1. Did the union and the company agree in their collective bargaining contract that the company could conduct surveillance of its employees with hidden cameras behind two-way mirrors?
2. Is the use of two-way mirrors permitting the observation of restrooms illegal per se under California criminal law?
3. How did the court of appeals decide the case?

[Consolidated Freightways ("Consolidated"), the defendant in this action, is a large trucking company. 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 by its drivers. Employees at the terminal discovered the surveillance equipment when a mirror fell off the men's restroom wall, exposing a camera with a wire leading out through a hole in the wall behind it. Subsequent investigation revealed a similar hole in the wall behind the mirror in the adjoining women's restroom. 

Under California Penal Code Section 653n, "any person who installs or who maintains… any two-way mirror permitting observation of any restroom, toilet, bathroom, washroom, shower, locker room, fitting room, motel room, or hotel room, is guilty of a misdemeanor." Thus, Consolidated's installation of the two-way mirror was a direct violation of California criminal law.

Truck driver Lloyd Cramer and more than 280 other employees brought an invasion of privacy lawsuit against Consolidated in state court. Consolidated removed the cases to federal court, contending that the state claims were preempted under Section 301 of the LMRA because of a provision of the collective bargaining agreement (CBA) that dealt with drug use and another provision that dealt with camera surveillance. The U.S. district court dismissed the invasion of privacy claims, and the matter was considered by the Ninth Circuit Court of Appeals en banc.]

FISHER, J.…

We now turn to the specifics of the case before us. In arguing in favor of dismissal, Consolidated cites provisions of the CBA it negotiated with the International Brotherhood of Teamsters, Local No. 63, claiming these provisions brought its covert surveillance within the purview of the CBA. Article 26, Section 2 of the agreement forbids the use of camera surveillance for disciplinary reasons except to prove a charge of property theft or dishonesty. The section also specifies the procedure to be employed for the use of videotapes in the context of theft or dishonesty allegations. Article 35, Section 3 discusses alcohol and drug use and the procedures to be employed for drug testing. Consolidated contends that any employee claim based on its covert restroom surveillance requires recourse to these provisions of the CBA to determine the employees' reasonable expectations of privacy. Without such an analysis, Consolidated argues, the court would be unable to determine whether these expectations were violated….

Consolidated's insistence that we must refer to the CBA because one provision mentions drug use and another contemplates the use of surveillance videotapes in certain specified circumstances does not change our analysis. Neither of these provisions purports to have any bearing on secret spying on Consolidated's employees in company rest-rooms-no matter how well-intentioned Consolidated's alleged purpose may have been in doing so. Indeed, the surreptitious nature of the violation of plaintiffs' privacy belies any notion of bargaining or consent to hidden cameras behind two-way mirrors. Consolidated cannot create a dispute as to the meaning of the terms of the CBA by picking out terms that refer to videotapes and drug use, particularly when a cursory examination of those provisions makes clear they apply to a completely different context and set of circumstances.
In short, this is a classic example of a defendant's attempt to "inject a federal question into an action that asserts what is plainly a state-law claim [in order to] transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated." Caterpillar, 482 U.S. at 399, 107 S.Ct. 2425. The Supreme Court has instructed that we are not to reward defendants who engage in such hypothetical exercises….
Even if the CBA did expressly contemplate the use of two-way mirrors to facilitate detection of drug users, such a provision would be illegal under California law. Section 653n of the California Penal Code makes the installation and maintenance of twoway mirrors permitting the observation of restrooms illegal without reference to the reasonable expectations of those so viewed. Determination of guilt under the statute is not dependent on context or subjective factors; use of the mirrors is a per se violation of the penal code, and an assumption that the mirrors will not be used is per se reasonable….
Consolidated argues that, under California law, violation of a right to privacy is necessarily contextdependent; if an individual consents to a certain action, even an invasive one, she cannot then claim her privacy rights were violated by the action. See Stikes, 914 F.2d at 1270. It cannot substantiate this blanket proposition….
Conclusion
Section 301 does not preempt claims to vindicate nonnegotiable state law rights. Nor does it preempt claims for state law rights that, although potentially negotiable, do not reasonably require the court to interpret an existing provision of a CBA to resolve the dispute.
Plaintiffs' privacy claims are therefore not preempted by § 301. The… plaintiff's claim for intentional infliction of emotional distress is likewise not preempted.
Because the state law privacy claims in these cases were not preempted by § 301, the district court lacked removal jurisdiction over these actions. They must therefore be remanded to state court.
REVERSED and REMANDED.