United States v. 2006-09-12 | 04-35702 | BLIESNER VCOMMUNICATION WORKER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KATHY BLIESNER,
Plaintiff-Appellant,
No. 04-35702v.
D.C. No.THE COMMUNICATION WORKERS OF  CV-02-00256-EJLAMERICA; VERIZON NORTHWEST
INC., fka GTE Northwest OPINION
Incorporated,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
May 4, 2006—Portland, Oregon
Filed September 13, 2006
Before: A. Wallace Tashima and William A. Fletcher,
Circuit Judges, and Louis H. Pollak,* Senior District Judge.
Opinion by Judge William A. Fletcher
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
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COUNSEL
Rami Amaro, Coeur d’Alene, Idaho, for the appellant.
Alan C. Herzfeld, Herzfeld & Piotrowski, Boise, Idaho, Rich-
ard Rosenblatt, Greenwood Village, Colorado, for appellee
The Communication Workers of America.
Timothy J. O’Connell, Stoel Rives, Seattle, Washington,
Marla Henken, Stoel Rives, Boise, Idaho, for appellee Veri-
zon Northwest Inc., fka GTE Northwest Incorporated.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiff Kathy Bliesner brings a hybrid fair representation/
§ 301 suit against her union and her employer, alleging that
her union breached its duty of fair representation in violation
of the National Labor Relations Act and that her employer
breached its collective bargaining agreement (“CBA”) in vio-
lation of § 301(a) of the Labor Management Relations Act.
The district court granted summary judgment against Bliesner
on the ground that she had failed to establish that her
employer breached the CBA. The district court did not
address the question of whether the union breached its duty of
fair representation.
Bliesner contends on appeal that the district court should
not have reached the question of her employer’s obligation
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under the CBA without first addressing the question of her
union’s duty of fair representation. We disagree. Bliesner had
to prevail on both questions in order to survive the motion for
summary judgment. We hold that the district court was not
required to decide the questions in any particular order, and
that it properly granted summary judgment against Bliesner
after holding that the employer had not breached the CBA.
We also reject Bliesner’s other claims of error.
I. Background
Bliesner began working for Verizon (then GTE) in 1969.
She held various positions throughout her employment with
the company. The Communication Workers of America
(“CWA”) represented Verizon employees. In 1995, Bliesner
was laid off from her position as an Analytical Assistant in
Coeur d’Alene, Idaho, pursuant to a reduction in force.
Under the terms of the governing 1992-1995 CBA, a senior
employee could exercise “bumping” rights against a junior
employee after a reduction in force, so long as the bumping
employee could be trained for the new position within the req-
uisite time. Section 14.5.2 of the CBA provided:
Employees who have previously held the job or per-
formed all or a substantial portion of the duties
required by the position will be provided with
refresher training on-the-job for up to one (1) week.
Employees who have no related experience but the
requirements of the job are such that they can be
readily learned without formal training shall be
given up to one (1) week of on-the-job training.
Bliesner sought to “bump” into an Analytical Assistant
position in Verizon’s Facilities Assignment Center in Mos-
cow, Idaho. It is undisputed that this position required knowl-
edge of (1) paying bills and reporting expenses using an
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established code system; (2) entering payroll information; (3)
maintaining employee information records; (4) using telemail;
(5) drafting company correspondence; (6) using Lotus 1-2-3
to develop and enter information into spreadsheets; (7) order-
ing and maintaining inventory on the Service Express System;
(8) making line assignments using the internal systems known
as MARK and SODA; (9) performing word processing tasks
with WordPerfect; and (10) tracking employee vacation, over-
time, and sick time.
In her deposition, Bliesner admitted that she had no experi-
ence with paying bills or invoices under Verizon’s billing
codes and systems; had only limited knowledge of how to
process expense reports; had never used the Horizon com-
puter system, which maintains employee information; had
never processed employee performance reviews; had never
used telemail; had only limited knowledge of Lotus 1-2-3;
had no familiarity with the basic functions of the Service
Express System; had no knowledge of the MARK or SODA
systems; had only very limited experience with WordPerfect;
and had never handled or processed other employees’ Family
Medical Leave Act requests or expense reports. Bliesner later
stated in an affidavit that she had experience with Tmail,
which is the same as telemail.
Peter Spellman, the supervisor of the Moscow facility,
interviewed Bliesner for the position and concluded that she
was not qualified for the bump. On November 21, 1995, a
bump denial form was issued. The bump was denied on the
ground that due to Bliesner’s lack of experience and knowl-
edge, she “would require substantial formal and or on the job
training.”
Bliesner, represented by CWA, filed a grievance. Griev-
ances were handled under the CBA in a three-step process. At
the completion of the third step, on March 19, 1996, Verizon
denied Bliesner’s grievance. Under the CBA, arbitration
could be requested within thirty days of the completion of the
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three-step process. CWA requested arbitration on Bliesner’s
behalf on April 5, 1996.
Almost three years later, on March 25, 1999, CWA told
Bliesner that it had decided not to pursue her claim to arbitra-
tion because it did not think the claim would be successful.
Bliesner appealed the decision within the union. As a result
of the appeal, CWA agreed to proceed to arbitration. It
assigned an attorney to her case in November 2000. In
December 2001, the arbitrator denied Bliesner’s claim on the
ground that CWA had not timely pursued her grievance in
arbitration.
Bliesner then filed a hybrid fair representation/§ 301 com-
plaint against CWA and Verizon in federal district court. She
alleged (1) that CWA had breached its duty of fair representa-
tion, and (2) that Verizon had breached the CBA. The district
court granted summary judgment to both CWA and Verizon,
holding that Bliesner had not shown that Verizon had
breached the CBA in denying her bumping request. Because
it concluded there had been no breach of the CBA by Verizon,
the district court did not address the question of whether
CWA had breached its duty of fair representation.
Bliesner timely appealed to this court.
II. Standard of Review
We review de novo a district court’s grant of summary
judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). We must determine whether the district court properly
applied the relevant substantive law and whether, viewing the
evidence in the light most favorable to the nonmoving party,
there are any genuine issues of material fact. Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We may
affirm on any ground supported by the record. Enlow v.
Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir.
2004).
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III. Discussion
Bliesner objects to the grant of summary judgment on sev-
eral grounds. We address each in turn.
A. Order of Deciding Questions in a “Hybrid” Suit
[1] A union owes a duty of fair representation to those it
represents, and an employer must honor the terms of a CBA
to which it is a party. An aggrieved party may bring a hybrid
fair representation/§ 301 suit against the union, the employer,
or both. In order to prevail in any such suit, the plaintiff must
show that the union and the employer have both breached
their respective duties.
[2] The Supreme Court has described a hybrid fair
representation/§ 301 suit as follows:
Such a suit, as a formal matter, comprises two causes
of action. The suit against the employer rests on
§ 301, since the employee is alleging a breach of the
collective bargaining agreement. The suit against the
union is one for breach of the union’s duty of fair
representation, which is implied under the scheme of
the National Labor Relations Act. Yet the two claims
are inextricably interdependent. To prevail against
either the company or the Union, . . . [employee-
plaintiffs] must not only show that their discharge
was contrary to the contract but must also carry the
burden of demonstrating breach of duty by the
Union.
Del Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65
(1983) (citations and internal quotations omitted; alteration in
the original). Whether the defendant is the union or the
employer, the required proof is the same: The plaintiff must
show that there has been both a breach of the duty of fair rep-
resentation and a breach of the CBA. Id.
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[3] Bliesner contends that the district court erred by decid-
ing that Verizon did not breach the CBA without first decid-
ing whether CWA breached its duty of fair representation. It
is true that a breach of a duty of fair representation by the
union is a necessary prerequisite to a successful suit against
the employer for a breach of the CBA. See, e.g., Buford v.
Runyon, 160 F.3d 1199, 1201 (8th Cir. 1998) (“To prevail on
her claim for breach of the collective bargaining agreement,
Buford must show, as a prerequisite, that the Union breached
its duty of fair representation.”); Vadino v. A. Valey Engr’s,
903 F.2d 253, 261 (3d Cir. 1990) (“The unfair representation
claim is the necessary ‘condition precedent’ to the employee’s
suit.”). It is also true that a hybrid fair representation/§ 301
suit cannot go to trial without some showing that the union
has violated its duty of fair representation. See Herman v.
United Bhd. of Carpenters & Joiners of Am., Local Union No.
971, 60 F.3d 1375 (9th Cir. 1995) (allowing hybrid suit to go
forward when plaintiff could survive a summary judgment
motion on issue of fair representation).
[4] But nothing requires the district court to decide the fair
representation question first. See, e.g., Talbot v. Robert Mat-
thews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992) (affirm-
ing the dismissal of a hybrid suit where the district court held
that the employer had not breached the CBA without reaching
the fair representation issue); White v. Anchor Motor Freight,
Inc., 899 F.2d 555, 557-58 (6th Cir. 1990) (same). In this
case, CWA and Verizon moved for summary judgment on
two grounds — that Bliesner had failed to show either that
CWA had violated its duty of fair representation or that Veri-
zon had breached the CBA in violation of § 301. Evidently
believing that the CBA § 301 question was easier to resolve,
the district court held that Verizon had not violated the CBA.
Having held that there was no violation of the CBA, the dis-
trict court then granted summary judgment to both defendants
on the ground that Bliesner had not prevailed on an essential
element of her suit. Deciding the CBA question first is not
merely permissible. It is also a normal and entirely sensible
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procedure frequently followed by a court confronted with two
potentially dispositive questions, one of which is easier to
resolve.
[5] We therefore conclude that the district court did not err
by resolving Bliesner’s § 301 claim that her employer
breached the CBA, and by granting summary judgment with-
out addressing Bliesner’s fair representation claim against the
union.
B. Other Objections
Bliesner raises numerous other objections to the district
court’s decision. Some of them are moot in light of our hold-
ing that the district court acted properly in deciding the CBA
§ 301 question without reaching the duty of fair representa-
tion question. Others are overlapping and partially redundant.
Reduced to their essentials, Bliesner has the following
remaining objections.
1. Construction of the CBA
[6] Bliesner contends that the district court misconstrued
the CBA when it concluded that § 14.5.2 unambiguously
required that an employee applying to bump into a position
must be able to learn the necessary skills of the new job with
either a week of formal refresher training, or a week of infor-
mal on-the-job training. We agree with the district court that
the text of the CBA is unambiguous in stating that any neces-
sary training — whether formal refresher training or on-the-
job training — must be achievable within a week.
2. Motions to Strike Portions of Affidavits
Bliesner contends that the district court erred in striking
portions of her affidavit submitted in support of her motion
for summary judgment, and in failing to strike portions of
affidavits from two Verizon employees, Sully and Under-
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wood. Under Federal Rule of Civil Procedure 56(e), affidavits
must be based on personal knowledge. We review the district
court’s ruling for an abuse of discretion. El Pollo Loco, Inc.
v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003).
[7] It is clear from its order that the district court only
struck those portions of Bliesner’s affidavit concerning her
own personal belief that she could be trained in one week. By
her own admission, Bliesner was entirely unacquainted with
many of the skills for which training would have been
required. For example, there is evidence in the record that the
MARK program — which was a necessary part of the new
job — requires a three to four week training class. Bliesner
stated in her deposition that she had no knowledge of the
MARK system. Given Bliesner’s lack of knowledge of the
MARK system, the district court did not abuse its discretion
in striking, for lack of personal knowledge, the portion of her
affidavit stating that she could learn it in one week.
[8] By contrast, the affidavits of Sully and Underwood
were based upon their first-hand knowledge of the necessary
skills for the job Bliesner sought, as well as the time needed
to obtain those skills. The district court did not abuse its dis-
cretion in refusing to strike their affidavits or portions thereof.
3. Genuine Issues of Material Fact
Bliesner contends that there were genuine issues of material
fact as to whether she could be trained within one week. We
disagree. Verizon introduced evidence showing that Bliesner
lacked the necessary skills for the job she sought, and that she
could not obtain those skills with one week of formal
refresher training or on-the-job training. Bliesner sought to
introduce evidence to the contrary by means of statements in
her affidavits, but we have just held, supra, that the district
court did not abuse its discretion in striking those statements
for lack of personal knowledge.
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4. Motion for Reconsideration
[9] Finally, Bliesner contends that the district court erred in
denying her motion for reconsideration. We review for an
abuse of discretion a district court’s denial of a motion for
reconsideration. Sheet Metal Workers Int’l Ass’n Local Union
No. 359 v. Madison, 84 F.3d 1186, 1192 (9th Cir. 1996). We
hold that there was no abuse of discretion.
Conclusion
We hold that in a hybrid fair representation/§ 301 suit, a
district court need not address a duty of fair representation
claim before addressing a CBA § 301 claim. The district court
committed no error in granting summary judgment against
Bliesner. We affirm in all respects.
AFFIRMED.
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