NO. 96-281 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

INTERNATIONALBROTHERHOOD 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: ForAppellant: 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 9,1996Justice 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 (theUnion) 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 orderboth denied the Union'smotion to dismiss thewrit 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). TheUnion is a labor organization that representsMPC 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 arbitrationprocedure to resolve disputes regarding the terms of the collective bargaining agreement. 2On June 16, 1995, Mr. Morrison was transferred from a work

crewwhichworked 12-hourrotating shifts to a crew working 10-hour day shifts. Mr. Morrison brought this transfer to the attentionof the Union, which then filed a grievance on his behalf challenging the transferasaviolation of the collective bargainingagreement. 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 includeda releaseby Mr. Morrison of "grievances"againstMPC; the "grievances" referred to in the Plan were not specifically identifiedasgrievances under the collectivebargaining agreement. The Union was not a party to the Plan. OnMarch 1,1996,MPC filed amotion for summary judgmentwith the arbitrator. On March 4, 1996, counsel for the Union left a message with MPC's counsel stating that the Union'sposition was that the grievance filed onMr. 

### orriso on'sbehalf "belongedto"the Union as a representative of all MPC employees and that thisgrievance required an interpretation of the collective bargaining agreement, which affected individuals beyond Mr. Morrison. On March 6,1996,the attorneyshad 

### a telephone conversation 

### in which they explained their clients'respective positions; MPCtscounsel stated that MPC was considering going to court to enjoin the arbitration. OnMarch 7,1996,

### MPC filed a complaint seekingan 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 jurisdictionand for failure to state a claim uponwhich relief can be granted. After the hearing, after the filing of post-hearing briefs, 

### the court issued an order which denied the Union'smotion 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 interpretedby 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.2d593. This is known as federal preemption under 5 301 of the Labor Management RelationsAct 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,orbetween any such labor organizations,may be brought in any district court of theUnited 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..[citationomitted.] 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 SteelworkersofAmericav. EnterpriseWheel & 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.2d1409 (collectivelyknown as the "Steelworkers Trilogy"); seealsoRepublic 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 thecontractualmatter 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 awritten release towhich onlyMr. Morrison and MPC were parties. Therefore, the Plan must be interpreted also, to determinewhether, as allegedby

### 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 primaryinquiry, a determination of the overall meaning and effect of the collectivebargaining 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 questionof 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 anarbitrator. 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 amatter within the arbitrator's submission and to which he is expertly atuned [sic]. We thusbelieve that unless a release explicitlydischarges the parties from the collective bargaining agreement itself, or from the ar-bi trationprovisions thereof, that its effect shouldbe 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 onMr. Morrison's behalf is not arbitrable,according to the terms of the collective bargaining agreement;MPC claims instead that arbitrability of the grievance isprecluded by the private contract entered intoby MPC and Mr. Morrison. This is a procedural, rather than substantive, challenge to the arbitrability of the grievance. Once it has been determined,eitherby the parties or the court,that a grievance isarbitrable according to the collective bargaining agreement, subsequent procedural questionsarewholly 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)

### , 406U.S.487, 92 S.Ct.1710,32L.Ed.2d248. While " [a1 substantive challenge to arbitrability is one where a grievance isnot 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 Ironworkersv. Mosher Steel Co. (11thCir 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 issuewhichwe 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 forpurposes of determining when arbitration is proper, the dispute resolution procedures of the contract must be interpreted to determinewhether the withdrawal of a grievance prior to arbitration is intended topreclude 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 disputebetween the parties is the existence of a settlementuor 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 jurisdictionof the arbitrator. Reversed.

We Concur:

Chief Justice

JusticesJustice 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 DistrictCourt issuedawrit 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 ofprohibition. Thewrit of prohibition is the counterpart of the writ ofmandate. It arrests the proceedings of any tribunal, corporation, board, orperson exercising judicial functionswhen such proceedings arewithout 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 specificallyenjoins as a duty resulting from

an office, trust, or station



### . . . . I' Section 27-26-102,MCA. Before awrit of mandatewill issue,theremust be clear legal duty imposed upon aperson or official as a consequenceof 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 fromexceeding the jurisdictionconferreduponhim orher 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 jurisdictionattendant to an office, trust or station. InKimble Propertiesv.Department of State Lands (1988),231 Mont. 54, 56, 750 P.2d 1095, 1096,we stated: "Before a writ ofprohibition may be granted the parties seeking the writ must demonstrate that the actsby public officialsare clearlyunlawful. Section 27-27-101,MCA 

### . . . 

## ." Kimble Properties involved actsby 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 commencementof anarbitration 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.