LOWE v O CONNOR

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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 : Decided September 25, 1973 :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 be- came a member of the Council, which acted as an employers' bargaining unit, on January 1, 1964. the payment of dues. Such membership required only 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 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 withd 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. Co., 369 U.S. That C o u r t i n Teamsters Union v . Lucas F l o u r 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., N.L.R.B. 388, 3 9 5 , 120 ( 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 . a t i o n Corporation v. N.L.R.B., Universal Insul- 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 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 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.

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