Smith v. Pacific Bell Telephone Co., Inc.
| Decision Date | 12 August 2009 |
| Docket Number | No. CV-F-06-1756 OWW/DLB.,CV-F-06-1756 OWW/DLB. |
| Citation | 662 F.Supp.2d 1199 |
| Parties | Blake SMITH, Plaintiff, v. PACIFIC BELL TELEPHONE COMPANY, INC., et al., Defendant. |
| Court | U.S. District Court — Eastern District of California |
Justin Thomas Allen, Law Offices of Justin Thomas Allen, Esq., Turlock, CA, for Plaintiff.
J. Al Latham, Jr., Paul, Hastings, Janofsky & Walker LLP, Los Angeles, CA.
Barry J. Bennett, Thomas Michael Sharpe, Bennett and Sharpe, Fresno, CA, David A. Rosenfeld, Caren Pamela Sencer, Weinberg Roger and Rosenfeld, Alameda, CA, Craig C. Hunter, Steven Jay Joffe, Wilson Elser Moskowitz Edelman and Dicker, Los Angeles, CA, for Defendant.
Plaintiff brings this action pursuant to § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, claiming that his employer, defendant Pacific Bell, Inc. ("Pacific Bell"), terminated him in violation of the collective bargaining agreement between Pacific Bell and Plaintiff's union, defendants District 9 and Local 9333 of the Communications Workers of America, AFL-CIO ("CWA" or "Union"). Plaintiff also alleges that the Union breached its duty of fair representation by conducting a perfunctory investigation and refusing to take his grievance to arbitration. Plaintiff also brings supplemental state law claims for fraud and defamation.
On December 6, 2006, Plaintiff filed a Complaint for Wrongful Termination against Defendants Pacific Bell; AT & T Communications of California, Inc.;1 SBC Telecom, Inc.; Shane Spencer; Alan Brown; Communications Workers of America Local 9333 Union AFL-CIO ("Local 9333" or "Local Union"); and Communications Workers of America District 9 Union AFL-CIO ("District 9").2 The Third Cause of Action alleges breach of the Collective Bargaining Agreement against all Defendants; the Fourth Cause of Action alleges fraud against the Union Defendants; the Fifth Cause of Action alleges breach of the duty of fair representation against Local 9333 and District 9; and the Sixth Cause of Action alleges defamation by slander against all Defendants.3
Before the court for decision are motions for summary judgment filed by Defendants Local 9333 and District 9.4
In October 2005, Plaintiff worked as a cable locator for Pacific Bell, a regional telephone company providing telephone and data transmission services to retail consumers over its telecommunications infrastructure and facilities. Pacific Bell and the Union are parties to a collective bargaining agreement ("CBA") which states that employees can only be terminated for "good cause." The CBA also contains a mandatory grievance clause and provides for final and binding arbitration. Plaintiff was a member of the Union, who was the exclusive bargaining agent for a bargaining unit of Pacific Bell employees that included Plaintiff.
Under the CBA, the Union may file a grievance based on any alleged violation of the CBA. (Dec. of D. Flores ¶ 4.) A grievance may be addressed at three stages ("Step 1 through Step 3"), with each step involving a more senior company and union official.6 (Id.) If the grievance is not resolved at Step 3, the Union may appeal the Company's decision to a neutral arbitrator. (Id.) The decision whether to take an unresolved grievance to arbitration is made at the district level. (Id. ¶ 6.) After the matter has been moved to the district level, the local union does not have any continuing obligation regarding the investigation, handling or processing of the grievance. (Id. ¶ 7.)
Pacific Bell vehicles are generally equipped with a Vehicle Tracking Unit ("VTS"), which directly links to Global Positioning Satellites ("GPS"). (Larson Dec. ¶ 3.) Pacific Bell began installing vehicle tracking devices in its service vehicles in 1998. (Id.) Pacific Bell equipped Plaintiff's work vehicle with GPS several years prior to the events at issue in this case. (Id.) It is undisputed that Plaintiff knew his vehicle contained a GPS monitoring device on October 17, 2005. (SUF 20, 23.)
Pacific Bell's use of GPS data for disciplinary purposes is authorized under the CBA. (Dec. of G. Flores ¶ 3.) In 2004, the Union expressed concerns about Pacific Bell's use of GPS data for employee discipline. (Id. at ¶ 8-9.) The Union proposed that GPS data not be used at all. (Id.) Pacific Bell rejected this and proposed that the parameters be spelled out in an enforceable side-letter agreement. (Id.) On July 12, 2004, Pacific Bell and the Union entered into "a side letter agreement:"
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.)
Pacific Bell uses GPS reports for a variety of reasons, such as ensuring that employees are working at assigned locations at particular times or to ensure that vehicles are being operated safely within the speed limits. (Dec. of G. Flores ¶ 8.) The reports generated by the GPS system report the following data: (a) the time and location of the vehicle every time the ignition is turned on and off; (b) the time and location of the vehicle every seven minutes; (c) the time and location of the vehicle every one mile driven; and (d) the time and location of the vehicle the first time it reaches 20 mph after the ignition is initially turned on. (Larson Dec. ¶ 4.)
According to Steve Larson, Manager of Vehicle Tracking Services since March 2001, GPS units attached to Plaintiff's vehicle on October 17, 2005 are extremely accurate. (Larson Dec. ¶ 1, 5.) Although there are times that the system has experienced problems, those instances are rare. (Larson Dec. ¶ 5.) If the GPS unit is not functioning properly, the report will indicate a problem. (Id.) According to Larson, the GPS records from Plaintiff's vehicle on October 17, 2005 did not report any malfunction or error. (Larson Dec. ¶ 4, 10.) Larson also stated that there was no record of any service request concerning Plaintiff's GPS unit in October 2005. (Larson Dec. ¶ 10.)
A. Theft of Plaintiff's Work Vehicle
1. Undisputed Facts
On October 17, 2005, Plaintiff's company vehicle was stolen while he was locating cable in Keyes, California. (SUF 1.) At around 1:00 p.m., Plaintiff maintains he parked his vehicle, removed the keys from the ignition, locked the van, and proceeded to the rear of the van to remove his locating wand. (SUF 2; Dec. of A. Brown ¶¶ 8-9.) Plaintiff then began walking to the worksite, away from his company vehicle. (Id.) Pacific Bell had a rule requiring that company vehicles be locked. Plaintiff was aware of this company rule. (SUF 3.) Plaintiff's van was also equipped with GPS equipment. (SUF 4.)
According to Plaintiff, sometime after 1:00 p.m., he was locating cable approximately 150 feet away when he saw a bicyclist approach his vehicle. (SUF 5.) Plaintiff noticed the bicyclist pick something up off of the ground and enter the cabin of his vehicle. (Id.) The bicyclist then proceeded to drive off in the vehicle. (Id.) Plaintiff immediately moved toward the van and dialed 911.7 (SUF 6-7.) After concluding this short pursuit and the 911 call, Plaintiff phoned his supervisor, Alan Brown.8 (SUF 7.)
Plaintiff's stolen vehicle was located approximately 20-30 minutes later.9 (SUF 8-9.) A CHP officer, who had arrived at the theft location (Nunes and Washington Streets), drove Plaintiff to the location of his recovered work vehicle (Nora Avenue and Ninth Street). (SUF 9.) Local Shop steward John Mastrangelo ("Mastrangelo") and Brown were at the location of the recovered vehicle when Plaintiff and the officer arrived.10 (SUF 10.) Upon inspection, the keys were in the ignition, but the vehicle was not running. (SUF No. 12.) The vehicle was missing the company laptop, miscellaneous tools, and change from the ashtray. (SUF No. 11.)
On October 18, 2005, Plaintiff attended an investigatory meeting concerning the theft of his work vehicle.11 (SUF 13.) Plaintiff, Mastrangelo, Brown, and another Pacific Bell representative attended the meeting. (SUF 13.) Brown told Plaintiff that GPS data from the van showed that it had been idling at the time of the theft. (SUF 15.) Plaintiff was given an opportunity to explain his side of the story. (SUF 14.) Plaintiff denied leaving the keys in the vehicle while it was running and stated that the keys must have fallen off his keychain when he was locking the vehicle's rear doors. (Dec. of A. Brown ¶ 9.) Although Plaintiff knew the company used GPS systems to verify technician whereabouts, he did not know it could tell if a vehicle was idling. (SUF 20, 23.) Plaintiff questioned the accuracy of the GPS data. (SUF 16-17.) At the conclusion of the meeting, Plaintiff was suspended pending further investigation. (SUF 18.)
Following the October 18, 2005 meeting, Plaintiff spoke with Mastrangelo and Lynn Johnson, president of Local 9333. (SUF 24.) When Plaintiff did not hear from Johnson within three days of the October 18th meeting, he faxed her a letter saying he was seeking legal counsel. (SUF 25.) A representative from District 9 contacted Plaintiff and told him that they were working on the status of his investigation and Johnson would call him. (SUF 26.) Thereafter, Johnson called Plaintiff but could not give him any information on the status of the investigation. (SUF 27.) Plaintiff holds the belief that Johnson "left him in the...
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