651 P.2d 982 (Mont. 1982), 81-369, Small v. McRae

Docket Nº:81-369.
Citation:651 P.2d 982, 200 Mont. 497
Opinion Judge:[8] MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT.
Party Name:Aaron P. SMALL, Plaintiff and Appellant, v. Robert J. McRAE, Defendant and Respondent.
Attorney:[7]
Case Date:October 04, 1982
Court:Supreme Court of Montana
 
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Page 982

651 P.2d 982 (Mont. 1982)

200 Mont. 497

Aaron P. SMALL, Plaintiff and Appellant,

v.

Robert J. McRAE, Defendant and Respondent.

No. 81-369.

Supreme Court of Montana.

October 4, 1982

Page 983

Submitted May 12, 1982.

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[200 Mont. 500] Moses Law Firm, Billings, Charles F. Moses, Billings, for plaintiff and appellant.

John Bobinski argued, Helena, J. Michael Young, Helena, for defendant and respondent.

HARRISON, Justice.

The appellant, Professor Aaron P. Small, filed a one count libel action against the respondent, Dean Robert J. McRae, and McRae moved for summary judgment. Small then moved to amend his complaint. The Thirteenth Judicial District, in and for Yellowstone County, granted Dean McRae's motion for summary judgment and denied Small's motion to amend the complaint. The third count of Small's proposed amended complaint was denied without prejudice to his right to replead. Small appeals.

The appellant was the appointed and acting chairman of the English Department at Eastern Montana College. On October 10, 1980, the respondent, Robert J. McRae, as Dean of the school of liberal arts, terminated appellant's chairmanship and in connection therewith addressed and delivered a memorandum to him as a way of notifying him and the other departments of such change in chairmanship, as provided by section 9.100(F)(1)(c) (Transfer of Titles) of the collective bargaining agreement in force at Eastern Montana College at that time. The reasons cited for the change included inadequate leadership that failed to bring a polarized

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department into a smoother-functioning unit, increased acrimony within the department, failure to handle the administrative functions of the office effectively and conscientiously and, finally, concern over the past and ongoing coordination of the newly-instituted mass placement[200 Mont. 501] process for freshman composition. The memorandum ends by stating:

"Thank you, Al, for the efforts you have expended in this very difficult position in the past seven months. I am sorry that this administrative appointment has not worked out. I wish you my sincere goodwill as you return to full-time teaching, which I know is your first love. My esteem for you as a teacher of your discipline is untarnished."

Termination of this chairmanship carried with it loss of a stipend of $900 per academic year and $150 per summer session, but did not affect appellant's academic rank, tenure, base salary or membership in the collective bargaining unit. Although the collective bargaining agreement provided a grievance procedure which appellant could have pursued, he elected instead to file this libel action against Dean McRae. We agree with the trial judge's factual findings and adopt his memorandum.

Originally, this was an action in libel and was submitted to the trial court on two motions. One by which the appellant sought to file an amended complaint adding four new counts. The original complaint sought damages caused by the alleged libel. The amended complaint alleged Count I, the same as the original complaint; Count II, appellant was deprived of due process contrary to his rights guaranteed by the Constitution of the United States and the State of Montana; Count III, appellant was denied freedom of expression and speech in violation of his rights under the United States Constitution and Constitution of the State of Montana; Count IV, that the libel alleged in Count I violates the privileges and immunities clause and the equal protection clause of the United States Constitution; Count V, that any statutory privilege given by legislature is contra to Montana and United States Constitutions.

Before getting into a discussion of the individual counts of appellant's proposed amended complaint, respondent asserts as a general matter that appellant's motion to amend should be denied on the ground that justice would not be [200 Mont. 502] served through the granting of it. In support of this argument the respondent points out that, as a member of the collective bargaining unit, the appellant agreed to exercise the grievance procedure to settle all disputes alleging breach, misinterpretation or improper application of the terms found in the collective bargaining agreement.

The official state policy, relating to collective bargaining agreements, is found in section 39-31-101, MCA: "it is the policy of the State of Montana to encourage the practice and procedure of collective bargaining to arrive at friendly adjustment of all disputes between public employers and their employees." As correctly pointed out by the respondent, this Court has looked to the construction placed on the National Labor Relations Act by the federal courts as an aid to interpretation of the Montana Public Employees Collective Bargaining Act. See, for example, State ex rel. Department of Highways v. Public Employees Craft Council (1974), 165 Mont. 349, 529 P.2d 785.

Section 39-31-306(2), MCA, of the Montana Public Employees Collective Bargaining Act, states that a collective bargaining agreement may contain: "a grievance procedure culminating in final and binding arbitration of unresolved grievances and disputed interpretations of agreements." The collective bargaining agreement of Eastern Montana College contained such a provision in this case. See, section 12.100, et seq.

Finally, section 39-31-306(3), MCA, provides that:

"[a]n agreement between the public employer and a labor organization shall be valid and enforced under its terms when entered into in accordance with the provisions of this chapter and signed by the chief executive officer of the state or political subdivision or Commissioner of higher education or his representative."

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As correctly noted by the respondent, the federal courts, construing the Federal National Labor Relations Act, have enunciated a strong policy favoring arbitration of labor disputes and requiring contract grievance procedures to be exhausted prior to the commencement[200 Mont. 503] of a lawsuit. See, for example, Republic Steel Corporation v. Maddox (1965), 379 U.S. 650, 652-653, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580, wherein Justice Harlan stated:

"As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. If the union refuses to press or only perfunctorily presses the individual's claim, differences may arise as to the forms of redress then available. (Citations omitted.) But unless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. Congress has expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the 'common law' of the plant. (Citations omitted.)

"Union interest in prosecuting employee grievances is clear. Such activity compliments the union's status as exclusive bargaining representative by permitting it to participate actively in the continuing administration of the contract. In addition, conscientious handling of grievance claims will enhance the union's prestige with employees. Employer interests, for their part, are served by limiting the choice of remedies available to aggrieved employees. And it cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so. (Emphasis supplied.)

"A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be [200 Mont. 504] made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation 'would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.' (Citations omitted.)"

Only in those cases where it is certain that the arbitration clause contained in a collective bargaining agreement is not susceptible to an interpretation that covers the dispute is an employee entitled to sidestep the provisions of the collective bargaining agreement. See, Torrington Company v. Metal Products Workers Union Local 1645 (2nd Cir. 1966), 362 F.2d 677. The respondent argues that the same considerations and policies which mandate the use of the grievance and arbitration procedures under the federal act apply equally to disputes which arise under the State Public Employees Collective Bargaining Act.

All the allegations contained in the appellant's proposed amended complaint revolve around his removal as chairman of the English Department at Eastern. The argument boils down to whether proper procedures were used. Such a contention most definitely falls within the collective bargaining agreement's definition of "grievance," as: "an allegation by a faculty member ... that there has been a breach, misinterpretation or improper application of the terms of this agreement by the administration." To allow a member of the collective bargaining unit to completely sidestep available procedures would, just as under federal law, exert a disruptive influence upon both the negotiation and administration of collective bargaining agreements and effectively deprive employers and unions of the ability to establish a uniform and exclusive method for the orderly settlement of employee grievances.

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