No. 92-357
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ROBERT L. MILLER,
Plaintiff and Appellant,
THE COUNTY OF GLACIER, MONTANA;
WILLIAM BIG SPRINGS, DON KOEPKE,
FRED JOHNSON, as members of the
Board of Count Commissioners of
Glacier County, Montana,
Defendants and Appellees.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Timothy J. McKittrick, McKittrick Law Firm, Great
Falls, Montana
For Respondent:
Gary M. Zadick, Ugrin, Alexander, Zadick & Slovak,
Great Falls, Montana: Dennis P. Clarke, Smith,
Clarke, Walsh & Gregoire, Great Falls, Montana
Submitted on Briefs: February 11, 1993
Decided: March 30, 1993
CLERK OF S'JPF:E:?Ai: COURT
STATE OF MOIJTANB
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from an order of the Ninth Judicial District
Court, Glacier County, granting a motion to dismiss. We reverse.
The issue on appeal is whether the District Court erred in
granting dismissal to the County based upon the inability of Miller
to sue in a court of law after he has been through arbitration.
Robert L Miller (Miller) had been employed by the Glacier
.
County Medical Center from July 3, 1979 until his termination in
October of 1984. At the time of his termination, Miller was head
of the radiology department. While employed with the hospital,
Miller's employment was covered by a collective bargaining
agreement.
Miller's discharge in October of 1984 centered around
disposition of an ultrasound machine (machine) which had been
purchased by the previous hospital administration. The machine was
financed by the First National Bank (Bank) which held a security
interest in the machine.
Miller claims that on or about October 29, 1984, he was
contacted by hospital personnel and told to crate the machine for
pick up by the Bank. Subsequently, according to Miller, he
contacted the Bank president and discussed with him the delicate
nature of the machine. Miller determined that the best way to make
the machine inoperable was to remove the transducers from the
machine.
On October 30, Miller's day off, he went to the hospital,
removed the transducers from the machine and delivered them to the
2
Bank. Miller next claims that shortly after delivering the
transducers to the Bank he received a call from a co-worker
claiming that Miller had been fired. Subsequently, Miller went to
the Bank, picked up the transducers and returned them to the
hospital.
According to the hospital, Miller was fired for misconduct.
The hospital claims that Miller refused to follow the instructions
of his supervisor on occasions when he did not agree with her.
Miller's supervisor, Ms. Vogt, had warned Miller to stay away from
the ultrasound issue. Also, according to the hospital, when Ms.
Vogt asked Miller why he was at the hospital on his day off
(October 30) he told her it was none of her business. He then
proceeded to dismantle the machine.
Following his termination, Miller went to his Union and filed
a grievance. The Union brought Miller's claim to arbitration. On
June 27, 1985, the arbitrator ruled that Miller had been terminated
because of insubordination, which constituted just cause under the
collective bargaining agreement.
Miller filed a complaint in the Ninth Judicial District Court,
on February 19, 1985, alleging wrongful discharge, breach of the
duty of good faith and fair dealing, defamation, and exemplary
damages. This complaint was later amended to include wrongful
discharge in violation of public policy and denial of due process
according to Title 42, USC 5 1983. The original complaint was
filed prior to the decision in the arbitration. On that basis, the
County moved to dismiss the proceedings in the District Court.
After the filing of significant discovery and other
materials throughout the next seven years, the District Court
issued a final order on May 29, 1992, granting the County's motion
to dismiss. This appeal followed the issuance of that order.
Did the ~istrictCourt err in granting dismissal to the County
based upon the inability of Miller to sue in a court of law after
he had been through arbitration?
Miller contends his claims were not preempted by federal law
because they are not rooted in the collective bargaining agreement,
and as a result, the dismissal by the District Court was improper.
Miller also contends that the claims which he has presented could
not properly be considered by the arbitrator.
The County contends that Miller has no cause of action in
District Court. The County argues that Miller's claims are either
preempted by federal law or are based on privileged activity by the
County. Further, the County argues that res judicata or collateral
estoppel prevents Miller from having his claims heard in ~istrict
Court.
The District Court in its May 1992 order, determined that
Miller was not entitled to both a district court action and an
arbitration. The District Court stated that Miller had failed to
allege any grounds for vacating* modifying or correcting the
arbitrator's award.
The issue before us directly involves the collective
bargaining agreement executed by Glacier County Medical Center and
its employees. The record before us does not include a copy of
that contract. For the assistance of the parties and the District
Court on remand, we will now review pertinent legal principles.
Collective bargaining agreements must be interpreted by application
of federal law, not state law. Teamsters Union v. Lucas Flour Co.
(1962), 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. This is known as
federal preemption under 5 301 of the Labor Management Relations
Act of 1947 (LMRA):
Suits for violation of contracts between an employer and
a labor organization representing employees in an
industry affecting commerce as defined in this chapter,
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.
61 Stat. 156, 29 U.S.C. 5 185(a) (1988). See also Foster v.
Albertsons, Inc. (Mont. 1992), 835 P.2d 720, 49 St.Rep. 638. The
United States Supreme Court has interpreted § 301 as a
congressional mandate to develop a unified federal common law to
address labor contractdisputes. Foster, 49 St-Rep. at 640, citing
Textile Workers Union v. Lincoln Mills (1957), 353 U.S. 448, 77
S.Ct. 912, 1 L.Ed.2d 972. The preemption under 5 301 has been
limited to the cases where resolution of the state law claim
requires construing a collective bargaining agreement. As stated
in Foster, 49 St.Rep. at 642:
Linale [Lingle v Norge Division of Magic Chef, Inc.
.
(1988), 486 U.S. 399, 1085 S.Ct. 1877, 100 L.Ed.2d 4101
holds that a state-law claim is preempted by 5 301 only
where its resolution requires construing the collective
bargaining agreement. This is true even if the state-law
analysis involves the same factual considerations as the
contractual determinationunder the collectivebargaining
agreement of whether the employee was discharged for just
cause. Thus, our decision in Brinkman is overruled to
the extent that it holds that a state-law claim is
preempted merely because resolution of such a claim
requires the same analysis of the facts as the
contractual determination of just cause under the
collective bargaining agreement.
However, a collective bargaining agreement may contain an
agreement with the employees that the employee will submit to
arbitration "any controversiestt arising from the collective
bargaining agreement. When such an arbitration provision is
included in a contract, it may encompass determination of tort
claims within the arbitration itself. Vukasin v. D.A. Davidson &
Co. (1990), 241 Mont. 126, 785 P.2d 713. Considering the language
of the agreement closely, the arbitrator must then act within the
scope of the collective bargaining agreement which he or she is
interpreting. Savage Educ. Asstn v. Richland Co. Elem. Sch.
(1984), 214 Mont. 289, 692 P.2d 1237.
Therefore, some collective bargaining agreements are written
in such a way that arbitrators are empowered to go beyond the
federal common contract law in an attempt to decide controversies
existing between the employer and employee. In Zolezzi v. Dean
Witter Reynolds, Inc. (9th Cir. 1986), 789 F.2d 1447, the court
held that Zolezzi (the employee) had agreed to a clause in the
collective bargaining agreement that he would submit to arbitration
"any controversy . . . arising out of the employment or termination
of empl~yment.~~
Zolezzi, 789 F.2d at 1448. The court held that
this enabled the arbitrator to arbitrate intentional tort claims of
defamation and invasion of privacy which involved events occurring
one year after he quit working for Dean Witter.
Similarly, other circuits have held that an ex-employee's
claims of defamation, invasion of privacy and intentional
infliction of emotional distress against the employer were within
the scope of the arbitration clause requiring arbitration of "any
controversy ... arising out of the employment or termination of
employment.'' Aspero v. Shearson American Express, Inc. (6th Cir.
1985), 768 F.2d 106, 109, cert. denied, 474 U.S. 1026, 106 S.Ct.
582, 88 L.Ed.2d 564. See also Vukasin v. D.A. Davidson & Co.
(1990), 241 Mont. 126, 785 P.2d 713.
Without such wording, an arbitrator is confined to use of
federal common contract law in interpreting a collective bargaining
agreement. When this is the case, claims that are not preempted by
federal contract law and, therefore, are not rooted in the
collective bargaining agreement, are capable of being litigated in
court. Miller's complaint alleges defamation and other state-law
tort claims as well as U.S. constitutional claims such as 5 1983
claims and equal protection. The resolution of these claims was
not considered by the arbitrator and Miller argues that their
determination is not rooted in the collective bargaining agreement.
We emphasize that the United States Supreme Court has
determined that 5 1983 claims represent an issue which the Congress
intended to be judicially determined. McDonald v. West Branch
(l984), 466 U.S. 284, 290, 104 S.Ct. 1799, 1803, 80 L.Ed.2d 302,
308. According to the Supreme Court, arbitration cannot provide an
adequate substitute for judicial proceedings on this issue.
McDonald, 466 U.S. at 289. Thus, the Court found that even when an
arbitrator considers constitutional issues, such issues are not
precluded from subsequent litigation by the theories of res
judicata and collateral estoppel. McDonald, 466 U.S. at 289.
In so deciding, the Court delineated reasons for its holding.
The Court noted that arbitrators do not necessarily have the
expertise required to resolve the complex legal questions that
arise in 5 1983 actions. McDonald, 466 U.S. at 290. Further, an
arbitrator's authority is derived solely from the contract;
therefore, the arbitrator does not have the inherent authority to
enforce S 1983 decisions. McDonald, 466 U.S. at 290. Also, S 1983
claims are individual claims; yet in most cases, it is the union
which pursues the contract action on behalf of the employee. Under
these circumstances, there is no guarantee that the union's
interest exactly parallels the employee's individual interest.
McDonald, 466 U.S. at 291. Therefore, we conclude that Miller's S
1983 claim is justiciable in a court of law, regardless of the
arbitration decision.
We conclude that the District Court should be reversed in
dismissing the plaintiff's claims in District Court on the grounds
that he had been through arbitration. Clearly, Miller's 5 1983
claim must be considered by the District Court. Because of the
absence of a copy of the collective bargaining agreement, we are
not able to comment on which of Miller's state-law claims may be
justiciable in District Court.
We reverse the holding of the District Court and remand to the
District Court for consideration of Miller's various state-law
claims in light of the authority cited in this opinion and for
consideration of his 8 1983 c l a i m .
/ /
We concur:
A
Justice Terry N. Trieweiler did not p a r t i c i p a t e in this decision.