No. 14557 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado Corporation, Plaintiff and Respondent,

THE COMMISSIONER OF LABOR AND INDUSTRY OF THE STATE OF MONTANA etal., Defendants and Appellants.

Appeal from: DistrictCourt of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellants: Rosemary B. Zion argued, Helena, Montana Clay Smith argued, Denver, Colorado James Gardner, Helena, Montana For Respondent: Hughes, Bennett and Cain, Helena, Montana John F. Sullivan argued, Helena, Montana

Submitted: September 19, 1979 Decided: I 

### 1979Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This litigation originated as an administrative proceeding in the state Departmentof Labor and Industry. The decision of the administrative hearing was adverse to Mountain States Telephone and Telegraph Company (hereinafter "Mountain Bell") and judicial review and declaratory relief

were sought. The District Court of the First Judicial District, Lewis and Clark County, entered judgment for Mountain Bell remanding the parties to the administrative level where the originalproceeding could be dismissed. Appellants appeal from that judgment, and Mountain Bell, as respondent, cross-appeals from certain dicta included in the District Court opinion. Mountain Bell is a Colorado corporation engaged in interstate commerce throughout the Rocky Mountain west, including Montana. It is a signatory to a collectivebargaining agreement with the Communication Workers of America

(CWA),a labor union. This agreementprovides that an employee may request up to one year's maternity leave but may receiveno benefits during pregnancy except death benefits.Rae Bauer, a member of CWA,was an operator for Mountain Bell in Great Falls,Montana, and had been so employed since 1973. She became pregnant in the spring 

### of 1975. Because of a past history of gynecological problems and on the advice of her doctor, she began a leave of absence on October 15, 1975. She gave birth on January 20, 1976,but did not return to work until October 11, 1976. Under the Mountain Bell disability benefits plan, she

was clearly ineligible for compensation for the pregnancyleave taken. The company traditionally denied disability benefits for pregnancy-related conditions. On February 11, 1976,Rae Bauer filed a complaintunder theMaternity Leave Act of the State of Montana, section 41- 2601 et. seq., R.C.M. 1947, now section 39-7-201 et seq., MCA, alleging that shewas entitled to certainmaternity leave benefits. After an administrative hearing, it was found that the Department of Labor and Industry had jurisdiction over thematter. As a result of a second administrative hearing, the claim for benefits was dismissed. All parties excepted to the result of this hearing. The commissioner issued a decision which, in effect, said the Maternity LeaveAct governed the situation and that benefits were payable. In so holding, the commissioner rejected Mountain Bell's argument that either the federal Employee Retirement Income SecurityAct of 1974 (ERISA) or the Labor Management Relation Act of 1947,as amended (LMRA),preempted the state law. Further,under the state act, the phrase "disabledas a result of pregnancy" meant all disabilitiesrelated to pregnancy and thatpregnancy meant both pre- and postchildbirth conditions. The next day, the commissioner adopted the decision aspart of the department's administrative rules. Mountain Bell subsequently sought judicial review of the decision aswell as to have the rules of the department declared invalid. On August 17, 1978, the District Court concluded that the federal laws did preempt the operation of the state law and that the state law was unenforceable againstMountain Bell. From that portion of the court's ruling, appellants appeal. By way of dicta, the ~istrict Court opinion said, for intrastate enterprises, the statelaw required that benefits be paid for all pregnancy-related occurrences,whether normal or abnormal, and that the statute applied from the beginning of disability through the termination of gestation and for a reasonable time afterwards. From this portion of the opinion,Mountain Bell crossappeals. The following issueshave been presented to this Court for review: 1. Does either the Employee Retirement Income Security Act of 1974, 29 U.S.C. SlOOl et seq., or the Labor Management RelationsAct of 1947,as amended, 29 U.S.C. S141 et seq., preempt the application of section 39-7-203(3), MCA, of the Montana Maternity Leave Act to respondent/crossappellant, the Mountain States Telephone and Telegraph Company? 2. Whether the above Montana statutemust be construed to confer benefits for normal and abnormalpregnancy disabilities and to pre- and post-childbirth conditions? Appellants/cross-respondents' position can be summarized

as follows: (1)The Montana Maternity Leave Act is not preempted by the Employee Retirement Income SecurityAct or by federal labor laws. (2)Congressdid not intend to legislatewithin ERISA

on employmentdiscrimination. Regulation of this field was left subject to Title VII of the Civil Rights Act of 1964. ERISA does not affect the operation of Title VII. (3) TitleVII is based upon a model of state and federal cooperation. Itprovides for deferral to state anti-discrimination agencies of TitleVII complaints and protects state lawswhich do not conflict with TitleVII from preemption by thatAct.(4)These provisions are part of a congressionalpurpose to encourage the development of state anti-discrimination laws* 

### his purpose, which is essential to TitleVII, would be impaired if ERISA were held to prohibit states from enacting anti-discrimination laws such as the Maternity LeaveAct. (5)~itle VII affirmatively protects state anti-discrimination laws from preemption. Operation of local laws is an integral part of legislative scheme of Title VII. (6)The United States Supreme Court has refused to find preemption in areaswhere Congress has intended to foster cooperation. 

### (7)The recent enactment of the Pregnancy Disability Act, a law amending Title VII, specifically overturned General Electric Co. v. Gilbert (1976),429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, and made it clear that Congress did not preempt statepregnancy disability laws by enacting ERISA. (8)Federal labor laws do not preempt the Montana Maternity Leave Act. Applying a balancing test, the interest of the state in providing economic protection to its women workers clearly outweighs any implied incursions into the territory occupied by NLRA/LMRA. (9)TitleVII also protects the Montana statute from preemption by federal labor law. (10)The statutory protection afforded by Title VII and the Montana Maternity Leave Act are in the nature of an independent right and cannotbe waived through collective bargaining. (11) There is a presumption in favor of the validity of state statutes which deal with an area of traditional state

concern.(12)The Montana Maternity Leave Act clearly applies to all periods of disability occurring as a result of pregnancy, whether these periods of disability are normal or unusual, and regardless of whether they occur before or after childbirth. Respondent/cross-appellant takes a generally contrary position. The Equal Employment Opportunity Commission, appearing by amicus brief, argues that state fair employment laws such

as section 39-7-201 et seq., MCA, are not preempted by ERISA for the reasons stated in Bucyrus-Erie Cq.v. Department of Industry, Etc. (7thCir. 1979), 599 F.2d 205, and for the

reasons stated in the briefs of appellants/cross-respondents.

ERISA PREEMPTION -- OF THE MONTANA ACT The first issue facing this Court iswhether section 39-7-203(3), MCA, ispreempted by the Employee Retirement Income SecurityAct (ERISA,

### P.L. 93-406, 88 Stat. 897, enacted September 2, 1974, and in particular 5514 thereof, codified as 29 U.S.C. 51144 and referred to herein as 51144). Section 39-7-203(3),MCA, of the Montana Maternity Leave Act, provides in pertinent part: "It shall be unlawful for an employer or his agent to:

"(3) deny to the employee who is disabled as a result of pregnancy any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plansmaintained by her employer 

# .

# . ." The preemption provision of ERISA, 29 U.S.C. 51144(a), provides inpertinentpart:

### "(a)except asprovided in subsection (b) of this section, the provisions of this subchapter



# . .. shall supersede any and allState laws insofar asthey may now or hereafter relate to any employee benefit plan described insection 1003(a)of this title

# . .."

29 U.S.C. 51003(a)makes the above section applicable toany benefitplan established ormaintained by any employer engaged ininterstate commerce. There isno dispute that Mountain Bellisengaged ininterstate commerce nor is there any dispute thatMountain Bell's employee benefit plan is covered by ERISA. Mountain Bellargues, and the DistrictCourt held, that the federal government has clearly and unambiguously occupied the fieldwith respect toemployee health and welfare benefitsand has preempted the states from inany way regulating such benefits other than by the specific exemptions provided in29 U.S.C. 51144(b), exemptions which admittedly do not apply here. Appellants do not agree. They contend that the Montana statute isexempted from ERISA preemption by 29 U.S.C. §1144(d), which declares, "[nlothing inthis subchapter shallbe construed toalter, amend, modify, invalidate, impair or supersede any law of the United States

# . .. "1 in conjunctionwith 42 U.S.C. 52000e-7 (section 708 inTitle VII, P.L. 88-352, Civil RightsAct of 1964, 78 Stat. 2621, which provides, "[nlothing inthis subchapter shallbe deemed toexempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State

# .

# .." Appellants argue thatto allowpreemption of the Montana Maternity Leave Act by subsection (a)of 29 U.S.C. S1144 would be toviolate subsection (d) of that statuteby impairing a law of the united States (the 1964 Civil RightsAct) by relieving ~ountain Bellfrom its liabilityunder the Montana Act.Appellants further contend that by permitting ERISA preemption, two other sections of the Civil Rights Act would be impaired. They are 42 U.S.C. S2000e-5(c) (section706, Title VII, P.L. 88-352, 78 Stat. 259, which provides for deferral of federal action in equal employment opportunity

cases for 

### a period of sixty days to permit the commencement of proceedings under state law) and 42 U.S.C. S2000h-4

(section 1104, Title XI, 78 Stat. 268, which provides: "[nlothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless suchprovision is inconsistent with any of the purposes of this Act or any provision thereof"). In effect, appellants argue that if the Montana Act is preempted, the above sectionsof the Civil Rights Act will be delimited. Although appellants' arguments found little solace in the District Court's opinion, similar argumentshave found support in other jurisdictions: Goodyear Tire & Rubber v. Dept. of Industry (1978), 87Wis.2d 56, 273 N.W.2d 786; Bucyrus-Erie Co. v. Dept. of Industry (E.D. Wisc. 1978), 453 F.Supp. 75, aff'd, (7thCir. 1979), 599 F.2d 205; Illinois Bell Tel. Co. 

### v. Fair Employment Practices Commission (1979), 68 111.App.3d 829, 25 111.Dec. 328, 386 N.E.2d 599; Westinghouse Elec. Corp. v. State Human RightsAppeals Board (1978), 60A.D.2d 943, 401N.Y.S.2d 597; Liberty Mutual Insurance Company v. State Division of Human Rights (1978), 61A.D.2d 822, 402N.Y.S.2d 218; Lukus v. Westinghouse Electric Corp.,NO. GD77-14803 (Ct. of Common Pleas for Allegheny County, Pa., April 20, 1978 (unpublishedopinion);Time Insurance Co. v. Department of Industry,Labor and Human Relations, No. 145-423, (~t. of Dane County,Wisc., January 3, 1978), 16 BNA FEP 391. Although not dealing with facts similar to the instant case, a number of courts have interpreted the preemption provision in its "broadestsense." SeeWadsworth v. Whaland

(1stCir. 1977), 562 F.2d 70; Standard Oil Co. of California

v. Agsalud (N.D. Cal. 1977), 442 F.Supp. 695, 706-07; Bell

v. Employee Security BenefitAss'n (D.Kan. 1977), 437 F.Supp. 382, 385-88;Wayne Chemical

### v. ColumbusAgency Service Corp. (N.D. Ind. 1977), 426 F.Supp. 316, 321, aff'd

asmodified, (7thCir. 1977), 567 F.2d 692;Hewlett-Packard Co. v. Barnes (N.D. Cal. 1977), 425 F.Supp. 1294, aff'd,

(9thCir. 1978), 571 F.2d 502;Azzaro v. Harnett (S.D. N.Y. 1976), 414 F.Supp. 473, 474, aff'd, (2ndCir. 1977), 553 F.2d 93, cert. denied, (1977),434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82;National Carriers Conf. Com. 

### v. Heffernan (D. Conn. 1978), 454 F.Supp. 914, 918; Francis

### v. united Technologies Corp. (N.D. Cal. 1978), 458 F.Supp. 84. But see, InsurersAction Council, Inc. 

### v. Heaton (D. Minn. 1976), 423 F.Supp. 921, 926. It is interesting to note that althoughWadsworth and Bell favored broad preemption by ERISA, they both held that the individual statutesbefore them were spared from exemption, albeit by the specific ERISA provision sparing state laws regulating insurance from preemption. Further,Wayne Chemical, while finding preemption, incorporated the state statute in question into the federal common law of employee benefit plans. Hewlett-Packard and Azzaro, on the otherhand, found broad preemption. The state laws inthese two cases, however, concerned areas regulated by ERISA. There area number of cases on point where a state law prohibiting discrimination inthe provision of disability benefits topregnant workers is involved. While there is a splitof authority, themajority of opinions todate have found no federalpreemption of the state law. Gast v. State, by and through Stevenson (1978), 36 0r.App. 441, 585 P.2d 12; Goodyear Tire & Rubber v. Dept. of Industry, supra; Bucyrus-Erie Co. v. Dept. of Industry, supra; Illinois Bell Tel. Co. v. Fair Employment Practices Commission, supra; Westinghouse Elec. Corp. v. StateHuman Rights Appeals Board, supra; LibertyMutual Insurance Co. v. StateDivision of Human Rights, supra; Lukus v. Westinghouse Electric Corp., supra; Time Insurance Co. v. DILHR, supra. Contra, Stateof Minnesota v. MMM Co., Department of Human Rights Decision, Minn., September 16, 1977; Pervel Industries v. Stateof Conn. (D. Conn. 1978), 468 F.Supp. 490; American Chain and Cable Co., Inc. v. Iowa Civil Rights Commission, CE 6-2938 (PolkDistrictCounty Ct., Iowa, June 28, 1978) (unpublished opinion). Several of the above decisions have adopted the view taken by appellants herein--that Title VIIprotects state statutes from preemption by ERISA. The Federal District Court in~ucyrus-Erie,supra, analyzed the interrelationshipof TitleVII, ERISA, and the Wisconsin pregnancy disability law. The court found that while ERISA dealswith employee benefit plans, theisc cons in Fair Employment Actdoes not specifically address such private employee benefits plans: "Rather, thisActis designed toprohibit discrimination inemployment and isgrounded on the state's police power. It does not impinge

on federal regulation of employee benefit plans." 453

The court further found that although ERISA supersedes state laws relating to employee benefit plans, itdoes not expressly provide that all state fair employment laws are likewise superseded: "The legislative history of the Act fails to indicate that Congress,by enacting ERISA, intended to preempt state fair employment laws as they may concern employee benefit plans. "Section 1144(d) does, in fact,provide that ERISA shall not be construed to alter,modify or supersede any law of the United States. "TitleVII of the Civil Rights Act of 1964, 42U.S.C. 8 2000e, et seq., as amended, expressly preserves state laws such as the Wisconsin Fair EmploymentAct which are designed to prohibit employmentdiscrimination. 42 U.S.C. SB 2000e-7 and 2000h-4. "TitleVII specifically provides that no charge may be filed with the EEOC under Title VII until sixty days after proceedings have been commenced under the state employmentdiscrimination law, 42U.S.C. S 2000e-5(c), 5(d) and 5(e). The EEOC must give substantialweight to state agency findings and orders and must cooperate with such agencies. 42U.S.C. SS 2000e-5(b)

## , 2000e-8. "Froman examination of the provisions of ERISA and its legislativehistory, and considering Congress' long-standing recognition of the importance of state employmentdiscrimination laws, this Court finds that it is not clear that Congress intended to preempt the Wisconsin Fair EmploymentAct insofar as it prohibits sex discrimination in employee benefitplans. "Becausepreemption isnot clearly mandated in this Court's opinion, this Courtdeclines to invalidate the Wisconsin Fair EmploymentAct against a claim of federal preemption grounded on ERISA. To hold otherwise,would also seriously impair the enforcement scheme of Title VII of the Civil Rights Act of 1964." BucyrusErie, 453 F.Supp. at 79.The court inGoodyear Tire & Rubber v. Dept. of Industry, supra, used a similar rationale inconcluding that the exemption contained in S1144(d) applies toTitleVII of the Civil RightsAct and through TitleVII to section 111.32 (5)(g)of theWisconsin Fair Employment Act so as topreserve it from ERISA preemption: "There isno question but thatprior toERISA, sec. 111.32(5) (g)

## , Stats., was consistent with TitleVIIwhich, like theWisconsin statute, prohibited sex discrimination inemployment. 42 U.S.C. sec. 2000e-2 (a)(1). The Wisconsin statutetherefore survived and was not preempted by TitleVII. More precisely, and in thewords of 42 U.S.C. sec. 2000h-4, there was no 'intent on the part of Congress tooccupy the field



# . .. (of sex discrimination inemployment)



# . . . tothe exclusion of' Wisconsin's lawon the same subject. "And there isno question but that TitleVII survives intactthe preemption provisions of ERISA by virtueof sec. 1144(d). "If sec. 111.32(5)(g),Stats., survived Title VII, and if the latter survives ERISA, then the logic of the federal statutes compels the conclusion that sec. 111.32(5)(g) survives ERISA." Goodyear, 273 N.W.2d at795. The court rejected an argument (similar toone made here by Mountain Bell) by Goodyear that: 

# ".

.. sec. 111.32(5)(g),Stats., survives only TitleVIIand ispreempted as to employee benefitplans because the exemption from preemption is limited toTitleVII. The argument isbased upon the opening words of 42 U.S.C. S2000h-4, 'Nothing contained inany title of thisAct shall be construed 

# .. .' as preempting state laws and, the argument continues, 'other federal statutes' may work preemption. The 'other federal statute' involved, however, is sec. 1144(d)of ERISA which tells us, ineffect, that nothing inTitle VII shallbe construed asaltered, amended, modified, invalidated, impaired or superseded by ERISA. If we aretoadopt Goodyear's view of ERISA, an exception astoemployee benefitplans must be found in42 U.S.C. 52000h-4 of TitleVII. That exception does not appear on the face of 42 U.S.C. S2000h-4. Such an exceptionwould have tobe based upon an implied amendment of TitleVIIresulting from the adoption of ERISA, and would be contrary to sec. 1144(d) of ERISA."Goodyear argues itwould be a nonsequitur for Congress broadly to declare that state laws are preempted and then to permit the states to regulate employee benefit plans through the mechanism of a different federal statute. But the fact is that Congress declared in sec. 1144(d) of ERISA that federal laws remain unchanged after ERISA and TitleVII continues to permit states to prohibit sex discrimination in employment." Goodyear, 273 N.W.2d at 795-96. In Liberty Mutual Insurance Company v. State ~ivision of Human Rights, supra, the court reviewed a determination by the State Human Rights Appeal Board affirming an administrative finding that an employer had discriminated against the complainant on the basis of her sex through disallowance of pregnancy-related benefits and stated: 

# ".

. .Although the Congress fashioned a broad preemptive policy when itpassed ERISA (see U.S. Code, tit. 29, 5 1144[al), the legislative history behind the passage of the retirement program leadsus to conclude that Congress did not intend to narrow the jurisdiction of those Federal and State agencieswhose duty it is to regulateunlawful employment practices. The statementsof SenatorWalter Mondale and Representative Bella Abzug,made in their respective Houses of Congress, indicate that anti-discrimination amendments to the ERISA legislation were only withdrawn upon assurance from the ERISA draftsmen that discrimination claimswould continue to fall within the jurisdiction of the Equal Employment Opportunity Commission under terms of existing law (see119 Cong.Rec. S30409- 10 [Sept. 19, 19731; 120 Cong.Rec. H4726 [Feb. 28, 19741). Thus, it is clear that Congress did not intend to disturb the established structures for administering such claims. Since title VII of the Civil Rights Act has clearly not been impaired by ERISA (seeU.S. Code, tit. 29, 51144 [dl;U.S. Code, tit. 42, §2000e-7), and since it vests concurrent jurisdiction in the Equal EmploymentOpportunity Commission and similar State-level agencies to investigate these claims

(see,e.g. U.S. Code, tit. 42, SS2000e-4[gl[ll 2000e-7), we find that the jurisdiction of the State Division of Human Rights was not preempted by ERISA." Liberty Mutual, 402N.Y.S.2d at 219. To the same effect as the above three cases are Lukus

v. Westinghouse Electric Corp., supra, and Illinois Bell Tel. Co. v. Fair Employment Practices Commission, supra.In Gast, supra, the court reviewed the history of ERISA

as well as its substantive provisions and concluded there

was no broad intent to preempt substantive provisions such

as the Oregon pregnancy law: "The subject matter of ERISA does not compel the conclusion that Congress intended to preempt states in regulating such things as pregnancy benefits. The scope of the regulatory scheme embodied in ERISA is limited, particularly with respect to health and welfare benefits. The statutory purposes enumerated in 29 U.S.C. 51001 are: (1) to require disclosure and reporting to beneficiaries; (2) to ensure that employee pension benefit programs are adequately funded; (3) to improve the equities of pension plans; and (4)to establish 'minimum standards 

## * 

## * * assuring 

## * * 

## * their finanacial soundness.'

"More significantly, there is no suggestion in the statute that Congress intended to regulate the substance of health and welfare benefits or themanner in which such benefits are to be provided. Thus, if we are to adopt the construction of 29 U.S.C. 51144(a) advanced by plaintiffs we must import to Congressnot only an intent to preempt state law,but also an intent to cease all governmental regulation, state or federal, other than the disclosure and fiduciary requirements of health and welfare benefits paid by employers or employee organizations. There is nothing in the legislative history suggesting such an intent. To the contrary, the legislative history indicates Congress was concerned with the inadequacy of governmental regulationsand concluded that there should be at leastminimum federal standardswith respect to disclosure and fiduciary responsibility. See, e.g., 29 U.S.C. S1001." Gast, 585 P.2d at 20-21. Although holding againstpreemption, the court, citing General Electric v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 3Brdid not accept the argument that Title VII spared the state act frompreemption. In Time InsuranceCo. v. DILHR, supra, the court also concluded thatWisconsin's pregnancy disability statutewas notwithin the field of lawpreempted by ERISA. It held that the state law concerned:

# ".

. . is a statute broad in scope grounded on the State's police power to prevent employers engaging in any employmentpractice which discriminates because of sex. It in no way impinges on federal regulation of employee benefit and pension plans. The sex discrimination prohibitions of the Wisconsin Fair Employment Law are merely of peripheral concern of ERISA. Until the United States Supreme Court rules to the contrary, this Court is of the Opinion thatWisconsin courts so long as there exists a rational doubt that preemption exists, should uphold validity of sec. 111.32(5)(g), Stats., against a claim of federalpreemption grounded on ERISA." 16 BNA FEP cases at 396. While the nonpreemption view appears to be in the majority, not allmaternity leave cases agree with the one quoted above. InAmerican Chain and Cable Co., Inc. v. Iowa Civil Rights Commission, supra, the Iowa court held that according to General Electric v. Gilbert, supra, and under Iowa law, an employer's disability benefit plan which specifically excluded disabilities due to pregnancy did not discriminate againstwomen nor violate state or federal civil rights laws. The court also summarily concluded that ERISA had preempted the field. Similarly, the court in Pervel Industriesv. State of Connecticut (D. Conn. 1978), 468 F.Supp. 490,rejected the double savings clause rationale that Title VII protected Connecticut's anti-discrimination law from preemption: "This Court does not accept the reasoning of this double savings clause contention. Section 514(d) of ERISA preserves federal law. Connecticut's anti-discrimination lawdoes not become a federal law simply because Title VII preserves its validity as against a claim of preemption by TitleVII. Nor is the textual argument significantly enhanced by focusing on §514(b)'s requirement that ERISA should not be construed to 'impair' any law of the United States. Preemption of Conn. Gen. Stat. S31-126(g) by ERISA does not impair any federal law. Title VII did not create new authority for state anti-discrimination laws; it simply left them where they were before the enactmentof TitleVII. Whatever isprohibited by Title VII remains prohi-bited under ERISA but exclusion of disability benefits for pregnancy does not violate Title VII. 

# .." Pervel Industries, 468 F.Supp. at 493. As stated earlier, the nonpreemption viewpoint, as espoused by appellants, is favored by the majority of cases involving such maternity discrimination statutes. All the cases, however, rely on some, albeit varied, interpretation of how Title VII, ERISA, General Electric v. Gilbert, supra, and state laws interact. The parties agree that "potential problems of discrimination in employee benefit plans were not intended to be dealtwith by ERISA," but were intended to be dealt with by Title VII of the Civil Rights Act of 1964. This iswhere the agreement ends, however, with Mountain Bell contending that under General Electric v. Gilbert, supra, itwas not

sex discrimination within the meaning of Title VII for an employer to exclude pregnancy disability benefits from coverage under employee plans, and appellants contending that the stateswere permitted to regulate employee benefit plans in the area of discrimination. Mountain Bell's position fails to take into account the rather checkered history of Gilbert, including the recent significantaddition to TitleVII demonstrating a contrary congressional intent, and the cases decided after Gilbert, demonstrating a consistent refusal on the part of the majority of the courts to followGilbert. An excellent discussion of this history is set out in IllinoisBell Tel. Co. v. Fair Employment Practices Commission, supra: "OnOctober 31, 1978 section 701(k) of the Civil Rights Act of 1964 was signed into law adding a definition to the Act which demands a view of the statute from a different perspective,providing, in pertinentpart:"'The terms "becauseof sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions;and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise.' "The language of section 701(k) makes clear that Congressdisagreed with the interpretationplaced upon the pregnancy discrimination issue by the Gilbert decision. This inference is buttressed by the commentary set forth in the Report of the Committee on Education and Labor of the House of Representatives which stated, in part: "'It is the Committee's view that

## * * * dissenting justices [Brennan,Marshal and Stevens in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 3431 correctly interpreted the act. 

## * 

## * * We recognize that the enactment of H.R. 6075will reflect no new legislative mandate of the Congress nor affect changes in practices, costs, or benefits beyond those intended by title VII of the Civil Rights Act.' U.S. Code Cong. & Admin. News 1978,pp. 4749, 4750. "Even in the absence of section 701(k) of Title VII, recent cases from other jurisdictions, which were decided after the Gilbert decision by the Supreme Court and after the decision of the trial court herein, almost unanimously support the conclusion we reach. (Massachusetts Electric Co. v. Massachusetts Cornm'n Against Discrim. (Mass. 1978), 375 N.E.2d 1192; Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n

(Iowa1978), 268 N-W.2d 862; Castellano v. Linden Board of Education (1978),158N.J.Super. 350, 386 A.2d 396; Anderson v. Upper Bucks County Area Vocational Tech. School (1977), 30 Pa.Cmwlth. 103, 373A.2d 126.) (Contra:Narragansett Electric Co. v. Rhode Island Comm'n for Human Rights (R.I. 1977), 374A.2d 1022;Group Hosp., Inc. V. Dist. of Columbia Comm'n on Human Rights (D.C. 1977), 380A.2d 170.) Decisions by courts in other states,preceding that of the circuit court of Cook County herein, deciding contrary to its conclusion, include Brooklyn Union Gas Co. v. N. Y. State Human Rights Appeal Board (1976), 41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393; Ray0-Vac v. Wisconsin Dept. of Industry, Labor & Human Relations (1975), 70Wis.2d 919, 236 N.W.2d 209; Cedar Rapids School Dist. v. Parr (IowaSup. Ct. 1975), 227N.W.2d 486. See also Comment, Love's Labor Lost: New Conceptions of MaternityLeave, 7Harv.Civ.Rights-Civ.Lib.L.Rev. 260 (1972);Johnston,Sex Discriminationand the Supreme Court--1971-1974, 49 N.Y.S.L.Rev. 672

(1974);Comment, Pregnancy and the Constitution: The Uniqueness Trap, 62Calif. L.Rev. 1532 (1974); Comment,Geduldig v. Aiello: Pregnancy Classifications and the Definition of Sex Discrimination, 75 Colum.L.Rev. 441 (1975);Comment, Pregnancy and Employment Benefits, 27 Baylor L.Rev. 767 (1975). "Representativeof the viewpoints expressed by the foregoing authorities is the well-reasoned opinion inMassachusetts Electric Co. v. Massachusetts Comm'n Against Discrim. (Mass. 1978), 375N.E.2d 1192which held (375N.E.2d at 1198- 99): "'In considering whether the exclusion of benefits for pregnancy-related disabilities from a comprehensive disabilityplan violates G.L. c. 151B, 84, the initial inquiry necessarily involves determining whether distinctions based on pregnancy are sex-linked classifications. Pregnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus, any classification which relies on pregnancy as the determinative criterion is a distinction based on sex. General Elec. Co. v. Gilbert, 429 U.S. 125, 149, 97 S.Ct. 401, 414, 50 L.Ed.2d 343 (1976) (Brennan, J., dissenting) ("Surelyit offends common sense to suggest

# . .

# . that a classification revolving around pregnancy is not, at the minimum, strongly 'sex related'"). Id. at 161-162, 97 S.Ct. at 421 (Stevens,J., dissenting) ("By definition

# . . . [placingpregnancy in a class by itself] discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male"). Gilbert v. General Elec. Co., 375 F.Supp. 367, 381 (E.D. Va. 1974), reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) ("[pregnancy] is undisputed[ly] and inextricably sex-linked.



# .

# ..That [exclusionof pregnancy-related disabilities] is discriminatory by reason of sex is self evident"). See Black v. School Comm. of Malden, 365Mass. 197, 209-211, 310 ~.E.2d 330 (1974). "'The exclusion of pregnancy-related disabilities, a sex-based distinction, from a comprehensive disability plan constitutesdiscrimination. While men are provided comprehensive coverage for all disabilities which will necessitate their absence fromwork, includingmale-specific disabilities, women are not provided the assurance of comprehensiveprotection from the inability to earn income during a period of disability. 

## * * * (Citationsomitted.) Pregnancy exclusionsin disability programs "both financiallyburden women workers and act to break down the continuity of the employment relationship, thereby exacerbating women's comparative transient role in the labor force". 

## * * * (Citationsomitted.) Moreover, pregnancy exclusions reflect and perpetuate the stereotype that women belong at home raising a family rather than at a job as permanentmembers of the work force. 

## * 

## * *I (Citations omitted.) "It is also noteworthy that the decisions of the six federal courts of appeal which predate General Electric Co. v. Gilbert (1976),429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, concordantly concluded that pregnancy exclusionsviolated Title VII and constituted unlawful sex discrimination. Communications Workers v. American Telephone & Telegraph Company (2ndCir. 1975), 513 F.2d 1024,vacated, 429 U.S. 1033, 97 S.Ct. 724, 50 L.Ed.2d 744 (1977); Wetzel v. Liberty Mutual Insurance Co. (3dCir. 1975), 511 F.2d 199,vacated, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976);Gilbert v. General Electric Co. (4thCir. 1975), 519 F.2d 661, reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Satty v. Nashville Gas Co. (6thCir. 1975), 522 F.2d 850,vacated in part, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977);Hutchison v. Lake Oswego School Dist. (9thCir. 1975), 519 F.2d 961,vacated, 429 U.S. 1033, 97 S.Ct. 725, 50 ~.Ed.2d 744 (1977). "Since its decision in Gilbert, it appears that the Supreme Court has itself retreated from its position in two cases treating pregnancy-employment problems with a somewhat different outlook.

(NashvilleGas Co. v. Satty (1977), 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356; City of Los Angeles, Dept. of Water v. Manhart (1977), 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657.) Especially to be noted is the concurring opinion of Mr. Justice Blackmun in Manhart." IllinoisBell, supra, 386 N.E.2d at 601-03. The above history indicates Congress originally intended to protect against sex discrimination in employment under TitleVII. This, coupled with the fact that the Equal Employment Opportunity Commission guideline overturned in Gilbertwas still in effect when ERISA was being considered, indicates that Congress did not intend to preempt employment discriminationactswhich tangentially affect employee benefit plans because ithad already attempted to do so under TitleVII.Mountain Bell argues that statementsmade by Senators Javits and Williams, the principal architects of ERISA, concerning the impact of ERISA upon the Age Discrimination in EmploymentAct Amendments of 1978, P.L. 95-256, 92 Stat. 189 (1978), amending the Age Discrimination in Employment Act of 1967, 29 U.S.C. SS621-634, are entitled to substantial weight in interpreting ERISA, in that they reflectupon the legislative intent of an earlier statute through subsequently enacted legislation. Goodyear made a similar argument in Goodyear Tire & Rubber v. Dept. of Industry, supra. The court there rejected the argument, stating: "That senatorial colloquy occurred more than three years after ERISA was enacted. Legislative observationsyears after passage of the Act are not part of its legislative history. United Air Lines, Inc. v. McMann, 434 U.S. 192, 200, footnote 7, 98 S.Ct. 444, 54 L.Ed.2d 444 (1977). Our constructionof ERISA is not foreclosed because members of Congress express contrary views after its passage. United States

### v. PhiladelphiaNat. Bank, 374 U.S. 321, 384, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). The Age Discrimination in EmploymentAct Amendments of 1978do not amend, clarify or attempt to clarify ERISA. Goodyear's reliance upon Red Lion Broadcasting Co. v. F.C.C., 394 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1968),is therefore misplaced, for in 

### -- Red Lion the court said, 'Subsequent legislation declaring

## the intent[ion] of an earlier statute is entitled to great weight- in statutory construction.' (394U.S. 381, 89 S.Ct. 1801, emphasis added.)" 273 N.W.2d at 797. It iswell settled that the question of whether a state statute is invalid under the supremacy clause depends upon the intent of Congress. Malone v. White Motor Corp. (1978), 435U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443. It is also well settled that state statutes are presumed to be valid unless Congress clearly intended these statutes to be superseded by federal law. Jonesv. Rath Packing Co. (1977), 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604;Motor Coach Employees

V. Lockridge (1971), 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d473; E'lorida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248. As stated earlier: "The subject matter of ERISA does not compel the conclusion that Congress intended to preempt states in regulating such things as pregnancy benefits. The scope of the regulatory scheme embodied in ERISA is limited,particularly with respect to health and welfare benefits. The statutory purposes enumerated in 29 U.S.C. SlOOl are: (1) to require disclosure and reporting to beneficiaries; (2) to ensure that employeepension benefit programs are adequately funded; (3) to improve the equities of pension plans; and (4)to establish 'minimum standards

## * * * assuring 

## * 

## * * their financial soundness.'" Gast, 585 P.2d at 20. There isnothing in ERISAwhich treats the area of employmentdiscrimination. The problem arises because we

are dealing with two statutes--one state and one federal-- that seek to regulate separate activities although some overlapping areas exist between them. While ERISA supersedes state laws relating to employee benefit plans, it does not expressly supersede all state fair employment laws, nor does itmention them. Indeed, given the history of Title VII, itwould have been illogical if it had. 

# ".

. .Here, we have a federal regulatory scheme which regulates a limited area coupled with an express declaration which, if broadly interpreted, preempts states from a multitude of other areas which heretofore have been recognized asvalid state concerns. 

# . ." Gast, 585 P.2d at 22. To hold forpreemption would be to create an enormous vacuum in areas that have heretofore been traditionally dealtwith by the states through the liberal intent of Title VII. The substantive nature of health and welfare benefits are not addressed by ERISA. We should not presume congressional intent to preempt unless Congress "has unmistakably

so ordained." Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 142.NATIONAL LABOR RELATIONS ACT PREEMPTION The District Court declined to rule on this issue, noting: "Considerationof whether federal labor law preempts the Maternity Leave Act by implication is unnecessary in view of the much clearer preemptive declaration of ERISA. At any rate, I reach that conclusion and therefore will not attempt an analysis of federal labor law to determine whether or not itpreempts our Maternity Leave .Act. 

### " As there was no ruling concerning the effect of federal labor law by the District Court, this issue is technically not before us. The parties, however, have spent substantial portions of their briefs discussing this issue,and in view of our decision concerning ERISA, itbecomes necessary to discuss this issue aswell. During the relevant time period of this lawsuit, the employment relationshipbetween Mountain Bell and Rae Bauer

was governed by a collective bargaining agreement between Mountain Bell and Rae Bauer's labor union, Communications Workers of America. This collective bargaining agreement

was entered into under and subject to the provisions of federal labor law. Generally, federal labor law does not specify what the substantive terms of collective bargaining agreementsmust be. Instead, federal labor law requires that employers and unions must bargain in good faith that they may work out for themselves their own agreements for the governance of their industrialrelations. See 29 U.S.C. Sl58(d). Mountain Bell contends that federal labor law requires

as a "mandatory subjectof bargaining" that employers and unions come to some agreement on employer group insurance, including insurance for nonoccupational injuries or disease.W. W. Cross & Co. v. NLRB (1stCir. 1949), 174 F.2d 875, 878. Here, this mandatory collective bargaining between Mountain Bell and CWA resulted in an agreement which states thatMountain Bell isnot required to pay disability benefitswhen an employee is on a maternity leave of absence. Mountain Bell further contends that the attemptby the Commission of Labor and Industry to compel Mountain Bell to pay suchbenefits under section 39-7-203,MCA, alters the collective bargaining agreement and violates the fundamental premise of federal labor law: that the terms and conditions of employmentmust be established by the collective bargaining which are not subject to being changed or altered by the application of contrary state laws. Appellants, on the other hand, reiterate that the Maternity Leave Act has been affirmatively authorized by TitleVII. Further, they argue that such statutory protection against certain forms of employmentdiscrimination is in the nature of an independent right and cannot be waived through collective bargaining. The court in Goodyear Tire & Rubber 

### v. Dept. of Industry, supra, faced a similar issue. Goodyear'sdisability plan

was negotiated subject to the NLRA. The effect of the department of industry's order there was to invalidate a provision in the plan which excluded pregnancy disabilities from full benefits. The department's order, therefore, altered Goodyear's collective bargaining agreement. The court cited extensively fromMalone v. White Motor Corp. (1978),435 U.S. 497, 98 S.Ct. 1185, 55 ~.Ed.2d443, and found that under Malone ithad to look at federal labor law to determine whether state law had been preempted. The courtdid so andheld

# ".



# . . we find an express statement inTitleVII, 29 U.S.C. sec. 2000h-4, that there was no 'intent on the part of Congress tooccupy the field

# . . .'of sex discrimination inemployment to the exclusion of state laws on the same subjectmatter." 273 N.W.2d at798. In Malone the issuewas whether a Minnesota pension statutewaspreempted prior tothe enactment of ERISA by federal labor policy insofar as it purported tooverride or control the terms of collective bargaining agreements negotiated under the NLRA. The court stated: 

### "It isuncontested thatwhether the Minnesota statuteisinvalid under the Supremacy Clause depends on the intentof Congress. 'The purpose of Congress is the ultimate touchstone.

### ' Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Often Congress does not clearly state inits legislationwhether it intends topreempt state laws; and in such instances, the courts normally sustain local regulation of the same subjectmatter unless it conflicts with federal law orwould frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought tooccupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, at157-158; Jones v. Rath Packing Co., 430 U.S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 'We cannot declare pre-empted alllocal regulatGn that touches or concerns inanywaythecomplex Gr=nr ships between employees, employers and unions; obviously, much 

### -- of 

### - this

# _ is

__ left

### - to 

### - the States.' Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). The Pension Act 'leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional willthe area in which stateaction is still permissible.' Garner v. Teamsters, 346 U.S. 485, 488 (1953). Here, the Court of Appeals concluded that the Minnesota statutewas invalid because it trenched on what the court considered tobe subjects that Congress had committed for determination to the collectivebargaining process. "There islittledoubt thatunder the federal statutesgoverning labor-management relations, an employer must bargain about wages, hours, and working conditions and thatpension benefits areproper subjectsof compulsory bargaining. But there isnothing inthe NLRA, includingthose sectionson which appellee relies, which expressly forecloses all state regulatory power with respect tothose issues, such aspension plans, thatmay be the subjectof collective bargaining. If the Pension Actispre-empted here, the congressional intent todo somust be implied from the relevantprovisions of the labor statutes. 

# .." Malone, 435 U.S. at504- 505. (Emphasis supplied.) The court found no such implication and, on the contrary, found an intent intheWelfare and Pension Plans Disclosure Act of 1958 topreserve stateauthority toregulate pension plans. Likewise, the court in Goodyear found an intent topreserve stateauthority toregulate sex discrimination. 273 N.W.2d at798. In San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the court stated: 

# ".

. . When the exerciseof statepower over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary topreclude the States from acting. However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not asa matter of doctrinaire localism but asa promoter of democracy, has required us not to findwithdrawal from the Statesof power toregulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. [Citationsomitted.] Orwhere the regulated conduct touched interests so deeply rooted inlocal feeling and responsibility that, in the absence of compelling congressional direction, we could not infer thatCongress had deprived the Statesof the power toact." 359 U.S. at 243-44. Mountain Bellargues thatrather than weighing and balancing state and federal interests, which the Garmon opinion prescribes, the federal courts have evolved a comparatively heavy-handed doctrine of preemption which applies whenever a state law has any effectwhatsoever on any aspect of labor relations or any element of a collective bargaining agreement.Mountain Bell relies on Local 24 of the International Brotherhood of Teamstersv. Oliver (1959), 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, and Lodge 76,Machinists v. Wisconsin EmploymentRelations Commission (1976),427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, to support its position that the federalpolicy under the NLRA is to preempt state attempts to alter or change the substantive terms of collective bargaining. "Ourdecisions 

# .. . have made it abundantly clear that state attempts to influence the substantive terms of collective-bargaining agreements are as inconsistent with the federal regulatory scheme as are such attempts by the NLRB. 

# . ." Lodge 76, 427U.S. at 153. Both of the above cases dealt with areas substantively covered by NLRA: Oliver with wages and working conditions, and Lodge 76 with economic weapons of collectivebargaining. Intent to preempt state action in such areas is readily recognizable. The instant case, however, does not deal with

an area specifically covered by the NLRA but rather with an

area of peripheral concern. To use a broad-sword approach to preemption in this area would be to forget the Supreme Court's ownwords: 

# ".



# ..Federal labor policy as reflected in the National Labor Relations Act 

# . .

# .has been construed not to preclude the States from regulating aspects of labor relations that involve 'conduct touch[ing] interests so deeply rooted in local feeling and responsibility that

# . . .we could not infer that Congress had deprived the States of the power to act.' 

# . . . the federal law governing labor relationsdoes notwithdraw 'from the states

# ..

# .power to regulate where the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act.' 

# . . . Cases that have held state authority to be pre-empted by federal law tend to fall into one of two categories: (1) those that reflect the concern that

'one forumwould enjoin, as illegal, conduct which the other forum would find legal' and (2) those that reflect the concern 'that the [applicationof state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts.'" Lodge 76, 427U.S. at 136-38. (Omittingcases.) Clearly, this case does not fall in either of these traditional areas of preemption but is in an area of traditional local concern which only peripherally affects the collective bargaining process. Goodyear, supra. Alexander 

### v. Gardner-Denver Company (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147,holds that an individual's rights to equal employmentopportunities under Title VII 

# ".

. . form no part of the collective bargaining process 

# . .

# ."

415U.S. at 51. 

# ".

. .Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both TitleVII and other applicable state and federal statutes. The clear inference is that TitleVII was designed to supplement, rather than supplant, existing laws and institutions relating to employmentdiscrimination



# .. ." Alexander, 415 U.S. at 48-49. Mountain Bell argues the Maternity Leave Act does not create the kind of personal and individual right found in Alexander because "therights sought to be vindicated [in Alexander] were substantiallyprotected by Title VII, whereas with respect to pregnancy disability benefits the Supreme Court has held that a denial thereof is not sex discrimination within the meaning of Title VII." This argument, however, ignores the fact that TitleVII affirmatively protects and encourages state anti-employment discrimination legislationras discussed herein, supra. The rights accorded under section 39-7-203,MCA, are uniquely personal and may not be waived through the collective bargaining process. Alexander v. Gardner-Denver, supra."If TitleVII rights to equal employment opportunities are non-negotiable in collective bargaining, and if those rights are in addition to rights granted by state law, it is unlikely that Congress intended that the latter may be bargained away even though Title VII rights may not. And if the individual's rights to equal opportunities are greater under state than federal law, it is unlikely that Congress intended that rights obtained from the statemay be bargained away even though federal rightsmay not." Goodyear, 273 N.W.2d at 800. We therefore conclude that section 39-7-203, MCA, is not preempted by the National Labor RelationsAct.

WHETHER THE MONTANA MATERNITY LEAVEACT CONFERS BENEFITS FOR

## NORMLAND ABNORMAL PREGNANCY DISABILITIES AND TO PRE--P 

## ANDPOST-CHILDBIRTH CONDITIONS. Mountain Bell contends that section 39-7-203, MCA, should be limited to abnormal or unexpected complicationsof pregnancy. The District Court rejected this argument because the language of the statute and its legislativehistory do not expressly limit coverage to abnormal or involuntary complications. Mountain Bell, however, submits that the absence of such an express limitation is perfectly understandable in light of the fact that pregnancy is a largely voluntary condition, and, as such, the work absences associated with its normal and usual progression are not the types of disability usually covered by sick leave plans, which are primarily intended to compensate employees for unexpected illnesses and accidents. Mountain Bells continues that given the fact that pregnancy is not the typical covered disease or disability,

one would expect that if the legislature had intended coverage of the normal usual and voluntary assumed consequences thereof, itwould have said so expressly; however, the statute itself is silenton this issue and there is nothinginthe legislative historywhich affirmatively indicates an intent torequire sick leave coverage for pregnancy-related problems which are normal, natural, expected and voluntarily assumed. Mountain Bell submits that the legislature's silence on this issue can lead only tothe conclusion that it intended that the phrase "disabled asa result of pregnancy" be interpreted inaccordance with the usual policy of sick leave plans tocompensate for unexpected wage loss. In the case of pregnancy, thiswould mean thatcompensation is required under section 39-7-203, MCA, only incases of disabilities resulting from abnormal and unexpected complications of pregnancy. Appellants contend that such a narrow interpretation of section 39-7-203(3), MCA, would be contrary tothe plain meaning of the section and would totally defeat the purpose of the legislature inenacting the section. Appellants further contend that the Senate had a proposed limitation, similar to the one espoused by Mountain Bell, which was rejected ina conference committee of the House and Senate. They further argue that the Maternity Leave Actwas based on a Connecticut statutewhich, while weaker inmany respects and more restricted than itsMontana descendant, has still been interpreted toapply todisabilitieswhich result from both normal and abnormal pregnancies and todisabilities which occur both before and after childbirth. The analysis of Judge Bennett inhis opinion in the DistrictCourt was decisive on thispoint: "In construing a statute, words are tobe given their natural, plain and obvious meaning. [Citations omitted.] In construing legislative intent, statutesmust be read and considered in their entirety--the statute asa whole must be considered. U.S. v. FortBelknap, 197 F.Supp.812 (~ont).Inreading the maternity leave law asa whole, the purpose of the statute seems obvious: when employed women become pregnant, they cannot be denied maternity leave if they areeligible atallfor disability benefits. They are entitled tothose benefits until they arephysically able togo back towork. There isnothing inthe statutetoeven suggest that benefits should be allowed only if the disabilities areinvoluntary orresult from abnormal complications. The term 'disability' means 'lack of physical capacity; the inability to pursue an occupation orperform services for wages because of physical 

# . . . impairment.' Websters Third International Dictionary. When interpreting a statuteadopted from another state, the latter state's interpretation can be used toclarify the statute adopted inthis state. Linley v. Davis 6M 687 (1887); Coburn v. Coburn 89 M 386 (1931). Our maternity leave lawwas based on a Connecticut statute (Legis. history; Minutes of Meeting January 10, 1975). The Connecticut statutehas been interpreted by that state's Commissioner of Human Rights and Opportunities toinclude disabilities resulting from normal and abnormal pregnancies, and to extend from conception through delivery and a reasonable period of recovery. Lagana, eta1 v. Middletown Board of Ed. 1976. The legislative history reveals no intention tolimitthe statute toabnormal complications. Therefore the statute must be construed tocover disabilities resulting from normal and abnormal pregnancies. The statute does not purport todefine pregnancy itself as a disability, but recognizes that the condition of pregnancy manifests itself inways that disable the woman for a period of time. In determining the scope of the timeperiod tobe covered by the benefits, there seems tobe no logical reason why maternity benefits should be treated any differently from other disabilitieswhere benefits are allowed for a reasonable period of recovery, The plaintiff inthe instant case apparently believes that babies aredelivered by the stork and arenot a natural consequence of pregnancy. The statute specifically states 'disabled as a result of pregnancy.' 'Pregnancy' by definition isa condition thatbegins with conception and ends with delivery (BlacksLaw ~ictionary; Stedman's Medical Dictionary, 20th ed.). 'Result' isthatwhich arises asa consequence of something (Blacks Law ~ictionary).Childbirth is an obvious natural consequence of pregnancy and thus the statuteintends tocover disabilities of childbirth. "Iconclude therefore that the term 'disability as a resultof pregnancy', as used intheMontana maternity leave law applies todisabilitiesresulting from normal as well asabnormal pregnan-ties, and the period of coverage extends from the onset of actual disability through termination of gestation and a reasonable period of recovery, to be determined by competent medical authority." The judgment of the District Court is reversed on Issue No. 1, relating to preemption of section 39-7-203(3), MCA, by the federalEmployee Retirement Income SecurityAct of 1974, 29 U.S.C. §lo01et seq. Additionally,on the question of preemption of section 39-7-203(3), MCA, by the federal labor law (National Labor Relations Act, 29 U.S.C. S141 et seq.), on which the District Courtwas not required to rule because of the nature of its opinion,we hold that the NLRA does not preempt the Montana Act. The judgment of the District Court is affirmed on Issue No. 3 on its finding that the term "disability as a result of pregnancy" as used in the Montana Maternity Leave Act applies to disabilities resulting from normal as well as abnormalpregnancies and the period of coverage extends from onset of actual disability through termination of gestation and a reasonableperiod of recovery, to be determined by competentmedical authority. The case is remanded to the District Court to enter judgment in behalf of appellants/cross-respondents: the Commissioner of Labor and Industry of the State of Montana, theAdministrator of the Labor Standards Division of the Department of Labor and Industry of the State of Montana, Rae S. Bauer, Communications Workers of America, and the Montana Human Rights Commission, in conformity with this Opinion.Weconcur: 

# zJ&k%&f&\ Chief Justice 

# Qd-2. ustices 

# ALL^