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Trapaga v. Central States Joint Board Local 10

March 30, 2007


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiffs Oscar Trapaga, Jose Lopez, and Mark Vasquez, former employees of Edsal Manufacturing Company ("Edsal"), bring this action against Defendant Central States Joint Board Local 10 ("Local 10"), the union representing Plaintiffs when they were terminated for disrupting the workplace by collecting signatures on organizing petitions for a rival union. Local 10 filed grievances on behalf of Plaintiffs, contending that Edsal discharged Plaintiffs without just cause, and processed those grievances through binding arbitration, where the discharges were upheld. Plaintiffs, who are of Mexican origin, claim that Local 10 intentionally discriminated against Plaintiffs on the basis of their national origin, in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, by failing to present, at the arbitration hearing, evidence that Edsal treated native-born employees more favorably. Local 10 has moved for summary judgment on Plaintiffs' claims, and for the reasons set forth below, Local 10's motion is granted.


I. Defendant's Evidentiary Challenges

Plaintiffs, responding to Defendant's motion for summary judgment, attach ten affidavits to their Local Rule ("LR") 56.1 materials. Defendant challenges the admissibility of those affidavits on a number a grounds, and moves to strike the affidavits in whole or in part. (Defendant's Motion to Strike Affidavit in Whole or in Part (Def.'s Aff. Mem.").) In addition, Defendant moves to strike the portions of Plaintiffs' LR 56.1 response and statement of additional facts that rely on those affidavits for evidentiary support, and further moves to strike Plaintiffs' LR 56.1 materials for failure to comply with LR 56.1. (Defendant's Motion to Strike Plaintiffs' Response to Defendant's Local Rule 56.1(a)(3) Statement of Facts and Plaintiffs' Additional Facts ("Def.'s 56.1 Mem.").) Because these affidavits constitute nearly the whole of Plaintiffs' evidentiary response in this matter,*fn2 the court, as a preliminary matter, addresses Defendant's motions.

A. Motion to Strike Affidavits

In response to Defendant's motion for summary judgment, Plaintiffs submit the affidavits of Plaintiffs Trapaga, Lopez, and Vasquez, as well as those of Ernesto Garduno, Matiana Garduno, Alicia Cisneros, Jose Orozsco, Luz Maria Gonzales, Angel Castillo and Jorge Hernandez. Defendant contends that under Rule 56(e) of the Federal Rules of Civil Procedure, the court cannot properly consider these affidavits because (1) none of the affidavits is properly sworn to or verified, (2) several lack proper authentication of testimony translated from Spanish, and (3) all contain testimony that is speculative, conclusory, or that relates to matters not within the affiants' personal knowledge. The court here addresses only the first two arguments, both of which challenge the form of the affidavits themselves, and defers discussion of their substantive content.

1. Verification

Defendant contends that all of the affidavits must be stricken as either improperly sworn to or verified. (Def.'s Aff. Mem., at 3-14.) Although Rule 56(e) permits the use of affidavits in support of or opposition to a motion for summary judgment, see FED. R. CIV. P. 56(e), an affidavit is admissible in a summary judgment proceeding only if it is sworn to before an officer authorized to administer an oath, such as a notary public. See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). Under 28 U.S.C. § 1746, however, an unsworn declaration which is dated and signed by the declarant "under penalty of perjury" and verified as "true and correct" may be used, in lieu of a sworn affidavit, to support or respond to a motion for summary judgment.*fn3 DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 471 (7th Cir. 1990); Davis v. Frapolly, 756 F. Supp. 1065, 1067 (N.D. Ill. 1991). An unsworn declaration may substitute for an affidavit only if it subjects the declarant to penalties of perjury. DeBruyne, 920 F.2d at 471.

None of Plaintiffs' affidavits was sworn to before a notary; therefore, each constitutes an unsworn declaration that can be admissible only pursuant to 28 U.S.C. § 1746.*fn4 To this end, nine of the ten affidavits contain a "Verification" statement with date and signature. None, however, uses the statutory language "under penalty of perjury" in attesting to the truth of the statements therein. The affidavits of Plaintiffs Lopez and Vasquez state: "I, [declarant], swear on my oath and under penalty of the law requires [sic] everyone to tell the turth [sic] that my above statements are true." (Lopez Aff., Ex. 2 to Pl.'s 56.1; Vasquez Aff., Ex. 3 to Pl.'s 56.1.) Similarly, Ernesto Garduno and Matiana Garduno in their affidavits "swear on my oath and under penalty of the law for telling the truth that the above statements are true." (E. Garduno Aff. ¶ 3, Ex. 5 to Pl.'s 56.1; M. Garduno Aff. ¶ 4, Ex. 6 to Pl.'s 56.1.) The affidavits of Cisneros, Orozsco, Gonzales, and Castillo contain pithier language: "I, [declarant], swear on my oath and under penalt[y][ies] of the law that my statements above are true." (Cisneros Aff., Ex. 7 to Pl.'s 56.1; Orozsco Aff., Ex. 8 to Pl.'s 56.1; Gonzales Aff., Ex. 9 to Pl.'s 56.1; Castillo Aff., Ex. 10 to Pl.'s 56.1.) Plaintiff Trapaga's affidavit contains the briefest "Verification" statement and also incorrectly identifies the declarant: "I, Oscar Lopez, swear on my oath that above statements by me are true." (Trapaga Aff., Ex. 1 to Pl.'s 56.1, at 4.) In addition, Trapaga's verification statement is dated July 25, 2006, whereas the statements to which he presumably attests carry the date September 1, 2006. Hernandez's affidavit contains no verification statement whatsoever. (Hernandez Aff., Ex. 11 to Pl.'s 56.1.) Defendant urges that as none of the verification statements contains the "under penalty of perjury" language, the affiants are not subject to prosecution under the federal perjury statute, 18 U.S.C. § 1861; therefore, the affidavits do not satisfy 28 U.S.C. § 1746 and are thus inadmissible for summary judgment purposes under Rule 56(e).

Significantly, Plaintiffs are not proceeding pro se in this action.*fn5 Each affidavit states that it was prepared by Plaintiffs' counsel, who acknowledges in his response to Defendant's motion to strike that he personally drafted the affidavits and deliberately chose the above language. (Plaintiffs' Response to Motion to Strike Certain Exhibits ("Pl.'s Aff. Resp."), at 2.) Counsel explains that because the affiants are "factory workers who speak little or no English," "the affidavits omit the literal word 'perjury' (or its Spanish equivalent 'jur perjurio')" in favor of "language more meaningful and understandable to lay witnesses, particularly those with little sophistication or education." (Id. at 1-2.) Plaintiffs' counsel deems it "obvious that the simplified, non-technical language serves the interests of justice more meaningfully than the technical term 'perjury.'" (Id. at 2.) Counsel nevertheless assures the court that "Plaintiffs have redrafted the verifications to include the literal word 'perjury,'" and that he "will move to substitute same for the affidavits originally filed." (Id.) Counsel made these representations in a filing dated October 25, 2006; as of March 28, 2007, no such motion has been filed.

Plaintiffs' counsel maintains that the affidavits currently before the court are sufficient in any event. Citing the Seventh Circuit's decision in Pfeil, counsel contends that "Plaintiffs' intentions were to make more certain that [§ 1746] in substance was followed." (Id. at 3.) Counsel further, and inexplicably, cites the Illinois equivalent of § 1746 and contends that the affidavits are sufficient because the affiants would be subject to Illinois perjury penalties. (Id. at 3-4 (citing 735 ILCS 5/1-109).) Counsel neglects to mention the federal perjury statute, 18 U.S.C. § 1861, and ignores the fact that the Illinois statute imposes criminal liability for false statements in verified or sworn documents "filed in any court of this State." 735 ILCS 5/1-109 (emphasis added).

Pfeil, though it contains language that is, at first blush, sympathetic to Plaintiffs' position, is not directly applicable. There, the challenged affidavits were sworn to before a notary; the claimed defect was that they lacked the notary's seal. Pfeil, 757 F.2d at 858-59. The court observed that "in the interests of justice, a district court should not be unnecessarily hyper-technical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of execution are satisfied." Id. at 859. The fact that the Pfeil affidavits were indeed sworn, combined with the fact that the documents otherwise "complied with" § 1746, was sufficient to allow the court to consider the affidavits on summary judgment. Id. Here, as noted, none of the affidavits at issue were sworn to before a notary. Moreover, none of the affiants "unintentionally" failed to conform with procedural requirements; rather, as noted, Plaintiffs' counsel by his account deliberately drafted the verification statements in a self-proclaimed attempt to improve upon the statutory language of § 1746.

In Ghazi v. Fiserv, Inc., 904 F. Supp. 823, 827 (N.D. Ill. 1995), cited by Defendant, the court rejected two affidavits because they were improperly notarized and also failed to satisfy § 1746 in that "neither affiant states that he or she declares the contents of the affidavit to be true under the penalty of perjury." In Stewart v. Core Laboratories, Inc., 460 F. Supp. 931, 938-39 (N.D. Tex. 1978), the unsworn declaration was insufficient because even though the affiant stated that its contents were true, she left out the "under penalty of perjury" language altogether. Neither decision addresses the issue here: whether an affidavit can satisfy § 1746 if it lacks the statutory "under penalty of perjury" language, but does contain some kind of re-formulating or paraphrasing of that language.

Section 1746 itself does not require strict compliance with the "verification" statement provided as an example: the statute provides that an unsworn declaration "in substantially the following form" will be sufficient, followed by the exemplary sentence "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746. As noted by the court in In re Muscatell, 106 B.R. 307, 309 (Bankr. M.D. Fla. 1989), however, the "under penalty of perjury" language appears elsewhere in the statute. Preceding the example, § 1746 specifically states that an unsworn declaration must be "in writing of such person which is subscribed by him, as true under penalty of perjury . . . ." 28 U.S.C. § 1746 (emphasis added). The Muscatell court thus concluded that an unsworn declaration will not satisfy § 1746 unless it both states that the writing is true and "includes the phrase, 'penalty of perjury.'" 106 B.R. at 309. The declaration failed in that case because the declarant signed under penalty of perjury, but failed to declare the contents of the statement true and correct. Id.

The Second Circuit reached a different result in LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61 (2d Cir. 1999). There, the defendant submitted an unsworn letter that stated "Under penalty of perjury, I make the statements contained herein." Noting that § 1746 only requires that a verification statement be in "substantially" the form of the statutory example, the court held that the absence of "true and correct" language was not fatal; even if the letter "d[id] not contain the exact language of Section 1746," it "substantially complie[d]" with the statute. Id. at 65-66. The court did not indicate, however, whether a declaration that omitted the "under penalty of perjury" language would still be sufficient.

Indeed, Plaintiffs' counsel points to no case in which any court has considered, as admissible evidence in a summary judgment proceeding, an unsworn declaration in which the declarant fails to explicitly attest to the truth of the statements therein "under penalty of perjury." Nor is the court aware of any authority holding that a declaration is admissible pursuant to § 1746 without such language. Defendant, citing Stewart, labels this language "essential" because without it, the declarant is not subject to a perjury prosecution under federal law. (Defendant's Reply Memorandum in Support of Its Motion to Strike Affidavits in Whole or in Part ("Def.'s Aff. Reply"), at 3.) See Stewart,460 F. Supp. at 939 (by leaving out "essential language" that declaration was "true 'under penalty of perjury,'" declarant not subject to prosecution for perjury under 18 U.S.C. § 1861). As noted, however, Stewart did not involve a verification statement that nonetheless contained language purporting to be the equivalent of "under penalty of perjury."

Defendant is correct that a court may not consider an unsworn declaration unless it subjects the declarant to penalties of perjury. See DeBruyne, 920 F.2d at 471 (citing 28 U.S.C. § 1746). This court is not satisfied that the purportedly equivalent language in the affidavits submitted here, including "under penalty of the law requir[ing] everyone to tell the [truth]," "the law for telling the truth," or simply "the law," would bring the affidavits within the purview of the federal perjury statute. That statute imposes criminal liability on a person who, "in any declaration, certificate, verification, or statement under penalty of perjury as permitted under [§ 1746], willfully subscribes as true any material matter which he does not believe to be true[.]" 18 U.S.C. § 1861(2) (emphasis added). Section 1863 in turn provides for fine or imprisonment for those who "under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under [§ 1746]) in any proceeding before [any court of the United States] knowingly makes any false material declaration . . . ." 18 U.S.C. § 1863(a) (emphasis added). According to these provisions, a prerequisite to perjury liability is that the declaration be made "under penalty of perjury" in accordance with § 1746.

The repeated references to the phrase "under penalty of perjury" in 18 U.S.C. §§ 1861 & 1862 and in 28 U.S.C. § 1746 are compelling. Moreover, this court, like the court in Muscatell, finds persuasive the fact that preceding the sample verification statement that a declarant need only "substantially" follow, § 1746 explicitly requires an unsworn declaration to be "in writing of such person which is subscribed by him, as true under penalty of perjury . . . ." 28 U.S.C. § 1746 (emphasis added). Section 1746 thus does not appear to contemplate the validity of an unsworn declaration that does not contain this language.

Although the court can locate no authority supporting a construction of § 1746 that would allow the affidavits submitted by Plaintiffs to stand, the court notes the possibility of a less formalistic approach to the issue. Under this approach, the relevant inquiry would not be whether the affiants used the precise statutory language-or "substantially similar" language-in their verification statements, but whether the language used suggests that the affiants were aware that by signing the affidavits, they would be subject to penalties for perjury. In this sense, an affiant who signs "under penalty of the law requir[ing] everyone to tell the [truth]," as in the Lopez and Vasquez affidavits, or "under penalty of the law for telling the truth," as in both Garduno affidavits, appears to be aware of the general concept of perjury, including that the affiant is required to tell the truth and that there will be adverse legal consequences for making an false statement. This inference becomes weaker when the affiant signs only "under penalties of the law," as in the Cisneros, Orozsco, Gonzales, and Castillo affidavits, for that language fails to indicate any specific legal concept of which the affiant is aware. The inference disappears altogether with respect to Plaintiff Trapaga's affidavit, which contains no language suggesting Trapaga signed with awareness of any legal penalty for not being truthful, and with respect to Hernandez's affidavit, which entirely omits any kind of verification statement.

The court also finds disturbing several other issues relating to these affidavits. Plaintiffs' counsel's proffered explanation-that he was trying to improve upon the language explicitly provided in § 1746 to "serve[] the interests of justice more meaningfully"-is less than wholly plausible. Counsel himself acknowledges the existence of an obviously close translation of the relevant expression in Spanish. As Defendant points out, a more sensible course, if the affiants nevertheless really had as little understanding of the word "perjury" as counsel asserts, would have been simply to explain the concept to the affiants and then include the statutory language in their certifications. Furthermore, counsel represented to this court over five months ago that the affidavits had been re-drafted, and that he would move the court to submit them; to this date, no such motion has been forthcoming. Finally, as noted, these affidavits make up nearly the whole of Plaintiffs' evidentiary response to Defendant's motion for summary judgment, and their contents are largely devoted to denying facts presented in Defendant's affidavits and other evidence.*fn6 In short, the challenged affidavits may be the only thing standing between Plaintiffs and a grant of summary judgment for Defendant; yet in light of their unorthodox verification statements, these affidavits are of dubious validity.

Given Plaintiffs' near-exclusive reliance on the challenged affidavits, one would think that Plaintiffs' counsel would have made every attempt to ensure their admissibility, either by having them notarized, by following § 1746 more carefully, or at the very least by following through on his own promise to submit re-drafted affidavits. By doing none of those things, Plaintiffs' counsel has put his clients' case in jeopardy. Nonetheless, the court is reluctant to punish Plaintiffs for their counsel's inexplicably careless interpretation of evidentiary requirements. For purposes of this ruling, the court will consider an affidavit that lacks the express "under penalty of perjury" language, if, as explained above, the affidavit contains language indicating that the affiant was aware when signing the affidavit that he or she would be subject to penalties for perjury.

Under this standard, the Lopez, Vasquez, and both Garduno affidavits, which state that the affiants signed under the penalty of "the law requir[ing] everyone to tell the [truth]" or "the law for telling the truth," are sufficiently verified. This language suggests that the affiants knew that they were required to tell the truth and that there would be adverse legal consequences for not doing so. The affidavits of Cisneros, Orozsco, Gonzales, and Castillo, however, which attest to the truth of the statements therein only "under penalties of the law," are not sufficient; that language is simply too vague to suggest that the affiants knew they were signing under penalty of perjury. The court strikes those four affidavits in their entirety, as well as the Hernandez affidavit, which contains no verification statement whatsoever.

The court also strikes Plaintiff Trapaga's affidavit, which suffers from a number of problems. In his verification statement, Trapaga swears that "above statements by me are true," but uses no language suggesting an awareness of the penalties of perjury. (Trapaga Aff., at 4.) He does begin his affidavit by certifying "on my oath and under penalty of the law that the following is the truth," (id. at 1); this language suffers from the same defect of vagueness noted above. Moreover, the declarant identifies himself in the verification statement as "Oscar Lopez" and attests, on July 25, 2006, to the truth of statements dated September 1, 2006-six weeks later. Although Defendant urges that the affidavit be stricken on the basis of improper "cutting and pasting," it is not clear to the court that even "cutting and pasting" explains the misnomer and faulty date. There is no individual named "Oscar Lopez" in this action; there is an "Oscar Trapaga" and a "Jose Lopez." Nor does any verification statement on any of the affidavits carry the date July 25, 2006. Plaintiffs' counsel characterizes these issues as "obvious typos and inadvertent errors," states that "Plaintiffs have corrected these technical and inadvertent oversights," and again promises that he "will move the Court" to substitute a corrected affidavit. (Pl.'s Aff. Resp., at 4.) Again, however, counsel has failed to do so. Accordingly, the Trapaga affidavit is stricken in its entirety.

2. Authentication of Translated Material

Defendant also contends that the affidavits of Trapaga, Matiana Garduno, Oroszco, and Gonzales lack proper authentication of testimony translated from Spanish. As explained above, the court strikes the Trapaga, Oroszco, and Gonzales affidavits for improper verification. The court agrees with Defendant that these documents are improperly authenticated as well, and further strikes Matiana Garduno's affidavit for that reason.

Documentary evidence is admissible if authenticated "by evidence sufficient to support a finding that the matter in question is what its proponent claims." FED. R. EVID. 901(a). Written translations are subject to this authentication requirement. United States v. Nouira, No. 06-CR-135 (JBW), 2006 WL 2417245, at *2 (E.D.N.Y. Aug. 21, 2006) (Weinstein, J.); see FED. R. EVID. 604 ("[a]n interpreter is subject to the provisions of [the Federal Rules of Evidence] relating to qualification as an expert and the administration of an oath or affirmation to make a true translation."). Therefore, "[w]itness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done by a competent translator." Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994) (citing FED. R. EVID. 604 & 901).

Trapaga's affidavit contains an undated "Translator's Certificate" in which Plaintiff Vasquez, who states he is fluent in Spanish and English, certifies that he "accurately translated the above testimony of Jose Lopez from Spanish to English." (Trapaga Aff., at 4.) As the same material is appended to Lopez's affidavit, Plaintiffs' counsel appears to have cut and pasted the translation verification from that document to Trapaga's affidavit. This is improper, as the court cannot ascertain whether Vasquez in fact translated Trapaga's testimony, or whether that translation represents an accurate portrayal of that testimony. See Quiroga v. Fall River Music, Inc., No. 93 CIV. 3914(RPP), 1998 WL 851574, at *26 n.24 (S.D.N.Y. 1998) (cutting and pasting of text of affidavit and verification signature on translation constitutes tampering). Similarly, in Matiana Garduno's affidavit, Luz Maria Garduno certifies that she accurately translated the testimony of "Ernesto Garduno"-a certification clearly cut and pasted from Ernesto Garduno's affidavit.

Finally, Plaintiffs' counsel has attached, to the Orozsco and Gonzales affidavits, what the court assumes are Spanish-language versions of those affidavits. Both affiants state in the English-language versions that Spanish is their native language but that they speak some English. (Orozsco Aff. ¶ 1; Gonzales Aff. ¶ 1.) The English-language versions are (improperly) verified as discussed above; the Spanish-language versions contain no date, signature, or verification. Although the English-language versions appear to be translations of the Spanish-language versions, neither contains any translator's verification or other indication that the testimony was accurately translated. The affidavits are thus not properly authenticated. See Consejo de Desarrollo Economico de Mexicali, AC v. United States, 438 F. Supp. 2d 1207, 1226 (D. Nev. 2006) (striking declarations that appeared to have been written originally in Spanish and later translated into English, absent any indication that the English versions of the declarations were true and correct translations); Jack, 854 F. Supp. at 659 (striking plaintiffs' English-language affidavits where foreign-language versions were attached with no explanation regarding translation, and plaintiffs' unsworn statement that translations were accurate failed to cure the defect).

Plaintiffs' counsel responds to these deficiencies in authentication by maintaining that they resulted from inadvertent error. Counsel again asserts that the affidavits have been re-drafted to cure any defects, and represents that he will seek leave to allow substitution of the originals. (Pl.'s Aff. Resp., at 4.) As noted, counsel has not done so.

The court therefore strikes the Trapaga, Matiana Garduno, Cisneros, Orozsco, Gonzales, Castillo, and Hernandez affidavits in their entirety, on the basis of improper verification and/or authentication. With respect to the remaining affidavits from Plaintiff Lopez, Plaintiff Vasquez, and Ernesto Garduno, the court considers Defendant's objections to their substantive content where Plaintiffs rely on those affidavits for evidentiary support, as noted herein.

B. Motion to Strike Plaintiffs' LR 56.1 Materials

Defendant moves to strike portions of Plaintiffs' LR 56.1 statement of additional facts that rely on the above affidavits, and further urges the court to strike certain paragraphs in Plaintiffs' LR 56.1 materials for failure to comply with LR 56.1 on a number of technical grounds. The court grants Defendant's motion with respect to any factual assertion that relies exclusively on one or more of the stricken affidavits for evidentiary support. Thus, paragraphs 109, 119, and 120 of Plaintiffs' LR 56.1 statement of additional facts are stricken. Furthermore, where Plaintiffs cite to both stricken and non-stricken affidavits, the court will disregard the citation to the stricken material when evaluating whether Plaintiffs' assertions are supported by record evidence.

Defendant further asks the court to deem facts contained in certain paragraphs of Defendant's LR 56.1 statement admitted because Plaintiffs offered no response to those paragraphs, (Def.'s 56.1 Mem. ¶ 15); to strike Plaintiffs' responses that include statements of additional fact, legal argument or narrative, or incomplete citations to the record, (id. ¶¶ 16-19); and to strike Plaintiffs' statements of additional fact to the extent that Plaintiffs' assertions are unsupported by the cited evidence, are irrelevant, or consist of conclusory statements or argument. (Id. ¶¶ 23-32.) The court agrees that Plaintiffs have to a large degree failed to comply with LR 56.1.*fn7 Rather than address Defendant's motion with regard to specific deficiencies here, however, the court will sustain Defendant's objections where appropriate, with or without comment, in the course of this opinion.

II. Facts

A. The Parties

Plaintiffs Trapaga, Lopez, and Mark Vasquez are former employees of Edsal, which makes steel shelves and related items. (Def.'s 56.1 ¶¶ 8-9.) Defendant Local 10, whose full and correct name is "Production Workers Union, Local 10," was a labor organization at all relevant times prior to June 30, 2004, when it merged with another union local and ceased to exist. (Id. ¶ 5.) Local 10 was affiliated with the Central States Joint Board ("CSJB"), a labor organization consisting of several other labor organizations.*fn8 (Id. ¶¶ 4,6.)

In April 2003 and continuing through June 30, 2004, Local 10 was the exclusive bargaining representative of a unit of Edsal's production and maintenance employees. (Id. ¶ 11.) Approximately 900 employees, including Plaintiffs, were in that bargaining unit. (Id. ¶ 12.) CSJB business agents Wayne Woodard and Antonio Rios were assigned by CSJB to assist Local 10 in representing the Edsal employees in Local 10's bargaining unit. (Id. ¶ 13.)

Edsal and Local 10 were parties to a collective bargaining agreement (the "CBA") governing the terms and conditions of Edsal employees' employment. (Id. ¶ 14.) The CBA permits Edsal to, inter alia, establish reasonable work rules and discipline, and discharge employees for cause. (Id. ¶ 15.) The CBA also contains a grievance procedure covering any difference of opinion with respect to the meaning and application of the CBA's terms and conditions. (Id. ¶ 16.) The grievance procedure culminates in final and binding arbitration. (Id. ¶ 17.)

Since prior to April 2003, Edsal maintained written work rules that it distributed to its employees. (Id. ¶ 18.) Work Rule 28 prohibits an employee from engaging in "[i]mproper or immoral conduct which reflects in any way on the Company or on the employee's ability to perform his job." (Id. ¶ 19; Work Rules ¶ 28, Ex. 25 to Def.'s 56.1.) The rule calls for discharge upon the first offense. (Def.'s 56.1 ¶ 19 (citing Work Rules ¶ 28).) Work Rule 29 prohibits an employee from engaging "in solicitation of any kind" and from distributing literature on Edsal property during working hours. (Id. ¶ 20; Work Rules ¶ 29.) This rule defines "solicitation" as including "sales of products . . . or solicitation of membership in or support for any organization or cause." (Work Rules ¶ 29.) In contrast to Rule 28, Rule 29 provides for a four-step progressive disciplinary procedure: a verbal warning for the first offense, a written warning for the second and third offenses, and discharge upon the fourth offense. (Id.; Def.'s 56.1 ¶ 20.)

B. Plaintiffs' Terminations

In or around April 2003, another labor organization, the United Electrical, Radio and Machine Workers of America (the "UE") began an organizing drive among Edsal employees then represented by Local 10. (Def.'s 56.1 ¶ 21.) As part of UE's organizing drive, Edsal employees circulated petitions which they asked other employees to sign to demonstrate their support for the UE. (Id. ¶ 22.) Neither party identifies which or how many employees participated in the UE organizing drive, nor explains, in its LR 56.1 statement, the extent of Plaintiffs' involvement. The court notes, however, that in their NLRB affidavits, Plaintiffs Trapaga, Lopez, and Vasquez all testified that they collected signatures for UE petitions, but only during breaks.*fn9 (NLRB Trapaga Aff., at 3-4; NLRB Lopez Aff., at 1; NLRB Vasquez Aff., at 2.)

Defendant asserts that on or about May 8, 2003, Edsal posted a notice to employees reminding them that Edsal rules prohibit solicitation during working hours and in work areas. (Def.'s 56.1 ¶ 23.) To support this assertion, Defendant cites to the affidavit of CJSB business agent Rios, and to a undated copy of this posting that Rios authenticates. (Rios Aff. ¶ 23, Ex. 1 to Def.'s 56.1; Notice, Ex. 12 to Def.'s 56.1.) Plaintiffs deny this assertion, citing to the affidavits of Plaintiffs Lopez and Vasquez, who state that "there was no special notice posted"; Vasquez further states that he would know because he checked the bulletin board every day. (Lopez Aff. ¶ 9; Vasquez Aff. ¶ 9.) Plaintiffs also cite to the deposition testimony of Edsal employee Jose Trevino, who, when shown a copy of the posting identical to that cited by Defendant, testified that he had never seen it before. (Trevino Dep., at 60.)

On May 13, 2003, Edsal suspended Plaintiffs and Trevino, pending an investigation, for disrupting the workforce on company property and on company time by soliciting employees for the UE. (Def.'s 56.1 ¶ 24.) Plaintiffs' and Trevino's suspension notices, copies of which are included in Defendant's LR 56.1 materials, do not mention solicitation but instead cite Edsal's prohibition of "improper conduct" in accusing the recipients of "disrupting the workforce." (E.g., Employee Warning for Mark Vasquez, Ex. 15 to Def.'s 56.1.) Rios' affidavit asserts, however, that it was the employees' solicitation activities that constituted that disruption.*fn10 (Rios Aff. ¶ 24.)

Plaintiffs and Trevino swiftly filed grievances: Lopez on May 13, 2003, Trevino and Trapaga on May 14, and Vasquez on May 19. (Def.'s 56.1 ¶¶ 25-28.) On May 22, 2003, Woodward and Rios, representing the suspended employees at a grievance meeting with Edsal, urged their reinstatement. (Id. ¶¶ 31-32.) Edsal refused Local 10's request the following day and denied the grievances. (Id. ¶ 33.) On May 29, 2003, Edsal discharged Plaintiffs and Trevino. (Id. ¶ 34.) Their identical termination notices stated that "[t]he reason for the termination was based on rule violation [sic] causing disruption in the work place during work hours/interference." (Termination Notice for Jose Lopez, Ex. 21 to Def.'s 56.1.) The notices stated, further, that all Edsal employees had recently been "notified in writing that solicitation of any kind during the work day, during the work hours which interferes with production" would result in discipline "if any employee violates this rule." (Id.) Each notice then informed the discharged employee that he had "recently committed repeated violations of this rule." (Id.) Although the notices do not mention the UE, Defendant again asserts, supported by Rios' affidavit, that the four employees were terminated "for disrupting the workplace by soliciting for the UE." (Def.'s 56.1 ¶ 34.) Plaintiffs do not challenge this assertion. (Pl.'s 56.1

ΒΆΒΆ 25-39 (explicitly admitting Defendant's assertions in ...

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