Metropolitan News-Enterprise


Monday, June 18, 2001


Page 1


Ninth Circuit Reinstates Workers’ Suit Over Restroom Surveillance


By KENNETH OFGANG, Staff Writer/Appellate Courts


Union workers who have agreed to video surveillance as part of an employment contract can sue their employer for installing hidden cameras and audio listening devices in restrooms, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The 10-1 decision by a limited en banc court overturns a panel decision last year ordering dismissal of the suit against Consolidated Freightways

The panel majority, Judges Pamela Ann Rymer and Diarmuid F. O’Scannlain, said the employees had signed away any objection was part of a collective bargaining agreement between Consolidated and the employee’s representative, the Teamsters union.

Privacy Law

But Judge Raymond Fisher dissented, saying that Consolidated’s restroom surveillance violated California privacy law and that collective bargaining agreements cannot contract for illegal activities. Friday, it was Fisher who wrote for the majority, while O’Scannlain was the lone dissenter.

Fisher was joined by Chief Judge Mary M. Schroe­der and Judges Harry Pregerson, Stephen Reinhardt,  A. Wallace Tashima, Sidney R. Thomas, M. Margaret McKeown, Ronald M. Gould, and Richard A. Paez. Judge Richard C. Tallman concurred in the result, but said his conclusion was based on interpretation of the collective bargaining agreement rather than “ambiguous California law.”

Nearly 300 employees sued following the 1997 discovery of the devices at a truck terminate in Mira Loma, Riverside County. The company employs about 1,000 workers there.

Consolidated, based in Menlo Park, said it installed the cameras to try to stop the sale and use of drugs in the restrooms and aimed the cameras away from urinals and toilets.

The earlier panel sided with the late U.S. District Judge Irving Hil, who ruled that the CBA preempted California law. Penal Code Sec. 653n makes it a crime to install two-way mirrors in restrooms, locker rooms, fitting rooms, or hotel rooms, other than in custodial facilities or schools.

Statute Misinterpreted

But Fisher said the district judge had misinterpreted the governing federal statute, Sec. 301 of the Labor-Management Relations Act. The section creates federal court jurisdiction over actions for violation of collective bargaining agreements, and has been interpreted as barring the use of state law to interpret such agreements.

But a claim based on state law is not preempted, Fisher said, “unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute.”

That is not the case here, the judge reasoned, because nothing in the CBA’s drug policy or surveillance provisions “purports to have any bearing on secret spying on Consolidated’s employees in company restrooms — no matter how well-intentioned Consolidated’s alleged purpose may have been in doing so.”

The jurist went on to say:

“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, and it is well established in California that illegal provisions of a contract are void and unenforceable.”

O’Scannlain argued in dissent that the majority was “cavalierly” ignoring the video surveillance provisions. He also argued that the plaintiffs have no claim under California law because the employees had no reasonable expectation of privacy with respect to activity they consented to under the CBA.

The state, he declared, would not “prosecute criminally someone who erects a two-way mirror at the invitation of the person he is videotaping!”

The case is Cramer v. Consolidated Freightways, Inc., 98-55657.


Copyright 2001, Metropolitan News Company