Blake Smith v. Pacific Bell Telephone Company, Inc. et al, No. 1:2006cv01756 - Document 150 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION RE Defendants Communications Workers of America Local 9333 Union and Communications Workers of America District 9 Union's Motions for Summary Judgment 38 , 43 and Motions to Strike 109 , 114 , signed by Judge Oliver W. W anger on 8/11/09: Summary judgment for the Union Defendants on the Sixth Cause of Action is GRANTED; District 9 and Local Union's motions to strike are GRANTED and motions for summary judgment are GRANTED as to the third, fourth and sixth causes of action, and claim for breach of fair representation; Defendants shall comply with this order within five (5) days of electronic service.(Hellings, J)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 BLAKE SMITH, No. CV-F-06-1756 OWW/DLB 6 Plaintiff, 7 8 v. PACIFIC BELL TELEPHONE COMPANY, INC., et al., 9 Defendant. 10 MEMORANDUM DECISION RE DEFENDANTS COMMUNICATIONS WORKERS OF AMERICA LOCAL 9333 UNION AND COMMUNICATIONS WORKERS OF AMERICA DISTRICT 9 UNION'S MOTIONS FOR SUMMARY JUDGMENT (Docs. 38, 43) AND MOTIONS TO STRIKE (Docs. 109, 114) 11 12 I. INTRODUCTION. 13 Plaintiff brings this action pursuant to § 301 of the Labor- 14 Management Relations Act, 29 U.S.C. § 185, claiming that his 15 employer, defendant Pacific Bell, Inc. ( Pacific Bell ), terminated 16 him in violation of the collective bargaining agreement between 17 Pacific Bell and Plaintiff s union, defendants District 9 and Local 18 9333 of the Communications Workers of America, AFL-CIO ( CWA or 19 Union ). 20 of fair representation by conducting a perfunctory investigation 21 and refusing to take his grievance to arbitration. 22 brings supplemental state law claims for fraud and defamation. Plaintiff also alleges that the Union breached its duty Plaintiff also 23 On December 6, 2006, Plaintiff filed a Complaint for Wrongful 24 Termination against Defendants Pacific Bell; AT&T Communications of 25 California, Inc.;1 SBC Telecom, Inc.; Shane Spencer; Alan Brown; 26 Communications Workers of America Local 9333 Union AFL-CIO ( Local 27 28 1 AT&T Communications of California, Inc. and SBC Telecom, Inc. were dismissed pursuant to stipulation (F.R.C.P. 41(a)) on February 1, 2008. (Doc. 62.) 1 9333" or Local Union ); and Communications Workers of America 2 District 9 Union AFL-CIO ( District 9").2 3 Action 4 against all Defendants; the Fourth Cause of Action alleges fraud 5 against the Union Defendants; the Fifth Cause of Action alleges 6 breach of the duty of fair representation against Local 9333 and 7 District 9; and the Sixth Cause of Action alleges defamation by 8 slander against all Defendants.3 9 10 alleges breach of the Collective The Third Cause of Bargaining Agreement Before the court for decision are motions for summary judgment filed by Defendants Local 9333 and District 9.4 11 12 II. FACTUAL BACKGROUND.5 13 14 15 16 2 The First and Second Causes of Action for breach of the implied covenant of good faith and fair dealing were dismissed with prejudice as preempted by L.M.R.A. § 301 by Order filed on April 13, 2007. (Doc. 29.) 3 17 18 19 20 21 The motion for summary judgment filed by Defendants Pacific Bell Telephone Company, Inc.; Shane Spencer; and Alan Brown is resolved by separate Memorandum Decision. 4 Defendants Local 9333 and District 9 filed separate motions for summary judgment. Due to the overlapping facts and issues presented by these motions, the court addresses both Defendants motions together. 5 22 23 24 25 26 27 28 Unless otherwise noted, the facts are undisputed. (See Stmt. of Undisp. Facts in Support of Def. s Mot. for Summ. J. ( SUF ), filed by District 9 on Dec. 28, 2007). Defendants Local 9333 and District 9 each submitted identical Statements of Undisputed Facts. Plaintiff filed a single Statement of Disputed Facts in response to each of the pending motions for summary judgment. Plaintiff objects to much of the evidence submitted by defendants on various grounds. Virtually all of Plaintiff s objections are without merit. Further, to the extent that Plaintiff s sole dispute with facts is based upon the 2 1 In October 2005, Plaintiff worked as a cable locator for 2 Pacific Bell, a regional telephone company providing telephone and 3 data 4 telecommunications infrastructure and facilities. Pacific Bell and 5 the Union are parties to a collective bargaining agreement ( CBA ) 6 which states that employees can only be terminated for good 7 cause. 8 provides for final and binding arbitration. Plaintiff was a member 9 of transmission the services to retail consumers over its The CBA also contains a mandatory grievance clause and Union, who was the exclusive bargaining agent for a 10 bargaining unit of Pacific Bell employees that included Plaintiff. 11 Under the CBA, the Union may file a grievance based on any 12 alleged violation of the CBA. (Dec of D. Flores ¶ 4.) A grievance 13 may be addressed at three stages ( Step 1 through Step 3"), with 14 each step involving a more senior company and union official.6 15 (Id.) 16 appeal the Company s decision to a neutral arbitrator. 17 decision whether to take an unresolved grievance to arbitration is 18 made at the district level. 19 moved to the district level, the local union does not have any 20 continuing obligation regarding the investigation, handling or 21 processing of the grievance. If the grievance is not resolved at Step 3, the Union may (Id. ¶ 6.) (Id.) The After the matter has been (Id. ¶ 7.) 22 23 24 25 inadmissability of Defendants evidence, and is not challenged by any admissible evidence submitted by Plaintiff, these facts are viewed as undisputed. 6 26 27 28 Under CWA s grievance handling procedures, the local union is responsible for the preliminary investigation and the filing of a grievance. (Dec. of L. Sayre ¶ 5.) The local union is also responsible for participation in the first, second, and, if applicable, third steps of the grievance process. (Id.) 3 1 Pacific Bell vehicles are generally equipped with a Vehicle 2 Tracking Unit ( VTS ), which directly links to Global Positioning 3 Satellites ( GPS ). 4 installing vehicle tracking devices in its service vehicles in 5 1998. 6 GPS several years prior to the events at issue in this case. 7 It is undisputed that Plaintiff knew his vehicle contained a GPS 8 monitoring device on October 17, 2005. 9 (Id.) (Larson Dec. ¶ 3.) Pacific Bell began Pacific Bell equipped Plaintiff s work vehicle with (Id.) (SUF 20, 23.) Pacific Bell s use of GPS data for disciplinary purposes is 10 authorized under the CBA. 11 Union expressed concerns about Pacific Bell s use of GPS data for 12 employee discipline. 13 data not be used at all. 14 proposed that the parameters be spelled out in an enforceable side- 15 letter agreement. 16 Union entered into a side letter agreement: 17 18 19 20 21 22 (Dec. of G. Flores ¶ 3.) (Id. at ¶ 8-9.) (Id.) (Id.) In 2004, the The Union proposed that GPS Pacific Bell rejected this and On July 12, 2004, Pacific Bell and the GPS is one of many management tools used to review employee performance or behaviors. GPS will not be used as the sole basis for disciplinary action, but may be used to substantiate information obtained from other sources. As in all cases where discipline may be warranted, management will conduct a complete and thorough investigation and may utilize GPS reports as an additional tool in the investigation. (Exh. B to Dec. of D. Flores.) 23 Pacific Bell uses GPS reports for a variety of reasons, such 24 as ensuring that employees are working at assigned locations at 25 particular times or to ensure that vehicles are being operated 26 safely within the speed limits. 27 reports generated by the GPS system report the following data: (a) 28 the time and location of the vehicle every time the ignition is 4 (Dec. of G. Flores ¶ 8.) The 1 turned on and off; (b) the time and location of the vehicle every 2 seven minutes; (c) the time and location of the vehicle every one 3 mile driven; and (d) the time and location of the vehicle the first 4 time it reaches 20 mph after the ignition is initially turned on. 5 (Larson Dec. ¶ 4.) 6 According to Steve Larson, Manager of Vehicle Tracking 7 Services since March 2001, GPS units attached to Plaintiff s 8 vehicle on October 17, 2005 are extremely accurate. 9 ¶ 1,5.) (Larson Dec. Although there are times that the system has experienced 10 problems, those instances are rare. 11 GPS unit is not functioning properly, the report will indicate a 12 problem. 13 Plaintiff s 14 malfunction or error. 15 that 16 Plaintiff s GPS unit in October 2005. there (Id.) According vehicle was no on to (Larson Dec. ¶ 5.) Larson, October 17, the 2005 did (Larson Dec. ¶ 4, 10.) record of any GPS service If the records not report from any Larson also stated request concerning (Larson Dec. ¶ 10.) 17 18 A. Theft of Plaintiff s Work Vehicle 19 1. Undisputed Facts 20 On October 17, 2005, Plaintiff s company vehicle was stolen 21 while he was locating cable in Keyes, California. (SUF 1.) At 22 around 1:00 p.m., Plaintiff maintains he parked his vehicle, 23 removed the keys from the ignition, locked the van, and proceeded 24 to the rear of the van to remove his locating wand. 25 of A. Brown ¶¶ 8-9.) 26 away from his company vehicle. 27 requiring that company vehicles be locked. 28 this company rule. (SUF 2; Dec. Plaintiff then began walking to the worksite, (SUF 3.) (Id.) Pacific Bell had a rule Plaintiff was aware of Plaintiff s van was also equipped 5 1 with GPS equipment. (SUF 4.) 2 According to Plaintiff, sometime after 1:00 p.m., he was 3 locating cable approximately 150 feet away when he saw a bicyclist 4 approach his vehicle. 5 pick something up off of the ground and enter the cabin of his 6 vehicle. (Id.) The bicyclist then proceeded to drive off in the 7 vehicle. (Id.) Plaintiff immediately moved toward the van and 8 dialed 911.7 (SUF 9 the 911 call, Plaintiff phoned his supervisor, Alan Brown.8 10 11 (SUF 5.) Plaintiff noticed the bicyclist 6-7.) After concluding this short pursuit and (SUF 7.) Plaintiff s stolen vehicle was located approximately 20-30 12 minutes later.9 13 the theft location (Nunes and Washington Streets), drove Plaintiff 14 to the location of his recovered work vehicle (Nora Avenue and 15 Ninth Street). (SUF 9.) (SUF 8-9.) A CHP officer, who had arrived at the Local Shop steward John Mastrangelo 16 7 17 18 19 20 21 22 23 24 25 26 27 28 The California Highway Patrol s Report concerning the incident states: On October 17, 2005, at approximately 1310 hours, I was advised of a victim standing by for a report to be taken on a stolen vehicle that was taken while he was doing cable repairs on Nunes Road and Washington Avenue. (Doc. 50-7, Ex. A, pp. 13.) 8 Brown s cellular phone records indicate an incoming call from Plaintiff s phone at 1:12 p.m. on October 17, 2005. (Doc. 5011, Ex. B, pp. 6.). Brown was Plaintiff s first level supervisor from February 2005 through November 2005. (SUF 65.) Shane Spencer ( Spencer ) was Plaintiff s second level supervisor from March 2003 through November 2005. (Dec. of S. Spencer ¶¶ 1-2.) Before Brown, Plaintiff s first level supervisor was Todd Bayes ( Bayes ). (SUF 65.) Both Bayes and Brown reported directly to Spencer. (Dec. of S. Spencer ¶¶ 1-2.) 9 Stanislaus County Sheriff s Incident Report states: On 1017-05 at approximately 13:15 hours: Detective Mendonca from the Sheriff s Department came on the radio saying he was in the Keyes area and had spotted a stolen SBC , telephone repair van being operated on 9th street in Keyes. (Doc. 50-7, Ex. A, pp. 10.) 6 1 ( Mastrangelo ) and Brown were at the location of the recovered 2 vehicle when Plaintiff and the officer arrived.10 3 inspection, the keys were in the ignition, but the vehicle was not 4 running. (SUF No. 12.) The vehicle was missing the company laptop, 5 miscellaneous tools, and change from the ashtray. 6 (SUF 10.) Upon (SUF No. 11.) On October 18, 2005, Plaintiff attended an investigatory 7 meeting concerning the theft of his work vehicle.11 8 Plaintiff, 9 representative Mastrangelo, attended Brown, the and meeting. another (SUF (SUF 13.) Pacific 13.) Brown Bell told 10 Plaintiff that GPS data from the van showed that it had been idling 11 at the time of the theft. 12 opportunity to explain his side of the story. 13 denied leaving the keys in the vehicle while it was running and 14 stated that the keys must have fallen off his keychain when he was 15 locking the vehicle s rear doors. 16 Although Plaintiff knew the company used GPS systems to verify 17 technician whereabouts, he did not know it could tell if a vehicle 18 was idling. 19 the GPS data. (SUF 20, 23.) (SUF 16-17.) (SUF 15.) Plaintiff was given an (SUF 14.) Plaintiff (Dec. of A. Brown ¶ 9.) Plaintiff questioned the accuracy of At the conclusion of the meeting, 20 21 22 23 24 25 26 27 28 10 Following the theft, Brown also contacted Spencer and Asset Protection, the corporate security investigation department for Pacific Bell. (Dec. of M. Ferrara ¶ 3.) 11 Prior to the meeting with Plaintiff, Brown contacted Steve Larson ( Larson ), who handles vehicle tracking services ( VTS ) for Pacific Bell. (Dec. of A. Brown ¶ 11.) Brown asked Larson to pull the October 17, 2005 vehicle activity report for Plaintiff s vehicle. (Id.) Larson transmitted the vehicle s daily log to Brown and Spencer, who discussed the significance of the GPS coordinates. (Id.) Because the GPS data indicated that the Plaintiff s vehicle was idling during at the time of the theft, Brown called Plaintiff into a meeting later that day. (Id.) 7 1 2 Plaintiff was suspended pending further investigation. (SUF 18.) Following the October 18, 2005 meeting, Plaintiff spoke with 3 Mastrangelo and Lynn Johnson, president of Local 9333. 4 When Plaintiff did not hear from Johnson within three days of the 5 October 18th meeting, he faxed her a letter saying he was seeking 6 legal counsel. 7 contacted Plaintiff and told him that they were working on the 8 status of his investigation and Johnson would call him. 9 Thereafter, Johnson called Plaintiff but could not give him any on (SUF 25.) the status (SUF 24.) A representative from District 9 of the 10 information 11 Plaintiff holds the belief that Johnson left him in the dark 12 about the investigation. 13 with Mastrangelo every other day during his suspension. (SUF 28.) investigation. (SUF 26.) (SUF 27.) However, Plaintiff did speak (SUF 30.) 14 On November 1, 2005, during his suspension, Plaintiff was 15 asked to meet with an investigator from the Pacific Bell s Asset 16 Protection Division. 17 Protection 18 evidencing that the van was idling at the time the vehicle was 19 stolen. 20 vehicle unattended and could not explain why the GPS report said 21 otherwise. (SUF 34.) 22 Protection investigator 23 meeting, which Plaintiff was allowed to correct and edit before 24 signing. (SUF 31.) investigator (SUF 35.) During this meeting, the Asset presented Plaintiff with GPS reports Plaintiff responded that he never left the At the conclusion of the meeting, the Asset drafted a statement summarizing the (SUF 36.) 25 On November 18, 2005, Brown, Spencer, Ellen Singleton (Labor 26 Relations), and Roger Odom (Human Resources), met to discuss the 27 investigation, Asset Protection s 28 8 findings, and Plaintiff s 1 disposition.12 2 provided the group with Plaintiff s previous disciplinary record - 3 including the 2004 suspension for violating Pacific Bell s Code of 4 Business Conduct. (Dec. of S. Spencer ¶ 8-9.) Brown and Spencer 5 determined that the evidence demonstrated that Plaintiff s vehicle 6 was idling when it was stolen, which meant the keys were in the 7 ignition and that Plaintiff s report of the facts was false. (Dec. 8 of Brown ¶ 16.) 9 for not safeguarding company property and misrepresenting facts 10 (Dec. of A. Brown ¶ 16.) Brown and Spencer also Spencer and Brown decided to terminate Plaintiff during the investigation, i.e., that Plaintiff lied. (Id.) 11 On November 22, 2005, Plaintiff attended a meeting with 12 Mastrangelo, Johnson, Brown, Spencer, union representative Virginia 13 Santos, and cable repair manager Warren Anderson. 14 Brown conducted the meeting and informed Plaintiff that he was 15 terminated. 16 determined that Plaintiff violated the Company s Code of Business 17 Conduct by failing to safeguard company property and that he (SUF 39.) Brown stated that the (SUF 38-39.) investigation 18 19 20 21 22 23 24 25 26 27 28 12 On November 2, 2005, Brown conducted a test of Plaintiff s vehicle to ensure the GPS unit functioned properly. (Dec. of A. Brown ¶ 15.) Brown made four stops at specific addresses near where Plaintiff s vehicle was stolen. (Id.) Brown also restarted the vehicle along Plaintiff s route. (Id.) After returning the vehicle to the garage, Brown had Larson pull the vehicle s GPS report. (Id.) The report confirmed that the GPS unit was functioning properly as all the starts, stops, and times matched Brown s contemporaneous notes of his movements earlier that day. (Id.) Brown sent a summary of his findings to Spencer and Asset Protection. (Id.) From the fact that GPS tracks when the engine starts and stops, it can reasonably be inferred that a period after the engine start with no movement in location before the engine stop is idling, contrary to Plaintiff s assertion. Plaintiff produced no expert testimony to the contrary. 9 1 misrepresented facts during the investigation.13 2 asked Plaintiff if he had any questions regarding his dismissal. 3 (Dec. of Brown ¶ 17.) 4 Plaintiff 5 concluded. 6 was then (SUF 40.) Plaintiff responded in the negative. given his final paycheck and the Brown (Id.) meeting (Id.) Following Plaintiff s discharge, the Union filed a grievance 7 on his behalf.14 8 Plaintiff s dismissal was the GPS report, which was in direct 9 violation of the CBA and agreement governing Pacific Bell s use of The union asserted that the sole reason for 10 GPS records. 11 Flores.) 12 dismissal and maintained that Plaintiff s explanation regarding the 13 theft 14 disciplinary incidents, the most serious of which resulted in the 15 warning that he could be terminated if another incident occurred. 16 The union requested that Plaintiff be reinstated to his position at 17 Pacific Bell and made whole in all other respects. 18 Exh. D, Dec. of D. Flores.) was (Exh. H, Dec. of L. Johnson; Exh. C, Dec. of D. Pacific Bell denied that GPS was the sole reason for his not plausible. (Id.) Plaintiff had three prior (SUF No. 46; 19 20 21 22 23 13 During his employment, Plaintiff had been disciplined for violations of Pacific Bell Policy and was advised, on at least four occasions, that any further incidents could lead to his termination. (Pl. s Dep. 35:11-35:15, 54:1-54:7, 64:9-64:15.) 24 14 25 26 27 28 A few days after his termination, Mastrangelo spoke with Plaintiff about the status of his grievance. (SUF 41.) Plaintiff believed the termination grievance was an extension of his suspension grievance. (SUF 42.) Further, Plaintiff stated in his deposition that he was unfamiliar with the grievance process. (SUF 44.) However, Plaintiff knew the union sought his reinstatement and a make-whole remedy. (SUF 45-46.) 10 A Step 1 grievance meeting15 was held on December 7, 2005. 1 2 (Dec. of Brown ¶ 16.) 3 Johnson, representing Local 9333, attended the Step 1 meeting, at 4 which time Johnson demanded that Plaintiff be reinstated. 5 Brown refused the Johnson s request to reinstate Plaintiff and 6 denied the grievance. 7 received all of the documentation she requested, including copies 8 of the asset protection report, interview notes, the GPS report, 9 and the Stanislaus County Sheriff s report. 10 Brown, representing Pacific Bell, and (Id.) (Id.) Brown also confirmed that Johnson (Doc. 50-4, Exh. F, pp. 18.) 11 A Step 2 grievance meeting was held on January 5, 2006. 12 of 13 Mastrangelo, and Lynn Johnson attended on behalf of the Union. 14 (Id.) Spencer and Tony Kobliska attended on behalf of Pacific 15 Bell. (Id.) 16 reviewed Plaintiff s grievance and Local 9333 representatives again 17 requested that Plaintiff be reinstated to his full-time position. 18 (Doc. 53, Exh. E, pp. 35.). 19 terminated instead of suspended for 30/60 days. 20 that Plaintiff was terminated because of his inherent risk to the 21 business. 22 denied the grievance. 23 24 S. Spencer ¶ 17.) Larry Gordon, Juan Saralegui, (Dec. John According to the minutes of the meeting, the group (Id.) Lynn Johnson asked why Plaintiff was Kobliska stated Pacific Bell refused to reinstate Plaintiff and (Id.) A Step 3 grievance meeting was held on February 16, 2006. (Dec. of D. Flores ¶ 11.16) Larry Gordon and Lynn Johnson attended 25 26 15 Although he did not attend the grievance hearings, Plaintiff was aware they occurred. (Pl. s Dep. 148:9-150:22.) 27 16 28 See Step 3 Meeting Notes, Doc. 50-10, Exh. C to Dec. of D. Flores. 11 1 on behalf of the Union. 2 Berringer attended on behalf of Pacific Bell. 3 again asserted that Plaintiff was dismissed solely because of the 4 GPS report, contrary to the side-letter agreement. (Id.) 5 Pacific Bell admitted that it used GPS heavily on this, it 6 asserted that his termination was based on the vehicle being 7 stolen. 8 explanation regarding the theft was not plausible, i.e, that 9 Plaintiff lied. 10 (Id.) (Id.) Pacific (Id.) Murchison, Kubliska, and John Bell maintained (Id.) Local 9333 that Although Plaintiff s Pacific Bell refused Local 9333 s request to reinstate Plaintiff and denied the grievance. (Id.) 11 On March 9, 2006, District 9 notified the company of its 12 intent to arbitrate Plaintiff s grievance under Sections 7.10C, 13 7.10D, 7.11D, and 7.15 of the CBA. 14 maintained that the termination was not justified and requested 15 that Plaintiff be reinstated, that the company remove all the 16 documentation concerning the incident, and that Plaintiff be made 17 whole in every respect. 18 (Id. ¶ 12.) District 9 (Id.) Plaintiff s arbitration was set for September 27, 2006. (SUF 19 49.) 20 arbitration pursuant to the Expedited Arbitration Procedures, 21 which specified that rules of evidence would not be followed and a 22 court reporter would not be used. 23 to 24 Plaintiff s 25 manuals, 26 employees disciplined after reviewing GPS records. (Id. ¶ 13; Dec. 27 of R. Hjort ¶ 3.) 28 An arbitrator was selected and the parties prepared for the arbitration, personnel GPS-related the (Dec. of D. Flores ¶ 14.) Union records, and as documents, Pacific well and as Prior Bell exchanged numerous operating information about other In May 2006, Plaintiff met with Lynn Johnson for a couple of 12 1 hours to review the incident, facts, and evidence against him. 2 (SUF 48.) 3 District 9, at his offices in Alameda, California to prepare for 4 his September 27, 2006 arbitration. 5 to collect more evidence, specifically, to obtain a copy of his 6 call to 911 on October 17, 2005. 7 Plaintiff notified the Union that he could not obtain a copy of the 8 911 tape because of the extended lapse in time. 9 Also in May, he met with David Rosenfeld, attorney for (SUF 50.) Plaintiff was told (SUF 51.) A few days later (SUF 53.) A week prior to the arbitration, Johnson and Rosenfeld called 10 Plaintiff to discuss his grievance. 11 Rosenfeld 12 grievance to arbitration because, in Rosenfeld s opinion, District 13 9 did not have enough evidence to win. 14 requested that Plaintiff meet with him to discuss the reasons 15 District 9 withdrew his grievance. 16 pattern of non-participation in the grievance process, Plaintiff 17 declined to meet with Rosenfeld. 18 On told Plaintiff September 25, that 2006, (SUF 54.) District 9 would Johnson and not (SUF 54.) (SUF 56.) take his Rosenfeld Consistent with his (SUF 57.) District 9 formally withdrew 19 Plaintiff s grievance. In a letter to Pacific Bell s arbitration 20 counsel, Rosenfeld stated that District 9 decided not to pursue the 21 grievance any further because after reviewing the evidence, we 22 determined that we could not prevail. (Dec. of R. Hjort ¶ 5.) 23 24 III. PROCEDURAL BACKGROUND. 25 On December 6, 2006, Plaintiff filed a complaint for wrongful 26 termination against Pacific Bell, AT&T, SBC Telecom, Inc., Spencer, 27 Brown, Local 9333, and District 9. 28 that Pacific Bell breached the CBA by terminating Plaintiff s 13 (Doc. 2.) Count III alleges 1 employment without good cause. Also under Count III, Plaintiff 2 alleges that the union breached the CBA by failing to protect his 3 employment following his suspension and discharge. 4 Count IV alleges that the union defendants committed fraud 5 when they deceived Plaintiff into making monthly payments with full 6 knowledge that they would not fulfill their promise to protect his 7 interests. 8 their duty of fair representation by performing a perfunctory 9 investigation and arbitrarily failing to pursue his claim to Count V alleges that the union defendants breached 10 arbitration. 11 blacklisting, arising out of the defendants allegedly telling third 12 parties that Plaintiff was discharged for lying. Plaintiff alleges 13 that these false statements have made it impossible for him to 14 acquire employment in Stanislaus County. 15 Count VI recites state law claims for libel and Defendants Local 9333 and District 9 filed their motions for 16 summary judgment on December 28, 2007. 17 motions, 18 supported entirely by Plaintiff s own deposition testimony. (Docs. 19 40 & 45.) 20 cannot: 1) establish his breach of contract claim outside of § 301 21 of the LMRA; and 2) produce evidence to create a genuine issue of 22 material that 23 discriminatory or in bad faith - the necessary showing to establish 24 a breach of the duty of fair representation. 25 state law claims should be dismissed because the unions: 3) acted Defendants filed (Docs. 38, 43.) Statements of With their Undisputed Facts,17 Defendants seek judgment on the grounds that Plaintiff fact the union s conduct was arbitrary, Defendant argues the 26 27 28 17 Defendants Local 9333 and District 9 filed identical statements of undisputed facts. (Docs. 40, 45.) 14 1 2 lawfully; and 4) Plaintiff lacks evidence to support his claims. Defendants motions for summary judgment were noticed for 3 hearing on January 28, 2007. 4 January 22, 2008, (Doc. 59), the hearing on the motions for summary 5 judgment was continued to March 17, 2008. 6 Plaintiff filed his By Stipulation and Order filed on oppositions to Defendants 7 judgment motions on February 29, 2009. 8 support of his opposition, Plaintiff submitted: (1) a single 9 Memorandum 10 affidavit 11 Caloyannides, PhD; and (4) a single Statement of Disputed Facts 12 ( PSDF ). 13 Defendants statements of undisputed facts. opposing of John all the motions Mastrangelo; (Docs. 72-74.) (3) (Docs. summary 69, 70.) ( Memorandum ); the affidavit of (2) In the Michael Plaintiff did not file an opposition to 14 Plaintiff opposes summary judgment on grounds that the union 15 performed a perfunctory investigation and arbitrarily failed to 16 take his claim to arbitration. 17 On March 10, 2008, Defendants filed a reply and evidentiary 18 objections. (Docs. 77 & 86.) Defendants objected to the 19 affidavits of John Mastrangelo and Michael Caloyannides, PhD., 20 (Docs. 78, 79, 82.), and Plaintiff s Statement of Disputed Facts. 21 (Docs. 80, 89.) 22 By Minute Orders filed on March 10, 2008, April 23, 2008, June 23 11, 2008, and August 5, 2008, the hearing on the motions for 24 summary judgment were continued due to the press of court business. 25 (Docs. 76, 97, 98, 100.) 26 the hearing from August 11, 2008 to August 25, 2008. The August 5, 2008 Minute Order continued 27 On August 11, 2008, Plaintiff filed a Supplemental Affidavit 28 of Michael Caloyannides, PhD, in opposition to the motions for 15 1 summary judgment. (Doc. 101.) On August 12, 2008, Plaintiff filed 2 his Reply and Objections to Defendants Separate Statements of 3 Undisputed Facts in opposition to the Employer Defendants motion 4 for summary judgment, (Doc. 102), his Reply and Objection to 5 Defendant Local 9333's statement of undisputed facts in support of 6 Local 9333's motion for summary judgment, (Doc. 103), and his 7 Reply and Objection to Defendant District 9's statement of 8 undisputed facts in support of District 9's motion for summary 9 judgment, (Doc. 104). 10 11 Also on August 11, 2008, Plaintiff filed a Supplemental Statement of Disputed Facts. (Doc. 105). On August 18th, 2008, Local 9333 filed a motion to strike the 12 documents filed by Plaintiff on August 11th and 12th. 13 District 9 filed their motion to strike the same documents on 14 August 20th, 2008.18 15 strike was set for August 25, 2008, the same day as the summary 16 judgment hearing. (Doc. 112.) (Doc. 109.) The hearing on the motions to 17 By Minute Orders filed on August 20, 2008, August 28, 2008, 18 and September 2, 2008, the hearing on the motions for summary 19 judgment and motions to strike were continued.19 20 121.) 21 from September 15, 2008 and to September 29, 2008. (Docs. 118, 120, The September 2, 2008 Minute Order continued the hearing 22 The parties appeared before the court on September 29, 2008, 23 for argument on Defendants motions for summary judgment and 24 motions to strike. During the September 29, 2008 hearing, the 25 26 18 District 9 filed an amended motion the same day. (Doc. 114.) 27 19 28 The hearings were continued either by stipulation or due to the press of court business. 16 1 Court stated to Plaintiff s counsel if you can find me a case, 2 I ll let you do it, that says that the making a [sic] negligent or 3 an 4 representation. On October 2, 2008, Plaintiff filed a Submission 5 of Supplemental Authority After Oral Argument Re: Motion for 6 Summary Judgment . incomplete investigation that breaches the duty of fair (Doc. 130.) 7 On October 7, 2008, Pacific Bell, Spencer, and Brown moved to 8 strike Plaintiff s Supplemental Authority on the ground that it was 9 not authorized to be filed by the Court and constituted a re- 10 briefing of arguments and authority already presented to the Court. 11 (Doc. 133.) District 9 joined the motion on October 10, 2008. 12 (Doc. 134.) The Court denied Defendants motion on October 27, 13 2009 and granted Defendants an opportunity to file responsive 14 papers to the supplemental authority. 15 On November 10, 2008, District (Doc. 135.) 9 and Local 9333 filed 16 responses to Plaintiff s Submission of Supplemental Authority 17 After Oral Argument Re: Motion for Summary Judgment. 18 & 140.) (Docs. 138 19 20 21 A. Motions to Strike (Docs. 109, 114.) These motions for summary judgment were filed by Defendants on 22 December 28, 2007 and noticed for hearing on January 28, 2007. 23 Stipulation and Order filed on January 22, 2008, (Doc. 59), the 24 hearing on the motions for summary judgment was continued to March 25 17, 2008. 26 27 28 The Stipulation and Order provided: Any opposition or reply shall be filed in accordance with F.R.C.P. and Local Rules based on the new hearing date [March 17, 2008]. Plaintiff shall not seek a further continuance of the Summary Judgment Motions and shall not 17 By 1 2 3 raise the need for additional time in Plaintiff s Opposition to the Summary Judgment Motions. Plaintiff s oppositions to these motions were filed on 4 February 29, 2008. 5 Undisputed Facts in opposition to the motions for summary judgment, 6 Plaintiff did not comply with the requirements of Rule 56-260(b), 7 Local Rules of Practice: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Although Plaintiff filed his Statement of Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial. Defendants reply papers were filed on March 10, 2008. By Minute Orders filed on March 10, 2008, April 23, 2008, June 11, 2008, and August 5, 2008, the hearing on the motions for summary judgment was continued due to the press of court business. The August 5, 2008 Minute Order continued the hearing from August 11, 2008 to August 25, 2008. On August 11, 2008, Plaintiff filed a Supplemental Affidavit of Michael Caloyannides, PhD, in opposition to the motions for summary judgment (Doc. 101). On August 12, 2008, Plaintiff filed his Reply and Objections to Defendants Separate Statements of Undisputed Facts in opposition to the Employer Defendants motion for summary judgment, (Doc. 102), his Reply and Objection to Defendant Local 9333's statement of undisputed facts in support of Local 9333's motion for summary judgment, (Doc. 103), and his Reply and Objection to Defendant District 9's statement of undisputed facts in support of District 9's motion for summary 28 18 1 judgment. (Doc. 104.) 2 Supplemental Statement of Disputed Facts, (Doc. 105), which 3 purports 4 Plaintiff did not seek or obtain leave of Court to file these 5 papers, which sought to correct the deficiencies and non-compliance 6 with the rule of court in his earlier submissions. to add Also on August 11, 2008, Plaintiff filed a Plaintiff s disputed facts Nos. 300 to 463. 7 Defendants move to strike Plaintiff s August 12, 2008 filings 8 on the grounds that they were filed six months after Plaintiff was 9 required to file them. (Docs. 109, 112.) Defendants note that, 10 although the Court continued the hearing dates for the motions for 11 summary judgment, the Court did not continue the filing deadlines 12 and, in fact, all briefing on the motions for summary judgment was 13 complete as of March 10, 2008. 14 78-230, Local Rules of Practice, does not provide for the filing of 15 sur-reply papers. 16 17 Defendants further note that Rule Plaintiff argues that Rule 78-230(c) allows the filing of the papers filed on August 11 and 12, 2008: 18 Opposition, if any, to the granting of the motion ... shall be filed with the Clerk not less than fourteen (14) days preceding the noticed (or continued) hearing date. 19 20 21 Plaintiff asserts that, because the hearing date for the 22 motions for summary judgment was continued by the Court several 23 times, his supplemental opposition papers are timely and no leave 24 of Court to file them was necessary. 25 The law and motion rules do not provide for a game of ping-pong. 26 The moving party has a right to file a motion a reply to the non- 27 moving 28 response, not a sur-rebuttal. party s response. The This is categorically wrong. opposing 19 party is permitted a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 By Declaration filed on August 22, 2008, Plaintiff s counsel avers that he filed the Supplemental Caloyannides Declaration: 1. A supplemental affidavit was filed by Michael Caloyannides, PhD due to the objections which were filed by defendants to his original affidavit. Although we are confident that his original affidavit stands on its own we determined that a supplemental affidavit would be prudent just in case. 2. It took many months of careful review of all of the depositions, police reports, affidavits, SBC Asset Protection Report, moving documents, and all other documents to make the decision ultimately to file the supplemental affidavit. Whether or not all of these items will ultimately be found to be admissible by the court our expert reviewed them. 3. After this careful and thoughtful review Dr. Caloyannides, PhD provided his affidavit to plaintiff s counsel which in turn was filed by the court [sic]. The date that the affidavit was provided was mere days before it was filed. 15 16 17 18 19 20 4. We believe that this supplemental affidavit sets to rest once and for all the methods and practices employed by Dr. Caloyannides to make his findings. These methods and practices are scientific and are followed by his fellow scientists. In an effort to aid the trier of fact we have filed this affidavit. 27 5. We believe that all of the documents that we have recently filed are timely given the movement of the date set for hearing these motions to September 8, 2008 and given that oral argument would have been made and will be made at that hearing, if allowed. We anticipate that all sides will be making oral argument at the hearing. We have anticipated and organized our thoughts into writing to aid the trier of fact. We will be specifically addressing those points at oral argument if permitted to do so. The defendants through their respective counsel will likely also be permitted to address those points and perhaps others as well. 28 6. 21 22 23 24 25 26 It has been pointed out that an affidavit 20 1 may be required to support the supplemental affidavit of Michael Caloyannides, PhD. Therefore, in an effort to comply with all local rules, we are now filing this affidavit. 2 3 7. We respectfully request that this affidavit and the affidavit of Michael Caloyannides, PhD be considered when making a decision about the Motion [sic] for Summary Judgment and Motions to Strike. 4 5 6 8. We carefully reviewed the local rules and Federal Rules of Civil Procedure when opposing these motions and perhaps we may have misinterpreted or failed to recognize this particular rule. 7 8 9 9. I sincerely apologize for the late filing of this affidavit. 10 11 Plaintiff s reading of Rule 78-230(c) misses the mark. 12 Plaintiff s opposition to the motions for summary judgment was 13 filed on February 29, 2008. Defendants replies were filed on 14 March 10, 2008, the date on which the Court first continued the 15 hearing date on the motions for summary judgment due to the press 16 of Court business. All briefing in connection with the motions for 17 summary judgment was complete as of March 10, 2008. By the 18 Stipulation and Order filed on January 22, 2008, Plaintiff agreed 19 to file his oppositions to the motions for summary judgment by 20 February 29, 2008. Plaintiff s construction of Rule 78-230(c) is further the 21 belied by fact that Plaintiff did not file his 22 supplemental opposition papers fourteen days prior to the April 28, 23 2008 hearing date, the June 16, 2008 hearing date, or the August 24 11, 2008 hearing dates set by the Court s Minute Orders. All of 25 these hearing dates were continued by the Court after that two week 26 period elapsed. 27 Plaintiff asserts that, if the Court does not construe Rule 28 21 1 78-230(c) as Plaintiff does, Plaintiff requests tardy leave of 2 court to cure our inadvertent error and that Plaintiff sincerely 3 believed that we were in compliance with the rules. 4 Plaintiff s described not above. reasonable It is given apparent the sequence 6 Plaintiff s untimely filings were not the result of a misreading of 7 the Local Rule, but rather an attempt to correct his previous 8 failure to comply with Rule 56-260(b), and to get a second bite of 9 the apple in opposing the motions for summary judgment. 11 events are 5 10 of protestations that District 9 and Local 9333 s motions to strike the late filings are GRANTED.20 12 IV. LEGAL STANDARD. 13 Summary judgment is appropriate when the pleadings, the 14 discovery and disclosure materials on file, and any affidavits show 15 that there is no genuine issue as to any material fact and that the 16 movant is entitled to judgment as a matter of law. 17 P. 56(c). 18 initial responsibility of informing the district court of the basis 19 for its motion, and identifying those portions of the pleadings, 20 depositions, answers to interrogatories, and admissions on file, 21 together with the affidavits, if any, which it believes demonstrate 22 the absence of a genuine issue of material fact. Celotex Corp. v. 23 Catrett, quotation 24 omitted). Fed. R. Civ. A party moving for summary judgment always bears the 477 U.S. 317, 323 (1986) (internal marks 25 26 27 28 20 District 9 filed a reply to Plaintiff s response to District 9's statement of undisputed facts and to Plaintiff s supplemental statement of disputed facts. (Docs. 116 & 117.) Local 9333 did not file a reply. As its motion to strike was granted, District 9's reply is moot and will not be considered. 22 1 Where the movant will have the burden of proof on an issue at 2 trial, it must affirmatively demonstrate that no reasonable trier 3 of fact could find other than for the moving party. Soremekun v. 4 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also 5 S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 6 2003) (noting that a party moving for summary judgment on claim as 7 to which it will have the burden at trial must establish beyond 8 controversy 9 quotation marks omitted). every essential element of the claim) (internal With respect to an issue as to which the 10 non-moving party will have the burden of proof, the movant can 11 prevail merely by pointing out that there is an absence of evidence 12 to support the nonmoving party s case. Soremekun, 509 F.3d at 984. 13 When a motion for summary judgment is properly made and supported, 14 the 15 allegations or denials of its own pleading, rather the non-moving 16 party must set forth, by affidavit or as otherwise provided in Rule 17 56, specific facts showing that there is a genuine issue for 18 trial. 19 242, 250 (1986)). Conclusory, speculative testimony in affidavits 20 and moving papers is insufficient to raise genuine issues of fact 21 and defeat summary judgment. non-movant cannot defeat the motion by resting upon the Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. Id. 22 To defeat a motion for summary judgment, the non-moving party 23 must show there exists a genuine dispute (or issue) of material 24 fact. 25 suit 26 [S]ummary judgment will not lie if [a] dispute about a material 27 fact is genuine, that is, if the evidence is such that a 28 reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the under the governing law. 23 Anderson, 477 U.S. at 248. 1 Id. at 248. 2 district court does not make credibility determinations; rather, 3 the 4 justifiable inferences are to be drawn in his favor. evidence In ruling on a motion for summary judgment, the of the non-movant is to be believed, and all Id. at 255. 5 6 7 V. A. DISCUSSION. Plaintiff s Evidence 8 1. 9 In opposition to Defendants motions for summary judgment, 10 Plaintiff presented an affidavit from Mastrangelo as rebuttal 11 evidence. 12 portions 13 Specifically, Defendants raise the following objections: 14 15 16 17 Affidavit of John Mastrangelo Defendants District 9 and Local 9333 object to large of Mastrangelo s affidavit on various grounds. 1. I was expelled from the union Local 9333 and District 9, and forced to retire from the company as an unrepresented employee technician during the first week of January, 2006. Prior to that time, I was union steward in charge of sitting in on grievances. However, much to my dismay, I had no power nor budget to investigate grievances. 18 Defendants District 9 and Local 9333 object to the first 19 paragraph of Mastrangelo s affidavit on relevance grounds. 20 Relevant evidence is defined as "evidence having any tendency to 21 make the existence of any fact that is of consequence to the 22 determination of the action more probable or less probable than it 23 would be without the evidence." Fed R. Evid. 401. Rule 402 24 provides that "[all] relevant evidence is admissible [...] Evidence 25 which is not relevant is not admissible." Although definition of 26 "relevant evidence" is broad, it has limits; evidence must be 27 probative of a fact of consequence in the matter and must have 28 24 1 tendency to make existence of that fact more or less probable than 2 it would have been without evidence. 3 943-44 (9th Cir. 2007). U.S. v. Curlin, 489 F.3d 935, 4 The circumstances underlying Mastrangelo s retirement and his 5 difficulties as a steward have no connection to Plaintiff s claims 6 against 7 concerns 8 procedures at issue in this litigation. 9 union s investigation of plaintiff s case was compromised by any the Union are Defendants. irrelevant to Mastrangelo s the prior budgetary and grievance investigation There is no evidence the 10 budget issues. 11 nothing to do with the issues of this case, nor is it probative of 12 any material issue, except to show his bias against the union. 13 Defendants objections are sustained. 14 The first paragraph of Mastrangelo s affidavit has 2. In 2004, I trained Mr. Smith for Cable locating duties as a fill in technician. He became full time technician after June 15, 2005 due to another locator have been arrested for murder. 15 16 17 The above portion of Mastrangelo s affidavit is irrelevant to 18 Plaintiff s claims. 19 and the details behind his advancement to a full-time position are 20 not connected to his claims of fraud, defamation, or breach of the 21 duty of fair representation. 22 Plaintiff s status as a fill in technician Defendants objection is sustained. 3. Blake Smith has also never been untruthful with co-workers or supervision. SBC/Pac Bell brings up prior discipline of Mr. Smith, but what they don t state is that Mr. Smith provided the company with honest answers and has never been accused of not telling the truth at least until the incident that led to his termination. 23 24 25 26 Defendants District 9 and Local 9333 object to the above 27 portion of Mastrangelo s affidavit 28 25 on grounds it contains 1 conjecture and was not made on the basis of his personal knowledge. 2 Rule 56(e) of the Federal Rules of Civil Procedure requires that 3 affidavits supporting and opposing a motion for summary judgment 4 shall be made on personal knowledge, shall set forth such facts as 5 would be admissible in evidence, and shall show affirmatively that 6 the affiant is competent to testify to the matters therein. 21 7 Manstrangelo recites that he has personal knowledge of the 8 matters set forth in his affidavit based on his then position as 9 Union Steward. Yet the claims contained in his third paragraph 10 require knowledge about every instance in which Plaintiff spoke 11 with SBC/Pacific Bell officials and/or union representatives. 12 a union steward, and not a manager or human resources associate, 13 Mr. Mastrangelo was not present nor in a position to acquire such 14 comprehensive 15 Plaintiff s 16 provided by Fed. R. Evid. 608. 17 foundation for the opinion testimony on credibility, which would 18 only 19 truthfulness. be 20 knowledge. credibility for a Ms. is person s Mastrangelo s generally opinion inadmissible, As about except as Plaintiff has not provided a reputation in the community for Defendants objections are sustained. 4. In that incident, and the events leading to his dismissal, I am confident based on my knowledge of his work history, that on the date of the incident that he simply dropped his keys while doing cable locates. 21 22 23 24 25 26 27 28 21 In some cases it can be inferred from the affidavit that the personal knowledge requirement is met. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (inferring from the affiant's position and nature of participation in the matter, as an investment banker who represented the defendant in certain negotiations, that he had personal knowledge of the circumstances of those negotiations and the intent of the parties with respect to the agreement reached). Barthelemy is distinguishable; such a situation cannot be inferred from the present facts. 26 1 Immediately following the incident, Blake Smith contacted me via cell phone and relayed the facts to me as follows: Myron David Riddle came riding his bicycle upon the site where the keys had been dropped due to the fact that Blake had been wearinng carpenters pants (loose fitting pants). Riddle then picked up the keys, walked over to the drivers side of the vehicle, unlocked the drivers side door, started the vehicle and sped off in great haste. 2 3 4 5 6 Defendants District 9 and Local 9333 object to the first 7 sentence of paragraph four on grounds it contains conjecture and 8 was not made on the basis of his personal knowledge. The objection 9 is sustained for the reasons stated above. The witness was not 10 present. He expresses no more than inadmissible opinions that lack 11 personal knowledge. Defendants object to the remaining portion of 12 paragraph four on hearsay grounds. To the extent that the 13 statements are offered to prove the truth of the matter asserted, 14 they are inadmissible. See Fed R. Evid. §§ 801-802 ( Hearsay is 15 not admissible except as provided by the Federal Rules of Evidence 16 [...] ). 17 18 Paragraph five of Mastrnagelo s affidavit spans seven pages 19 and contains sixteen subparts. Defendants District 9 and Local 20 9333 object to the bulk of paragraph five on the grounds it 21 contains inadmissible hearsay, conjecture, speculation, and was not 22 made on the basis of his personal knowledge. Defendants 23 objections to the fifth paragraph of Mastrangelo s affidavit are, 24 in the majority, sustained. For example: 25 26 27 5(a). I repeatedly told the union President Johnson, that GPS was not reliable. I informed them that it needed to be investigated. I was simply ignored. They did zero (0) investigation. They accepted the findings of the company as fact. 28 27 1 Defendants objections are sustained. There is nothing in the 2 affidavit to establish Mr. Mastrangelo is knowledgeable about or 3 qualified to give an expert opinion on the reliability of GPS 4 equipment. 5 legal opinion as to conduct sufficient to establish a breach of the 6 duty of fair representation.22 7 The affidavit shows no basis for Mastrangelo to form a 5(c). The union President Lynn Johnson would continually state "We will take this case to arbitration". "We don't investigate at this stage, we wait until arbitration for that". She also told me "The company investigation states that Blake lied". I would ask about what proof the company had and she would say "he lied". 8 9 10 11 Paragraph five, subpart (c), includes several hearsay to Johnson 12 statements, including statements attributable Lynn 13 regarding how the Union would handle Plaintiff s grievance, her 14 report of the company's investigation that Mr. Smith "lied," and 15 the alleged extension of time for the company to respond to the 16 second step grievance. Hearsay is a statement, other than one made 17 by the declarant, offered in evidence to prove the truth of the 18 matter asserted. Fed. R. Evid. 801(c). Hearsay is not admissible 19 except as provided by the Federal Rules of Evidence, or other rules 20 prescribed by the Supreme Court. Fed. Rule Evid. 802. These 21 statements were made outside of court, not by the affiant, and are 22 offered in evidence to prove the truth of the matter asserted.23 23 24 22 25 26 27 28 As discussed in Part V(B)(2), infra, there are few cases in which expert testimony on a union s duty of fair representation was found necessary or useful to a jury. Pease v. Production Workers of Chicago and Vicinity Local 707, 2003 WL 22012678 at *4-*5. 23 Plaintiff has not established these statements come within any of the exceptions to the hearsay rule. 28 1 Such inadmissible hearsay evidence cannot be considered on a motion 2 for summary judgment. 3 5(e). The responding officers were never interviewed by the union despite the fact that Mr. Smith had the cell phone numbers for both the CHP officer and Sheriff Deputy who had taken reports on the date of the incident. Both were interested in speaking to the company and union on behalf of Mr. Smith. This was never pursued by anybody at the union or the company. The company simply read what they wanted from the police reports and there was never any substantiation from the officers despite the fact that they were reachable. 4 5 6 7 8 9 Defendants objections concerning paragraph five, subpart (e), 10 are sustained. There is no foundation or source of knowledge for 11 Mastrangelo s opinion regarding the police officers' interest. 12 There is no basis to establish personal knowledge for Mastrangelo s 13 conclusion that nobody spoke to the officers and that the company 14 simply accepted the reports at face value. See Fed. R. Civ. Proc. 15 56(e). 16 5(f). The union never questioned the fact that Roxanne Diaz was conducting the investigation for the company when she had been caught in lies on numerous occasions in the past during other investigations. She should have never been investigating anything let alone something as important as Mr. Smith's future employment. 17 18 19 20 5(g). The union never questioned why Alan Brown was allowed to "test" the vehicle Mr. Smith was driving and why it took several weeks after the incident for it to happen. Mr. Brown has no qualifications with GPS to be testing its accuracy. He has no advanced degrees, he had little to no experience with the @road system at the time because it had been installed two (2) weeks prior to this incident. He also had no experience in pulling the @road GPS reports so these could not have been done by him. 21 22 23 24 25 26 Paragraph five, subparts (f) and (g), contain inadmissible 27 hearsay and improper opinions which 28 29 cannot be considered to 1 establish a genuine issue of material fact. 2 improper opinion testimony and lacks personal knowledge concerning 3 Ms. Diaz s competence as an investigator and what investigation 4 Brown 5 evidence must be competent. 6 all she knows; she must know all she tells. 7 Francisco Unified School District, 237 F.3d 1026, 1028 (9th Cir. 8 2001). 9 10 11 12 13 14 15 could perform. To be cognizable on Plaintiff offers summary judgment, It is not enough for a witness to tell Carmen v. San Defendants objections are sustained. 5(h). The unions never questioned whether the company protected its own equipment namely its vehicles. I know for a fact that the company does not change the keys for each of the trucks every time an employee leaves the company either voluntarily or when they are terminated. I also know that one set of keys can open multiple trucks and including starting their ignitions. The company was well aware of this and used it to their advantage when an employee would call in sick. Rather than have to go get the keys from him, they would just go to the middle of the yard and grab a hand full of keys and the guys would go from truck to truck until one opened and started. This is certainly not a very good security policy. 16 The claims contained in Mastrangelo s fifth paragraph, subpart 17 (h), require knowledge about every instance in which Pacific Bell 18 officials questioned individuals about its equipment. The claims 19 contained in paragraph 5(h) also require Plaintiff to have 20 comprehensive knowledge about Pacific Bell s internal key/vehicle 21 policies, as well as every instance in which an employee did not 22 report to work because of an illness. Mr. Mastrangelo has no basis 23 nor was he in a position to acquire such comprehensive knowledge. 24 There is no information to establish personal knowledge. The 25 statements contained in paragraph 5(h) cannot be considered on 26 summary judgment. 27 28 30 1 2 3 5(i). The union never questioned the disparate treatment or Hostile Treatment that Mr. Smith sustained after he reported Mr. Dan Devine and an incident between Devine and another employee that occurred on or about July of 2004, in which Devine brandished a Shot gun at a fellow employee. 4 5 Testimony calling for a legal conclusion is an inappropriate 6 matter for expert testimony. 7 (9th Cir. 1999) (excluding expert testimony offering a legal 8 conclusion); Aguilar v. International Longshoremen's Union, 966 9 F.2d 443, 447 (9th Cir.1992) (noting matters of law are for the 10 court s determination, not that of an expert witness); see also 11 Marx & Co. v. Diners' Club, Inc., 550 F.2d 505, 509-10 (2d 12 Cir.1977) 13 inadmissible). 14 conclusions whether Plaintiff suffered disparate and/or hostile 15 treatment. 16 17 18 19 20 (expert See U.S. v. Scholl, 166 F.3d 964, 973 testimony consisting of legal conclusions Mastrangelo inappropriately forms and offers legal These opinions are inadmissible. 5(l). It was also discovered that Mr. Riddle was an Ex-SBC employee and also had priors for Auto Theft. This was never pursued by the union. This demonstrates that he has familiarity with the SBC trucks and would know about the multiple truck, single key security breach. Especially because the company never re-keyed its vehicles after changing employees. Therefore, even if the keys would not have been on the ground, the thief Riddle could have gained access to the vehicle. 21 There is no information to establish personal knowledge 22 regarding Mr. Riddle s alleged past; nor is there any information 23 to support the claim that Mr. Riddle knew about the multiple 24 key/single truck problem. Further, to the extent that the 25 statements are offered to prove the truth of the matter asserted, 26 they are inadmissible and improper opinions. Fed R. Evid. §§ 801- 27 802 ( Hearsay is not admissible except as provided by the Federal 28 31 1 Rules of Evidence [...] ). 2 5(l) cannot be considered on summary judgment. 3 4 5 6 7 8 9 10 11 12 13 The statements contained in paragraph 5(m). On or about December 21st of 2005, Lynn Johnson unilaterally contacted the company to notify them that the deadline to respond to the 2nd step grievance was about to expire and she asked the company whether they wanted an extension of time to respond. This is very significant because pursuant to the CBA Chapter 7.05 D2b. the failure to timely respond within 30 days by the company results in the grievance being resolved in favor of the union. This meant that Blake Smith would have had his job back prior to Christmas of 2005. Instead Local 9333, Union President Lynn Johnson, took it upon herself to extend the response time to January 5,2006. Her purported rationale was "Well, no one will show up from the company anyway, so it will just be a waste of everyone's time to go during vacation time". The problem with that rationale is that a failure to show up is a bad faith failure to bargain by the company. This means that Blake Smith would also have gotten his job back by the company's failure to appear. Therefore, this excuse held no water. I still don't buy it. 14 Defendants object to paragraph five, subpart (m), on grounds 15 it contains conjecture and was not made on the basis of his 16 personal knowledge. Defendants objections are well-taken. There 17 is no evidence to support the speculative legal conclusion that the 18 grievance would have been resolved in Mr. Smith s favor. There is 19 also no showing that Mr. Mastrangelo is qualified to opine on what 20 conduct constitutes a bad faith failure to bargain, an inadmissible 21 legal opinion. Defendants objections are sustained. 22 23 24 25 26 27 28 5(o). The other significant issue that was never raised is that Blake Smith had no reason to lie. There are at least two (2) specific instances that Mr. Smith and I had and have specific knowledge of, where employees of the defendants left their keys in their vehicles and the vehicles were stolen by third parties. In the first case, an employee by the name of Mr. Reynolds was at McDonalds in Modesto and it resulted in a three (3) day suspension. The second case, Mr. Cordova was at a B-Box in Modesto and it resulted in a one (1) day suspension. Mr. Smith was aware of the consequences for leaving his vehicle 32 1 running and unattended and despite this knowledge he did not do so. The penalty was not as severe as the company is making it out to be. Mr. Smith has taken a lot of grief for being honest about what occurred on that October afternoon. These are yet two (2) more examples of disparate treatment by the union and company. 2 3 4 5 Defendants object to the above portion of Mastrangelo s 6 affidavit on grounds it contains conjecture, hearsay, and was not 7 made on the basis of his personal knowledge. 8 discussed 9 information is improper argument. above, the objections are For the reasons sustained. Most of the The last sentence of Paragraph 10 5(o) is also stricken because Mastrangelo inappropriately reaches 11 legal 12 treatment. conclusions on whether Plaintiff suffered disparate 13 A substantial portion of Mastrangelo s fifth paragraph and its 14 subparts are inadmissible to establish a genuine issue of material 15 fact. 16 its duty to adequately represent Plaintiff, his opinions on the 17 functionality of the GPS system, his criticisms of Lynn Johnson, 18 and his musings on vehicle keys are all improper argument and are 19 sustained. 20 21 22 23 24 25 26 27 28 Mastrangelo s statements concerning how the union failed in 6. I grew tired of leaving over a dozen phone calls, to the Union President, Lynn Johnson, and attempted to reach Tony Bixler three (3) times by telephone. After finally receiving a response from him on my fourth ... attempt, he stated that he himself was not able to reach Lynn Johnson. A letter regarding the disparate treatment I observed firsthand was prepared by me and then was presented to Lynn Johnson at Blake Smith s 2nd step grievance meeting, on or about January 5, 2005, and President Johnson approved it. I then went ahead and cc d it to every person of influence in the company and union at each level to try and evoke change [...] 7. On or about January 7, 2005 I received a call from President Lynn Johnson, which stated I was expelled from the local 933 union and District 9 union at the 33 1 demand of Tony Bixler at the Union s District 9 office because of my letter. 2 8. I have always been told by the company to report grievances and that was all that was being done but since I could not get the attention of anybody, I sent the letter. I was simply trying to find out what sort of investigation the union was doing but I was being ignored like Blake Smith. I lost my job over it like Blake Smith. At least I was able to keep my retirement. Although I am concerned about testifying, I can no longer remain silent over the concern I have that the company might find a way to take any retirement from me. 3 4 5 6 7 8 9. I know why the union at each level and company s attempted to silence me and it was because they conducted zero (0) investigation, they simply went with the SBC Asset Protection Report which was one (1) sided and easily refuted if only they had tried. After I had been forced into retirement the union simply ignored Blake Smith until he hired an attorney to find out the status of the case. 9 10 11 12 13 Defendants District 9 and Local 9333 object to paragraphs 6-9 14 of Mastrangelo s affidavit on grounds they are speculative, 15 irrelevant, lack foundation, contain conjecture and were not made 16 on the basis of personal knowledge. In addition, the statements 17 are argumentative opinions. Defendants objections are sustained. 18 In paragraphs 6 through 9 of Mastrangelo s affidavit, he gives 19 several examples of his interactions with the local union, 20 especially Lynn Johnson. Mastrangelo also details the reasons 21 behind his departure. Mastrangelo s statements concerning the 22 circumstances of his dismissal and his continuing conflict with the 23 local union are not probative of any consequential facts in this 24 litigation, except his bias. Fed. R. Evid. 401- 402; U.S. v. 25 Curlin, 489 F.3d 935, 943-44 (9th Cir. 2007). The statements 26 contained in paragraph nine are speculative and argumentative. 27 They are not admissible. See National Steel Corp. v. Golden Eagles 28 34 1 Ins. Corp., 2 statements without factual support are insufficient to defeat a 3 motion for summary judgment.). Mastrangelo simply did not have the 4 personal knowledge to conclude that the Union Defendants conducted 5 zero investigation. 6 extend so far.24 7 121 F.3d 496, 502 (9th Cir. 1997) (conclusory His knowledge as a union steward did not 10. Two weeks prior to the October 17, 2005 incident which eventually led to the termination of Blake Smith s employment, an @road GPS system was installed by one (1) person who was apparently not a licensed contractor. In fact, he appeared like he had just been released from Folsom prison based on his lack of uniform and numerous tattoo s. During and before installation of this device, I observed the device and all necessary equipment needed for its installation and operation sitting in the back of an open, uncovered and untied pickup truck bed. The truck displayed no commercial logo of any sort and as such, was unmarked for any apparent business purposes. Certain components were haphazardly placed into cardboard boxes, wires were tangled and randomly arranged on the boxes. Wires had been spliced and twisted together and it just looked like a mess of wires. I was really concerned. 8 9 10 11 12 13 14 15 16 17 11. It was at the time, and perhaps still is, company policy to question unauthorized persons on the yard, and because of his appearance, and the apparent lack of any legitimate purpose of being in the yard, I questioned the individual as to whom he was and why he was on the yard. The person who installed the equipment at the time is described as follows: Heavily tatooed on upper body and he wore only a white tanktop undershirt. The installer s appearance made an impression on me because the company has, in the past, been victim of theft of cable and wire. I even remember making a comment about the installer s appearance to Alan Brown who was present that day and he told me I know. Because he was present that day and saw the method of installation, Alan Brown knew there was a problem with the installation. 18 19 20 21 22 23 24 25 26 27 24 28 Mastrangelo was terminated prior to Plaintiff s 2nd grievance hearing. This event limits the scope of his knowledge. 35 1 12. All trucks were outfitted with the @road systems the same day. However, the installation person returned twice ... during the same two ... week period to repair and remedy malfunctioning @road devices. I do not know if there were other instances where repairs were necessary during this period because I did not observe this individual again. 2 3 4 5 13. The company also never cited previous disciplinary actions as their basis for their decision to fire Blake Smith to do so is and was a violation of the provision of the contract which prescribes retaliation by the company against employees based on past grievances. 6 7 8 9 14. During the decades that I had been with the company I have never seen an employee fired for absences. It was very common for unpopular employees to get written up for every sick day. The company has a zero ... tolerance policy for sick time. They will counsel an employee after every sick day much like they did Blake Smith during the 2004-2005 period. I also know that if the employee was liked by a particular manager, he would not be disciplined and the grievance process would be circumvented. This would be no matter how many absences a particular employee had. 10 11 12 13 14 15 16 Defendants raise numerous objections to paragraphs 10 through 17 14 of Mastrangelo s affidavit. Mastrangelo s statements concerning 18 the technician s physical description, Alan Brown s thoughts about 19 the GPS system, the installation and repair history of the GPS 20 system, and Pac Bell s counseling of employees with a history of 21 absences, are sustained. The majority of these statements are not 22 based on evidentiary facts in the record, are argumentative 23 improper opinion, and are too speculative; others, such as the 24 appearance of the technician, are irrelevant to the Plaintiff s 25 claims and, for the most part, do not involve Plaintiff. 26 Paragraphs ten through fourteen also contain inadmissible 27 hearsay. To the extent that the statements are offered to prove 28 36 1 the truth of the matter asserted, they are inadmissible. 2 A substantial 3 inadmissible 4 Hearsay assertions by Mr. Mastrangelo and matters not supported by 5 the 6 corroborating evidence, are insufficient to establish a genuine 7 issue of material fact. record to or portion establish by a a of Mastrangelo s genuine demonstration issue of of personal affidavit material is fact. knowledge or 8 9 2. Affidavit of Michael Caloyannides 10 On February 29, 2008, Plaintiff filed an affidavit from 11 Michael Caloyannides ( Caloyannides ) in support of his opposition 12 to 13 affidavit, Caloyannides, a purported GPS expert, questions the 14 accuracy of GPS systems and criticizes Brown s October 18, 2005 15 test verifying the functionality of the GPS system attached to 16 Plaintiff s 17 irresponsible for the Company Defendants and Union Defendants to 18 dismiss Plaintiff solely based on this @road GPS information and 19 he would not trust this system for any purpose whatsoever beyond 20 providing basic advisory information that is understood to be 21 inherently unreliable, and certainly not to discharge an employee 22 utilizing this system as the sole basis. 23 16.) Union Defendants work motion vehicle. for summary Caloyinnides judgment. states that In it his was (Dec. of Caloyannides ¶ 24 Defendant Local 9333 objects to Caloyannides affidavit on 25 grounds that he opines that Pacific Bell and the Union Defendants 26 could not use GPS information in discipline and discharge cases. 27 28 37 1 (Doc. 78.25) 2 reached a binding side-letter agreement concerning the use of GPS 3 in disciplinary actions. However, it is undisputed Pacific Bell and the Union The side letter agreement stated: 4 GPS is one of many management tools used to review employee performance or behaviors. GPS will not be used as the sole basis for disciplinary action, but may be used to substantiate information obtained from other sources. As in all cases where discipline may be warranted, management will conduct a complete and thorough investigation and may utilize GPS reports as an additional tool in the investigation. 5 6 7 8 9 10 As the employees exclusive bargaining representative, the 11 Union enjoys broad authority ... in the negotiation and 12 administration of [the] collective bargaining contract. 13 Communications Workers v. Beck, 487 U. S. 735, 739 (1988). But 14 this broad authority is accompanied by a responsibility of equal 15 scope, the responsibility and duty of fair representation. 16 Humphrey v. Moore, 375 U. S. 335, 342 (1964). The employer has a 17 corresponding duty under the NLRA to bargain in good faith with 18 the representatives of his employees on wages, hours, and 19 conditions of employment. 29 U. S. C. §158(a)(5); see also 20 §158(d). Through collective bargaining, a public employer and 21 union can reach agreement on detailed factual questions having 22 important implications. Bolden v. Southeastern Penn. Trans. Auth., 23 953 F.2d 807, 828 (3rd Cir. 1991) (emphasizing the rational for 24 preventing an individual employee from raising a constitutional 25 26 27 28 25 Local 9333 adopted and joined the objections filed by Defendants Pacific Bell, Adam Brown, and Shane Spencer. (Doc. 92.) Caloyannides affidavit did not opine on the conduct of Defendant District 9. 38 1 claim on an issue that is the subject of a CBA). 2 In this instance, it is undisputed that the Union and Pacific 3 Bell collectively bargained in good faith and agreed that GPS could 4 be used to discipline employees. 5 negotiation, an employer may agree to the inclusion of a provision 6 in 7 concessions from the union. 8 1456, 1464-65 (2009). 9 bargained-for exchange. a collective-bargaining As part of any contractual agreement in return for other 14 Penn Plaza LLC v. Pyett, 129 S. Ct. Courts generally may not interfere in this (Id.; Utility Workers of Am. v. Southern 10 Cal. Edison, 852 F.2d 1083, 1086 (9th Cir. 1998) ( to the best of 11 our knowledge, ... no court has held that the right to be free from 12 drug testing cannot be negotiated away... ). It is undisputed that 13 CWA and Pacific Bell entered into a valid agreement governing the 14 use of GPS records by Pacific Bell. 15 and Pacific Bell is valid and enforceable. 16 The agreement between the CWA As Pacific Bell and the Union collectively bargained that GPS 17 data could be 18 challenging 19 Caloyannides opinions are inadmissible to create a genuine issue 20 of material fact that the GPS device could not be used. its used, Plaintiff accuracy and cannot usage to offer expert negate the testimony contract. 21 Even assuming his opinions on the use and accuracy of GPS data 22 are admissible, Defendants object to Caloyannides affidavit on the 23 grounds that he lacks personal knowledge, fails to consider all the 24 facts in the record, and his expert opinions violate Rule 702 of 25 the Federal Rules of Evidence. 26 Under the Federal Rules of Evidence, expert testimony is 27 admissible if: (1) the testimony is based upon sufficient facts or 28 data, (2) the testimony is the product of reliable principles and 39 1 methods, and (3) the witness has applied the principles and methods 2 reliably to the facts of the case. 3 matter: 4 Fed.R.Evid. 702. As a general The subject of an expert's testimony must be scientific ... knowledge. The adjective scientific implies a grounding in the methods and procedures of science. Similarly, the word knowledge connotes more than subjective belief or unsupported speculation.... [I]n order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation- i.e., good grounds, based on what is known. In short, the requirement that an expert's testimony pertain to scientific knowledge establishes a standard of evidentiary reliability. 5 6 7 8 9 10 11 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90, 113 12 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (footnotes omitted). Based upon 13 the foregoing principles, the Daubert Court discussed four factors 14 which a trial court may use to determine the admissibility of 15 proposed expert testimony: testing, peer review, error rates, and 16 acceptability in the relevant scientific community. Kumho Tire 17 Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 18 238 (1999) (citation omitted) (holding that Daubert analysis also 19 applies to the testimony of engineers and other experts who are 20 not scientists ). 21 In this case, Plaintiff offers the affidavit of Michael 22 Caloyannides, who holds a PhD in Applied Mathematics and a Master 23 of Science degree in Electric Engineering. Based upon his for the 24 affidavit, Plaintiff plans to introduce Caloyannides 25 opinion that it was irresponsible for the Company Defendants and 26 Union Defendants to dismiss Mr. Smith solely based on this @road 27 GPS information. Defendants 28 40 argue, correctly, that Mr. 1 Caloyannides' opinion is inadmissible because it does not meet the 2 requirements of Rule 702. 3 It cannot be fairly disputed that Caloyannides is qualified, 4 based upon his education and experience, to testify as an expert in 5 the fields of GPS technology and computer forensics. 6 is not one of GPS expertise or experience, per se, but a lack of 7 expertise and experience with respect to the subject matter at 8 issue -- whether the Union Defendants breached the duty of fair 9 representation and whether the Pacific Bell dismissed Plaintiff 10 The problem based solely on the @road GPS information. 11 Mr. Caloyannides lack of expertise in these critical areas is 12 best demonstrated by his expert opinion that it was irresponsible 13 for 14 Plaintiff solely based on GPS data. 15 assertions, the Union Defendants neither suspended Plaintiff nor 16 terminated him in 2005; all adverse employment actions taken 17 against Plaintiff in 2005 were initiated and implemented by Pacific 18 Bell, his former employer. 19 unfamiliar 20 Plaintiff s legal challenge, he completely disregards the facts, 21 including that Plaintiff was terminated by Pacific Bell for failure 22 to safeguard company assets and misrepresenting facts during an 23 investigation. 24 not extend to Pacific Bell s employment decisions or the grievance 25 procedures authorized by contract, and administered by the Union.26 the Company with Defendants the and Union Defendants to dismiss Contrary to Caloyannides Perhaps because Mr. Caloyannides is appropriate standards with respect to Whatever the reasons, Caloyannides expertise does 26 27 28 26 Caloyannides concludes, without an apparent basis in either expertise, experience, or acknowledged principles in the field of employment practices, that he would not trust this system for any 41 1 Mr. Caloyannides simply cannot address these critical issues based 2 upon his expertise and experience. 3 Defendants also contend that Caloyannides affidavit lacks the 4 requisite reliability 5 selective documents. Defendants state that Caloyannides affidavit 6 relies heavily on the mistaken belief that Plaintiff was terminated 7 solely based on GPS information, an improper legal conclusion. 8 According 9 Caloyannides limited review of the record, led him to assert an 10 alternative timeline that is inconsistent with the undisputed 11 evidence in this case. to because Defendants, it this is based critical on incomplete error, along and with 12 If the basis for an expert s opinion is clearly unreliable, 13 the district court may disregard that opinion in deciding whether 14 a party has created a genuine issue of material fact. 15 509 U.S. at 596 (if the trial court concludes that the scintilla 16 of 17 insufficient to allow a reasonable juror to conclude that the 18 position more likely than not is true, the court remains free to 19 ... 20 admissible only if an expert knows of facts which enable him to 21 express a reasonably accurate conclusion. Jones v. Otis Elevator 22 Co., 861 F.2d 655, 662 (11th Cir. 1988). Opinions derived from [expert] grant evidence summary presented judgment ). supporting Relevant a expert See Daubert, position testimony is is 23 24 25 26 27 28 purpose whatsoever beyond providing basic advisory information that is understood to be inherently unreliable, and certainly not to discharge an employee utilizing this system as the sole basis. It appears the Union and Pacific Bell considered this proposition when they negotiated the side-letter agreement. (See Side Letter Agreement , Exh. B to Dec. of D. Flores, GPS will not be used as the sole basis for disciplinary action, but may be used to substantiate information obtained from other sources. ) 42 1 erroneous data are appropriately excluded. 2 Talc Co., 919 F.2d 304 (5th Cir. 1990). 3 reliability itself and the factors taken into account are left to 4 the 5 gatekeeping function under Fed.R.Evid. 702. 6 v. Carmichael, 526 U.S. 137 (1999). discretion of the district Slaughter v. Southern Both the determination of court consistent with its Kumho Tire Co., Ltd. 7 Caloyannides opines that the only plausible explanation of 8 the evidence is that Plaintiff turned off his vehicle at 1:12 p.m. 9 and it was stolen at 1:19 p.m. Caloyannides timeline is 10 inconsistent with the undisputed facts of this case and casts doubt 11 on his reliability and impartiality. 12 record supports the conclusion that Plaintiff s vehicle was stolen 13 before 1:12 p.m.: 14 15 16 17 18 19 20 21 All of the evidence in the 1. Mr. Brown s cellular phone records indicating an incoming call from Plaintiff at 1:12 p.m. on October 17, 2005; 2. The California Highway Patrol s report stating that an officer was notified of the vehicle theft at approximately 13:10 hours on October 17, 2005; 3. The Sheriff s Department report stating that a deputy spotted the stolen vehicle at approximately 13:15 hours on October 17, 2005; and 4. GPS data provided by @road indicated that Plaintiff s vehicle was in idle status between 1:02 and 1:11 p.m. and the engine was off between 1:12 p.m. and 1:19 p.m. 22 23 Caloyannides timeline is also inconsistent with Plaintiff s 24 version of events, as communicated to the Deputies on the day of 25 the theft and repeated in his deposition on August 1, 2007. 26 According to Plaintiff, he parked the car near the corner of Nunes 27 Road and Washington Street and began cable locating 200 yards away. 28 He then noticed an individual enter the vehicle and take off 43 1 westbound on Nunes Road. 2 the vehicle when it turned northbound on Ninth Street (toward Dora 3 Avenue). 4 was spotted at 13:15 near the corner of Dora Avenue and Ninth 5 streets, about a mile away from the intersection of Nunes and 6 Washington.27 7 flee the vehicle, apprehending one suspect in the backyard of 5312 8 8th street, a block from the corner of Dora and Ninth. 9 thereafter, Plaintiff arrived at this location with a Sheriff s 10 Plaintiff states that he lost track of According to the Sheriff s report, Plaintiff s vehicle At this time, the deputies observed two individuals Shortly deputy. 11 According to Caloyannides, the above evidence does little to 12 demonstrate that the vehicle was stolen before 1:12 p.m. on October 13 17th. 14 keeping devices - of the GPS provider, California Highway Patrol, 15 cellular phone company, and Stanislaus County Sheriff s Department 16 - contributed to the faulty timeline. 17 savings time. Caloyannides further states that it is important to 18 note 19 intentionally and the electronic data has been destroyed by the 20 defendant companies. 21 Bell and the Union conspired to fraudulently alter or destroy the 22 GPS results to support his theory. 23 record. 24 25 Caloyannides states that a lack of calibration among time that this [GPS] Nonetheless, sufficient (or system ... He also blames daylight could have been manipulated Caloyannides appears to allege that Pacific whether reliable) This is unsupported by the Caloyannides does evidence support to or does his not have alternative 26 27 27 28 Dora Avenue and Nunes Street are parallel to one another. Ninth street is the main artery between the two streets. 44 1 timeline, Pacific Bell was entitled to use GPS under the CBA.28 2 Caloyannides opinions are insufficient to raise genuine issues of 3 fact and defeat summary judgment.29 4 1040, 1045 (9th Cir.1989) ( A summary judgment motion cannot be 5 defeated by relying solely on conclusory allegations unsupported by 6 factual data. ); see also Falls Riverway Realty, Inc. v. Niagara 7 Falls, 754 F.2d 49, 57 (2d Cir.1985) (Conclusory, speculative 8 testimony in affidavits and moving papers is insufficient to raise 9 genuine issues of fact and defeat summary judgment). See Taylor v. List, 880 F.2d H e r e , 10 Plaintiff s untruthful statements and failure to protect company 11 property were additional grounds for termination. 12 evidence Pacific Bell solely relied on the GPS, or had knowledge 13 that the some of the information was true and could no be relied 14 on. There is no 15 If the Daubert court was less than perfect in articulating the 16 gatekeeper function, it did make clear that the trial judge has an 17 inescapable obligation to determine whether proffered expert 18 19 20 21 22 23 24 25 26 27 28 28 Caloyannides opinions are based on his personal experience with GPS ( I would not trust this [GPS] system for any purpose whatsoever ), a hypercritical critique of Brown s GPS test on October 18, 2005 ( the first event states that Mr. Brown stopped at 5851 Washington but the @road reflects 5927 Washington ), the @road disclaimer, and accusations of fraud. Caloyannides does not provide any evidence specific concerning the GPS device attached to Plaintiff s vehicle on October 15, 2005; Caloyannides also readily admits that he needed additional information to complete his review of Pacific Bell s GPS devices. (Caloyannides Dec. ¶ 13.) 29 In contrast to Caloyannides affidavit, Mr. Larson states that the GPS device was affixed to Plaintiff s vehicle several years ago; it is extremely accurate and reliable; it indicates when the vehicle is idling and when it is turned on and off; and there was no problem with Plaintiff s GPS unit on October 17, 2005. (Larson Dec. ¶¶ 1-8.) 45 1 testimony in a particular case is "scientific" and whether the 2 proffered expert's "knowledge" will assist the trier of fact. 3 Daubert, 113 S.Ct. at 2795. 4 must determine that the proposed expert's testimony must be both 5 "reliable" and "relevant." See U.S. v. City of Miami, Florida, 115 6 F.3d 870, 873 (11th Cir. June 20, 1997) (stating that [r]elevant 7 expert testimony is admissible only if an expert knows of facts 8 which enable him to express a reasonably accurate conclusion. ). To fulfill this obligation the court 9 Taken cumulatively, Caloyannides testimony is unreliable. 10 Consistent with the role of the district court as gatekeeper , see 11 General Elec. Co. v. Joiner, 522 U.S. 136 (1997), Defendants 12 objections to the Caloyannides affidavit are sustained. 13 Caloyannides affidavit offers legal conclusions. 14 Caloyannides did not limit his opinions to the functioning and 15 accuracy of GPS; rather, Caloyannides opined as to the legal 16 standards which he believed to be derived from the collective 17 bargaining agreement and what standards should have governed the 18 conduct of Pacific Bell and the Union. 19 common practice concerning GPS data, but rather opined what was 20 necessary to satisfy the CBA. Such testimony is a legal conclusion 21 and is an inappropriate matter for expert testimony. 22 Scholl, 23 testimony offering a legal conclusion); Aguilar v. International 24 Longshoremen's Union, 966 F.2d 443, 447 (9th Cir.1992) (noting 25 matters of law are for the court s determination, not that of an 26 expert witness); see also Marx & Co. v. Diners' Club, Inc., 550 27 F.2d 505, 509-10 (2d Cir.1977) (expert testimony consisting of 28 legal conclusions inadmissible). 166 F.3d 964, 973 (9th 46 Cir. He did not testify about 1999) See U.S. v. (excluding expert Caloyannides inappropriately 1 expressed legal conclusions on the issue of terminations under the 2 CBA. These opinions are inadmissible. 3 Finally, Defendants object that Caloyannides never reaches 4 conclusions on the ultimate issues, such as whether the Union 5 breached 6 functionality. Defendants argument has merit. Caloyannides only 7 opinion concerning the union is that they were irresponsible to 8 dismiss Mr. Smith solely based on this @road information. Pacific 9 Bell s decision to terminate Plaintiff has no bearing on whether its duty of fair representation based on the GPS s 10 the union breached the duty of fair representation. 11 the current case law reveals there are few cases in which expert 12 testimony on a union s duty of fair representation was found 13 necessary or useful to a jury. See Pease v. Production Workers of 14 Chicago 707, 2003 15 (summarizing on expert 16 representation cases and finding that Plaintiff s expert would not 17 be useful in helping the jury understand whether the Union s 18 conduct was so fair outside a wide range of reasonableness as to be 19 actionable. ). and Vicinity the case Local law WL A survey of 22012678 testimony at *4-5 in fair 20 21 3. 22 In his Statement of Disputed Facts, Plaintiff relies on a 23 number of his Requests for Admission, asserting that the facts 24 requested to be admitted or denied are deemed admitted because 25 Defendants did not timely respond to them. 26 27 28 Deemed Admissions Defendants dispute that their responses to the Requests for Admission were untimely. Caren P. Sencer, counsel for District 9, filed a Supplemental 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Declaration on March 10, 2008 (Doc. 88). Ms. Sencer avers: 2. David Rosenfeld, one of the attorneys at our firm assigned to this case and a named shareholder in our firm wrote a letter to Mr. Allen, counsel for Mr. Smith, on September 14, 2007 seconding concerns that had been raised by Chris Bissonnette, counsel for Pacific Bell ..., over the service of certain discovery. Mr. Bissonnette requested and was granted an extension to respond to the requests based on untimely service. Mr. Rosenfeld informed Mr. Allen that we would be using the same discovery response date as Pac Bell as we also did not receive the requests in a timely manner. The requests were dated August 16, 2007 on the proof of service but were not received in our office until August 22, 2007 .... 3. On September 27, 2007, our office received a letter from Mr. Allen, chastising us for our failure to respond to discovery. In the letter, Mr. Allen writes Kindly, provide responses to each of our discovery requests, without objection, by Tuesday October 2, 2007. If you both [co-counsel] fail to respond by that date, we will be relegated to motions to compel. .... 4. On September 24, 2007, Defendant District 9 served responses to the discovery that had been propounded by Plaintiff Smith .... 5. District 9 received copies of Defendants Pac Bell, Alan Brown and Shane Spencer s responses to Smith s Special Interrogatories. The Proofs of Service show these documents were sent by mail on September 24, 2007. Under Mr. Allen s correspondence to Mr. Bissonnette regarding the timelineess of responses, these responses were timely. 22 23 24 25 26 6. In Pac Bell s responses, each of the requests posed to both District 9 and Pac Bell are addressed. Most of these responses were either denied or not answered based on lack of knowledge. The exceptions are Requests 15, 18, 19, 20, 43, 46, 47, 58, 63 as numbered when served in Set Two to Pac Bell (Disputed Facts 118, 124, 125, 136, 149, 152, 153, 160, 165 respectively) which are admitted. 27 28 7. District 9 received copies of Defendant Local 9333's responses to Smith s Special 48 1 2 Interrogatories. The Proof of Service show these documents were sent by mail on October 9, 2007. To my knowledge, Mr. Allen has not alleged these responses were untimely. 3 4 5 6 7 8. In Local 9333's responses, each of the requests posed to both District 9 and Local 9333 are addressed. Most of these responses are either denied or not answered based on lack of knowledge, or answered in a qualified manner on information and belief only. The exceptions are Requests 10, 12, 13, 31, 35, 41, and 83 as numbered when served in Set One to Local 9333[.] 8 9 10 11 12 13 14 15 16 9. I have reviewed the two sets of Requests for Admissions which were served on Pac Bell and Local 9333 by Plaintiff Blake Smith. The attached Table i is a table I compiled during that review. The table shows the number of the disputed fact for which Mr. Smith is relying on District 9's admission and the number of the request made to Pac Bell and/or Local 9333 that uses the precise, same language. 10. Mr. Allen received our discovery responses. This is a known fact as Mr. Allen wrote a letter on October 10, 2007 claiming that the responses were insufficient and seeking to meet and confer on many of the specific Requests for Admission made .... 17 18 19 11. I responded to Mr. Allen s discovery concerns by letter dated October 15, 2007 ... In that letter, we addressed both the timelinness and sufficiency arguments raised by Mr. Allen. 20 21 22 12. Our office received no further communications from Mr. Allen regarding the discovery requests and has never been served with any motion to provide further, more complete, or responses without objections. 23 24 25 26 27 13. The only Requests for Admissions which were served on District 9, relied on in Mr. Smitho s Opposition that were not responded to by other parties are requests 4, 5, 29, 30 and 92 (Disputed Facts 100, 101, 122, 125, and 172)[.] In District 9's responses to Requests for Admissions, it admits 29 and 30 (Disputed Facts 122 and 123) but denies requests 4, 5 and 92 (Disputed Facts 100, 101, and 172). 28 49 1 14. Of the multiple requests served on all parties, the only request which has been admitted by District 9, Local 933 and Pac Bell is Disputed Fact 124. 2 3 4 Rule 36(a) provides that the matter is deemed admitted 5 unless, within 30 days after service of the request ... the party 6 to whom the request is directed serves upon the party requesting 7 the admission a written answer or objection addressed to the 8 matter, signed by the party .... 9 for admission results in Failure to respond to requests automatic admission of the matters 10 requested ... No motion to establish the admissions is needed 11 because Federal Rule of Civil Procedure 36(a) is self-executing. 12 Federal Trade Commission v. Medicor LLC, 217 F.Supp.2d 1048, 1053 13 (C.D.Cal. 2002). 14 counsel agreed to an extension of time to respond to his requests 15 for admission. Plaintiff s assertions in his Statement of Disputed 16 Facts that the Requests for Admission are deemed admitted because 17 Defendants failed to timely respond is without merit.30 Here, the record establishes that Plaintiff s 18 19 B. Plaintiff s Statement of Disputed Facts 20 On February 29, 2008, Plaintiff filed a Statement of Disputed 21 Facts (Doc. 72, ( PSDF ).) in support of his opposition to Union 22 Defendants motion for summary judgment. 23 Statement of Disputed Facts is a series of excerpts from purported Plaintiff s 73-page 24 25 26 27 28 30 In support of their position, Defendants also argue that the court has discretion to allow for a longer period to respond, that the admissions are not binding on other defendants, and that the requests for admission are not authenticated. In light of the ruling on the deemed admissions, these arguments are not considered. 50 1 deemed admissions and summarized testimony of affiants John 2 Mastrangelo and Michael Caloyannides. 3 Facts is organized according to witness and deemed admission. Most 4 of Plaintiff s disputed facts are taken verbatim from the deemed 5 admissions and affidavits of Mastrangelo and Caloyannides. 6 Nos. 6, 10-172, 297, pp. 3-45, 71). Plaintiff s Statement of 7 Disputed Facts includes disputed facts that are immaterial (e.g., 8 Fact No. 79, Mr. Dan Devine brought a loaded gun to work, but there 9 were shotgun shells on the seat next to the weapon, so it is of The Statement of Disputed (Fact 10 little consequence to me and my workers). The Statement of 11 Disputed Facts contains non-enumerated statements unaffiliated to 12 the indexed disputed facts 13 would the thief have dropped the bike at the back of the van unless 14 he had to pick up the keys to gain entry?). 15 disputed facts concern Plaintiff s deposition testimony. 16 facts are either undisputed or irrelevant to the ultimate issues of 17 this case. (e.g., Doc. 72, 72:26-72:27, why Approximately fifty These 18 At issue in this action is the effect of Plaintiff s failure 19 in many instances to provide support for the allegations in the 20 Complaint, and now in his opposition to summary judgment. 21 Eastern 22 requirements regarding opposing summary judgment motions; the local 23 rules require litigants in response to the movant s statement of 24 undisputed material facts (admitting or denying the facts with 25 citation to the record). 26 party may also file a concise "Statement of Disputed Facts," of all 27 additional material facts as to which there is a genuine issue 28 precluding summary judgment or adjudication. District of California s local rules See E.D. Cal. R. 56-260(b). 51 Id. have The strict The opposing Here, Plaintiff 1 did not file a response to Defendants statement of undisputed 2 facts; rather, he filed a Statement of Disputed Facts as part of 3 his opposition to Defendants motion. 4 The rules are specifically designed to avoid the procedural 5 morass that has developed in this case. 6 file an opposition to the movant s undisputed facts, instead filing 7 a 73-page statement of disputed facts, it is extremely difficult to 8 identify the universe of actual, material, factual disputes, and 9 their legal effect. 10 When Plaintiff fails to The time required to decipher the filings in this case imposed on limited judicial resources. 11 In light of the rulings on the objections to the affidavits of 12 Mastrangelo (Fact Nos. 60-99) and Caloyannides (Fact Nos. 6, 10- 13 59), as well as the determination concerning the deemed admissions 14 (Fact Nos. 100-172), Plaintiff s Statement of Disputed Facts is 15 insufficient to create a genuine issue of material fact.31 16 17 A. Plaintiff s Third Cause of Action. 18 Plaintiff s third cause of action is a breach of contract 19 claim against all defendants. District 9 and Local 9333 argue that 20 Plaintiff s third cause of action should be construed as a hybrid 21 cause of action under § 301 of the Labor Management Relations Act 22 ( LMRA ). Under the hybrid cause of action, Plaintiff s third cause 23 of action for breach of the collective bargaining agreement is 24 viable only against Pacific Bell. 25 Where "the union representing [an] employee in [a] 26 27 28 31 The remaining portions of Plaintiff s Statement of Disputed Facts are either irrelevant to the issues of this case, repetitive, admitted (but not material), or otherwise objectionable. 52 1 grievance/arbitration procedure acts in such a discriminatory, 2 dishonest, arbitrary, or perfunctory fashion as to breach its duty 3 of fair representation," the employee "may bring suit against both 4 the employer and the union, notwithstanding the outcome or finality 5 of the grievance or arbitration proceeding." 6 Int'l Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 7 76 L. Ed. 2d 476 (1983). 8 comprises two causes of action," specifically, a suit against the 9 employer for breach of See DelCostello v. "Such a suit, as a formal matter, the collective bargaining agreement, 10 pursuant to § 301 of the LMRA (29 U.S.C. § 185), and a suit against 11 the union for breach of the union's duty of fair representation, 12 which "is implied under the scheme of the National Labor Relations 13 Act". 14 inextricably interdependent"; to prevail against either the company 15 or the union, the employee "must not only show that [his] discharge 16 [or discipline] was contrary to the contract but must also carry 17 the burden of demonstrating a breach of duty by the Union." 18 165. 19 construed as a suit only against Pacific Bell for breach of the 20 collective bargaining agreement, pursuant to § 301 of the LMRA. 21 For the reasons stated above, there has been no breach. 22 judgment is GRANTED in favor of District 9 and Local 9333 as to 23 Plaintiff s third cause of action. See id. The Supreme Court has held that the two claims "are Accordingly, Plaintiff s third cause of Id. at action is Summary 24 25 B. Plaintiff s Fourth Cause of Action. 26 The Union Defendants move for summary judgment in connection 27 with the fourth cause of action for fraud, which is alleged only 28 53 1 against AFLCIO - CWA and AFLCIO - District 9. 32 2 12:22.) 3 (Compl. 12:21- The elements of fraud, which give rise to the tort action for 4 deceit, are (a) 5 concealment 6 scienter ); (c) intent to defraud, i.e., to induce reliance; (d) 7 justifiable reliance; and (e) resulting damage. 5 Witkin, Summary 8 of California Law (9th ed. 1988), Torts, § 676, p.778. Promissory 9 fraud is a subspecies of the action for fraud and deceit. or misrepresentation nondisclosure); (b) (false knowledge representation, of falsity (or A 10 promise to do something necessarily implies the intention to 11 perform; hence, where a promise is made without such intention, 12 there 13 actionable fraud. Agosta v. Astor, 120 Cal.App.4th 596, 569 14 (2004). is an implied misrepresentation of fact that may be 15 In his complaint, Plaintiff s alleges that the Union committed 16 fraud when they accepted his union dues but failed to protect his 17 employment following his suspension and discharge. 18 Plaintiff claims that as a union member he believed he would be 19 protected against wrongful termination and that he would continue 20 to be employed with Pacific Bell until such time as there was good 21 cause or justification to terminate his employ. 22 12:26-13:12.) 23 Specifically, (Pl. s Compl. Plaintiff goes on to allege: Defendants, and each of them, knew that Plaintiff would not have knowingly sought, obtained and continued to place his future in CWA and District 9's care had he known that Defendants were not intending to fulfill their promise of protecting his interests. 24 25 26 27 28 32 Plaintiff s fourth cause of action for fraud appears to . Proper party is Local 9333. To the extent fraud is alleged against District 9, it is granted for the same reasons. 54 1 Specifically, had CWA and District 9 been looking out for the Plaintiff they would have used the contractual Expedited Arbitration procedures, which were available to reinstate the Plaintiff. Instead what the union did was to keep Plaintiff in the dark while they slowly went through the futile grievance. Plaintiff has suffered irreparable harm to his health and finances due to the intentional misrepresentations of the Defendants CWA and District 9. 2 3 4 5 6 (Id. at 13:12-13:25) 7 Plaintiff presents no evidence to support the required 8 elements of the common law cause of action for fraud and testified 9 at his deposition that he had no such evidence.33 The record is 10 clear that the Union Defendants in this and other instances 11 processed Plaintiff s grievances and represented him as required by 12 the CBA.34 The Union s attorney ultimately determined that 13 Plaintiff s termination was justified, indefensible, and without 14 merit. That Plaintiff is disappointed with the outcome of that 15 process or that the Union Defendants may have breached the duty of 16 fair representation in the processing of Plaintiff s grievance is 17 not evidence of promissory fraud on the part of the Union 18 Defendants. They did not promise to win meritless cases. 19 Summary judgment for Local 9333 and District 935 on the Fourth 20 21 22 23 24 25 33 When asked whether he had any facts to support his allegations that Union Defendants did not intend on fulfilling their promise of protecting his interests, Plaintiff responded No. (Dep of Pl. 195:23-196:3.) 34 As explained in Part II, supra, the Union s use of the expedited arbitration procedure was discretionary - not mandatory and required mutual agreement between the Union and Pacific Bell. 26 27 28 35 Plaintiff s fourth cause of action alleges that Union Defendants committed fraud [o]n or about September of 1997 and throughout Plaintiff s tenure at SBC .... (Compl. ¶ 42.) Local 55 1 Cause of Action is GRANTED.36 2 3 C. Plaintiff s Fifth Cause of Action. 4 In his fifth cause of action, Plaintiff alleges that Local 5 9333 and District 9 breached their duty of fair representation by 6 performing a perfunctory investigation and arbitrarily failing to 7 pursue his claim to arbitration.37 8 9 1. Duty of Fair Representation 10 The duty of fair representation doctrine serves as a "bulwark 11 to prevent arbitrary union conduct against individuals stripped of 12 traditional forms of redress by the provisions of federal labor 13 law." 14 Ed. 2d 842 (1967). 15 fairly the interests of all bargaining-unit members during the 16 negotiation, 17 collective-bargaining agreements. 18 breaches its duty when its conduct is arbitrary, discriminatory, or Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 912, 17 L. "Under the doctrine, a union must represent administration, and Id. enforcement of In particular, a union 19 20 21 22 23 24 25 26 27 28 9333, Plaintiff s local union, appears to be the proper party for his fraud allegations. To the extent Plaintiff alleges fraud against District 9, summary judgment is granted for the same reasons. 36 Although not asserted by the Union Defendants, it is arguable that the Fourth Cause of Action is preempted by Section 301. See Fox v. Parker Hannifin Corp., 914 F.2d 795, 801-802 (8th Cir.1990). 37 The fifth cause of action alleges that Plaintiff exhausted the grievance procedures set forth in the CBA or should be excused from exhausting those procedures. Exhaustion of the grievance procedures is not raised by Defendants as a ground for summary judgment. 56 1 in bad faith ... International Brotherhood of Elec. Workers v. 2 Foust, 442 U.S. 42, 47 (1979). 3 if it is without rational basis, ... or is egregious, unfair and 4 unrelated to legitimate union interests, 5 771 F.2d 1244, 1254 (9th Cir.1985), cert. denied, 475 U.S. 1122, 6 (1986), or is so far outside a wide range of reasonableness .... 7 as to be irrational. 8 65, 67 (1991). Under these exacting standards, unions are not 9 liable for good faith, non-discriminatory errors of judgment made A union s conduct is arbitrary Peterson v. Kennedy, Airline Pilots Assoc. v. O'Neill, 499 U.S. 10 in the processing of grievances. Peterson, 771 F.2d at 1254. 11 Rather, something more than negligence must be shown. 12 Burlington Northern RR, 931 F.2d 534, 538 (9th Cir. 1991). Peters v. 13 In determining whether a union has breached its duty of fair 14 representation to a member, the Court must apply slightly different 15 standards of review, depending on whether the union's act or 16 failure to act involved the union s judgment, or was procedural or 17 ministerial 18 "procedural or ministerial, then the plaintiff may prevail if the 19 union's conduct was arbitrary, discriminatory, or in bad faith." 20 Marino v. Writers Guild of America, East, Inc., 992 F.2d 1480, 1486 21 (9th Cir. 1993). 22 rather, to be arbitrary, the union must have acted in reckless 23 disregard of the union member's rights. 24 liable when it simply fails to perform a ministerial act which is 25 required of it and that failure completely extinguishes the 26 employee's right to pursue his claim. 27 Tractor Co., 749 F.2d 1270, 1274 (9th Cir. 1983) (liability imposed 28 where union failed to complete its investigation of member's in nature. If the alleged union misconduct was The union is not liable for "mere negligence"; 57 Id. Thus a union may be Dutrisac v. Caterpillar 1 complaint of improper discharge before grievance filing deadline 2 had expired, and member's right to challenge employer's action was 3 extinguished). 4 In contrast, if the conduct in question involved the exercise 5 of the union's judgment, then the plaintiff may prevail only if 6 the union s conduct was discriminatory or in bad faith. 7 at 1486. When the union's judgment is challenged -- such as its 8 decision whether 9 grievance -- the union must balance many collective and individual 10 interests," and thus "courts should accord substantial deference to 11 the union's decisions," even when its decision results in a loss to 12 some of its members. 13 be liable for "mere errors of judgment in processing grievances"). and to what extent to pursue a Marino, particular Dutrisac, 749 F.2d at 1274-75 (union will not 14 15 a. Allegations Against Local 9333. 16 In his fifth cause of action Plaintiff alleges that Local 9333 17 breached its duty of fair representation in its handling of his 18 grievance when it: 19 * granted Pacific Bell an extension of time to respond to the Step 2 grievance; 20 21 * relied on police reports, but did not interview the officers; 22 23 * did not interview the alleged thief of Plaintiff s work vehicle; 24 25 * did not allow Mastrangelo to represent him as union steward; 26 27 * did not challenge Pacific Bell s GPS evidence or retain a GPS expert; 28 58 1 * buried Plaintiff s past grievances against his supervisor, Todd Bayes, who Plaintiff alleges acted in concert with Spencer and Brown to terminate his employment; and 2 3 4 * abused its power in connection with Plaintiff s grievance. 5 6 (Pl s Opp. 2:3-6:15.) 7 8 i. Extension of Time to Step 2 Grievance 9 Pursuant to the CBA Chapter 7.05, the failure to timely 10 respond within 30 days by the company results in the grievance 11 being resolved in favor of the union. 12 or about December 21, 2005, Lynn Johnson unilaterally contacted the 13 company to notify them that the deadline to respond to the 2nd step 14 grievance was about to expire and she asked the company whether 15 they wanted an extension of time to respond. 38 16 26:16). 17 grievance would have been resolved in his favor and he would 18 have had his job back prior to Christmas of 2005. 19 actions that are commanded or prohibited by union rules or policies 20 involve little or no discretion and are ministerial in nature. See 21 Wellman v. Writers Guild of America, West, Inc., 146 F.3d 666, 671 22 (9th Cir. 1998) 23 failing to enforce Chapter 7.05's requirement if its conduct in 24 granting an extension of time was "arbitrary, discriminatory or in 25 bad faith" and prejudiced his rights. Plaintiff alleges that on (Pl. s Opp. 26:8- Plaintiff alleges that if no extension had been granted, (Id.) Union Thus the Union breached its duty to Plaintiff in Id. 26 27 38 The response time was extended to January 5, 2006. 28 59 (Id.) 1 While Plaintiff argues that the extension of time was in 2 violation of the CBA and dispositive of his grievance, he presents 3 no evidence that the extension was "arbitrary, discriminatory or in 4 bad faith. However, in Ms. Johnson s declaration, she states that 5 the one-week extension was provided to ensure that Pacific Bell 6 employees with settlement authority could attend the grievance 7 meeting. 8 extension is specifically authorized by Section 7.05D.2.b. of the 9 CBA and entirely consistent with CBA s mission to work in good- (Dec. of L. Johnson ¶ 22.) Further, Ms. Johnson s 10 faith and jointly plan and evaluate employee grievances. CBA Art. 11 7.01-7.07. [T]he union must balance many collective and individual 12 interests," and thus is afforded substantial deference in its 13 decisions. Hays v. National Electrical Contractors Assoc'n, Inc., 14 781 F.2d 1321, 1324-25 (9th Cir. 1986). 15 Plaintiff fails to provide probative evidence of the union s 16 bad faith, arbitrary, or discriminatory conduct on the part of the 17 union in exercising discretion to extend time for respond to the 18 Step 2 grievance. 19 20 ii. Investigation & Handling of Grievance 21 Plaintiff makes numerous attacks on the union s handling of 22 the grievance and investigatory process. 23 into question the union s decision regarding which witnesses to 24 interview; the refusal not to let Mastrangelo proceed as his union 25 steward; the reliance on the GPS data to support his discharge; the 26 failure to hire a GPS expert; and the overall perfunctory nature of 27 the union s investigation. 28 Specifically, he calls A union has wide discretion in the exercise of judgment in 60 1 representing its members and will only be held in breach of the 2 duty of fair representation where its conduct is "discriminatory, 3 or in bad faith." 4 F.2d 346, 349 (9th Cir. 1990). 5 meritorious grievance or fail to conduct a minimal investigation of 6 a grievance that is brought to its attention, but an investigation 7 which is pursued in good faith and according to the union s 8 rational judgment will not be found to be a breach of the duty of 9 fair representation. Burkevich v. Air Line Pilots Ass'n, Int'l, 894 However, a union may not ignore a Peterson v. Kennedy 771 F.2d 1244, 1254 (9th 10 Cir. 1985), cert. denied, 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. 11 Ct. 1642 (1986). 12 thorough through added diligence, courts have been "unwilling to 13 subject unions to liability for such errors in judgment." Id. at 14 1256. Although most investigations could be made more 15 In this case, the union did conduct an adequate investigation 16 and quite clearly pressed Pacific Bell to reinstate Plaintiff. The 17 undisputed facts demonstrate that Local 9333 filed three grievances 18 on Plaintiff s behalf and negotiated extensively with Pacific Bell 19 in an attempt to resolve the situation. 20 jointly submitted by District 9 and Local 9333 chronicle the 21 thorough investigation performed by them on his behalf. 22 that the union was familiar with the nature of the grievance and 23 pursued reasonable steps to resolve Plaintiff s complaints. 24 union appears to have spent numerous hours interviewing witnesses, 25 reviewing documents, and meeting frequently with Plaintiff and 26 Pacific Bell regarding Plaintiff s grievances. 27 exceeded the minimal investigation required by the duty of fair 28 representation. Peterson, 771 F.2d at 1254. 61 Further, the documents They show The The union clearly 1 Plaintiff s opposition focuses on his claim that he was 2 terminated solely based on the GPS data from Plaintiffs company 3 assigned work vehicle. 4 that the union breached its duty of fair representation because it 5 did not challenge the admissibility of the GPS under the CBA and 6 never hired a GPS expert to validate the data. 7 2:27, 10:20-10:24.) 8 did not support his conclusion that he was terminated solely based 9 on the GPS data. (Pl. s Opp. 2:6-2:7.) Plaintiff alleges (Id. at 2:26- In essence, Plaintiff claims that the union 10 As detailed in Part II, supra, it was proper for Pacific Bell 11 to use GPS reports as a tool in investigating the theft of 12 Plaintiff s work vehicle. 13 used as the sole basis for disciplinary action, but may be used to 14 substantiate information obtained from other sources. (Dec. of G. 15 Flores ¶ 8-9; Exh. B to Dec. of G. Flores.) 16 that Local 9333 took Plaintiff s grievance through three grievance 17 procedures and, in each one of them, argued that Plaintiff s should 18 be reinstated because his termination was based solely on the use 19 of the GPS reports. 20 D. Flores.) 21 was terminated because he lied about the events surrounding the 22 theft of the vehicle and failed to safeguard corporate property. 23 Relevant to the dispute is the following exchange, which occurred 24 during Plaintiff s Step 3 grievance meeting, held on February 16, 25 2006: However, GPS reports were not to be Here, it is undisputed (Exh. H, Dec. of L. Johnson; Exh. C, Dec. of Pacific Bell denied this, countering that Plaintiff 26 Union: 27 28 [We] feel that the sole reason he was dismissed is because of a GPS report [...] GPS should not be used for sole purpose of disciplinary action [...] we don t believe 62 1 this incident was enough to termination. Blake was a good worker and always honest. 2 Company: If you get out of your vehicle, you need to turn it off and lock it [...] vehicle was idling and he wasn t there. Used GPS heavily on this. It was based on the vehicle being stolen. We didn t randomly run GPS on him. Union: GPS was initial trigger to try and find vehicle [...] I don t believe Blake was fired for the van being stolen. [...] He said his keys fell on the ground. I believe Blake. Company: [We] feel this story is not plausible. We disagree on this, but feel it s not plausible. GPS was not used randomly. It was a valid use of GPS and we feel GPS data is valid. 3 4 5 6 7 8 9 10 11 (Dec. of D. Flores, Exh. C.) 12 Plaintiff s allegations regarding the GPS data amount to 13 nothing more than his opinion that the grievance proceedings should 14 have been handled differently - that different evidence should have 15 been presented and that a different approach should have been taken 16 concerning the GPS data. 17 challenged 18 grievance in good faith. Plaintiff s disagreement with the union s 19 tactics simply does not establish bad faith or discriminatory 20 conduct on the part of the union. the use of But the record is clear that the Union the GPS data and pursued Plaintiff s 21 Plaintiff does not cite a single case in support of his 22 claims, instead relying on the affidavit of Michael Caloyannides 23 and a series of factual arguments. 24 1066 (8th Cir. 1996), presents a close analog to the issues in this 25 litigation. 26 union breached its duty of fair representation by failing to 27 present certain evidence following Smith s termination for failing 28 a random drug test. However, Smith v. UPS, 96 F.3d In Smith, the Eighth Circuit considered whether a Smith claimed that the union breached its duty 63 1 of fair representation by failing to obtain certain laboratory 2 information and reports concerning his drug test in order to 3 challenge the test as unreliable and failing to hire an expert 4 witness 5 Affirming the district court s entry of summary judgment in favor 6 of the employer, the Eighth Circuit concluded that the union 7 adequately represented Smith at all grievance hearings, presenting 8 both oral and written arguments in his favor. 9 According to the Smith decision, Whether the union should have to attack more the records reliability is a of matter the within drug the test. Id. Id. at 1069. 10 obtained wide range of 11 reasonableness afforded to a union in pursuing a grievance. Id. 12 Here, the record demonstrates that the Union interviewed 13 Plaintiff multiple times and reviewed the GPS records and other 14 documentary evidence (e.g., sheriff s report and Brown s cellular 15 records), 16 dismissal. 17 first, second, and third grievance hearings to press Pacific Bell 18 into reinstating Plaintiff. The arguments presented by the Union 19 were both written and oral. Although it did not order additional 20 testing of the GPS equipment, this decision was within the wide 21 range 22 grievance. 23 a member s interests as vigorously as it could have does not 24 establish a breach of the duty of fair representation. 25 T.G. & Y. Stores, Inc., 971 F.2d 522, 531 (10th Cir. 1992). of determining that it did not support Plaintiff s Like Smith, the Union used this evidence during the reasonableness Id. afforded to a union in pursuing a Further, the fact that a Union failed to represent Mock v. 26 Plaintiff s claim that the union breached its duty of fair 27 representation by failing to obtain an expert witness to challenge 28 the reliability of the GPS report is also without support. 64 A union 1 is not necessarily required to obtain an expert witness to fulfill 2 its duty of fair representation. 3 958 F.2d 1323, 1328 (6th Cir. 1992). 4 procure an expert witness in this situation is a matter within the 5 wide 6 grievances on behalf of its members. 7 1066, 1069. 8 9 range of Ultimately, reasonableness the GPS Walk v. P*I*E Nationwide, Inc., The decision whether to afforded device was a union in pursuing See Smith, supra, 96 F.3d authorized by the CBA. Plaintiff has no evidence there was any reason to further challenge 10 the use and function of the GPS device. 11 its duty of fair representation, Plaintiff must show that the 12 breach seriously undermined the grievance proceedings. 13 ABF Freight System, Inc., 155 F.3d 1230, 1242 (10th Cir. 1998); see 14 also VanDerVeer v. UPS, Inc., 25 F.3d 403, 405 (6th Cir. 1994) 15 ( [T]he plaintiff must meet the onerous burden of proving that the 16 grievance process was seriously flawed by the union's breach of its 17 duty to represent employees honestly and in good faith and without 18 invidious discrimination or arbitrary conduct. ). 19 not satisfy this standard. 20 failure to safeguard company property and misrepresenting facts 21 during an investigation. 22 unreliable, it is undisputed that Plaintiff dropped his keys while 23 cable 24 equipment.39 25 grounds that he failed to safeguard company property. locating, resulting Even if the Union breached Webb v. Plaintiff does Pacific Bell terminated Plaintiff for Even assuming arguendo, the GPS is in a substantial loss of company These facts alone support Plaintiff s termination on 26 27 39 28 Moreover, the 2004 side-letter agreement between Pacific Bell and the Union controls the issues concerning GPS usage. 65 1 Plaintiff has not produced any material disputed facts from 2 which a reasonable jury could find that Local 9333 did not pursue 3 his grievance in good faith. 4 three levels of grievances, arguing that he should be reinstated 5 and made whole in every other respect. 6 four prior disciplinary actions and was on notice that another 7 violation of the employer s rules would result in termination of 8 his employment. 9 cellular phone records and police records, support the GPS data Local 9333 represented him through Plaintiff had a history of The events of October 17, 2005, along with the 10 compiled by the employer. 11 expert testimony that the GPS tracker was not capable of detecting 12 whether 13 justifications and failure of proof are fatal to Plaintiff s claims 14 against Local 9333. the vehicle was Plaintiff did not provide necessary idling when it was stolen. These 15 Plaintiff has not created a genuine issue of material fact 16 that the union s conduct in this regard was discriminatory or in 17 bad faith. 18 iii. Remaining Allegations Against Local Union. 19 Plaintiff s remaining allegations in his fifth cause of action 20 are a laundry list of complaints about employee infighting at 21 Pacific 22 isolated incident of a co-worker having a firearm on Pacific Bell 23 property. 24 33:4.) 25 fair representation. Bell, unprofessional demeanor by Local 9333, and an (Pl. s Opp. 3:15-3:21, 7:10-9:18, 26:26-28:5, 31:3- None of these complaints amount to a breach of the duty of 26 In the first place, any bad feeling or tension between Pacific 27 Bell employees, union representatives and Plaintiff rises to a 28 breach of the union s duty to Plaintiff only if the union handled 66 1 his grievance improperly as a result. That is, for the hostility 2 to be actionable, there must be a nexus between it and the improper 3 handling of Plaintiff s grievances and/or the decision not to 4 arbitrate his case. VanDerVeer v. United Parcel Services, Inc., 25 5 F.3d 403, 405-06 (6th Cir. 1994) (evidence that union steward 6 attempted to have employee discharged by reporting that he had 7 falsified his employment application did not establish breach of 8 duty of fair representation absent evidence of nexus between 9 alleged hostility of union steward and outcome of arbitration); 10 Hardee v. North Carolina Allstate Services, Inc., 537 F.2d 1255, 11 1258 (4th Cir. 1976) (while record supported employee's contention 12 that there was "considerable tension" between himself and union 13 hierarchy, "mere existence of bad feeling is not enough to obviate 14 the finality of an arbitration award; [employee] must show that his 15 grievance was handled improperly"). 16 There is simply no evidence to support the conclusion that 17 Local 9333 mishandled Plaintiff s grievance because of Plaintiff s 18 personal differences with or animus against Plaintiff by Steve 19 Bayes, Spencer, or Brown. Local 9333 represented Plaintiff through 20 three levels of grievances, asserting oral and written arguments in 21 favor of reinstatement and back pay. 22 claims, interviewed witnesses, and kept him adequately apprised of 23 the status of his grievance. Plaintiff has not provided necessary 24 testimony mishandled 25 Plaintiff s 26 There is no nexus evidence. 27 allegations that the union abused its power and did not allow him that Local 9333 disagreements with Local 9333 investigated his the co-workers grievance or union based on personnel. The same holds true for Plaintiff s 28 67 1 to select his union steward.40 2 specific steward present his case. Plaintiff had no right to have a 3 Plaintiff has not created a genuine issue of material fact 4 that the union s conduct was arbitrary, discriminatory or in bad 5 faith. 6 7 b. 8 Plaintiff argues that District 9's decision not to take his 9 grievance District 9's Decision Not to Arbitrate. to arbitration District is a breach 9 argues of that its it duty had of a fair 10 representation. valid, 11 nondiscriminatory reason for declining to pursue that grievance on 12 Plaintiff s behalf, and that it therefore did not breach its duty. 13 Plaintiff has presented no evidence to support a finding of 14 bad faith or discrimination.41 15 District 9 conducted a fair and reasonable review of Plaintiff s 16 grievance and concluded that it was in the best interest of all of 17 its members not to pursue it, as it did not think it could prevail. Rather, the record reflects that 18 19 20 21 22 23 24 25 26 27 28 40 CBA Section 7.02 "Request For Union Representation" provides that "a Union representative shall be present, if the employee requests" at any meeting between management and an employee regarding discipline or an investigative interview. The provision allows for a union representative, but does not give the employee the right to choose the representative. Similarly, Section 7.05 of the collective bargaining agreement defines the Grievance Procedure. Section 7.05.A. pertains to "a grievance involving the dismissal of any Regular or Term employee." In pertinent parts, Section 7.05.A. provides that paid Union representatives "designated by the Local" may attend the meetings at Steps I, I1 and 111. 41 Plaintiff admitted in his deposition that he had no facts to suggest the union s decision not to arbitrate his grievance was arbitrary, discriminatory or in bad faith. (Pl. s Dep. 192:22192:25, 193:1-193:5, 193:18-193:21.) 68 1 That decision was within the bounds of District 9's power and 2 discretionary authority: 3 In the context of employee grievances, the duty of fair representation is not a straitjacket which forces unions to pursue grievance remedies under the collective bargaining agreement in every case where an employee has a complaint against the company. Individual employees do not have an absolute right to have their grievances taken through the arbitration process. Vaca v. Sipes, 386 U.S. at 191, 87 S. Ct. at 917. A union is accorded considerable discretion in dealing with grievance matters, and it may consider the interests of all its members when deciding whether or not to press the claims of an individual employee. Thus, the failure of a union to process an employee's grievance, even if it is possible to demonstrate that the grievance is meritorious, does not necessarily give rise to a breach of the duty of fair representation. 386 U.S. at 192-3, 87 S. Ct. at 917-18; Turner v. Air Transport Dispatchers' Association, 468 F.2d 297, 299 (5th Cir. 1972). 4 5 6 7 8 9 10 11 12 13 Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir. 1982); see also 14 Peterson, 771 F.2d at 1253 ( Because a union balances many 15 collective and individual interests in deciding whether and to what 16 extent it will pursue a particular grievance, courts should accord 17 substantial deference to a union's decisions regarding such 18 matters."). 19 In support of his claims, Plaintiff relies solely on his 20 reading of the CBA and his personal conclusion that his grievance 21 should have been arbitrated. However, Plaintiff misreads the 22 standard under which the Court is required to evaluated the Union s 23 conduct: even if her grievance had merit, it was within the Union s 24 sound discretion to investigate the grievance, weigh the interests 25 of all of its members, and decline to pursue Plaintiff s grievance 26 based on its non-discriminatory conclusion that its entire 27 membership would be better served if it did not. 28 69 Moore, 840 F.2d 1 at 637 ("A] disagreement between a union and an employee over a 2 grievance, standing alone, [does not] constitute evidence of bad 3 faith, 4 Further, an employee has no absolute right to have the union take 5 her 6 Chernak 7 1985)(citing Vaca, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 8 (1967)). 9 grievance having no legal merit. 10 even when grievance v. the employee's through Southwest every grievance stage Airlines, 778 of the F.2d is meritorious."). grievance 578, 581 process. (10th Cir. Nor can the plaintiff compel the union to pursue a Id. Slevira v. Western Sugar Co., 200 F.3d 1218, (9th Cir. 2000), 11 is instructive. 12 a union breached its duty of fair representation by failing to 13 arbitrate Slevira s grievance and to assert a certain defense on 14 his behalf. 15 F.2d 534 (9th Cir.1990) for the proposition that "[w]hen a union 16 inexplicably 17 egregious nature of its failure transcends mere negligence." 18 distinguishing Peters from the facts of Slevira, the Ninth Circuit 19 stated: 20 21 22 23 24 25 In Slevira, the Ninth Circuit considered whether Slevira relied on Peters v. Burlington N. R.R., 931 ignores a strong substantive argument ... the In In Peters, the employee identified a provision of the collective bargaining agreement, which the union failed to raise at the arbitration. The employee demonstrated that this provision likely made him eligible for the benefits he sought through the arbitration. We reasoned that because the union failed to raise such an obviously meritorious argument, the employee established a question of material fact as to whether the union deliberated in the first place. Here, Slevira provides no evidence comparable to the contract provision in Peters that implicates the union's failure to deliberate. 26 27 The Ninth Circuit further distinguished Peters, finding that 28 the union considered Slevira s argument at length, interviewed 70 1 Slevira for two hours about the incident, examined the employee 2 statements taken by the employer, and obtained the advice of 3 counsel regarding whether Slevira had a viable claim. 4 Circuit also stated that the union offered a reason for not 5 pursuing Slevira s grievance to arbitration, namely that union 6 counsel reviewed the evidence and decided that Slevira had no 7 defense against the grounds of termination. 8 Circuit concluded that [i]f we were to require a more detailed 9 explanation, we would be second-guessing the union s judgment as 10 to how best to handle a grievance. 11 The Ninth Id. The Ninth F.3d at 1349. 12 Id. citing Patterson, 121 Here, like Slevira, District 9's attorney, Mr. Rosenfeld, who 13 was experienced in 14 considered 15 Plaintiff. 16 Plaintiff to locate the 911 call and other evidence, to confirm 17 Plaintiff s version of events - and his timeline - that the vehicle 18 was not idling at the time it was stolen. 19 the evidence. 20 judgment, that Plaintiff was not credible and could not prevail at 21 arbitration. 22 9 has adequately explained the basis for its decision not to 23 arbitrate Plaintiff s grievance. 24 78 (finding that a union s decision not to pursue a grievance is 25 entitled to great deference.). witness During representing statements, union GPS Plaintiff s members evidence, interview, in grievances, and interviewed District 9 asked Plaintiff did not obtain Rosenfeld then concluded, in his professional Rosenfeld withdrew Plaintiff s grievance. District See O Neill, supra, 499 U.S. 65, 26 In accordance with the broad discretion traditionally owed to 27 unions, quality of the union's decision is not scrutinized. See 28 Stevens, 18 F.3d at 1447 ("[W]e have held consistently that unions 71 1 are not liable for good faith, non-discriminatory errors of 2 judgment made in the processing of grievances."); Herring v. Delta 3 Air Lines, Inc., 894 F.2d 1020, 1023 (9th Cir. 1989) ("[A union] 4 must be able to focus on the needs of its whole membership without 5 undue fear of law suits from individual members."); Dutrisac v. 6 Caterpillar Tractor Co., 749 F.2d 1270, 1273 (9th Cir. 1983) 7 ("Because the union must balance many collective and individual 8 interests when it decides whether and to what extent to pursue a 9 particular grievance, courts should accord substantial deference to 10 the union's decisions."). Further [a] union may screen grievances 11 and press only those that it concludes will justify the expense and 12 time involved in terms of benefitting the membership at large. 13 Garnes v. United Parcel Service, Inc., 51 F.3d 112, 116 (8th 14 Cir.1995) quoting Griffin v. International Union, United Auto., 15 Aerospace & Agric. Implement Wkrs. of Am., UAW, 469 F.2d 181, 183 16 (4th Cir.1972). Even during an individual grievance procedure, the 17 union s own credibility, its integrity as a bargaining agent and 18 the interests of all its members may be at stake. 19 therefore entitled to enjoy a somewhat different perspective than 20 the individual employee it represents in a grievance matter. The union is 21 Plaintiff has not produced any material evidence on which a 22 reasonable jury could find that District 9's decision not to 23 arbitrate his grievance was discriminatory or made in bad faith. 24 The local union represented him through three levels of grievances. 25 The District 9 attorney then reviewed the evidence and interviewed 26 Plaintiff, making the independent decision that Plaintiff was not 27 telling the truth. 28 and was on notice that another violation of the employer s rules Plaintiff had a history of disciplinary action 72 1 would result in his termination of employment. 2 provide necessary expert testimony that the GPS tracker was not 3 capable of detecting if the vehicle was idling when it was stolen 4 or that such lack of capacity was known to Pacific Bell. 5 justifications and failure of proof are fatal to Plaintiff s claims 6 against District 9. 7 8 These Plaintiff has failed to raise a genuine issue of material fact as to the union s breach of the duty of fair representation. 9 10 Plaintiff did not Summary judgment for District 9 and Local 9333 on the Fifth Cause of Action is GRANTED. 11 12 D. Plaintiff s Sixth Cause of Action. 13 The Union Defendants move for summary judgment in connection 14 with the Sixth Cause of Action for defamation by slander and 15 blacklisting, which is alleged against all Defendants. 16 17 18 19 20 Plaintiff alleges: 56. On or about November 17, 2005 Defendants SHANE SPENCER and ALAN BROWN and the other party Defendants and each of them spread rumors about Plaintiff s firing which have made it virtually impossible for him to gain employment in the County of Stanislaus or any other County in which the AFL-CIO is the Union of Choice. 21 22 23 24 25 57. Specifically, representatives from CWA and District 9 as well as representatives from PAC BELL, AT&T and SBC, ALAN BROWN through the specific direction of SHANE SPENCER told other employees that Blake was fired for lying. The Defendants knew that this was not true or at least that they could not prove or disprove the truth or falsity of the statement. 26 27 28 58. In fact, Blake Smith had been forthcoming from the beginning of this ordeal that he did not intentionally leave his keys unattended. He believes and maintains to 73 1 this day that the keys in question fell out of his pocket while he was obtaining equipment at the rear of his truck in order for him to mark cables. This is corroborated by the Plaintiff s statement that he witnessed the ex-SBC employee reach down and pick the keys up from the ground at the rear of the truck. 2 3 4 5 59. The Defendants and each of them published and republished these slanderous misrepresentations about Plaintiff to persons both within the company and within the union as well as to the general public in order to harm his reputation in the community and to black list him, so that he could not obtain other similar employment. 6 7 8 9 10 60. This act of blacklisting and defaming Plaintiff is a violation of California Labor Code §§ 1050-1054 .... 11 12 1. Slander 13 Union Defendants argue that plaintiff failed to sufficiently 14 plead the substance of his slander claim. Under California Civil 15 Code § 46, "slander is a false publication, orally uttered ... 16 which ... tends directly to injure him in respect to his office, 17 profession, trade or business, either by imputing to him general 18 disqualification in those respects which the office or other 19 occupation peculiarly requires." The statutory definition of 20 slander is very broad and includes any language which, on its face, 21 has a natural tendency to injure a person with respect to her 22 occupation. Semple v. Andrews, 27 Cal. App. 2d 228, 232,(1938). 23 Plaintiff presents no evidence that any representative of the 24 Union Defendants made defamatory statements about Plaintiff.42 The 25 26 27 28 42 When asked whether he had any allegations that anyone at the union spread rumors about him, Plaintiff responded No. (Dep of Pl. 180:24-181:1.) 74 1 individuals named in the Sixth Cause of Action, Shane Spencer and 2 Alan Brown, are employees of Pacific Bell and are not alleged to be 3 officials of Local 9333 or District 9. 4 opposition to the Union Defendants motions for summary judgment 5 does not address this ground for summary judgment. Plaintiff s memorandum in 6 7 2. 8 Union Defendants argue that Plaintiff failed to sufficiently 9 Blacklisting plead the substance of his blacklisting claim. The claim of 10 blacklisting evolved from California Labor Code Sections 1050 and 11 1054, which allow an employee to initiate litigation against his 12 former employer for misrepresentations made after he has left 13 employment 14 Newberry v. Pacific Racing Asso., 854 F.2d 1142, 1151-1153 (9th 15 Cir. 1988). that preclude him from finding future employment. 16 Section 1050 of the California labor Code provides that "any 17 person ... who, after having discharged an employee from the 18 service of such person ... by any misrepresentation prevents or 19 attempts to prevent the former employee from obtaining employment, 20 is guilty of a misdemeanor." 21 authorizes a civil action to recover for violations of section 22 1050. Id. § 1054. 23 Cal. Lab. Code § 1050. Section 1054 Plaintiff presents no evidence or argument that the Union 24 Defendants violated the California Labor Code. 25 Shane Spencer are employees of Pacific Bell and are not alleged to 26 have 27 Plaintiff s evidence that an SBC technician told the owner of a 28 Napa Auto Parts store in Turlock that Plaintiff was fired for lying any official connection 75 with the Alan Brown and Union Defendants. 1 does not constitute evidence that the Union Defendants engaged in 2 conduct proscribed by the California Labor Code.43 3 4 Summary judgment for the Union Defendants on the Sixth Cause of Action is GRANTED. 5 6 VI. CONCLUSION. 7 For the reasons set forth above, District 9 and Local Union s 8 motions to strike are GRANTED and motions for summary judgment are: 9 (1) GRANTED as to Plaintiff s third cause of action for breach 10 of contract. 11 12 (2) GRANTED as to Plaintiff s fourth cause of action for fraud. 13 14 (3) GRANTED as to Plaintiff s claim for breach of the duty of fair representation. 15 16 (4) GRANTED as to Plaintiff s sixth cause of action for slander and black listing. 17 Defendants shall submit a form of order consistent with this 18 memorandum decision within five (5) days of electronic service. 19 IT IS SO ORDERED. 20 Dated: 9i274f August 11, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 43 Plaintiff presents no evidence from which it may be inferred that Plaintiff applied for a position with the Napa Auto Parts store or that the unnamed technician acted on behalf of the Union Defendants or SBC. 76

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