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Anne Costin (SBN 260126) 

COSTIN LAW INC.

315 Montgomery Street, 10th Floor 

San Francisco, CA 94104 

Tel: (415) 977-0400 

Email: anne@costinlawfirm.com 

Attorney for Creditor TODD HEARN 

 

UNITED STATES BANKRUPTCY COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

In re 

PG&E CORPORATION 

& 

PACIFIC GAS & ELECTRIC COMPANY, 

 Debtors 

TODD HEARN 

 Creditor and Moving Party 

v. 

PACIFIC GAS & ELECTRIC COMPANY 

 Debtor & Responding Party 

 Bankruptcy Case No. 19-30088 

Chapter 11 

SUPPLEMENTAL BRIEF 

IN SUPPORT OF 

MOTION FOR RELIEF 

FROM AUTOMATIC STAY 

Dept: Courtroom 17, 16th Floor 

 450 Golden Gate Avenue 

 San Francisco, CA 94102 

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SUPPLEMENTAL BRIEF ISO MOTION FOR RELIEF FROM STAY 

Moving party and creditor TODD HEARN submits this supplemental brief pursuant to this 

Court’s November 17, 2019 order at hearing. 

I. INTRODUCTION. 

 As the Court will recall, HEARN is a former PG&E lineman who was fired after he made 

numerous complaints to PG&E about unsafe and illegal activities and conditions which posed severe 

fire hazards in Napa. HEARN filed a motion for relief from the automatic stay in this action so that 

he may pursue his California State statutory whistleblower employment claims (i.e., his Labor Code 

1102.5 and 6310 claims) in the Napa County Superior Court. 

 In response to HEARN’s motion, PG&E argued that there was no need to lift the stay, 

because HEARN already has a pending union grievance related to his termination. Specifically, 

PG&E argued that: (1) the collective bargaining agreement (“CBA”) between PG&E and the Union1

requires that HEARN pursue his claims solely through the CBA’s grievance process; and (2) that 

HEARN’s state whistleblower claims are preempted by the Labor Management Relations Act. 

 Because these claims by PG&E are legally unsupported, HEARN requested this opportunity 

to provide further briefing. As set forth below, the CBA here does not even reference, let alone bar, 

HEARN’s ability to pursue his statutory Labor Code claims in State court. Moreover, given that the 

Union grievance process does not provide HEARN with the same procedural rights (a lawyer, 

discovery, a jury trial) and substantive remedies (full compensatory damages, punitive damages, 

attorneys fees) that a State Court action would, cause absolutely exists to lift the stay. 

 California’s whistleblower statutes were designed to protect both employees and the 

members of the public that those whistleblowers stood up for. PG&E fired HEARN in an attempt to 

silence his safety complaints, but the company does not now have the ability to force his statutory 

retaliation claims into a private arbitration. HEARN has the statutory right to bring his claims in a 

1

 The International Brotherhood of Electrical Workers Local 1245 (i.e. “the Union”) 

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public court before a jury of his peers in State court. He requests that the automatic stay be lifted so 

that he may do so. 

II. LEGAL ARGUMENT. 

 PG&E cannot force Hearn to adjudicate his California Labor Code claims (his statutory 

whistleblower employment claims) as part of the union grievance process. In fact, Hearn may 

actually be unable to present such claims during any union arbitration. (See Pacheco Declaration, 

Paragraph 7.) 

 Despite PG&E’s unsupported assertion to the contrary, Hearn’s State law claims are not 

preempted by Federal law, nor by any private collective bargaining agreement (“CBA”): they are 

statutory rights that do not arise out of, nor require, interpretation of the CBA. 

 Cause, including significant and ongoing financial harm to Hearn, exists to support the lifting 

of the automatic stay to allow Hearn to pursue his State statutory employment claims in State court. 

A. The CBA Between PG&E and the Union does Not Waive 

 Hearn’s Right to File a State Statutory Whistleblower Case. 

 PG&E argues that “the CBA compels Hearn to pursue his claims solely through the 

grievance process” because the contract with the Union has broad language stating that “all 

disagreements” and “all disputes involving discharge” shall be determined under the grievance 

procedures. (PG&E Objection Page 11 of 16, citing Campos Declaration Paragraph 12). 

 PG&E’s argument is directly contradicted by California State and Federal law. In 1998, the 

United States Supreme Court decided Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 

70. In Wright, an employer attempted to force an employee’s statutory ADA discrimination clams 

into a union grievance procedure, based on a CBA clause which required arbitration of all “matters 

under dispute.” (Wright at 80.) The high Court refused to force the case into the union grievance 

system, holding that, “In order for a union to waive employees' rights to a federal judicial forum for 

statutory antidiscrimination claims, the agreement to arbitrate such claims must be clear and 

unmistakable.” (Id.) Wright explained that the CBA’s arbitration clause was “very general” and 

“contains no explicit incorporation of statutory antidiscrimination requirements.” (Id.) Here, as in 

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Wright, the CBA between PG&E and Hearn’s Union contains no mention of or reference to 

California’s statutory anti-discrimination and retaliation provisions. 

 Since Wright was decided 20 years ago, numerous Federal and California cases have 

confirmed that without a “clear and unmistakable waiver,” a CBA does not operate to compel an 

employee to arbitrate statutory employment claims: 

 In Carmago v. California Portland Cement Company (2001) 86 Cal.App.4th 995, 1008, an 

employer claimed that its CBA barred a former employee from pursuing her Title VII discrimination 

and harassment claims in State court. Carmago rejected the employer’s argument, explaining that 

“A union cannot waive its employee’s statutory rights through a private contract/CBA with an 

employer because of the “paramount” purpose behind Title VII. (Carmago at 1008, citing 

Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36.) Following the precedent set forth in Wright, 

supra, the Carmago court explained that “if the FEHA [statutory] claims of a union member are to 

be finally resolved by arbitration (with the concomitant loss of a jury of one's peers), the agreement 

to do so in a CBA must be "clear and unmistakable.” (Carmago, Id., citing Wright, supra at 80.) 

The Carmago court stressed that the CBA at issue did not contain such a waiver, because it did not 

expressly provide for the arbitration of statutory employment claims “and its antidiscrimination 

clause does not explicitly incorporate statutory requirements.” (Id.) 

 In Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, an employee sued for disability 

discrimination under State and Federal statute, but the trial court ordered the case to arbitration 

pursuant to a CBA clause. On appeal, the decision was overturned, with the court holding, “We 

conclude that the CBA does not contain a clear and unmistakable waiver of these statutory rights.” 

(Id.) Notably, the CBA at issue in the Vasquez case not only had a clause stating that “all disputes 

.... Including discharges” should be subject to the grievance process, but also contained a general 

anti-discrimination provision stating that the employer would not discriminate “under applicable 

federal and state law.” (Id.) Even with that reference to external law contained in the CBA, the 

court refused to compel the case to union arbitration. It explained, “Broad, general language is not 

sufficient to meet the level of clarity required to effect a waiver in a [collective bargaining 

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agreement]. In the collective bargaining context, the parties ‘must be particularly clear’ about their 

intent to arbitrate statutory discrimination claims.” ... “A simple agreement not to engage in acts 

violative of a particular statute will not suffice; the agreement must establish the intent of the parties 

to incorporate "in their entirety" the discrimination statutes.” And: “Neither disability discrimination, 

the FEHA, nor the ADA is mentioned in the CBA. Thus, we cannot conclude that the union clearly 

and unmistakably waived Vasquez's right to a judicial forum for his statutory disability 

discrimination claim. The general language of the CBA is simply insufficient.” (Vasquez at 436.) 

 In Zavala v. Scott Brothers Dairy (2006) 143 Cal. App. 4th 585, employees sued for Labor 

Code (wage) violations. The employer moved to compel the claims into a union grievance process a 

based on a CBA. The trial court denied the motion, and the appellate court affirmed: “We conclude 

that regardless of whether the CBA includes a broad arbitration provision, that clause is not binding 

on plaintiffs because the Union could not waive plaintiffs’ right to bring statutory labor-rights claims 

in court and because such claims did not arise under the CBA.” (Zavala at 592.) The Zavala court 

stressed that “different considerations apply where the employee’s claim is based on rights arising 

out of a statute designed to provide minimum substantive guarantees to individual workers.” 

(Zavala at 593.) 

 Also of note, the Zavala court explained that an employee’s prior presentation of a grievance 

regarding the same or a similar issue does not affect the ability to proceed in court when based on a 

statutory right: “Moreover, courts have repeatedly held that the prior submission of certain statutory 

claims to final and binding arbitration does not bar a subsequent lawsuit where the employees have 

not waived their statutoriy protected rights to a judicial resolution.” (Zavala at 595-596, citing 

Barrantine v. Arkansas-Best Freight System (1981) 450 US 728, 740.) Here, the grievance filed by 

the Union on Hearn’s behalf does not include allegations of whistleblower retaliation, nor does it 

allege any violations of the California Labor Code. (Pacheco Declaration, Paragraph 7.) 

 In Volpei v. County of Ventura (2013) 221 Cal.App. 4th 391, an employee filed suit for a 

statutory discrimination claim, and the employer moved to compel arbitration pursuant to a CBA. 

Again rejecting the attempt, the Volpei decision explained that the CBA “does not provide for a clear 

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and unmistakeable waiver of Volpei’s right to a judicial forum for his statutory discrimination 

claim.” (Volpei at 393.) Notably, the CBA at issue in Volpei went so far as to define a grievance to 

include a dispute regarding “a complaint of illegal discrimination”; even this was not sufficient to 

constitute a waiver, because the CBA “does not refer to the FEHA or any other statute.” (Volpei at 

395) 

 Finally, in the recent case of Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) 8 

Cal.App.5th 236, an employer tried to force an employee’s California Labor Code claims into a 

union grievance arbitration pursuant to a broad CBA clause. The Vasserman court rejected the 

attempt, explaining that the CBA “did not include an explicitly stated, clear and unmistakable waiver 

of the right to a judicial forum for claims based on statute.” (Id) The Vasserman decision explained 

that a union may not prospectively waive an individual employee's right to a judicial forum to hear 

his or her statutory discrimination claims, because “a collective bargaining agreement, by its very 

nature, may address only the common, contractual rights of the members of the bargaining unit.” 

(Vasserman, citing Torrez v. Consolidated Freightways. (1997) 58 Cal.App.4th 1247, 1259.) 

 As the Court can see, PG&E’s argument that the CBA’s broad reference to “discharges” 

being subject to the CBA grievance procedure does not mean that Hearn’s statutory whistleblower 

claims must be brought through the union grievance process. Two decades of law confirm just the 

contrary. 

B. Hearn Is Unable to Adjudicate his Statutory Claims through the Union 

Grievance Process. 

 As set forth above, PG&E cannot force Hearn to bring his State Labor Code retaliation 

claims through the grievance process set forth in the CBA between the company and the Union. But 

in reality, Hearn actually may be unable to present such claims during any union arbitration. 

 As set forth in the concurrently filed Declaration of Alexander Pacheco, general counsel for 

The International Brotherhood of Electrical Workers Local 1245 (i.e. “the Union”), labor arbitrators 

(i.e., arbitrators appointed to hear grievances like Hearn’s) are typically not vested with authority to 

determine matters of “external law” (e.g. State or Federal law). (Pacheco Declaration Paragraph 7.) 

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Labor arbitrators are tasked solely with determining whether the terms of the written contract – in 

this case, the CBA between IBEW 1245 and PG&E – have been violated. (Pacheco Declaration 

Paragraph 7.) 

 Labor arbitrators cannot step into the shoes of a civil court judge or jury and adjudicate 

statutory whistleblower claims. (Pacheco Declaration Paragraph 7.) Accordingly, the grievance 

filed on behalf of Hearn does not include allegations of whistleblower retaliation, nor does it allege 

any violations of the California Labor Code. (Pacheco Declaration Paragraph 7.) The grievance that 

the Union filed on Hearn’s behalf asserts only that Hearn was “terminated without just and sufficient 

cause,” which is a requirement for termination of Union members under the CBA. (Pacheco 

Declaration Paragraph 6.) 

 As such, despite PG&E’s unfounded assertion to the contrary, the CBA does not compel 

Hearn to pursue his statutory Labor Code retaliation claims through the Union grievance; in fact he 

cannot do so. 

C. Hearn’s Claims are Not Preempted by Federal Law. 

PG&E argues that Hearn’s proposed lawsuit “may be” preempted by the Federal Law, i.e., the 

Labor Management Relations Act (“LMRA”). (PG&E Objection Page 11 of 16). It is not. Plaintiff's 

claims are not based on any rights contained within the CBA and are not dependent on any analysis or 

interpretation of the CBA. 

1. Plaintiff’s Claims do Not Arise from a Right or Duty of the CBA. 

 When determining whether LMRA preemption exists, courts conduct a two-step inquiry. 

(Burnside v. Kiewit Pac. Corp. (9th Cir. 2007) 491 F.3d 1053, 1060; Alaska Airlines Inc. v. Schurke

(9th Cir. 2018) 898 F.3d 904, 915 (en banc), cert. denied, 139 S. Ct. 1445 (2019).) The first step is to 

ask whether a claim “rises entirely from a right or duty of the CBA,” that is, whether the CBA is the 

“only source of the right the plaintiff seeks to vindicate.” (Schurke at 920-21, see also Wright, supra.) 

Here, none of Plaintiff’s claims arise from a right or duty of the CBA. They are independent 

California law claims. The CBA is not even referenced in Plaintiff’s Complaint. 

PG&E cites to Kobold v. Good Samaritan Reg’l Med. Ctr. (9th Cir 2016) 832 F. 3d 1024 for the 

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assertion that an employee must vindicate personal “contract-based rights” through the grievance 

process. (PG&E Objection, Page 13 of 16.) Hearn agrees. But state law whistleblower rights are not 

based in contract, i.e., the CBA. When state statutory claims are at issue, the 9th Circuit (i.e., the same 

court which decided Kobold) has expressly stated that Kobold’s reasoning does not apply and should 

not be relied on to “limit the enforcement of state law employment discrimination protections.” 

(Matson v. United Parcel Service (2016) 840 F. 3d 1126, 1136.) 

2. Interpretation of the CBA is Not Required. 

 The second step of the preemption inquiry is to ask “whether litigating the state law claim 

nonetheless requires interpretation of a CBA.” (Schurke at 921, emphasis added.) Notably, merely 

“referring to”, “considering,” or “consulting” a CBA does not constitute “interpretation” of the CBA 

for preemption purposes. (Id., quoting Balcorta v. Twentieth Century-Fox Film Corp. (9th Cir. 2000) 

208 F.3d 1102, 1108; see also Dent v. National Football League (9th Cir. 2018) 902 F.3d 1109, 111. 

“Claims are only preempted to the extent that there is an active dispute over the meaning of contract 

terms.” Id., quotations omitted, emphasis added). No such dispute is present here. 

PG&E cites to only one case in support of its argument that preemption is required here 

because “interpretation” of the CBA is required – a 6th Circuit case from 2006: Klepsky v. United 

Parcel Service (2006) 489 F. 3d. 264. Klepsky of course is not binding. It is also wrongly decided. 

In Klepsky, the court examined Ohio law, said that merely by seeking “reinstatement” in his state court 

action that an employee somehow had triggered “interpretation” of the CBA and implicated a right 

created under the CBA. The Klepsky court completely ignores the fact that injunctive relief, i.e. 

reinstatement, is not only a right based in a CBA, but also a remedy given by State law. 

For example, the very Labor Code claims that Hearn has alleged here contain express statutory 

language providing for reinstatement. Labor Code Section 1102.5 and 6310 both provide that any 

employee who is discharged in retaliation for making complaints “shall be entitled to reinstatement” 

(Labor Code 6310(b) and Labor Code 98.6(b)(1), referring to Labor Code “commencing with Section 

1101, see Labor Code 98.6(a).) Reinstatement is statutory right in California, not a “right created 

under the CBA” as claimed in Klepksy.

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In further support of the argument that the 6th Circuit case of Klepsky v. United Parcel Service 

(2006) 489 F. 3d. 264 was wrongly decided: in 2016, the 9th Circuit examined the same CBA at issue 

in Matson v. United Parcel Service (2016) 840 F. 3d 1126, and found that LMRA preemption was not 

warranted, because adjudication of state law statutory harassment and discrimination claims did not 

require interpretation of the CBA. (Matson at 1136.) 

 PG&E’s attempts to force Hearn’s whistleblower claims out of a public state court and into 

private arbitration must fail. Courts should focus on the contents of a plaintiff’s complaint and not 

allow a defense to trigger preemption. (Peters v. RFI Enterprises, Inc. (N.D. Cal. Aug. 15, 2018) No. 

18-CV-01187-BLF, 2018 WL 3869564, at *4; see also Lopez v. Rosendin Electric, Inc. (C.D. Cal., 

June 26, 2018) No. CV185074FMOJEMX, 2018 WL 3154935, at *3, (“It is well-settled that if a 

plaintiff’s claims are ‘plainly based on state law, § 301 preemption is not mandated simply because the 

defendant refers to the CBA in mounting a defense.’”) 

 California State Labor standards are not preempted by the LMRA, as demonstrated by both 

California and Federal cases: 

In Paige v. Henry J. Kaiser Co. (9th Cir. 1987) 826 F.2d 857, employees sued for wrongful 

termination (based on the public safety policies set forth in Labor Code Section 6310 and 6400, as in 

this case), claiming that they were fired after they refused to fill generators with gasoline under unsafe 

conditions. On appeal, the Ninth Circuit held, “The resolution of appellants’ wrongful discharge claim 

therefore depends upon an analysis of Cal/OSHA and California tort law. Since it is not intertwined or 

substantially dependent upon consideration of the terms of the labor contract, it is not preempted by 

section 301.” (Paige at 863.) 

In Haney v. Aramark Uniform Services (2004) 121 Cal.App.4th 623, a former employee sued 

for retaliatory discharge, alleging he had been fired for complaining about fraudulent billing practices. 

The trial court granted summary adjudication based on LMRA preemption. On appeal, that decision 

was reversed, finding that “resolution of the wrongful discharge claim is not dependent upon an 

interpretation of the collective bargaining agreement.” (Id. at 629, emphasis added.) Explaining its 

ruling, the court stated, “If the claim is plainly based on state law, § 301 preemption is not mandated 

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simply because the defendant refers to the CBA in mounting a defense.” (Id. at 641; see also Matson v 

United Parcel Service (9th Cir. 2016) 840 F.3d 1126, 1133, employment claim not preempted by 

LMRA simply because UPS defended against case by referring to CBA language.)

In Germann v. Vulcan Materials Co. (S.D. Cal. 2000) 106 F.Supp.2d 1010, 1011, a truck driver 

sued his former employer for wrongful termination in violation of public policy, claiming that he was 

fired in retaliation for reporting violations of state safety laws; the employer tried to dismiss the case 

based on LMRA preemption. The court found that there was no preemption, holding that “plaintiff’s 

action for wrongful termination in violation of California's public policy is sufficiently independent of 

the CBA such that section 301 preemption does not apply.” (Id. at 1014.) 

 The claims that PG&E claims are preempted are all California State law claims, and do not 

require interpretation of the CBA. 

 D. The Limited Remedies and Lack of Discovery in the Union Grievance Process 

Make Enforcement of the CBA Unconscionable. 

 PG&E argues that because reinstatement and backpay are possible remedies to Hearn in the 

CBA grievance process, the Court should just let it “run its course.” (PG&E Objection Page 6 of 

16.)However in order to be enforceable in California, arbitration agreements in the employeremployee context must provide for: (1) neutral arbitrators, (2) more than minimal discovery, (3) a 

written award, (4) all types of relief that would otherwise be available in court, and (5) no 

additional costs for the employee beyond what the employee would incur if he or she were bringing 

the claim in court. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 

83, 102, 110-111.) 

 Here, as confirmed by the Union’s general counsel, the PG&E grievance process does not 

provide for any depositions, does not provide for general nor punitive damages, does not allow 

Hearn to retain his own counsel to represent him during any step of the grievance process, and does 

not provide for attorney’s fees to be awarded to the prevailing employee. (Pacheco Declaration 

Paragraphs 9-13.) As guaranteed by the statute at issue here, all of these rights and remedies would 

be available to Hearn during the State court adjudication process. As would, of course, a Jury. It 

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should also be noted that in State Court, as opposed to Federal Court, Hearn would only have to 

obtain 9 of 12 jurors vote on each claim and element in order to prevail in his retaliation action. 

 E. Significant and Ongoing Harm Support Lifting of the Stay. 

In his moving papers, Hearn asserted that “Because PG&E monopolizes the entire power 

industry in the area, this termination by PG&E effectively ended HEARN’s career: there are no nonPG&E affiliated lineman positions within hours of HEARN’s home.” In response, PG&E’s 

Objection argued that that “Although the Utility has designated Hearn as ineligible to work on any 

Utility projects, this restriction in no way prevents Hearn from obtaining employment with a 

contractor, another utility, or a municipality.” (PG&E Objection, Page 12 of 16, emphasis added.) 

This statement by PG&E is misleading at best. In August of 2019 PG&E directly informed 

Hearn, in writing, that he was “ineligible for rehire” with PG&E including as a hiring hall employee, 

or as an agency worker, contractor, or subcontractor working on PG&E projects.” (see Exhibit A to 

concurrently submitted Hearn Declaration). 

PG&E argues that it does not have a monopoly over the power industry in Northern 

California; the “Company Profile” on their public website provides otherwise: “Service area 

stretches from Eureka in the north to Bakersfield in the south, and from the Pacific Ocean in the west 

to the Sierra Nevada in the east.” (See https://www.pge.com/en_US/about-pge/companyinformation/profile/profile.page). 

PG&E argues that Hearn cannot show severe harm because he could just obtain employment 

with another utility or with a municipality. As set forth in Hearn’s Declaration, there are not any 

other utilities within several hours of his home in Napa, and as such he can’t work as a lineman for a 

utility unless I commuted to Bakersfield, Nevada, or up north past Mt. Shasta. (Hearn Declaration 

Paragraph 5.) While there are municipalities in Sacramento, Santa Clara, and Ukiah, they are also 

far from (at least an hour away from) Hearn’s home in Napa. (Hearn Declaration Paragraph 6.) 

Because of Hearn’s family responsibilities (he has two minor children who live at home with me) it 

would be extremely difficult for him to commute several hours each day. (Hearn Declaration 

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Paragraph 6.) Despite this, he have applied for work with these municipalities, but has not received 

any job offer. (Hearn Declaration Paragraph 6.) 

When PG&E fired Hearn in January, he stopped receiving income and lost my health benefits 

for me and for my family. (Hearn Declaration Paragraph 7.) He have exhausted all of my savings, 

and has been forced to withdraw money early from my 401K in order to cover his mortgage 

payments. (Hearn Declaration Paragraph 7.) He sold my truck and a family car to try to keep up 

with his financial obligations, but is severely behind on the payments for his children’s school, and 

am becoming increasingly concerned about how his family will make ends meet. (Hearn 

Declaration Paragraph 7.) 

The harm that Hearn continues to suffer is grave and specific. In contrast, PG&E makes only 

a conclusory claim that defending a single plaintiff lawsuit would interfere with the Debtors’ 

reorganization efforts. It is hard to imagine how this is the case, given that PG&E has several inhouse lawyers dedicated specifically to employment litigation. (See Paragraph 1 of Declaration of 

PG&E attorney Stacy Campos). 

III. CONCLUSION. 

As set forth above and in the underlying moving papers previously submitted, cause exists 

for immediate relief from stay so as to allow moving party and creditor TODD HEARN to pursue his 

California Labor Code claims in the Napa County Superior Court. 

 Respectfully Submitted, 

DATED: December 31, 2019 COSTIN LAW INC.

 By: //s// Anne Costin 

 ANNE COSTIN 

Attorney for Creditor/Moving Party HEARN 

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