NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRENDA JEAN ANDERSEN- No. 19-55235 SWIDERSKI, individually, D.C. No. Plaintiff-Appellee, 3:18-cv-01219-WQH-AGS
v. MEMORANDUM* KAISER PERMANENTE SOUTHERN CALIFORNIA OPTOMETRIC ASSOCIATION,
Defendant-Appellant,
and
DOES, 1-10; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a California partnership,
Defendants.
BRENDA JEAN ANDERSEN- No. 19-55238 SWIDERSKI, individually, D.C. No. Plaintiff-Appellee, 3:18-cv-01219-WQH-AGS
v.
SOUTHERN CALIFORNIA
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. PERMANENTE MEDICAL GROUP, a California partnership,
KAISER PERMANENTE SOUTHERN CALIFORNIA OPTOMETRIC ASSOCIATION; DOES, 1-10,
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding
Submitted May 5, 2020** Pasadena, California
Before: M. SMITH, BADE, and BRESS, Circuit Judges.
Southern California Permanente Medical Group (Kaiser) and Kaiser
Permanente Association of Southern California Optometrists (KPASCO)
(collectively, Appellants) appeal the district court’s grant of summary judgment in
favor of Brenda Jean Andersen-Swiderski (Dr. Andersen) on her “hybrid” claim
under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for
breach of a collective bargaining agreement by Kaiser and concomitant breach of
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 the duty of fair representation by KPASCO. See DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 165 (1983). We have jurisdiction under 28 U.S.C.
§ 1291. Although we agree with the district court that the statute of limitations
was tolled and that Kaiser breached the collective bargaining agreement, we vacate
the judgment and remand for further proceedings because genuine disputes of
material fact preclude summary judgment as to whether KPASCO breached its
duty of fair representation.1 See, e.g., Bliesner v. Commc’n Workers of Am., 464
F.3d 910, 913 (9th Cir. 2006) (“In order to prevail in [a hybrid § 301] suit, the
plaintiff must show that the union and the employer have both breached their
respective duties.”).
1. We agree with the district court that the statute of limitations was
tolled by Dr. Andersen’s “good faith attempts . . . to resolve [her] claim through
grievance procedures.” Galindo v. Stoody Co., 793 F.2d 1502, 1510 (9th Cir.
1986). The delay was “only a few months,” id. at 1510 n.4, and Kaiser handled
(and ultimately denied) Dr. Andersen’s claim as a formal Step 1
grievance. Appellants cite no evidence indicating that Dr. Andersen pursued non-
judicial resolution of her dispute in bad faith, nor that the non-judicial grievance
1 Although we vacate the grant of summary judgment, we address the propriety of the district court’s rulings that the statute of limitations was tolled and that Kaiser breached the collective bargaining agreement “in case the same issues arise on remand.” United States v. Mancuso, 718 F.3d 780, 796 (9th Cir. 2013).
3 procedures she followed could not have resulted in the relief she sought. See id. at
1510 & n.5.
2. On de novo review, we agree with the district court that the collective
bargaining agreement unambiguously entitled Dr. Andersen to a salary
continuance benefit of 50% of her base salary regardless of any other benefits she
received through state disability insurance or otherwise. See Westinghouse
Hanford Co. v. Hanford Atomic Metal Trades Council, 940 F.2d 513, 516 (9th Cir.
1991) (describing standard of review). Under the local collective bargaining
agreement, both Short-Term Disability Insurance and Long-Term Disability
“provide[] at least” 50% of base salary, or “up to” 60% of base salary if
“combined” or “integrated” with other benefits. By contrast, Salary Continuance
“bridge[s] the Optometrist’s income with a total of 50%” of base salary. Applying
“ordinary principles of contract law,” it is evident that the drafters knew how to
expressly require integration with state benefits and conspicuously did not do so in
the Salary Continuance provision. M & G Polymers USA, LLC v. Tackett, 574
U.S. 427, 430 (2015); see Cal. Civ. Code §§ 1638–1639.
Appellants offer no reasonable alternative interpretation of the Salary
Continuance provision. Appellants argue that the term “total” signifies that an
employee on Salary Continuance should receive a sum total of 50% of base salary
when Kaiser’s payment is added to state benefits. However, the term cannot
4 support the weight that Appellants place on it when compared to the much more
express language regarding integration used in the adjacent provisions. Appellants
argue that the term “bridge” signifies that Salary Continuance is meant to provide
the same benefits as Short-Term Disability Insurance and/or Long-Term
Disability. But these benefits provide up to 60% of base salary when combined
with state benefits, which is plainly not the same as the Salary Continuance
benefit’s total of 50%, with or without integration. Thus, the term “bridge” cannot
support the weight Appellants place on it either.
We reject Appellants’ alternative argument that the national agreement
supersedes even if the local agreement provides the better benefit. The national
agreement supersedes unless the local agreement “contain[s] explicit terms which
provide a superior wage, benefit or condition.” Appellants argue that at best the
local Salary Continuance provision is “silent” as to integration. However, the local
provision clearly provides for a total of 50% of base salary regardless of the
optometrist’s receipt of any state benefits. Thus, it “explicit[ly]” provides “a
superior wage, benefit or condition.”
Appellants’ extrinsic evidence of past practice does not alter our conclusion
that the collective bargaining agreement is not reasonably susceptible to the
interpretations offered by Appellants. See Pac. Gas & Elec. Co. v. G. W. Thomas
Drayage & Rigging Co., 442 P.2d 641, 645 (Cal. 1968).
5 While we agree with the district court that Kaiser breached the collective
bargaining agreement, we note that this does not resolve Dr. Andersen’s claim
against Kaiser, which is “inextricably interdependent” with her claim against
KPASCO. DelCostello, 462 U.S. at 164–65 (quoting United Parcel Serv., Inc. v.
Mitchell, 451 U.S. 56, 66 (1981) (Stewart, J., concurring in the judgment)).
3.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRENDA JEAN ANDERSEN- No. 19-55235 SWIDERSKI, individually, D.C. No. Plaintiff-Appellee, 3:18-cv-01219-WQH-AGS
v. MEMORANDUM* KAISER PERMANENTE SOUTHERN CALIFORNIA OPTOMETRIC ASSOCIATION,
Defendant-Appellant,
and
DOES, 1-10; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a California partnership,
Defendants.
BRENDA JEAN ANDERSEN- No. 19-55238 SWIDERSKI, individually, D.C. No. Plaintiff-Appellee, 3:18-cv-01219-WQH-AGS
v.
SOUTHERN CALIFORNIA
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. PERMANENTE MEDICAL GROUP, a California partnership,
KAISER PERMANENTE SOUTHERN CALIFORNIA OPTOMETRIC ASSOCIATION; DOES, 1-10,
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding
Submitted May 5, 2020** Pasadena, California
Before: M. SMITH, BADE, and BRESS, Circuit Judges.
Southern California Permanente Medical Group (Kaiser) and Kaiser
Permanente Association of Southern California Optometrists (KPASCO)
(collectively, Appellants) appeal the district court’s grant of summary judgment in
favor of Brenda Jean Andersen-Swiderski (Dr. Andersen) on her “hybrid” claim
under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for
breach of a collective bargaining agreement by Kaiser and concomitant breach of
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 the duty of fair representation by KPASCO. See DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 165 (1983). We have jurisdiction under 28 U.S.C.
§ 1291. Although we agree with the district court that the statute of limitations
was tolled and that Kaiser breached the collective bargaining agreement, we vacate
the judgment and remand for further proceedings because genuine disputes of
material fact preclude summary judgment as to whether KPASCO breached its
duty of fair representation.1 See, e.g., Bliesner v. Commc’n Workers of Am., 464
F.3d 910, 913 (9th Cir. 2006) (“In order to prevail in [a hybrid § 301] suit, the
plaintiff must show that the union and the employer have both breached their
respective duties.”).
1. We agree with the district court that the statute of limitations was
tolled by Dr. Andersen’s “good faith attempts . . . to resolve [her] claim through
grievance procedures.” Galindo v. Stoody Co., 793 F.2d 1502, 1510 (9th Cir.
1986). The delay was “only a few months,” id. at 1510 n.4, and Kaiser handled
(and ultimately denied) Dr. Andersen’s claim as a formal Step 1
grievance. Appellants cite no evidence indicating that Dr. Andersen pursued non-
judicial resolution of her dispute in bad faith, nor that the non-judicial grievance
1 Although we vacate the grant of summary judgment, we address the propriety of the district court’s rulings that the statute of limitations was tolled and that Kaiser breached the collective bargaining agreement “in case the same issues arise on remand.” United States v. Mancuso, 718 F.3d 780, 796 (9th Cir. 2013).
3 procedures she followed could not have resulted in the relief she sought. See id. at
1510 & n.5.
2. On de novo review, we agree with the district court that the collective
bargaining agreement unambiguously entitled Dr. Andersen to a salary
continuance benefit of 50% of her base salary regardless of any other benefits she
received through state disability insurance or otherwise. See Westinghouse
Hanford Co. v. Hanford Atomic Metal Trades Council, 940 F.2d 513, 516 (9th Cir.
1991) (describing standard of review). Under the local collective bargaining
agreement, both Short-Term Disability Insurance and Long-Term Disability
“provide[] at least” 50% of base salary, or “up to” 60% of base salary if
“combined” or “integrated” with other benefits. By contrast, Salary Continuance
“bridge[s] the Optometrist’s income with a total of 50%” of base salary. Applying
“ordinary principles of contract law,” it is evident that the drafters knew how to
expressly require integration with state benefits and conspicuously did not do so in
the Salary Continuance provision. M & G Polymers USA, LLC v. Tackett, 574
U.S. 427, 430 (2015); see Cal. Civ. Code §§ 1638–1639.
Appellants offer no reasonable alternative interpretation of the Salary
Continuance provision. Appellants argue that the term “total” signifies that an
employee on Salary Continuance should receive a sum total of 50% of base salary
when Kaiser’s payment is added to state benefits. However, the term cannot
4 support the weight that Appellants place on it when compared to the much more
express language regarding integration used in the adjacent provisions. Appellants
argue that the term “bridge” signifies that Salary Continuance is meant to provide
the same benefits as Short-Term Disability Insurance and/or Long-Term
Disability. But these benefits provide up to 60% of base salary when combined
with state benefits, which is plainly not the same as the Salary Continuance
benefit’s total of 50%, with or without integration. Thus, the term “bridge” cannot
support the weight Appellants place on it either.
We reject Appellants’ alternative argument that the national agreement
supersedes even if the local agreement provides the better benefit. The national
agreement supersedes unless the local agreement “contain[s] explicit terms which
provide a superior wage, benefit or condition.” Appellants argue that at best the
local Salary Continuance provision is “silent” as to integration. However, the local
provision clearly provides for a total of 50% of base salary regardless of the
optometrist’s receipt of any state benefits. Thus, it “explicit[ly]” provides “a
superior wage, benefit or condition.”
Appellants’ extrinsic evidence of past practice does not alter our conclusion
that the collective bargaining agreement is not reasonably susceptible to the
interpretations offered by Appellants. See Pac. Gas & Elec. Co. v. G. W. Thomas
Drayage & Rigging Co., 442 P.2d 641, 645 (Cal. 1968).
5 While we agree with the district court that Kaiser breached the collective
bargaining agreement, we note that this does not resolve Dr. Andersen’s claim
against Kaiser, which is “inextricably interdependent” with her claim against
KPASCO. DelCostello, 462 U.S. at 164–65 (quoting United Parcel Serv., Inc. v.
Mitchell, 451 U.S. 56, 66 (1981) (Stewart, J., concurring in the judgment)).
3. On de novo review, we conclude that Appellants have shown that a
genuine issue of material fact precludes summary judgment on Dr. Andersen’s
claim that KPASCO breached its duty of fair representation. See Beck v. United
Food & Commercial Workers Union, Local 99, 506 F.3d 874, 880 (9th Cir. 2007)
(describing standard of review). In the absence of discrimination or bad faith,
neither of which Dr. Andersen alleges, a union breaches its duty of fair
representation only when its actions are “so far outside a wide range of
reasonableness that [they are] wholly irrational or arbitrary.” Id. at 879 (alteration
in original) (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991)).
“[S]o long as a union exercises its judgment, no matter how mistakenly, it will not
be deemed to be wholly irrational.” Id. (citing Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 46 (1998); O’Neill, 499 U.S. at 78). However, “the ‘merits of
the grievance’ are ‘relevant to the sufficiency of the union’s representation.’”
Rollins v. Cmty. Hosp. of San Bernardino, 839 F.3d 1181, 1187 (9th Cir. 2016)
(quoting Gregg v. Chauffeurs, Teamsters & Helpers Union Local 150, 699 F.2d
6 1015, 1016 (9th Cir. 1983)). “[W]hen a grievance is ‘important and meritorious’ a
union must provide a ‘more substantial [ ] reason’ for abandoning it.” Id.
(alteration in original) (quoting Gregg, 699 F.2d at 1016).
Although we affirm the district court’s finding that the collective bargaining
agreement is unambiguous, we do not think that this is enough, on its own, to show
as a matter of law that the union failed to exercise judgment. Construing the facts
in KPASCO’s favor, a reasonable factfinder could conclude that KPASCO did not
altogether “fail[] to research the [collective bargaining agreement],” Peters v.
Burlington N. R.R. Co., 931 F.2d 534, 541 (9th Cir. 1990), as amended on denial
of reh’g (Apr. 23, 1991), or decline to pursue Dr. Andersen’s grievance on a
“wholly irrational or arbitrary” basis, Beck, 506 F.3d at 880. KPASCO introduced
evidence that representatives “reviewed” the local as well as the national
agreement. KPASCO introduced evidence suggesting that representatives
contemporaneously concluded that the national agreement controlled because the
local agreement was silent—an argument we reject but nevertheless do not find
“wholly irrational.” Beck, 506 F.3d at 879. KPASCO additionally introduced
evidence that its representatives spoke with multiple contract specialists,
considered past practice, and consulted a summary of benefits, all of which could
potentially support a finding that KPASCO exercised the requisite level of
diligence. On this record, we cannot say as a matter of law that KPASCO’s actions
7 breached its duty of fair representation.
VACATED AND REMANDED. The parties shall each bear their own
costs on appeal.