No. 86-476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ROBERT C. ANDERSON and VIOLET C. 

ANDERSON, 

Plaintiffs and Appellants, 

TW CORPORATION, CANTEEN CORPORATION, 

TWA SERVICES, INC., a/k/a TW SERVICES, 

INC., HAL RITCHIE LAUREN MILES and 

THEODORE R. WOOLSEY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Berg, Coil, Stokes & Tollefsen; Michael Coil argued, 

Bozeman, Montana 

For Respondent: 

Moulton, Bellingham, Longo & Mather; W. Anderson 

Forsythe argued, Billings, Montana 

Submitted: June 9, 1987 

Decided: August 4, 1987 

Filed: AUG1- 1987 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Appellants, Robert C. Anderson and Violet C. Anderson, 

brought an action in the Sixth Judicial District, Park 

County, to recover damages resulting from an alleged 

"constructive" discharge of Robert C . Anderson and other 

related torts arising from violations of good faith and fair 

dealing by his employer. Violet C. Anderson alleges 

negligent and intentional infliction of emotional distress 

arising from her husband's charges against respondents. 

On January 24, 1984, at a hearing before the District 

Court, several pending motions were decided, including 

motions by both parties for summary judgment. At that 

hearing, the judge dismissed appellants' case, holding that 

it was preempted by federal labor law according to 

Allis-Chalmers v. Lueck (1985), 471 U.S. 202, 105 S.Ct. 1904, 

85 L.Ed.2d 206. 

The issues presented for our review on appeal are as 

follows: 

1. Are appellants' tort claims preempted by the 

National Labor Relations Act, thereby denying the State 

District Court subject matter jurisdiction? 

2. Does the District Court dismissal deny appellants 

due process of law and equal protection as guaranteed by the 

Montana Constitution? 

3. Did the District Court err by dismissing the claims 

of appellant, Violet C. Anderson? 

4. Did the District Court err by denying appellants' 

motion for partial summary judgment on the question of 

vacation pay? 
We affirm the District Court on all issues. 

Appellant, Robert C. Anderson, was employed by TW 

Services, a concessionaire in Yellowstone National Park. In 

1970, appellant began work as a mechanic in the company's 

garage located near Gardiner, Montana, just inside the Park 

boundary. From May of 1971 through ,July 1, 1982, appellant 

was the shop foreman at this facility. TW Services operates 

a fleet of cars, buses, trucks, snowmobiles, boats and snow 

cats in Yellowstone. These vehicles are maintained and 

repaired by the mechanics at the Gardiner garage. 

On June 4, 1982, appellant removed a number of rags 

which had been used to clean up a 55 gallon drum spillage of 

a degreaser called Tensene. Anderson developed contact 

dermatitis (skin allergy), and was forced to go on sick 

leave. Appellant is allergic to all petroleum-based products. In July, 1982, appellant was advised by his doctor to 

avoid contact with all such petroleum-based substances. 

Anderson alleges that while off work on sick leave, the 

management improperly changed his job description. He claims 

that the new position required him to spend 75% of his time 

acting as a mechanic and 25% of his time as a supervisor. 

Due to this job description, he was required to come in 

contact with numerous petroleum-based products which caused 

the reoccurrence of his allergic reaction and made him unable 

to return to his prior employment. 

As an employee of TW Services, Anderson was a member of 

the International Association of Machinists and Aerospace 

Workers (Union). As a member of this TJnion, the terms and 

conditions of Anderson's employment were governed by a 

collective bargaining agreement (CBA) outlined in the Union 

contract. 

On Anderson's behalf, the Union objected to the job 

description of "working shop foreman" and proceeded with the 
grievance procedure provided for in the Union agreement. 

This resulted in a mutual agreement that Anderson would be 

returned to the position which he held at the time of his 

accident with no changes in wages or working conditions as 

per contract, which were in effect at the time of injury. 

The agreement required that Anderson obtain a physician's 

release and be able to perform the duties associated with 

"working shop foreman." Anderson continued to object to the 

job description but alleges that the Union refused to proceed. 

any further with his claim. 

After leaving work, appellant returned to the garage to 

retrieve his personal files containing documents important 

for his personal use. Appellant contends that these files 

were destroyed, but the record does not show any evidence of 

intentional destruction of his files. 

Appellant's wife, Violet C. Anderson, filed a complaint 

against the same defendants alleging that both she and her 

husband had suffered great emotional distress and mental 

anguish due to defendant's intentional negligent acts. 

Before dismissal of appellants claims, defendants payed 

Robert Anderson money owed him for unused vacation time. 

This unpaid money was the subject of appellants' count 9 of 

the original complaint. Appellants requested partial summary 

judgment on this issue after the money was paid. The District Court denied the motion and dismissed both appellants' 

claims. 

Issue #1 

Are the appellants1 tort claims preempted by the NLRA, 

thereby denying the State District Court jurisdiction? 

The District Court relied upon Allis-Chalmers in holding that plaintiffs-appellants' claims were preempted by 

federal labor law. We agree that Allis-Chalmers is 

controlling in this case. See also Smith v. Montana Power 
Company (Mont. 1987), 731 P.2d 924, 44 St.Rep. 124, a case 

where we considered the rule in the Allis-Chalmers case and 

reached the same conclusion as the District Court did here. 

The federal law which preempts appellants' claims is 

S 301 of the Labor Management Relations Act of 1947 (LMRA) , 

61 Stat. 156, 29 U.S.C. 5 185(a). Section 301 states in 

part : 

Suits for violation of contracts between 

an employer and a labor organization 

representing employees in an industry 

affecting commerce . . . may be brought 

in any district court of the United 

States having jurisdiction of the parties . . . 

The preemptive effect of 5 301 was first stated in 

Teamsters v. Lucas Flour Co. (1962), 369 U.S. 95, 103, 82 

S.Ct. 571, 7 L.Ed.2d 593. The United States Supreme Court in 

Lucas Flour concluded that "in enacting § 301 Congress 

intended doctrines of federal labor law uniformly to prevail 

over inconsistent local rules." 369 U.S. at 104. 

In Allis-Chalmers, the United States Supreme Court 

applied the Lucas Flour analysis to hold that plaintiffs may 

not avoid the preemptive effect of federal labor law when a 

dispute involves an interpretation of a union contract by 

pleading in tort. 

Since nearly any alleged willful breach 

of contract can be restated as a tort 

claim for breach of a good-faith obligation under a contract, the arbitrator's 

role in every case could be bypassed 

easily if 5 301 is not understood to 

pre-empt such claims. Claims involving 

vacation or overtime pay, work assignment, unfair discharge--in short, the 

whole range of disputes traditionally 

resolved through arbitration--could be 

brought in the first instance in state 

court by a complaint in tort rather than 

in contract. A ru1.e that permitted an 
individual to sidestep available grievance procedures would cause arbitration 

to lose most of its effectiveness, 

Republic Steel Corp. v. Maddox, 379 U.S. 

650, 653 (1965), as wxl as eviscerate a 

central tenet of federal labor-contract 

law under S 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract 

in the first instance. 

471 U.S. at 219-220. 

Although Montana does have statutory laws which coincide and seem to overlap the federal labor laws, "[a] state 

rule that purports to define the meaning or scope of a term 

in a contract suit therefore is pre-empted by federal labor 

law." - Id. at 210. 

Were state law allowed to determine the 

meaning intended by the parties in 

adopting a particular contract phrase or 

term, all the evils addressed in 

Lucas Flour would recur. The parties 

would be uncertain as to what they were 

binding themselves to when they agreed 

to create a right to collect benefits 

under certain circumstances. As a 

result, it would be more difficult to 

reach agreement, and disputes as to the 

nature of the agreement would proliferate. Exclusion of such claims "from the 

ambit of S 301 would stultify the congressional policy of having the administration of collective bargaining 

contracts accomplished under a uniform 

body of federal substantive la-w." Smith 

- v. Evening News Assn., 371 U.S. 195, 200 

(1962). 

- Id. at 211. 

In Smith - v. - MPC, this Court considered a wrongful 

discharge allegation in violation of the covenant of good 

faith and fair dealing. This Court found that because his 

employment was governed by a col.lective bargaining agreement, 
which included a mandatory and binding arbitration and grievance procedure, Smith's state law claim was preempted by 

federal labor law. 

The Union contract at issue specifically provides for a 

discharge dispute. The grievance procedure also provides for 

arbitration which is final and binding on the parties. 

Robert Anderson failed to exhaust the grievance procedure outlined in his employment contract. There is nothing 

on the record that shows defendants acted in any way to 

interfere with the arbitration process. Regardless of fault 

for failing to exhaust the collective bargaining agreement 

remedies, the issue of preemption by federal labor law is 

separate from the issue of whether the plaintiff has 

exhausted his grievance procedure remedies. 

The full scope of the pre-emptive effect 

of federal labor-contract law remains to 

be fleshed out on a case-by-case basis. 

We do hold that when resolution of a 

state-law claim is substantially dependent upon analysis of the terms of an 

agreement made between the parties in a 

labor contract, that claim must either 

be treated as a S 301 claim, see Avco 

Corp. v. Aero Lodge - 735, 390 U.S. 557 

(1968), or dismissed as pre-empted by 

federal labor-contract law. This complaint should have been dismissed for 

failure to make use of the grievance 

procedure established in the 

collective-bargaining agreement, 

Republic steel-corp.-v. Maddox,-379 U.S. 

at 652, or dismissed as pre-empted by 5 

Allis-Chalmers, 471 U.S. at 220-221. 

We affirm the District Court on issue no. 1. 

Issue #2 
Does the District Court's dismissal deny appellants due 

process of law and equal protection as guaranteed by the 

Montana Constitution? 

Appellants' assertions of due process and equal protection violation are without merit. If federal law did not 

preempt appellants' causes of action, they would be free to 

proceed in state court. If their causes of action are preempted, their rights under the Montana Constitution would not 

apply because of the United States Constitution's supremacy 

clause, Art. VI, 5 2, and Congress's power to preempt any 

state law. In that case, federal laws under the United 

States Constitution would provide appellants due process and 

equal protection. 

We affirm the District Court on this issue. 

Issue #3 

Did the District Court err by dismissing the claims of 

Violet C. Anderson? 

The District Court was correct in dismissing Violet 

Anderson's cause of action. Her claim for the loss of consortium and consequential intentional infliction of emotional 

distress is inextricably intertwined with the federal interpretation of her husband's employment contract. In Montana, 

one who has a proper tort action for negligence resulting in 

injury to himself may claim, as a damage, emotional distress. 

Johnson v. Super Save Markets, Inc. (Mont. 1984), 686 P.2d 

209, 41 St.Rep. 1495. 

Montana case law has established that a cause of action 

for emotional distress to a third party can arise when a 

close relative witnesses a death or physical injury to the 

victim of a tort. See Versland v. Caron Transport (Mont. 

1983), 671 P.2d 583, 40 St.Rep. 1681. 

Violet Anderson has not alleged that she was a victim 

of a tort, but rather that she is entitled to compensation 
for loss of consortium and mental suffering which resulted 

from her husband being a victim of a tort. 

We affirm the District Court's dismissal of Violet 

Anderson's claim. 

Issue #4 

Did the District Court err by denying appellants' 

motion for partial summary judgment on the issue of vacation 

pay? 

Appellants claim that since respondent paid Robert 

Anderson past due vacation pay during the discovery period 

for this case, the employer thereby acquiesced to the charges 

against the company. According to appellants, summary judgment on this issue should have been granted, along with 

attorney fees and costs because the amount was not paid in a 

timely fashion. Appellants cite 5s 39-3-201 (5), 

39-3-205(1)(2), 39-3-206, and 39-3-214, MCA, in support of 

their allegations. They claim that the issue of vacation pay 

is not preempted by federal labor law, as it is a right 

protected by these state laws. 

As previously discussed, Allis-Chalmers specifically 

lists vacation pay as one of those items preempted by the 

operation of federal labor law. Also, vacation pay was 

grievable under Anderson's collective bargaining agreement 

and covered by federal labor law interpretation. For this 

Court to find that state law applies to this issue would 

render the binding grievance and arbitration procedure 

ineffectual and frustrate the uniform federal interpretation 

outlined in Allis-Chalmers. 

Affirmed. 

We Concur: 
/r' 

' Chie'f Justice 

Former 

43-c4!.8-GkaLl 

Chief Justice 

d4 

Frank I. Haswell sitting 

for Justice John C. Sheehy