Greer v. Pacific Gas & Electric Co. (265 F. Supp. 3d 1053, 2017)

United States District Court for the Eastern District of California 2017-09-12

Citations

Full opinion text

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT IBEW LOCAL 1245’S MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT AND DEFENDANT PG & E’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND REQUEST FOR ADDITIONAL BRIEFING

(ECF Nos. 159 and 161)

14 Day Deadline for Additional Briefing

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 Mar-kwith, 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 IBEWs 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 arid 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 CBA, which followed from the Grievance 21052 resolution. When it came to who was entitled to the wage increase, the Union (and PG & E) completely side-stepped the grievance process. Instead, they agreed on a list of qualifying employees informally between themselves and then prohibited any employees from filing a grievance challenging’that decision. Under the terms of the CBA, such a decision is not treated as final and binding. Moreover, Plaintiffs have raised disputes of fact' regarding whether the Union engaged in an adequate investigation to make such determination. They agreed to look only at resumes submitted at the time of application, without the knowledge of • the relevant criteria, even though documents indicate the Union itself conceded that the resumes were not sufficiently detailed to conduct the evaluation required by the CBA and Grievance 21052 guidance. Moreover, the Union never sought any employee input, even though the employees would have relevant,information about their background to help determine whether they possessed relevant experience. The Union agreed to further limit qualifying experience based on criteria outside, and arguably contradicting, the CBA and Grievance 21052 guidance. Accordingly, the Court will deny Defendants’ motions to the extent they seek to preclude Plaintiffs from challenging their entitlement to the wage increase under the terms of the CBA as interpreted by the Pre-Review Committee Number 21052 resolution letter.

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.

I. PROCEDURAL BACKGROUND

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”) wás 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 resolved by the IBEW under the CBA’s grievance procedures, but assert that they were treated incorrectly by the collectively bargained settlement.” (ECF No. 13, p. 3) (internal citations omitted), PG & E .argued as a matter of law: “Before bringing a suit governed by Section 301, an individual plaintiff is first required to exhaust the grievance and arbitration remedies provided in the CBA. DelCostello, 462 U.S. at 163 [103 S.Ct. 2281]; Republic Steel Corp. v. Maddox, 379 U.S. 650 [85 S.Ct. 614, 13 L.Ed.2d 580] (1965). Subject to very limited judicial review, [the employee] will be bound by the result according to the finality provisions of the agreements unless he or she can show thermion has breached its duty of fair representation. DelCostello, 462 U.S. at 164 [103 S.Ct. 2281]; accord Vaca v. Sipes, 386 U.S. 171, 185-86 [87 S.Ct. 903, 17 L.Ed.2d 842] (1967).” (ECF No. 13, p. 7).

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:

Defendant’s motion to dismiss first argues that the case should be dismissed because ■ Plaintiffs failed to allege that the Union breached its.duty of fair representation. Defendant claims “[a]bsent this necessary element, Plaintiffs’ claims under Section 301 must be dismissed because the FAC fails to state a claim for which relief can be granted.” (Motion' to Dismiss 1:14-15, ECF No. 13.). This is an incorrect statement of the law because it glosses over the underlying question of whether the grievance procedure used here was intended to be final without judicial review.

Defendant relies on DelCostello v. International Brotherhood of Teamsters et al., 462 U.S. 151 [103 S.Ct. 2281, 76 L.Ed.2d 476] (1983), but the Court in that case rested its decision on the fact that Plaintiff was challenging the results of- a grievance process that resulted in an individual hearing, which, “[u]nder the collective bargaining agreement ... [was] final and binding on all parties.” Id. at 155 and 164 [103 S.Ct. 2281] (“Subject to very limited judicial review, [the plaintiff] will be bound by the result according to the finality provisions of the agreement”); see also Dickeson v. DAW Forest Prods. Co., 827 F.2d 627, 629 (9th Cir. 1987) (“If an employee pursues a grievance procedure under a collective bargaining agreement that the parties intended to be final, and receives an adverse determination, he may not challenge that determination under section 301 unless he shows that the union breached its duty of fair representation or that the procedure was otherwise infected”). In contrast, where the collective bargaining agreement does not provide for a binding grievance process, plaintiffs can file suit without alleging a breach of a union’s duty of fair representation. See, e.g., Lerwill v. Inflight Motion Pictures, 582 F.2d 507, 511 (9th Cir. 1978) (“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”). Thus, a gating’issue to decide whether Plaintiffs may seek relief in this Court is whether the grievance ‘ process was meant to be final without judicial oversight.

(ECF No. 31, pp. 8-9). Second, the Court explained:

Even if the finality provisions of the CBA rendered the grievance proceedings final and binding, however, Plaintiffs are still be able to bring suit in federal court if they 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”).

(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 judg-' ment. (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:

In the event it is determined that the resolution of the grievance procedure precludes judicial review, • Plaintiffs plead this cause of action in the alternative as a ‘hybrid’ claim.

A labor union has a duty under the law to represent fairly the interests of its members in protecting their rights under a collective bargaining agreement. ... Plaintiffs and the Proposed Class are members of, and represented by, Defendant IBEW. Defendant IBEW breached its duty of fair representation to Plaintiffs and the Proposed Class by engaging in conduct that was arbitrary, discriminatory, and/or in bad faith.

(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:

1. Resolving the contract interpretation issue at the heart of Grievance 21052 by negotiating and agreeing with PG & E in PRC 21052 to a clarification of the contract term “directly related clerical job experience” (“DRJCE”) as that phrase applies to Service Representative I (“SR I”) employees employed at PG & E Call Centers, for purposes of "determining whether a Call Center SR I would be entitled to be paid at the 18-month SR I wage rate as the SR I’s starting wage rate (referred to. as an “Exh. A wage adjustment”);

2. Agreeing informally with PG & E to waive the contractual grievance procedure timeliness in process Grievance 21052, to allow the parties sufficient time to investigate and negotiate resolution of the grievance;

3. Agreeing with PG & E not to credit prior sales experience as experience constituting DRCJE;

4. Agreeing with PG & E not to credit experience accrued more than 5 years before an SR I’s date of hire as experience constituting DRCJE;

5. Agreeing with PG & E to provide the Exh. A wage adjustment at the SR 118-month wage rate for Call Center SR Is with qualifying DRCJE for any amount of such prior experience of 18-months or more;

6. Agreeing with PG & E, after learning that other job applications were , not available, to review only resumes submitted by SR I’s when applying for the SR I Call Center job as the basis for determining whether an SR I had qualifying DRCJE;

7. Adequately investigating the issues presented by Grievance 21052, and the implementation of its resolution in PRC 21052;

8. Determining not to move Grievance 20152 to arbitration, either regarding the interpretation of DRCJE as it applies to Call Center SR Is, or regarding the implementation of PRC 21052;

9. Refusing to file additional grievances seeking Exh. A wage adjustments on behalf of SR Is who were unhappy about not being provided an Exh. A wage adjustment;

10. Making any decision or taking any other action raised by Plaintiffs in opposition to IBEW’s motion for summary judgment.

(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).

II. MATERIAL FACTS RELEVANT TO SUMMARY JUDGMENT

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. (JSUF' 4). In the 2011 CBA, IBEW and PG & E created two new job classifications, Service Representative-I (“SR-I”) and Service Representative-II. (JSUF 9; DSUF 1). The SR-I job is an entry-level “beginner classification” position. (JSUF 10). As negotiated by I'BEW and PG & E, SR-Is were to have lower pay rates than existing PG & E service representatives. •

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:

CLERICAL HIRING RATE GUIDELINES

The following hiring rate guidelines apply to clerical employees hired under the Agreement:

1.) An employee with less than 6 months of directly related clerical job experience will be hired at the starting rate of the applicable clerical classification.

An employee with 6 months, but less than 12 months directly related clerical job experience, will be hired at the 6-month rate, of the applicable clerical classification.

An employee with 12 to 18 months directly related clerical job experience, will be hired at the one-year rate of the applicable clerical classification.

An employee with 18 to’ 24 months directly related clerical job experience,' shall be hired at the 18-month rate of the applicable clerical classification.

An employee, other than Utility-Clerk, with 2 years or more directly related clerical job experience, shall be hired at the 24-month rate of the applicable clerical classification.

A Utility Clerk with 24 to 30 months directly related clerical job experience, shall be hired at the 24-month rate of the Utility Clerk.

A Utility Clerk with 30 months directly related clerical job experience, shall be hired at the 30-month rate of the Utility Clerk.

2.) 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;.

3.) Credit for work experience will not be given for jobs held prior to a five-year break in employment.

4.) No credit will be given for non-verifiable work experience.

5.) No credit will be given for summer or part-time work experience accrued while a student. ' ;

6.) Credit will not be given for experience accrued on a casual or intermittent basis, including work performed while employed through a temporary agency.

(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 if they had 18 or more months of experience at PG & E accrued within 12 months of the hire date. This policy resulted in SR-Is without prior PG & E experience being hired at the lowest pay step and was applied to every SR-I hired between January, 2011 and June, 2015.

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:

Some new employees who have completed, and are currently enrolled in the 2011 CSR classes at the PG & E Call Centers (Sacramento), have questioned their starting rate of pay of $18 because of Exhibit A — Clerical Hiring Rate Guidelines. When questioned by the Union, Company has never given the Union a direct answer on whether or not any of these employees have been placed at a higher starting rate of pay per Exhibit A. Employees are still questioning what their rate of pay is and are not being told anything until they assume their bidded shift. This issue was first-stepped by Union Business Rep and Sac CC IR Rep on 6/10/11. Union contends this is a willful violation of the Clerical bargaining agreement, since many of these employees have prior “directly related clerical job experience” per Exhibit A, yet the Company seems to be ignoring any past clerical experience and denying these employees their proper rate of pay.

m

On August 2, 2011, PG & E representative Chris Diamond formally responded to Grievance 21052 as follows:

Employee’s (sic) do not meet requirements under Exhibit A to qualify for a higher starting wage resulting from credit of past work experience under the hiring guidelines for “directly related clerical job experience.” There is no violation. Request by union is respectfully denied.

m

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 coñcernéd 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.

Grievance 21052 was formally resolved under the Grievance process by a determination of the PRC at step four in the process. Specifically, on November 24, 2013, the PRC issued a letter providing guidance on the meaning of “directly related clerical job experience” and resolving Grievance No. 21052. (ECF No. 169-6, pp. 263-65) It concluded:

The Committee agrees that the definition which was being used at the time of this grievance did not comply with the Hiring Guidelines. Limiting credit to PG & E Contact Center experience within the past 12 months is more restrictive than the agreed to language in Exhibit A. The Guidelines were never intended to limit prior experience to only prior PG <& E experience. Also, the Guidelines specify that credit will not be given for jobs held prior to a five year break, and do not limit credit for work within the past 12 months.

While Exhibit A does provide some guidance, it does not clearly define what constitutes “directly related clerical job experience”. The intent of the language is to provide higher initial wage placement for individuals who bring directly related experience and knowledge which allows them to perform at a more experienced (and higher paid) level of work. Once in the classification, further progressive wage increases would be based accumulated time as provided for in Section 13.7.

During the processing of this grievance, the Call Center management revised its 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)”.

The Committee agrees that the revised application complies with the Hiring Guidelines and the intent as described above. The Committee noted that the last sentence comes directly from the Company/Union negotiated Benchmark Duty Statement 5066. Employees who are hired into the Service Representative I classification with 18 months or more of verifiable work experience as defined above should be placed at the 18 month rate step.

As guidance in the application of the Exhibit A Hiring Rate Guidelines, the Committee discussed examples of job experience which would or would not be considered as directly related. The Committee did not include examples of job experiences which are specifically excluded from consideration under the guidelines (e.g. non-clerical, retail sales, and banking). The examples assume at least 18 months of the verifiable work experience, which did not precede a five-year break in employment, and are not intended to be all inclusive

• AT & T Call Center Customer Service Representative responsible for answering customer requests or inquiries concerning services, products, billing, and usage. Explaining customer’s bill and recommending rate plans based on customer’s usage, and establishing payment arrangements within established guidelines.

• Comcast Call Center Customer Service Representative responsible for answering customer requests or inquiries concerning services, products, billing, and usage. Explaining customer’s bill and recommending rate plans based on customer’s usage, and establishing payment arrangements within established guidelines.

The above examples are considered as directly related as the nature and extent of the work and complexity of the billing, systems, and rules are comparable to that at a PG & E. Contact Center.

• AAA Customer Services Representative responsible for answering customer questions regarding member services, such as maps and discounts, and dispatching tow trucks.

• Comcast Customer Account Executive responsible for promoting, recommending, and selling products and services based on customers’ needs and interests, (sic)

The above examples are not considered as directly related as the nature and extent of the work and/or complexity of tfie billing, systems, and rules are not comparable to that at a PG & E Contact Center. '

Decision

This grievance is closed based on the above discussion and understanding. Any disputes as to ’related job experience’ are remanded to the Local Investigating Committee for resolution. The Pre-Review Committee retains jurisdiction over any disputed adjustments.

(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 28,2015, IBEW filed Grievance No. 23159. (JSUF 18). The grievance was filed on behalf all affected SR-Is and complained that PG & E “has disparately applied the Pre Review Committee case 21052 decision to its employees hired into the Call Center Operations starting on or about 12/15/2014.” (ECF No. 159-2, p. 155), PG <& E responded two days later on April 30, 2015 indicating the issue raised has been resolved by a “Compromise and Release Agreement.” This issue did not proceed to a Local Investigating Committee, Fact Finding Committee, or Review Committee, not to mention Arbitration.

On April 30, 2015, Scott Sanford (IBEW) sent an email to members with the subject “Exhibit A — Rate of Pay Settlement Follow Up,” concluding:

Those individuals will receive a direct communication from me no later than Saturday, May 2nd informing them of their qualification for'receiving a settlement payout. Only those employees who will be receiving the payout will receive the follow up email and with the completion of this additional review.

In all though, the decisions made by the union and company are final.

(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:

PG & E believes that the parties have collectively followed and implemented PRC Decision 21502 and that Business Manager Grievance 23159 related to the implementation is not a proper subject for the grievance process....

The parties agree that the payments described herein that shall be made by PG & E to current employees identified in the attached Exhibit to this Agreement shall constitute payment in full and final settlement of all grievance and claims for .damages made and threatened by Local 1245, including Business Manager Grievance 23159, against PG & E regarding the implementation of PRC Decision 21052....

(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).

III. LEGAL STANDARDS

A. Motion for Summary Judgment

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 á 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 favor of the party seeking summary judgment” or make credibility any determinations. Zetwick, 850 F.3d at 441 (citing Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed. 2d 895 (2014); Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

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)).

B. Breach of a Collective Bargaining Agreement

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:

It has long been established that an individual employee may bring suit against his. employer for breach of a collective bargaining agreement. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); cf. Clayton v. Automobile Workers, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981) (exhaustion of intra-union remedies not always required). Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement. See W.R. Grace & Co. v. Local 759, — U.S. -, at -, 103 S.Ct. -, at -, 75 L.Ed.2d -; Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). 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. Vaca, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842; Hines, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231; [United Parcel Service, Inc. v.] Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 [(1981)]; Bowen [v. U.S. Postal Service], 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 [(1983)]; Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970).

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 procedure under a collective bargaining agreement that the parties intended to be final, and receives an adverse determination, he may not challenge that determination under section 301 unless he shows that the union breached its duty of fair representation, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), or that the procedure was otherwise infected.”).

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 (“The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach of contract suit under § 301, as was Hoosier, but a hybrid § 301/fair representation claim”). Such allegations need not form a separate cause of action, nor do they necessarily need to be directed towards the union as a separate defendant. Id.

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 L.Ed. 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)).

IV. ANALYSIS'

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:

“The first phase was the negotiated agreement between IBEW. and PG & E in PRC 21052 to resolve the contract interpretation dispute that caused IBEW to file the grievance. PRC 21052 is a final- and binding resolution of the Grievance. As such, it is itself a collective bargaining agreement clarifying the meaning of the ambiguous DRCJE phrase in the CBA as it applies to Call Center SR .Is, The second phase of Grievance 21052 was the implementation of PRC 21052, to determine which of more than 900 SRls is within the scope of the grievance did nor did not have sufficient DRCJE, as clarified, to qualify for an Exh. A wage adjustment.”

(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.

A, Grievance 21502

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 then-duty of fair representation regarding the 21502 Grievance:

1) IBEW modified the CBA outside of the collective bargaining process; •

2) IBEW excluded their members from participation in the grievance process;

3) IBEW failed to comply with the grievance resolution time limits- in the CBA; and

4) IBEW failed to pursue arbitration.

The Court will now analyze each of these arguments.

1. Whether IBEW Breached Its Duty Of Fair Representation by Modifying the ■ CBA Outside of the Collective Bargaining Process

Plaintiffs assert that any change to the "CBA, including the Guidelines, must be negotiated and approved by a vote, and IBEW materially, modified the Guidelines when they agreed to restrict the definition of “directly related clerical job experience” in Paragraph 1 the .Guidelines to mean “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).” IBEW does not agree that it modified the Guidelines. Instead, it argues that the term “directly related clerical job experience” in the Guidelines was ambiguous as to the newly-created SR-I position, and IBEW merely agreed with PG & E to clarify the meaning of the term in order to resolve Grievance No. 21052. Indeed, the CBA explicitly provides that the grievance procedure is appropriate for disputes involving “Interpretation ... of any of the terms of this Agreement.” (ECF No. 159-2, p. 26).

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: “[wjhile 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 (EOF 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 I, 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 the face of the document. Put another way, Plaintiffs’ argument calls into question whether the resolution of the interpretation was correct, but not whether the phrase “directly related clerical job experience” was ambiguous.

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.

2. Whether IBEW Breached Its Duty of Fair Representation by Excluding Their Members from Participation in the Grievance Process

Section 9.6 of the CBA, which provides that:

STEP TWO LOCAL INVESTIGATING COMMITTEE

(2) The Committee shall meet as soon as reasonably possible and shall make a full and complete investigation of all of the factors pertinent to the grievance. If necessary to gain all of the information required to resolve the grievance, the Committee may hold investigative interviews with other persons involved in the dispute. Except for good cause to the contrary, the grievant shall be permitted to be present during these interviews. The grievant will not be a party to the disposition of the grievance, nor is the grievant’s concurrence required for the Committee to reach a settlement of the grievance. Grievant, however, does have the right to point out the existence of other facts or witnesses favorable to grievant’s case....

(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.”

3. Whether IBEW Breached Its Duty of Fair■ Representation by Failing to Comply with the Grievance Resolution Time Limits in the CBA

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 to its members by unduly delaying resolution of Grievance No. 21052 while IBEW knew that wages were being wrongfully withheld from already-hired SR-Is and additional SR-Is were being hired during the .pendency of grievance.

As an example of prejudice, they cite to Plaintiff Markwith and claim that she was underpaid after settlement by approximately $8,656.06. 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. (EOF 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. IBEWs 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.

A Whether IBEW Breached Its Duty of Fair Representation by Failing to Pursue Arbitration

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, merely because it settled the grievance short of arbitration.” Vaca v. Sipes, 386 U.S. 171, 192, 87 S.Ct. 903, 918, 17 L.Ed. 2d 842 (1967) (reasoning that a CBA providing for grievance and arbitration procedure giving the union discretion to supervise the grievance process and to invoke arbitration gives both company and union assurances that similar complaints will be treated consistently, and major problem areas in the interpretation of the CBA can be isolated and perhaps resolved). However, a breach of duty of fair representation may occur where there is no rational basis- for the union’s decision not'to arbitrate. See Johnson v. U.S. Postal Serv., 756 F.2d 1461, 1465 (9th Cir. 1986). “To constitute arbitrary conduct, omissions must be egregious, unfair and unrelated to legitimate union interests.” Id. (citing Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1090 (9th Cir. 1978) (denying summary judgment on breach of its duty of fair representation claim where trier of fact could reasonably find that union’s failure to disclose th