Teamsters, Local 45 v. State Ex Rel. Board of Personnel Appeals

No. 81-129

I N T E SUPREIME COURT O THE STATE O M N A A
H F F OTN

1981

TEAMSTERS, LOCAL # 4 5 , A f f i l i a t e d w i t h
I n t e r n a t i o n a l Brotherhood o f Teamsters,
C h a u f f e u r s , Warehouseman & H e l p e r s o f
America,
P e t i t i o n e r and R e s p o n d e n t ,

STATE O MONTANA, e x r e l . , BOARD O
F F
PERSONNEL APPEALS and STUART T O A H M S
McCARVEL ,
R e s p o n d e 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 ,
I n and f o r t h e County o f Lewis & C l a r k ,
The Honorable P e t e r Meloy, J u d g e p r e s i d i n g .

Counsel o f Record:

For A p p e l l a n t s :

James G a r d n e r , J r . , H e l e n a , Montana
P a t r i c k F. F l a h e r t y , B o u l d e r , Montana

F o r Respondent:

H k l l e y & L o r i n g , G r e a t P a l l s , Montana

Submitted on B r i e f s : July 24, 1981

Decided: SiR!f !i .. 1981

Filed;
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Appellant began this action in August 1977 by filing
with the Board of Personnel Appeals (BPA) an unfair labor
practice charge, alleging that respondent union had breached
its duty of fair representation.
Appellant was hired by the Great Falls Public Library
as a bookmobile driver on February 10, 1976. He performed
some clerical work in addition to his actual driving of the
bookmobile. As a bookmobile driver, appellant was repre-
sented by the respondent union for collective bargaining
purposes.
Upon receipt of his first paycheck, appellant dis-
covered that he was paid for twenty hours per week as a
driver and twenty hours per week as a clerk. A clerk's pay
was $1.60 per hour less than a driver's pay.
Concerned about his wages, appellant requested the
union to file a grievance on his behalf. He made similar
requests periodically from March 1976 to March 1977. The
union continually refused to file a grievance stating that
such a grievance would simply not be successful because the
union and the city had a long-standing oral agreement that
the drivers of the bookmobiles would be paid half-time as
drivers and half-time as clerks.
On August 8, 1977, the BPA received appellant's
charges that the union had breached its duty of fair
representation.
The hearing examiner for the BPA concluded that the
union had breached its duty of fair representation by
failing to accept and process appellant' s grievance. The
hearing examiner's decision was upheld by the BPA on appeal,
but in October 1979 the union petitioned for a rehearing
before the BPA in light of the case, Bonnie Ford v.
University of Montana (1979), Mont. 598 P.2d
604, 36 St.Rep. 1485. On rehearing the BPA found that the
Ford case did not affect its prior ruling and reaffirmed
appellant's claims against the union.

The union then appealed to the District Court of the
First Judicial District, County of Lewis and Clark. On
November 7, 1980, the District Court, basing its conclusion
on Ford, held that the BPA lacked jurisdiction to hear
claims arising from alleged breaches of fair representation.
Appellant and the BPA now appeal the holding of the District
Court.
The single issue before this Court is whether, in
light of the Ford decision, the BPA lacks jurisdiction to
decide claims that a union has breached its duty of fair
representation.
In Ford the plaintiff filed a grievance with her
union concerning seniority status. A special meeting was
held and the union members, interpreting their own
collective bargaining agreement, decided that the plaintiff
did not have the seniority she claimed. The majority of the
union rejected her grievance.
-
The plaintiff in Ford then filed a complaint in state
District Court. The union moved for dismissal on the
grounds that the plaintiff must bring her claim initially
before the BPA and exhaust her administrative remedies. The
District Court denied the motion, and this was one issue of
error on appeal to this Court.
We ultimately decided in Ford that the District Court
d i d have j u r i s d i c t i o n t o hear Ford's complaint. W do n o t
e

i n t e n d i n a n y way by t h i s p r e s e n t d e c i s i o n t o a l t e r t h e r u l e

o f F o r d which r e c o g n i z e s o r i g i n a l j u r i s d i c t i o n in the s t a t e

D i s t r i c t C o u r t s t o d e c i d e q u e s t i o n s of f a i r r e p r e s e n t a t i o n .

T h i s Court s t i l l recognizes t h e a c t u a l holding i n Ford.

T h e r e is c e r t a i n d i c t a i n F o r d , however, t h a t w e c a n

no l o n g e r r e c o g n i z e . I n reasoning t h a t the D i s t r i c t Court

had j u r i s d i c t i o n t o h e a r t h e F o r d c a s e i n i t i a l l y , t h i s C o u r t

stated that a breach of the duty of fair representation

cannot be considered an unfair labor practice within the

meaning o f s e c t i o n 39-31-402, MCA. S e c t i o n 39-31-402, MCA,

which d e f i n e s a u n i o n ' s p o s s i b l e u n f a i r l a b o r p r a c t i c e s , was

found n o t t o a p p l y t o an a l l e g a t i o n t h a t a union h a s f a i l e d

t o f a i r l y r e p r e s e n t a member. I n Ford w e looked o n l y t o t h e

plain meaning of the statutes from the Montana Public

Employees' Collective Bargaining A c t , disregarding federal

p r e c e d e n t , which d o e s r e c o g n i z e t h a t a b r e a c h o f t h e d u t y o f

fair representation is an unfair labor practice, as a

violation of section 8 ( b ) ( l ) ( A ) of the National Labor

R e l a t i o n s A c t (NLRA), 29 USC 5 1 5 8 ( b ) ( l ) ( A ) .

F e d e r a l p r e c e d e n t was c a l l e d " q u e s t i o n a b l e a u t h o r i t y "

by t h i s C o u r t i n F o r d b e c a u s e o f t h e way w e i n t e r p r e t e d t h e

l a n g u a g e o f t h e l e a d i n g c a s e , Vaca v . S i p e s ( 1 9 6 7 ) , 386 U.S.

171, 87 S.Ct. 903, 17 L.Ed.2d 842. Upon a closer

examination of Vaca, we are persuaded that it was not

i n t e r p r e t e d a c c u r a t e l y by t h i s C o u r t i n F o r d .

In Ford, we incorrectly assumed that the reason

f e d e r a l c o u r t s assumed j u r i s d i c t i o n o v e r f a i r r e p r e s e n t a t i o n

c a s e s was because of the presence of s e c t i o n 301 of the

Labor Management Relations Act (LMRA), 29 USC 5185. In
dicta, we reasoned that, "If this Court were to hold that a
breach of duty of fair representation was an unfair labor
practice within the meaning of section 39-31-402, MCA, the
District Court would be denied jurisdiction because Montana
does not have a statute that parallels S 301." 598 P.2d at
609.
We now are persuaded that Vaca did not stand for the
proposition that section 301 alone grants original
jurisdiction to the federal courts in cases of fair
representation. Section 301 is silent on unfair labor
practices; it goes solely to enforcement of contracts where
there has been a breach of a contract obligation. Vaca held
that federal courts had jurisdiction in fair representation
cases because the policy reasons underlying application of
the preemption doctrine were overridden by other
considerations. The Court mentioned as an aside that in
many cases where a breach of fair representation is an
unfair labor practice, the union may also be sued for breach
of contract under section 301.
Our reasoning in Ford for not looking to federal
precedent was, therefore, based upon what we now believe was
an inaccurate reading of Vaca. As in all other cases except
Ford where we have interpreted the Public Employees' Collec-
tive Bargaining Act (the Act), we now look to NLRB and
federal interpretation of the NLRA for guidance in inter-
preting this Act. For cases where we have found it
appropriate for the BPA and this Court to consider NLRB
precedents in interpreting and administering the Act, see
State ex rel. Board of Personnel Appeals v. District Court

(1979)I Mont. , 598 P.2d 1117, 36 St.Rep. 1531;
S t a t e ex r e l . Dept. o f Highways v . P u b l i c Employees C r a f t
C o u n c i l ( 1 9 7 4 ) , 1 6 5 Mont. 3 4 9 , 529 P.2d 785; L o c a l 2390 o f
Amer. Fed. e t c . v. C i t y of B i l l i n g s ( 1 9 7 6 ) , 1 7 1 Mont. 20,

M o r e o v e r , w h i l e o t h e r d i c t a i n F o r d s u g g e s t e d t h a t we

look to the plain meaning of section 39-31-402, MCA,

concerning possible unfair l a b o r p r a c t i c e s by a u n i o n , we

now a c k n o w l e d g e t h a t t h i s s e c t i o n m u s t be r e a d i n l i g h t o f
t h e s e v e r a l s e c t i o n s of t h e A c t d e f i n i n g t h e duty of a union

as an exclusive representative, guided by NRLB

i n t e r p r e t a t i o n s of l i k e s t a t u t e s .
S e c t i o n 8 ( b ) ( l ) ( A ) o f t h e NLRA, 29 USC § 1 5 8 ( b ) ( l ) ( A ) ,
provides i n pertinent part:

" ( b ) I t s h a l l be a n u n f a i r l a b o r p r a c t i c e f o r
a l a b o r o r g a n i z a t i o n o r i t s a g e n t s -- (1) t o
r e s t r a i n or coerce ( A ) employees i n t h e
e x e r c i s e of t h e r i g h t s g u a r a n t e e d i n s e c t i o n
7 . . ."
S e c t i o n 7 o f t h e NLRA, 29 USC S157, p r o v i d e s :

"Employees s h a l l h a v e t h e r i g h t t o s e l f -
o r g a n i z a t i o n , t o form, j o i n o r a s s i s t l a b o r
organizations, to bargain collectively
t h r o u g h r e p r e s e n t a t i v e s o f t h e i r own c h o o s i n g
and t o e n g a g e i n o t h e r c o n c e r t e d a c t i v i t i e s
f o r t h e purpose of c o l l e c t i v e bargaining or
o t h e r m u t u a l a i d o r p r o t e c t i o n , and s h a l l
a l s o h a v e t h e r i g h t t o r e f r a i n f r o m a n y and
a l l of s u c h a c t i v i t i e s e x c e p t t o t h e e x t e n t
t h a t s u c h r i g h t may b e a f f e c t e d by a n
a g r e e m e n t r e q u i r i n g membership i n a l a b o r
o r g a n i z a t i o n a s a c o n d i t i o n o f employment a s
authorized i n section 8 ( a ) ( 3 ) . "

The above-quoted sections are very similar to the
s t a t u t e s i n Montana's P u b l i c Employees' C o l l e c t i v e Bargain-
i n g Act:
" I t is an u n f a i r l a b o r p r a c t i c e of a labor
organization or its agents to:
"(1) r e s t r a i n or c o e r c e employees i n t h e
e x e r c i s e o f t h e r i g h t g u a r a n t e e d i n 39-31-201
.. ." S e c t i o n 39-31-402, MCA.
 "Public employees shall have and shall be
protected in the exercise of the right of
self-organization, to form, join, or assist
any labor organization, to bargain collec-
tively through representatives of their own
choosing on questions of wages, hours, fringe
benefits, and other conditions of employment,
and to engage in other concerted activities
for the purpose of collective bargaining or
other mutual aid or protection free from
interference, restraint, or coercion."
Section 39-31-201, MCA.
Likewise, section 9 of the WLRA, 29 USC 5159, the
section the NLRB found gives rise to the duty of fair
representation, is very similar to our own section 39-31-
205, MCA, when augmented with subsection 39-31-208(5), MCA.
Section 9(a), of the NLRA , 29 USC 5159, provides:
"Representatives designated or selected for
the purposes of collective bargaining by the
majority of the employees in a unit appropri-
ate for such purposes, shall be the exclusive
representatives of all the employees in such
unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours
of employment, or other conditions of employ-
ment: . . ."
Sections 39-31-205 and 39-31-208(5), MCA:
"39-31-205. Labor organizations designated
in accordance with the provisions of this
chapter are responsible for representing the
interest of all employees in the exclusive
bargaining unit without discrimination for
the purposes of collective bargaining with
respect to rates of pay, hours, fringe
benefits, and other conditions of
employment."
"39-31-208 (5). A labor organization which
receives the majority of the votes cast in an
election shall be certified by the board as
the exclusive representative."
The first time that the NLRB found that a breach of
the duty of fair representation was an unfair labor practice
was in Miranda Fuel Co. (1962), 140 NLRB 181, 51 LRRM 1584.
In Miranda, the NLRB reasoned that the privilege to act as
an exclusive bargaining representative granted in section 9
o f t h e NLRA n e c e s s a r i l y g a v e r i s e t o a c o r r e s p o n d i n g s e c t i o n

7 r i g h t i n u n i o n c o n s t i t u e n t s t o f a i r r e p r e s e n t a t i o n by t h e

exclusive representative. The NLRB c o n c l u d e d t h a t a u n i o n

which acted on the basis of "irrelevant, invidious or

unfair" considerations or classifications violated section

8 ( b )( 1 ) A )
( of the NLRA which makes it an unfair labor

practice to "restrain or coerce . . . employees in the

e x e r c i s e of t h e r i g h t s guaranteed i n s e c t i o n 7."

The NLRB c o n t i n u e s t o h o l d t h a t b r e a c h o f t h e d u t y o f

fair representation is an u n f a i r labor practice, and more

specifically, that the processing of a grievance in an

a r b i t r a r y manner i s a v i o l a t i o n o f s e c t i o n 8 ( b ) ( l ) ( A ) . S e e ,

UAW, L o c a l 600 ( D e a r b o r n S t a m p i n g P l a n t o f F o r d Motor C o . )

( 1 9 7 6 ) , 225 NLRB 1 2 9 9 , 93 LRRM 1 2 3 3 ; and L a b o r e r s L o c a l 324

( C e n t e x Homes o f C a l i f o r n i a ) ( 1 9 7 8 ) , 234 NLRB 367, 97 LRRM

1265. The Federal Courts of Appeals have enforced the

holding t h a t a breach of t h e duty of f a i r r e p r e s e n t a t i o n is

an unfair labor practice many times. NLRB v. Teamsters

L o c a l 315 ( 9 t h C i r . 1 9 7 6 ) , 545 F.2d 1 1 7 3 , 93 LRRM 2747; NLRB

v. American P o s t a l W o r k e r s Union (8th Cir. 1 9 8 0 ) , 6 1 8 F.2d

1249, 1 0 3 LRRM 3045; Newport News S h i p b u i l d i n g & Dry Dock

Co. v . NLRB ( 4 t h C i r . 1 9 8 0 ) , 631 F . 2 d 263, 104 LRRM 2633.

I n i t s f i r s t h e a r i n g o f t h i s c a s e , t h e BPA r e c o g n i z e d

the similarities between the NLRA and the Montana Act.

Applying a r a t i o n a l e s i m i l a r t o t h a t used by t h e NLRB and

the federal courts, t h e BPA f o u n d that the a c t i o n by the

u n i o n h e r e was a n u n f a i r l a b o r p r a c t i c e w i t h i n t h e meaning

of s e c t i o n 39-31-402, MCA. On r e c o n s i d e r a t i o n of t h i s c a s e

i n l i g h t of Ford, t h e BPA d e c i d e d that i t s assumption of

jurisdiction i n t h i s case did not c o n f l i c t with t h e actual
l a w s e t down i n F o r d , a l t h o u g h i t d i d c o n f l i c t w i t h d i c t a i n

Ford which stated that a breach of the duty of fair
r e p r e s e n t a t i o n was n o t a n u n f a i r labor practice. W agree
e

w i t h t h e BPA i n t h i s m a t t e r . W still recognize the holding
e

i n Ford t h a t a D i s t r i c t C o u r t h a s o r i g i n a l j u r i s d i c t i o n to
hear claims that a union has breached its duty of fair
representation. W e no l o n g e r r e c o g n i z e , however, t h e d i c t a
in Ford which states that a breach of t h e d u t y of fair
r e p r e s e n t a t i o n is n o t an u n f a i r labor practice within the

meaning of s e c t i o n 39-31-402, MCA. Further, w e no l o n g e r

recognize other dicta in Ford which states that finding

j u r i s d i c t i o n i n t h e BPA on t h e s e m a t t e r s would n e c e s s a r i l y
deprive the District Court of jurisdiction. We see no
r e a s o n why j u r i s d i c t i o n i n t h e D i s t r i c t C o u r t s h o u l d d e p r i v e

a g r i e v a n t of h i s o r h e r a d m i n i s t r a t i v e remedies under the

Act. Vaca i t s e l f stood for t h e p r o p o s i t i o n of concurrent
j u r i s d i c t i o n i n b o t h t h e NLRB and t h e f e d e r a l c o u r t s .

W therefore hold t h a t
e t h e BPA h a s j u r i s d i c t i o n to
hear claims that a union has breached its duty of fair
representation. W e remand t h i s c a s e t o t h e D i s t r i c t C o u r t

I

Justice v
We concur: