Erica P. Grosjean, UNITED STATES MAGISTRATE JUDGE.
Defendants Pacific Gas and Electric Company ("PG & E") and IBEW Local 1245 ("IBEW") have filed motions for summary judgment that together challenge the Court's jurisdiction to proceed on Plaintiffs' Becky Greer, Timothy C. Budnik, Rosario Saenz, Ian Carty, Haley Markwith, and Maria Garcia Pesina, individually and as "Class Representatives," ("Plaintiffs") claims.
Plaintiffs' complaint alleges that PG & E failed to pay wages due under the collective bargaining agreement because PG & E failed to give them credit for their "directly related clerical job experience." Plaintiffs assert breach of contract claims as well as various related labor code violations and similar claims. Defendants generally challenge the Court's ability to proceed on these claims on the basis that they have already been finally resolved between PG & E and the union, IBEW, as part of the dispute resolution process provided in the governing collective bargaining agreement. PG & E raised this challenge at the motion to dismiss stage, but the Court allowed the claims to proceed based on factual allegations in the complaint about the lack of finality of PG & E and IBEW's resolution and breach of IBEW's duty of fair representation. Defendants raise their jurisdictional defense again in the context of their motions for summary judgment based on a developed factual record.
The Court will grant Defendants' motion in part and deny in part as it related to the causes of action One and Eight in the Third Amended Complaint, which concern the breach of contract claim and breach of the duty of fair representation claim. As explained more below, the Court agrees with Defendants that Plaintiffs are precluded under the law from challenging the contractual interpretation of "directly related clerical job experience" that resulted from the resolution of Grievance 21052. The resolution regarding contractual interpretation, as reflected in Pre-Review Committee Number 21052 letter of November 24, 2013, was a final and binding decision under the CBA. It resulted from a properly filed grievance and proceeded through the first four steps of the grievance process. It properly addressed an ambiguity in the CBA regarding the meaning of "directly related clerical job experience," and does not clearly contradict the terms of the CBA. While the Court understands Plaintiffs' arguments regarding why the interpretation that resulted from that process too narrowly defined applicable experience, the Court must defer to the result of the CBA grievance process under the law. Moreover, the Union did not breach its duty of fair representation because the Union properly investigated the issue, proceeded through the grievance process, and used its judgment. Although it did not confer with individual employees before agreeing to the resolution, the employees did not have any unique relevant information and the Union was not legally obligated to solicit their opinions on an issue of CBA contractual interpretation.
The same cannot be said of the individual determinations as to which employees qualified for a higher rate of pay under the
As to the remaining arguments raised in the summary judgment motions, the Court seeks supplemental briefing regarding whether and to what extent the parties believe summary judgment as to other causes of action is appropriate consistent with this decision.
On July 10, 2015, Plaintiffs Becky Greer, Timothy C. Budnik, Rosario Saenz and Ian Carty, as individuals and on behalf of themselves and all others similarly situated, filed suit against PG & E alleging various claims based on underpayment of wages for a purported class. (ECF No. 1). Named Plaintiffs and the purported class members were hired by PG & E as "Customer Service Representative I's." The complaint alleged that PG & E's job postings for Customer Service Representative I advertised an entry level hourly wage of $23.88 per hour. Plaintiffs' complaint also alleged that Plaintiffs and Proposed Class all had previous experience ranging from at least six (6) months of customer service experience to greater than two (2) years experience. When hired, however, Plaintiffs were told that they would have a starting pay rate of $18.76 per hour. However, their base salary may be increased as detailed in the "International Brotherhood of Electrical Workers (IBEW) Collective Bargaining Agreement" ("CBE"). That agreement provided for elevated rates of pay based on more than 6 months of prior "directly related clerical job experience." Plaintiffs alleged various causes of action claiming that they did not receive wages commensurate with their amount of "directly related clerical job experience."
A First Amended Complaint ("1AC") was filed on August 28, 2015 alleging eleven causes of action against PG & E. (ECF No. 11). IBEW was not named as defendant in the original complaint or the 1AC.
PG & E moved to dismiss all eleven claims against it on September 25, 2015 on the basis that they were preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) ("§ 301"), Plaintiffs had failed to allege that IBEW breached its duty of fair representation, and even if they had, the Section 301 claims would be time-barred. (ECF No. 13). PG & E argued: "Plaintiffs concede that this very dispute was grieved and
On December 28, 2015, the Court issued an order granting, in part, and denying, in part, PG & E's motion to dismiss the 1AC. (ECF No. 31). The Court explained in relevant part:
(ECF No. 31, pp. 8-9). Second, the Court explained:
(ECF No. 31, p. 11).
On November 2, 2016, Plaintiffs filed a Third Amended Complaint ("3AC"), which is the operative complaint and subject of the current motions for summary judgment. (ECF No. 105). The 3AC consisted of seven causes of action against PG & E, and one claim against IBEW. (Id.) Of particular relevance to this order are the First and Eighth Causes of action. The First Cause of Action asserts a claim for Breach of Contract against Defendant PG & E for (1) developing an artificially narrow interpretation of "directly related clerical job experience"; and (2) failing to pay employees with such experience wages due. (ECF No. 105, pp. 35-36) ("Defendant PG & E breached the CBA by developing an artificially narrow interpretation of `directly related clerical experience' in order to limit the number of settlement payouts it would be required to issue.... Defendant PG & E breached the CBA, PRC 21502, ant the Labor Code by failing to provide Plaintiffs with all the wages they were due based on their `directly related clerical job experience.'").
The Eighth Cause of Action pleads an "alternative" claim for Breach of the Duty of Fair Representation, 29 U.S.C. § 185, against IBEW as follows:
(ECF No. 105, pp. 47-48). The complaint then lists various allegations of arbitrary, discriminatory and/or bad faith conduct in related to the resolution of Grievance 21502 and subsequent settlement of wages with PG & E.
On May 12, 2017, IBEW and PG & E filed separate motions for summary judgment. (ECF Nos. 159, 161). IBEW's motion seeks judgment in its favor on the Eighth Cause of Action against it and holding that IBEW did not violate its Duty of Fair Representation as a matter of undisputed facts. In the alternative, it seeks an order granting partial summary judgment that IBEW did not violate its Duty of Fair Representation regarding specific actions it took in relation to this issue, including:
(ECF No. 159). PG & E's motion then asks for dismissal of claims asserting PG & E breached its contract and violated various labor code provisions on the basis that the grievance resolution procedure was final and binding, and IBEW did not violate its duty of fair representation. (ECF No. 161)
The Court heard oral argument on these motions on July 21, 2017, and took the matter under submission. (ECF No. 177, 182).
In 2010, Defendant PG & E's customer service call volume was increasing as a result of changing market conditions, such as the introduction of the PG & E "smart meter" program. In response to the increasing call volume, PG & E investigated expansion of its labor force by hiring additional customer service personnel in its five call centers. PG & E also has local offices throughout California where service representatives provide "in person" customer service.
In 2010, Defendants IBEW and PG & E negotiated a Collective Bargaining Agreement ("CBA") applying to PG & E's office and clerical employees, effective January 1, 2011 to December 31, 2014.
The CBA provides for SR-I wage rates, wage progressions commensurate with tenure and/or experience in each classification, and "cost of living" adjustments of 2% a year. (JSUF 11). Exhibit A to the CBA contains a section entitled "Clerical Hiring Rate Guidelines" (the "Guidelines"), which provide for a higher starting wage for new SR-Is that have prior "directly related clerical job experience," as follows:
(ECF No. 156-6, p. 192).
From January, 2011 to June 2015, over 900 employees were hired by PG & E into the SR-I classification, including the proposed class and class representatives. Candidates for the SR-I went through a rigorous interview and evaluation process with PG & E in order to hire the most qualified applicants. Fewer than 2% of applicants were hired. Numerous documents rating the qualification of individuals, as well as verification of past employment, were generated in this process.
Contrary to the 2010 negotiations, the CBA terms, and decades of past practice, PG & E unilaterally determined that all new hires into the SR-I classification would only have "directly related clerical job experience" pursuant to the Guidelines
IBEW filed a Grievance to contest PG & E's narrow interpretation of the CBA and failure to pay qualifying SR-Is the wages due. Grievance No. 21052 was filed on June 10, 2011 by grievant "IBEW Local Union 1245." (ECF No. 169-6, p. 261). The specific issue grieved is as follows:
(Id.)
On August 2, 2011, PG & E representative Chris Diamond formally responded to Grievance 21052 as follows:
(Id.)
Pursuant to Step Two of the formal grievance process, the Local Investigating Committee ("LIC") had a meeting addressing Grievance No. 21052 on or about September 12, 2011. (JSUF 15). The LIC then issued a Joint Statement of Facts on November 15, 2011 and referred Grievance No. 21052 to the Fact Finding Committee the same day, which is the third step in the grievance procedure. (JSUF 15; ECF No. 169-7, pp. 377-380). The facts of the case concerned "the criteria used for determining starting wages based on existing Exhibit A language." (ECF No. 169-7, p. 377). Notably, nothing in the Statement of Facts concerned any specific employee or their specific prior experience. (ECF No. 169-7, pp. 377-382).
Also pursuant to the CBA grievance process, the Fact Finding Committee issued a report and referred Grievance No. 21052 to the Pre-Review Committee ("PRC") on August 21, 2012. (JSUF 16; ECF No. 169-7, p. 384). The PRC is the fourth step in the grievance procedure. (JSUF 7). The Referral to the Pre-Review Committee summarized the issue as follows: "Disagreement between the parties has arisen over the criteria utilized for determining starting wages for new hires and transferring employees based on established Exhibit A language." (ECF No. 169-7, p. 384).
The two members of the PRC, Ed Dwyer, Jr. (IBEW) and Doug Veader (PG & E) met to discuss Grievance No. 21052 on several occasions between August 2012 and November 2013. These discussions were focused on the meaning of the term "directly related clerical job experience" in Exhibit A to the CBA.
(ECF No. 169-6, pp. 263-65). The letter listed Chris Diamond (PG & E) and Arlene Edwards (IBEW) as members of the LIC. (Id.)
Following November 24, 2013 letter, PG & E and IBEW decided between themselves which of employees should receive the higher rates of pay. They looked only to the resumes submitted in connection with hire. Neither PG & E nor IBEW informed employees of the PRC's criteria and or solicit any input from employees regarding their past qualifying experience. In fact, the Union agreed not to consider any input from employees. Furthermore, IBEW did not refer disputes to the LIC, as directed in the PRC letter. On the contrary, IBEW forbade any employee from submitting a grievance regarding his or her rate of pay.
Moreover, during their review, PG & E and IBEW agreed to some further limitations to qualifying employees beyond the criteria identified in the resolution letter, including not crediting any experience accruing more than 5 years before an SRI's date of hire and not crediting any prior sales experience. (ECF No. 159, p. 3).
Also throughout this process, IBEW was unaware that PG & E possessed additional data concerning the SR-Is qualifications and prior work history. IBEW asked PG & E during the resume review process whether any writing or electronic data existed to determine past work experience. PG & E misrepresented that such documents or data were "no longer available, that they had been destroyed." (ECF No. 169-3, p. 1490).
As a result of this resume review process, in December 2014, 49 individual SR-I employees were given retroactive and prospective wage adjustments. (JSUF 17). On December 15, 2014, IBEW Senior Director for Customer Service Scott Sanford sent an email to inform its customer service members that it had concluded its review and determined which employees were entitled to a wage adjustment. (ECF No. 169-6, pp. 64-65). Notably, no reasons were given as to why any employee was included or excluded from the list. In fact, no reasoning was ever provided to any employee why any employee failed to qualify for the wage increase.
After IBEW received objections and protests from its members, another resume review was undertaken by IBEW and PG & E. They used the same process as they had before, reviewing only initially-submitted resumes and refusing to consider any additional submission from SR-Is.
On April 30, 2015, Scott Sanford (IBEW) sent an email to members with the subject "Exhibit A — Rate of Pay Settlement Follow Up," concluding:
(ECF No. 169-6, pp. 269-270).
On May 1, 2015, IBEW and PG & E executed a Compromise and Settlement Agreement. (JSUF 19, ECF No. 159-2, pp. 157-160). This settlement concerned "the implementation of Pre-Review Committee ("PRC") Decision 21502 and Business Manager Grievance 23159." It included stipulations including:
(ECF No. 159-2, pp. 157-160). As part of the agreement, PG & E agreed to make additional payments to certain identified employees. On May 22, 2015, 88 additional SR-I employees received retroactive and prospective wage adjustments. (JSUF 20).
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th Cir. 2017) (quoting United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir. 2016)). "Once the moving party meets its initial burden, the non-moving party must `go beyond the pleadings and by her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.''" Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1125 (E.D. Cal. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. "Courts may not resolve genuine disputes of fact in
Rule 56 does not require that the absence of any factual dispute. See Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir. 1992). Rather, there must be no genuine issue of material fact. Id. (emphasis as in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). "In short, what is required to defeat summary judgment is simply evidence `such that a reasonable juror drawing all inferences in favor of the respondent could return a verdict in the respondent's favor.'" Zetwick, 850 F.3d at 441 (quoting Reza v. Pearce, 806 F.3d 497, 505 (9th Cir. 2015); Anderson, 477 U.S. at 249, 106 S.Ct. 2505). "On the other hand, the Supreme Court has made clear: `Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial," and summary judgment is appropriate.'" Id. (quoting Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
The Supreme Court in DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) explained when a Court can hear a claim for breach of a collective bargaining agreement as follows:
DelCostello, 462 U.S. at 163-64, 103 S.Ct. 2281. See also Dickeson v. DAW Forest Products Co., 827 F.2d 627, 629 (9th Cir. 1987) ("If an employee pursues a grievance
Where a breach of a CBA is alleged, a Plaintiff may generally bring one of two types of claims. See id. First, a plaintiff may bring a "straightforward" § 301 claim, which alleges a breach of the CBA against the employer without accompanying allegations that a union breached its duty of fair representation. Id. (distinguishing between a "straightforward breach of contract suit under § 301" and a "hybrid § 301/fair representation claim"). A straightforward § 301 claim is brought "directly" against an employer and involves the employee's "uniquely personal rights" including "wages, hours, Overtime pay, and wrongful discharge." Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th Cir. 1978) (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. at 562, 96 S.Ct. at 1055).
With respect to a straightforward § 301 a claim, "an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement..." and "[s]ubject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement." DelCostello, 462 U.S. at 163-64, 103 S.Ct. at 2290-91. However, exceptions exist to this general requirement. A plaintiff can file a straightforward section 301 claim against the employer alleging breach of the CBA (without alleging a breach of a union's duty of fair representation) where the collective bargaining agreement does not provide for a binding grievance process. See, e.g., Lerwill, 582 F.2d at 511 ("The collective bargaining agreement in question did not provide for specific grievance procedures, and therefore there was nothing to exhaust before recourse could be had to the courts"); Dickeson, 827 F.2d at 629-30 ("In a case such as this when the contract is silent as to whether the grievance procedure is final and the only remedy is to strike, we are very hesitant to conclude that the parties intended that the procedure be final.... Prohibiting access to the courts bypasses an opportunity to use reason in favor of "economic warfare."... Accordingly, we conclude that the grievance procedure was not intended to be final. Having exhausted the administrative process, Dickeson may bring suit against DAW under section 301."). Additionally, employees can obtain judicial review of their straightforward section 301 claim without first exhausting the remedies under the CBA when the employer's actions effectively repudiated the grievance procedures of the CBA. See Vaca, 386 U.S. at 185, 87 S.Ct. 903.
Additionally, plaintiffs may bring a lawsuit alleging breach of a CBA, irrespective of a final and binding dispute resolution process in the CBA, if they also allege that the Union breached its duty of fair representation. DelCostello, 462 U.S. at 164, 103 S.Ct. 2281 ("In Vaca and Hines, however, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding"). This type of claim is referred to as a "hybrid" section 301 claim. Id. at 165, 103 S.Ct. 2281
Unlike a straightforward section 301 claim, judicial review of a hybrid section 301 claim is not precluded when an employee fails to exhaust the dispute resolution process in the CBA. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th Cir. 2007) (explaining that "in the ordinary case, an employee's failure to exhaust contractually mandated procedures precludes judicial relief for breach of the collective bargaining agreement and related claims" but "[a]n exception to the general requirement of exhaustion exists, however, where the employee demonstrates that the union representing the employee in the grievance/arbitration procedure [has acted] in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation...'").
"A union's duty of fair representation grows from its statutory right to exclusive representation." Demetris v. Transp. Workers Union of Am., AFL-CIO, 862 F.3d 799, 804 (9th Cir. 2017). "Because a union has exclusive statutory authority to represent its members, it has a corresponding legal obligation `to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" Id. (quoting Vaca, 386 U.S. at 177, 87 S.Ct. 903, 17 L.Ed.2d 842). "In its role as the employees' exclusive representative, the Union must be careful to protect the interest of all those whom it represents." Tenorio v. N.L.R.B., 680 F.2d 598, 602 (9th Cir. 1982) (citing Vaca, 386 U.S. at 177, 87 S.Ct. at 909; Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-686, 97 S.Ct. 1048 (1953)).
"Unions have broad discretion to act in what they perceive to be their members' best interests." Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988) (citing Ford, 345 U.S. at 337-39, 73 S.Ct. 681). However, the union may breach its duty of fair representation to its members "when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith." Demetris, 862 F.3d at 805 (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). Plaintiffs bear the burden of proving that a union breached such duty. Id. (citing Beck v. United Food & Commercial Workers Union, 506 F.3d 874, 879 (9th Cir. 2007)). "[A] union's conduct generally is not arbitrary when the union exercises its judgment." Id. (citing Beck, 506 F.3d at 879; Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985)).
The Court now turns to evaluating which if any part of Plaintiffs' Breach of Contract claim can proceed in this Court in light of the underlying agreements between PG & E and the Union, IBEW. IBEW's motion urges the Court to analyze the underlying process in terms of "two basic phases:
(ECF No. 159-1, p. 18). Although Plaintiffs attempt to group these two phases together, the Court agrees that each phase deserves separate treatment because their differing circumstances are relevant under the legal principles at issue.
Again, Plaintiffs claim that PG & E breached the CBA by developing an artificially narrow interpretation of "directly related clerical job experience." (ECF No. 105, p. 35 ("Defendant PG & E breached the CBA by developing an artificially narrow interpretation of `directly related clerical experience' in order to limit the number of settlement payouts it would be required to issue.")). As described above, this issue was the subject of Grievance 21052. That grievance went through four steps in the CBA's conflict resolution process, including submission of the grievance to the Local Investigating Committee (ECF No. 169-7, pp. 377-381), referral to Pre-Review Committee (ECF No. 169-7, p. 384), and written decision from the Pre-Review Committee (ECF No. 169-6, pp. 263-277).
Under the terms of the CBA, this resolution was final and binding. The Pre-Review Committee is part of Step Four of the Grievance Procedure. (ECF No. 159-2, p. 28). Under the finality provisions of the CBA, "[t]he resolution of a timely grievance at any of the steps provided herein shall be final and binding on the Company, Union and the grievant. A resolution at step below Step Four, while final and binding, is without prejudice to the position of either party, unless mutually agreed to otherwise." (ECF No. 159-2, p. 26). While there was some dispute about the meaning of the finality provision regarding a resolution below Step Four at the motion to dismiss, all parties agreed that a resolution at Step Four and above was final and binding. Plaintiffs do not dispute that the resolution of Grievance 21502 was final and binding under the terms of the CBA.
Thus, under the law described above, Plaintiffs may only pursue their claim for breach of contract challenging PG & E's narrow interpretation of the phrase directly related clerical job experience by proving that IBEW breached its duty of fair representation in agreeing to that resolution.
Plaintiffs have set forth the following bases as to how IBEW breached their duty of fair representation regarding the 21502 Grievance:
The Court will now analyze each of these arguments.
Plaintiffs assert that any change to the CBA, including the Guidelines, must
This argument thus turns on the question of whether the resolution of Grievance 21502 constituted additional guidance regarding an ambiguous phrase, or new terms of the contract. As a starting point, the resolution of Grievance 21502 does not purport to modify the CBA — it purports to interpret an ambiguous phrase in the CBA. The PRC resolution letter states: "[w]hile Exhibit A does provide some guidance, it does not clearly define what constitutes `directly related clerical job experience'" and that the "Committee agrees that the revised application complies with the Hiring Guidelines...." (ECF No. 169-6, pp. 263-65). Thus, the Committee found that the phrase "directly related clerical job experience" was ambiguous and that further guidance was appropriate.
The Court agrees that the phrase "directly related clerical job experience" is ambiguous. "Directly related" is a comparative term with reference to the work of the SR-I. It requires an evaluation of clerical job experience to determine if it is directly related to the work of the SR-I. Moreover, the resolution of Grievance 21052 does not facially contradict the term "directly related clerical job experience." Specifically, the Pre-Review Committee Number 21502 letter adopts the criteria of "directly related clerical experience" to include "Customer service work in a call center environment where the nature of the work and complexity of the billing, systems, and rules is comparable to that at a PG & E Contact Center. Such work experience would need to include identifying and resolving customer inquiries on all phases of customer service (i.e.: service billing and credit." (ECF No. 169-6, p. 264). This interpretation does not facially contradict "directly related clerical job experience," and is appropriately considered an interpretation of that phrase. While the Court understands why Plaintiffs object to limiting such experience to "work in a call center environment," such an interpretation does not contradict any term in the CBA.
In response, Plaintiffs point to the part of the CBA that states "In applying paragraph 1, credit will be given for office clerical work, `office clerical work' does not include: (a) sales work in any type of retail establishments; (b) work as a teller in a bank or savings institution." (ECF No. 105, p. 104). Plaintiffs argue that this subsection as intended to define "directly related clerical job experience" to include all "office clerical work" as explained in that subsection.
Although an argument can be made that the drafters intended "directly related clerical job experience" to constitute all and only "office clerical work," such a conclusion is not clear and ambiguous from
Ultimately, the Court finds that the Union did not breach its duty of fair representation in agreeing to the resolution by the Pre-Review committee through the grievance process because that resolution clarified an ambiguous term of the CBA and did not go outside the bounds of the CBA.
Section 9.6 of the CBA, which provides that:
(ECF No. 169-6, p. 128 (emphasis added)).
It is undisputed that no SR-Is were invited to give any comments at any time in the process. They were not invited to provide comments on the interpretation of the CBA or how it affected Plaintiffs. Plaintiffs argue that IBEW's failure to include SR-Is in the process was arbitrary and in bad faith. IBEW asserts that the issue in Grievance No. 21052 was a dispute over the appropriate interpretation of the CBA for which SR-I input was not required.
The Ninth Circuit has held that "a union does not breach its duty of representation by failing to give a grievant notice and an opportunity to attend a grievance hearing where the issue is the proper construction of a collective bargaining agreement." Evangelista v. Inlandboatmen's Union of Pac., 777 F.2d 1390, 1397 (9th Cir. 1985) (collecting cases).
Here, Grievance 21052 related to the proper construction of the CBA. It did not address specific employees or their background. There is no evidence that individual employees had unique knowledge that would have informed the Union in their bargaining.
Accordingly, for this part of the process, the Union did not breach its duty of fair representation by excluding employees who could be affected by the interpretation of the phrase "directly related clerical job experience."
The CBA contemplates resolution of a grievance within a maximum number of 150 days or, if all extensions are agreed to, within 300 days from the date of filing to submission for arbitration. (CBA § 9.6, ECF No. 169-6, pp. 128-132). Grievance No. 21052 was filed on June 10, 2011, and PRC 21052 was issued on November 24, 2013 (899 days from filing). Plaintiffs argue that IBEW breached its duty of fair representation
As an example of prejudice, they cite to Plaintiff Markwith and claim that she was underpaid after settlement by approximately $3,656.06. In support of the calculation, Plaintiffs cite to expert report created by Edward T. Garcia, who appears to opine that purported underpayment was a result of delayed advancement through the wage steps in Exhibit F to the CBA. (ECF No. 171-4, pp. 45-46). Without elaboration, Plaintiffs complain that if IBEW had resolved Grievance No. 21052 sooner, Ms. Markwith likely would never have been placed at entry level pay or in need of a wage adjustment.
IBEW argues in response that, given the complexity of the issue, it would have been arbitrary for the parties to abide by the time limits in the CBA. Instead, IBEW informally agreed to extend the timelines in order to give the parties adequate time to investigate and negotiate resolution of Grievance No. 21052.
The Ninth Circuit addressed the issue of timeliness in Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir. 1983). In that case, the Ninth Circuit held that the Union had breached its duty of fair representation by failing to file a grievance on time. The Ninth Circuit looked to cases finding that a Union's failure to process a grievance in a timely fashion, which allowed the deadline to pass without evaluating the merits of the grievance, constitutes a breach of the duty of fair representation. Id. at 1273 ("Other courts have found a breach when the union decided to file a grievance but failed to file it in a timely fashion, or negligently allowed the filing deadline to pass without evaluating the merits of the grievance.... We conclude that the union should be responsible for a total failure to act that is unexplained and unexcused."). The Court noted, however, "[i]f the collective bargaining agreement does not allow enough time for investigation, the union can negotiate to lengthen the contractual time for filing grievances or to provide for extensions of time in particular cases." Id. at 1273-74.
Here, IBEW filed the relevant grievance on time. It was able to obtain a resolution on the merits notwithstanding any delays in the process. Neither PG & E nor anyone else has used the failure to process the grievance in a more timely fashion to deny a retroactive pay increase. IBEW's purported reason for delay is supported by investigation of the issue at multiple steps of the grievance process resulting in a thorough and in-depth resolution from the PRC on a complicated issue of contractual interpretation.
Accordingly, the Court finds that the failure to move more quickly through the steps of the grievance process, once filed, was not a breach of IBEW's duty of fair representation.
Finally, Plaintiffs contend that IBEW's failure to escalate Grievance No. 21052 to the fifth and final step of the grievance resolution process in the CBA was a breach of the duty of fair representation. They contend that there is no evidence IBEW carefully utilized its discretion not to arbitrate by weighing competing interests when PG & E had already admitted liability and damages for the breach of the CBA.
It has long been established that "a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract,
Here, there is substantial evidence that IBEW weighed the risk of proceeding to arbitration and elected not to as a result of risk of obtaining a less favorable interpretation of the phrase "directly related clerical job experience." (Dwyer decl., ECF No. 159-5 ¶¶ 21-22, 34, 65, 74, 86). Although Plaintiffs disagree with the interpretation that IBEW agreed to at the Pre-Review Committee stage, Plaintiffs have not presented evidence that the Union believed it could clearly obtain a better interpretation at arbitration or was reckless in failing to pursue arbitration. IBEW's decision not to arbitrate was an appropriate and informed exercise of its judgment.
It is worth noting again that the CBA does not require arbitration for a decision to be final. The CBA provides that IBEW may request arbitration for "a grievance which is not settled at one of the steps provided above." (ECF NO. 159-2, p. 30). Here, Grievance 21052 was settled at Step 4 with the PRC Number 21052 Letter clarifying the guidelines' use of the term "directly related clerical job experience." (ECF No. 169-2, p. 265 ("This grievance is closed based on the above discussion and understanding.").
The Court holds that IBEW's asserted reasons for not escalating Grievance No. 21052 regarding interpretation of the CBA to arbitration were not without rational basis. IBEW did not breach its duty of fair representation in failing to arbitration Grievance No. 21502 and seek a more favorable interpretation of "directly related clerical job experience" than set forth in the Pre-Review Committee letter.
The Court thus grants IBEW and PG & E's motions for summary judgment on Counts One and Eight to the extent they apply to Grievance 21052's interpretation of the CBA's provisions regarding "directly related clerical job experience." IBEW and PG & E followed the steps for resolution of this issue as provided in the CBA and received a final and binding decision under the terms of the CBA in the form of the PRC Number 21052 letter dated November 24, 2013. The fact that Plaintiffs disagree with the interpretation that resulted from the CBA grievance process does not allow Plaintiffs to litigate the issue again in this Court.
The Court now turns to the issue of whether Plaintiffs may proceed with their breach of contract claim to the extent it alleges that PG & E breached the CBA's provisions to pay them higher wages even under the interpretation of the phrase "directly related clerical job experience" as clarified in the PRC Letter of November 24, 2013. As described above, PG & E and the Union did not follow the steps of the grievance procedure — including the Local Investigating Committee, Fact Finding Committee, or Review Committee — when it came to deciding which employees qualified for a wage increase. Instead, they determined between themselves which employees qualified based solely on employees' resumes, without input from any employee, without any reason given for the decision, using criteria not included in the CBA or PRC letter, and without allowing employees to file grievances.
As an initial matter, the resolution between PG & E and IBEW does not comply with the CBA's definition of a final and binding under the terms of the CBA. Although the Union filed a grievance on the topic of "The Company has disparately applied the Pre Review Committee case 21052 decision to its employees hired into Call Center Operations starting on or about 12/15/2014," (ECF No. 159-2, p. 155), it never went through any of the steps of the grievance process. It is undisputed that grievances were not filed on behalf of any specific employee. Indeed, IBEW prohibited any employee from filing such a grievance. Although the PRC letter resolving Grievance 21052 states that "[a]ny disputes as to `related job experience' are remanded to the Local Investigating Committee for resolution," (ECF No. 169-6, p. 265), there is no evidence presented in this motion for summary judgment that such a procedure was followed or that the Local Investigating Committee provided any input on the resolution of any employee issues. Moreover, the ultimate Settlement Agreement purporting to resolve the issue of which employees were entitled to a wage increase under the newly clarified terms of the CBA was signed by PG & E and the Union, (ECF No. 159-2, p. 160) — not anyone from a Review Committee as was done in the earlier resolution (ECF No. 169-6, p. 265). It is thus not final under the terms of the CBA, which refers to "the resolution of a timely grievance at any of the steps provided herein." (ECF No. 159-2, p. 26).
While the document whereby PG & E and IBEW decided to resolve the issue purports to be final, (ECF No. 159-2, p. 158 ("this Agreement is also a full and final compromise and settlement and a general release of PG & E by Local 1245 that applies to all unknown and unanticipated claims arising out of the implementation of PRC Decision 21052 and Business Manager Grievance 23159.")), it is the finality provisions of the CBA that govern. DelCostello, 462 U.S. at 163-64, 103 S.Ct. 2281 ("Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement.") (emphasis added). Moreover, this ad hoc resolution outside the grievance procedure is not permitted by the plain terms of the CBA, which states "apart from those matters that the parties have specifically excluded by way of Section 9.2,
Notably, neither PG & E nor IBEW explicitly state in their motions for summary judgment that their determination of which employees were entitled to a wage increase was final and binding under the terms of the CBA. Rather, on this issue, they always point to the PRC letter resolving the issue of contractual interpretation, and gloss over the application to specific employees. For example, on the point of finality, PG & E's motion for summary judgment merely explains how the Grievance 21052 resolution, addressing the interpretation of "directly related clerical job experience," is final; PG & E provides no support for holding that the resume review process and application to specific employees as well:
(ECF No. 161, p. 16). In its reply, PG & E again points to the finality of the Step 4 Pre-Committee Resolution letter, and then, without explanation or legal support, claims that this shields the entire process. (ECF No. 175, p. 9) ("PRC 21052 is a final and binding Step Four grievance resolution. (Dkt. 161, 7:13-19 & fn. 7; 10:8-13.) The resume review process, settlement payee selections, settlement payment determinations, and the resolution of the follow-on grievance 23159, were all completed prior to the July 2015 commencement of this action."). IBEW similarly describes the PRC decision as "a final and binding resolution of the Grievance," (ECF No. 159-1, p. 23), but is silent on this point when it comes to the phase applying that decision to specific employees, (ECF No. 159-1, p. 24).
PG & E also claims that Plaintiffs admitted in the course of the motion to dismiss that Plaintiffs were only challenging the application of the Grievance 21502 interpretation and should be held to that admission. (ECF No. 175, pp. 8-9) ("Plaintiffs' April 22, 2016, opposition to PG & E's motion to join Local 1245 states: "Plaintiffs do not dispute the resolution of the grievance process, nor the PRC 21052 Decision. (See Transcript from Hearing on Motion to Dismiss, 21:15-19 [`Your Honor, we're not contesting that process. We're not saying that the CBA didn't apply to the grievance and we're not saying that the determination of the grievance was erroneous'].) Plaintiffs' allegations arise from the improper application of the settlement agreement to the Service Representative I employees, which resulted in insufficient payouts." (Dkt. 49, p. 7 of 11,
In their opposition to PG & E's motion, Plaintiffs argue that both the PRC letter resolving Grievance 21052 and the subsequent resume review process were not final and binding under the law. (ECF No. 170, pp. 15-18). In support, Plaintiffs argue that "Grievance and arbitration determinations are not final when they leave issues undetermined or contemplate further action," and that Grievance 21052 and the Resume Review process were not final and binding because "[i]t is undisputed that PRC 21052
After consideration, the Court finds that the Compromise and Settlement Agreement between PG & E and the Union, which purported to determine which employees were subject to the wage increase, was not "final and binding" under the terms of the CBA because it is undisputed that it was resolved wholly outside the grievance process. See Vaca, 386 U.S. at 185, 87 S.Ct. at 914 ("An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures"); Sidhu v. Flecto Co., 279 F.3d 896, 900 (9th Cir. 2002) ("If the employer repudiates the procedures established in a CBA to govern a particular grievance, the aggrieved employee is relieved of the usual requirement to exhaust administrative remedies as to that grievance").
The Court thus denies PG & E's motion for summary judgment to the extent that
The Court next turns to whether IBEW breached its duty of fair representation in purporting to finally decide with PG & E which employees were entitled to a wage increase based on their previous job experience.
(ECF No. 159-1, p. 31, footnotes omitted).
"A union breaches its duty of fair representation if it processes a member's grievance in an arbitrary or perfunctory manner. To comply with its duty, a union must conduct some minimal investigation of grievances brought to its attention. The thoroughness with which unions must investigate grievances in order to satisfy their duty varies with the circumstances of each case. Although we afford unions a reasonable range of discretion in deciding how best to handle grievances, union conduct that shows an egregious disregard for the rights of union members constitutes a breach of the duty of fair representation." Tenorio v. N.L.R.B., 680 F.2d 598, 601 (9th Cir. 1982) (internal citations omitted). Applying this standard, the Ninth Circuit in Tenorio held that the Union "showed a reckless disregard for
Id. at 602. Applying that standard, the Ninth Circuit in Banks similarly held that the Union in that case breached its duty of fair representation based on facts arguably similar to those in the case before us:
Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1443 (9th Cir. 1989).
The requirement of a Union to conduct an adequate investigation was recently reiterated by the Ninth Circuit in the 2016 case of Starla Rollins v. Community Hospital of San Bernardino, 839 F.3d 1181, 1186-87 (9th Cir. 2016), in which the Court held that there was a material dispute of fact precluding summary judgment on the issue of whether the Union breached its duty of fair representation based on allegations that the Union failed to conduct an adequate investigation. Id. at 1186-87 ("Rollins has submitted enough evidence that the Union processed her grievance "in a perfunctory manner" to allow her to survive the Union's motion for summary judgment"). The Court's reasoning in Starla provides some additional guidance:
Although a Union's judgment is ordinarily beyond question absent evidence of bad faith or discrimination, this deference does not extend to defects in the processing of a grievance, as the Ninth Circuit explained in Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1443-44 (9th Cir. 1989):
Id. at 1443-44. The Ninth Circuit echoed this distinction between judgment on the merits and judgment in how to investigate a grievance in Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985):
Id. at 1254. The Ninth Circuit also rejected the contention that a Union can avoid examination of the adequacy of investigation by claiming that it was a matter of "judgment" in the case of Peters v. Burlington Northern R. Co., 931 F.2d 534, 540-41 (9th Cir. 1990), as amended on denial of reh'g (Apr. 23, 1991):
Id. at 540-41.
It is undisputed that the decisions regarding which employees qualified for the wage increase were based solely on the resumes employees had submitted in connection with their hire. Those resumes were made without any knowledge of the term "directly related clerical job experience," not to mention the clarification provided in the Pre-Review Committee Letter resolution. They thus listed prior job experience at a level of generality that, Plaintiffs claim, was insufficient to resolve the issues posed in those criteria. To the extent the resumes did not provide sufficient information to determine whether prior work qualified under the criteria for directly related clerical job experience, no additional information was ever requested from the employees. In fact, it was prohibited.
It is also undisputed that IBEW did not interview a single employee or otherwise allow the employees to give input as to their prior work experience. In fact, it is undisputed that there was an intentional decision not to consider any type of input from any employee. This decision not to interview or in any way obtain the position of affected employees precluded their ability to supplement their resume with information relevant to the question of their directly related clerical job experience.
In its motion, IBEW claims that it had legitimate basis for not involving the SR-Is in the grievance process, and thus its failure to receive any input from employees did not render its investigation inadequate. IBEW representative Ed Dwyer, Jr. recalled that:
(Dwyer decl., ECF No. 159-5 ¶¶ 43-44).
IBEW uses named-Plaintiff Becky Greer as an example of confirmation of the concern that SR-Is would be tempted to alter their resumes for higher pay. According to IBEW:
(ECF No. 159-1, p. 32). IBEW additionally points to the admission by Plaintiff Saenz that, given the opportunity, she would include the language of PRC 21052 in her resume. (Id.)
Understandably, Plaintiffs take issue with IBEW's supposed "fear" that its members, armed with specific information about how their rate of pay would be calculated, would be tempted to mischaracterize their prior experience. There is no evidence that any employee has lied or even misled anyone about his or her prior
The reasoning that, if asked to provide their past experience, employees would tailor their response to the revised definition of "directly related clerical job experience" is not a legally sufficient reason to exclude employee input. Indeed, the fact that employees would point specifically to their directly related clerical job experience is exactly the reason to solicit their input. An adequate investigation includes obtaining the employees' argument regarding why that employee qualifies for higher pay under the CBA. Such an investigation would allow IBEW to best represent the employees' interests. IBEW could then potentially disagree with an employees' conclusion. But without asking an employee if they believed they qualified for a wage increase, IBEW cannot discharge its duty of fair representation.
Nor is the argument that there was unequal understanding of the issue among employees a reason to exclude their input. IBEW need only provide the guidance that resulted from the Grievance 21052 process to all affected employees to ensure that they were on equal footing. That decision was set forth in a brief written letter, which could easily have been circulated to affected employees.
Defendants' reasoning appears to boil down to the argument that, if employees were allowed to provide input, they may have justified higher rates of pay for more employees than apparent from the resumes. While this may be a reason for PG & E to attempt to exclude such input, and arbitrarily determine employees' entitlement to higher pay based solely on resumes, it buttresses the argument that IBEW violated its duty of fair representation by excluding employee input.
On the issue of whether resumes were truly sufficient to determine employees' qualifications for the higher rate of pay, Plaintiffs point to a January 2015 email chain involving IBEW officials commenting on the resume review process. Notably, Ed Dwyer, Jr. was the key IBEW representative during the grievance resolution and resume review process:
(ECF No. 169-9, pp. 25-27). One part of this exchange is especially worth emphasizing: Dwyer, the IBEW representative, writes: "Next comes the PRC decision and the task to look at these resumes
Defendants also argue that the failure to consult with employees does not render an investigation inadequate as a matter of law. However, upon review, the cases relied on by defendants actually hold that a Union can settle a grievance without consent from the employee — not that it is acceptable to conduct an investigation without any input from the affected employee. See, e.g., Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1061 (9th Cir. 1989) (holding that union did not breach its duty of fair representation where employees filed grievances, "Union pursued each appellant's grievance through successive stages, up to and including the selection of three-party arbitration panels," union settled without the grievants' approval, and there was no indication that employees
It is worth noting, however, that the Ninth Circuit in Evangelista v. Inlandboatmen's Union of Pacific, 777 F.2d 1390, 1395-96 (9th Cir. 1985) held that a Union complied with its duty of fair representation despite failing to interview the employee after she filed her grievance. The Court in that case distinguished the facts from Tenorio by finding that, "Moreover, extensive investigation by a union is unnecessary where it would not have resulted in the development of additional evidence which would have altered the union's decision not to pursue the grievance. Because resolution of Evangelista's grievance revolved solely around a question of contract interpretation, further investigation would not have aided the IBU." Id. at 1395-96 (internal citations omitted). Thus, in Evangelista, the Union had the benefit of the employee's position as set forth in her grievance, and additional information through an interview was not relevant to determining the issue. See also Stevens v. Moore Business Forms, Inc., 18 F.3d 1443, 1448 (9th Cir. 1994) ("The Appellants recite no facts discovered during their own `investigation' which change the basic issues or make the union's reasoning suspect."). It does not control here where IBEW did not even have the benefit of a grievance setting forth the employees position and where Plaintiffs have at least raised a dispute of fact whether the employees had additional relevant information beyond their resumes.
PG & E also cites to the Ninth Circuit case of Burkevich v. Air Line Pilots Ass'n, Intern., 894 F.2d 346, 352 (9th Cir. 1990), which held that the Union did not breach its duty of fair representation in failing to solicit employees' views before agreeing to a proposed reorganization plan in bankruptcy. Id. at 352. The Court finds that case distinguishable in that the Union there was taking a position on an issue affecting the entire company as a whole, and did not concern facts known to individual participants. In such a circumstance, the employees did not have unique information about their experience to inform the decision — the employees merely wished to be heard regarding their opinions on the plan. It is more akin to the Union agreeing to an interpretation of the CBA through the 21052 Grievance, as discussed above, than agreeing to application of the CBA to individuals' prior work experience.
Moreover, numerous courts have held that a union satisfied its duty to perform a reasonable investigation precisely because it solicited input from the affected employees. See, e.g., Mills v. Intermountain Gas Co., 857 F.Supp.2d 1034, 1053 (D. Idaho 2012) ("The circumstances of this case, however, do not indicate the Union handled Mills' grievance arbitrarily and perfunctorily. Clay interviewed Mills. Clay had union representatives inquire about the vehicle accident history of other Intermountain Gas employees. Clay discussed with a long term employee what responsibilities Mills had and how he was required to perform his job. In light of these circumstances,
Without arguing that it is a legally justified excuse, IBEW and PG & E also suggest that the process they undertook was necessary due to the time and difficulty of fully complying with the terms of the agreement. They suggest that it was far quicker to make a decision based only on initial resumes and agree informally between themselves outside the grievance process because to do more, including soliciting input from employees, verify background, or take disputes to the Local Investigating Committee under the grievance process would take too long. However, the difficulty in making employee by employee determinations appears to stem entirely from the CBA and contractual interpretation process itself, which were set by PG & E and the Union. After all, it was PG & E and IBEW who agreed to certain wage increases based on an amount of "directly related clerical job experience," which took a page of further explanation in the CBA to clarify. They could have chosen a much clearer and objectively easier-to-determine wage rate, based for example on years of total past work of any kind, or years in college, or without any distinction between SR-I wages at all. Then, when given a chance to clarify the meaning of directly related clerical job experience through the grievance process, PG & E and IBEW, with input from the various Committees as part of the Grievance process, agreed upon guidelines that required a very granular understanding of the past work, including whether it included "identifying and resolving customer inquiries on all phases of customer service," and using examples to assist in a comparison of past work to other relevant types of work. The criteria were not intended to be simple or easily apparent from the face of a resume. Given that the CBA terms, especially as interpreted by Grievance 21052, contemplated a factually specific evaluation of prior work experience, it should go without saying that an adequate
In sum, in the context of determining which employees has past experience that would qualify for a higher pay rate, where employees had unique information that would help the investigation, where the IBEW representative wrote at the time that the resumes were insufficient to determine their qualifications, where employees were prohibited from filing grievances that set forth their position, there are sufficient facts that IBEW breached its duty of fair representation by conducting an inadequate investigation to preclude summary judgment.
It is also undisputed that IBEW agreed to narrow the employees entitled to the wage increase by imposing additional criteria beyond that set forth in the CBA and PRC 21052 resolution. Indeed, IBEW's own motion asks for a determination that it did not breach its duty of fair representation by "[a]greeing with PG & E not to credit experience accrued more than 5 years before an SRI's date of hire as experience constituting DRCJE." (ECF No. 159, p. 3). It is undisputed that there is no such limitation in either the CBA or the Pre-Review Committee resolution letter as to Grievance 21052. On the contrary, the plain text of the CBA contemplates credit for directly related clerical job experience more than 5 years prior to the hire date when it states "Credit for work experience will not be given for jobs held prior to a five-year break in employment." (ECF No. 105, p. 140). This provision, which appears in the CBA itself in relation to the "hiring guidelines [that] apply to clerical employed under the Agreement" would be unnecessary if experience before 5 years was entirely excluded from consideration. Similarly, the PRC reiterated in its resolution letter that examples of directly related clerical job experience include "work experience, which did not precede a five-year break in employment." (ECF No. 169-6, p. 264). The Union's decision to agree to exclude all work before five years is thus directly contradictory to the contractual requirement to evaluate any relevant experience "which did not precede a five-year break in employment." In this way, IBEW agreed to an additional limitation that was not present in, and contradicts, the CBA itself.
The Court has not located any case addressing when a Union agrees to alter the terms of the CBA, not to mention outside the grievance process. Certainly the Court has not found any case blessing such conduct or deeming it compliant with a Union's duty of fair representation. In one case, the Ninth Circuit determined that a Union complied with its duty of fair representation in part because its actions complied with the CBA. See, e.g., Wellman v. Writers Guild of America, West, Inc., 146 F.3d 666, 671 (9th Cir. 1998) ("On the other hand, when a union is confronted with more subjective issues about which the collective bargaining agreement or union policies are silent, and which are sufficiently novel that no practices have developed to cope with them, we are more likely to find a union's judgment at work.... As a preliminary matter, we note that Wellman is not contending that the Board's actions deviated from the terms of the collective bargaining agreement or the policies adopted to implement it."). It follows that a Union may breach its duty of fair representation when it deviates from the terms of the collective bargaining agreement, especially after the Union had just participated in a Grievance process resulting in a decision regarding the interpretation of the contract that did not include such limitation.
Another factor relevant to whether a Union's investigation is adequate is whether the Union provided a rational basis for its decision. See e.g., Stevens v. Moore Business Forms, Inc., 18 F.3d 1443, 1448 (9th Cir. 1994) ("Here, the union provided a "rational basis" for its decision not to pursue the Appellants' grievance. This is not a question of the union's failure to perform a purely administrative or ministerial task, such as the timely filing of a meritorious grievance. Rather, this is a question of judgment, a "rational attempt[] on the part of a union to properly interpret a collective bargaining agreement or otherwise handle a grievance."); Peters v. Burlington Northern R. Co., 931 F.2d 534, 540-41 (9th Cir. 1990), as amended on denial of reh'g (Apr. 23, 1991) ("If a union provides an explanation for having ignored a particularly strong argument during a grievance procedure that is based on reasoning, we will not question whether the reasoning was faulty or not.").
Here, IBEW provided no reason whatsoever for the decisions it made regarding which employees were entitled to the wage increase. For each of the named Plaintiffs, IBEW points to a spreadsheet it used to track its review. (ECF Nos. 159-24; 159-25). The spreadsheet contains 898 rows and columns for "hire date, employee number, employee name, employee LAN ID, current employee status, work location, needs review, qualified for 18 month step, step, union position 3/30, resume, prev employer, job title, length of service, duties, notes." The spreadsheet very seldom states a reason why any particular SR-I was granted or denied a wage adjustment. It does not appear that this was the purpose of the spreadsheet. It was used primary as data tracking mechanism. Thus, there does not appear to be any document that IBEW could point to that would explain its reasoning at the time of the evaluation for denying a particular SR-I a wage adjustment. While IBEW sets forth various post-hoc reasons for certain persons in its motion for summary judgment, these may or may not be the reasons it decided to exclude the employees at the time of the evaluation. Indeed, IBEW was forced to re-evaluate its decision for each of the named Plaintiffs in the motion for summary judgment by looking to the resume and cross-referencing the spreadsheet to explain why a particular may have been denied a wage adjustment.
The Court has not seen any case holding that a Union complies with its duty of fair representation for failing to pursue, not to mention prohibiting, a grievance without providing any reason at all for its decision. Indeed, it suggests that there may not have been a rational basis for the decision. At the very least, there is a dispute of fact
While the Court is cognizant of the deference courts give to Union decisions, the facts of this case are an extreme departure from Union investigations upheld in the case law. The Court has not seen any case blessing this sort of conduct — with insufficient information to determine the relevant questions, without any input from employees, without any rationale given, without allowing any grievance process, and using criteria explicitly beyond the contract.
All of these facts taken together preclude Defendants' Motions for Summary Judgment as to Count Eight as it applies to the determination of which employees were entitled to the wage adjustment under the CBA as interpreted by the PRC decision.
For the same reason, Defendants' Motions for Summary Judgment to the extent that it argues that judicial review is precluded of a § 301 claim in Count One are denied as to the determination of which employees were entitled to the wage adjustment under the CBA as interpreted by the PRC decision. Employees may proceed with their breach of contract claims against PG & E to the extent they claim they were not paid according to the CBA, as further clarified by the Pre-Review Committee letter.
For the reasons set forth above, the Court grants in part and denies in part Defendant IBEW Local 1245's Motion for Summary Judgment (ECF No. 159) and Defendant PG & E's Motion for Summary Judgment (ECF No. 161) as to Counts One and Eight of the Third Amended Complaint as described in this order.
Within 14 days from this order, each party shall submit a supplemental memorandum, no longer than 10 pages per party, regarding which if any remaining part of the summary judgment motions they intend to pursue consistent with this order with an explanation regarding why summary judgment on the other causes of action is appropriate notwithstanding the rulings in this order.
IT IS SO ORDERED.
The Court is concerned by these allegations and they may rise to the level of invalidating the entire process. See Vaca, 386 U.S. at 185, 87 S.Ct. at 914; Dickeson, 827 F.2d at 629 (9th Cir. 1987) (providing that an employee may be excused from the exhaustion requirement where he can show that "that the procedure was otherwise infected"). In light of the Court's decision regarding the lack of finality of the employee review process, as discussed above, the Court need not determine if this withholding of information would independently render the process infected. Nonetheless, the Court notes that these allegations provide further basis for the Court's decision.
