E-Mail Pact Saves Laid-Off Worker’s Lawsuit Against Union

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By Jay-Anne B. Casuga

Oct. 26 — A union may have breached its duty to a laid-off hospital worker by failing to recognize an e-mail agreement that allowed her to return to her old job after a workforce reduction, a federal appeals court decided ( Rollins v. SEIU-UHW , 2016 BL 356201, 9th Cir., No. 14-55971, 10/26/16 ).

The ruling is one of the few instances in which an employee’s claim that a union breached its duty of fair representation under Section 301 of the Labor-Management Relations Act has been revived following a lower court’s dismissal. It’s difficult for employees to prevail on such claims because unions are given broad discretion on what grievances to take to arbitration.

Since January, several unions have avoided liability in fair representation cases at the appellate level, including the Communications Workers of America, the Association of Professional Flight Attendants and the International Brotherhood of Electrical Workers.

Jury Should Hear Breach of Duty Question

The 2007 seniority agreement for Starla Rollins, which was memorialized by e-mails between the Community Hospital of San Bernardino and the Service Employees International Union-United Healthcare Workers West, was still enforceable when a reduction-in-force occurred in 2012, the U.S. Court of Appeals for the Ninth Circuit held.

The hospital breached the seniority agreement when it laid off Rollins instead of “bumping” her back to her old position, the court said. A jury must decide whether SEIU-UHW breached its duty of fair representation by failing to grieve Rollins’s claim, it said, reversing summary judgment to the union.

“While we believe that there is not any disputed evidence and that the law is in our favor, we are confident that we will either prevail through a petition for rehearing or a trial,” Bruce Harland, general counsel for SEIU-UHW, told Bloomberg BNA Oct. 26.

Douglas N. Silverstein, one of the attorneys representing Rollins, declined to comment on the ruling because the case is ongoing.

Previous Case for Rollins

The case isn’t the first time that Rollins has scored a win in the Ninth Circuit. In July, the court ruled in her favor in an Employee Retirement Income Security Act class action in which she is the lead plaintiff.

In that case, Rollins and other employees accused Dignity Health of using ERISA’s church plan exemption to underfund its pension plan. It is one of about three dozen lawsuits filed nationwide challenging how hospitals run their pension plans, and the U.S. Supreme Court may take up the dispute.

2007 Agreement Not Invalid

In the current LMRA case, the Ninth Circuit rejected the union’s argument that Rollins’s seniority agreement was no longer valid because it conflicted with a 2008 collective bargaining agreement and a memorandum of understanding related to the RIF in 2012.

The later CBA allowed side agreements like Rollins’s that pertained to workforce reductions, the court said. The MOU, it said, should have triggered the seniority agreement.

When Rollins learned that her position would be eliminated, she asked the union about being bumped back to her old job under the seniority agreement.

But the union allegedly failed to pursue an individual grievance on Rollins’s behalf, added her to a class grievance about the RIF that didn’t address her specific claim and offered “weak and invalid justifications for rejecting Rollins’s claim,” the court said.

If “Rollins’s evidence is believed, she has shown a violation of the union’s duty of fair representation,” it said.

Judge William A. Fletcher wrote the opinion, joined by Judge Ronald M. Gould. Judge Ivan L.R. Lemelle concurred, but said he believes a jury should also decide whether the seniority agreement was still in effect after the 2008 bargaining agreement.

Silverstein and Michael G. Jacob of Kesluk Silverstein & Jacob in Los Angeles and Janet Gusdorff of Gusdorff Law in Westlake Village, Calif., represented Rollins. Harland, Monica Guiza and Jacob J. White of Weinberg Roger & Rosenfeld in Los Angeles represented the union.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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