No. 14587 INTHESUPHEMECOWOFTHESTATEOFMXJTANA 1979

BONNIEFORD, PlaintiffandRespondent,

THEUNIVERSITYOFMXUNA, andMISOULATYPOGRAPHICAL UNIONNO. 277, DefendantsandAppellants.

Appeal fm: DistrictCourtof theFourth JudicialDistrict, HonorableEhadDussault,Judgepresiding. CounselofRecord: ForAppellants: StevenA. Veazieargued, Helena,Mntana SkeltonandKnight,Missoula,Mntana RobertSkeltonargued,Missoula,Mntana ForRespondent: JonE. Ellingsonargued,Missoula,Pbntana

Subitted: June 12,1979

Filed: 

## -3

# \?j?g h*

# -

### Mr. Chief Justice Frank I. Haswelldelivered 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 shewas wrongfully assigned to a night shift by the Union and wrongfully terminated from employment by the Universitywhen she refused to work the night shift. Before the plaintiff presented any evidence, the defendantUnion 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 casewas tried without a jury and judgmentwas 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 theUniversity 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 Shopwere represented at all times relevant to this case by defendantUnion. 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 otherprivileges 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 secondyear 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 statuswho 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 claimnew 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 employeesmay 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 "TheEmployer 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.) "ARTICLEVI 

### - Seniority and Probation "SectionA. (Seniority) Senioritymeans an employee's length of continuous servicewith 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) calendarmonths. Employees who are laid off and request payment of unused sick leave and/or withdrawal of PERS contributions shallbe considered as having terminated employment." (Emphasisadded.) On November 1, 1975,Bonnie Ford acquired journeyman status. On the sameday, the Union posted the priority standings listingA1Devore 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 shiftdid not agreewith 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 immediatelyheld, with plaintiff in attendance,where her grievancewas 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. Themembers voted by majority vote to reject the grievance as without merit. After thismeeting, the president of the local Union advised plaintiff she could write to the International for a further opinion,but thisplaintiff 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 seriouspersonnel shortage and that if shedid 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 jobworking 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 "becauseof being forced to work the night shift, the Plaintiff has suffered extreme mental strain and emotional distresswhich 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 selectionby senioritywould 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 lostwages 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 February9,1978. 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 PersonnelAppeals, and thus had failed to exhaust her administrativeremedies. Themotion

was denied and trial proceeded. Subsequent to trial, on June 13, 1978, findings of fact and conclusions of law were entered identical to proposed findingsand conclusions submittedby 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 themotions 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. Themotion to amend

was otherwise denied, as was themotion 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 (theperiod 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 issuespresented 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 conclusionsof 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 employmenthad 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 theloss 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 31MCA, "CollectiveBargaining for Public Employees." The issue iswhether under these circumstances that Act isplaintiff's exclusive remedy. Unfair labor practices by labor organizations forwhich the Act provides a remedy are defined at section 39-31-402 MCA as follows: "Unfairlabor 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 faithwith 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 noprior Montana case law construing thisprovision. 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 theAct 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 situationwhere plaintiff was denied her right "to form, join or assist any labor organization",or where shewas denied any of her other rights protected by section 39- 31-201,MCA. This is not a casewhere the Union has refused to bargain collectively in good faith with a public employer, or hasmisused shop fees. Defendant Union's argument that the ~istrict Court had no jurisdictionhere because plaintiff's exclusive remedywas under the CollectiveBargaining for Public EmployeesAct 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 representher 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 certainportions of that section of the NLRA. The United States Supreme Court has held inVaca 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 doctrinewhereby the state and federal courts will not assume jurisdictionover suits directly involving "activity [which] is arguably subject to 57 or 58 of the [NLRA]." San Diego Building Trades Councilv. 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 factsof the instant case. Vaca and itsprogeny 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 contractsbetween an employer and a labor organization

representing employees in an industry affecting commerce 

# .

# .." Section 301 "carvesout exceptions to the [NLRA's] exclusive jurisdiction," Vaca, 386 at 179, and "permits suits for breachof a collectivebargaining 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 situationswhere Montana lawdoes not grant jurisdiction to state courtsbecause 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 themeaning 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 DistrictCartwould be denied jurisdiction in this case be+

causeMontana does not have a statute thatparallels 8301. It must be noted,however, that the provisions defining unfair labor practices in 29 U.S.C. S158(b) are very comprehensiveand cover

amuch 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 themeaning of section 39-31-402 and hold that the District Court had jurisdiction in thismatter. 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~,providestha standard of duty the Union owed itsmembers,viz. that itmay not discriminate between its members in its duty to fairly represent themember's grievance. TO impose such a duty is to protect "an individual employeefrom arbitrary abuses of procedures for the settlement of grievancesby providing him with recourse against both his employer and the union." 48Am Jur 2d Labor and Labor Relations S 398. In order to hold a union liable for breach of thisduty 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 standardwhich they have adopted in fair representation cases is persuasive. In Hines v. Anchor Motion Freight, Inc. (1976), 424U.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 [Humphreyv. Moore] was not that the committee'sdecision 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 conspiredwith the union. The joint committee's decision was held binding on the complainins employees only after we determined that thedunion had not been guilty ofmalfeasance and that its conductwas within the range of acceptable perkormance by a collectivebargaining agent 

# .. ." 424 U.S. at 568. (Emphasisadded.) In short, the Court has to find that the union's action

was in someway a product of bad faith,discrimination,or arbitrariness. See Ruzicka v. General Motors Corp. (1975, 6thCir.), 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 factorswhich 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 impartialconsideration 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 individualswhom 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. "Awide range of reasonableness must be allowed to a statutorybargaining 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 rightsmay be compromised for the greater good of themembers as a whole 

# . .

# ." 48Am Jur 2d Labor and Labor Relations 5399. "Although a union breaches its duty of fair representationby arbitrarily ignoring 

### ameritorious grievance, or processing it in a perfunctory way, a union does not breach its duty of fair representation merely because it settles a grievance shortof 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 thatplaintiff's grievance was without merit, was in any way improper, dishonest, or the product of bias or conclusion. Theremust be evidence thatwould support a conclusion that one of these elements tainted the Union vote. Themere fact that Bonnie Ford disagrees with the decision of the [Inion is not sufficient basis for a finding of breach of the duty of fairrepresentation 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 agreementwent into effect, length of job servicewas 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 differentiatebetween apprentices and journeymen. Plaintiff was hired as an apprentice beforeA1 Devore was hired as a journeyman. Thus, the issue is whether the new collectivebargaining 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 itdid 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 thiswill not be overturned by the courts unless there is some factpresented which would show that interpretationwas tainted. "Theconstruction 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, illegalityor improper exercise of the power of construction." 87 C.J.S. Trade Unions S13. "Theconstitution 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 constructionplaced thereon is a reasonable one, arrived at in good faith and in a legal decision

# ..."
87 C.J.S. Trade Unions S38. Themeaning of provisions in collectivebargaining 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 isproper to look to the common law of the shop to bring to bear those considerationswhich 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 introducedno 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 therewas no such intention. Even though the new agreement may on its face appear to redefine thematter, 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 documentsmust stand. Under the foregoing authorities,the conclusion thatplaintiff had preference over A1 Devorewas error. The remaining issues raised by the Union are likewisemeritorious. They flow from our resolutionof 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 iswhether 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 alsomaintains 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 fromwork was not authorized. There is a provision in the Collective Bargaining Agreement that if the employee has exhausted her sick leave, absencemay be charged to vacation or leavewithout pay at her option. However, thisprovision still requires approvalby the employer,which was neither sought nor given here. The evidence shows thatplaintiff 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 isnot 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 ismoot in view of our holding that plaintiff was not wrongfully terminated. In summary,the District Court's findingsand 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 constructionplaced on the new seniorityprovision by the Union was consistentwith a long established practice and was a reasonable and fair conclusion. Itis unfortunate thatplaintiff suffered ill effects from her night shift job,but her attempt at forcing the union to adopt her construction of the new agreement lacksmerit. Even though her construction of the agreement isplausible, itwas not the

one intended by the Union members, as evidenced by their vote on thematter. Plaintiff's illnesseswere a consequence of a job assignmentproperly 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