Schlacter-Jones v. General Telephone of California

• Decision Date: 17 June 1991
• Docket Number: SCHLACTER-JONE,No. 89-56033,P,89-56033
• Parties: 137 L.R.R.M. (BNA) 2641, 119 Lab.Cas. P 10,795, 6 Indiv.Empl.Rts.Cas. 897 Angelalaintiff-Appellant, v. GENERAL TELEPHONE OF CALIFORNIA; Patricia Leathers; Carol Todd; Doug Bartrip, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 435

936 F.2d 435

137 L.R.R.M. (BNA) 2641, 119 Lab.Cas. P 10,795,

6 Indiv.Empl.Rts.Cas. 897

Angela SCHLACTER-JONES, Plaintiff-Appellant, v. GENERAL TELEPHONE OF CALIFORNIA; Patricia Leathers; Carol

Todd; Doug Bartrip, Defendants-Appellees.

No. 89-56033.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1990.

Decided June 17, 1991.

Peter F. Laura (argued the case) and Leroy S. Walker (signed the briefs), Los Angeles, Cal., for plaintiff-appellant.

Mark F. Sullivan, GTE California Inc., Thousand Oaks, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, Chief Judge, O'SCANNLAIN and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Angela Schlacter-Jones was terminated by GTE California, Inc. because she tested positive for drugs. The terms and conditions of her employment were governed by a collective bargaining agreement between GTE and her union, the Communications Workers of America. She appeals the district court's grant of summary judgment in favor of GTE and its employees, Patricia Leathers, Carol Todd and Doug Baxter (together, "GTE") and the district court's denial of her motion for leave to amend the complaint.

Schlacter-Jones's appeal requires that we revisit whether Sec. 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. Sec. 185(a), preempts various state law and state constitutional claims. ¹ The district court concluded that each is preempted. The court also denied Schlacter-Jones's motion for leave to amend, filed after GTE moved for summary judgment, because of undue delay and futility of the amended pleadings. The district court exercised jurisdiction pursuant to 29 U.S.C. Sec. 185(a) and 28 U.S.C. Secs. 1441, 1446, and we have jurisdiction over the appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

Schlacter-Jones, a member of the Communications Workers of America ("Union"), began working for GTE as a customer representative in 1980. Article X, Section 1 of the Collective Bargaining Agreement ("CBA") provides that covered employees may not be suspended or discharged except for just cause.

In March 1987, GTE unilaterally implemented a Drug and Alcohol Policy ("Drug Policy") which provides in part:

Employees exhibiting signs of impairment or intoxication, performance deficiencies and/or behavioral patterns inconsistent with their normal behavior, will be required to submit to drug and alcohol screening tests.... Employees whose test results are positive for drugs and/or alcohol will be subject to discharge.

GTE Drug and Alcohol Policy, Secs. 3.06 & 3.11. In September 1987, GTE specifically advised Schlacter-Jones of this policy and warned her of the consequences of violations.

On January 27, 1988, GTE supervisors observed Schlacter-Jones moving around erratically, slurring her speech and having difficulty handling customer calls. Pursuant to the Drug Policy, GTE required Schlacter-Jones to submit to a "fitness for duty" test and a drug screening test. The company suspended Schlacter-Jones pending the results of the urinalysis test. On January 29, 1988, GTE fired her when the drug tests revealed the presence of cocaine.

The Union then instituted grievance proceedings under Article XII of the CBA challenging GTE's suspension and discharge of Schlacter-Jones. The parties submitted the matter to arbitration when the grievance procedure failed to resolve the dispute. The Union, representing Schlacter-Jones, contended that the Drug Policy was invalid as an unlawful change in the terms and conditions of employment and that GTE could not discipline Schlacter-Jones under that policy. The arbitrator found that the policy was not the product of bilateral negotiations between GTE and the Union, but concluded that there was insufficient evidence to find that GTE's Drug Policy constituted a unilateral and illegal change in the terms and conditions of employment under the CBA. In all other respects, the arbitrator found in favor of the company, including that GTE discharged Schlacter-Jones for just cause and did not violate the CBA.

In June 1988, Schlacter-Jones filed in California state court this suit for wrongful termination, alleging breach of implied-in-fact contract, breach of the covenant of good faith and fair dealing, violation of state constitutional rights of privacy and due process, employment discrimination under 42 U.S.C. Sec. 1985, fraud, conspiracy, and infliction of emotional distress. GTE then removed the case to district court. In July 1989, following discovery, GTE moved for summary judgment. In conjunction with filing her opposition to that motion, Schlacter-Jones sought leave to amend her complaint to allege a claim under 42 U.S.C. Sec. 1983 and state law claims for defamation, negligence and wrongful discharge in violation of public policy. The district court denied the motion for leave to amend and granted summary judgment for GTE. Schlacter-Jones appeals these rulings.

II

We review the grant of summary judgment de novo to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 402 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 102, 112 L.Ed.2d 73 (1990).

III

Schlacter-Jones first argues that her contract and tort claims are not preempted because there is a triable issue as to whether GTE's drug testing policy constituted an illegal change in the CBA. She further argues that under Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), and Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993 (9th Cir.1987), her claims are not inextricably intertwined with the labor contract because the CBA is silent on the issue of drug testing and the company's drug testing policy was adopted in contravention of the agreement.

A

Because Schlacter-Jones proffered no evidence on the point, the district court did not err in finding no genuine controversy about whether GTE's Drug Policy was properly adopted under the CBA. Both GTE's Statement of Uncontroverted Facts and the Arbitrator's Findings and Award indicate: (1) that there was insufficient evidence for the Arbitrator to find that GTE adopted its Drug Policy unilaterally and illegally, (2) that GTE had reasonable cause to require Schlacter-Jones to submit to a "fitness for duty" test, and (3) that the discharge was for just cause. Schlacter-Jones's Statement of Genuine Issues is purely conclusory and she filed no declarations or other evidence in opposition to the motion. As a result, the Arbitrator's Findings stand uncontroverted, and the district court therefore properly concluded that the Drug Policy is part of the CBA or at least contemplated by it. ²

B

The district court reasoned that GTE's drug testing policy trumps state law claims for breach of implied contract and the covenant of good faith and fair dealing, as well as Schlacter-Jones's claims for intentional infliction of emotional distress and fraud, because these claims implicate the conditions of her employment and thus are "substantially dependent" on the CBA for resolution. It also held that her state constitutional claims for violation of her rights to privacy and due process implicate the CBA and do not contemplate nonnegotiable rights. In so doing, the district court recognized that claims that implicate a collective bargaining agreement must be construed as a Sec. 301 claim and adjudicated under federal labor law or be dismissed as preempted. Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1918-19; Harris, 897 F.2d at 402-03. The district court then applied the test for preemption of tort claims set out in Allis-Chalmers and first carried forward in this circuit in Young, inquiring "whether the state 'confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.' " (Young, 830 F.2d at 999 (quoting Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912)); see also Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1062 (9th Cir.1989); Utility Workers v. Southern Cal. Edison Co., 852 F.2d 1083, 1085-86 (9th Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1530, 103 L.Ed.2d 835 (1989).

We agree that each of Schlacter-Jones's claims is preempted. ³ In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Supreme Court set out the analysis we must use in determining whether Sec. 301 preempts state law claims. "[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is preempted and federal labor-law principles--necessarily uniform throughout the nation--must be employed to resolve the dispute." Id. at 405-06, 108 S.Ct. at 1881. In other words, an "application of state law is preempted by Sec. 301 [of the LMRA] only if such application requires the interpretation of a collective-bargaining agreement." Id. at 413, 108 S.Ct. at 1885. Section 301, however, does not preempt "state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1912.

The gravamen of Schlacter-Jones's claims for breach of implied contract and breach of the implied covenant of good faith and fair dealing is that she was discharged without good cause. The counts for constitutional violations, intentional infliction of emotional distress and fraud and deceit rest on her charge that she was unreasonably subjected to humiliating and inaccurate drug tests, and that GTE breached oral promises to keep information about her drug test and personal...