No. 12330 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

WAYNE LOWE, JOHNHAMERELL

## , RICHARD DICKINSON, 

### et al., Plaintiffs andAppellants,

-vs

# - ROBERT D. o'CONNER, contractor, Defendant and Respondent.

Appeal from: District Court of theFourth JudicialDistrict, 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

causewas 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 frommembership. 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 contractsprovided 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 noteffectively withdraw from the Council and seek to compel the payment of thecontributions. Inconsidering 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 fallswithin the purview of Section 301 of the Taft-Hartley Act, 29 U.S.C. § 185(a). While that sectiondoes leave concurrent jurisdiction inthe statecourts (Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L ed 2d 483, 486) theUnited States Supreme Court has clearly ruled that statecourts aretoapply federal lawinthe exercise of that jurisdiction. That Court inTeamsters Union v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L ed 2d 593, 598, 599, said: "We hold that ina case such asthis, incompatible doctrines of local lawmust give way toprinciples of federal labor law. 

## * * * "The dimensions of § 301 require the conclusion that substantive principles of federal labor lawmust be paramount inthe area covered by the statute. Comprehensiveness is inherent in theprocess by which the law istobe formulated under the mandate of Lincoln Mills, requiring issues raised in suitsof 

### a kind covered by § 301 tobe decided according toprecepts of federal labor policy." The principles of federal labor law which control in thiscase areclearly setout inRetailAssociates Inc., 120 N.L.R.B. 388, 395, (1958), inwhich the National Labor Relations Board states: "We would accordinglyrefuse topermit thewithdrawal of an employer 

## * * * from a duly established multiemployer bargaining unit, except upon adequate written notice given prior tothe date set by the contract formodification, or tothe agreed-upon date tobegin themultiemployer negotiations.It Further, it appears that federal labor law requires the notice of withdrawal be conveyed tothe other side. Universal InsulationCorporation v. N.L.R.B., 361 F.2d 406, 408, (6th Cir. 1966). Applying these principles tothe stipulated factshere,

### 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 "uponadequate 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'spurported 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.