No. 14587 

IN THE SUPHEME COW OF THE STATE OF MXJTANA 

1979 

BONNIE FORD, 

Plaintiff and Respondent, 

THE UNIVERSITY OF MXUNA, 

and MISOULA TYPOGRAPHICAL 

UNION NO. 277, 

Defendants and Appellants. 

Appeal fm: District Court of the Fourth Judicial District, 

Honorable Ehad Dussault, Judge presiding. 

Counsel of Record: 

For Appellants: 

Steven A. Veazie argued, Helena, Mntana 

Skelton and Knight, Missoula, Mntana 

Robert Skelton argued, Missoula, Mntana 

For Respondent: 

Jon E. Ellingson argued, Missoula, Pbntana 

Subitted: June 12, 1979 

Filed: - 3 \?j?g h* - 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

The plaintiff, Bonnie Ford, brought this action against 

her public employer, the University of Montana (University), and 

her exclusive collective bargaining unit, the Missoula Typographical Union No. 277 (Union). Bonnie Ford claimed that she was 

wrongfully assigned to a night shift by the Union and wrongfully 

terminated from employment by the University when she refused to 

work the night shift. Before the plaintiff presented any evidence, 

the defendant Union moved the District Court to dismiss for lack 

of jurisdiction. At the close of plaintiff's case, the defendant 

Union moved the District Court to dismiss as to the defendant 

Union because the plaintiff had not introduced any evidence which 

showed that the Union breached any duty it owed to plaintiff. 

Both motions were denied. The case was tried without a jury and 

judgment was entered for plaintiff Bonnie Ford and against the 

Union and the University. Plaintiff was awarded monetary damages 

for lost wages and benefits. The Union and the University appeal 

from this judgment. 

On November 1, 1972, plaintiff Bonnie Ford was hired as 

an apprentice by the University of Montana Print Shop. On November 13, 1972, another worker, A1 Devore was hired at the Print 

Shop. Devore had been a journeyman printer since 1948. 

Workers at the University Print Shop were represented 

at all times relevant to this case by defendant Union. At the 

time Bonnie Ford and A1 Devore were hired, the bylaws of the International Typographical Union (ITU) were such that apprentices 

had no "priority standing", that is, no seniority for choice of 

jobs, and other privileges until completion of their apprenticeship and attainment of journeyman status. On January 1, 1973, 

however, the bylaws of the ITU were amended so that apprentices 

were granted priority standing at the beginning of their second 
year of apprenticeship on November 1, 1973. Under the amended 

bylaws, she thus attained priority status as of that date. A1 

Devore, a journeyman when he was hired, had priority status as 

of the date of his hiring, November 13, 1972. 

In 1975, the University and the Union entered into 

negotiations for a new Collective Bargaining Agreement. Under 

the new agreement executed on October 28, 1975, premium pay for 

night shift work was eliminated. Therefore, in order to allow 

employees of senior status who had chosen night jobs for the 

extra pay to change jobs if they so desired, all jobs were declared open to be reassigned in order of choice by seniority. 

Article VI, section E of the new agreement provided for this 

procedure as follows: 

"(Shift and Vacation Preference) Employees may 

claim new shifts, new starting times, new slide 

days, if qualified, and have choice of vacation 

schedules, in accordance with their seniority 

standing. Upon execution of this agreement, and 

for one time only, the board will be opened and 

employees may claim existing day or night shift 

situations in accordance with their seniority." 

Other pertinent provisions in the new agreement in this regard 

were : 

"ARTICLE I - Recognition 

"The Employer recognizes the Union as the exclusive 

bargaining representative of all employees covered 

by this agreement, the words 'employee' and 'employees' when used in this contract apply to 

iournevmen and awwrentices." (Em~hasis added.) 

"ARTICLE VI - Seniority and Probation 

"Section A. (Seniority) Seniority means an 

employee's length of continuous service with the 

Employer since his last date of hire. An employee's 

seniority shall be broken only by termination of 

employment or a layoff which exceeds six (6) 

calendar months. Employees who are laid off and 

request payment of unused sick leave and/or withdrawal of PERS contributions shall be considered 

as having terminated employment." (Emphasis added.) 

On November 1, 1975, Bonnie Ford acquired journeyman status. 

On the same day, the Union posted the priority standings listing A1 
Devore as senior to Bonnie Ford. Both Devore and ~ord requested 

day shift positions. The last day shift job went to Devore and 

Ford was placed on the night shift. 

Working the night shift did not agree with Bonnie Ford. 

She began suffering from general malaise, insomnia and depression. After having worked the night shift for approximately a 

year, plaintiff was advised by her physician that her symptoms 

would not improve unless she could get placed on day shift or 

find another job at which she could work daytime hours. 

In the meantime, plaintiff had been designated as Chapel 

Chairman, or representative for the Union, at the university Print 

Shop. In conjunction with the duties of Chapel Chairman, in 

December, 1976, plaintiff requested and obtained from the Print 

Shop a list of the dates of hiring of all the employees. She discovered that she had been hired before A1 Devore and concluded that 

under the new agreement she rather than he should have been awarded 

the last day shift job. Shortly thereafter, she advised the president of the local Union and the University that she believed her 

seniority to be greater than that of A1 Devore and that she should 

be given a day job. 

On March 2, 1977, plaintiff filed a grievance, through 

her attorney, with the Union. A special meeting of the Union was 

immediately held, with plaintiff in attendance, where her grievance was discussed. The members concluded that A1 Devore had 

greater seniority than plaintiff and the plaintiff's claim was 

barred in any event by a clause in the agreement that grievances 

must be submitted within twenty days after the occurrence of the 

event giving rise to the grievance. The members voted by majority 

vote to reject the grievance as without merit. After this meeting, the president of the local Union advised plaintiff she could 

write to the International for a further opinion, but this plaintiff 

did not do. 
On February 22, 1977, plaintiff stopped going to work. 

She requested sick leave, but her sick leave had previously 

been used up. On March 23, 1977, the manager of the print shop 

informed plaintiff by letter that her continued absence was 

causing a serious personnel shortage and that if she did not 

return to work on her normal shift by April 4, 1977, she would 

have to be terminated and replaced. Plaintiff did not return 

and was terminated on the date specified. On April 29, 1977, 

plaintiff began a new job working the day shift at Gateway 

Printing Company (Gateway) in Missoula, Montana. 

Plaintiff's complaint in this matter was filed on April 

6, 1977. The central allegation is that "because of being forced 

to work the night shift, the Plaintiff has suffered extreme 

mental strain and emotional distress which manifest themselves 

in physical disorders; that she has advised the Defendants of 

these problems but the Defendants have failed and refused, and 

continue to fail and refuse, to provide her with a day shift position which selection by seniority would have provided her." The 

prayer for relief requests, in pertinent part, that "Defendants 

be enjoined to employ plaintiff on the day shift" and that plaintiff recover lost wages from February 22, 1977, the day she stopped 

going to work. 

After a period of discovery, trial of the matter was held 

before Judge Edward T. Dussault, sitting without a jury, on 

February 9,1978. At the start of trial, counsel for defendant Union 

moved to dismiss the case for lack of jurisdiction on the grounds 

that plaintiff, an employee of the State of Montana, had not 

presented her grievance to the Board of Personnel Appeals, and 

thus had failed to exhaust her administrative remedies. The motion 

was denied and trial proceeded. 

Subsequent to trial, on June 13, 1978, findings of fact 

and conclusions of law were entered identical to proposed findings 
and conclusions submitted by plaintiff, granting all the relief 

requested in the complaint. Both defendants thereafter submitted motions to amend, and defendant University also moved 

for a new trial. Argument on the motions was had on July 31, 

1978, and it was orally stipulated that the findings and conclusions reinstating plaintiff in her job and ordering her to 

be given a day shift position be deleted. The motion to amend 

was otherwise denied, as was the motion for new trial. Judgment 

was entered for plaintiff for lost wages due to sickness attributable to forced night work; lost wages from January 1, 1977 to 

April 29, 1977 (the period wherein the plaintiff was absent from 

work for a substantial amount of time until she found new employment at Gateway); and for lost sick leave and vacation benefits, 

all in the total sum of $4,470.25. From that judgment, defendants 

appeal. 

The issues presented on appeal are: 

By appellant Union: 

(1) Whether the District Court erred in denying the 

Union's motion to dismiss for lack of jurisdiction. 

(2) Whether the District Court's finding that the Union 

had breached a duty to plaintiff, and the consequent denial of 

the Union's motion to dismiss at the close of plaintiff's case, 

was supported by substantial evidence. 

(3) Whether the District Court erred (a) in making certain conclusions of law, and (b) in failing to make certain findings of fact. 

By appellant University: 

(4) Whether the District Court erred in its conclusion 

of law that plaintiff's employment had been wrongfully terminated 

by the University, entitling her to lost wages and benefits. 

(5) Whether lost wages and benefits were not recoverable in any event because the circumstances giving rise to the 
loss here were neither contemplated by the parties to the collective bargaining agreement nor likely to result from its alleged 

breach. 

There is no disagreement here as to whether Bonnie Ford 

is a public employee covered by Title 39, Chapter 31 MCA, 

"Collective Bargaining for Public Employees." The issue is whether 

under these circumstances that Act is plaintiff's exclusive remedy. 

Unfair labor practices by labor organizations for which the Act 

provides a remedy are defined at section 39-31-402 MCA as follows: 

"Unfair labor practice of labor organization. 

It is an unfair labor practice for a labor 

organization or its agent to: 

"(1) restrain or coerce employees in the exercise of the right guaranteed in 39-31-201 

or a public employer in the selection of his 

representative for the purpose of collective 

bargaining or the adjustment of grievances; 

"(2) refuse to bargain collectively in good 

faith with a public employer if it has been 

designated at the exclusive representative of 

employees; 

"(3) use agency shop fees for contributions 

to political candidates or parties at state 

or local levels." 

There is no prior Montana case law construing this provision. The plain meaning on a fair reading of this provision, 

however, indicates that it does not contemplate the situation 

presented here as one for which the Act provides a remedy. Section 39-31-201 MCA referred to in the provision is the statute 

protecting the right of public employees to self-organize. This 

case does not involve a situation where plaintiff was denied her 

right "to form, join or assist any labor organization", or where 

she was denied any of her other rights protected by section 39- 

31-201, MCA. This is not a case where the Union has refused to 

bargain collectively in good faith with a public employer, or 

has misused shop fees. Defendant Union's argument that the ~istrict 

Court had no jurisdiction here because plaintiff's exclusive remedy 
was under the Collective Bargaining for Public Employees Act 

lacks merit; that Act, in fact, provides no remedy at all for 

the controversy at issue here. In essence Bonnie Ford is charging that the Union breached a duty it owed to her by its failure 

to fairly represent her grievance. Section 39-31-402, MCA doe$ 

not encompass this situation. 

Plaintiff further argues that the District Court had 

jurisdiction by analogy to 29 U.S.C. 5158(b) of the National 

Labor Relations Act (NLRA). The language in section 39-31-402 

closely parallels certain portions of that section of the NLRA. 

The United States Supreme Court has held in Vaca v. Sipes (19661, 

386 U.S. 171, 87 S.Ct. 903, 17 L Ed 2d 842, that the preemption 

doctrine is not rigidly applied to cases in which it cannot be 

inferred that Congress intended exclusive jurisdiction to lie 

with the NLRA. 386 U.S. at 179. The preemption doctrine is a 

doctrine whereby the state and federal courts will not assume 

jurisdiction over suits directly involving "activity [which] is 

arguably subject to 57 or 58 of the [NLRA]." San Diego Building 

Trades Council v. Garmon (1959), 359 U.S. 236, 245, 79 S.Ct. 773, 

780, 3 L Ed 2d 775, 783. Vaca allowed an employee access to the 

courts to pursue a remedy for an alleged breach of duty by a 

Union in wrongfully refusing to process a grievance, which is 

similar to the facts of the instant case. Vaca and its progeny 

however, are questionable authority for jurisdiction in the state 

District Court here because they involve section 301 of the Labor 

Management Relations Act, 29 U.S.C. S185. That statute gives 

venue to District Courts of the United States in "[sluits for 

violation of contracts between an employer and a labor organization 

representing employees in an industry affecting commerce . . ." 

Section 301 "carves out exceptions to the [NLRA's] exclusive 

jurisdiction," Vaca, 386 at 179, and "permits suits for breach 
of a collective bargaining agreement regardless of whether the 

particular breach is also unfair labor practice within the 

jurisdiction of the Board." Vaca, 386 U.S. at 179-80. Therefore, federal labor law grants jurisdiction to the federal 

courts in certain situations where Montana law does not grant 

jurisdiction to state courts because Montana does not have a 

statute that parallels 8301. 

In Vaca, the Court decided to "assume for present purposes that such a breach of duty of fair representation by the 

union [in its handling of an employee's grievance] is an unfair 

labor practice" within the meaning of 29 U.S.C. S158(b). 386 U.S. 

at 186. If this Court were to hold that a breach of duty was 

section 

an unfair labor practice within the meaning of /39-31-402, MCA, 

the District Cart would be denied jurisdiction in this case be+ 

cause Montana does not have a statute that parallels 8301. It 

must be noted, however, that the provisions defining unfair labor 

practices in 29 U.S.C. S158(b) are very comprehensive and cover 

a much broader scope than does section 39-31-402 which is limited 

to three circumstances which may be more strictly construed than 

the federal law. Therefore, we reject the assumption that refusal to process a grievance is an unfair labor practice within 

the meaning of section 39-31-402 and hold that the District Court 

had jurisdiction in this matter. 

We next face the issue of whether the Union breached a 

duty which it owed to Bonnie Ford. We have decided above that 

a failure to represent is not an unfair labor practice under 

section 39-31-402; however, section 39-31-205, MC~,provides tha 

standard of duty the Union owed its members, viz. that it may 

not discriminate between its members in its duty to fairly represent the member's grievance. 

TO impose such a duty is to protect "an individual employee 
from arbitrary abuses of procedures for the settlement of 

grievances by providing him with recourse against both his 

employer and the union." 48 Am Jur 2d Labor and Labor Relations 

S 398. In order to hold a union liable for breach of this duty 

in regard to processing employee grievances, most cases require 

a finding of fraud, arbitrariness, bad faith, or other misconduct 

with respect to its handling of a grievance. Annot. 34 ALR3d 

884. Although the United States Supreme Court's decisions in 

this area are not binding on this Court because they are construing a different statute, the standard which they have adopted in 

fair representation cases is persuasive. In Hines v. Anchor 

Motion Freight, Inc. (1976), 424 U.S. 554, 96 S.Ct. 1048, 47 

L Ed 2d 231, the Court discusses the case of Humphrey v. Moore 

(1964), 375 U.S. 335, 84 S.Ct. 363, 11 L Ed 2d 370. In Hines. 

the Court states: 

"Our conclusion in [Humphrey v. Moore] was 

not that the committee's decision was unreviewable. On the contrary, we proceeded 

on the bases that it was reviewable and vulnerable if tainted by breach of duty on the part 

of the union, even though the employer had not 

conspired with the union. The joint committee's 

decision was held binding on the complainins 

employees only after we determined that thedunion 

had not been guilty of malfeasance and that its 

conduct was within the range of acceptable perkormance by a collective bargaining agent . . ." 

424 U.S. at 568. (Emphasis added.) 

In short, the Court has to find that the union's action 

was in some way a product of bad faith, discrimination, or 

arbitrariness. See Ruzicka v. General Motors Corp. (1975, 

6th Cir.), 523 F.2d 306. The following is a general statement 

of this principal of law and the policy which underlies it. 

" . . . A union's action is non-arbitrary and in 

performance of its duty of fair representation to 

members where such action is based upon relevant, 

permissible union factors which exclude the possibility of its being based upon motivations such as 

personal animosity or political favoritism, where 

it is a rational result of consideration of those 

factors, and where it includes fair and impartial 
consideration of the interests of all employees. 

"There is no breach of a collective bargaining 

agent's duty of fair representation in taking a 

good-faith position contrary to that of some 

individuals whom it represents, or in supporting 

the position of one group of employees against 

that of another." 48 Am Jur 2d Labor and Labor 

Relations 5398. 

"A wide range of reasonableness must be allowed 

to a statutory bargaining representative in serving 

the unit it represents, subject always to its complete good faith and honesty of purpose in the 

exercise of its discretion. A union has great discretion in processing its members grievances, and 

only in extreme cases of abuse of discretion will 

the court interfere with the union's decision; in 

certain cases some individual rights may be compromised for the greater good of the members as a 

whole . . ." 48 Am Jur 2d Labor and Labor Relations 

5399. 

"Although a union breaches its duty of fair representation by arbitrarily ignoring a meritorious 

grievance, or processing it in a perfunctory way, 

a union does not breach its duty of fair representation merely because it settles a grievance short 

of the final grievance procedure step of arbitration, even if a court should later decide that the 

grievance was meritorious. And although the ignoring or perfunctory processing of a grievance may 

violate the duty of fair representation, such duty 

does not require a union to exhaust every theoretically available procedure simply on the demand of 

a union member, the decisive question being whether 

the union's conduct is arbitrary, discriminatory, 

or in bad faith. In its role as the exclusive agent 

for all employees in a bargaining unit, the union 

has the power to sift out frivolous grievances, 

abandon the processing of a grievance which it determines in good faith to be meritless, and to settle 

a dispute with the employer short of arbitration . . ." 

48 Am Jur 2d Labor and Labor Relations 5401. 

In the instant case, the complaint does not allege any 

fraud or bad faith on the part of the Union. Nor was there any 

evidence presented at trial that the vote of the Union members, 

which determined that plaintiff's grievance was without merit, was 

in any way improper, dishonest, or the product of bias or conclusion. There must be evidence that would support a conclusion 

that one of these elements tainted the Union vote. The mere fact 

that Bonnie Ford disagrees with the decision of the [Inion is not 

sufficient basis for a finding of breach of the duty of fair 
representation absent these factors. Annot. 34 ALR3d 884 $37. 

Defendant Union's motions to dismiss at the close of 

plaintiff's case should have been granted. 

The central problem in this case is the District Court's 

conclusion that Bonnie Ford had greater seniority than A1 Devore 

under the new Collective Bargaining Agreement. Before the new 

agreement went into effect, length of job service was referred 

to within the Union in terms of "priority". It is undisputed 

that under that system, A1 Devore, a journeyman, had "priority" 

as of his date of hire, November 13, 1972, and plaintiff did 

not get "priority" until commencement of her second year of 

apprenticeship on November 1, 1973. Under the new agreement 

effective July 1, 1975, however, the term "seniority" was used 

and was defined as "an employee's length of service from date of 

hire." The new agreement does not differentiate between apprentices and journeymen. Plaintiff was hired as an apprentice before A1 Devore was hired as a journeyman. Thus, the issue is 

whether the new collective bargaining agreement abrogates the 

previously followed priority system and replaces it with something 

different so that plaintiff now has a higher choice-of-job status? 

The vote of the Union members rejecting plaintiff's grievance 

indicates that they concluded it did not. 

In the previous issue it has held that a Union will not 

be liable for refusing to process a grievance so long as such a 

refusal is not arbitrary, the product of bad faith, or discriminatory. Similarly, a Union may interpret its own union rules and 

this will not be overturned by the courts unless there is some 

fact presented which would show that interpretation was tainted. 

"The construction of a union's constitution and laws is for the 

union, through its appropriate board or officers; and the courts 

will accept such construction in the absence of fraud, illegality 
or improper exercise of the power of construction." 87 C.J.S. 

Trade Unions S13. "The constitution and bylaws of a union cannot 

retroactively infringe established rights." 

" . . . [Tlhe interpretation of rules fixing the seniority rights of members will not be interfered with by the courts 

where it appears that the construction placed thereon is a reasonable one, arrived at in good faith and in a legal decision . . ." 

87 C.J.S. Trade Unions S38. 

The meaning of provisions in collective bargaining agreements may be construed according to existing circumstances and 

condition. "The court has no power to read into the contract any 

terms or conditions with respect to seniority which were not comprehended and intended by the parties when contracting. On the 

other hand it is proper to look to the common law of the shop to 

bring to bear those considerations which were not expressed in 

the contract as criteria for judgment. Seniority provisions should 

be construed in an objective manner, in the light of the surrounding circumstances, the nature of the operations contemplated and 

regulated thereby, and the objects sought to be accomplished . . ." 

51 C.J.S. Labor Relations S251. 

Plaintiff here introduced no evidence that the parties 

to the new agreement intended to restructure their choice-of-job 

status. On the contrary, the only testimony on this point was 

that there was no such intention. Even though the new agreement 

may on its face appear to redefine the matter, the union membership chose to interpret it differently. In the absence of some 

evidence that the vote was tainted by bad faith, or that it was 

discriminatory, or arbitrary, the Union's interpretation of its 

own documents must stand. Under the foregoing authorities, the 

conclusion that plaintiff had preference over A1 Devore was 

error. 

The remaining issues raised by the Union are likewise 
meritorious. They flow from our resolution of the preceding 

issues in defendant Union's favor. Having so resolved that 

issue, under such circumstances further detailed discussion of 

the alleged errors would be superfluous. 

The next issue is whether Bonnie Ford was wrongfully 

terminated. Plaintiff absented herself from work on the strength 

of her belief that she had been wrongfully deprived of a day 

shift job. The foregoing discussion indicates that plaintiff 

was wrong in this belief. Plaintiff also maintains that her 

absence was at the advice of her doctor and was therefore "sick 

leave". However, testimony at trial established that plaintiff 

had exhausted her sick leave and that her absence from work was 

not authorized. There is a provision in the Collective Bargaining Agreement that if the employee has exhausted her sick leave, 

absence may be charged to vacation or leave without pay at her 

option. However, this provision still requires approval by the 

employer, which was neither sought nor given here. The evidence 

shows that plaintiff was terminated only after full compliance 

with the termination requirements of the agreement. The conclusion by the trial court that the University wrongfully terminated 

plaintiff is not supported by the evidence. Hence, this conclusion of law is error and must be vacated. 

The final issue raised by the University concerning lost 

wages and benefits is moot in view of our holding that plaintiff 

was not wrongfully terminated. 

In summary, the District Court's findings and conclusions 

in this case are not supported by the evidence. There is no 

evidence that the Lniorfs rejection of plaintiff's grievance was 

arbitrary or in bad faith. The construction placed on the new 

seniority provision by the Union was consistent with a long established practice and was a reasonable and fair conclusion. It 
is unfortunate that plaintiff suffered ill effects from her 

night shift job, but her attempt at forcing the union to adopt 

her construction of the new agreement lacks merit. Even though 

her construction of the agreement is plausible, it was not the 

one intended by the Union members, as evidenced by their vote 

on the matter. Plaintiff's illnesses were a consequence of a 

job assignment properly given to her, rather than the result of 

any wrongful act of either of the defendants. 

Reversed and dismissed. 

Chief Justice 

We concur: 

Justices 

i