No. 92-357 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

ROBERT L. MILLER, 

Plaintiff and Appellant, 

THE COUNTY OF GLACIER, MONTANA; 

WILLIAM BIG SPRINGS, DON KOEPKE, 

FRED JOHNSON, as members of the 

Board of Count Commissioners of 

Glacier County, Montana, 

Defendants and Appellees. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Timothy J. McKittrick, McKittrick Law Firm, Great 

Falls, Montana 

For Respondent: 

Gary M. Zadick, Ugrin, Alexander, Zadick & Slovak, 

Great Falls, Montana: Dennis P. Clarke, Smith, 

Clarke, Walsh & Gregoire, Great Falls, Montana 

Submitted on Briefs: February 11, 1993 

Decided: March 30, 1993 

CLERK OF S'JPF:E:?Ai: COURT 

STATE OF MOIJTANB 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from an order of the Ninth Judicial District 

Court, Glacier County, granting a motion to dismiss. We reverse. 

The issue on appeal is whether the District Court erred in 

granting dismissal to the County based upon the inability of Miller 

to sue in a court of law after he has been through arbitration. 

Robert L. Miller (Miller) had been employed by the Glacier 

County Medical Center from July 3, 1979 until his termination in 

October of 1984. At the time of his termination, Miller was head 

of the radiology department. While employed with the hospital, 

Miller's employment was covered by a collective bargaining 

agreement. 

Miller's discharge in October of 1984 centered around 

disposition of an ultrasound machine (machine) which had been 

purchased by the previous hospital administration. The machine was 

financed by the First National Bank (Bank) which held a security 

interest in the machine. 

Miller claims that on or about October 29, 1984, he was 

contacted by hospital personnel and told to crate the machine for 

pick up by the Bank. Subsequently, according to Miller, he 

contacted the Bank president and discussed with him the delicate 

nature of the machine. Miller determined that the best way to make 

the machine inoperable was to remove the transducers from the 

machine. 

On October 30, Miller's day off, he went to the hospital, 

removed the transducers from the machine and delivered them to the 

2 
Bank. Miller next claims that shortly after delivering the 

transducers to the Bank he received a call from a co-worker 

claiming that Miller had been fired. Subsequently, Miller went to 

the Bank, picked up the transducers and returned them to the 

hospital. 

According to the hospital, Miller was fired for misconduct. 

The hospital claims that Miller refused to follow the instructions 

of his supervisor on occasions when he did not agree with her. 

Miller's supervisor, Ms. Vogt, had warned Miller to stay away from 

the ultrasound issue. Also, according to the hospital, when Ms. 

Vogt asked Miller why he was at the hospital on his day off 

(October 30) he told her it was none of her business. He then 

proceeded to dismantle the machine. 

Following his termination, Miller went to his Union and filed 

a grievance. The Union brought Miller's claim to arbitration. On 

June 27, 1985, the arbitrator ruled that Miller had been terminated 

because of insubordination, which constituted just cause under the 

collective bargaining agreement. 

Miller filed a complaint in the Ninth Judicial District Court, 

on February 19, 1985, alleging wrongful discharge, breach of the 

duty of good faith and fair dealing, defamation, and exemplary 

damages. This complaint was later amended to include wrongful 

discharge in violation of public policy and denial of due process 

according to Title 42, USC 5 1983. The original complaint was 

filed prior to the decision in the arbitration. On that basis, the 

County moved to dismiss the proceedings in the District Court. 
After the filing of significant discovery and other 

materials throughout the next seven years, the District Court 

issued a final order on May 29, 1992, granting the County's motion 

to dismiss. This appeal followed the issuance of that order. 

Did the ~istrict Court err in granting dismissal to the County 

based upon the inability of Miller to sue in a court of law after 

he had been through arbitration? 

Miller contends his claims were not preempted by federal law 

because they are not rooted in the collective bargaining agreement, 

and as a result, the dismissal by the District Court was improper. 

Miller also contends that the claims which he has presented could 

not properly be considered by the arbitrator. 

The County contends that Miller has no cause of action in 

District Court. The County argues that Miller's claims are either 

preempted by federal law or are based on privileged activity by the 

County. Further, the County argues that res judicata or collateral 

estoppel prevents Miller from having his claims heard in ~istrict 

Court. 

The District Court in its May 1992 order, determined that 

Miller was not entitled to both a district court action and an 

arbitration. The District Court stated that Miller had failed to 

allege any grounds for vacating* modifying or correcting the 

arbitrator's award. 

The issue before us directly involves the collective 

bargaining agreement executed by Glacier County Medical Center and 

its employees. The record before us does not include a copy of 
that contract. For the assistance of the parties and the District 

Court on remand, we will now review pertinent legal principles. 

Collective bargaining agreements must be interpreted by application 

of federal law, not state law. Teamsters Union v. Lucas Flour Co. 

(1962), 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. 5 185(a) (1988). See also Foster v. 

Albertsons, Inc. (Mont. 1992), 835 P.2d 720, 49 St.Rep. 638. The 

United States Supreme Court has interpreted § 301 as a 

congressional mandate to develop a unified federal common law to 

address labor contractdisputes. Foster, 49 St-Rep. at 640, citing 

Textile Workers Union v. Lincoln Mills (1957), 353 U.S. 448, 77 

S.Ct. 912, 1 L.Ed.2d 972. The preemption under 5 301 has been 

limited to the cases where resolution of the state law claim 

requires construing a collective bargaining agreement. As stated 

in Foster, 49 St.Rep. at 642: 

Linale [Lingle v. Norge Division of Magic Chef, Inc. 

(1988), 486 U.S. 399, 1085 S.Ct. 1877, 100 L.Ed.2d 4101 

holds that a state-law claim is preempted by 5 301 only 

where its resolution requires construing the collective 

bargaining agreement. This is true even if the state-law 

analysis involves the same factual considerations as the 

contractual determinationunder the collectivebargaining 

agreement of whether the employee was discharged for just 

cause. Thus, our decision in Brinkman is overruled to 
the extent that it holds that a state-law claim is 

preempted merely because resolution of such a claim 

requires the same analysis of the facts as the 

contractual determination of just cause under the 

collective bargaining agreement. 

However, a collective bargaining agreement may contain an 

agreement with the employees that the employee will submit to 

arbitration "any controversiestt arising from the collective 

bargaining agreement. When such an arbitration provision is 

included in a contract, it may encompass determination of tort 

claims within the arbitration itself. Vukasin v. D.A. Davidson & 

Co. (1990), 241 Mont. 126, 785 P.2d 713. Considering the language 

of the agreement closely, the arbitrator must then act within the 

scope of the collective bargaining agreement which he or she is 

interpreting. Savage Educ. Asstn v. Richland Co. Elem. Sch. 

(1984), 214 Mont. 289, 692 P.2d 1237. 

Therefore, some collective bargaining agreements are written 

in such a way that arbitrators are empowered to go beyond the 

federal common contract law in an attempt to decide controversies 

existing between the employer and employee. In Zolezzi v. Dean 

Witter Reynolds, Inc. (9th Cir. 1986), 789 F.2d 1447, the court 

held that Zolezzi (the employee) had agreed to a clause in the 

collective bargaining agreement that he would submit to arbitration 

"any controversy . . . arising out of the employment or termination 

of empl~yment.~~ Zolezzi, 789 F.2d at 1448. The court held that 

this enabled the arbitrator to arbitrate intentional tort claims of 

defamation and invasion of privacy which involved events occurring 

one year after he quit working for Dean Witter. 
Similarly, other circuits have held that an ex-employee's 

claims of defamation, invasion of privacy and intentional 

infliction of emotional distress against the employer were within 

the scope of the arbitration clause requiring arbitration of "any 

controversy . . . arising out of the employment or termination of 

employment.'' Aspero v. Shearson American Express, Inc. (6th Cir. 

1985), 768 F.2d 106, 109, cert. denied, 474 U.S. 1026, 106 S.Ct. 

582, 88 L.Ed.2d 564. See also Vukasin v. D.A. Davidson & Co. 

(1990), 241 Mont. 126, 785 P.2d 713. 

Without such wording, an arbitrator is confined to use of 

federal common contract law in interpreting a collective bargaining 

agreement. When this is the case, claims that are not preempted by 

federal contract law and, therefore, are not rooted in the 

collective bargaining agreement, are capable of being litigated in 

court. Miller's complaint alleges defamation and other state-law 

tort claims as well as U.S. constitutional claims such as 5 1983 

claims and equal protection. The resolution of these claims was 

not considered by the arbitrator and Miller argues that their 

determination is not rooted in the collective bargaining agreement. 

We emphasize that the United States Supreme Court has 

determined that 5 1983 claims represent an issue which the Congress 

intended to be judicially determined. McDonald v. West Branch 

(l984), 466 U.S. 284, 290, 104 S.Ct. 1799, 1803, 80 L.Ed.2d 302, 

308. According to the Supreme Court, arbitration cannot provide an 

adequate substitute for judicial proceedings on this issue. 

McDonald, 466 U. S. at 289. Thus, the Court found that even when an 
arbitrator considers constitutional issues, such issues are not 

precluded from subsequent litigation by the theories of res 

judicata and collateral estoppel. McDonald, 466 U.S. at 289. 

In so deciding, the Court delineated reasons for its holding. 

The Court noted that arbitrators do not necessarily have the 

expertise required to resolve the complex legal questions that 

arise in 5 1983 actions. McDonald, 466 U.S. at 290. Further, an 

arbitrator's authority is derived solely from the contract; 

therefore, the arbitrator does not have the inherent authority to 

enforce S 1983 decisions. McDonald, 466 U.S. at 290. Also, S 1983 

claims are individual claims; yet in most cases, it is the union 

which pursues the contract action on behalf of the employee. Under 

these circumstances, there is no guarantee that the union's 

interest exactly parallels the employee's individual interest. 

McDonald, 466 U.S. at 291. Therefore, we conclude that Miller's S 

1983 claim is justiciable in a court of law, regardless of the 

arbitration decision. 

We conclude that the District Court should be reversed in 

dismissing the plaintiff's claims in District Court on the grounds 

that he had been through arbitration. Clearly, Miller's 5 1983 

claim must be considered by the District Court. Because of the 

absence of a copy of the collective bargaining agreement, we are 

not able to comment on which of Miller's state-law claims may be 

justiciable in District Court. 

We reverse the holding of the District Court and remand to the 

District Court for consideration of Miller's various state-law 
claims in light of the authority cited in this opinion and for 

consideration of his 8 1983 claim. 

/ / 

We concur: 

A 

Justice Terry N. Trieweiler did not participate in this decision.