                           NOT FOR PUBLICATION                           FILED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,

                Defendant-Appellant,

and

KAISER PERMANENTE SOUTHERN
CALIFORNIA OPTOMETRIC
ASSOCIATION; DOES, 1-10,

                Defendants.

                   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.




                                            8
