No. 90-207
IN THE SUPREME COURT OF THE STATE OF MONTANA
LARRY DEEDS, et al,
plaintiffs and Appellants,
-vs-
DECKER COAL COMPANY,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas E. Towe, Towe, Ball, Enright & Mackey,
Billings, Montana
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For Respondent:
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3 I- Paul D. Miller, Holland & Hart, Billings, Montana;
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- '- : b -l ' Sandra R. Goldman, Holland & Hart, Denver, Colorado
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L 4 >;$ Submitted: August 9, 1990
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Justice John C. Sheehy delivered the Opinion of the Court.
Plaintiffs in this class action suit appeal the judgment of
the District Court, Thirteenth Judicial District, Big Horn County,
granting summary judgment for Decker Coal Company in wrongful
discharge action. We reverse the ~istrict Court and stay the
proceedings pending the outcome of National Labor elations Board
proceedings.
The issues are:
1) Did the ~istrictCourt err in concluding the dispute to
be exempted under 5 39-2-912, MCA of the Montana Wrongful isc charge
from Employment Act?
2) Did appellants perfect this appeal?
The appellants in this case are 152 employees discharged by
respondent Decker Coal Company for allegedly engaging in strike
misconduct.
The collective bargaining agreement between Decker and its
employees expired on October 1, 1987. Appellants and other
employees went on strike at that time. On June 24, 1988, the
United Mine Workers of America, on behalf of the striking
employees, made an unconditional offer to return to work, effective
June 27, 1988. On June 28, 1988, Decker notified employees that
approximately 80 of the striking employees would be recalled but
that the remaining 152 employees would be discharged due to
allegedly engaging in I1seriousstrike misconduct."
In November and December of 1988, the discharged employees,
individually and through the UMWA, filed unfair labor practice
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charges with the National Labor Relations Board, claiming their
discharges to be retalitory measures based on union activities.
As of the date of this appeal, the NLRB has yet to file a complaint
on behalf of the discharged employees.
The discharged employees filed the complaint leading to this
appeal in District Court on June 23, 1989, alleging wrongful
discharge pursuant to the Montana Wrongful Discharge from
Employment Act, 1 39-2-901, et seq. Oral argument was held on
October 25, 1989, and the court granted Decker's motion for summary
judgment on November 6, 1989, ruling the Montana Act not applicable
due to exemptions contained in the Act. This appeal resulted.
Appellants contend that the District Court erred in its
determination that their wrongful discharge action is exempted
under 5 39-2-912, MCA.
Section 39-2-912 states that Montana's Wrongful Discharge from
Employment Act does not apply to a discharge:
(1) that is subject to any other state or federal
statute that provides a procedure or remedy for
contesting the dispute. Such statutes include those that
prohibit discharge for filing complaints, charges or
claims with administrative bodies or that prohibit
unlawful discrimination based on race, national origin,
sex, age, handicap, creed, religion, political belief,
color, marital status, and other similar grounds.
(2) of an employee covered by a written collective
bargaining agreement or a written contract of employment
for a specific term.
Appellants maintain that no statutory exemption applies in
this instance. They contend that their labor relations dispute is
not exempted by the statute, as all of the statute's exemptions
are based on discrimination. We cannot interpret the statute so
narrowly. Clearly, the statute's list is not meant to be all-
inclusive, as shown by the term "and other similar grounds.I1
There is merit, however, in appellants ' argument that no other
state or federal statute providing a procedure or remedy for
contesting the dispute has yet taken effect, thereby exempting this
dispute. Nor can the employees be said to be exempted from the
Act's provisions by way of a collective bargaining agreement. It
was the expiration of their collective bargaining agreement that
set this litigation in motion.
Should the NLRB eventually decide to enter into the dispute
by filing a complaint on behalf of the discharged employees, a
I1procedureor remedy for contesting the disputegv
would be set in
motion, and the statutory exemption of 9 39-2-912, MCA, would
apply. As yet, no such procedure has taken place, and appellants
state that the District Court's finding was erroneous.
We find that the District Court was premature in its ruling
that the claims for wrongful discharge were exempted. To ensure
appellants a forum in which the dispute may be resolved, this cause
is reversed and remanded to the District Court, with the
proceedings stayed pending NLRB action.
Respondent Decker argues that only one appellant, Larry Deeds,
has perfected an appeal. Appellants' notice of appeal is headed
"Larry Deeds, et al., which Decker contends is insufficient to
convey notice under Rule 4(c), Montana Rules of Appellate
Procedure. Rule 4(c) provides that:
The notice of appeal shall specify the party or parties
taking the appeal; and shall designate the judgment,
order or part thereof appealed from.
An appeal shall not be dismissed for informality of form
or title of the notice of appeal.
Decker urges this Court to find that the term "et al.I1 is
insufficient to specify the parties taking this appeal. Decker
cites the U.S. Supreme Court decision in Torres v. Oakland
Scavenger Co. (1988), 487 U.S. 312, wherein a sharply divided Court
held that Rule 3(c), Federal Rules of Appellate Procedure, (which
is identical to Rule 4(c), M.R.App.P.), is jurisdictional in nature
and requires the names of all parties taking part in the appeal.
We decline to follow the respondentls interpretation of the
Torres decision. We instead choose to follow the Ninth Circuit
decision in National Center for Immigrants1 Rights v. I.N.S. (9th
Cir. 1989), 892 F.2d 814, wherein the Circuit Court, directly
addressing the use of "et al.I1 in the caption of the notice clearly
indicated that all of the defendants were appealing the decision
below. The Circuit Court noted that the Torres decision was
premised on a fact pattern where one petitioner out of the sixteen
plaintiffs was never named.
It would be onerous, to say the least, to require all 152
appellants in this action to be named in the notice of appeal. In
the complaint filed with the District Court, the names of all of
the discharged employees takes two full pages to list. In the
notice of appeal, the discharged employees were denominated "Larry
Deeds, et al., ~laintiffs,~~ we find to be sufficient to meet
which
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the intent of Rule 4 (c), M.R.App. P., and provide Decker with notice
of the parties appealing. I1Etal." in this instance is a commonly-
used informality, and an appeal "shall not be dismissed for
informality of form or title of the notice of appeal." Rule 4 (c),
Reversed with directions to the District Court to stay
proceedings in accordance with this opinion.
4.
Justice
We Concur*