FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STARLA ROLLINS, an individual,         No. 14-55971
          Plaintiff-Appellant,
                                         D.C. No.
              v.                   5:13-cv-01312-R-OP

COMMUNITY HOSPITAL OF SAN
BERNARDINO, erroneously sued             OPINION
as Dignity Health, DBA Dignity
Health Catholic Healthcare
West,
                     Defendant,

             and

SERVICE EMPLOYEES
INTERNATIONAL UNION-UNITED
HEALTHCARE WORKERS WEST
(SEIU-UHW), a California
union,
          Defendant-Appellee.


      Appeal from the United States District Court
         for the Central District of California
       Manuel L. Real, District Judge, Presiding

                 Argued May 2, 2016
              Submitted October 26, 2016
                 Pasadena, California
2                     ROLLINS V. SEIU-UHW

                       Filed October 26, 2016

Before: William A. Fletcher, and Ronald M. Gould, Circuit
     Judges, and Ivan L.R. Lemelle,* District Judge.

                  Opinion by Judge W. Fletcher;
                  Concurrence by Judge Lemelle


                            SUMMARY**


                             Labor Law

    The panel reversed the district court’s order granting
summary judgment to defendant union on a claim under
§ 301 of the Labor Management Relations Act.

    During a reduction in force, the plaintiff was laid off from
her position as a billing coordinator at a hospital. To prevail
on her claim against the union in this hybrid fair
representation/§ 301 suit, the plaintiff was required to show
both that the hospital breached a collective bargaining
agreement (“CBA”) and that the union breached its duty of
fair representation by failing to pursue her grievance
regarding the hospital’s failure to allow her to “bump” back
to her prior ward clerk position, rather than be laid off. The
plaintiff asserted that this failure violated both a 2008 CBA


    *
      The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   ROLLINS V. SEIU-UHW                        3

and a 2007 side agreement, known as the Seniority
Agreement, which had been negotiated on her behalf by a
union representative.

    The panel held that the Seniority Agreement was neither
inadmissible under the parol evidence rule nor superseded by
the 2008 CBA. The panel concluded that the Seniority
Agreement did not conflict with either the 2008 CBA or a
2012 memorandum of understanding through which the union
and the hospital implemented the reduction in force. The
panel held that the hospital breached both the Seniority
Agreement and the CBA.

    The panel held that the plaintiff also established a triable
issue whether the union breached its duty of fair
representation by processing her grievance in a perfunctory
manner. The plaintiff submitted sufficient evidence that the
union never seriously considered her rights under the
Seniority Agreement; improperly lumped her with other, non-
similarly situated employees; and provided factually
contested reasons for rejecting her grievance.

   The panel remanded the case for further proceedings.

    Concurring, District Judge Lemelle wrote that in addition
to the question whether the union breached its duty of fair
representation, the question whether the Seniority Agreement
remained in effect after the negotiation of the CBA should
also be left to the jury.
4                ROLLINS V. SEIU-UHW

                       COUNSEL

Douglas N. Silverstein (argued) and Michael Gregory Jacob,
Kesluk Silverstein & Jacob P.C., Los Angeles, California;
Janet Gusdorff, Gusdorff Law P.C., Westlake Village,
California; for Plaintiff-Appellant.

Monica Guizar (argued), Jacob J. White, and Bruce A.
Harland, Weinberg Roger & Rosenfeld, Los Angeles,
California, for Defendant-Appellee.


                        OPINION

W. FLETCHER, Circuit Judge:

    Plaintiff-Appellant Starla Rollins appeals the district
court’s grant of summary judgment to Defendant SEIU-
UHW, Rollins’s former union, on Rollins’s § 301 claim under
the Labor Management Relations Act. We agree with Rollins
that summary judgment was improperly granted, reverse the
district court’s order, and remand for further proceedings
consistent with this decision.

                      I. Background

    Plaintiff Rollins worked for the Community Hospital of
San Bernardino (“Hospital”) for over twenty years. In 2002,
Rollins became a member of the Hospital’s union, Defendant
SEIU-UHW (“Union”). Rollins was active in the Union,
serving as a member of the bargaining team and as a union
steward.
                   ROLLINS V. SEIU-UHW                        5

    In 2007, Rollins was working as a “Ward Clerk” for the
Hospital when she was offered a promotion to become the
Maternal Child Health (“MCH”) Billing Coordinator. Rollins
was worried that, if she switched jobs and accepted the
position, she would lose the seniority she had accrued.
Rollins therefore had a union representative negotiate a side
agreement (the “Seniority Agreement”) with the Hospital.
The 2007 Seniority Agreement provided that, in the event that
the MCH Billing Coordinator position was eliminated
pursuant to a reduction in force (“RIF”), Rollins would be
permitted to “bump” back to her old position as a Ward
Clerk. The Seniority Agreement was memorialized in emails
between the Hospital’s Director of Human Resources,
Elizabeth Sanchez, and Union Representative Jill King.

    In 2008, the Hospital and Union agreed to a new
Collective Bargaining Agreement (“CBA”). Negotiations for
the 2008 CBA were already underway when Sanchez, acting
for the hospital, and King, acting for Rollins, entered into the
Seniority Agreement. Article 3 of the 2008 CBA provided:
“No employee shall suffer any reduction in wages, benefits or
other terms and conditions of employment, economic or
otherwise, as a result of coverage under this Agreement.”
The CBA provided, further, that “[u]pon mutual agreement,
the Union and the Employer may agree to an alternative
arrangement regarding reduction in force.”

    In 2012, the Hospital implemented a reduction in force.
The Hospital and the Union entered into a “Memorandum of
Understanding” (“MOU”) in order to implement this
reduction. The 2012 MOU stated that several positions,
including the MCH Billing Coordinator position, were being
eliminated pursuant to the RIF. The MOU provided several
rights to affected employees, including severance, training
6                  ROLLINS V. SEIU-UHW

opportunities, and an opportunity to bid for other open
positions at the Hospital. Importantly for purposes of this
case, the MOU neither prohibited “bumping” nor eliminated
the “Ward Clerk” position to which Rollins was allowed to
“bump” back pursuant to the Seniority Agreement.

    In October 2012, Rollins was informed that she was being
laid off under the RIF. Rollins raised with the Union her
2007 Seniority Agreement and right to “bump” back to her
old Ward Clerk position. Union Representative Susan
(Trockel) Lucio responded “that the email was not an
enforceable agreement and that the Union could not rely on
the email to challenge the reduction in force.” Rollins was
then terminated without being allowed to “bump” back to her
old position. A subsequent class action grievance objecting
to the RIF, submitted on behalf of Rollins and several other
employees, was rejected by the Union.

    Rollins sued both the Hospital and the Union under § 301
of the Labor Management Relations Act. 29 U.S.C. § 185.
Rollins alleged that the Hospital’s failure to allow her to
“bump” back to her prior Ward Clerk position violated the
2007 Seniority Agreement and the 2008 CBA. She also
contended that the Union breached its duty of fair
representation by failing to pursue her grievance on this issue.
Rollins subsequently settled her suit against the Hospital.

    The district court granted summary judgment to the
Union. The court concluded that the 2007 Seniority
Agreement had once been an enforceable agreement. It
nonetheless granted summary judgment to the Union, holding
that the agreement was no longer enforceable. According to
the district court, the Security Agreement either was
inadmissible under the parol evidence rule or was superseded
                   ROLLINS V. SEIU-UHW                        7

by the 2008 CBA. Alternatively, the district court held
summary judgment appropriate because “the Union did not
breach its duty of fair representation.” Rollins appeals.

                        II. Discussion

    Rollins has brought a “hybrid fair representation/ § 301
suit” against the Union. Bliesner v. Comm’n Workers of Am.,

, 913 (9th Cir. 2006); see generally 29 U.S.C.
§ 185. A § 301 claim formally “comprises two causes of
action”: (1) a cause of action against the employer for breach
of the collective bargaining agreement, and (2) a suit against
the union for breach of the union’s duty of fair representation.
DelCostello v. Int’l Bhd. of Teamsters, 

, 164
(1983). A § 301 claim may be brought “against the union, the
employer, or both.” 

. This appeal
involves only Rollins’s claim against the Union, as the
Hospital has already settled. To prevail Rollins must show
both that (1) the Hospital breached the CBA, and (2) the
Union breached its duty of fair representation. See

–65.

    We review the district court’s grant of summary judgment
de novo. We construe the disputed facts in favor of Rollins,
the nonmoving party. 

; Frost v.
Agnos, 

, 1128 (9th Cir. 1998). We conclude
that the Seniority Agreement is consistent with the CBA and
the MOU, that the Hospital has breached the Seniority
Agreement and the CBA, and that triable issues of fact exist
as to whether the Union breached its duty of fair
representation.
8                  ROLLINS V. SEIU-UHW

    A. Hospital’s Breach of the Seniority Agreement and the
                             CBA

   To decide whether the Hospital breached a duty it owed
to Rollins, we analyze the interaction of three different
documents: (1) the 2007 Seniority Agreement granting
Rollins the right to “bump” back to her old position as Ward
Clerk, (2) the 2008 CBA between the Hospital and the Union,
and (3) the 2012 MOU implementing the RIF.

    The parties agree that the Hospital did not permit Rollins
to “bump” back to her previous Ward Clerk position. The
parties also agree that the Seniority Agreement was, at one
point, a valid and enforceable agreement. They dispute only
whether the Seniority Agreement continued to be valid and
enforceable after the adoption of the 2008 CBA. The Union
argues that the Seniority Agreement (1) is inadmissible under
the parol evidence rule or (2) was superseded by the 2008
CBA. We disagree.

    To prevail on either argument, the Union must show that
the Seniority Agreement conflicts with the 2008 CBA or the
2012 MOU. See Pace v. Honolulu Disposal Serv., Inc.,

, 1157–58 (9th Cir. 2000) (noting that the parol
evidence rule “operates to bar extrinsic evidence of an
agreement inconsistent with an unambiguous writing”
(emphasis added)); Espinal v. Nw. Airlines, 

,
1458–59 (9th Cir. 1996) (“[A]n individual contract that
conflicts with a CBA must be superseded by that CBA.”
(emphasis added)); Melanson v. United Air Lines, Inc.,

, 561 (9th Cir. 1991). The Seniority Agreement
conflicts with neither.
                  ROLLINS V. SEIU-UHW                        9

      First, the Seniority Agreement does not conflict with the
2008 CBA. Indeed, the CBA contemplates and approves of
side agreements dealing with RIFs. Article 14, Section E, of
the CBA specifically provides that “[u]pon mutual agreement,
the Union and the Employer may agree to an alternative
arrangement regarding reduction in force.” The Seniority
Agreement is such an “alternative arrangement regarding
reduction in force,” providing that Rollins will be “allow[ed]
. . . to bump into the Ward Clerk position in the MCH cluster
in the event of a RIF.”

    Second, the Seniority Agreement does not conflict with
the 2012 MOU. The MOU states that, pursuant to a RIF, the
“Billing Coordinator” position in the Maternal Child Health
Department was eliminated. Rather than conflicting with the
MOU, the Seniority Agreement contemplates the possibility
of such an MOU. That is, the Seniority Agreement
contemplates the possibility of the MCH Billing Coordinator
position being eliminated in a RIF, and it provides what
should happen in that event. The Seniority Agreement
specifically provides that “[i]n [the] event this position [MCH
Billing Coordinator] is eliminated it will be able [to] bump to
a Ward Clerk (Clerk II) in the MCH Cluster.” Far from being
inconsistent with the Seniority Agreement, the MOU is the
condition precedent (elimination of the MCH Billing
Coordinator position) that triggers the operation of the
Seniority Agreement.

   Finally, the Union also appears to argue that Rollins
cannot prevail because, even if she can show a breach of the
Seniority Agreement, she has not shown a breach of the CBA.
Rollins has shown a breach of both. The Labor Management
Relations Act applies broadly to “contracts between an
employer and a labor organization representing employees,”
10                 ROLLINS V. SEIU-UHW

not exclusively to collective bargaining agreements.
29 U.S.C. § 185(a). The Seniority Agreement falls within
§ 185(a) as a contract negotiated between the Hospital (an
employer) and the Union (a labor organization). The
Seniority Agreement is also a part of the CBA. See
Inlandboatmens Union of Pac. v. Dutra Group, 

, 1079 (9th Cir. 2002), overruled on other grounds by
Albino v. Baca, 

, 1171 (9th Cir. 2014) (en
banc) (“[A] collective bargaining agreement is not limited
solely to the specific provisions of the basic labor contract
formally executed by the parties, but it may also include,
among other things, written side agreements and oral
understandings entered into by the parties to the collective
bargaining relationship.”).

     B. Union’s Breach of the Duty of Fair Representation

    While Rollins has demonstrated a violation of a
“contract[] between an employer and a labor organization
representing employees,” 29 U.S.C. § 185(a), her § 301 claim
against the Union can prevail only if she also shows a “breach
of the union’s duty of fair representation.” 

; see 

–14. “A union
breaches its duty of fair representation when its ‘conduct
toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.’” Beck v. United
Food & Commercial Workers Union, Local 99, 

,
879 (9th Cir. 2007) (quoting Vaca v. Sipes, 

, 190
(1967)). Rollins contends that the Union’s handling of her
Seniority Agreement grievance was “arbitrary” because it
failed to investigate adequately. “A union acts ‘arbitrarily’
when it simply ignores a meritorious grievance or handles it
in a perfunctory manner.” Peterson v. Kennedy, 

, 1253–54 (9th Cir. 1985) (citing 

).
                   ROLLINS V. SEIU-UHW                        11

In order to avoid breaching the duty of fair representation, a
Union must “conduct a ‘minimal investigation’ of a grievance
that is brought to its attention.” 

(citing Tenorio v.
NLRB, 

, 601 (9th Cir. 1982)).

    Rollins has submitted enough evidence that the Union
processed her grievance “in a perfunctory manner” to allow
her to survive the Union’s motion for summary judgment.

. Considering the evidence in the
light most favorable to Rollins, we reach this conclusion for
three reasons.

    First, the Union never seriously considered Rollins’s
rights under the Seniority Agreement. A class action
grievance was filed by Union Representative Ozier on behalf
of Rollins and several other Hospital employees, but it was a
general challenge to the RIF. It did not specifically challenge
the Hospital’s failure to honor Rollins’s Seniority Agreement.
The Union Appeal Panel, the appellate body that reviewed the
denial of the class action grievance, does not appear to have
“deliberated” the Security Agreement. Cf. Slevira v. Western
Sugar Co., 

, 1221 (9th Cir. 2000). The record
suggests that the documents sent to the panel did not include
the Seniority Agreement. Rollins was present at the Union
Appeal Panel’s hearing, but she stated that she did not present
the Security Agreement or make any arguments related to it.
Although Ozier testified in her deposition that she thought the
Seniority Agreement was provided to the panel, she stated
that she could not recall for sure.

   Second, the Union improperly lumped Rollins with other,
non-similarly situated employees. Because Rollins was the
beneficiary of a Seniority Agreement providing her an
additional right (the right to “bump” back to her old position),
12                ROLLINS V. SEIU-UHW

she was differently situated from other employees terminated
during the RIF. The class action grievance does not appear
to have raised the issue of Rollins’s Seniority Agreement.
We have previously recognized that a union has “acted
arbitrarily where it failed to . . . consider individually the
grievances of particular employees where the factual and
legal differences among them were significant.” 

(citing Gregg v. Chauffeurs, Teamsters &
Helpers Union Local 150, 

, 1016 (9th Cir.
1983)).

    Third, the Union provided factually contested reasons for
rejecting Rollins’s grievance. Although we will “not question
whether the [Union’s] reasoning” for rejecting a grievance
“was faulty or not,” Peters v. Burlington N. R. Co., 

, 540 (9th Cir. 1990), when a grievance is “important and
meritorious” a union must provide a “more substantial [ ]
reason” for abandoning it. 

(noting
that the “merits of the grievance” are “relevant to the
sufficiency of the union’s representation”); see also 

(noting that, when evaluating whether a
union acted arbitrarily, a court must “evaluate the strength of
the employee’s grievance”). As explained above, Rollins has
shown a breach of the Seniority Agreement and the CBA by
the Hospital, thereby demonstrating that she had an important
and meritorious grievance. The Union therefore needed to
provide a “more substantial” reason for failing to pursue her
claim.

   Union Representative Lucio stated during an October
2012 meeting that the Seniority Agreement “was not an
enforceable agreement.” Lucio, however, did not explain
why she believed that this was so. The Union’s Director of
Representational Excellence, Marcus Hatcher, claimed to
                  ROLLINS V. SEIU-UHW                     13

have reviewed the Seniority Agreement. But he asserted that
the Seniority Agreement was “not relevant to the MOU” and
unenforceable because “it can’t supersede a contract.” There
are two problems with Hatcher’s reasoning. First, as
explained above, the Seniority Agreement was neither
inconsistent with, nor superseded by, the 2008 CBA. See

–59; 

.
Second, Hatcher’s statement conflicts with the Union’s
longstanding practice of negotiating individual side
agreements for employees, consistent with the CBA.
According to the Director of Human Resources Elizabeth
Sanchez (who negotiated the Seniority Agreement on behalf
of the Hospital), the Hospital “typically reached agreements
pertaining to single employees that were not expressly
referenced in the CBA.” An employee of the Union, John
Borsos, confirmed that the Union “regularly [entered into]
side letters or agreements that were not expressly referenced
in the CBA.” According to Borsos, it was the Union’s
“standard practice” to enter into these side agreements.

    Finally, Ozier testified that, during a December 2012
meeting between the Hospital and Union, an unidentified
person told her that the Seniority Agreement emails
“appeared [to be] cut-and-paste and therefore [were] not
going to be acknowledged.” If the Union had doubts about
the authenticity of the emails that constituted the Seniority
Agreement, it could easily have investigated and determined
the truth of the matter. Union Representative Jill King, who
negotiated the agreement on Rollins’s behalf, stated that the
agreement was “appropriately maintained and preserved” in
the Union’s own files, and the Agreement was negotiated
using official Union and Hospital email addresses. Further,
the two people who negotiated the Seniority Agreement —
King and Sanchez — submitted declarations stating that, if
14                ROLLINS V. SEIU-UHW

asked, they would have confirmed the authenticity of the
Seniority Agreement. Although a union can legitimately
decline to pursue a grievance on authenticity grounds, the
Union’s decision to dismiss the Seniority Agreement on that
ground without any investigation, if proven at trial, would
support Rollins’s argument that the Union acted arbitrarily.
See 

(“To comply with its duty, a
union must conduct some minimal investigation of grievances
brought to its attention.”).

    We recognize that Rollins has the heavy burden of
showing that the Union’s handling of her claim under the
Seniority Agreement was arbitrary. See 

. Unions maintain “wide discretion to act in what they
perceive to be their members’ best interests,” and we “accord
substantial deference” to the Union’s decision not to pursue
Rollins’s Seniority Agreement claim. 

(citation omitted). At the same time, there is ample
evidence to support a contrary conclusion — that the Union
acted improperly by (1) failing to put Rollins’s claim through
the Union’s own formal mechanisms for reviewing the merits
of grievances, (2) improperly including Rollins in a class
action grievance that did not raise her specific claim, and
(3) providing weak or invalid justifications for rejecting
Rollins’s claim. A jury that resolves the factual disputes in
Rollins’s favor could find that the Union’s treatment of
Rollins’s rights under the Seniority Agreement was
“perfunctory” at best, and therefore “arbitrary.” 

.

                         Conclusion

   We conclude that Rollins presented sufficient evidence to
counter the Union’s motion for summary judgment on her
                   ROLLINS V. SEIU-UHW                       15

hybrid claim. We conclude that Rollins has shown a
violation of the Security Agreement and the CBA. We also
conclude that, if Rollins’s evidence is believed, she has
shown a violation of the Union’s duty of fair representation.
We therefore reverse the district court’s order granting
summary judgment to the Union and remand for further
proceedings.

   REVERSED and REMANDED.



LEMELLE, Senior District Judge, concurring:

    I concur with the majority opinion to reverse the decision
granting defendant’s motion for summary judgement.
Nonetheless, it is the role of the factfinder and not this Court
to decide the relationship between Rollins’s Seniority
Agreement (“SA”) and the Collective Bargaining Agreement
(“CBA”). The majority opinion only leaves to the jury the
question of whether the Union breached its duty of
representation. The factfinder should also be tasked with
determining whether or not the SA should remain in effect
after the negotiation of the CBA.

    The relationship between the SA and CBA is less clear
than the majority conveys. A jury could determine whether
Rollins, who was present for negotiations of the CBA, would
be entitled to have the benefits of a previous agreement
considered at all without explicitly incorporating them in the
subsequent agreement. The SA should be interpreted through
the introduction of parol evidence, weighed by the jury in
order to resolve this factual inquiry.
16                ROLLINS V. SEIU-UHW

     When reviewing similar contracts in the past, this Court
has permitted the use of parol evidence. In Cappa, this Court
explained a CBA that was not fully integrated and recognized
the existence of other agreements, like the one at issue in the
present matter, was “far from being an unambiguous
instrument” and therefore allowed parol evidence of an oral
agreement to vary the terms of the CBA. Cappa v. Wiseman,

, 440 (N.D. Cal. 1979), aff'd, 

(9th Cir. 1981) (“In light of these principles, and because the
Agreement is far from being an unambiguous instrument, the
terms of which are sufficient unto themselves, it is
appropriate to consider parol evidence to determine the
parties’ intent and interpretation of the contract terms.”).
Respectfully, this Court should not summarily decide the
relationship between the SA and the CBA. The parties who
entered into the SA and the CBA should be given a chance to
litigate the intended relationship between the two contracts
using parol evidence.