*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.

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, 60 L.Ed.2d 508 There, the preempted by are section recognized long Supreme The Court scope the of the statute’s Court defined acci of 301 is no that the breadth section declaring broadly, preemptive effect dent, over with an but is commensurate policies that 301 are “if the animate section congressional purpose: to “au- reaching given proper range their ... the to be body of federal courts create thoriz[e] must ex- preemptive effect of section 301 for enforcement of collec federal law the alleging suits contract viola- beyond tend agreements law —‘which 210-11, S.Ct. 1910-11. tions.” Id. at 105 policy from of the courts must fashion the recently characterized Court itself has ” He our national labor laws.’ v. IBEW taught in essential lesson which Lueck the chler, 2161, 2165, 851, 107 481 U.S. S.Ct. 95 regard: this (1987) (quoting 791 Textile Work L.Ed.2d principle faithfully applied the ... Lueck 456, Mills, 448, v. 353 U.S. 77 ers Lincoln developed in preemption of 301 Lucas 912, 917, (1957)). 1 972 L.Ed.2d of if the resolution a state-law Flour: a wide- Congress reason tendered such depends upon meaning the claim ministry ranging the federal courts was agreement, ap- collective-bargaining only promote the creation of a uni (which plication might lead law law, body form of federal labor also to but could to inconsistent results since there that, developed, ensure when the resultant many principles as as there state-law through griev applied rules would be States) la- pre-empted and federal procedures upon un agreed ance between principles necessarily uniform bor-law — management. ions and See Teamsters em- throughout nation —must be 95, Co., 104, 82 S.Ct. Lucas Flour 369 U.S. dispute. ployed to resolve the 571, 577, (1962) (in passing 7 L.Ed.2d 593 Chef, Lingle Norge Magic Division of 301, “Congress section intended doctrines — 1881, Inc., -, U.S. 108 S.Ct. prevail uniformly of federal labor law (1988)(footnotes omitted). L.Ed.2d 410 rules”); Republic over inconsistent local way, pre-empts state Put another “§ Maddox, Corp. v. Steel as of the state- insofar resolution (1964) 85 S.Ct. L.Ed.2d interpretation of a requires law claim (noting congressional approval of “contract agreement_” collective-bargaining grievance procedures preferred as a meth guide- at 1883 n. 8. With these settling disputes stabilizing” od for and particulars posts place, we turn to plant). common To the extent law the the case at bar. judicial of Jackson’s determination begins preemption inquiry Our with conflict would question Lingle requires us to ask: can scheme, federal claims would be those relegated, privacy claim be made out with- in Jackson’s preempted by section 301 instance, proce interpreting Agreement? We con- grievance out first to the

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, 93 L.Ed.2d 580 Only recognized if “an established or state exists, Calmat, law claim” Laws v. 852 Similarly, the Commonwealth’s constitu 430, (9th Cir.1988) F.2d 434 n. 5 that —one authoritatively has been tion never con “depend[] upon meaning does not right. to such strued secure an absolute collective-bargaining agreement,” Lin expect gener Nor would we it to As a be. gle, 108 at 1881—is the initiative matter, al state constitutional law tracks preemptive saved from the web. development of federal constitutional law. parallelism testing drug We look first to so, pronounced. Developments the Law— Doing federal Constitution. we find Interpretation an State does not secure absolute to Constitution be 1324, testing. Rather, Rights, 95 1430-41 employer drug free from al Harv.L.Rev. (1982). Furthermore, the ordinary requires case even state court when attempt proper depart judiciary’s to balance courts from the calibrate be federal rights they employee’s privacy interpretations, tween an constitutional do so to an See, employer’s legitimate e.g., principles concerns. further their views embod Laws, (upholding drug pat 852 F.2d at 433-34 ied in the federal constitution. This tern, testing too, employees and other in privacy drivers holds true law. Id. at building products company manage develop 1442-43. thus loath an when We are to independent ment asserts under collective bar innovation in state constitu gaining agreement “manage plant, tional doctrine without so much as a hint implement direct the force and safety Supreme work from the Massachusetts Judicial rules,” (SJC) path open and union fails to itself such avail of Court to us. grievance procedure); Laws, (Ninth Rushton v. Nebras Accord F.2d at 5 852 434 n. Dist., requires recog ka Public 566- “an Power F.2d Circuit established (8th Cir.1988) claim”). Nonetheless, (upholding nized state annual power plant only by of nuclear uri we are the actual employees, via while bound court, resulting from disclo- highest ployee’s privacy expression of the state’s The SJC sure.” Id. N.E.2d 135-36. Internal Revenue Commissioner of balancing that the test would 1776, also noted Bosch, in- if were apply even medical information (1967), may we look 18 L.Ed.2d n. 136 & 20. volved. Id. broadly guidance in order establish likely decide the issue. how the SJC would alleged statutory Because Jackson Symphony Redgrave v. Boston Or interpreta claim, statutory and because (1st chestra, Inc., 855 F.2d Cir. strongest, clear provides tion us with the 1988)(en banc) (federal may court examine est, recent, most data most reliable dicta, analogous decisions, considered concerning approach privacy, SJC’s scholarship and other reliable data to divine some detail. The statute elaborate law); F.2d Greenberg, 834 state Moores v. “proscribes unreasonable interferenc (1st Cir.1987)(similar). “In the person’s privacy legitimate es awith [and] may ‘reasonably process countervailing federal in certain business interests court] [the may per will assume that follow situations render disclosure [the court] reasonable not ac appears to effectuate’ sonal information the rule that best under the statute.” Id. at (quoting tionable policies.” relevant Bowen v. (citations omitted). priva Interfering with States, (7th 570 F.2d United cy components under has two Massachu Cir.1978)). dis obtaining law: information and setts Here, suggest hints exist such closing Both relevant test it. an recognize absolute SJC will Procuring in ing. may information right. general predilec- In addition And person’s privacy. with a terference parallelism, supra, the Com- see inquiries personal “there while approach overall monwealth’s *6 unreasonably and that are intrusive nature forcibly against cre- argues concerns employer an no of the and ... business right. Although we ation of an inalienable may discharged im employee not be with hard, long have we have been looked re punity for failure to answer such as policy unable to discern even so much a quests,” (quoting at Bris id. Cort v. favoring the or trend establishment of such Co., Mass. 431 N.E.2d tol-Myers right. a (1982)), appears n. 9 SJC Massachusetts, privacy important concerns that the most test of the believe clearly right-to-pri in a of an intrusion is whether most embodied reasonableness statute, seeking vacy employer prohibited IB. “an ch. Mass.Gen.L. § personal employee from an statute, it, certain data decided cases Bratt, prospective employee.” a 467 N.E. right suggest that Massachusetts views the (using inquiries examples 2d at 135 n. as privacy terms. The traditional SJC statutes). prohibited under also opted balancing has that reminiscent Cort, 431 N.E.2d at 912-14. The Common to, of, if identical the conventional fed not time, wealth, statutory as of this ques approach eral on the constitutional prohibition against drug testing. tion. Bratt v. International Business Ma Corp., 392 Mass. 467 N.E.2d chines sure, a state statute To be absence (1984), That in is illustrative. case dispositive point. of the An action- employer’s personal volved an disclosure intrusion, SJC, able as defined still concerning employee, information an al part em- depends in on the interest of the leged IB as an unrea to be violative of ap- ployer. But that is of scant solace to § right sonable interference the latter’s pellant. say, categorical cannot as a We use, that: privacy. matter, The SJC ruled “In deter employee’s drug an at IB, mining there impact is a violation of as least insofar have an Bratt, necessary employer’s work, it is to balance the employee’s 467 N.E.2d legitimate obtaining business interest 135 & n. is “no business of publishing against To so extreme a stance employer.” information strike substantiality of the on the em- to exercise an intrusion would be unconscionable

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 94 L.Ed.2d 714 so, being This the Court 105 S.Ct. at 1914. (“the ion) expectation reasonableness plaintiff’s concluded tort claim was stan- privacy, appropriate as well as up the collective bound search, differ for a is understood to dard is, “firmly pact, that the claim was rooted context”); Rushton, according to 844 F.2d expectations parties in the that must (“reasonableness of de- at 566 a search by federal contract be evaluated law.” Id. context”). The Fourth pends par- grant 301 does While “section mandates, example, that a Amendment collective-bargaining agreement to a ties public falls school authorities search illegal ability contract for what cir- context altered within classic law,” under state id. at 105 S.Ct. at cumstances, arraying the student’s bona pertains that dictum to “state rules expectations personal fide conduct, proscribe or establish security against government’s need to obligations independent con- of a labor public New police “breaches of order.” Where, (footnote omitted). tract.” Id. T.L.O., 325, 337, Jersey v. case, involving in the instant is one 733, 740, L.Ed.2d 720 Sim- parties’ balancing interests defined ilarly, except independent exogenous contract, part by a labor Court has rights, bargaining agreement the collective quick recognize a different stan- been *8 classically provides the in context which rights obligations If dard. state-law and employee’s expectations priva- fide of bona necessarily independently “exist do not of cy personal security workplace and the agreements,” they private “can be waived arrayed right the against employer’s by agreement private par- altered of supervision partic- and exercise control at ties....” Id. 1912. context, kind. In ular that reasonableness extent, be, they are, and And can always requires investigation of the almost preempted by protective gloss the which agree- bargaining terms of collective provides agreements. section those ment. Evaluating legitimacy drug- of place,

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, 471 U.S. at 105 S.Ct. at 1914. tinely interpreting considered when a col This, teaches, quintessential- the caselaw See, bargaining agreement. e.g., lective ly See, a matter of federal e.g., law. Din- United Steelworkers v. Warrior & Gulf gle, 108 S.Ct. 1881. Co., 574, 581-82, Navigation 1347, 1352-53, (1960) 4 L.Ed.2d 1409 Our conclusion that Jackson’s (“the practiee[] industry of the negotiable claims are up both bound shop equally part ... of the collective Agreement the interstices of the thus —and bargaining agreement although not ex preempted reinforced the recent de- —is it”); pressed in Maine Central R. v.Co. There, cision in Utility plaintiffs Workers. Union, Transportation United 787 F.2d employer’s claimed that drug-testing Cir.) (1st (similar), denied, cert. program privacy rights violated secured to U.S. 93 L.Ed.2d 107 them under the California constitution. The Ninth Circuit held the claims to be glow, Bathed in this underlying is- preempted under section Judge Good- ap- sues raised Jackson’s win wrote that: pear inseparable interpretation from an constitutional claims are [Plaintiffs’] what is or is not “reasonable” under the “substantially dependent” upon the way, labor contract. Put another the di- analysis the collective appellant’s cognizable expecta- mensions of they properly constitute a privacy depend great to a extent negotiable subject purposes of collec- upon the concessions the union made re- bargaining. tive Resolution of the issue garding working during conditions collec- bargained away [the Union] bargaining. If the allowed its members’ claimed constitutional L-Corp, part “required” medical upon [provisions] must rest examination, to demand that workers as- bargaining agreement, laboratory analysis sent to the additional recognize employer’s] [the specimens, L-Corp urine did no more manage plant, working to direct the prerogative, than exercise this contractual *9 force, rationality implement then the of Jackson’s asserted reasonable safe- expectation urologic of ty would be require rules and their observance. requires 4. Plaintiffs requires search-and-seizure claim fourth-amendment reasonableness con- analysis. separate The fourth amendment totality sideration of the of the circumstances in seizures, only bans not all searches and but case,” Raab, 177, particular a Von 816 F.2d at T.L.O., Jersey ones. unreasonable New v. 469 is, inquiry point, on this identical to that 340-41, atU.S. chusetts constitution affords no 105S.Ct.at The Massa- 742-43. broadly which must be undertaken on the more greater protec- phrased privacy claims. Inasmuch tion. of “[t]he determination 120 grievance and Lueck, 220, provisions arbitration at of (quoting at 471 U.S.

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 105 S.Ct. at 1911 Laws, A at 433. work- 852 F.2d ment].” concerning tangen condition, course, dispute employment, or ing mandatory is a tially involving provision subject and, presents collective- when *10 bargaining agreement, preempted by question upon parties dis- “which scope provisions of agree,” 301 or other the federal it “must within ... come § law”). Supreme In Court labor contract. The Lingle, labor central thesis of his recently limits of section 301’s questions clarified the suit L-Corp’s drug-test- There, the held preemptive force. Court ing protocol was reasonable. That thesis employer that her former plaintiffs claim interpretation demands definitive prohibition against retali- violated a state prerequisite as a to any at- atory discharge preempted, despite the not tempt to formulate response. a reasoned bargaining agree- existence of a collective expectations Inasmuch as the of both affording remedy ment a contractual for management comprise and labor crucial as- discharge just cause. 108 without S.Ct. at pect of the inquiry, reasonableness see explained 1829. Id. Court mere- O’Connor, 107 S.Ct. at 1498 (plurality opin- ly require claim because a state-law “would ion), Agreement, properly construed, is precisely addressing the same set of facts” likely to dictate the result of Jackson’s grievance cognizable as a under a collective retaliatory state-law claims. Whereas the bargaining agreement, preemption did not discharge claim in Lingle was distinct and automatically attach. Id. at 1883. separate just from the provision cause from Lingle bargaining pact,

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 82 S.Ct. at 576-77. Griev- retaliatory discharge ment. Unlike the ini- important cogs ance tiative in and arbitration are Lingle, Jackson’s ill-fitting machinery. Misco, merely do not 108 S.Ct. at 371 overlap to some (“it degree grievance with rules must be remembered established *11 122 meaning any provision procedures part are on the of of the

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