No. 81-129 

IN THE SUPREIME COURT OF THE STATE OF MONTANA 

1981 

TEAMSTERS, LOCAL #45, Affiliated with 

International Brotherhood of Teamsters, 

Chauffeurs, Warehouseman & Helpers of 

America, 

Petitioner and Respondent, 

STATE OF MONTANA, ex rel., BOARD OF 

PERSONNEL APPEALS and STUART THOMAS 

McCARVEL , Respondents and Appellants. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellants: 

James Gardner, Jr., Helena, Montana 

Patrick F. Flaherty, Boulder, Montana 

For Respondent: 

Hklley & Loring, Great Palls, 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 union had breached 

its duty 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's pay 

was $1.60 per hour less than a driver'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 

claims arising from alleged breaches of fair representation. 

Appellant and the BPA 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 not have the seniority she claimed. The majority of the 

union rejected her grievance. 

The plaintiff 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 the BPA 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 Court 
did have jurisdiction to hear Ford's complaint. We do not 

intend in any way by this present decision to alter the rule 

of Ford which recognizes original jurisdiction in the state 

District Courts to decide questions of fair representation. 

This Court still recognizes the actual holding in Ford. 

There is certain dicta in Ford, however, that we can 

no longer recognize. In reasoning that the District Court 

had jurisdiction to hear the Ford case initially, this Court 

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 possible unfair labor practices, was 

found not to apply to an allegation that a union has failed 

to fairly represent a member. In Ford we looked only to the 

plain meaning of the statutes from the Montana Public 

Employees' Collective Bargaining Act, disregarding federal 

precedent, which does recognize that a breach of the duty of 

fair representation is an unfair labor practice, as a 

violation of section 8(b)(l)(A) of the National Labor 

Relations Act (NLRA), 29 USC 5158(b)(l)(A). 

Federal precedent was called "questionable authority" 

by this Court in Ford because of the way we interpreted the 

language of the leading 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 accurately by this Court in Ford. 

In Ford, we incorrectly assumed that the reason 

federal courts assumed jurisdiction 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 that Vaca 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 a breach 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 union may 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 of Vaca. 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), 165 Mont. 349, 529 P.2d 785; Local 2390 of 

Amer. Fed. etc. v. City of Billings (1976), 171 Mont. 20, 

Moreover, while other dicta in Ford suggested that we 

look to the plain meaning of section 39-31-402, MCA, 

concerning possible unfair labor practices by a union, we 

now acknowledge that this section must be read in light of 

the several sections of the Act defining the duty of a union 

as an exclusive representative, guided by NRLB 

interpretations of like statutes. 

Section 8(b)(l)(A) of the NLRA, 29 USC §158(b)(l)(A), 

provides in pertinent part: 

"(b) It shall be 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. . ." 

Section 7 of the NLRA, 29 USC S157, provides: 

"Employees shall have the right to selforganization, to form, join or assist labor 

organizations, to bargain collectively 

through representatives of 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 section 8(a)(3)." 

The above-quoted sections are very similar to the 

statutes in Montana's Public Employees' Collective Bargaining Act: 

"It is an unfair labor practice of a labor 

organization or its agents to: 

"(1) restrain or coerce employees in the 

exercise of the right guaranteed in 39-31-201 . . ." Section 39-31-402, 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, shall be 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 the majority 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 

the duty 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 9 
of the NLRA necessarily gave rise to a 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 

exercise of the rights guaranteed in section 7." 

The NLRB continues to hold that breach of the duty of 

fair representation is an unfair labor practice, and more 

specifically, that the processing of a grievance in an 

arbitrary manner is a violation of section 8(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 

(Centex Homes 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 (9th Cir. 1976), 545 F.2d 1173, 93 LRRM 2747; NLRB 

v. American Postal Workers Union (8th Cir. 1980), 618 F.2d 

1249, 103 LRRM 3045; Newport News Shipbuilding & Dry Dock 

Co. v. NLRB (4th Cir. 1980), 631 F.2d 263, 104 LRRM 2633. 

In its first hearing of this case, the BPA 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 this case 

in light of Ford, the BPA decided that its assumption of 

jurisdiction in this case did not conflict with the actual 
law set down in Ford, although it did conflict with dicta in 

Ford which stated that a breach of the duty of fair 

representation was not an unfair labor practice. We agree 

with the BPA in this matter. We still recognize the holding 

in Ford that a District Court has original jurisdiction to 

hear claims that a union has breached its duty of fair 

representation. We no 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 in the District Court should deprive 

a grievant of his or her administrative remedies under the 

Act. Vaca itself stood for the proposition of concurrent 

jurisdiction in both the NLRB and the federal courts. 

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: