Smith v. Pacific Bell Telephone Co. (662 F. Supp. 2d 1199, 2009)

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)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION.

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 Plaintiffs 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.; 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”). 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.

Before the court for decision are motions for summary judgment filed by Defendants Local 9333 and District 9.

II. FACTUAL BACKGROUND.

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. (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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs GPS unit in October 2005. (Larson Dec. ¶ 10.)

A. Theft of Plaintiff’s Work Vehicle

1. Undisputed Facts

On October 17, 2005, Plaintiffs 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 8.) Plaintiffs 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. (SUF 6-7.) After concluding this short pursuit and the 911 call, Plaintiff phoned his supervisor, Alan Brown. (SUF 7.)

Plaintiffs stolen vehicle was located approximately 20-30 minutes later. (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. (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. (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 dark” about the investigation. (SUF 28.) However, Plaintiff did speak with Mastrangelo every other day during his suspension. (SUF 30.)

On November 1, 2005, during his suspension, Plaintiff was asked to meet with an investigator from the Pacific Bell’s Asset Protection Division. (SUF 31.) During this meeting, the Asset Protection investigator presented Plaintiff with GPS reports evidencing that the van was idling at the time the vehicle was stolen. (SUF 35. ) Plaintiff responded that he never left the vehicle unattended and could not explain why the GPS report said otherwise. (SUF 34.) At the conclusion of the meeting, the Asset Protection investigator drafted a statement summarizing the meeting, which Plaintiff was allowed to correct and edit before signing. (SUF 36. )

On November 18, 2005, Brown, Spencer, Ellen Singleton (Labor Relations), and Roger Odom (Human Resources), met to discuss the investigation, Asset Protection’s findings, and Plaintiffs disposition. (Dec. of A. Brown ¶ 16.) Brown and Spencer also provided the group with Plaintiffs previous disciplinary record-including the 2004 suspension for violating Pacific Bell’s Code of Business Conduct. (Dec. of S. Spencer ¶ 8-9.) Brown and Spencer determined that the evidence demonstrated that Plaintiffs vehicle was idling when it was stolen, which meant the keys were in the ignition and that Plaintiffs report of the facts was false. (Dec. of Brown ¶ 16.) Spencer and Brown decided to terminate Plaintiff for not safeguarding company property and misrepresenting facts during the investigation, i.e., that Plaintiff lied. (Id.)

On November 22, 2005, Plaintiff attended a meeting with Mastrangelo, Johnson, Brown, Spencer, union representative Virginia Santos, and cable repair manager Warren Anderson. (SUF 38-39.) Brown conducted the meeting and informed Plaintiff that he was terminated. (SUF 39.) Brown stated that the investigation determined that Plaintiff violated the Company’s Code of Business Conduct by failing to safeguard company property and that he misrepresented facts during the investigation. (SUF 40.) Brown asked Plaintiff if he had any questions regarding his dismissal. (Dec. of Brown ¶ 17.) Plaintiff responded in the negative. (Id.) Plaintiff was then given his final paycheck and the meeting concluded. (Id.)

Following Plaintiffs discharge, the Union filed a grievance on his behalf. The union asserted that the sole reason for Plaintiffs dismissal was the GPS report, which was in direct violation of the CBA and agreement governing Pacific Bell’s use of GPS records. (Exh. H, Dec. of L. Johnson; Exh. C, Dec. of D. Flores.) Pacific Bell denied that GPS was the sole reason for his dismissal and maintained that Plaintiffs explanation regarding the theft was not plausible. (Id.) Plaintiff had three prior disciplinary incidents, the most serious of which resulted in the warning that he could be terminated if another incident occurred. The union requested that Plaintiff be reinstated to his position at Pacific Bell and made whole in all other respects. (SUF No. 46; Exh. D, Dec. of D. Flores.)

A Step 1 grievance meeting was held on December 7, 2005. (Dec. of Brown ¶ 16.) Brown, representing Pacific Bell, and Johnson, representing Local 9333, attended the Step 1 meeting, at which time Johnson demanded that Plaintiff be reinstated. (Id.) Brown refused the Johnson’s request to reinstate Plaintiff and denied the grievance. (Id.) Brown also confirmed that Johnson received all of the documentation she requested, including copies of the asset protection report, interview notes, the GPS report, and the Stanislaus County Sheriffs report. (Doc. 50-4, Exh. F, pp. 18.)

A Step 2 grievance meeting was held on January 5, 2006. (Dec. of S. Spencer ¶ 17.) Larry Gordon, Juan Saralegui, John Mastrangelo, and Lynn Johnson attended on behalf of the Union. (Id.) Spencer and Tony Kobliska attended on behalf of Pacific Bell. (Id.) According to the minutes of the meeting, the group reviewed Plaintiffs grievance and Local 9333 representatives again requested that Plaintiff be reinstated to his full-time position. (Doc. 53, Exh. E, pp. 35.). Lynn Johnson asked why Plaintiff was terminated instead of suspended for 30/60 days. Kobliska stated that Plaintiff “was terminated because of his inherent risk to the business.” (Id.) Pacific Bell refused to reinstate Plaintiff and denied the grievance. (Id.)

A Step 3 grievance meeting was held on February 16, 2006. (Dec. of D. Flores ¶ 11.) Larry Gordon and Lynn Johnson attended on behalf of the Union. (Id.) Murchison, Kobliska, and John Berringer attended on behalf of Pacific Bell. (Id.) Local 9333 again asserted that Plaintiff was dismissed solely because of the GPS report, contrary to the side-letter agreement. (Id.) Although Pacific Bell admitted that it “used GPS heavily on this,” it asserted that his termination was “based on the vehicle being stolen.” (Id.) Pacific Bell maintained that Plaintiffs explanation regarding the theft was not plausible, i.e., that Plaintiff lied. (Id.) Pacific Bell refused Local 9333’s request to reinstate Plaintiff and denied the grievance. (Id.)

On March 9, 2006, District 9 notified the company of its intent to arbitrate Plaintiffs grievance under Sections 7.10C, 7.10D, 7.11D, and 7.15 of the CBA. (Id. ¶ 12.) District 9 maintained that the termination was not justified and requested that Plaintiff be reinstated, that the company remove all the documentation concerning the incident, and that Plaintiff be made whole in every respect. (Id.)

Plaintiffs arbitration was set for September 27, 2006. (SUF 49.) An arbitrator was selected and the parties prepared for arbitration pursuant to the “Expedited Arbitration Procedures,” which specified that rules of evidence would not be followed and a court reporter would not be used. (Dec. of D. Flores ¶ 14.) Prior to the arbitration, the Union and Pacific Bell exchanged Plaintiffs personnel records, as well as numerous operating manuals, GPS-related documents, and information about other employees disciplined after reviewing GPS records. (Id. ¶ 13; Dee. of R. Hjort ¶ 3.)

In May 2006, Plaintiff met with Lynn Johnson for a couple of hours to review the incident, facts, and evidence against him. (SUF 48.) Also in May, he met with David Rosenfeld, attorney for District 9, at his offices in Alameda, California to prepare for his September 27, 2006 arbitration. (SUF 50.) Plaintiff was told to collect more evidence, specifically, to obtain a copy of his call to 911 on October 17, 2005. (SUF 51.) A few days later Plaintiff notified the Union that he could not obtain a copy of the 911 tape because of the extended lapse in time. (SUF 53.)

A week prior to the arbitration, Johnson and Rosenfeld called Plaintiff to discuss his grievance. (SUF 54.) Johnson and Rosenfeld told Plaintiff that District 9 would not take his grievance to arbitration because, in Rosenfeld’s opinion, District 9 did not have enough evidence to win. (SUF 54.) Rosenfeld requested that Plaintiff meet with him to discuss the reasons District 9 withdrew his grievance. (SUF 56.) Consistent with his pattern of non-participation in the grievance process, Plaintiff declined to meet with Rosenfeld. (SUF 57.)

On September 25, 2006, District 9 formally withdrew Plaintiffs grievance. In a letter to Pacific Bell’s arbitration counsel, Rosenfeld stated that District 9 decided not to pursue the grievance any further because “after reviewing the evidence, we determined that we could not prevail.” (Dec. of R. Hjort ¶ 5.)

III. PROCEDURAL BACKGROUND.

On December 6, 2006, Plaintiff filed a complaint for wrongful termination against Pacific Bell, AT & T, SBC Telecom, Inc., Spencer, Brown, Local 9333, and District 9. (Doc. 2.) Count III alleges that Pacific Bell breached the CBA by terminating Plaintiffs employment without good cause. Also under Count III, Plaintiff alleges that the union breached the CBA by failing to protect his employment following his suspension and discharge.

Count IV alleges that the union defendants committed fraud when they deceived Plaintiff into making monthly payments with full knowledge that they would not fulfill their promise to protect his interests. Count V alleges that the union defendants breached their duty of fair representation by performing a perfunctory investigation and arbitrarily failing to pursue his claim to arbitration. Count VI recites state law claims for libel and blacklisting, arising out of the defendants allegedly telling third parties that Plaintiff was discharged for lying. Plaintiff alleges that these false statements have made it impossible for him to acquire employment in Stanislaus County.

Defendants Local 9333 and District 9 filed their motions for summary judgment on December 28, 2007. (Docs. 38, 43.) With their motions, Defendants filed Statements of Undisputed Facts, supported entirely by Plaintiffs own deposition testimony. (Docs. 40 & 45.) Defendants seek judgment on the grounds that Plaintiff cannot: 1) establish his breach of contract claim outside of § 301 of the LMRA; and 2) produce evidence to create a genuine issue of material fact that the union’s conduct was arbitrary, discriminatory or in bad faith — the necessary showing to establish a breach of the duty of fair representation. Defendant argues the state law claims should be dismissed because the unions: 3) acted lawfully; and 4) Plaintiff lacks evidence to support his claims.

Defendants’ motions for summary judgment were noticed for hearing on January 28, 2007. By Stipulation and Order filed on January 22, 2008, (Doc. 59), the hearing on the motions for summary judgment was continued to March 17, 2008.

Plaintiff filed his oppositions to Defendants’ summary judgment motions on February 29, 2009. (Docs. 69, 70.) In support of his opposition, Plaintiff submitted: (1) a single Memorandum opposing all the motions (“Memorandum”); (2) the affidavit of John Mastrangelo; (3) the affidavit of Michael Caloyannides, PhD; and (4) a single Statement of Disputed Facts (“PSDF”). (Docs. 72-74.) Plaintiff did not file an opposition to Defendants’ statements of undisputed facts.

Plaintiff opposes summary judgment on grounds that the union performed a perfunctory investigation and arbitrarily failed to take his claim to arbitration.

On March 10, 2008, Defendants filed a reply and evidentiary objections. (Docs. 77 & 86.) Defendants objected to the affidavits of John Mastrangelo and Michael Caloyannides, PhD., (Docs. 78, 79, 82.), and Plaintiffs Statement of Disputed Facts. (Docs. 80, 89.)

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 were continued due to the press of court business. (Docs. 76, 97, 98, 100.) 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 judgment, (Doc. 104). 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 documents filed by Plaintiff on August 11th and 12th. (Doc. 109.) District 9 filed their motion to strike the same documents on August 20th, 2008. (Doc. 112.) The hearing on the motions to strike was set for August 25, 2008, the same day as the summary judgment hearing.

By Minute Orders filed on August 20, 2008, August 28, 2008, and September 2, 2008, the hearing on the motions for summary judgment and motions to strike were continued. (Docs. 118, 120, 121.) The September 2, 2008 Minute Order continued the hearing from September 15, 2008 and to September 29, 2008.

The parties appeared before the court on September 29, 2008, for argument on Defendants’ motions for summary judgment and motions to strike. During the September 29, 2008 hearing, the Court stated to Plaintiffs counsel “if you can find me a case, I’ll let you do it, that says that the making a[sic] negligent or an incompíete investigation that breaches the duty of fair representation.” On October 2, 2008, Plaintiff filed a “Submission of Supplemental Authority After Oral Argument Re: Motion for Summary Judgment”. (Doc. 130.)

On October 7, 2008, Pacific Bell, Spencer, and Brown moved to strike Plaintiffs Supplemental Authority on the ground that it was not authorized to be filed by the Court and constituted a re-briefing of arguments and authority already presented to the Court. (Doc. 133.) District 9 joined the motion on October 10, 2008. (Doc. 134.) The Court denied Defendants’ motion on October 27, 2009 and granted Defendants an opportunity to file responsive papers to the supplemental authority. (Doc. 135.)

On November 10, 2008, District 9 and Local 9333 filed responses to Plaintiffs “Submission of Supplemental Authority After Oral Argument Re: Motion for Summary Judgment.” (Docs. 138 & 140.)

A. Motions to Strike (Docs. 109, lllp.)

These motions for summary judgment were filed by Defendants on December 28, 2007 and noticed for hearing on January 28, 2007. By Stipulation and Order filed on January 22, 2008, (Doc. 59), the hearing on the motions for summary judgment was continued to March 17, 2008. 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 raise the need for additional time in Plaintiffs Opposition to the Summary Judgment Motions.

Plaintiffs oppositions to these motions were filed on February 29, 2008. Although Plaintiff filed his Statement of Undisputed Facts in opposition to the motions for summary judgment, Plaintiff did not comply with the requirements of Rule 56-260(b), Local Rules of Practice:

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 judgment. (Doc. 104.) Also on August 11, 2008, Plaintiff filed a “Supplemental Statement of Disputed Facts,” (Doc. 105), which purports to add Plaintiffs disputed facts Nos. 300 to 463. Plaintiff did not seek or obtain leave of Court to file these papers, which sought to correct the deficiencies and noncompliance with the rule of court in his earlier submissions.

Defendants move to strike Plaintiffs August 12, 2008 filings on the grounds that they were filed six months after Plaintiff was required to file them. (Docs. 109, 112.) Defendants note that, although the Court continued the hearing dates for the motions for summary judgment, the Court did not continue the filing deadlines and, in fact, all briefing on the motions for summary judgment was complete as of March 10, 2008. Defendants further note that Rule 78-230, Local Rules of Practice, does not provide for the filing of sur-reply papers.

Plaintiff argues that Rule 78-230(c) allows the filing of the papers filed on August 11 and 12, 2008:

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.

Plaintiff asserts that, because the hearing date for the motions for summary judgment was continued by the Court several times, his supplemental opposition papers are timely and no leave of Court to file them was necessary. This is categorically wrong. The law and motion rules do not provide for a game of ping-pong. The moving party has a right to file a motion a reply to the non-moving party’s response. The opposing party is permitted a response, not a sur-rebuttal.

By Declaration filed on August 22, 2008, Plaintiffs 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 plaintiffs counsel which in turn was filed by the court [sic]. The date that the affidavit was provided was mere days before it was filed.

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.

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.

6. It has been pointed out that an affidavit 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.

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.

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.

9. I sincerely apologize for the late filing of this affidavit.

Plaintiffs reading of Rule 78-230(c) misses the mark. Plaintiffs opposition to the motions for summary judgment was filed on February 29, 2008. Defendants’ replies were filed on March 10, 2008, the date on which the Court first continued the hearing date on the motions for summary judgment due to the press of Court business. All briefing in connection with the motions for summary judgment was complete as of March 10, 2008. By the Stipulation and Order filed on January 22, 2008, Plaintiff agreed to file his oppositions to the motions for summary judgment by February 29, 2008. Plaintiffs construction of Rule 78-230(c) is further belied by the fact that Plaintiff did not file his supplemental opposition papers fourteen days prior to the April 28, 2008 hearing date, the June 16, 2008 hearing date, or the August 11, 2008 hearing dates set by the Court’s Minute Orders. All of these hearing dates were continued by the Court after that two week period elapsed.

Plaintiff asserts that, if the Court does not construe Rule 78-230(c) as Plaintiff does, Plaintiff requests “tardy leave of court to cure our inadvertent error” and that Plaintiff “sincerely believed that we were in compliance with the rules.”

Plaintiffs protestations are not reasonable given the sequence of events described above. It is apparent that Plaintiffs untimely filings were not the result of a misreading of the Local Rule, but rather an attempt to correct his previous failure to comply with Rule 56-260(b), and to get a second bite of the apple in opposing the motions for summary judgment.

District 9 and Local 9333’s motions to strike the late filings are GRANTED.

IV. LEGAL STANDARD.

Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

Where the movant will have the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (noting that a party moving for summary judgment on claim as to which it will have the burden at trial “must establish beyond controversy every essential element” of the claim) (internal quotation marks omitted). With respect to an issue as to which the non-moving party will have the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the non-moving party’s case.” Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Id.

To defeat a motion for summary judgment, the non-moving party must show there exists a genuine dispute (or issue) of material fact. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “[Sjummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the district court does not make credibility determinations; rather, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505.

V. DISCUSSION.

A. Plaintiffs Evidence

1. Affidavit of John Mastrangelo

In opposition to Defendants’ motions for summary judgment, Plaintiff presented an affidavit from Mastrangelo as rebuttal evidence. Defendants District 9 and Local 9333 object to large portions of Mastrangelo’s affidavit on various grounds. Specifically, Defendants raise the following objections:

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.

Defendants District 9 and Local 9333 object to the first paragraph of Mastrangelo’s affidavit on relevance grounds. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed R. Evid. 401. Rule 402 provides that “[all] relevant evidence is admissible [¶]... ] Evidence which is not relevant is not admissible.” Although definition of “relevant evidence” is broad, it has limits; evidence must be probative of a fact of consequence in the matter and must have tendency to make existence of that fact more or less probable than it would have been without evidence. U.S. v. Curtin, 489 F.3d 935, 943-44 (9th Cir.2007).

The circumstances underlying Mastrangelo’s retirement and his difficulties as a steward have no connection to Plaintiffs claims against the Union Defendants. Mastrangelo’s prior budgetary concerns are irrelevant to the investigation and grievance procedures at issue in this litigation. There is no evidence the union’s investigation of plaintiffs case was compromised by any budget issues. The first paragraph of Mastrangelo’s affidavit has nothing to do with the issues of this case, nor is it probative of any material issue, except to show his bias against the union. Defendants’ objections are sustained.

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.

The above portion of Mastrangelo’s affidavit is irrelevant to Plaintiffs claims. Plaintiffs status as a “fill in” technician and the details behind his advancement to a full-time position are not connected to his claims of fraud, defamation, or breach of the duty of fair representation. 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.

Defendants District 9 and Local 9333 object to the above portion of Mastrangelo’s affidavit on grounds it contains conjecture and was not made on the basis of his personal knowledge. Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits supporting and opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein.”

Mastrangelo recites that he has “personal knowledge” of the matters set forth in his affidavit based on his “then position as Union Steward.” Yet the claims contained in his third paragraph require knowledge about every instance in which Plaintiff spoke with SBC/Pacific Bell officials and/or union representatives. As a union steward, and not a manager or human resources associate, Mr. Mastrangelo was not present nor in a position to acquire such comprehensive knowledge. Ms. Mastrangelo’s opinion about Plaintiffs credibility is generally inadmissible, except as provided by Fed.R.Evid. 608. Plaintiff has not provided a foundation for the opinion testimony on credibility, which would only be for a person’s reputation in the community for truthfulness. 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. 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.

Defendants District 9 and Local 9333 object to the first sentence of paragraph four on grounds it contains conjecture and was not made on the basis of his personal knowledge. The objection is sustained for the reasons stated above. The witness was not present. He expresses no more than inadmissible opinions that lack personal knowledge. Defendants object to the remaining portion of paragraph four on hearsay grounds. To the extent that the statements are offered to prove the truth of the matter asserted, they are inadmissible. See Fed R. Evid. §§ 801-802 (“Hearsay is not admissible except as provided by the Federal Rules of Evidence [•••]”).

Paragraph five of Mastrangelo’s affidavit spans seven pages and contains sixteen subparts. Defendants District 9 and Local 9333 object to the bulk of paragraph five on the grounds it contains inadmissible hearsay, conjecture, speculation, and was not made on the basis of his personal knowledge. Defendants’ objections to the fifth paragraph of Mastrangelo’s affidavit are, in the majority, sustained. For example:

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.

Defendants’ objections are sustained. There is nothing in the affidavit to establish Mr. Mastrangelo is knowledgeable about or qualified to give an expert opinion on the reliability of GPS equipment. The affidavit shows no basis for Mastrangelo to form a legal opinion as to conduct sufficient to establish a breach of the duty of fair representation.

5(c). The union President Lynn Johnson would continually state “We will take this ease 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”.

Paragraph five, subpart (c), includes several hearsay statements, including statements attributable to Lynn Johnson regarding how the Union would handle Plaintiffs grievance, her report of the company’s investigation that Mr. Smith “lied,” and the alleged extension of time for the company to respond to the second step grievance. Hearsay is a statement, other than one made by the declarant, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Hearsay is not admissible except as provided by the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Fed. Rule Evid. 802. These statements were made outside of court, not by the affiant, and are offered in evidence to prove the truth of the matter asserted. Such inadmissible hearsay evidence cannot be considered on a motion for summary judgment.

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.

Defendants’ objections concerning paragraph five, subpart (e), are sustained. There is no foundation or source of knowledge for Mastrangelo’s opinion regarding the police officers’ interest. There is no basis to establish personal knowledge for Mastrangelo’s conclusion that nobody spoke to the officers and that the company simply accepted the reports at face value. See Fed. R. Civ. Proc. 56(e).

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.

5g. 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.

Paragraph five, subparts (f) and (g), contain inadmissible hearsay and improper opinions which cannot be considered to establish a genuine issue of material fact. Plaintiff offers improper opinion testimony and lacks personal knowledge concerning Ms. Diaz’s competence as an investigator and what investigation Brown could perform. To be cognizable on summary judgment, evidence must be competent. It is not enough for a witness to tell all she knows; she must know all she tells. Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028 (9th Cir.2001). 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.

The claims contained in Mastrangelo’s fifth paragraph, subpart (h), require knowledge about every instance in which Pacific Bell officials questioned individuals about its equipment. The claims contained in paragraph 5(h) also require Plaintiff to have comprehensive knowledge about Pacific Bell’s internal key/vehicle policies, as well as every instance in which an employee did not report to work because of an illness. Mr. Mastrangelo has no basis nor was he in a position to acquire such comprehensive knowledge. There is no information to establish personal knowledge. The statements contained in paragraph 5(h) cannot be considered on summary judgment.

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.

Testimony calling for a legal conclusion is an inappropriate matter for expert testimony. See U.S. v. Scholl, 166 F.3d 964, 973 (9th Cir.1999) (excluding expert testimony offering a legal conclusion); Aguilar v. International Longshoremen’s Union, 966 F.2d 443, 447 (9th Cir.1992) (noting matters of law are for the court’s determination, not that of an expert witness); see also Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 509-10 (2d Cir.1977) (expert testimony consisting of legal conclusions inadmissible). Mastrangelo inappropriately forms and offers legal conclusions whether Plaintiff suffered “disparate” and/or “hostile” treatment. These opinions are inadmissible.

5(1). It was also discovered that Mr. Riddle was an Ex-SB C 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.

There is no information to establish personal knowledge regarding Mr. Riddle’s alleged past; nor is there any information to support the claim that Mr. Riddle knew about the multiple key/single truck problem. Further, to the extent that the statements are offered to prove the truth of the matter asserted, they are inadmissible and improper opinions. Fed R. Evid. §§ 801-802 (“Hearsay is not admissible except as provided by the Federal Rules of Evidence [¶]... ]”). The statements contained in paragraph 5(1) cannot be considered on summary judgment.

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.

Defendants object to paragraph five, subpart (m), on grounds it contains conjecture and was not made on the basis of his personal knowledge. Defendants’ objections are well-taken. There is no evidence to support the speculative legal conclusion that the grievance would have been resolved in Mr. Smith’s favor. There is also no showing that Mr. Mastrangelo is qualified to opine on what conduct constitutes a bad faith failure to bargain, an inadmissible legal opinion. Defendants’ objections are sustained.

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 ease, 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 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.

Defendants object to the above portion of Mastrangelo’s affidavit on grounds it contains conjecture, hearsay, and was not made on the basis of his personal knowledge. For the reasons discussed above, the objections are sustained. Most of the information is improper argument. The last sentence of Paragraph 5(o) is also stricken because Mastrangelo inappropriately reaches legal conclusions on whether Plaintiff suffered “disparate treatment.”

A substantial portion of Mastrangelo’s fifth paragraph and its subparts are inadmissible to establish a genuine issue of material fact. Mastrangelo’s statements concerning how the union failed in its duty to adequately represent Plaintiff, his opinions on the functionality of the GPS system, his criticisms of Lynn Johnson, and his musings on vehicle keys are all improper argument and are sustained.

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 demand of Tony Bixler at the Union’s District 9 office because of my letter.

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.

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.

Defendants District 9 and Local 9333 object to paragraphs 6-9 of Mastrangelo’s affidavit on grounds they are speculative, irrelevant, lack foundation, contain conjecture and were not made on the basis of personal knowledge. In addition, the statements are argumentative opinions. Defendants’ objections are sustained.

In paragraphs 6 through 9 of Mastrangelo’s affidavit, he gives several examples of his interactions with the local union, especially Lynn Johnson. Mastrangelo also details the reasons behind his departure. Mastrangelo’s statements concerning the circumstances of his dismissal and his continuing conflict with the local union are not probative of any consequential facts in this litigation, except his bias. Fed.R.Evid. 401-402; U.S. v. Curtin, 489 F.3d 935, 943-44 (9th Cir.2007). The statements contained in paragraph nine are speculative and argumentative. They are not admissible. See National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir.1997) (conclusory state-merits without factual support are insufficient to defeat a motion for summary judgment.). Mastrangelo simply did not have the personal knowledge to conclude that the Union Defendants conducted “zero investigation.” His knowledge as a union steward did not extend so far.

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.

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 tank-top 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 T know.’ Because he was present that day and saw the method of installation, Alan Brown knew there was a problem with the installation.

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.

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.

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.

Defendants raise numerous objections to paragraphs 10 through 14 of Mastrangelo’s affidavit. Mastrangelo’s statements concerning the technician’s physical description, Alan Brown’s thoughts about the GPS system, the installation and repair history of the GPS system, and Pac Bell’s counseling of employees with a history of absences, are sustained. The majority of these statements are not based on evidentiary facts in the record, are argumentative improper opinion, and are too speculative; others, such as the appearance of the technician, are irrelevant to the Plaintiffs claims and, for the most part, do not involve Plaintiff.

Paragraphs ten through fourteen also contain inadmissible hearsay. To the extent that the statements are offered to prove the truth of the matter asserted, they are inadmissible.

A substantial portion of Mastrangelo’s affidavit is inadmissible to establish a genuine issue of material fact. Hearsay assertions by Mr. Mastrangelo and matters not supported by the record or by a demonstration of personal knowledge or corroborating evidence, are insufficient to establish a genuine issue of material fact.

2. Affidavit of Michael Caloyannides

On February 29, 2008, Plaintiff filed an affidavit from Michael Caloyannides (“Caloyannides”) in support of his opposition to Union Defendants’ motion for summary judgment. In his affidavit, Caloyannides, a purported GPS expert, questions the accuracy of GPS systems and criticizes Brown’s October 18, 2005 test verifying the functionality of the GPS system attached to Plaintiffs work vehicle. Caloyannides states that “it was irresponsible for the Company Defendants and Union Defendants to dismiss Plaintiff solely based on this @road GPS information” and he “would not trust this system for any 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.” (Dec. of Caloyannides ¶ 16.)

Defendant Local 9338 objects to Caloyannides’ affidavit on grounds that he opines that Pacific Bell and the Union Defendants could not use GPS information in discipline and discharge cases. (Doc. 78.) However, it is undisputed Pacific Bell and the Union reached a binding side-letter agreement concerning the use of GPS in disciplinary actions. The side letter agreement stated:

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.

As the employees’ exclusive bargaining representative, the Union “enjoys broad authority ... in the negotiation and administration of [the] collective bargaining contract.” Communications Workers v. Beck, 487 U.S. 735, 739, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). But this broad authority “is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.” Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). The employer has a corresponding duty under the NLRA to bargain in good faith “with the repr