ML022540527
| ML022540527 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/30/2002 |
| From: | Foy L Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Pacific Gas & Electric Co |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California |
| References | |
| 01-30923 DM, 94-0742640 | |
| Download: ML022540527 (8) | |
Text
1 JEFFREY L. SCHAFFER (No. 91404)
ETHAN P. SCHULMAN (No. 112466) 2 LINDA Q. FOY (No. 148764)
HOWARD, RICE, NEMEROVSKI, CANADY, 3 FALK & RABKIN A Professional Corporation 4 Three Embarcadero Center, 7th Floor 5 75" San Francisco, California 94111-4065 5 Telephone: 415/434-1600 Facsimile: 415/217-5910 6
Attorneys for Debtor and Debtor in Possession 7 PACIFIC GAS and ELECTRIC COMPANY 8
9 UNITED STATES BANKRUPTCY COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 In re Case No. 01-30923 DM Chapter II Case HOWARD 13 PACIFIC GAS and ELECTRIC RK1 COMPANY, a California corporation, MEMORANDUM OF POINTS AND FAMl Debtor. AUTHORITIES IN SUPPORT OF DEBTOR'S MOTION FOR VALUATION
. . 15 OF CLAIM FOR FEASIBILITY PURPOSES (GILBERT MEDEIROS, 16 CLAIM NO. 7057) 17 Federal I.D. No. 94-0742640 Date: October 1:30 p.m.2, 2002 Time:
18 Place: 235 Pine Street, 22nd Floor San Francisco, California 19 Judge: Hon. Dennis Montali 20 21 22 23 24 25 26 27 28 057 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM NO. 7 a~j 60 #41; eVA
1 TABLE OF CONTENTS 2 Page 3 INTRODUCTION AND
SUMMARY
OF CLAIM 3 1
4 FACTUAL AND PROCEDURAL BACKGROUND 3
5 ARGUMENT 6 I. MEDEIROS'S CLAIM IS PREEMPTED BY SECTION 301 OF THE NLRA AND HE HAS NOT AND CANNOT STATE A 7 CLAIM UNDER THAT STATUTE. 3 8 II. THE EVIDENCE OF GOOD CAUSE FOR MEDEIROS'S TERMINATION WAS OVERWHELMING AND 9 UNCONTROVERTED. 4 5
10 CONCLUSION 11 12 RKME 13 l."'ý 14 A, o,, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MPA ISO DEBTOR'S VALUATION OF CLAIM NO. 7057
-i-
1 TABLE OF AUTHORITIES 2 Page(s) 3 4 Cases 5 DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 (1983) 4 6 Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976) 3 7 NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (1984) 3 8 Vaca v. Sipes, 386 U.S. 171 (1967) 3 9
10 Statutes 11 Labor Management Relations Act §301, 29 U.S.C. §185 1,2,3,4 12 13 S&K*
~14
, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MPA ISO DEBTOR'S VALUATION OF CLAIM NO. 7057
-ii-
1 INTRODUCTION AND
SUMMARY
OF CLAIM 2 Claimant Gilbert Medeiros ("Medeiros") was employed as a Gas Fitter at Pacific 3 Gas & Electric's ("PG&E") Marysville facility. He was terminated in February 1999 for 4 diverting energy by tampering with the meter and transformer at his residence; energy theft 5 is cause for immediate termination under the collective bargaining agreement governing 6 Medeiros' employment. Medeiros challenged his termination in a grievance filed by his 7 union. The grievance panel found that his discharge was for just and sufficient cause.
8 Medeiros then filed a lawsuit and has filed this Claim in pro per, seeking $200,000 for 9 alleged wrongful termination.
10 Medeiros's claim cannot succeed as a matter of law. First, it is preempted by 11 Section 301 of the Labor Management Relations Act, and Medeiros cannot state a claim 12 under that Section. Part I, infra. Second, even if there were no Section 301 preemption, the 13 evidence that Medeiros was responsible for the diversion of energy at his home is S14 overwhelming and cannot be overcome by Medeiros's mere, repeated and unsupported 15 insistence that he is not responsible. Part II, infra. Such conduct provides ample 16 justification for termination and establishes that Medeiros's claim of termination without 17 good cause is meritless.
18 19 FACTUAL AND PROCEDURAL BACKGROUND 20 At the time of his termination, Medeiros was a Gas Fitter whose job duties 21 included welding and equipment operation at the Marysville facility. Declaration of 22 Maureen Fries ("Fries Decl.") Ex. 4-A at 13. Medeiros's employment was governed by a 23 collective bargaining agreement ("CBA") between PG&E and Local 1245 of the 24 International Brotherhood of Electrical Workers ("Local 1245").
25 In or around October 1998, PG&E learned from one of its meter readers that the 26 meter at what turned out to be Medeiros's residence was in an inverted position. While 27 attempting to install a metering device on the transformer pole serving Medeiros's home, 28 PG&E discovered that there was an unauthorized splice box on the pole with illegal MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM NO. 7057 1 connections going to Medeiros's property and bypassing the PG&E meter. Following 2 further investigation and monitoring, PG&E discovered that Medeiros's meter was in fact 3 running backwards, that the seal on his meter had been cut and replaced and that the meter 4 itself appeared to have been removed and reinstalled numerous times. The company's 5 investigation was thoroughly documented by written reports and photographs. Fries Decl.
6 Ex. 5 (Declaration of Gil Smith) and Exs. 4-A through 4-C. When confronted with the 7 evidence of energy theft, Medeiros offered explanations that, on further investigation, were 8 unsupported. Fries Decl. Ex. 6 (Declaration of James Moore) and Exs. 6-A through 6-E.
9 Under the Positive Discipline Policy negotiated between PG&E and Local 1245, 10 theft of electricity is grounds for automatic termination of employment. See Fries Decl.
11 Ex. 4-B at 4, 5, 7. On February 17, 1999, Medeiros was given written notice of his 12 termination based upon diversion of energy. Fries Decl. Ex. 4-D. Medeiros denied the theft to HOVO 13 and said that a third party must have done it, but he offered no evidence or information HRI
" EALK 14
" support this claim. Local 1245 filed a grievance on Medeiros's behalf challenging his
&R'flGN 15 termination as "without just cause." Fries Decl. Ex. 4-E. Following the grievance 16 proceeding, the parties issued a Memorandum of Decision in July 1999 finding 17 "considerable circumstantial evidence" that Medeiros had diverted energy and ruling that 18 "the discharge was for just and sufficient cause." Fries Decl. Ex. 4-G.
19 In February 2000, Medeiros filed an action in Butte County Superior Court (the 20 "Civil Action") alleging tortious discharge, unlawful termination and "breach of good faith" 21 and seeking damages for lost earnings and benefits, humiliation and mental anguish against 22 both PG&E and individual PG&E employees, in an amount "in excess of $100,000." Fries 23 Decl. Ex. 4-H. PG&E removed the action to federal court based upon preemption under 24 Section 301 of the Labor Management Relations Act, 29 U.S.C. Section 185(a), and 25 Defendants moved for summary judgment in October 2000 on the ground of preemption.
26 Fries Decl. Exs. 2-7. The court had not yet ruled on the motion at the time PG&E filed its 27 Chapter 11 petition. The Civil Action was stayed as to PG&E, and the court subsequently 28 issued an order staying the entire proceeding until thirty (30) days after this Court lifts the MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM NO. 7057 p
1 bankruptcy stay, at which time PG&E is to retile its motion tor summary juugment.
2 3 ARGUMENT 4 I.
5 MEDEIROS'S CLAIM IS PREEMPTED BY SECTION 301 OF THE NLRA AND HE HAS NOT AND CANNOT ýTATE A CLAIM 6 UNDER THAT STATUTE.
7 The Collective Bargaining Agreement between PG&E and Medeiros's union 8 provides that the exclusive procedure for challenging discharge of an employee is to bring a 9 grievance pursuant to specified Grievance Procedures (Fries Decl. Ex. 4-C § 102.2.) and that 10 the resolution of a timely grievance "shall be final and binding on the Company, Union and 11 the grievant." Id. §102.4; see Vaca v..Sipes, 386 U.S. 171 (1967) (individual employee's 12 remedies are governed exclusively by grievance procedure). Any claim challenging terms of the CBA and HOVI 13 Medeiros's discharge as lacking in good cause is governed by the C 14 therefore subject to federal preemption under Section 301 of the Labor Management
&RA3C(N AFPW 1- 15 Relations Act. NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 836, 840-41 (1984) 16 (individual employee's action to enforce terms of a collective bargaining agreement is 17 "concerted activity" preempted by the NLRA).
18 Furthermore, in view of the final disposition of his grievance finding that 19 Medeiros' discharge "was for just and sufficient cause," Medeiros cannot state a claim under 20 Section 301 of the Act in the absence of an additional claim against the union for breach of 21 the duty of fair representation, which Medeiros has not alleged (see Fries. Decl. Ex. 4-H) 22 and which is in any event time-barred. See Hines v. Anchor Motor Freight, Inc., 424 U.S.
23 554, 562-65 (1976) (where collective bargaining agreement contains procedures for final 24 settlement of disputes, courts cannot undertake review of merits of final determination 25 except in conjunction with a claim of breach of duty of fair representation against union);
26
'This basis for valuing Medeiros's claim at $0 is set forth in greater detail in PG&E's 27 papers in support of PG&E's pending Motion for Summary Judgment in the Civil Action.
4-H.
28 See Fries Decl. Ex. 4-A through MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM NO. 7057 1 DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 172 (1983) (six month statute 2 of limitations for Section 301 claim). Medeiros has not, and cannot, state a claim under 3 Section 301 of the Act.
4 For this reason alone, PG&E will prevail on its summary judgment motion, and 5 Medeiros's Civil Action will be dismissed with prejudice.
6 7 II.
8 THE EVIDENCE OF GOOD CAUSE FOR MEDEIROS'S TERMINATION WAS OVERWHELMING AND 9 UNCONTROVERTED.
10 Even if Medeiros were somehow able to evade Section 301 preemption, the final, 11 nonappealable effect of the adverse grievance findings and decision, and the time bar to any 12 Section 301 claim, the underlying independent evidence of good cause for his termination is under Section 301 HORD RICE 13 overwhelming. Hines, 424 U.S. at 570-71 (individual employee suing rCAvU, 14 must prove both breach of duty by union and that discharge was in violation of collective AF*..W0- 15 bargaining agreement).
16 The declarations, attached exhibits and security report of the PG&E employees 17 who conducted the investigation into Medeiros's inverted meter and confirmed the illegal 18 lines bypassing the meter and leading to the transformer pole to his property (Fries Decl.
19 Exs. 5, 6), and the Joint Statement of Facts of the investigating committee on Medeiros's 20 grievance (Fries Decl. Ex. 4-F) present a compelling case that Medeiros illegally diverted 21 energy to his own use in violation of Positive Discipline Guidelines and as a ground for 22 immediate termination.
23 24 25 26 27 28 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM NO. 7057 1 CONCLUSION 2 For the above reasons, PG&E contends that Medeiros's wrongful discharge claim 3 is demonstrably meritless and that the estimated value of the claim is zero.
4 5 DATED: August ___, 2002.
6 Respectfully, 7 JEFFREY L. SCHAFFER ETHAN SCHULMAN 8 LINDA Q. FOY HOWARD, RICE, NEMEROVSKI, CANADY, 9 FALK & RABKIN A Professional Corporation 10 11 By: LINDA Q.F 12 Attorneys for Debtor and Debtor in Possession PACIFIC GAS AND ELECTRIC COMPANY HOWARD 13 RKE S14 16 17 18 19 20 21 22 23 24 25 26 27 28 WD 083002/F-14199681Y7/1014900/vI MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM NO. 7057