R. Dean Hollins v. Kaiser Foundation Hospitals, the Permanente Medical Group, and Kaiser Foundation Health Plan

dissenting.

I respectfully dissent.

Hollins’ employment was terminated during the first ninety (90) days for “inappro *826 priate and unprofessional conduct with a patient.” (Appellee’s Brief, p. 3). Subsection 210.A of section 7 of the collective bargaining agreement provides that: “Discipline shall be administered only for just cause.” Thus, under the express provisions of the agreement, Hollins’ employment could not be terminated as a disciplinary measure except for just cause.

The agreement also provides, in section 196 that employees within the first ninety (90) days of employment may be discharged without recourse to the grievance procedure. Thus, the agreement gives all employees the right to be free from being disciplined except for just cause. Employees with more than ninety (90) days employment are limited by the express terms of the agreement to seek resolution of any grievance, including disciplinary action, through the grievance procedure. Under section 196, probationary employees, such as Hollins, are not covered by the grievance procedure. Hence, the agreement does not preclude the bringing of an action by a probationary employee under 29 U.S.C. § 185 , to…

727 F.2d 823 115 L.R.R.M. (BNA) 3601 , 100 Lab.Cas. P 10,857 R. Dean HOLLINS, Plaintiff-Appellant, v. KAISER FOUNDATION HOSPITALS, The Permanente Medical Group, and Kaiser Foundation Health Plan, Defendants-Appellees. No. 83-1917. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 16, 1983. Decided Jan. 26, 1984. David A. Rosenfeld, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for plaintiff-appellant. Alan R. Berkowitz, Schachter, Kristoff, Ross, Sprague & Curiale, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before KENNEDY, ALARCON and TIMBERS * , Circuit Judges. PER CURIAM: 1 This is an appeal by R. Dean Hollins, a discharged probationary employee of appellee Permanente Medical Group, from a judgment of the district court dismissing Hollins' action brought pursuant to Section 301 of the Labor-Management Relations Act, 29 U.S.C. Sec. 185 (1982), for breach of a collective bargaining agreement. We affirm. 2 Appellees are Kaiser Foundation Hospitals, The Permanent Medical Group and Kaiser Foundation Health Plan (referred to collectively as Kaiser…

This is an appeal by R. Dean Hollins, a discharged probationary employee of appel-lee Permanente Medical Group, from a judgment of the district court dismissing Hollins’ action brought pursuant to Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 (1982), for breach of a collective bargaining agreement. We affirm.

Appellees are Kaiser Foundation Hospitals, The Permanente Medical Group and Kaiser Foundation Health Plan (referred to collectively as Kaiser Hospitals).

Kaiser Hospitals and the Hospital and Institutional Workers Union, Local No. 250 (Union), are parties to a collective bargaining agreement (CBA) covering some of Kaiser Hospital’s employees, including Hollins. The pertinent provisions of the CBA are as follows:

Sometime during the first ninety days of his employment, Hollins was discharged. 1

Hollins commenced the instant action in the district court, alleging that Kaiser Hospitals had breached the CBA by discharging him without just cause. The court denied Hollins’ motion for a preliminary injunction to require his reinstatement pending trial. Subsequently, the parties filed cross motions for summary judgment, and Kaiser Hospitals filed a motion to…