Lowe v. O Connor , 163 Mont. 100 ( 1973 )

No. 12330
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1973
WAYNE LOWE, J O H N HAMERELL ,
RICHARD DICKINSON, e t a l . ,
P l a i n t i f f s and A p p e l l a n t s ,
-vs -
ROBERT D. o'CONNER, contractor,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e F o u r t h J u d i c i a l D i s t r i c t ,
Honorable E. Gardner Brownlee, Judge p r e s i d i n g
Counsel o f Record:
For A p p e l l a n t s :
Mulroney, Delaney and Dalby, Missoula, Montana
Stephen H . Dalby and John 0. Mudd argued, Missoula,
Montana
For Respondent :
Tipp, Hoven and B r a u l t , 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 Construc-
tion Council. The stipulated facts indicate that defendant be-
came a member of the Council, which acted as an employers' bar-
gaining 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 plain-
tiff 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
e f f e c t i v e l y withdraw from t h e C o u n c i l and s e e k t o compel t h e
payment of t h e c o n t r i b u t i o n s .
I n considering p l a i n t i f f s ' claim t h a t d e f e n d a n t ' s with-
d r a w a l from t h e C o n s t r u c t i o n C o u n c i l was i n e f f e c t i v e , we f i r s t
o b s e r v e t h a t f e d e r a l law c o n t r o l s . A d i s p u t e involving a col-
l e c t i v e b a r g a i n i n g agreement f a l l s w i t h i n t h e purview of S e c t i o n
301 o f t h e T a f t - H a r t l e y A c t , 2 9 U.S.C. § 185(a). While t h a t
s e c t i o n does leave concurrent j u r i s d i c t i o n i n t h e s t a t e c o u r t s
(Dowd Box Co. v . C o u r t n e y , 368 U.S. 502, 82 S.Ct. 519, 7 L e d 2d
483, 486) t h e United S t a t e s Supreme C o u r t h a s c l e a r l y r u l e d
t h a t s t a t e c o u r t s a r e t o a p p l y f e d e r a l l a w i n t h e e x e r c i s e of
that jurisdiction. That C o u r t i n Teamsters Union v . Lucas F l o u r
Co., 369 U.S. 95, 82 S.Ct. 571, 7 L ed 2d 593, 598, 599, s a i d :
"We h o l d t h a t i n a c a s e s u c h a s t h i s , i n c o m p a t i b l e
d o c t r i n e s of l o c a l law must g i v e way t o p r i n c i p l e s
of f e d e r a l l a b o r l a w . * * *
"The d i m e n s i o n s of § 301 r e q u i r e t h e c o n c l u s i o n
t h a t s u b s t a n t i v e p r i n c i p l e s of f e d e r a l l a b o r
law must be paramount i n t h e a r e a covered by
t h e s t a t u t e . Comprehensiveness i s i n h e r e n t i n
t h e p r o c e s s by which t h e law i s t o be f o r m u l a t e d
under t h e mandate o f L i n c o l n M i l l s , r e q u i r i n g
i s s u e s r a i s e d i n s u i t s of a k i n d c o v e r e d by § 301
t o be d e c i d e d a c c o r d i n g t o p r e c e p t s of f e d e r a l
labor policy."
The p r i n c i p l e s o f f e d e r a l l a b o r law which c o n t r o l i n
t h i s case a r e c l e a r l y s e t out i n R e t a i l Associates Inc., 120
N.L.R.B. 388, 3 9 5 , ( 1 9 5 8 ) , i n which t h e N a t i o n a l Labor Rela-
t i o n s Board s t a t e s :
"We would a c c o r d i n g l y r e f u s e t o p e r m i t t h e w i t h -
d r a w a l of a n employer * * * from a d u l y e s t a b l i s h e d
multiemployer b a r g a i n i n g u n i t , e x c e p t upon a d e q u a t e
w r i t t e n n o t i c e g i v e n p r i o r t o t h e d a t e s e t by t h e
c o n t r a c t f o r m o d i f i c a t i o n , o r t o t h e agreed-upon
d a t e t o b e g i n t h e multiemployer n e g o t i a t i o n s . I t
F u r t h e r , i t a p p e a r s t h a t f e d e r a l l a b o r law r e q u i r e s t h e n o t i c e
of w i t h d r a w a l be conveyed t o t h e o t h e r s i d e . Universal Insul-
a t i o n Corporation v. N.L.R.B., 361 F.2d 406, 408, (6th C i r . 1966).
Applying t h e s e p r i n c i p l e s t o t h e s t i p u l a t e d f a c t s h e r e ,
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 know-
ledge 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 pay-
ments 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.