Mountain States Telephone v. Commis

No. 14557

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1979

THE MOUNTAIN STATES TELEPHONE AND
TELEGRAPH COMPANY, a C o l o r a d o
Corporation,

P l a i n t i f f and Respondent,

T E COMMISSIONER O L B R AND
H F A O
INDUSTRY O THE STATE O M N A A e t a l . ,
F F OTN

D e f e n d a n t s and A p p e l l a n t s .

Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable Gordon R. B e n n e t t , J u d g e p r e s i d i n g .

Counsel o f Record:

For Appellants:

Rosemary B. Zion a r g u e d , H e l e n a , Montana
C l a y Smith a r g u e d , Denver, C o l o r a d o
James G a r d n e r , H e l e n a , Montana
F o r Respondent:

Hughes, B e n n e t t and C a i n , H e l e n a , Montana
John F. S u l l i v a n a r g u e d , H e l e n a , Montana

Submitted: September 1 9 , 1979

Decided : I
1979
Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This litigation originated as an administrative pro-

ceeding in the state Department of Labor and Industry. The
decision of the administrative hearing was adverse to Moun-

tain States Telephone and Telegraph Company (hereinafter
"Mountain Bell") and judicial review and declaratory relief
were sought. The District Court of the First Judicial
District, Lewis and Clark County, entered judgment for
Mountain Bell remanding the parties to the administrative
level where the original proceeding could be dismissed.
Appellants appeal from that judgment, and Mountain Bell, as
respondent, cross-appeals from certain dicta included in the
District Court opinion.
Mountain Bell is a Colorado corporation engaged in
interstate commerce throughout the Rocky Mountain west,
including Montana. It is a signatory to a collective bar-
gaining agreement with the Communication Workers of America
(CWA), a labor union. This agreement provides that an
employee may request up to one year's maternity leave but
may receive no benefits during pregnancy except death bene-
fits.
Rae Bauer, a member of CWA, was an operator for Moun-
tain Bell in Great Falls, Montana, and had been so employed
since 1973. She became pregnant in the spring of 1975.
Because of a past history of gynecological problems and on
the advice of her doctor, she began a leave of absence on
October 15, 1975. She gave birth on January 20, 1976, but
did not return to work until October 11, 1976.
Under the Mountain Bell disability benefits plan, she
was clearly ineligible for compensation for the pregnancy
leave taken. The company traditionally denied disability
benefits for pregnancy-related conditions.
On February 11, 1976, Rae Bauer filed a complaint under
the Maternity Leave Act of the State of Montana, section 41-
2601 et. seq., R.C.M. 1947, now section 39-7-201 et seq.,
MCA, alleging that she was entitled to certain maternity
leave benefits. After an administrative hearing, it was
found that the Department of Labor and Industry had juris-
diction over the matter. As a result of a second administra-
tive hearing, the claim for benefits was dismissed. All
parties excepted to the result of this hearing. The commis-
sioner issued a decision which, in effect, said the Maternity
Leave Act governed the situation and that benefits were
payable. In so holding, the commissioner rejected Mountain
Bell's argument that either the federal Employee Retirement
Income Security Act of 1974 (ERISA) or the Labor Management
Relation Act of 1947, as amended (LMRA), preempted the state
law. Further, under the state act, the phrase "disabled as
a result of pregnancy" meant all disabilities related to
pregnancy and that pregnancy meant both pre- and post-
childbirth conditions. The next day, the commissioner
adopted the decision as part of the department's admin-
istrative rules.
Mountain Bell subsequently sought judicial review of
the decision as well as to have the rules of the department
declared invalid. On August 17, 1978, the District Court

concluded that the federal laws did preempt the operation of
the state law and that the state law was unenforceable
against Mountain Bell. From that portion of the court's

ruling, appellants appeal. By way of dicta, the ~istrict
Court opinion said, for intrastate enterprises, the state
law required that benefits be paid for all pregnancy-related
occurrences, whether normal or abnormal, and that the statute
applied from the beginning of disability through the termina-
tion of gestation and for a reasonable time afterwards.
From this portion of the opinion, Mountain Bell cross-
appeals.
The following issues have been presented to this Court
for review:
1. Does either the Employee Retirement Income Security
Act of 1974, 29 U.S.C. SlOOl et seq., or the Labor Manage-
ment Relations Act of 1947, as amended, 29 U.S.C. S141 et
seq., preempt the application of section 39-7-203(3), MCA,
of the Montana Maternity Leave Act to respondent/cross-
appellant, the Mountain States Telephone and Telegraph
Company?
2. Whether the above Montana statute must be construed
to confer benefits for normal and abnormal pregnancy dis-
abilities and to pre- and post-childbirth conditions?
Appellants/cross-respondents' position can be summarized

as follows:
(1) The Montana Maternity Leave Act is not preempted by
the Employee Retirement Income Security Act or by federal
labor laws.
(2) Congress did not intend to legislate within ERISA
on employment discrimination. Regulation of this field was

left subject to Title VII of the Civil Rights Act of 1964.
ERISA does not affect the operation of Title VII.
(3) Title VII is based upon a model of state and federal
cooperation. It provides for deferral to state anti-discrim-

ination agencies of Title VII complaints and protects state
laws which do not conflict with Title VII from preemption by
that Act.
 (4) These provisions are part of a congressional pur-
pose to encourage the development of state anti-discrimination
laws* his purpose, which is essential to Title VII, would
be impaired if ERISA were held to prohibit states from
enacting anti-discrimination laws such as the Maternity
Leave Act.
(5) ~ i t l e
VII affirmatively protects state anti-dis-
crimination laws from preemption. Operation of local laws
is an integral part of legislative scheme of Title VII.
(6) The United States Supreme Court has refused to find
preemption in areas where Congress has intended to foster
cooperation.
(7) The recent enactment of the Pregnancy Disability
Act, a law amending Title VII, specifically overturned
General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97
S.Ct. 401, 50 L.Ed.2d 343, and made it clear that Congress
did not preempt state pregnancy disability laws by enacting
ERISA.
(8) Federal labor laws do not preempt the Montana

Maternity Leave Act. Applying a balancing test, the interest
of the state in providing economic protection to its women
workers clearly outweighs any implied incursions into the
territory occupied by NLRA/LMRA.
(9) Title VII also protects the Montana statute from
preemption by federal labor law.
(10) The statutory protection afforded by Title VII and
the Montana Maternity Leave Act are in the nature of an

independent right and cannot be waived through collective
bargaining.
(11) There is a presumption in favor of the validity of
state statutes which deal with an area of traditional state
concern.
 (12) The Montana Maternity Leave Act clearly applies to
all periods of disability occurring as a result of pregnancy,
whether these periods of disability are normal or unusual,
and regardless of whether they occur before or after child-
birth.
Respondent/cross-appellant takes a generally contrary

position.
The Equal Employment Opportunity Commission, appearing
by amicus brief, argues that state fair employment laws such
as section 39-7-201 et seq., MCA, are not preempted by ERISA
for the reasons stated in Bucyrus-Erie C q . v. Department
of Industry, Etc. (7th Cir. 1979), 599 F.2d 205, and for the
reasons stated in the briefs of appellants/cross-respondents.

ERISA PREEMPTION - - MONTANA ACT
OF THE
The first issue facing this Court is whether section
39-7-203(3), MCA, is preempted by the Employee Retirement
Income Security Act (ERISA, P.L. 93-406, 88 Stat. 897,
enacted September 2, 1974, and in particular 5514 thereof,
codified as 29 U.S.C. 51144 and referred to herein as 51144).

Section 39-7-203(3), MCA, of the Montana Maternity
Leave Act, provides in pertinent part:
"It shall be unlawful for an employer or his
agent to:

"(3) deny to the employee who is disabled as a
result of pregnancy any compensation to which
she is entitled as a result of the accumulation
of disability or leave benefits accrued pursuant
to plans maintained by her employer . .
."
The preemption provision of ERISA, 29 U.S.C. 51144(a),
provides in pertinent part:
 " ( a ) e x c e p t a s p r o v i d e d i n s u b s e c t i o n ( b ) of
t h i s s e c t i o n , t h e provisions of t h i s subchapter
... s h a l l s u p e r s e d e any and a l l S t a t e laws
i n s o f a r a s t h e y may now o r h e r e a f t e r r e l a t e t o
any employee b e n e f i t p l a n d e s c r i b e d i n s e c t i o n
1 0 0 3 ( a ) of t h i s t i t l e . . ."
29 U.S.C. 5 1 0 0 3 ( a ) makes t h e above s e c t i o n a p p l i c a b l e

t o any b e n e f i t p l a n e s t a b l i s h e d o r m a i n t a i n e d by any employer

engaged i n i n t e r s t a t e commerce. There i s no d i s p u t e t h a t

Mountain B e l l i s engaged i n i n t e r s t a t e commerce n o r i s t h e r e

any d i s p u t e t h a t Mountain B e l l ' s employee b e n e f i t p l a n i s

c o v e r e d by ERISA.

Mountain B e l l a r g u e s , and t h e D i s t r i c t C o u r t h e l d , t h a t

t h e f e d e r a l government h a s c l e a r l y and unambiguously o c c u p i e d

t h e f i e l d w i t h r e s p e c t t o employee h e a l t h and w e l f a r e bene-

f i t s and h a s preempted t h e s t a t e s from i n any way r e g u l a t i n g

s u c h b e n e f i t s o t h e r t h a n by t h e s p e c i f i c exemptions p r o v i d e d

i n 29 U.S.C. 5 1 1 4 4 ( b ) , exemptions which a d m i t t e d l y do n o t

apply here.

A p p e l l a n t s do n o t a g r e e . They c o n t e n d t h a t t h e Montana

s t a t u t e i s exempted from ERISA preemption by 29 U.S.C.

§ 1 1 4 4 ( d ) , which d e c l a r e s , " [ n l o t h i n g i n t h i s s u b c h a p t e r

s h a l l be c o n s t r u e d t o a l t e r , amend, modify, i n v a l i d a t e ,

i m p a i r o r s u p e r s e d e any law o f t h e United S t a t e s ... "1 in

c o n j u n c t i o n w i t h 42 U.S.C. 52000e-7 ( s e c t i o n 708 i n T i t l e

VII, P.L. 88-352, C i v i l R i g h t s Act of 1964, 78 S t a t . 2621,

which p r o v i d e s , " [ n l o t h i n g i n t h i s s u b c h a p t e r s h a l l be

deemed t o exempt o r r e l i e v e any p e r s o n from any l i a b i l i t y ,

d u t y , p e n a l t y , o r punishment p r o v i d e d by any p r e s e n t o r

f u t u r e law of any S t a t e . . ." Appellants argue t h a t t o

a l l o w preemption of t h e Montana M a t e r n i t y Leave Act by

s u b s e c t i o n ( a ) o f 29 U.S.C. S 1 1 4 4 would be t o v i o l a t e sub-

s e c t i o n ( d ) of t h a t s t a t u t e by i m p a i r i n g a law of t h e u n i t e d

S t a t e s ( t h e 1964 C i v i l R i g h t s A c t ) by r e l i e v i n g ~ o u n t a i n

B e l l from i t s l i a b i l i t y under t h e Montana Act.
 Appellants further contend that by permitting ERISA
preemption, two other sections of the Civil Rights Act would
be impaired. They are 42 U.S.C. S2000e-5(c) (section 706,
Title VII, P.L. 88-352, 78 Stat. 259, which provides for
deferral of federal action in equal employment opportunity
cases for a period of sixty days to permit the commencement
of proceedings under state law) and 42 U.S.C. S2000h-4
(section 1104, Title XI, 78 Stat. 268, which provides:
"[nlothing contained in any title of this Act shall be
construed as indicating an intent on the part of Congress to
occupy the field in which any such title operates to the
exclusion of State laws on the same subject matter, nor
shall any provision of this Act be construed as invalidating
any provision of State law unless such provision is incon-
sistent with any of the purposes of this Act or any provi-
sion thereof").
In effect, appellants argue that if the Montana Act is
preempted, the above sections of the Civil Rights Act will
be delimited.
Although appellants' arguments found little solace in
the District Court's opinion, similar arguments have found
support in other jurisdictions: Goodyear Tire & Rubber v.
Dept. of Industry (1978), 87 Wis.2d 56, 273 N.W.2d 786;
Bucyrus-Erie Co. v. Dept. of Industry (E.D. Wisc. 1978), 453
F.Supp. 75, aff'd, (7th Cir. 1979), 599 F.2d 205; Illinois
Bell Tel. Co. v. Fair Employment Practices Commission (1979),
68 111.App.3d 829, 25 111.Dec. 328, 386 N.E.2d 599; Westing-
house Elec. Corp. v. State Human Rights Appeals Board (1978),
60 A.D.2d 943, 401 N.Y.S.2d 597; Liberty Mutual Insurance
Company v. State Division of Human Rights (1978), 61 A.D.2d
822, 402 N.Y.S.2d 218; Lukus v. Westinghouse Electric Corp.,
NO. GD77-14803 (Ct. of Common Pleas for Allegheny County,
Pa., April 20, 1978 (unpublished opinion); Time Insurance
Co. v. Department of Industry, Labor and Human Relations,
No. 145-423, ( ~ t . Dane County, Wisc., January 3, 1978),
of
16 BNA FEP 391.
Although not dealing with facts similar to the instant
case, a number of courts have interpreted the preemption
provision in its "broadest sense." See Wadsworth v. Whaland
(1st Cir. 1977), 562 F.2d 70; Standard Oil Co. of California
v. Agsalud (N.D. Cal. 1977), 442 F.Supp. 695, 706-07; Bell
v. Employee Security Benefit Ass'n (D. Kan. 1977), 437
F.Supp. 382, 385-88; Wayne Chemical v. Columbus Agency
Service Corp. (N.D. Ind. 1977), 426 F.Supp. 316, 321, aff'd
as modified, (7th Cir. 1977), 567 F.2d 692; Hewlett-Packard
Co. v. Barnes (N.D. Cal. 1977), 425 F.Supp. 1294, aff'd,
(9th Cir. 1978), 571 F.2d 502; Azzaro v. Harnett (S.D. N.Y.
1976), 414 F.Supp. 473, 474, aff'd, (2nd Cir. 1977), 553
F.2d 93, cert. denied, (1977), 434 U.S. 824, 98 S.Ct. 71, 54
L.Ed.2d 82; National Carriers Conf. Com. v. Heffernan (D.
Conn. 1978), 454 F.Supp. 914, 918; Francis v. united Tech-
nologies Corp. (N.D. Cal. 1978), 458 F.Supp. 84. But see,
Insurers Action Council, Inc. v. Heaton (D. Minn. 1976), 423
F.Supp. 921, 926.
It is interesting to note that although Wadsworth and
Bell favored broad preemption by ERISA, they both held that
the individual statutes before them were spared from exemp-
tion, albeit by the specific ERISA provision sparing state
laws regulating insurance from preemption. Further, Wayne

Chemical, while finding preemption, incorporated the state
statute in question into the federal common law of employee
benefit plans. Hewlett-Packard and Azzaro, on the other
hand, found b r o a d p r e e m p t i o n . The s t a t e l a w s i n t h e s e two

c a s e s , however, c o n c e r n e d a r e a s r e g u l a t e d by ERISA.

T h e r e a r e a number o f cases on p o i n t where a s t a t e law

p r o h i b i t i n g discrimination i n t h e provision of d i s a b i l i t y

b e n e f i t s t o p r e g n a n t workers i s involved. While t h e r e i s a

s p l i t o f a u t h o r i t y , t h e m a j o r i t y o f o p i n i o n s t o d a t e have

found no f e d e r a l p r e e m p t i o n o f t h e s t a t e law. G a s t v.

S t a t e , by and t h r o u g h S t e v e n s o n ( 1 9 7 8 ) , 36 0r.App. 4 4 1 , 585

P.2d 1 2 ; Goodyear T i r e & Rubber v. Dept. o f I n d u s t r y , s u p r a ;

Bucyrus-Erie Co. v. Dept. o f I n d u s t r y , s u p r a ; I l l i n o i s B e l l

Tel. Co. v. F a i r Employment P r a c t i c e s Commission, s u p r a ;

Westinghouse E l e c . Corp. v. S t a t e Human R i g h t s Appeals

Board, s u p r a ; L i b e r t y Mutual I n s u r a n c e Co. v . S t a t e D i v i s i o n

o f Human R i g h t s , s u p r a ; Lukus v. Westinghouse E l e c t r i c

Corp., s u p r a ; Time I n s u r a n c e Co. v . DILHR, s u p r a . Contra,

S t a t e o f Minnesota v . MMM Co., Department o f Human R i g h t s

D e c i s i o n , Minn., September 1 6 , 1977; P e r v e l I n d u s t r i e s v.

S t a t e o f Conn. (D. Conn. 1 9 7 8 ) , 468 F.Supp. 490; American

Chain and C a b l e Co., I n c . v . Iowa C i v i l R i g h t s Commission,

CE 6-2938 ( P o l k D i s t r i c t County C t . , Iowa, J u n e 28, 1 9 7 8 )

(unpublished o p i n i o n ) .

S e v e r a l of t h e above d e c i s i o n s have a d o p t e d t h e view
t a k e n by a p p e l l a n t s h e r e i n - - t h a t T i t l e V I I p r o t e c t s state

s t a t u t e s from p r e e m p t i o n by ERISA.

The F e d e r a l D i s t r i c t C o u r t i n ~ u c y r u s - E r i e , s u p r a ,

a n a l y z e d t h e i n t e r r e l a t i o n s h i p o f T i t l e V I I , ERISA, and t h e
Wisconsin pregnancy d i s a b i l i t y law. The c o u r t found t h a t

w h i l e ERISA d e a l s w i t h employee b e n e f i t p l a n s , t h e isc cons in

F a i r Employment A c t d o e s n o t s p e c i f i c a l l y a d d r e s s s u c h
p r i v a t e employee b e n e f i t s p l a n s : "Rather, t h i s A c t i s

d e s i g n e d t o p r o h i b i t d i s c r i m i n a t i o n i n employment and i s
grounded on the state's police power. It does not impinge
on federal regulation of employee benefit plans." 453

The court further found that although ERISA supersedes
state laws relating to employee benefit plans, it does not
expressly provide that all state fair employment laws are
likewise superseded:
"The legislative history of the Act fails to
indicate that Congress, by enacting ERISA,
intended to preempt state fair employment
laws as they may concern employee benefit
plans.
"Section 1144(d) does, in fact, provide that
ERISA shall not be construed to alter, modify
or supersede any law of the United States.
"Title VII of the Civil Rights Act of 1964,
42 U.S.C. 8 2000e, et seq., as amended, ex-
pressly preserves state laws such as the Wis-
consin Fair Employment Act which are designed
to prohibit employment discrimination. 42
U.S.C. SB 2000e-7 and 2000h-4.
"Title VII specifically provides that no charge
may be filed with the EEOC under Title VII
until sixty days after proceedings have been
commenced under the state employment discrimi-
nation law, 42 U.S.C. S 2000e-5(c), 5(d) and
5(e). The EEOC must give substantial weight
to state agency findings and orders and must
cooperate with such agencies. 42 U.S.C. S S
2000e-5 (b), 2000e-8.
"From an examination of the provisions of
ERISA and its legislative history, and con-
sidering Congress' long-standing recognition
of the importance of state employment discrimi-
nation laws, this Court finds that it is not
clear that Congress intended to preempt the
Wisconsin Fair Employment Act insofar as it
prohibits sex discrimination in employee bene-
fit plans.
"Because preemption is not clearly mandated in
this Court's opinion, this Court declines to
invalidate the Wisconsin Fair Employment Act
against a claim of federal preemption grounded
on ERISA. To hold otherwise, would also seri-
ously impair the enforcement scheme of Title
VII of the Civil Rights Act of 1964." Bucyrus-
Erie, 453 F.Supp. at 79.
 The c o u r t i n Goodyear T i r e & Rubber v . Dept. o f Indus-

t r y , s u p r a , used a s i m i l a r r a t i o n a l e i n c o n c l u d i n g t h a t t h e

exemption c o n t a i n e d i n S1144(d) a p p l i e s t o T i t l e V I I of t h e

C i v i l R i g h t s A c t and t h r o u g h T i t l e V I I t o s e c t i o n 111.32

( 5 ) ( g ) o f t h e Wisconsin F a i r Employment A c t s o a s t o p r e -

s e r v e i t from ERISA preemption:

"There i s no q u e s t i o n b u t t h a t p r i o r t o ERISA,
sec. 111.32 ( 5 ) ( g ) , S t a t s . , was c o n s i s t e n t w i t h
T i t l e V I I which, l i k e t h e Wisconsin s t a t u t e ,
p r o h i b i t e d s e x d i s c r i m i n a t i o n i n employment.
42 U.S.C. s e c . 2000e-2 ( a ) (1). The Wisconsin
s t a t u t e t h e r e f o r e s u r v i v e d and was n o t preempted
by T i t l e V I I . More p r e c i s e l y , and i n t h e words
of 42 U.S.C. s e c . 2000h-4, t h e r e was no ' i n t e n t
on t h e p a r t o f Congress t o occupy t h e f i e l d
... ( o f s e x d i s c r i m i n a t i o n i n employment)
... t o t h e e x c l u s i o n o f ' W i s c o n s i n ' s l a w on
t h e same s u b j e c t .

"And t h e r e i s no q u e s t i o n b u t t h a t T i t l e V I I
s u r v i v e s i n t a c t t h e preemption p r o v i s i o n s o f
ERISA by v i r t u e o f s e c . 1 1 4 4 ( d ) .

" I f sec. 1 1 1 . 3 2 ( 5 ) ( g ) , S t a t s . , s u r v i v e d T i t l e
VII, and i f t h e l a t t e r s u r v i v e s ERISA, t h e n t h e
l o g i c o f t h e f e d e r a l s t a t u t e s compels t h e con-
c l u s i o n t h a t s e c . 1 1 1 . 3 2 ( 5 ) ( g ) s u r v i v e s ERISA."
Goodyear, 273 N.W.2d a t 795.

The c o u r t r e j e c t e d a n argument ( s i m i l a r t o one made

h e r e by Mountain B e l l ) by Goodyear t h a t :

". . . s e c . 111.32(5)(g), Stats., survives only
T i t l e V I I and i s preempted a s t o employee bene-
f i t p l a n s b e c a u s e t h e exemption from preemption
i s limited t o T i t l e V I I . The argument i s based
upon t h e o p e n i n g words o f 4 2 U.S.C. S2000h-4,
' N o t h i n g c o n t a i n e d i n any t i t l e o f t h i s Act s h a l l
be c o n s t r u e d .. . ' a s preempting s t a t e laws and,
t h e argument c o n t i n u e s , ' o t h e r f e d e r a l s t a t u t e s '
may work preemption. The ' o t h e r f e d e r a l s t a t u t e '
i n v o l v e d , however, i s sec. 1 1 4 4 ( d ) of ERISA
which t e l l s u s , i n e f f e c t , t h a t n o t h i n g i n T i t l e
V I I s h a l l be c o n s t r u e d a s a l t e r e d , amended, modi-
f i e d , i n v a l i d a t e d , i m p a i r e d o r s u p e r s e d e d by
ERISA. I f w e a r e t o a d o p t Goodyear's view of
ERISA, an e x c e p t i o n a s t o employee b e n e f i t p l a n s
must be found i n 4 2 U.S.C. 52000h-4 o f T i t l e V I I .
T h a t e x c e p t i o n d o e s n o t a p p e a r on t h e f a c e of
42 U.S.C. S2000h-4. Such a n e x c e p t i o n would
have t o be based upon a n i m p l i e d amendment of
T i t l e V I I r e s u l t i n g from t h e a d o p t i o n of ERISA,
and would be c o n t r a r y t o s e c . 1 1 4 4 ( d ) of ERISA.
 "Goodyear argues it would be a nonsequitur for
Congress broadly to declare that state laws are
preempted and then to permit the states to regu-
late employee benefit plans through the mecha-
nism of a different federal statute. But the
fact is that Congress declared in sec. 1144(d)
of ERISA that federal laws remain unchanged
after ERISA and Title VII continues to permit
states to prohibit sex discrimination in employ-
ment." Goodyear, 273 N.W.2d at 795-96.
In Liberty Mutual Insurance Company v. State ~ivision
of Human Rights, supra, the court reviewed a determination
by the State Human Rights Appeal Board affirming an admin-
istrative finding that an employer had discriminated against
the complainant on the basis of her sex through disallowance
of pregnancy-related benefits and stated:
". . . Althoughthe Congress fashioned a broad
preemptive policy when it passed ERISA (see
U.S. Code, tit. 29, 5 1144[al), the legislative
history behind the passage of the retirement
program leads us to conclude that Congress did
not intend to narrow the jurisdiction of those
Federal and State agencies whose duty it is to
regulate unlawful employment practices. The
statements of Senator Walter Mondale and Repre-
sentative Bella Abzug, made in their respective
Houses of Congress, indicate that anti-discrimi-
nation amendments to the ERISA legislation were
only withdrawn upon assurance from the ERISA
draftsmen that discrimination claims would
continue to fall within the jurisdiction of the
Equal Employment Opportunity Commission under
terms of existing law (see 119 Cong.Rec. S30409-
10 [Sept. 19, 19731; 120 Cong.Rec. H4726 [Feb.
28, 19741). Thus, it is clear that Congress did
not intend to disturb the established structures
for administering such claims. Since title VII
of the Civil Rights Act has clearly not been
impaired by ERISA (see U.S. Code, tit. 29, 51144
[dl; U.S. Code, tit. 42, §2000e-7), and since it
vests concurrent jurisdiction in the Equal Em-
ployment Opportunity Commission and similar
State-level agencies to investigate these claims
(see, e.g. U. S. Code, tit. 42, SS2000e-4 [gl [ll
2000e-7), we find that the jurisdiction of the
State Division of Human Rights was not preempted
by ERISA." Liberty Mutual, 402 N.Y.S.2d at 219.
To the same effect as the above three cases are Lukus
v. Westinghouse Electric Corp., supra, and Illinois Bell
Tel. Co. v. Fair Employment Practices Commission, supra.
 In Gast, supra, the court reviewed the history of ERISA
as well as its substantive provisions and concluded there
was no broad intent to preempt substantive provisions such
as the Oregon pregnancy law:
"The subject matter of ERISA does not compel the
conclusion that Congress intended to preempt
states in regulating such things as pregnancy
benefits. The scope of the regulatory scheme
embodied in ERISA is limited, particularly with
respect to health and welfare benefits. The
statutory purposes enumerated in 29 U.S.C. 51001
are: (1) to require disclosure and reporting to
beneficiaries; (2) to ensure that employee pen-
sion benefit programs are adequately funded; (3)
to improve the equities of pension plans; and
(4) to establish 'minimum standards * * * assur-
ing * * * their finanacial soundness.'

"More significantly, there is no suggestion in
the statute that Congress intended to regulate
the substance of health and welfare benefits or
the manner in which such benefits are to be pro-
vided. Thus, if we are to adopt the construction
of 29 U.S.C. 51144(a) advanced by plaintiffs we
must import to Congress not only an intent to
preempt state law, but also an intent to cease
all governmental regulation, state or federal,
other than the disclosure and fiduciary require-
ments of health and welfare benefits paid by
employers or employee organizations. There is
nothing in the legislative history suggesting
such an intent. To the contrary, the legislative
history indicates Congress was concerned with the
inadequacy of governmental regulations and con-
cluded that there should be at least minimum
federal standards with respect to disclosure and
fiduciary responsibility. See, e.g., 29 U.S.C.
S1001." Gast, 585 P.2d at 20-21.
Although holding against preemption, the court, citing
General Electric v. Gilbert (1976), 429 U.S. 125, 97 S.Ct.
401, 50 L.Ed.2d 3Br did not accept the argument that Title
VII spared the state act from preemption.
In Time Insurance Co. v. DILHR, supra, the court also
concluded that Wisconsin's pregnancy disability statute was
not within the field of law preempted by ERISA. It held

that the state law concerned:
 ". . . is a statute broad in scope grounded on
the State's police power to prevent employers
engaging in any employment practice which dis-
criminates because of sex. It in no way impinges
on federal regulation of employee benefit and
pension plans. The sex discrimination prohibi-
tions of the Wisconsin Fair Employment Law are
merely of peripheral concern of ERISA. Until the
United States Supreme Court rules to the contrary,
this Court is of the Opinion that Wisconsin courts
so long as there exists a rational doubt that
preemption exists, should uphold validity of
sec. 111.32(5)(g), Stats., against a claim of
federal preemption grounded on ERISA." 16 BNA
FEP cases at 396.
While the nonpreemption view appears to be in the
majority, not all maternity leave cases agree with the one
quoted above. In American Chain and Cable Co., Inc. v. Iowa
Civil Rights Commission, supra, the Iowa court held that
according to General Electric v. Gilbert, supra, and under
Iowa law, an employer's disability benefit plan which spe-
cifically excluded disabilities due to pregnancy did not
discriminate against women nor violate state or federal
civil rights laws. The court also summarily concluded that
ERISA had preempted the field.
Similarly, the court in Pervel Industries v. State of
Connecticut (D. Conn. 1978), 468 F.Supp. 490, rejected the
double savings clause rationale that Title VII protected
Connecticut's anti-discrimination law from preemption:
"This Court does not accept the reasoning of
this double savings clause contention. Section
514(d) of ERISA preserves federal law. Connec-
ticut's anti-discrimination law does not become
a federal law simply because Title VII preserves
its validity as against a claim of preemption
by Title VII. Nor is the textual argument sig-
nificantly enhanced by focusing on §514(b)'s
requirement that ERISA should not be construed
to 'impair' any law of the United States. Pre-
emption of Conn. Gen. Stat. S31-126(g) by ERISA
does not impair any federal law. Title VII did
not create new authority for state anti-discrim-
ination laws; it simply left them where they
were before the enactment of Title VII. What-
ever is prohibited by Title VII remains prohi-
 bited under ERISA but exclusion of disability
benefits for pregnancy does not violate Title
VII. . ." Pervel Industries, 468 F.Supp. at 493.
As stated earlier, the nonpreemption viewpoint, as
espoused by appellants, is favored by the majority of cases
involving such maternity discrimination statutes. All the
cases, however, rely on some, albeit varied, interpretation
of how Title VII, ERISA, General Electric v. Gilbert, supra,
and state laws interact.
The parties agree that "potential problems of discrim-
ination in employee benefit plans were not intended to be
dealt with by ERISA," but were intended to be dealt with by
Title VII of the Civil Rights Act of 1964. This is where
the agreement ends, however, with Mountain Bell contending
that under General Electric v. Gilbert, supra, it was not
sex discrimination within the meaning of Title VII for an
employer to exclude pregnancy disability benefits from
coverage under employee plans, and appellants contending
that the states were permitted to regulate employee benefit
plans in the area of discrimination.
Mountain Bell's position fails to take into account the
rather checkered history of Gilbert, including the recent
significant addition to Title VII demonstrating a contrary
congressional intent, and the cases decided after Gilbert,
demonstrating a consistent refusal on the part of the major-
ity of the courts to follow Gilbert. An excellent discus-

sion of this history is set out in Illinois Bell Tel. Co. v.
Fair Employment Practices Commission, supra:
"On October 31, 1978 section 701(k) of the Civil
Rights Act of 1964 was signed into law adding a
definition to the Act which demands a view of
the statute from a different perspective, pro-
viding, in pertinent part:
"'The terms "because of sex" or "on the basis of
sex" include, but are not limited to, because of
or on the basis of pregnancy, childbirth, or
related medical conditions; and women affected
by pregnancy, childbirth or related medical con-
ditions shall be treated the same for all employ-
ment-related purposes, including receipt of bene-
fits under fringe benefit programs, as other
persons not so affected but similar in their
ability or inability to work, and nothing in sec-
tion 703(h) of this title shall be interpreted
to permit otherwise.'
"The language of section 701(k) makes clear that
Congress disagreed with the interpretation placed
upon the pregnancy discrimination issue by the
Gilbert decision. This inference is buttressed
by the commentary set forth in the Report of the
Committee on Education and Labor of the House of
Representatives which stated, in part:
"'It is the Committee's view that * * * dissent-
ing justices [Brennan, Marshal and Stevens in
General Electric Co. v. Gilbert, 429 U.S. 125,
97 S.Ct. 401, 50 L.Ed.2d 3431 correctly inter-
preted the act. * * * We recognize that the enact-
ment of H.R. 6075 will reflect no new legislative
mandate of the Congress nor affect changes in
practices, costs, or benefits beyond those in-
tended by title VII of the Civil Rights Act.'
U.S. Code Cong. & Admin. News 1978, pp. 4749,
4750.
"Even in the absence of section 701(k) of Title
VII, recent cases from other jurisdictions,
which were decided after the Gilbert decision
by the Supreme Court and after the decision of
the trial court herein, almost unanimously sup-
port the conclusion we reach. (Massachusetts
Electric Co. v. Massachusetts Cornm'n Against
Discrim. (Mass. 1978), 375 N.E.2d 1192; Quaker
Oats Co. v. Cedar Rapids Human Rights Comm'n
(Iowa 1978), 268 N-W.2d 862; Castellano v. Linden
Board of Education (1978), 158 N.J.Super. 350,
386 A.2d 396; Anderson v. Upper Bucks County
Area Vocational Tech. School (1977), 30 Pa.Cmwlth.
103, 373 A.2d 126.) (Contra: Narragansett Elec-
tric Co. v. Rhode Island Comm'n for Human Rights
(R.I. 1977), 374 A.2d 1022; Group Hosp., Inc. V.
Dist. of Columbia Comm'n on Human Rights (D.C.
1977), 380 A.2d 170.) Decisions by courts in
other states, preceding that of the circuit court
of Cook County herein, deciding contrary to its
conclusion, include Brooklyn Union Gas Co. v.
N. Y. State Human Rights Appeal Board (1976), 41
N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393; Ray-
0-Vac v. Wisconsin Dept. of Industry, Labor &
Human Relations (1975), 70 Wis.2d 919, 236 N.W.2d
209; Cedar Rapids School Dist. v. Parr (Iowa Sup.
Ct. 1975), 227 N.W.2d 486. See also Comment,
Love's Labor Lost: New Conceptions of Maternity
Leave, 7 Harv.Civ.Rights-Civ.Lib.L.Rev. 260
(1972); Johnston, Sex Discrimination and the
Supreme Court--1971-1974, 49 N.Y.S.L.Rev. 672
(1974); Comment, Pregnancy and the Constitution:
The Uniqueness Trap, 62 Calif. L.Rev. 1532 (1974);
Comment, Geduldig v. Aiello: Pregnancy Classi-
fications and the Definition of Sex Discrimina-
tion, 75 Colum.L.Rev. 441 (1975); Comment, Preg-
nancy and Employment Benefits, 27 Baylor L.Rev.
767 (1975).
"Representative of the viewpoints expressed by
the foregoing authorities is the well-reasoned
opinion in Massachusetts Electric Co. v. Massa-
chusetts Comm'n Against Discrim. (Mass. 1978),
375 N.E.2d 1192 which held (375 N.E.2d at 1198-
99):
"'In considering whether the exclusion of bene-
fits for pregnancy-related disabilities from a
comprehensive disability plan violates G.L. c.
151B, 84, the initial inquiry necessarily in-
volves determining whether distinctions based
on pregnancy are sex-linked classifications.
Pregnancy is a condition unique to women, and
the ability to become pregnant is a primary char-
acteristic of the female sex. Thus, any classi-
fication which relies on pregnancy as the deter-
minative criterion is a distinction based on sex.
General Elec. Co. v. Gilbert, 429 U.S. 125, 149,
97 S.Ct. 401, 414, 50 L.Ed.2d 343 (1976) (Bren-
nan, J., dissenting) ("Surely it offends common
sense to suggest . .
. that a classification
revolving around pregnancy is not, at the mini-
mum, strongly 'sex related'"). Id. at 161-162,
97 S.Ct. at 421 (Stevens, J., dissenting) ("By
definition ... [placing pregnancy in a class
by itself] discriminates on account of sex; for
it is the capacity to become pregnant which pri-
marily differentiates the female from the male").
Gilbert v. General Elec. Co., 375 F.Supp. 367,
381 (E.D. Va. 1974), reversed, 429 U.S. 125, 97
S.Ct. 401, 50 L.Ed.2d 343 (1976) ("[pregnancy]
is undisputed[ly] and inextricably sex-linked.
. .. That [exclusion of pregnancy-related dis-
abilities] is discriminatory by reason of sex
is self evident"). See Black v. School Comm.
of Malden, 365 Mass. 197, 209-211, 310 ~.E.2d
330 (1974).
"'The exclusion of pregnancy-related disabilities,
a sex-based distinction, from a comprehensive
disability plan constitutes discrimination.
While men are provided comprehensive coverage
for all disabilities which will necessitate their
absence from work, including male-specific dis-
abilities, women are not provided the assurance
of comprehensive protection from the inability
to earn income during a period of disability.
* * * (Citations omitted.) Pregnancy exclusions
 in disability programs "both financially burden
women workers and act to break down the con-
tinuity of the employment relationship, thereby
exacerbating women's comparative transient role
in the labor force". * * * (Citations omitted. )
Moreover, pregnancy exclusions reflect and per-
petuate the stereotype that women belong at home
raising a family rather than at a job as perma-
nent members of the work force. * * *I (Cita-
tions omitted. )
"It is also noteworthy that the decisions of the
six federal courts of appeal which predate General
Electric Co. v. Gilbert (1976), 429 U.S. 125, 97
S.Ct. 401, 50 L.Ed.2d 343, concordantly concluded
that pregnancy exclusions violated Title VII and
constituted unlawful sex discrimination. Communi-
cations Workers v. American Telephone & Telegraph
Company (2nd Cir. 1975), 513 F.2d 1024, vacated,
429 U.S. 1033, 97 S.Ct. 724, 50 L.Ed.2d 744 (1977);
Wetzel v. Liberty Mutual Insurance Co. (3d Cir.
1975), 511 F.2d 199, vacated, 424 U.S. 737, 96
S.Ct. 1202, 47 L.Ed.2d 435 (1976); Gilbert v.
General Electric Co. (4th Cir. 1975), 519 F.2d 661,
reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d
343 (1976); Satty v. Nashville Gas Co. (6th Cir.
1975), 522 F.2d 850, vacated in part, 434 U.S. 136,
98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Hutchison v.
Lake Oswego School Dist. (9th Cir. 1975), 519 F.2d
961, vacated, 429 U.S. 1033, 97 S.Ct. 725, 50 ~.Ed.2d
744 (1977).
"Since its decision in Gilbert, it appears that
the Supreme Court has itself retreated from its
position in two cases treating pregnancy-employ-
ment problems with a somewhat different outlook.
(Nashville Gas Co. v. Satty (1977), 434 U.S. 136,
98 S.Ct. 347, 54 L.Ed.2d 356; City of Los Angeles,
Dept. of Water v. Manhart (1977), 435 U.S. 702,
98 S.Ct. 1370, 55 L.Ed.2d 657.) Especially to be
noted is the concurring opinion of Mr. Justice
Blackmun in Manhart." Illinois Bell, supra, 386
N.E.2d at 601-03.
The above history indicates Congress originally intended
to protect against sex discrimination in employment under
Title VII. This, coupled with the fact that the Equal
Employment Opportunity Commission guideline overturned in
Gilbert was still in effect when ERISA was being considered,
indicates that Congress did not intend to preempt employment
discrimination acts which tangentially affect employee
benefit plans because it had already attempted to do so
under Title VII.
 Mountain Bell argues that statements made by Senators
Javits and Williams, the principal architects of ERISA,
concerning the impact of ERISA upon the Age Discrimination
in Employment Act Amendments of 1978, P.L. 95-256, 92 Stat.
189 (1978), amending the Age Discrimination in Employment
Act of 1967, 29 U.S.C. SS621-634, are entitled to substan-
tial weight in interpreting ERISA, in that they reflect upon
the legislative intent of an earlier statute through subse-
quently enacted legislation. Goodyear made a similar argu-
ment in Goodyear Tire & Rubber v. Dept. of Industry, supra.
The court there rejected the argument, stating:
"That senatorial colloquy occurred more than
three years after ERISA was enacted. Legislative
observations years after passage of the Act are
not part of its legislative history. United Air
Lines, Inc. v. McMann, 434 U.S. 192, 200, footnote
7, 98 S.Ct. 444, 54 L.Ed.2d 444 (1977). Our con-
struction of ERISA is not foreclosed because mem-
bers of Congress express contrary views after its
passage. United States v. Philadelphia Nat. Bank,
374 U.S. 321, 384, 83 S.Ct. 1715, 10 L.Ed.2d 915
(1963). The Age Discrimination in Employment Act
Amendments of 1978 do not amend, clarify or at-
tempt to clarify ERISA. Goodyear's reliance upon
Red Lion Broadcasting Co. v. F.C.C., 394 U.S. 367,
89 S.Ct. 1794, 23 L.Ed.2d 371 (1968), is therefore
misplaced, for in -- the court said, 'Sub-
Red Lion
sequent legislation declaring the intent[ion] of
- earlier statute is entitled to great weight-
an
in statutory construction.' (394 U.S. 381, 89
S.Ct. 1801, emphasis added.)" 273 N.W.2d at 797.
It is well settled that the question of whether a state
statute is invalid under the supremacy clause depends upon
the intent of Congress. Malone v. White Motor Corp. (1978),
435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443. It is also
well settled that state statutes are presumed to be valid
unless Congress clearly intended these statutes to be super-
seded by federal law. Jones v. Rath Packing Co. (1977), 430
U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604; Motor Coach Employees
V. Lockridge (1971), 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d
473; E'lorida Lime & Avocado Growers, Inc. v. Paul (1963),
373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248.
As stated earlier:
"The subject matter of ERISA does not compel the
conclusion that Congress intended to preempt
states in regulating such things as pregnancy
benefits. The scope of the regulatory scheme
embodied in ERISA is limited, particularly with
respect to health and welfare benefits. The
statutory purposes enumerated in 29 U.S.C. SlOOl
are: (1) to require disclosure and reporting to
beneficiaries; (2) to ensure that employee pen-
sion benefit programs are adequately funded;
(3) to improve the equities of pension plans;
and (4) to establish 'minimum standards * * *
assuring * * * their financial soundness.'"
Gast, 585 P.2d at 20.
There is nothing in ERISA which treats the area of
employment discrimination. The problem arises because we
are dealing with two statutes--one state and one federal--
that seek to regulate separate activities although some
overlapping areas exist between them. While ERISA super-
sedes state laws relating to employee benefit plans, it does
not expressly supersede all state fair employment laws, nor
does it mention them. Indeed, given the history of Title
VII, it would have been illogical if it had.
". . . Here, we have a federal regulatory scheme
which regulates a limited area coupled with an
express declaration which, if broadly inter-
preted, preempts states from a multitude of
other areas which heretofore have been recog-
nized as valid state concerns. . ."
Gast, 585
P.2d at 22.
To hold for preemption would be to create an enormous
vacuum in areas that have heretofore been traditionally
dealt with by the states through the liberal intent of Title
VII. The substantive nature of health and welfare benefits
are not addressed by ERISA. We should not presume congres-
sional intent to preempt unless Congress "has unmistakably
so ordained." Florida Lime & Avocado Growers, Inc. v. Paul,
supra, 373 U.S. at 142.
NATIONAL LABOR RELATIONS ACT PREEMPTION
The District Court declined to rule on this issue,
noting: "Consideration of whether federal labor law preempts
the Maternity Leave Act by implication is unnecessary in
view of the much clearer preemptive declaration of ERISA.
At any rate, I reach that conclusion and therefore will not
attempt an analysis of federal labor law to determine whe-
"
ther or not it preempts our Maternity Leave .Act.
As there was no ruling concerning the effect of federal
labor law by the District Court, this issue is technically
not before us. The parties, however, have spent substantial
portions of their briefs discussing this issue, and in view
of our decision concerning ERISA, it becomes necessary to
discuss this issue as well.
During the relevant time period of this lawsuit, the
employment relationship between Mountain Bell and Rae Bauer
was governed by a collective bargaining agreement between
Mountain Bell and Rae Bauer's labor union, Communications
Workers of America. This collective bargaining agreement
was entered into under and subject to the provisions of
federal labor law. Generally, federal labor law does not
specify what the substantive terms of collective bargaining
agreements must be. Instead, federal labor law requires
that employers and unions must bargain in good faith that
they may work out for themselves their own agreements for
the governance of their industrial relations. See 29 U.S.C.

Sl58(d).
Mountain Bell contends that federal labor law requires
as a "mandatory subject of bargaining" that employers and
unions come to some agreement on employer group insurance,
including insurance for nonoccupational injuries or disease.
W. W. Cross & Co. v. NLRB (1st Cir. 1949), 174 F.2d 875,
878. Here, this mandatory collective bargaining between
Mountain Bell and CWA resulted in an agreement which states
that Mountain Bell is not required to pay disability bene-
fits when an employee is on a maternity leave of absence.
Mountain Bell further contends that the attempt by the
Commission of Labor and Industry to compel Mountain Bell to
pay such benefits under section 39-7-203, MCA, alters the
collective bargaining agreement and violates the fundamental
premise of federal labor law: that the terms and conditions
of employment must be established by the collective bargain-
ing which are not subject to being changed or altered by the
application of contrary state laws.
Appellants, on the other hand, reiterate that the
Maternity Leave Act has been affirmatively authorized by
Title VII. Further, they argue that such statutory protec-
tion against certain forms of employment discrimination is
in the nature of an independent right and cannot be waived
through collective bargaining.
The court in Goodyear Tire & Rubber v. Dept. of Industry,
supra, faced a similar issue. Goodyear's disability plan
was negotiated subject to the NLRA. The effect of the
department of industry's order there was to invalidate a
provision in the plan which excluded pregnancy disabilities
from full benefits.
The department's order, therefore, altered Goodyear's
collective bargaining agreement. The court cited exten-

sively from Malone v. White Motor Corp. (1978), 435 U.S.
497, 98 S.Ct. 1185, 55 ~.Ed.2d 443, and found that under
Malone it had to look at federal labor law to determine
whether state law had been preempted. The court did so and
held ". . . we f i n d a n e x p r e s s s t a t e m e n t i n T i t l e V I I , 29

U.S.C. s e c . 2000h-4, t h a t t h e r e was no ' i n t e n t on t h e p a r t

o f Congress t o occupy t h e f i e l d .. .' of sex discrimination

i n employment t o t h e e x c l u s i o n o f s t a t e l a w s on t h e same

subject matter." 273 N.W.2d a t 798.

I n Malone t h e i s s u e was whether a Minnesota p e n s i o n

s t a t u t e w a s preempted p r i o r t o t h e e n a c t m e n t of ERISA by

f e d e r a l labor policy i n s o f a r a s it purported t o override o r

c o n t r o l t h e terms of c o l l e c t i v e b a r g a i n i n g agreements nego-

t i a t e d under t h e NLRA. The c o u r t s t a t e d :

" I t i s u n c o n t e s t e d t h a t whether t h e Minnesota
s t a t u t e i s i n v a l i d under t h e Supremacy C l a u s e
depends on t h e i n t e n t o f Congress. 'The pur-
p o s e o f Congress i s t h e u l t i m a t e t o u c h s t o n e . '
R e t a i l C l e r k s v. Schermerhorn, 375 U.S. 96, 103
( 1 9 6 3 ) . O f t e n Congress d o e s n o t c l e a r l y s t a t e
i n i t s l e g i s l a t i o n whether it i n t e n d s t o preempt
s t a t e l a w s ; and i n s u c h i n s t a n c e s , t h e c o u r t s
n o r m a l l y s u s t a i n l o c a l r e g u l a t i o n o f t h e same
subject matter unless it c o n f l i c t s with federal
law o r would f r u s t r a t e t h e f e d e r a l scheme, o r
u n l e s s t h e c o u r t s d i s c e r n from t h e t o t a l i t y of
t h e c i r c u m s t a n c e s t h a t Congress s o u g h t t o occupy
t h e f i e l d t o t h e e x c l u s i o n of t h e S t a t e s . Ray
v . A t l a n t i c R i c h f i e l d Co., a n t e , a t 157-158;
J o n e s v . Rath Packing Co., 430 U.S. 519, 525,
540-541 ( 1 9 7 7 ) ; R i c e v . S a n t a Fe E l e v a t o r Corp.,
331 U.S. 218, 230 ( 1 9 4 7 ) . 'We c a n n o t d e c l a r e
pre-empted a l l l o c a l r e g u l a t G n t h a t t o u c h e s o r
c o n c e r n s i n a n y w a y t h e complex G r = n r
s h i p s between employees, employers and u n i o n s ;
-o f t h i s _
o b v i o u s l y , much - - i s __ - - S t a t e s . '
l e f t t o the
Motor Coach Employees v . L o c k r i d g e , 403 U.S. 274
( 1 9 7 1 ) . The P e n s i o n A c t ' l e a v e s much t o t h e
s t a t e s , though Congress h a s r e f r a i n e d from t e l l i n g
u s how much. W must s p e l l o u t from c o n f l i c t i n g
e
i n d i c a t i o n s of c o n g r e s s i o n a l w i l l t h e a r e a i n
which s t a t e a c t i o n i s s t i l l p e r m i s s i b l e . ' Garner
v . T e a m s t e r s , 346 U.S. 485, 488 ( 1 9 5 3 ) . Here,
t h e C o u r t o f Appeals concluded t h a t t h e Minnesota
s t a t u t e was i n v a l i d because i t t r e n c h e d on what
t h e c o u r t c o n s i d e r e d t o be s u b j e c t s t h a t Congress
had committed f o r d e t e r m i n a t i o n t o t h e c o l l e c t i v e -
bargaining process.

"There i s l i t t l e d o u b t t h a t under t h e f e d e r a l
s t a t u t e s g o v e r n i n g labor-management r e l a t i o n s ,
a n employer must b a r g a i n a b o u t wages, h o u r s , and
working c o n d i t i o n s and t h a t p e n s i o n b e n e f i t s
a r e p r o p e r s u b j e c t s o f compulsory b a r g a i n i n g .
But t h e r e i s n o t h i n g i n t h e NLRA, i n c l u d i n g
 t h o s e s e c t i o n s on which a p p e l l e e r e l i e s , which
e x p r e s s l y f o r e c l o s e s a l l s t a t e r e g u l a t o r y power
w i t h r e s p e c t t o those i s s u e s , such a s pension
p l a n s , t h a t may be t h e s u b j e c t o f c o l l e c t i v e
bargaining. I f t h e P e n s i o n A c t i s pre-empted
h e r e , t h e c o n g r e s s i o n a l i n t e n t t o do s o must be
i m p l i e d from t h e r e l e v a n t p r o v i s i o n s of t h e
labor statutes. . ." Malone, 435 U.S. a t 5 0 4 -
505. (Emphasis s u p p l i e d . )

The c o u r t found no s u c h i m p l i c a t i o n a n d , on t h e con-

t r a r y , found an i n t e n t i n t h e W e l f a r e and P e n s i o n P l a n s

D i s c l o s u r e A c t of 1958 t o p r e s e r v e s t a t e a u t h o r i t y t o regu-

l a t e p e n s i o n p l a n s . L i k e w i s e , t h e c o u r t i n Goodyear found an

i n t e n t t o preserve s t a t e a u t h o r i t y t o r e g u l a t e sex discrimi-

nation. 273 N.W.2d a t 798.

I n San Diego B u i l d i n g T r a d e s C o u n c i l v . Garmon ( 1 9 5 9 ) ,

359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, t h e c o u r t s t a t e d :

". . . When t h e e x e r c i s e of s t a t e power o v e r a
p a r t i c u l a r a r e a of a c t i v i t y threatened i n t e r -
f e r e n c e w i t h t h e c l e a r l y i n d i c a t e d p o l i c y of
i n d u s t r i a l r e l a t i o n s , i t h a s been j u d i c i a l l y
n e c e s s a r y t o p r e c l u d e t h e S t a t e s from a c t i n g .
However, due r e g a r d f o r t h e p r e s u p p o s i t i o n s of
o u r embracing f e d e r a l system, i n c l u d i n g t h e
p r i n c i p l e o f d i f f u s i o n of power n o t a s a m a t t e r
o f d o c t r i n a i r e l o c a l i s m b u t a s a promoter o f
democracy, h a s r e q u i r e d u s n o t t o f i n d w i t h -
d r a w a l from t h e S t a t e s of power t o r e g u l a t e
where t h e a c t i v i t y r e g u l a t e d was a merely p e r i -
p h e r a l c o n c e r n o f t h e Labor Management R e l a t i o n s
Act. [Citations omitted.] O r where t h e regu-
l a t e d c o n d u c t touched i n t e r e s t s s o d e e p l y r o o t e d
i n l o c a l f e e l i n g and r e s p o n s i b i l i t y t h a t , i n t h e
a b s e n c e of c o m p e l l i n g c o n g r e s s i o n a l d i r e c t i o n ,
we c o u l d n o t i n f e r t h a t Congress had d e p r i v e d
t h e S t a t e s of t h e power t o a c t . " 359 U.S. a t
243-44.

Mountain B e l l a r g u e s t h a t r a t h e r t h a n weighing and

b a l a n c i n g s t a t e and f e d e r a l i n t e r e s t s , which t h e Garmon

opinion prescribes, t h e f e d e r a l c o u r t s have e v o l v e d a com-

p a r a t i v e l y heavy-handed d o c t r i n e of preemption which a p p l i e s

whenever a s t a t e law h a s any e f f e c t whatsoever on any a s p e c t

of l a b o r r e l a t i o n s o r any e l e m e n t o f a c o l l e c t i v e b a r g a i n i n g

agreement.
 Mountain Bell relies on Local 24 of the International
Brotherhood of Teamsters v. Oliver (1959), 358 U.S. 283, 79
S.Ct. 297, 3 L.Ed.2d 312, and Lodge 76, Machinists v. Wis-
consin Employment Relations Commission (1976), 427 U.S. 132,
96 S.Ct. 2548, 49 L.Ed.2d 396, to support its position that
the federal policy under the NLRA is to preempt state attempts
to alter or change the substantive terms of collective
bargaining. "Our decisions . . . have made it abundantly
clear that state attempts to influence the substantive terms
of collective-bargaining agreements are as inconsistent with
the federal regulatory scheme as are such attempts by the
NLRB. . ." Lodge 76, 427 U.S. at 153.
Both of the above cases dealt with areas substantively
covered by NLRA: Oliver with wages and working conditions,
and Lodge 76 with economic weapons of collective bargaining.
Intent to preempt state action in such areas is readily
recognizable. The instant case, however, does not deal with
an area specifically covered by the NLRA but rather with an
area of peripheral concern. To use a broad-sword approach
to preemption in this area would be to forget the Supreme
Court's own words:
". ..
Federal labor policy as reflected in the
National Labor Relations Act . . .
has been con-
strued not to preclude the States from regulating
aspects of labor relations that involve 'conduct
touch[ing] interests so deeply rooted in local
feeling and responsibility that ...
we could
not infer that Congress had deprived the States
of the power to act.' ...
the federal law govern-
ing labor relations does not withdraw 'from the
states . .
. power to regulate where the activity
regulated [is] a merely peripheral concern of the
Labor Management Relations Act.' . . . Cases that
have held state authority to be pre-empted by
federal law tend to fall into one of two cate-
gories: (1) those that reflect the concern that
'one forum would enjoin, as illegal, conduct which
the other forum would find legal' and (2) those
that reflect the concern 'that the [application
 of state law by] state courts would restrict the
exercise of rights guaranteed by the Federal Acts.'"
Lodge 76, 427 U.S. at 136-38. (Omitting cases.)
Clearly, this case does not fall in either of these tradi-
tional areas of preemption but is in an area of traditional
local concern which only peripherally affects the collective
bargaining process. Goodyear, supra.
Alexander v. Gardner-Denver Company (1974), 415 U.S.
36, 94 S.Ct. 1011, 39 L.Ed.2d 147, holds that an individual's
rights to equal employment opportunities under Title VII ".
. . form no part of the collective bargaining process . . ."
415 U.S. at 51.
". . . Moreover, the legislative history of Title
VII manifests a congressional intent to allow an
individual to pursue independently his rights
under both Title VII and other applicable state
and federal statutes. The clear inference is
that Title VII was designed to supplement,
rather than supplant, existing laws and insti-
tutions relating to employment discrimination
.. ." Alexander, 415 U.S. at 48-49.
Mountain Bell argues the Maternity Leave Act does not
create the kind of personal and individual right found in
Alexander because "the rights sought to be vindicated [in
Alexander] were substantially protected by Title VII, whereas
with respect to pregnancy disability benefits the Supreme
Court has held that a denial thereof is not sex discrimina-
tion within the meaning of Title VII." This argument,
however, ignores the fact that Title VII affirmatively
protects and encourages state anti-employment discrimination
legislationr as discussed herein, supra.
The rights accorded under section 39-7-203, MCA, are
uniquely personal and may not be waived through the collec-
tive bargaining process. Alexander v. Gardner-Denver,
supra.
 "If Title VII rights to equal employment oppor-
tunities are non-negotiable in collective bar-
gaining, and if those rights are in addition to
rights granted by state law, it is unlikely that
Congress intended that the latter may be bar-
gained away even though Title VII rights may not.
And if the individual's rights to equal oppor-
tunities are greater under state than federal law,
it is unlikely that Congress intended that rights
obtained from the state may be bargained away
even though federal rights may not." Goodyear,
273 N.W.2d at 800.
We therefore conclude that section 39-7-203, MCA, is not
preempted by the National Labor Relations Act.

WHETHER THE MONTANA MATERNITY LEAVE ACT CONFERS BENEFITS
FOR NORMLAND DISABILITIES AND TO PRE-
ABNORMAL PREGNANCY
AND POST-CHILDBIRTH CONDITIONS.
- - P

Mountain Bell contends that section 39-7-203, MCA,
should be limited to abnormal or unexpected complications of
pregnancy. The District Court rejected this argument because
the language of the statute and its legislative history do
not expressly limit coverage to abnormal or involuntary
complications. Mountain Bell, however, submits that the
absence of such an express limitation is perfectly understand-
able in light of the fact that pregnancy is a largely volun-
tary condition, and, as such, the work absences associated
with its normal and usual progression are not the types of
disability usually covered by sick leave plans, which are
primarily intended to compensate employees for unexpected
illnesses and accidents.
Mountain Bells continues that given the fact that
pregnancy is not the typical covered disease or disability,
one would expect that if the legislature had intended cover-
age of the normal usual and voluntary assumed consequences
thereof, it would have said so expressly; however, the
statute itself is silent on this issue and there is nothing
 i n t h e l e g i s l a t i v e h i s t o r y which a f f i r m a t i v e l y i n d i c a t e s a n

i n t e n t t o r e q u i r e s i c k leave coverage f o r pregnancy-related

p r o b l e m s which a r e normal, n a t u r a l , e x p e c t e d and v o l u n t a r i l y

assumed. Mountain B e l l s u b m i t s t h a t t h e l e g i s l a t u r e ' s

s i l e n c e on t h i s i s s u e c a n l e a d o n l y t o t h e c o n c l u s i o n t h a t

it intended t h a t t h e phrase "disabled a s a r e s u l t of preg-

nancy" b e i n t e r p r e t e d i n a c c o r d a n c e w i t h t h e u s u a l p o l i c y o f

s i c k l e a v e p l a n s t o compensate f o r u n e x p e c t e d wage l o s s . In

t h e c a s e o f p r e g n a n c y , t h i s would mean t h a t compensation i s

r e q u i r e d u n d e r s e c t i o n 39-7-203, MCA, only i n cases of

d i s a b i l i t i e s r e s u l t i n g from abnormal and u n e x p e c t e d compli-

c a t i o n s o f pregnancy.

A p p e l l a n t s c o n t e n d t h a t s u c h a narrow i n t e r p r e t a t i o n o f

s e c t i o n 39-7-203(3), MCA, would be c o n t r a r y t o t h e p l a i n

meaning of t h e s e c t i o n and would t o t a l l y d e f e a t t h e p u r p o s e

of the legislature i n enacting the section. Appellants

f u r t h e r c o n t e n d t h a t t h e S e n a t e had a p r o p o s e d l i m i t a t i o n ,

s i m i l a r t o t h e o n e e s p o u s e d by Mountain B e l l , which w a s

r e j e c t e d i n a c o n f e r e n c e committee o f t h e House and S e n a t e .

They f u r t h e r a r g u e t h a t t h e M a t e r n i t y Leave A c t was b a s e d on

a C o n n e c t i c u t s t a t u t e which, w h i l e weaker i n many r e s p e c t s

and more r e s t r i c t e d t h a n i t s Montana d e s c e n d a n t , h a s s t i l l

been i n t e r p r e t e d t o a p p l y t o d i s a b i l i t i e s which r e s u l t from

b o t h normal and abnormal p r e g n a n c i e s and t o d i s a b i l i t i e s

which o c c u r b o t h b e f o r e and a f t e r c h i l d b i r t h .

The a n a l y s i s o f J u d g e B e n n e t t i n h i s o p i n i o n i n t h e

D i s t r i c t C o u r t was d e c i s i v e on t h i s p o i n t :

" I n c o n s t r u i n g a s t a t u t e , words a r e t o b e g i v e n
t h e i r n a t u r a l , p l a i n and o b v i o u s meaning. [Ci-
t a t i o n s omitted.] In construing l e g i s l a t i v e
i n t e n t , s t a t u t e s must b e r e a d and c o n s i d e r e d i n
t h e i r e n t i r e t y - - t h e s t a t u t e a s a whole must b e
considered. U.S. v . F o r t Belknap, 197 F.Supp.
 812 ( ~ o n t ) . I n r e a d i n g t h e m a t e r n i t y l e a v e l a w
a s a whole, t h e p u r p o s e o f t h e s t a t u t e seems
o b v i o u s : when employed women become p r e g n a n t ,
t h e y c a n n o t be d e n i e d m a t e r n i t y l e a v e i f t h e y
a r e eligible a t a l l f o r disability benefits.
They are e n t i t l e d t o t h o s e b e n e f i t s u n t i l t h e y
a r e p h y s i c a l l y a b l e t o go back t o work. There
i s n o t h i n g i n t h e s t a t u t e t o even s u g g e s t t h a t
b e n e f i t s s h o u l d be a l l o w e d o n l y i f t h e d i s a b i l i -
t i e s a r e i n v o l u n t a r y o r r e s u l t from abnormal
c o m p l i c a t i o n s . The t e r m ' d i s a b i l i t y ' means
' l a c k of p h y s i c a l c a p a c i t y ; t h e i n a b i l i t y t o
p u r s u e a n o c c u p a t i o n o r perform s e r v i c e s f o r
wages b e c a u s e o f p h y s i c a l ... impairment.'
Websters T h i r d I n t e r n a t i o n a l D i c t i o n a r y . When
i n t e r p r e t i n g a s t a t u t e a d o p t e d from a n o t h e r
s t a t e , t h e l a t t e r s t a t e ' s i n t e r p r e t a t i o n can be
used t o c l a r i f y t h e s t a t u t e a d o p t e d i n t h i s
s t a t e . L i n l e y v. Davis 6 M 687 ( 1 8 8 7 ) ; Coburn
v. Coburn 89 M 386 ( 1 9 3 1 ) . Our m a t e r n i t y l e a v e
l a w w a s based on a C o n n e c t i c u t s t a t u t e ( L e g i s .
h i s t o r y ; Minutes of Meeting J a n u a r y 1 0 , 1 9 7 5 ) .
The C o n n e c t i c u t s t a t u t e h a s been i n t e r p r e t e d by
t h a t s t a t e ' s Commissioner o f Human R i g h t s and
Opportunities t o include d i s a b i l i t i e s r e s u l t i n g
from normal and abnormal p r e g n a n c i e s , and t o
e x t e n d from c o n c e p t i o n t h r o u g h d e l i v e r y and a
reasonable period of recovery. Lagana, e t a 1
v. Middletown Board of Ed. 1976. The l e g i s l a t i v e
h i s t o r y r e v e a l s no i n t e n t i o n t o l i m i t t h e s t a t u t e
t o abnormal c o m p l i c a t i o n s . T h e r e f o r e t h e s t a t u t e
must be c o n s t r u e d t o c o v e r d i s a b i l i t i e s r e s u l t i n g
from normal and abnormal p r e g n a n c i e s . The s t a t u t e
d o e s n o t p u r p o r t t o d e f i n e pregnancy i t s e l f a s
a d i s a b i l i t y , but recognizes t h a t t h e condition
of pregnancy m a n i f e s t s i t s e l f i n ways t h a t d i s -
a b l e t h e woman f o r a p e r i o d o f t i m e . In deter-
mining t h e s c o p e o f t h e t i m e p e r i o d t o be c o v e r e d
by t h e b e n e f i t s , t h e r e seems t o be no l o g i c a l
r e a s o n why m a t e r n i t y b e n e f i t s s h o u l d be t r e a t e d
any d i f f e r e n t l y from o t h e r d i s a b i l i t i e s where
b e n e f i t s a r e a l l o w e d f o r a r e a s o n a b l e p e r i o d of
r e c o v e r y , The p l a i n t i f f i n t h e i n s t a n t c a s e ap-
p a r e n t l y b e l i e v e s t h a t b a b i e s a r e d e l i v e r e d by
t h e s t o r k and a r e n o t a n a t u r a l consequence o f
pregnancy. The s t a t u t e s p e c i f i c a l l y s t a t e s ' d i s -
a b l e d a s a r e s u l t of pregnancy.' ' P r e g n a n c y ' by
d e f i n i t i o n i s a c o n d i t i o n t h a t b e g i n s w i t h con-
c e p t i o n and e n d s w i t h d e l i v e r y ( B l a c k s Law ~ i c -
t i o n a r y ; Stedman's Medical D i c t i o n a r y , 2 0 t h e d . ) .
' R e s u l t ' i s t h a t which arises a s a consequence
o f something ( B l a c k s Law ~ i c t i o n a r y ) . C h i l d b i r t h
i s a n o b v i o u s n a t u r a l consequence o f pregnancy
and t h u s t h e s t a t u t e i n t e n d s t o c o v e r d i s a b i l i t i e s
of c h i l d b i r t h .

"I conclude t h e r e f o r e t h a t t h e t e r m ' d i s a b i l i t y
a s a r e s u l t o f p r e g n a n c y ' , a s used i n t h e Montana
m a t e r n i t y l e a v e law a p p l i e s t o d i s a b i l i t i e s re-
s u l t i n g from normal a s w e l l a s abnormal pregnan-
 ties, and the period of coverage extends from the
onset of actual disability through termination
of gestation and a reasonable period of recovery,
to be determined by competent medical authority."
The judgment of the District Court is reversed on Issue
No. 1, relating to preemption of section 39-7-203(3), MCA,
by the federal Employee Retirement Income Security Act of
1974, 29 U.S.C. §lo01 et seq.
Additionally, on the question of preemption of section
39-7-203(3), MCA, by the federal labor law (National Labor
Relations Act, 29 U.S.C. S141 et seq.), on which the Dis-
trict Court was not required to rule because of the nature
of its opinion, we hold that the NLRA does not preempt the
Montana Act.
The judgment of the District Court is affirmed on Issue
No. 3 on its finding that the term "disability as a result
of pregnancy" as used in the Montana Maternity Leave Act
applies to disabilities resulting from normal as well as
abnormal pregnancies and the period of coverage extends from
onset of actual disability through termination of gestation
and a reasonable period of recovery, to be determined by
competent medical authority.
The case is remanded to the District Court to enter
judgment in behalf of appellants/cross-respondents: the

Commissioner of Labor and Industry of the State of Montana,
the Administrator of the Labor Standards Division of the
Department of Labor and Industry of the State of Montana,
Rae S. Bauer, Communications Workers of America, and the
Montana Human Rights Commission, in conformity with this
Opinion.
W e concur:

zJ&k%&f&\
Chief J u s t i c e

Qd-2. ustices ALL^