No 

No. 98-208

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 134

294 Mont. 517 

982 P.2d 1024

STEVE WINCHESTER,

Plaintiff and Appellant, 

vs.

MOUNTAIN LINE, MARY PLUMLEY, and 

THE BOARD OF PERSONNEL APPEALS, 

DEPARTMENT OF LABOR,

Defendants and Respondents.

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APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard R. Buley, Tipp & Buley, Missoula, Montana

For Respondents:

James A. Bowditch, Milodragovich, Dale, Steinbrenner & Binney, Missoula, Montana

Submitted on Briefs: December 3, 1998

Decided: June 14, 1999

Filed:

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__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. Steve Winchester (Winchester) appeals from the Opinion and Order of the 

Fourth Judicial District Court, Missoula County, which affirmed the Final Order of 

Montana Board of Personnel Appeals which dismissed Winchester's unfair labor 

practice charge against Mountain Line and its general manager, Mary Plumley 

(collectively, "Mountain Line"). We reverse and remand for further proceedings 

consistent with this opinion.

¶2. Winchester raises one issue on appeal, which we restate as follows:

¶3. Did the District Court err in deciding that Winchester's unfair labor practice 

claims were subject to the final and binding arbitration clause in the collective 

bargaining agreement?

Background

¶4. Winchester was employed by Mountain Line, an urban transportation district in 

Missoula, as a bus driver. Winchester was a member of Teamsters Union Local No. 2 

(Teamsters) and served as the Teamsters' shop steward at Mountain Line. The 

employment relationship between Winchester and Mountain Line was governed by a 

Collective Bargaining Agreement (CBA) between the Teamsters and Mountain Line 

which was effective from June 2, 1993, to June 30, 1996.

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¶5. On July 16, 1993, Mountain Line suspended Winchester for allegedly violating 

Mountain Line's bus drivers' handbook by stopping a bus in the middle of an 

intersection and instructing a passenger to get off the bus and retrieve a hatchet 

which was laying on the street. On August 6, 1993, Mountain Line held a pretermination hearing regarding the incident that gave rise to Winchester's suspension. 

Later that August, Mountain Line discharged Winchester, retroactive to July 16, 

1993, for his alleged violation of the bus drivers' handbook.

¶6. On September 15, 1993, a grievance hearing was held regarding Winchester's 

discharge. Mountain Line upheld Winchester's discharge. 

¶7. On September 29, 1993, the Teamsters asked Mountain Line to arbitrate the 

dispute over the reasons underlying Winchester's discharge pursuant to the 

arbitration clause in the CBA. On the following day, September 30, 1993, Winchester 

filed an unfair labor practice charge with the Montana Department of Labor and 

Industry, Board of Personnel Appeals (Board). Winchester's charge alleged that 

Mountain Line first suspended him and then discharged him for soliciting other 

employees to attend a meeting at his house to discuss the decertification process 

required to change union representation and because he was the shop steward. 

Therefore, Winchester asserted that Mountain Line committed unfair labor practices 

in violation of §§ 39-3-201 and 39-31-401(1), (2), and (4), MCA.

¶8. On October 10, 1993, Mountain Line responded to Winchester's charge. 

Mountain Line asserted that it discharged Winchester for just cause pursuant to the 

CBA. Mountain Line also pointed out that the Teamsters had requested that the 

dispute be resolved through the arbitration procedure set out in the CBA. Hence, 

Mountain Line urged the Board to defer to the arbitration procedure. 

¶9. On October 25, 1993, the Board's investigator issued a Recommended Order 

wherein she recommended that Winchester's charge be dismissed without prejudice 

to any party and without deciding the merits of the charge. The investigator 

recommended that the Board defer to the already scheduled arbitration pursuant to 

the "pre-arbitral deferral" policy which the National Labor Relations Board (NLRB) 

set out in Collyer Insulated Wire (1971), 192 N.L.R.B. 837, 77 L.R.R.M. 1931, and 

which the Board adopted in William Converse v. Anaconda Deer Lodge County, ULP 

43-81 (April 1982) and James Forseman v. Anaconda Deer Lodge County, ULP 44-81 

(April 1982). Notwithstanding, the investigator recommended that the Board retain 

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jurisdiction over the matter so that the Board could hear the case if the dispute was 

not resolved within a reasonable time pursuant to the arbitration procedure set out 

in the CBA, if the arbitral procedure was not fair, or if the arbitrators reached a 

result which was repugnant to the public policy considerations contained in the 

Collective Bargaining for Public Employees Act, §§ 39-31-101 et seq., MCA. 

¶10. Winchester filed objections to the investigator's Recommended Order on 

November 4, 1993. Winchester asserted that deferring to arbitration under Collyer

was improper because the CBA stated that any alleged violation of federal or state 

law was not subject to the arbitration procedure. Since Winchester objected to the 

investigator's Recommended Order, the Board transferred the case to the 

Department of Labor's Hearings Bureau on December 22, 1993. 

¶11. Despite Winchester's objection to the investigator's recommendation to defer 

the arbitration procedure, an arbitration hearing was held on December 1, 1993. 

Winchester did not attend the arbitration hearing. The arbitrators upheld Mountain 

Line's decision to discharge Winchester.

¶12. Thereafter, on November 25, 1994, Mountain Line filed a motion to dismiss 

Winchester's unfair labor practice charge on the grounds that the dispute was 

resolved at the arbitration hearing. On December 13, 1994, Winchester responded to 

Mountain Line's motion to dismiss by reiterating that the CBA specifically excluded 

claims made under state statutes from the arbitration. Hence, Winchester argued 

that deferral to the arbitration procedure under Collyer was improper, that the 

arbitration hearing violated the CBA and, therefore, that the arbiters' decision was 

not binding.

¶13. On July 27, 1995, a hearings officer issued an Order on behalf of the Board 

which denied Mountain Line's motion to dismiss. The hearings officer ruled that 

Winchester's charge alleged that Mountain Line violated the Collective Bargaining 

for Public Employees Act, and not the CBA. Consequently, the hearings officer ruled 

that deferral to arbitration under Collyer was inappropriate.

¶14. On August 16, 1995, Mountain Line filed objections to the hearings officer's 

Order. Mountain Line maintained that deferring to the arbitration procedure was 

proper and, in effect, that the hearings officer erred in denying its motion to dismiss.

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¶15. On September 27, 1995, the Board held a hearing on Mountain's Line's 

objections to the hearings officer's Order which denied its motion to dismiss. On 

October 2, 1995, the Board issued its Final Order wherein it determined that the 

hearings officer erred in denying Mountain Line's motion to dismiss. The Board 

stated that the basis for Winchester's unfair labor practice charge was 

discrimination because of union activities. Since the CBA prohibited discrimination 

because of union membership, the Board ruled that Winchester's unfair labor 

practice charge was covered by the CBA and, therefore, that it was subject to the 

grievance procedure set out in the CBA which culminated in final and binding 

arbitration. Thus, the Board ruled that deferral to the arbitration under Collyer was 

proper. Accordingly, the Board reversed the hearings examiner's decision and 

dismissed Winchester's unfair labor practice charge.

¶16. Winchester filed a Petition for Judicial Review on October 18, 1995. After both 

parties briefed the issues, the District Court issued an Opinion and Order wherein 

the court affirmed the Board's decision to dismiss Winchester's unfair labor practice 

charge. Winchester appeals from this Opinion and Order. 

Standard of Review

¶17. The issue in the instant case concerns an interpretation of a contract, the CBA. 

The construction and interpretation of a contract is a question of law for the court to 

decide. Stutzman v. Safeco Ins. Co. of America (1997), 284 Mont. 372, 376, 945 P.2d 

32, 34 (citing Klawitter v. Dettmann (1994), 268 Mont. 275, 281, 886 P.2d 416, 420.) 

We review a district court's conclusions of law to determine whether the court's 

interpretation of the law is correct. Reichle v. Anderson (1997), 284 Mont. 384, 387-

88, 943 P.2d 1324, 1326 (citing Carbon County v. Union Reserve Coal Co. (1995), 271 

Mont. 459, 469, 898 P.2d 680, 686). 

Discussion

¶18. Did the District Court err in deciding that Winchester's unfair labor practice 

claims were subject to the binding arbitration clause in the collective bargaining 

agreement?

¶19. Winchester asserts that, since the CBA specifically exempted from arbitration 

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alleged violations of federal and state law, Collyer is inapplicable and, hence, that the 

Board improperly deferred to the grievance procedure in the CBA which culminated 

in final and binding arbitration. Mountain Line maintains that Collyer is applicable 

and that the Board properly deferred to arbitration under Collyer.

¶20. In Collyer, the NLRB ruled that it would defer to an arbitration procedure 

established by a collective bargaining agreement before it would consider an unfair 

labor practice charge if certain conditions were met.(1) The NLRB ruled that 

deferment was appropriate in Collyer because: (1) there was a long-standing 

bargaining relationship between the parties; (2) there was no enmity by the employer 

toward the employee's exercise of protected rights; (3) the employer manifested a 

willingness to arbitrate; (4) the arbitration clause in the collective bargaining 

agreement was sufficiently broad to cover the dispute at issue; and (5) the collective 

bargaining agreement and its meaning lay at the center of the dispute and was thus 

"eminently well suited to resolution by arbitration." Collyer, 192 N.L.R.B. at 842, 77 

L.R.R.M. at 1936. See also Young v. City of Great Falls (1982), 198 Mont. 349, 353, 

646 P.2d 512, 514.

¶21. After a series of shifts in policy, the NLRB announced an extension to the policy 

set out in Collyer in United Technologies Corp. (1984), 268 N.L.R.B. 557, 115 L.R.R.

M. 1049. In United Technologies, the NLRB held that it was proper to defer to an 

arbitration procedure established by a collective bargaining agreement even though 

the dispute arose under the National Labor Relations Act (NLRA) and did not 

necessarily require construction of the parties' collective bargaining agreement. In so 

holding, the NLRB explained that

It is fundamental to the concept of collective bargaining that the parties to a collectivebargaining agreement are bound by the terms of their contract. Where an employer and a 

union have voluntarily elected to create dispute resolution machinery culminating in final 

and binding arbitration, it is contrary to the basic principles of the [National Labor 

Relations] Act for the [National Labor Relations B]oard to jump into the fray prior to an 

honest attempt by the parties to resolve their disputes through that machinery. For dispute 

resolution under the grievance-arbitration process is as much a part of collective 

bargaining as the act of negotiating the contract. In our view, the statutory purpose of 

encouraging the practice and procedure of collective bargaining is ill-served by permitting 

the parties to ignore their agreement and to petition this Board in the first instance for 

remedial relief.

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United Technologies, 268 N.L.R.B. at 559, 115 L.R.R.M. at 1051 (footnote omitted). Thus, since the alleged 

violation of the NLRA was "clearly cognizable under the broad grievance-arbitration provision of the . . . 

collective-bargaining agreement," the NLRB decided to defer the case to arbitration. United Technologies, 268 N.

L.R.B. at 560, 115 L.R.R.M. at 1052.

¶22. Likewise, in Hammontree v. National Labor Relations Board (D.C. Cir. 1991), 

925 F.2d 1486, (en banc), the District of Columbia Circuit Court of Appeals 

considered a challenge to a NLRB order that required the complainant to exhaust 

grievance remedies established by a collective bargaining agreement before the 

NLRB considered his unfair labor practice complaint. The complainant in 

Hammontree argued that the NLRB's deferment authority was limited by § 203(d) of 

the Labor Management Relations Act (LMRA), which provides that "[f]inal 

adjustment by a method agreed upon by the parties is declared to be the desirable 

method for settlement of grievance disputes arising over the application or 

interpretation of an existing collective-bargaining agreement." Hammontree, 925 F.2d 

at 1493 (quoting 29 U.S.C. § 173(d)) (emphasis added by the court). The complainant 

maintained that § 203(d) of the LMRA authorized deferment only in cases "arising 

over" interpretation of a collective bargaining agreement and argued that his 

discrimination claim under §§ 8(a)(1) and 8(a)(3) of the NLRA(2) did not "arise 

over" contract interpretation even though the collective bargaining agreement 

contained an anti-discrimination provision which paralleled §§ 8(a)(1) and 8(a)(3) of 

the NLRA. Hammontree, 925 F.2d at 1493. Thus, since his discrimination claim was 

actionable not only under §§ 8(a)(1) and 8(a)(3) of the NLRA but also under the 

collective bargaining agreement which prohibited "discrimination against any 

employee because of Union membership or activities" and "discriminatory acts 

prohibited by law," the complainant contended that his "claim [wa]s simply one that 

[arose] under a statutory provision that happens to be parallel to a claim that could 

be advanced under the contract," and, therefore, that his "claim does not rest upon a 

construction of the [collective bargaining agreement]." Hammontree, 925 F.2d at 

1493-94.

¶23. Notwithstanding, the court rejected the complainant's argument and pointed 

out that his claim did not arise either under the NLRA or under the collective 

bargaining agreement; rather, his claim arose under both. Hammontree, 925 F.2d at 

1494 (citing Alexander v. Gardner Denver Co. (1974), 415 U.S. 36, 52, 94 S.Ct. 1011, 

1021, 36 L.Ed.2d 147). Thus, the court explained that

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Hammontree cannot nullify his contractual claim simply by choosing to pursue his 

statutory claim. Such an interpretation of the law would severely undermine Congress' 

'decided preference for private settlement of labor disputes without the intervention of 

government' as reflected in § 203(d). If a party could unilaterally release itself from a 

contractual pledge to submit complaints to arbitration simply because it had a parallel 

claim under the statute, then the pro-private dispute resolution policies of § 203(d) would 

be substantially abrogated.

Hammontree, 925 F.2d at 1494 (quoting United Paperworkers International Union v. Misco, Inc. (1987), 484 

U.S. 29, 37, 108 S.Ct. 364, 370, 98 L.Ed.2d 286)(footnote omitted). Therefore, the court concluded that the 

complainant's claim arose under the collective bargaining agreement and held that § 203(d) did not preclude the 

NLRB from deferring to the grievance procedure set out in the parties' collective bargaining agreement. 

Hammontree, 925 F.2d at 1494.

¶24. In Small v. McRae (1982), 200 Mont. 497, 651 P.2d 982, the public employee 

made an argument similar to the argument made by the complainant in 

Hammontree. In Small, the employee argued that the grievance procedures in the 

collective bargaining agreement were only applicable to resolve contractual disputes. 

Small, 200 Mont. at 505, 651 P.2d at 987. The employee argued that his claim "did 

not center on a contractual dispute but, rather, on a violation of a constitutionally 

protected right." Small, 200 Mont. at 505, 651 P.2d at 987. In considering the 

employee's argument, this Court stated 

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, 200 Mont. at 504, 651 P.2d at 986 (emphasis added) (citing Torrington Company v. Metal Products 

Workers Union Local 1645 (2nd Cir. 1966), 362 F.2d 677). 

¶25. In the instant case, Article VII of the CBA provides:

Discrimination

Section 7.1: There shall be no coercion, intimidation, or discrimination on the part of either the District or the 

Union, or their respective agents, officers, or members against any employee covered by this Agreement for 

reasons of age, race, sex, color, religious or political beliefs, national origin, marital status, physical handicap, 

Union membership or non-membership, or any other group or classes protected by State or Federal law.

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Section 7.2: Any alleged violation of Title VI of the Civil Rights Act of 1964 or other 

applicable Federal or State statutes shall be processed through the appropriate Federal 

and State agency(s) and will not be subject to the grievance and arbitration procedures as 

set forth in Articles 12 and 13.

(Emphasis added.) 

¶26. Winchester's unfair labor practice charge alleged that Mountain Line 

discharged him for soliciting other employees to attend a meeting to discuss 

decertifying the union and because he was the shop steward. Hence, Winchester 

claimed that Mountain Line violated § 39-31-201, MCA, which provides:

Public employees shall have and shall be protected in the exercise of the right of selforganization, to form, join, or assist any labor organization, to bargain collectively 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.

Winchester also claimed that Mountain Line committed unfair labor practices under § 39-

31-401, MCA, which provides in pertinent part:

It is an unfair labor practice for a public employer to:

(1) interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in 

39-31-201;

(2) dominate, interfere, or assist in the formation or administration of any labor 

organization; however, subject to rules adopted by the board under 39-31-104, an 

employer is not prohibited from permitting employees to confer with him during working 

hours without loss of time or pay; . . . [or]

(4) discharge or otherwise discriminate against an employee because he has signed or filed 

an affidavit, petition, or complaint or given any information or testimony under this 

chapter . . . .

Thus, since his unfair labor practice charge alleged that Mountain Line violated §§ 39-31-

201 and 39-31-401, MCA, Winchester argues that, pursuant to the plain language in 

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Section 7.2 of the CBA, his charge is not subject to the CBA's grievance and arbitration 

procedures. 

¶27. Mountain Line, however, contends that Winchester's allegations are "covered 

by" Section 7.1 of the CBA even though he generally alleged that Mountain Line 

violated §§ 39-31-201 and 39-31-401, MCA. In effect, Mountain Line asserts that, as 

in United Technologies and Hammontree, Section 7.1 of the CBA encompassed the 

allegations in Winchester's unfair labor practice charge and paralleled the claims 

that he advanced in his unfair labor practice charge. Therefore, Mountain Line 

maintains that the Board properly deferred to the arbitration procedure set out in 

the CBA. 

¶28. Despite Mountain Line's argument, the plain, ordinary language in Section 7.2 

of the CBA shows that the Board should not have deferred to the grievance and 

arbitration procedure set forth in the CBA. See Hughes v. Blankenship (1994), 266 

Mont. 150, 154, 879 P.2d 685, 687 (citing National Labor Relations Board v. Superior 

Forwarding, Inc. (8th Cir. 1985), 762 F.2d 695, 697) (stating that "[c]ourts interpret 

contractual provisions according to the plain, ordinary language used by the 

parties."). The plain language of Section 7.2 of the CBA excludes "any alleged

violation of . . . state statutes . . ." from the CBA's grievance and arbitration 

procedures. (Emphasis added.) Here, Winchester alleged that Mountain Line 

violated §§ 39-31-201 and 39-31-401, MCA. Thus, it is "certain," under Section 7.2 of 

the CBA, that Winchester's unfair labor practices charge, which alleged that 

Mountain Line violated §§ 39-31-201 and 39-31-401, MCA, was not subject to the 

grievance and arbitration provisions in the CBA. See Small, 200 Mont. at 504, 651 

P.2d at 986.

¶29. In sum, even if Winchester's charge was covered by Section 7.1 of the CBA, the 

plain language in Section 7.2 of the CBA excludes his unfair labor practice charge 

from the grievance and arbitration procedure set out in the CBA. Accordingly, the 

District Court erred in ruling that the Board properly deferred to the arbitration 

procedure in the CBA.

¶30. Reversed and remanded for further proceedings consistent with this opinion.

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/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

1. 1 The NLRB has set forth a separate "post-arbitral deferral" policy, which is not at issue in the instant case, 

under which the NLRB gives limited deference to an arbitrator's resolution of an unfair labor practice charge. See 

Spielberg Manufacturing Co. (1955), 112 N.L.R.B. 1080, 36 L.R.R.M. 1152 and Raytheon Co. (1963), 140 N.L.

R.B. 883, 52 L.R.R.M. 1129, enforcement denied on other grounds, Raytheon Co. v. National Labor Relations 

Board (1st Cir. 1964), 326 F.2d 471. 

2. 2 Section 8(a) of the NLRA provides in pertinent part:

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; . . . 

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to 

encourage or discourage membership in any labor organization . . . .

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29 U.S.C. § 158(a). 

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