No. 81-129 INTHE SUPREIME COURT OF THE STATE OF MONTANA 1981

TEAMSTERS, LOCAL #45, Affiliatedwith International Brotherhood of Teamsters, Chauffeurs, Warehouseman & Helpersof America, Petitioner and Respondent,

STATE OF MONTANA, exrel., BOARD OF PERSONNEL APPEALS and STUART THOMAS McCARVEL

## , Respondents and Appellants.

Appeal from: DistrictCourt of theFirstJudicialDistrict, In and forthe County of Lewis & Clark, The Honorable PeterMeloy, Judge presiding. Counsel of Record: For Appellants: James Gardner, 

### Jr., Helena, Montana Patrick F. Flaherty, Boulder, Montana For Respondent: Hklley & Loring, GreatPalls, Montana

Submitted on Briefs: 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 unionhad breached itsduty 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 represented by the respondent union for collective bargaining purposes.Upon receipt of his first paycheck, appellant discovered that he was paid for twenty hours per week as a driver and twenty hours per week as a clerk. A clerk'spay
was $1.60per hour less than adriver'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 claimsarising from alleged breaches of fair representation. Appellant and theBPA 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 nothave the seniority she claimed. Themajority of the union rejected her grievance. Theplaintiff 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 theBPA 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 Courtdid have jurisdiction tohear Ford's complaint. We do not intend inany way by thispresent decision to alter the rule of Ford which recognizes original jurisdiction in the state District Courts to decide questions of fair representation. ThisCourt stillrecognizes the actualholding inFord. There is certain dicta inFord, however, thatwe can

no longer recognize. In reasoning that the District Court had jurisdiction tohear theFord case initially, thisCourt stated that a breach of the duty of fair representation cannot be considered an unfair labor practice within the meaning of section 39-31-402, MCA. Section 39-31-402, MCA, which defines a union's possibleunfair labor practices, was found not toapply toan allegation that a union has failed tofairlyrepresent amember. InFord 

### we looked only tothe plain meaning of the statutes from the Montana Public Employees' Collective Bargaining Act, disregarding federal precedent, which does recognize thata breach of thedutyof fair representation is an unfair labor practice, as a violation of section 8(b)(l)(A)of the National Labor RelationsAct (NLRA), 29 USC 5158(b)(l)(A). Federalprecedent was called "questionableauthority" by thisCourt inFord because of the way we interpreted the language of theleading case, Vaca v. Sipes (1967), 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 interpreted accuratelyby thisCourt inFord. In Ford, we incorrectly assumed that the reason federal courtsassumedjurisdiction over fair representation

cases was because of the presence of section 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 thatVaca 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 abreach 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 unionmay 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 ofVaca. As in all other cases except Ford where we have interpreted the Public Employees' Collective Bargaining Act (the Act), we now look to NLRB and federal interpretation of the NLRA for guidance in interpreting 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;State ex rel. Dept. of Highways v. Public Employees Craft Council (1974), 165Mont. 349, 529 P.2d 785; Local 2390 of Amer. Fed. etc. v. City of Billings (1976), 171Mont. 20,

Moreover, whileother dicta inFord suggested thatwe look to the plain meaning of section 39-31-402, MCA, concerning possible unfair labor practices by a union, we

now acknowledge that this sectionmust be read in light of the severalsectionsof theActdefiningthedutyof aunion

as an exclusive representative, guided by NRLB interpretations of likestatutes. Section8(b)(l)(A) of the NLRA, 29 USC §158(b)(l)(A), provides inpertinent part: "(b)Itshallbe an unfair labor practice for a labor organization or 

### its agents

## -- (1)to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7.

# .

# ." Section7of theNLRA, 29 USC S157, provides: "Employees shall have the right to selforganization, to form, join or assist labor organizations, to bargain collectively throughrepresentativesof their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section8(a)(3)." The above-quoted sections are very similar to the statutes inMontana's Public Employees' CollectiveBargainingAct: "It is an unfair labor practice of a labor organizationor itsagentsto: "(1)restrain or coerce employees in the exerciseof therightguaranteed in39-31-201



# ..." Section39-31-402, 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 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." 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 appropriate for such purposes, shallbe the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages,hours of employment, or other conditions of employment: 

# ..." 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 themajority 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 theduty 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 9of theNLRA necessarilygave risetoa corresponding section 7 right in union constituents to fair representation by the exclusive representative. The NLRB concluded that a union 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 exerciseof the rightsguaranteed in section7." The NLRB continues tohold thatbreach of thedutyof fair representation is an unfair labor practice, and more specifically, that the processing of a grievance in an arbitrarymanner is aviolationof section8(b)(l)(A). See, UAW, Local 600 (Dearborn Stamping Plant of Ford Motor Co.) (1976), 225 NLRB 1299, 93 LRRM 1233; and Laborers Local 324 (CentexHomes of California) (1978), 234 NLRB 367, 97 LRRM 1265. The Federal Courts of Appeals have enforced the holding that a breach of the duty of fair representation 

### is

an unfair labor practice many 

### times. NLRB v. Teamsters Local 315 (9thCir. 1976),545 F.2d 1173, 93 LRRM 2747; NLRB

v. American Postal Workers Union (8thCir. 1980), 618 F.2d 1249, 103 LRRM 3045; Newport News Shipbuilding & Dry Dock Co. v. NLRB (4th Cir. 1980),631F.2d 263, 104 LRRM 2633. In

### itsfirsthearing of this case, theBPA recognized the similarities between the NLRA and the Montana Act. Applying a rationale similar to that used by the NLRB and the federal courts, the BPA found that the action by the union here was an unfair labor practice within the meaning of section 39-31-402, MCA. On reconsideration of thiscase in light of Ford, the BPA decided that its assumption of jurisdiction in this case did not conflict with the actuallaw setdown inFord, although itdid conflictwithdictain Ford which stated that a breach of the duty of fair representationwas not an unfair labor practice. We agree with theBPA inthismatter. We stillrecognizetheholding in Ford that a District Court has original jurisdiction to hear claims that a union has breached 

### its duty of fair representation. Weno longer recognize, however, the dicta in Ford which states that a breach of the duty of fair representation is not an unfair labor practice within the meaning of section 39-31-402, MCA. Further, we no longer recognize other dicta in Ford which states that finding jurisdiction in the BPA on these matters would necessarily deprive the District Court of jurisdiction. We see no

reason why jurisdiction intheDistrictCourt should deprive

a grievant of his or her administrative remedies under the Act. Vaca itself stood for the proposition of concurrent jurisdiction inboth theNLRB and the federalcourts. We therefore hold that the BPA has jurisdiction to hear claims that a union has breached its duty of fair representation. We remand this case to the District Court

I Justice v We concur: