NO. 96-281 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

INTERNATIONAL BROTHERHOOD OF 

ELECTRICAL WORKERS, AFL-CIO, 

LOCAL 1638, 

Defendant and Appellant, 

v. 

THE MONTANA POWER COMPANY, 

Plaintiff and Respondent. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable John W. Whelen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas J. Joyce, Hennessey, Joyce & Wing, Butte, 

Montana; Walter C. Brauer, 111, Brauer, Buescher, 

Valentine, Goldhammer & Kelman, Denver, Colorado 

For Respondent: 

W. Wayne Harper, Butte, Montana 

Filed: 

Submitted on Briefs: September 5, 1996 

December 9, 1996 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

The Montana Power Company (MPC) filed a cornplaint in the 

Second Judicial District Court, Silver Bow County, seeking an 

alternative writ of prohibition to prevent the conduct of a labor 

arbitration between itself and the International Brotherhood of 

Electrical Workers (the Union) arising from a grievance pursued by 

the Union on behalf of one of its members. The District Court 

initially granted the alternative writ of prohibition, and in a 

subsequent order both denied the Union's motion to dismiss the writ 

and made the writ permanent. The Union appeals from the District 

Court's order. 

We reverse. 

The dispositive issue in this case is whether the District 

Court had jurisdiction to issue the writ of prohibition. 

FACTS . 

The relevant facts here are undisputed. Mr. William Morrison 

was employed by MPC in 1995. MPC is and was in 1995 an employer 

engaged in interstate commerce as defined by and covered by the 

Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 141 et 

seq. (1994). The Union is a labor organization that represents MPC 

employees pursuant to LMRA. MPC and the Union are parties to a 

collective bargaining agreement concerning grievances, labor 

disputes, wages, rates of pay, hours of employment, and conditions 

of work. The collective bargaining agreement provides for a 

grievance arbitration procedure to resolve disputes regarding the 

terms of the collective bargaining agreement. 

2 
On June 16, 1995, Mr. Morrison was transferred from a work 

crew which worked 12-hour rotating shifts to a crew working 10-hour 

day shifts. Mr. Morrison brought this transfer to the attention of 

the Union, which then filed a grievance on his behalf challenging 

the transfer as a violation of the collective bargaining agreement. 

The grievance was processed in accord with the collective 

bargaining agreement. 

When it became clear that the Union and MPC could not resolve 

the grievance, the Union demanded arbitration. The Union and MPC 

chose Mr. Bill Corbett, a professor a't the University of Montana 

School of Law, as arbitrator and selected March 8, 1996 as the 

hearing date for the arbitration. 

Meanwhile, MPC, attempting to reduce its work force at 

Colstrip, Montana, posted an enhanced severance benefit plan (Plan) 

at that site. Mr. Morrison read the posting and approached MPC 

about taking advantage of the Plan. On February 5, 1996, Mr. 

Morrison and MPC reached an agreement concerning the Plan, which 

included a release by Mr. Morrison of "grievances" against MPC; the 

"grievances" referred to in the Plan were not specifically 

identified as grievances under the collective bargaining agreement. 

The Union was not a party to the Plan. 

On March 1, 1996, MPC filed a motion for summary judgment with 

the arbitrator. On March 4, 1996, counsel for the Union left a 

message with MPC's counsel stating that the Union's position was 

that the grievance filed on Mr. orriso on' s behalf "belonged to" the 

Union as a representative of all MPC employees and that this 
grievance required an interpretation of the collective bargaining 

agreement, which affected individuals beyond Mr. Morrison. On 

March 6, 1996, the attorneys had a telephone conversation in which 

they explained their clients' respective positions; MPCts counsel 

stated that MPC was considering going to court to enjoin the 

arbitration. 

On March 7, 1996, MPC filed a complaint seeking an alternative 

writ of prohibition, and went to court the same day to obtain the 

requested injunctive relief. The District Court granted the writ 

of prohibition, and set the matter for a show cause hearing on 

March 18, 1996. 

On March 15, 1996, the Union filed its answer to MPC's 

complaint and moved to dismiss for lack of subject matter 

jurisdiction and for failure to state a claim upon which relief can 

be granted. After the hearing, after the filing of post-hearing 

briefs, the court issued an order which denied the Union's motion 

to dismiss and which made permanent the initial writ of 

prohibition. The Union appeals. 

DISCUSSION 

Did the District Court lack jurisdiction to issue the writ of 

. prohibition? 

The relations between employers and labor unions is a field 

which is governed by federal law. Avco Corp. v. Aero Lodge No. 735 

(1968), 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (interpreting 

LMRA 5 301, 29 U,S,C, § 185). This Court stated in Miller v. 

County of Glacier (1993), 257 Mont. 422, 851 P.2d 401: 
Collective bargaining agreements must be interpreted by 

application of federal law, not state law. Teamsters 

Union v. Lucas Flour Co. (l962), 369 U.S. 95, 82 S.Ct. 

571, 7 L.Ed.2d 593. This is known as federal preemption 

under 5 301 of the Labor Management Relations Act of 1947 

(LMRA): Suits for violation of contracts between an 

employer and a labor organization representing employees 

in an industry affecting commerce as defined in this 

chapter, or between any such labor organizations, may be 

brought in any district court of the United States having 

jurisdiction of the parties, without respect to the 

amount in controversy or without regard to the 

citizenship of the parties. 61 Stat. 156, 29 U.S.C. § 

185 (a) (1988) . See also Foster v. Albertsons, Inc. 

(l992), 254 Mont. 117, 835 P.2d 720. The United States 

Supreme Court has interpreted 5 301 as a congressional 

mandate to develop a unified federal common law to 

address labor contract disputes.. [citation omitted.] 

Miller, 851 P.2d at 403 (emphasis added). The "unified federal 

common law" to which we referred in Miller provides that 

arbitrators, not the courts, should initially attempt to resolve 

disputes concerning the interpretation of collective bargaining 

agreements. See United Steelworkers of America v. American Mfg. 

Co. (l96O), 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United 

Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 

U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers of 

America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 80 

S.Ct. 1347, 4 L.Ed.2d 1409 (collectively known as the "Steelworkers 

Trilogy") ; see also Republic Steel Corp. v. Maddox (1965) , 379 U.S. 

While MPC recognizes the applicability of the foregoing 

principles in the appropriate circumstances, it argues that these 

circumstances are not present here. MPC contends that the issue 

here is simply whether the District Court properly resolved the 
contractual matter between MPC and Mr. Morrison. MPC asserts that 

a Montana district court can appropriately exercise jurisdiction 

over a private contract issue, a matter of state law wholly 

distinct from federal labor law. 

The Union, on the other hand, argues that interpretation of 

the Plan is incidental to and a necessary part of a full 

interpretation of the collective bargaining agreement, and 

therefore both interpretations are exclusively within the 

jurisdiction of the arbitrator; the Union contends that the 

arbitrator must determine whether the collective bargaining 

agreement permits Mr. Morrison to waive the Union's grievance 

through his unilateral action in accepting the Plan. The Union 

argues that federal common law clearly establishes that the 

District Court lacked jurisdiction to rule on this matter. We 

agree. 

The Plan and the provisions of the collective bargaining 

agreement are not facially mutually exclusive. The collective 

bargaining agreement must be interpreted to determine whether the 

grievance brought by the Union on Mr. Morrison's behalf can be 

waived through a written release to which only Mr. Morrison and MPC 

were parties. Therefore, the Plan must be interpreted also, to 

determine whether, as alleged by MPC, it waives the grievance which 

the Union filed on Mr. Morrison's behalf. In this respect, any 

interpretation of the Plan by the arbitrator would not be for the 

purpose of determining the rights of MPC and Mr. Morrison, the 

parties to the contract, but would be incidental to the primary 
inquiry, a determination of the overall meaning and effect of the 

collective bargaining agreement. In L.O. Koven & Brother, Inc. v. 

Local 5767, united Steelworkers of America (3rd Cir. l967), 381 

F.2d 196, the court stated: 

What remains in this case is the question of whether 

the effect of the release executed between an employer 

and a union regarding a claim governed by a collective 

bargaining agreement is ordinarily a matter for 

consideration by an arbitrator. There is scant authority 

on this point, but those cases touching upon this or 

related questions appear to view the arbitrability of 

release and settlement questions as obvious. [Citations 

omitted.] While interpreting the language of the release 

is not, strictly speaking, a matter of interpreting the 

collective bargaining contract, the process would also 

involve an examination of the negotiations and other 

events regarding the grievance which preceded execution 

of the release. This is a matter within the arbitrator's 

submission and to which he is expertly atuned [sic]. We 

thus believe that unless a release explicitly discharges 

the parties from the collective bargaining agreement 

itself, or from the ar-bi tra tion provisions thereof, that 

its effect should be determined by an arbitral forum. 

L.O. Koven, 381 F.2d at 204-05 (emphasis added) . We believe the 

principle explained in L.O. Koven is similarly applicable here. 

The effect of the Plan on the collective bargaining agreement, and 

of the collective bargaining agreement on the Plan, should be 

determined by the arbitrator. 

MPC does not claim that the grievance filed on Mr. Morrison's 

behalf is not arbitrable, according to the terms of the collective 

bargaining agreement; MPC claims instead that arbitrability of the 

grievance is precluded by the private contract entered into by MPC 

and Mr. Morrison. This is a procedural, rather than substantive, 

challenge to the arbitrability of the grievance. Once it has been 

determined, either by the parties or the court, that a grievance is 
arbitrable according to the collective bargaining agreement, 

subsequent procedural questions are wholly within the jurisdiction 

of the arbitrator. See, e. y., John Wiley & Sons, Inc. v 

Livingston (1964), 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898; 

International Union of Operating Engineers Local 150 v. Flair 

Builders, Inc. (1972) , 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248. 

While " [a1 substantive challenge to arbitrability is one where a 

grievance is not within the scope of the grievance and arbitration 

provisions of the collective bargaining agreement between the 

parties," Shopmen's Local 539 of International Assoc. of Bridge, 

Structural & Ornamental Ironworkers v. Mosher Steel Co. (11th Cir 

1986), 796 F.2d 1361, 1362, a procedural challenge is presented 

when the arbitrability of an indisputably arbitrable issue is 

impeded in some way. See Wilev, 376 U.S. at 558-59; Flair 

Builders, 406 U.S. at 491-92. In Lodge 862, International 

Association of Machinists and Aerospace Workers v. Safeguard 

Powertech Systems (D.S.D. 1985), 623 F. Supp. 608, the court 

stated, with respect to an issue which we deem analogous to the one 

raised in this case: 

Here the center of dispute between the parties is the 

existence of a settlement itself. Since "settlement" is 

not defined in the Agreement for purposes of determining 

when arbitration is proper, the dispute resolution 

procedures of the contract must be interpreted to 

determine whether the withdrawal of a grievance prior to 

arbitration is intended to preclude later arbitration of 

that issue. 

An examination of case law suggests that the 

procedural significance of withdrawal of Grievance # 125 

is a question for the arbitrator and not the court to 

decide. [Citations omitted.] 
Lodqe 862, 623 F. Supp. at 610, Here, the impediment to 

arbitrating the Mr, Morrison grievance is the Plan and Mr. 

Morrison s purported waiver of grievances against MPC; the center 

of dispute between the parties is the existence of a settlementu or 

a release under the Plan. The dispute is procedural, not 

substantive, and should be resolved by the arbitrator, not the 

court. 

We hold that interpretation of the Plan, intertwined as it 

is with the overall interpretation of the coZlective bargaining 

agreement, is subject in the first instance to the jurisdiction of 

the arbitrator. 

Reversed. 

We Concur: 

Chief Justice 

Justices 
Justice W. William Leaphart, specially concurring 

I concur in the result reached by the Court, however I would 

reach that result by holding that, under state law, a writ of 

prohibition does not lie against a private party. 

The District Court issued a writ of prohibition preventing the 

Union and the arbitrator, Mr. Corbett, from proceeding with the 

arbitration. The writ of prohibition is defined by statute in 

§ 27-27-101, MCA, as follows: 

Definition and function of writ of prohibition. The writ 

of prohibition is the counterpart of the writ of mandate. 

It arrests the proceedings of any tribunal, corporation, 

board, or person exercising judicial functions when such 

proceedings are without or in excess of the jurisdiction 

of such tribunal, corporation, board, or person. 

The writ of mandate is designed to compel the performance of 

an act "that the law specifically enjoins as a duty resulting from 

an office, trust, or station . . . . I' Section 27-26-102, MCA. 

Before a writ of mandate will issue, there must be clear legal duty 

imposed upon a person or official as a consequence of that person' s 

office, trust or station. As the counterpart of the writ of 

mandate, the writ of prohibition is designed to stop that same 

person from exceeding the jurisdiction conferred upon him or her by 

the applicable law. Although it may be argued that an arbitrator 

exercises a judicial function, he or she does not do so under the 

auspices of the state. The arbitrator acts pursuant to agreement 

between the parties, not pursuant to any statutory grant of 

jurisdiction attendant to an office, trust or station. 

In Kimble Properties v. Department of State Lands (1988), 231 

Mont. 54, 56, 750 P.2d 1095, 1096, we stated: "Before a writ of 
prohibition may be granted the parties seeking the writ must 

demonstrate that the acts by public officials are clearly unlawful. 

Section 27-27-101, MCA . . . . " Kimble Properties involved acts by 

a city and by the Department of State Lands. Although the "public 

officialu component was present in Kimble Properties, the Court 

concluded that neither the state nor the city acted outside their 

authority and thus a writ was not appropriate. Kimble Pro~erties, 

750 P.2d at 1096. 

In International Film Investors v. Arbitration Tribunal of 

Directors Guild (App. 2nd Dist. 1984), 199 Cal.Rptr. 690, 693, the 

plaintiff sought, through a writ of prohibition, to prevent the 

commencement of an arbitration proceeding. The court held that the 

writ is to enjoin judicial action in excess of jurisdiction, "[ilt 

does not lie to restrain the acts of an arbitrator." International 

Film, 199 Cal.Rptr. at 693. Likewise, in the present case, neither 

the Union nor the arbitrator are public officials exercising 

judicial functions. Thus they are not subject to a writ of 

prohibition 

Justice Charles E. Erdmann joins in the foregoing special 

concurrence.