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Nor does it appear from the face of their complaint that any of their state claims are founded upon rights created by the CBA. Although their state claims relate to conduct that Defendants engaged in at Appellants' workplace, those claims, as in Trans Penn Wax , are nonetheless grounded in substantive rights granted under state law. Moreover, the CBA itself makes no mention of the use of video cameras, microphones, or other surveillance of any kind. Like Trans Penn Wax , the essential question is not whether Appellants' claims relate to a subject — management's rights — contemplated by the CBA.

Rather, the dispositive question here is whether Appellants' state claims require any interpretation of a provision of the CBA. Although Dana and SGI rely upon the "Management's Rights" and "Shop Rules" clauses of the CBA, they do not point to any specific provision of these clauses that must be interpreted in order to resolve Appellants' claims. Nor can we identify any provision that would require interpretation.

That is, the mere fact that we must look at the CBA in order to determine that it is silent on any issue relevant to Appellants' state claims does not mean that we have "interpreted" the CBA. A creative linkage between the subject matter of the claim and the wording of a CBA provision is insufficient; rather, the proffered interpretation argument must reach a reasonable level of credibility. Livadas , U.

The argument does not become credible simply because the court may have to consult the CBA to evaluate it; "look [ing] to" the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption. Cramer v. Consolidated Freightways Inc. With this background, we turn to each of the Appellants' state law claims to determine whether they require interpretation of the CBA. Such a claim requires a plaintiff to demonstrate: " 1 that he engaged in [an oral] communication; 2 that he possessed an expectation that the communication would not be intercepted; 3 that his expectation was justifiable under the circumstances; and 4 that the defendant attempted to, or successfully intercepted the communication, or encouraged another to do so.

Dupler , Pa. Moreover, the Court decided that "the standard for such expectation of privacy is one that society is prepared to recognize as reasonable," which "is necessarily an objective standard. We regard this argument as foreclosed by our decision in Trans Penn Wax. As we have noted, the employees in that case alleged that the employer's breach of its guarantees of job security, granted in individual contracts with the employees, constituted fraud and the intentional infliction of emotional distress. Under Pennsylvania law, one of the elements required for a fraud claim was that the plaintiff justifiably relied on the defendant's misrepresentations.

One of the essential elements of a cause of action for intentional infliction of emotional distress was a showing that the defendant's conduct was "extreme and outrageous. In both instances, the employer suggested, the collective bargaining agreement was part of the context in which the issue had to be addressed. Arguably, for example, the collective-bargaining agreement could have contained provisions that undermined the employees' allegation that their reliance upon the separate guarantees was justified.

We pointed out that the "justifiable reliance" and "extreme and outrageous conduct" were "purely factual questions," the resolution of which did not "require [ ] interpretation of the collective bargaining agreement [or] substantially depend [] on its construction. The fact that a collective bargaining agreement was part of the context in which an employee's claim must be addressed thus did not trigger complete preemption in the absence of some substantial dispute over the meaning of the collective bargaining agreement.

Appellants' justifiable expectations can be determined by a state court simply by considering the conduct of Dana and the facts and circumstances of Appellants' workplace. Dana has provided no reason to believe that such a determination will require the resolution of any dispute concerning rights or obligations contained in the CBA, and we are unable to perceive one. Stores Co.

Allegheny Beverage Corp. We find these cases either inapposite or lacking in continued vitality following the Supreme Court case law we have earlier discussed. Moreover, to the extent any of them is in tension with Trans Penn Wax , we must, of course, remain faithful to that decision. In Kirby v. Union Oil Co. According to the Court, it was clear that the plaintiff could refuse to submit to the search, and if dismissed, could have challenged the termination under the grievance procedures provided for in his CBA. Furthermore, the Court noted, if his union had refused to submit a grievance, the plaintiff could have then sued his union for breach of the duty of fair representation, under the Supreme Court's decision in Vaca v.

Sipes , U. According to the Court, "the availability of remedies under the labor contract precludes appellant's pursuit of those remedies in a state law tort action. We are unable to reconcile this conclusion with the Supreme Court's decision in Caterpillar , which was decided four months after Kirby.

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As we noted above, Caterpillar holds that an employee has the option of vindicating his interests by seeking a remedy available under a collective-bargaining agreement or by bringing a state court action, as long as the state law action does not require interpretation of the collective-bargaining agreement.

Thus, Kirby' s holding — that the availability of a labor contract remedy precluded a state tort action brought to vindicate the same interests — did not survive Caterpillar. With respect to complete preemption, the employee argued that his state law claims did not depend on the meaning of the applicable collective-bargaining agreement. Although the employee conceded that the collective-bargaining agreement could have authorized the surveillance, he noted that nothing in the agreement actually mentioned cameras, locker rooms, or surveillance in general.

The Court agreed with Amoco, however, that the management-rights provision of the parties' collective bargaining agreement could fairly be read as a "residual clause" commuting "everything that [was] neither regulated nor forbidden by the Since this arguable reading would authorize the challenged surveillance, the Court concluded that a "state court could not award damages without first construing the collective bargaining agreement and rejecting Amoco's interpretation of the management-rights clause.

The Amoco Court relied primarily on Kirby and Stikes v. Chevron USA, Inc. Just as we have concluded that Kirby did not survive Caterpillar , an en banc Ninth Circuit Court of Appeals has concluded that Stikes did not survive the ensuing Supreme Court jurisprudence. See Cramer v. Consolidated Freightways, Inc. Given that jurisprudence, it is not clear to us that we would have reached the same result reached by the Amoco Court.

In any event, it is clear to us that the "Management Rights" article of the agreement before us cannot arguably be read as a residual clause committing everything not covered in the agreement to management's discretion. For that reason, Amoco is inapposite here. In Mock , an employee brought suit against T. The Court held these claims preempted, reasoning as follows:. Under the CBA, T.

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Mock , F. Thus, in Mock , as in Amoco , provisions of the collective bargaining agreement could fairly be read to authorize the employer's conduct. Finally, in In re General Motors Corp. Under the collective-bargaining agreement, such program participation was to remain confidential. The Court concluded that the duty of confidentiality alleged to have been violated arose from the collective-bargaining agreement, and the invasion of privacy claim was therefore completely preempted. Thus, the right allegedly violated — the right to confidential use of an employee drug and alcohol abuse counseling program — arose out of a collective-bargaining agreement and, accordingly, the plaintiff was necessarily relying on the terms of the labor contract.

Appellants in our case have made no reference, nor need they make reference, to any provision of the CBA. Appellants also claim that Defendants committed the tort of invasion of privacy. Easton Publishing Co. Bell Tel.


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Grant Co. Although the state law complaint does not specify which privacy tort Appellants advance, the only cause of action arguably relevant to the interception of oral communications in this case is intrusion upon Appellants' seclusion. The Pennsylvania courts have defined this claim, in accordance with the Restatement Second of Torts , as follows: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Like Appellants' Wiretap Act claim, this cause of action also requires that the plaintiff have a reasonable expectation of privacy.

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See id. With respect to Appellants' invasion of privacy claim, Dana and SGI present arguments identical to those they raise in favor of extinguishing the Wiretap Act claims — namely that the expectation of privacy issue and the "highly offensive to a reasonable person" issue must be determined in the light of the collective bargaining agreement. Again, based on Trans Penn Wax , we reject these arguments. As for Appellants' remaining tort claims — negligent or reckless supervision of Defendants' officers, agents, servants; negligent or reckless supervision of Defendants' premises or instrumentalities under their control; and failure to exercise reasonable care to protect Appellants as business invitees — Dana and SGI argue that we must find these claims completely preempted under Electrical Workers IBEW v.

Hechler , U. Rawson , U.

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Neither Hechler nor Rawson is applicable to Appellants' tort claims. In Hechler , an employee of Florida Power and Light Company sued her union after she was injured performing a repair to an electrical substation. The basis of her claim was that the union had breached a duty it assumed, pursuant to the relevant collective-bargaining agreement, to ensure that she would not be required or allowed to take undue risks in the performance of her duties which were not commensurate with her training and experience.

According to the Court, the plaintiff's tort claim was based on her allegation that her union owed her a duty of care, but " [u]nder common law Accordingly, the Court reasoned, the plaintiff's "allegations of negligence assume significance if — and only if — the Union, in fact, had assumed the duty of care that the complaint alleges the Union breached.


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