “the reasonable rules job. regulations from his The is time to issue before court time” employee implicate collective-bargain- wedge whether the has a state law claim ing Rights agreement. bootstraps Act itself the Massachusetts Civil It then pri- finding or other state for invasion of law is nec- statutes the state claim vacy, any “inextricably such state claim essarily law intertwined” preempted pursuant is the col- labor contract clause. To con- broad § however, clude, lective-bargaining general existence such a clause employer interpretation employees between mandates the collective- time testing. bargaining agreement assessing when claim, applicability of a state Lingle Norge decision Division prejudge issue what constitutes — -, Magic Chef, U.S. of 1877, elements a state law claim. (1988), controlling. 100 L.Ed.2d authority analysis There is no for an case, retaliatory In that a state claim for hypothesizes which the federal court how discharge preempted by was held not to be court state would determine what the though even there was § parameters are, its own laws bargaining agreement provision prohibiting then, guess, effectively based on that discharge just without cause. The Court precludes the making state court from ever application held “an state law is its own determination the matter pre-empted by 301 Manage- the Labor declaring that the issue so determined is ment Relations Act such if preempted by approach federal law. This application requires interpretation put cart the horse. before a collective bargaining-agreementId. added). has, effect, majority proscribed 108 S.Ct. at Since (emphasis the retaliatory possibility might did not turn that the man- discharge claim
123 Thus, not, privacy independent issue as laws which is the majority date general management rights states, clause drug testing by a broad whether random collective-bargaining agreement. Such employer in a is reasonable under the collective- noth- is unwarranted —there is a conclusion bargaining agreement, rather, but prohibit a law ing enacting to a state from prohibited by it is the Massachusetts Civil independent right to would create an which Rights Act or other state laws. Resolution drug And testing. free from random question require of this interpreta- does not indeed, Rights the Massachusetts Civil Act any provisions tion of collective-bar- may encompass right, or not. such it agreement; gaining require what does speaks, until the But Massachusetts court scope a decision as to the of the state law. know, do not there is no need Therefore, following Lingle, state law unsupported main- guess. simply It is in the instant case are not preempt- tain, does, majority applica- as the that the Indeed, by anything, ed 301. if the issue privacy of the Massachusetts state law in the instant case (independence of inva- “requires interpretation collec- [the] sion of from “reasonable tive-bargaining agreement,” Lingle, regulation” provision in the collective-bar- preempted. at therefore S.Ct. and is gaining agreement) is more compel- even majority’s a nul- approach would make ling conclusion than the issue in any independent privacy rights es- lity itself Lingle (independence of state retali- by result, more- the states. This tablished atory discharge “just claim from cause” over, pro- is in direct conflict with the discharge provision in the collective-bar- Supreme Court, nouncements of the agreement). gaining not only recognized have the existence of The Massachusetts per- court should be (and federal) rights inde- state which are mitted to make its own determination as to agree- pendent collective-bargaining the existence or of privacy non-existence ment, steadfastly protected such but have be free drug testing from random from rights preemption. Lingle As states: interpretation based on its of Massachu- nothing recogniz novel about [TJhere setts This determination can only law. ing rights that substantive in the labor independently general made of the broad relations context can exist without inter management rights clause collective- agree preting collective-bargaining bargaining agreement. Whether the em- “[Notwithstanding ments .... ployer’s testing regulations are rea- strong policies arbitration, encouraging regulations, either sonable from the em- apply ‘different considerations where ployer’s employee’s perspective, or is not employee’s rights claim based on relevant whether the Massachusetts Civ- arising designed out a statute il Rights independently Act establishes provide minimum substantive guaran right to mandatory be free tees individual workers.’ Barren drug testing. random It is for the Massa- tine, supra, 450 U.S. [101 chusetts courts to make this determination. Atchison, T. and S.F.R. Co. 1443].” may may Massachusetts courts Buell, [565], 480 U.S. privacy right find such a exists under (1987) (emphasis L.Ed.2d pre- Massachusetts but we should not added). dict, the majority done with has such Lingle, also, S.Ct. at Fort confidence, what the Massachusetts courts Packing Coyne, Co. Halifax will decide. (1987) L.Ed.2d (federal in Lingle, labor It should be noted that preempt law does not Illinois a state clearly providing had a defined tort of a one-time state retali- pay- severance discharge, case, to employees atory ment in the and in instant plant event closing clearly covering pri- “since state such defined state law establish- [the law’s] vacy rights yet ment of a minimum labor been articulated standard does not difference, however, impermissibly upon courts. This intrude collective- bargaining process”). provides permitting even more reason laws, parameters of its own terpret in- in the first courts to decide
the state foreclosing deter- effectively such a state the breadth stance declaring preempted; issue mination state law. *13 (ii) declaring that once the Massa- in out that while a pointed must also be It construed, Rights Act is so Civil chusetts opin majority’s underpinning of central management general interpretation of testing per is not drug ion is that random required to determine rights clause unconstitutional, far question this se drug testing. random reasonableness Supreme has not The Court from settled. scope of the Massachusetts this, the yet any made determination articulated, it is yet right has not been agreement, in are not circuit courts interpreta- to conclude that unwarranted any not made courts have Massachusetts general management Indeed, tion of broad there pronouncement. definitive required clause is determine currently cases before are at least two man- employee drug Lingle of the state law. challenging application Supreme Court considerably preempt the state testing programs which are 301 does not dates the cir scope, in terms of more limited claim in the instant case. programs under which such cumstances to the state The case should be remanded man the instant case of required, than of the state law court for a determination testing. Burnley datory drug random claims. Association, Railway Labor Executives’
v. respectfully dissent. I 11/2/88) (appeal of (argued No. 87-1555 ruling held unconstitu Ninth Circuit which Administration a Federal Railroad
tional employ railway
drug program in an accident because
ees who are involved require particularized suspicion
it does not prior testing); National impairment Raab, v.
Treasury Employees Union Von 11/2/88) (appeal of (argued No. 86-1879 UNWIN, Plaintiff, Appellee, Ronald ruling upheld a Cus Fifth Circuit which testing program drug toms Service job certain requires employees who seek CAMPBELL, et Robert Police Officer sampling). to urine promotions to submit al., Defendants, Appellees. surfacing cases which There are also other constitutionality random challenge the Trooper Mark Furlone and State State Moreover, testing. the Massachu Ellsworth, Trooper John inter Rights Act well be setts Civil Defendants, Appellants. courts to con preted the Massachusetts UNWIN, Plaintiff, Appellee, area than the greater rights this fer Ronald using By does. federal Constitution doctrine, majority impli preemption CAMPBELL, et Police Robert Officer courts edly deciding for the Massachusetts Defendants, al., Appellants. independent privacy right that there is no drug testing. This free from random 88-1116, 88-1117. Nos. junc conclusion is an unwarranted Appeals, United States Court ture. First Circuit. has, my majority judgment, erred 8, 1988. Heard June (i) declaring on its own respects: in two Rights Act the Massachusetts Civil Dec. Decided is limit- encompasses privacy right employer’s by the ed reasonableness first drug testing program without
random in-
permitting the courts Massachusetts