No. 12330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

WAYNE LOWE, JOHN HAMERELL , 

RICHARD DICKINSON, et al., 

Plaintiffs and Appellants, 

-vs - 

ROBERT D. o'CONNER, contractor, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding 

Counsel of Record: 

For Appellants : 

Mulroney, Delaney and Dalby, Missoula, Montana 

Stephen H. Dalby and John 0. Mudd argued, Missoula, 

Montana 

For Respondent : 

Tipp, Hoven and Brault , Missoula , Montana 

Raymond Tipp argued, Missoula , Montana 

submitted : September 25, 1973 

Decided :BOY 1 lgn 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

Plaintiffs brought this action in the district court 

of the fourth judicial district, county of Missoula, to recover 

employee benefit contributions from defendant Robert D. O'Connor 

as a member of the Missoula Construction Council. Defendant 

denied membership in the Missoula Construction Council and the 

cause was submitted on stipulated facts. The district court, 

sitting without a jury, entered a judgment that plaintiffs take 

nothing by the complaint. From this judgment plaintiffs appeal. 

The sole issue presented for review is whether or not 

defendant made an effective withdrawal from the Missoula Construction Council. The stipulated facts indicate that defendant became a member of the Council, which acted as an employers' bargaining unit, on January 1, 1964. Such membership required only 

the payment of dues. The Missoula Construction Council did not 

have established procedures regarding withdrawal from membership. 

Defendant stopped paying membership dues in June 1967 and gave 

oral notice of his withdrawal to the Council secretary. He did 

not give written notice to the Council, the unions or the plaintiff trusts. 

In May 1968, the Missoula Construction Council entered 

into contracts with the appropriate unions covering the period 

May 1, 1968 to May 1, 1971. The membership list of the Council 

was submitted to the unions and plaintiff trusts. This list 

inadvertently included the name of defendant as a member of the 

bargaining unit. The contracts provided that the members of 

the Missoula Construction Council would be bound to the contract 

provisions requiring contributions be made to the plaintiff 

trusts. Defendant failed to make the contributions required by 

the contracts. Plaintiff trusts contend that defendant did not 
effectively withdraw from the Council and seek to compel the 

payment of the contributions. 

In considering plaintiffs' claim that defendant's withdrawal from the Construction Council was ineffective, we first 

observe that federal law controls. A dispute involving a collective bargaining agreement falls within the purview of Section 

301 of the Taft-Hartley Act, 29 U.S.C. § 185(a). While that 

section does leave concurrent jurisdiction in the state courts 

(Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L ed 2d 

483, 486) the United States Supreme Court has clearly ruled 

that state courts are to apply federal law in the exercise of 

that jurisdiction. That Court in Teamsters Union v. Lucas Flour 

Co., 369 U.S. 95, 82 S.Ct. 571, 7 L ed 2d 593, 598, 599, said: 

"We hold that in a case such as this, incompatible 

doctrines of local law must give way to principles 

of federal labor law. * * * 

"The dimensions of § 301 require the conclusion 

that substantive principles of federal labor 

law must be paramount in the area covered by 

the statute. Comprehensiveness is inherent in 

the process by which the law is to be formulated 

under the mandate of Lincoln Mills, requiring 

issues raised in suits of a kind covered by § 301 

to be decided according to precepts of federal 

labor policy." 

The principles of federal labor law which control in 

this case are clearly set out in Retail Associates Inc., 120 

N.L.R.B. 388, 395, (1958), in which the National Labor Relations Board states: 

"We would accordingly refuse to permit the withdrawal of an employer * * * from a duly established 

multiemployer bargaining unit, except upon adequate 

written notice given prior to the date set by the 

contract for modification, or to the agreed-upon 

date to begin the multiemployer negotiations.It 

Further, it appears that federal labor law requires the notice 

of withdrawal be conveyed to the other side. Universal Insulation Corporation v. N.L.R.B., 361 F.2d 406, 408, (6th Cir. 1966). 

Applying these principles to the stipulated facts here, 
it is immediately apparent that defendant failed to effectively 

withdraw from the Missoula Construction Council. Federal law 

allows withdrawal from a multiemployer bargaining unit only 

"upon adequate written notice". In the instant case the parties 

have stipulated the only notice given was oral. Further, notice 

of intention to withdraw must be conveyed to the other party. 

Here, the parties stipulated that defendant gave notice only to 

the Missoula Construction Council and the unions had no knowledge of defendant's purported withdrawal from the Council. 

Accordingly, since defendant failed to give adequate 

notice and failed to see that such notice as he did give was 

conveyed to the unions, he failed to make an effective withdrawal 

from the Missoula Construction Council and he was a member at 

the time the contract requiring payments to plaintiff trusts 

was entered into. Defendant is therefore liable for the payments due under the agreement and for the deficiencies owing 

the plaintiff trusts. 

The cause is reversed and remanded to the district court 

with instructions to enter judgment for the plaintiffs. 

~ustice 

Hon. Peter G. Me 

judge, sitting in place of Mr. 

Justice John Conway Harrison.