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Gallardo v. AT&T Mobility, LLC

United States District Court, N.D. California

March 29, 2013

AT& T MOBILITY, LLC, Defendant

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For George Gallardo, Denise Roman, Hector Rodriguez, Jennifer De Witt, Carlos Cruz, Kyle Binns, Carlos Barragan, Plaintiffs: David Albert Rosenfeld, Weinberg Roger & Rosenfeld, A Professional Corporation, Alameda, CA; Miles Eric Locker, Dept. of Industrial Relations, Div. of Labor Standards Enforcement, San Francisco, CA; Roberta D. Perkins, Weinberg, Roger & Rosenfeld, Alameda, CA.

For AT& T Mobility LLC, Defendant: Matthew C. Kane, Michael David Mandel, Sylvia Jihae Kim, McGuire Woods LLP, Los Angeles, CA.


CLAUDIA WILKEN, United States District Judge.

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Defendant AT& T Mobility, LLC has filed a motion to dismiss this action and to strike allegations that the complaint is brought on behalf of other unnamed individuals because Plaintiffs have not satisfied the requirements of Federal Rule of Civil Procedure 23. Plaintiffs have filed an opposition. The motion was decided on the papers. Having considered all of the parties' papers, the Court DENIES Defendant's motion to dismiss or strike.


The facts set forth herein are those alleged in Plaintiffs' complaint and in the documents of which Defendant has requested judicial notice, without objection from Plaintiffs.

Plaintiffs and the workers they seek to represent are current and former Retail Sales Consultants (RSCs) for Defendant who work or have worked in one or more of the AT& T Mobility retail stores throughout California. Complaint ¶ ¶ 1-8. This dispute arises out of Defendant's decision to remove seats from the sales floors of its retail stores in California. Defendant began removing the seats as part of its efforts to remodel all of its stores to create uniformity following the merger of Cingular Wireless and AT& T Wireless. Id. at ¶ 16. Plaintiffs allege that by, 2007, seating had been removed from the sales floor of all of Defendant's stores. Id. at ¶ 17.

Plaintiffs are members of the bargaining unit of the Communications Workers of America, Local 9505, District 9 (the Union). On January 30, 2007, the Union filed a grievance against Defendant under the Collective Bargaining Agreement (CBA) that governed the terms and conditions of Plaintiffs' employment with Defendant. Def. Request for Judicial Notice, Ex. C. The grievance form challenged Defendant's decision to remove seats from the sales floors of its stores and not to provide stools for CSRs to sit or lean on while providing service from behind a counter. The Union sought an order that " all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Id. The parties submitted the grievance to binding arbitration pursuant to the CBA's dispute resolution provision.

On March 31, 2010, the arbitrator entered an opinion and award. Defendant's Request for Judicial Notice, Ex. D. The parties agreed that the arbitrator had the authority to determine the scope of the issues to be decided in the arbitration. Id. at 1. The arbitrator determined that the following four issues were before him:

(1) Did the grievance language and its subsequent handling provide sufficient notice to the Company of the " failure to bargain" issue so as to make the merits of that issue arbitrable? If so,
(2) Did the company fail to bargain with the Union over its decision to remove the chairs from the old Cingular stores and not replace them with stools, and, if so, what is the appropriate remedy?
(3) Does Article 16, Section 3 preclude arbitration of the grievance claiming that the failure to provide adequate seating for customer service representatives violates the CBA and/or California law? If not,

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(4) Is the Company violating the collective bargaining agreement and/or applicable California law by not providing seating to its customer service representatives, and, if so, what is the appropriate remedy?

Id. at 2. The arbitrator concluded that (1) the grievance language provided sufficient notice to Defendant of the " failure to bargain" issue; (2) Defendant failed to bargain in violation of the CBA; (3) contrary to the Defendant's argument otherwise, whether the removal of seating violated the CBA and/or California law was arbitrable; and (4) the removal of seating did not violate the terms of the CBA or Industrial Welfare Commission (IWC) Wage Order 4-2001, Section 14 (Section 14). Id. at 8-11. The arbitrator declined to require Defendant to provide seating as a remedy for its failure to bargain, and instead directed the parties to discuss an appropriate form and measure of compensation. Id. at 13.

On August 19, 2011, Plaintiffs filed a complaint in Alameda County Superior Court, alleging that Defendant violated California Labor Code section 1198 by failing to provide seating, in violation of Wage Order 7-2001, Section 14. Plaintiffs seek penalties on behalf of themselves and other former and current RSCs pursuant to the California Labor Code Private Attorneys General Act of 2004 (PAGA), California Labor Code sections 2698 et seq., and prospective injunctive relief under California's Unfair Competition Law (UCL), California Business and Professions Code sections 17200 et seq.

Defendant removed the complaint to this Court on September 23, 2011, and the Court granted a series of stipulated stays while the parties attempted to settle this action. Defendant now moves to dismiss or strike, arguing that (1) Plaintiffs' claims are barred under the doctrine of res judicata based on the arbitrator's decision; (2) Plaintiffs' claims fail as a matter of law because they cannot establish a violation of Section 14; (3) Plaintiffs' representative PAGA claim fails because it does not comply with Federal Rule of Civil Procedure 23; (4) any award of penalties pursuant to PAGA would be unjust, arbitrary, oppressive, and confiscatory as a matter of law; (5) Plaintiffs' UCL claim fails as a matter of law; (6) Plaintiffs' UCL claim is time-barred; and (7) the representative allegations of the UCL claim must be dismissed or stricken because they fail to comply with Rule 23.


I. Motion to Dismiss for Failure to State a ...

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