No. 01-784
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 219
CHARLES J. VITULLO,
Plaintiff and Appellant,
v.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 206, a union,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. CDV-2000-193,
Honorable Thomas C. Honzel, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra, Bell & Marra, Great Falls, Montana
For Respondent:
D. Patrick McKittrick, McKittrick Law Firm, Great Falls, Montana
Submitted on Briefs: February 21, 2002
Decided: August 25, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 The Appellant, Charles J. Vitullo (Vitullo), brought this action in the Montana First
Judicial District Court, Lewis and Clark County, seeking compensatory and punitive
damages for wrongful discharge from employment by the Respondent, International
Brotherhood of Electrical Workers, Local 206 (IBEW), in violation of § 39-2-904(1)-(3),
MCA (1999). The District Court granted summary judgment in favor of IBEW, concluding
that the Montana Wrongful Discharge From Employment Act, § 39-2-901 et seq., MCA, was
preempted by the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29
U.S.C. § 401 et seq. From this judgment Vitullo now appeals. We affirm.
¶2 Vitullo raises the following issue on appeal:
¶3 Did the District Court err when it concluded that the LMRDA preempted Vitullo’s
state law claims under the Montana Wrongful Discharge From Employment Act?
BACKGROUND
¶4 Prior to his termination, Vitullo was employed by and was a member of Local 206,
IBEW, in the position of assistant business manager and organizer. In approximately 1992,
Clark Spranget, the union’s elected business manager, hired Vitullo, who was at the time
working for U.S. West as a fiber optic cable layer, as the assistant business manager and
later included the responsibilities of organizer. Vitullo worked for Spranget for
approximately seven years until his employment was terminated on April 2, 1999.
¶5 In approximately March of 1999, Vitullo told Spranget that he (Vitullo) had been
asked to accept the nomination for election to Spranget’s current position, that of business
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manager for Local 206. Soon thereafter, Spranget advised Vitullo that his decision to run
for the position of business manager, while serving in the capacity of assistant business
manager, was a conflict of interest. Spranget advised Vitullo that if Vitullo did run for the
position of business manager, his employment as the assistant business manager and
organizer would be terminated.
¶6 On April 1, 1999, Vitullo, as well as several other union members, accepted
nominations to run for the business manager position against Spranget. Spranget then
terminated the employment of Vitullo from Local 206. After his termination, Vitullo filed
a complaint with the National Labor Relations Board (NLRB). The NLRB advised Vitullo
that, under the circumstances, he did not have a case and would be better off dropping it.
Vitullo thereafter dropped the charges and filed the instant action.
¶7 In granting summary judgment in favor of IBEW, the District Court determined that
Vitullo had no recourse for his firing under the Montana Wrongful Discharge From
Employment Act because IBEW’s constitution gives the business manager authority to hire
and fire assistants at any time, specifically providing that appointed officials shall not work
in conflict with the business manager. In making this determination, the District Court
concluded that the hiring and firing provisions of IBEW’s constitution preempted the
Montana Wrongful Discharge From Employment Act, as the overriding purpose of the
LMRDA is to ensure that unions would be democratically governed and responsive to the
will of the membership, and the ability of an elected official to choose a staff whose views
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are compatible with his or her own is necessary and integral to protecting this democratic
process.
¶8 From this judgment, Vitullo now appeals.
STANDARD OF REVIEW
¶9 The standard of review for summary judgment is de novo. This Court will apply the
same evaluation as the district court based upon Rule 56, M.R.Civ.P. Appellant here
challenges the District Court’s conclusion of law. Our standard of review of a question of
law is whether the legal conclusions of the trial court are correct. Gonzales v. Walchuk,
2002 MT 262, ¶ 9, 312 Mont. 240, ¶ 9, 59 P.3d 377, ¶ 9.
DISCUSSION
¶10 Did the District Court err when it concluded that the LMRDA preempted Vitullo’s
state law claims under the Montana Wrongful Discharge From Employment Act?
¶11 The District Court concluded that Vitullo’s state law claims were preempted by the
LMRDA. Based on Finnegan v. Leu (1982), 456 U.S. 431, 102 S.Ct. 1867, 72 L.Ed.2d 239,
the District Court concluded that, by passing the LMRDA, Congress sought to promote
union democracy and responsiveness, and that, integral to promoting democracy, is “the
ability of an elected union president to select his own administration[, thus] ensuring a union
administration’s responsiveness to the mandate of the union election.” See Finnegan, 456
U.S. at 441, 102 S.Ct. at 1873, 72 L.Ed.2d at 247. The District Court concluded that, similar
to the union bylaws in Finnegan, the IBEW’s constitution gives the locally elected business
manager the authority to appoint and to discharge assistants at any time. The District Court
further noted that IBEW’s constitution, in Article XVI, Section 2, provides that assistants
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appointed by the business manager shall cooperate with and not work in conflict with the
business manager, language similar to the democratically adopted union bylaws in Finnegan.
¶12 The District Court also relied upon the two California cases of Screen Extras Guild,
Inc. v. Superior Court (Cal. 1990), 800 P.2d 873, and Tyra v. Kearney (1984), 153
Cal.App.3d 921, noting that the California Supreme Court and the California Court of
Appeals, both relying upon Finnegan, have held that the strong policy favoring union
democracy in the LMRDA preempts state causes of action for wrongful discharge or related
torts “when brought against a union-employer by its former management or policymaking
employee.” See Screen Extras Guild, 800 P.2d at 874.
¶13 Neither this Court nor the United States Supreme Court easily favors preemption.
Dukes v. Sirius Constr., Inc., 2003 MT 152, ¶ 18, 316 Mont. 226, ¶ 18, P.3d , ¶ 18;
see also Favel v. American Renovation and Constr. Co., 2002 MT 266, ¶ 39, 312 Mont. 285,
¶ 39, 59 P.3d 412, ¶ 39, and Medtronic, Inc. v. Lohr (1996), 518 U.S. 470, 485, 116 S.Ct.
2240, 2250, 135 L.Ed.2d 700, 715.
¶14 This Court recognizes three ways in which federal law may preempt state law.
Dukes, ¶ 20; Favel, ¶ 40. The first is by express preemption, wherein Congress includes a
preemption clause providing that state law will not apply in the area governed by the federal
statute. Absent express preemption, this Court recognizes two types of implied preemption.
The first is “field preemption,” wherein the scheme of federal regulation is so pervasive or
comprehensive that it is reasonable to infer that Congress intended to “occupy the field” and
leave no room for supplementary state regulation. Dukes, ¶ 20; Favel, ¶ 40. The second
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type of implied preemption is “conflict preemption.” Conflict preemption manifests itself
as an inability of state law to comply with federal law or where state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of
Congress. Dukes, ¶ 20; Favel, ¶ 40 (citing Hillsborough County v. Automated Medical Labs.
(1985), 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721).
¶15 “Because the States are independent sovereigns in our federal system, we have long
presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-
emption cases, . . . we start with the assumption that the historic police powers of the States
were not to be superseded by the Federal Act unless that was the clear and manifest purpose
of Congress.” Dukes, ¶ 19; Favel, ¶ 39 (citing Sleath v. West Mont Home Health Services,
2000 MT 381, ¶ 23, 304 Mont. 1, ¶ 23, 16 P.3d 1042, ¶ 23).
¶16 Vitullo stresses that the United States Supreme Court in Finnegan did not discuss
whether the LMRDA preempts state law regarding wrongful discharge or other violations
of state law, but, rather, held that the LMRDA itself applies only to union members and not
to appointed officials. Vitullo argues therefrom that Finnegan does not answer or address
the question of whether state remedies are available for appointed officials who are
discharged from employment.
¶17 Vitullo also contends that the two California cases relied on by the District Court are
inapplicable because, in both cases, the union’s definition of “at will” employment was
consistent with California’s statutory definition, whereas, in the instant case, Montana labor
law, in Vitullo’s view, is significantly different than the practices permitted by IBEW’s
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constitution. Specifically, Vitullo contends that this Court has previously held, in Foster v.
Albertsons (1992), 254 Mont. 117, 835 P.2d 720, that federal labor law does not preempt or
prevent an employee from suing for a discharge which is in violation of public policy.
¶18 In Foster, this Court held, in part, that the Labor Management Relations Act of 1947
did not preempt the plaintiff’s retaliatory discharge claim because her claim, based upon
allegations of sexual harassment and subsequent retaliatory discharge for resisting her
supervisor’s advances, was a state law cause of action independent of the collective
bargaining agreement for purposes of the Act. Foster, 254 Mont. at 127, 835 P.2d at 727.
Noting that the United States Supreme Court had held that “a state-law claim is preempted
by [the Act] only where its resolution requires construing the collective bargaining
agreement,” Foster, 254 Mont. at 126, 835 P.2d at 726 (quoting Lingle v. Norge Division of
Magic Chef, Inc. (1988), 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410), the Court
determined that none of the factual questions at issue turned on the meaning of any term of
the bargaining agreement, and therefore, the discharge claim was not preempted by the
Labor Management and Relations Act. The Court did not, as argued by Vitullo, adopt a
blanket rule that state wrongful discharge actions based upon violations of public policy can
never be preempted by federal labor law, nor would such an approach comport with a proper
preemption analysis. See Dukes, ¶ 20 (discussing the three ways in which federal law may
preempt state law).
¶19 We thus turn our attention to the cases relied upon by the District Court in
determining that the LMRDA preempts the Montana Wrongful Discharge From Employment
7
Act. The facts in Finnegan are similar to those in the instant case. There, the petitioners,
business agents of the local union, openly campaigned for the incumbent president of the
union who, in turn, lost the election. Upon assuming office, the newly elected president
discharged the petitioners and the Local’s other business agents, all of whom had been
appointed by the previous president. Finnegan, 456 U.S. at 433-34, 102 S.Ct. at 1869, 72
L.Ed.2d at 242-43. The petitioners filed suit in the United States District Court, alleging that
they had been terminated from their appointed positions in violation of the LMRDA.
Finnegan, 456 U.S. at 434, 102 S.Ct. at 1869-70, 72 L.Ed.2d at 243.
¶20 The petitioners relied on 29 U.S.C. §§ 411(a)(1) and (2), which guarantee equal
voting rights and rights of free speech and assembly “to [every] member of a labor
organization.” See Finnegan, 456 U.S. at 436, 102 S.Ct. at 1870, 72 L.Ed.2d at 244
(emphasis in original). Considering the above statute and the language in 29 U.S.C. § 529
of the LMRDA, which renders it unlawful for a union or its representatives “to fine, suspend,
expel, or otherwise discipline any of its members for exercising any right to which he is
entitled under the provisions of this chapter,” the Supreme Court concluded that the statutory
language, in conjunction with the legislative history, made it readily apparent that it was only
the rank-and-file union members, not union officers or employees, whom Congress sought
to protect under the LMRDA. See Finnegan, 456 U.S. at 436-37, 102 S.Ct. at 1870-71, 72
L.Ed.2d at 244.
¶21 The Supreme Court further concluded that the petitioners’ dual status as both
employees and members of the union was immaterial in light of the fact that the LMRDA
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was intended to protect only members, not appointed officials, from retaliatory discharge.
Finnegan, 456 U.S. at 438, 102 S.Ct. at 1871, 72 L.Ed.2d at 245-46. The Supreme Court
thus concluded that the LMRDA was not designed or intended to protect from suspension
a member’s status as an officer of the union, holding that “removal from appointive union
employment is not within the scope of those union sanctions prohibited by [the LMRDA].”
Finnegan, 456 U.S. at 439, 102 S.Ct. at 1872, 72 L.Ed.2d at 246.
¶22 Thus, while we agree with Vitullo that the Supreme Court did not directly address the
issue of whether the LMRDA preempted state labor law, but only whether the LMRDA
applied to removal of union officials, this does not end the inquiry. The Supreme Court
further addressed whether the petitioners’ rights as members were infringed by the
termination of their union employment, as the petitioners had alleged an indirect interference
with their membership rights, “maintaining that they were forced to ‘[choose] between their
rights of free expression . . . and their jobs.’” Finnegan, 456 U.S. at 440, 102 S.Ct. at 1872-
73, 72 L.Ed.2d at 247.
¶23 The Supreme Court concluded that the LMRDA “does not restrict the freedom of an
elected union leader to choose a staff whose views are compatible with his own.” Finnegan,
456 U.S. at 441, 102 S.Ct. at 1873, 72 L.Ed.2d at 247.
Indeed, neither the language nor the legislative history of the Act suggests that
it was intended even to address the issue of union patronage. To the contrary,
the Act’s overriding objective was to ensure that unions would be
democratically governed, and responsive to the will of the union membership
as expressed in open, periodic elections. Far from being inconsistent with this
purpose, the ability of an elected union president to select his own
administrators is an integral part of ensuring a union administration’s
responsiveness to the mandate of the union election.
9
Finnegan, 456 U.S. at 441, 102 S.Ct. at 1873, 72 L.Ed.2d at 247 (citation omitted).
¶24 Further, the Supreme Court noted that the presidential election in Finnegan was itself
an exercise of the democratic process wherein the petitioners, appointed by the defeated
incumbent, campaigned openly and vigorously against the winner of the election. Critical
to this process was the union’s bylaws, adopted and “subject to amendment, by a vote of the
union membership,” and which “grant the president plenary authority to appoint, suspend,
discharge, and direct the Union’s business agents, who have significant responsibility for the
day-to-day conduct of union affairs. Nothing in the Act evinces a congressional intent to
alter the traditional pattern which would permit a union president under these circumstances
to appoint agents of his choice to carry out his policies.” Finnegan, 456 U.S. at 441-42, 102
S.Ct. at 1873, 72 L.Ed.2d at 247-48.
¶25 Vitullo correctly notes that the LMRDA does not expressly preempt state law, nor,
by its own provisions, does the LMRDA seek to occupy the field of labor law, leaving states
no room to enact its own labor laws. 29 U.S.C. § 523(a), provides:
Except as explicitly provided to the contrary, nothing in this chapter shall
reduce or limit the responsibilities of any labor organization or any officer,
agent, shop steward, or other representative of a labor organization, or of any
trust in which a labor organization is interested, under any other Federal law
or under the laws of any State, and, except as explicitly provided to the
contrary, nothing in this chapter shall take away any right or bar any remedy
to which members of a labor organization are entitled under such other Federal
law or law of any State.
¶26 Absent express or implied field preemption, we are left with the question of whether
the Montana Wrongful Discharge From Employment Act, under the present facts, stands as
an obstacle to the accomplishment and the execution of the full purposes and objectives of
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the LMRDA, and thus, is conflict preempted. At the outset, we recognize that Vitullo
correctly observes that the LMRDA is not applicable to union members when acting in an
official capacity, at least to the extent that the LMRDA does not create a right of a particular
individual to hold an official position. See Finnegan, 456 U.S. at 437-39, 102 S.Ct. at 1871-
72, 72 L.Ed.2d at 245-46. Such conclusion, however, does not wholly resolve the issue of
conflict preemption, even though Vitullo’s present claim is based upon his discharge from
his official capacity as an officer, not a member, of the union.
¶27 The LMRDA need not create a right of action for, or otherwise “apply to,” those
acting in an official capacity in order for Montana law to stand as an obstacle to the
accomplishment and execution of the purposes and objectives of the LMRDA. The
Finnegan Court did not merely hold that the LMRDA applies only to union members and
not to members acting in an official capacity, but also determined that the Act had preserved
the longstanding practice of union patronage:
We think it virtually inconceivable that Congress would have prohibited the
longstanding practice of union patronage without any discussion in the
legislative history of the Act. Had such a result been contemplated, it
undoubtedly would have encountered substantial resistance. Moreover,
Congress likely would have made some express accommodation to the needs
of union employers to appoint and remove policymaking officials . . . .
Nothing in the Act evinces a congressional intent to alter the traditional pattern
which would permit a union president under these circumstances to appoint
agents of his choice to carry out his policies.
Finnegan, 456 U.S. at 441-42, n. 12, 102 S.Ct. at 1873, n. 12, 72 L.Ed.2d at 247-48, n. 12
(citation omitted); also see Screen Extras Guild, 800 P.2d at 880 (“Replacement of business
agents by an elected labor union official is sanctioned by the [LMRDA] and allowance of
11
a claim under state law would interfere with the effective administration of national labor
policy.” (citing Tyra, 153 Cal.App.3d at 923)). The Supreme Court went on to note that
Congress, in enacting the LMRDA, “simply was not concerned with perpetuating appointed
union employees in office at the expense of an elected president’s freedom to choose his own
staff.” Finnegan, 456 U.S. at 442, 102 S.Ct. at 1873, 72 L.Ed.2d at 248. Thus, it follows
that a state law which interferes with the longstanding practice of union patronage,
established in the union’s democratically enacted constitution, is not only contrary to the
overall purpose and objective of the LMRDA as declared by the United States Supreme
Court, but is in direct conflict with the democratic process that Congress sought to protect.
As noted by the Finnegan Court, the union bylaws themselves were a product of a vigorous
democratic process and are subject to amendment by a vote of the union membership, and
it was the bylaws that granted the president plenary authority to appoint and suspend at will
those business agents who have significant responsibility for the day-to-day conduct of union
affairs. Finnegan, 456 U.S. at 441-42, 102 S.Ct. at 1873, 72 L.Ed.2d at 247-48.
¶28 The Supreme Court of California reached the equivalent conclusion in Screen Extras
Guild, where, the plaintiff, an employee of the local union but not a member, was discharged
for alleged dishonesty and insubordination and thereafter sued the union and its executive
secretary on a number of grounds, including a claimed violation of California’s wrongful
discharge law. Screen Extras Guild, 800 P.2d at 874. The California Supreme Court held
that the LMRDA preempted the plaintiff’s claims. Relying on Finnegan, the Court reasoned
that elected union officials “must necessarily rely on their appointed representatives to carry
12
out their programs and policies. As a result, courts have recognized that the ability of
elected union officials to select their own administrators is an integral part of ensuring that
union administrations are responsive to the will of union members.” Screen Extras Guild,
800 P.2d at 877.
¶29 The court in Screen Extras Guild also found persuasive the reasoning in Tyra, where
the California Court of Appeals held that “replacement of business agents by elected union
officials is sanctioned by the LMRDA, and that to allow Tyra’s wrongful discharge claim
would interfere with the effective administration of national labor policy.” Screen Extras
Guild, 800 P.2d at 878 (citing Tyra, 153 Cal.App.3d at 922-23). The California Supreme
Court reasoned therefrom that “allowing such claims to proceed in the California courts
would ‘restrict the exercise of the right to terminate which Finnegan found [to be] an integral
part of ensuring a union administration’s responsiveness to the mandate of the union
election.’” Screen Extras Guild, 800 P.2d at 880 (citing Tyra, 153 Cal.App.3d at 927 and
Finnegan, 456 U.S. at 441, 102 S.Ct. at 1873, 72 L.Ed.2d at 247) (internal quotations
omitted).
¶30 The crux of Vitullo’s argument is that he was coerced into forfeiting a right under the
IBEW constitution to be nominated for office, and that, being forced to “strip himself of
employment in order to enjoy a right pursuant to their union Constitution” violates public
policy. We first note that Vitullo did not forfeit a right guaranteed to him under IBEW’s
constitution. Rather, he accepted the nomination, a right he retained as a union member, ran
for election against Spranget, and thereafter lost the election. Spranget, Vitullo’s boss and
13
IBEW’s business manager at the time of the election, discharged Vitullo from his position
as the assistant business manager pursuant to Article XVI, Section 2, of IBEW’s
constitution, which provides that the business manager shall appoint any and all
representatives or assistants, any of whom may be discharged at any time, and further, that
any such officers working under the business manager shall cooperate with and not work in
conflict with the manager.
¶31 A state law interfering with the business manager’s authority to choose his or her own
staff would be in conflict with IBEW’s constitution, a document integral to protecting union
democracy and responsiveness to its members, and thus, would frustrate the goals and
objectives Congress sought to promote in enacting the LMRDA. It follows therefrom, that
to the extent that the Montana Wrongful Discharge From Employment Act interferes with
the constitutional appointment authority of duly elected union officers, it is in direct conflict
with the LMRDA, and is preempted accordingly.
¶32 Based on the foregoing, we hold that under the present facts, the Montana Wrongful
Discharge From Employment Act stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress, and thus, allowing Vitullo to proceed with
his claim under the Act would directly conflict with and frustrate those objectives. We
therefore hold that the District Court did not err in granting summary judgment to IBEW,
nor in concluding that, under the present facts, the Montana Wrongful Discharge From
Employment Act is preempted by the LMRDA.
¶33 The decision of the District Court is affirmed.
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/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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