NO. 90-122
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
HELEN FELLOWS,
Plaintiff and Appellant,
SEARS, ROEBUCK AND CO., and
CLARK MOORE,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
W.M. Hennessey; Hennessey and Joyce; Butte, Montana
Patrick McGee; Butte, Montana
For Respondents:
Chris D. Tweeten; Hughes, Kellner, Sullivan & Alke;
Helena, Montana
Submitted on Briefs: June 7, 1990
Decided: July 17, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
Helen Fellows appeals from an order of the District Court of
the Second Judicial District, Silver Bow County, granting
respondents1 motion for summary judgment. We affirm.
Appellant began working as a store clerk for respondent Sears,
Roebuck and Co. (I1Sears") in April, 1975. Appellant belonged to
a collective bargaining unit represented by the United Food and
Commercial Worker's Union. In May 1984, at the request of
management, appellant transferred to a service clerk position also
subject to a collective bargaining agreement. The Butte Teamster's
Union was the sole bargaining agent for the service clerks.
Appellant maintains that respondent store manager Clark Moore
("Moore1') assured her that the transfer would not affect her
seniority and that she could transfer back to her former position
at any time. Appellant was laid off for one year beginning in
September or October, 1987. Her employment was terminated in
October, 1988. Appellant requested that she be transferred back
to her former position. Moore denied this request.
Appellant filed suit in State court alleging respondents had
created a reasonable expectation of job security and that
respondents acted maliciously, wrongfully and capriciously in
discharging her. Appellant further contended respondents violated
Sear's personnel policy, the implied covenant of good faith and
fair dealing and public policy by refusing to transfer her.
Respondents removed the case to the United States District Court,
for the District of Montana, Butte Division. That court granted
2
appellantlsmotion to remand to State court concluding that "[tlhe
validity of any preemption defense .. . [is] properly addressed
in the first instance by the state court.I1 Following removal, the
District Court granted respondents1 motion for summary judgment,
concluding:
[Tlhere is no question of fact that Plaintiff was a
service clerk at the time of her layoff in 198[7] and her
discharge in 1988, and that therefore she was a member
of the bargaining unit represented by the Teamsters1
Union under a collective bargaining agreement with
Defendant SEARS, ROEBUCK AND CO. whether she paid union
fees or not; that there is no question that Federal law,
Sec. 301 of the Labor Management Relations Act, 29 USC
185 (a), preempts any cause of action under State law
where the claim arises out of or involves interpretation
of a collective bargaining agreement negotiated pursuant
to Federal law; that the complaint does not state facts
showing a specified violation of public policy; and
further that the amended complaint does not state a cause
of action under the Wrongful Discharge From Employment
Act, Title 39, Chapter 2, Part 9, MCA, on which relief
can be granted.
Appellant maintains the District Court erred in finding her
State law claims preempted by Federal law pursuant to section
301 of the Labor Management Relations Act of 1947 codified at 29
U. S.C. 185 (a) . Appellant asserts her oral agreement with
management was actionable under State law and not grievable in
accordance with the grievance process provided for in the
collective bargaining agreement.
Summary judgment is properly rendered in the absence of
genuine issues of material fact. Bohnsack v. Hi-Noon Petroleum,
Inc. (Mont. 1990), - P.2d -, -1 47 St.Rep. 1125, 1127.
Neither party disputes the propriety of summary judgment in the
instant case.
Section 301 of the Labor Management Relations Act of 1947,
codified at 29 U.S.C. 5 185(a), provides that:
Suits for violation of contracts between an employer and
a labor organization representing employees in an
industry affecting commerce as defined in this Act, or
between any such labor organizations, may be brought in
any district court of the United States having
jurisdiction of the parties, without respect to the
amount in controversy or without regard to the
citizenship of the parties.
This section generally preempts State law claims when such are
based on a collective bargaining agreement or require
interpretation of a collective bargaining agreement. Brinkman v.
State (1986), 224 Mont. 238, 246, 729 P.2d 1301, 1307. Thus the
issue becomes whether appellant's allegations constitute a breach
of the collective bargaining agreement or mandate an interpretation
of the agreement.
In Brinkman we recognized that an aggrieved employee must at
least attempt to utilize the grievance process provided for in the
collective bargaining agreement. Brinkman, 729 P.2d at 1305.
Only in those cases where it is certain that the
arbitration clause contained in a collective bargaining
agreement is not susceptible to an interpretation that
covers the dispute is an employee entitled to sidestep
the provisions of the collective bargaining agreement.
Small v. McRae (1982), 200 Mont. 497, 504, 651 P.2d 982, 986. In
the instant case, appellant made no effort to avail herself of the
remedies provided by the collective bargaining agreement.
Furthermore, the Ninth Circuit has repeatedly held that an
agreement extraneous to the collective bargaining agreement is
enforceable only so far as consistent with the collective
bargaining agreement. Young v. Anthony's Fish Grottos, Inc. (9th
~ i r .1987), 830 F.2d 993, 997; Bale v. General Telephone Co. of
California (9th Cir. 1986), 795 F.2d 775, 779; Olguin v.
Inspiration Consolidated Copper Co. (9th Cir. 1984), 740 F.2d 1468,
1474. The alleged oral agreement between the parties concerned the
seniority of appellant and the employer's rehiring practices. Both
are covered by the collective bargaining agreement.
Article VII provides in pertinent part:
Section 1.
The Employer and the Union agree that there shall be
three (3) separate seniority lists. One (1) for the
service technicians; one (1) for delivery drivers and
helpers; and one (1) for the service clerical employees.
Section 2.
Employees shall be probationary employees for the first
sixty (60) days of employment during which time they
shall not acquire seniority and may be released at the
discretion of the Company without recourse to the
grievance procedure. The aforementioned sixty (60) day
probationary period may be extended by mutual consent of
the Company and the Union. Thereafter, employees shall
accrue seniority on their respective list dating from the
date of their employment. Seniority shall be applicable
only to layoffs attending a reduction in force within
each list and shall not impair the right of the Employer
to discharge for just cause. On layoffs in any of the
seniority lists, the last person hired on that list shall
be the first person laid off, provided however, in case
of reduction in work force in the service department, a
senior employee vulnerable for layoff must be able to
perform the available work to prevent being laid off.
On rehiring, the last person laid off on that seniority
list shall be the first rehired on that list.
Section 3.
When seniority shall terminate after one (1) year in the
event of a layoff. Seniority shall terminate immediately
upon voluntary severance by the employee, by discharge
for just cause, and by failure to report after recall as
provided in Section 5 below.
Section 4.
When employment has been suspended by reason of illness
or leave of absence for a period of ninety (90) days, the
Employer and Union will mutually adjust the continuation
of an employee's seniority rights.
Section 5.
Recall after layoff shall be achieved by telegram or by
registered certified mail directed to the employee's last
known address. Employee must report for work within
seventy-two (72) hours after dispatch or mailing of such
notice or lose their seniority.
Clearly, the extent to which appellant's alleged oral
agreement with Sears and Moore is consistent with the collective
bargaining agreement requires an interpretation of the above-
referenced sections of that agreement. For that reason, the
District Court properly concluded appellant's State law claims were
preempted by Federal law.
Affirmed.
Justice
We concur: