The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING DEFENDANT UNITED FOOD & COMMERCIAL WORKERS 8 GOLDEN STATE'S MOTION FOR SUMMARY JUDGMENT (Documents 30-36)
I. DEFENDANT UNITED FOOD AND COMMERCIAL WORKERS 8'S MOTION FOR SUMMARY JUDGMENT
A. Relevant Procedural Background
On December 12, 2007, Plaintiff Alexander D. Labuga, Jr. filed this action against his employer, Darling International, Inc. ("Darling") and the union of which he was a member during the course of his employment. The complaint alleged four causes of action: (1) a breach of written contract; (2) a breach of duty of fair representation by United Food and Commercial Workers 8 ("UFCW 8" or "union") Golden State; (3) a violation of the Civil Rights Act of 1964; and (4) a violation of section 17200 of the California Business and Professions Code.
On January 24, 2008, UFCW 8 filed its answer to the complaint. (Doc. 7.) On January 30, 2008, Darling filed a motion to dismiss the third cause of action. (Doc. 10.) On June 23, 2008, United States District Court Judge Anthony W. Ishii ordered that Plaintiff's third cause of action be dismissed without prejudice. (Doc. 16.)
On August 13, 2008, UFCW 8 filed an amended answer to the complaint. (Doc. 22.) On August 18, 2008, Darling also filed an amended answer. (Doc. 24.)
Following consent to magistrate jurisdiction by all parties, this matter was referred to the Honorable Gary S. Austin, Magistrate Judge, on April 24, 2009, for all further proceedings. (Doc. 29.)
On June 10, 2009, UFCW 8 filed its Motion for Summary Judgment. (Doc. 32.) On June 29, 2009, Darling filed its Request for Joinder in Defendant UFCW 8's Motion for Summary Judgment. (Doc. 37.) On July 13, 2009, Plaintiff filed his Opposition to Defendants' Joint Motion for Summary Judgment. (Doc. 40.) On July 23, 2009, Defendants filed responses to Plaintiff's opposition. (Docs. 43-46.)
On July 24, 2009, this Court took the July 31, 2009, hearing off calendar and took the matter under submission. (Doc. 47.) See Local Rule 78-230(h).
B. Stipulation Concerning Fourth Cause Of Action
On July 16, 2009, this Court signed a Stipulation and Order for Dismissal of the Fourth Cause of Action. (Doc. 42.) In light of the stipulation, filed subsequent to the motion, the Court will not consider the parties' arguments with regard to California Business and Professions Code section 17200, et seq.
C. Defendant Darling's Request Re Joinder
As noted above, Darling filed a request to join in UFCW 8's Motion for Summary Judgment on June 29, 2009. (Doc. 37.) Because resolution of Plaintiff's claims against UFCW 8 are dispositive of Plaintiff's claims against Darling, Darling's request to join is granted.
D. Supplemental Authorities
On November 4, 2009, counsel for Defendant UFCW 8 sent a letter to this Court seeking to call the Court's attention to an opinion of the Honorable Oliver W. Wanger, District Judge, in case number CV-F-09-1756 OWW DLB, Smith v. Pacific Bell Telephone Company, Inc.
On November 13, 2009, counsel for Plaintiff directed email correspondence to Carrie Esteves, Courtroom Deputy to Judge Austin, wherein counsel objected to the November 4 correspondence and indicated Defendant's November 4, 2009, letter constitutes an attempt to file a sur-reply in the absence of leave of court.
Assuming Defendant's November 4, 2009, letter can be construed as a sur-reply, Rule 230 of the Local Rules of the United States District Court for the Eastern District of California do not permit such a filing.
E. Summary of Undisputed Facts*fn1
1. Plaintiff was hired by Darling in January 1991.
2. UFCW 8 had no role in Plaintiff's hire by Darling.
3. Thereafter, Plaintiff became a member of the union.
4. A written collective bargaining agreement ("CBA") existed between the union and Darling.
5. Plaintiff was suspended on May 30, 2007, having returned from a one-hour lunch break after a total of three hours and twenty-one minutes.
6. Plaintiff claimed he was late due to a flat tire.
7. Before leaving on May 30, 2007, Plaintiff called union representative Carlos Valenzuela for the purpose of filing a grievance.
8. On June 1, 2007, a grievance meeting was held in Darling General Manager Jim Rother's office at the request of Valenzuela. Plaintiff was present. Roth provided Plaintiff with a letter dated June 1, 2007, wherein Plaintiff's employment was terminated.
9. Plaintiff admits the factual assertions contained in the June 1, 2007, letter of termination are factually accurate, i.e., Plaintiff was more than two hours late returning from a lunch break, he had received several previous warnings regarding absenteeism and work behavior.
10. The union requested a Board of Adjustment meeting under the terms of the CBA. Present were Roth, and Darling employees Tim Pilcher, Dave Mullinex and Richard Bundy. Also present were Mike Fursman on behalf of the union, Valenzuela and Plaintiff.
11. Roth presented Darling's case at the Board of Adjustment meeting, relying upon a document entitled "Talking Points" and referring to supporting exhibits in support of Darling's position that it had just cause for Plaintiff's termination.
12. Plaintiff recalled Roth's presentation and Roth's reference to various documents.
13. Roth advised the Board of Adjustment that an investigation of Plaintiff's vehicle's tires upon his return failed to support Plaintiff's claim that he changed a tire on the vehicle.
14. Plaintiff's vehicle was inspected by Darling's assistant plant managers Bundy and Dave Bizzanelli; neither found evidence of a tire change.
15. Plaintiff told the Board that he had a flat tire but that he could not telephone Darling because his cell phone was charging back at the plant.
16. Plaintiff is not aware of any person who witnessed him alongside the road with a flat tire on the vehicle.*fn2
17. Plaintiff contends it took him the entire two hour and twenty minute period, over his one hour lunch break, to change the vehicle's flat tire with a miniature spare from the vehicle's trunk.
18. Plaintiff claims the tire was repaired, however, he did not have a receipt as evidence of the repair.
19. Plaintiff acknowledges that he had an opportunity to respond to questions asked of him at the Board of Adjustment hearing.
20. Plaintiff did not have any witnesses he wished the union to call to testify at the meeting, yet also claimed he would have called his girlfriend as a witness because she was present when the tire was repaired. However, Plaintiff did not tell the union representative about her and the union did not know she was a potential witness.
21. Plaintiff agreed there was nothing the union could have investigated with regard to ...