*1
ORCUTT,
ELISSA
MACKAY and
CONSTANCE
Respondents,
Plaintiffs
REGENTS,
OF
MONTANA,
OF
BOARD
STATE
SYSTEM,
and MONTANA UNIVERSITY
Appellants.
Defendants
No. 02-178.
July
on
2003.
Submitted
Briefs
2, 2003.
Decided October
JUSTICE COTTER JUSTICE REGNIER. JUSTICE specially RICE concurred. Appellants: James, Roger Witt, Ugrin,
For Robert F. T. Alexander, Higgins, P.C., Zadick & Great Falls. Respondents: Best, P.C.,
For Elizabeth Offices, A. Best Law Falls. Great
JUSTICE Opinion WARNER delivered the of the Court. University The Montana College Technology State in Great ¶1 (COT) appeals summary judgment, Falls denial of its motion for Court’s verdict (MacKay) District directed for Constance (Orcutt), evidentiary Orcutt as Elissa well as several of court’s rulings. We remand reverse and with instructions dismiss. following We address the issue on Did the Court appeal: District denying summary judgment? err in COT’s motion for Because we hold that the District erred when it failed motion, grant remaining the COT’s it is to address the unnecessary presented by parties. issues
FACTUAL AND PROCEDURAL BACKGROUND at the As nursing and Orcutt former instructors COT. employees, MacKay covered the Collective COT were (CBA) Regents Bargaining Agreement Montana Board of between the employer COT as the and Vocational-Technical Educators MacKay nor Montana, AFT, union. MFT, AFL-CIO Neither paid were members of union. Orcutt provided to the union as the terms of representation fee CBA. (Dion), a student in COT’s spring In the Scott Dion taught by Orcutt.
nursing program, practicum enrolled in rotations completion practicum of these rotations The successful During rotation, last Dion graduation nursing program. his from and, therefore, graduate program class did not failed Orcutt’s in Orcutt’s consequently as scheduled in June 1997. Dion re-enrolled His practicum rotation in December of 1997 and failed second time. status as COT student terminated on December COT, alleged during Dion It was his attendance MacKay, Orcutt her COT’s Director supervisor intimidated both rotations, Nursing. fading Dion had practicum In after his ceremony graduation hell break loose” at the COT stated “all will stage.” As everyone and that he “take care of on the a result would threats, arranged to perceived these COT have ceremonies patrolled by Dion, however, clothes did not attend either plain police. graduation. class, however, if he say a student overheard Dion *3 MacKay walking saw down the street he run ever Orcutt would addition, driving car. of them down in his In Dion was seen in front MacKay’s later, temporary home. Five Orcutt a months obtained restraining against MacKay order Dion. and Orcutt went to the COT fears, however, representative union their the union help representative investigate They sought did not the matter. also According MacKay from the Dean and the Associate Dean of COT. Orcutt, matter, reviewed the she also and while Associate Dean “pounded yelled complaining. her fist on the and at them for table” 1998, complaint against In March Dion filed a COT with ¶7 (HRC) He Rights alleging gender discrimination. Human Commission MacKay that made offensive remarks and claimed Orcutt and hearing, its HRC COT against discriminated him. In defense which, whole, taken as a reflected made several statements when belligerence history aggression belief that Dion had a of COT’s hearing matter, HRC Following his COT. on the during time at a against Dion -unlawfully that COT had discriminated concluded MacKay that sexual and Orcutt claim subjecting him to intimidation. hearing in the unfavorable poor preparation COT’s resulted ruling. HRC Dion continued intimidate Following proceeding, the HRC
MacKay Dion went to the COT and Orcutt. Both were alarmed when
campus to distribute literature proceeding about HRC September MacKay 1999. Orcutt and attempts continued their supervisors legal counsel, discuss the situation with their and COT’s however, they believed that their fell deaf concerns on ears. In 1999, MacKay restraining against obtained December a order Dion. Ultimately, resigned 1999, Orcutt from COT MacKay in December resigned following month. April MacKay and Orcutt a suit against filed State of
Montana, Regents Board University and the Montana System COT). (collectively referred to here as The complaint included the (1) following negligently provide claims: that COT had failed to them (2) working environment; a safe law discharge; common constructive (3) (4) statutory discharge; constructive breach of covenant of good dealing. faith and fair 21,2001, September summary judgment On COT moved for on all MacKay based, alia, ground and Orcutt’s claims on the inter they contained had failed to
utilize it. extensively hearing The motion was A on all briefed. pretrial argument, hearing motions was held in November. After District Court denied COT’s motion. The record contains neither a transcript any the hearing, giving nor written order the reasons the District Court denied the motion. A jury began trial on the matter then November evidence,
lasted for over two weeks. After the close of the verdict, contending Orcutt moved for a directed had motion, liability granted established as a matter law. The court Act, 203(4), MCA, holding Safety 50-71-201(2), that the Montana §§ applicable, was and that entitled were on negligence directed verdict -under Count The court also directed discharge, Count verdict on common law constructive Count good dealing. violation of the covenant of fair faith and District held ruling further in view of the that common law discharge established, constructive had been Count violation of the Wrongful Discharge Montana From did not Employment apply. Act The question damages jury. then to the submitted appeal judgment this timely COT filed from the entered in the *4 District Court. in denying We hold that the District Court erred COT’s motion for
¶13 summary judgment dispositive. that this issue is OF
STANDARD
REVIEW
grant
summary judgment
The
for a
is de
standard
review
as the district court
same evaluation
apply
This Court will
novo.
moving party
The
must establish both
Rule M.R.Civ.P.
upon
based
of material
fact and entitlement
genuine
absence of
issues
262, 9,
Walchuk,
MT
law.
judgment
¶
as matter of
Gonzales
County
9; Bruner v. Yellowstone
Mont.
59 P.3d
¶
¶
261, 264,
901, 903.
moving party
P.2d
Once the
272 Mont.
burden,
opposing party
present
must
material
has met its
evidence,
conclusory or speculative
rather
than mere
substantial
Bruner,
statements,
genuine
of material fact.
272 Mont.
raise
issue
question
Our
of review of
of law is
DISCUSSION denying summary motion for Did the District Court err COT’S judgment? According COT, denying its motion the District Court erred summary judgment given MacKay and Orcutt failed to that both under the CBA. COT contends that failure to
exhaust their remedies contained in the CBA bars suit in follow the Court, MacKay not have been District and that and Orcutt should “sidestep” CBA allowed to their remedies. (a) Orcutt, MacKay part, appeal contend on that: their and, therefore,
they were not union members were not (b) they grievance procedure CBA; follow the contained even CBA, contained therein were covered (c) mandatory; no clear was not the CBA contains waiver (d) trial; they union jury sought to a assistance from the but none forthcoming. It Orcutt were not members of is uncontested that required by union, they paid representation fees as but consequently their employment, CBA. The terms and conditions were, however, subject of the CBA. See CBA Article claims terms 5, 5.11, they alleged they covered complaint A. In their were order, signed by pre-trial the CBA. In the counsel ordered 8, 2001, they contended were covered court on November 2,2.1, pleadings. Article b. of pre-trial superceded order CBA. all bargaining unit consists of instructional provides the CBA year. Both employees employed for the full academic COT A., 5, 5.11, had instructional duties. Article agreement shall by the terms of the employees covered provides is, fee. It paid Both such representation dues or a fee. pay either union *5 472 say least, clear that Orcutt were covered
CBA. 1,1.1, provides Article of the CBA that purpose 4, is employment. 4.1, to establish terms and of conditions Article of provides the CBA employer employees shall provide with a place safe All to work. at issue to safety claims relate issues regarding employment discharge MacKay and constructive of Orcutt. 8,8.1 8.2, Article provide grievances that all subject are be
to said Article entitled Arbitration;” “Grievance Procedure a grievance CBA; grievant includes violation of the is an employee. There can be no doubt that the claims of by, are covered and that could subject have been made the of a grievance under the CBA. MacKay and grievance procedure Orcutt claim that permissive is mandatory
CBA and not any Article 8.8 states that may grievance. employee They “may” file a correct that word permissive is and “shall” mandatory. disagree is we that use “may” grievance of the word procedure means the permissive. is Rather, grievance procedure question mandatory. is provides pertinent part: 8.1 GRIEVANCE PROCEDURE
The purpose of this article is set prompt forth and efficient procedures grievances.... the resolution all of 8.2 GRIEVANCE DEFINITIONS violation, A grievance alleged shall mean an misinterpretation misapplication provisions or this agreement....
8.8 PROCEDURES FOR FILING GRIEVANCES (25) All grievances days must be within twenty-five after the filed grievance, occurrence of the incident which initiated the or within (25) twenty-five days employee reasonably after the should have gave grievance.... known of the circumstances which rise to the All grievances presented grievance shall be in accordance with procedure set forth below.
Step Any employee may grievance 1: a formal file written with meeting the Dean who shall conduct a .... Step grievance grievance 2: If at Step not resolved may be filed with the President....
[Emphasis added.] “All,” every, grievance days. grievances i.e. must be filed within 25 All agreed procedures. be in accordance with presented must employee file a aggrieved that an course, it is not Of The word drop. and let the matter may choose to not file grievance-she merely means that an “may” Step remedy may by filing do so a formal to seek a she employee does choose Congress Indep. the Dean. See Bonnot grievance with written (8th 1964), Such does not provision F.2d Unions Cir. Similarly, if required. is not mean that use of the Step may may she employee is not satisfied with the result The word Step 2, by the President. filing not utilize with “may’ Step not mean that if the is dissatisfied does *6 grievance may opt 1 then out of the Step the result of she 238, 243-45, (1989), 224 Mont. 729 file Brinkman v. State suit. Cf. Albertsons, grounds by v. 1301, 1305-06, on other Foster P.2d overruled Therefore, 126, 720, (1992), 117, 254 835 P.2d 726. Inc. Mont. clearly mandatory. grievance procedure permissive, is not but is MacKay Orcutt claim the CBA adjunct argument, As an as merely permissive grievance procedure a it makes available trial, jury no clear waiver of the a contains and unmistakable grieve were not their claims under the CBA. and thus actually question dispute. is the CBA covers the whether stated: We have
Only in cases it is certain that the arbitration clause those where susceptible is not bargaining contained in a collective dispute employee interpretation that covers the an an bargaining sidestep provisions the collective entitled agreement. 504, 982, (1982), 497, 986; P.2d
Small v. McRae 200 Mont. 651 Line, 24, 517, MT 134, 24, ¶ v. 1999 294 Mont. ¶ Winchester Mountain 1024, Therefore, dispute, as is the 982 P.2d the CBA covers the ¶ here, interpreted requiring should be as use case grievance procedure. consistently employee has held that an covered This Court remedy must exhaust that
a CBA that contains 504-05, 986-87; Small, at 651 P.2d at bringing suit. Mont. before 243-45, 1305-06; Irving v. Brinkman, 224 Mont. 729 P.2d at School (1991), 422; 1-1A 248 Mont. 813 P.2d Lueck v. Dist. No. 1041, 1044-45. (1993), 2, 8, 851 P.2d United Parcel Serv. 258 Mont. encourage and to make disputes, is to arbitration purpose rule to both procedures agreements union attractive the use of management. labor
To allow a member of the bargaining completely collective unit to procedures would, sidestep just law, available as under federal disruptive exert a upon negotiation influence both the bargaining agreements administration of effectively deprive employers and ability unions of the to establish uniform and exclusive orderly method for the settlement grievances.
Small,
504, 651
Brinkman,
Mont. at
P.2d at 986;
nevertheless allows to bring and Orcutt suit in the district despite court procedure outlined in the CBA. While responded and Orcutt summary judgment to COT’s motion argument with that replied the District Court there COT the statute applicable, MacKay was not did and Orcutt not raise this on appeal. 23(b), issue Under Rule M.R.App.P., respondent must 23(a)(4), follow Rule M.R.App.P., and present therefore must an argument “contain[s] [respondent] contentions respect to the issues presented, and the reasons therefor.” See also Foods, Emery 83, 87, Federated Inc. 262 Mont. P.2d present 429. Because and Orcutt did not issue appeal, statute on we cannot consider it basis our decision here. Finally, MacKay argue they sought that while help safety union’s in allaying arising their fear and concerns *7 by bringing Representative Buer, Dion’s threats them to Union she did nothing help, to and in fact against They worked them. claim that they attempted get because to union, they assistance from the are obligation grievance. excused from their to However, file a the procedure clearly states that is it the that is file to the grievance. approval Neither nor from participation required is the obligation union. The and to preliminary grievance the follow procedure MacKay with employee. rests the and Orcutt cannot now they blame the union not to attempt where did even invoke those stages grievance procedure require that do not union (3rd Trucks, cooperation. Angst 1992), Mack Inc. Cir. F.2d Cf. 1530, MacKay Orcutt, having and to avail failed themselves remedy through CBA, available to them the foreclosed maintaining judgment this suit. The entered in the District is complaint. reversed and remanded with to the instructions dismiss concur. GRAY, and RICE JUSTICES NELSON CHIEF JUSTICE LEAPHART, dissenting. JUSTICE I dissent. COT, denying in its motion According the District Court erred to MacKay Orcutt failed to summary given that both judgment the collective
exhaust their remedies under (CBA). grievance agrees COT that failure follow This Court with Court, in in suit District contained the CBA bars the procedure “sidestep” MacKay Orcutt should not have been allowed to that Orcutt, part, for their contend that their CBA remedies. therefore, and, were not they were not union members They also grievance procedure contained the CBA. follow the CBA, that, were covered maintain even mandatory. was not procedure contained therein grievances “[a]ll that shall be though Even CBA states [in set presented grievance procedure in accordance with forth below,” step grievance procedure CBA] first states: itself “Any employee may file a formal with the Dean....” written added.) submit (Emphasis “may” renders Orcutt that COT, permissive. hand, procedure on other asserts COT, In usage “may’ permissive. agreeing in the CBA is not (1986), v. State relies, part, this Court on our decision in Brinkman COT, where, according “this Court 224 Mont. 729 P.2d though a CBA even enforced inspection closer ‘may.” upon contained the word therein, apparent it is Brinkman contained Brinkman, misguided. that case is the Montana Court’s reliance on CBA, the State entered into which Employees Public Association and discharge any may employee with provided Employer “[t]he “[a]ny grievance only just cause,” or status permanent Parties, involving the dispute may arise between the which interpretation Agreement, this shall be application, meaning, or Brinkman, following 224 Mont. at manner ...” settled in the added). (emphasis at 1303-04 P.2d “may’ commonly understood be Generally, word is contrast, is understood be discretionary; or “shall”
permissive Distributors, Inc. v. Trevor compelling mandatory. ISC (Johnson, Judge, District 185, 201, 170, 1799 Mont. 903 P.2d this technically is accurate that in Brinkman concurring). it While “may’ in that case containing “may,” the use of Court enforced a CBA “may’ the CBA at bar. In from the use of entirely distinguishable *8 grievance; a CBA, “may’ filing to the whereas present refers “may” in employer’s Brinkman refers to the discharge employee. The mandatary Court’s conclusion that CBA contains a grievance procedure is not compelling. The Court focuses on the mandatory provisions of the CBA which (25) grievances “[a]ll
state that must twenty-five be filed within days “[a]ll after the occurrence ...” and grievances presented shall be grievance accordance with the procedure set forth below.” These mandatory provisions however, only play come into if one assumes that disgruntled has employee “grievance” chosen to invoke the procedure. Nothing requires in the CBA all claims be handled as “grievances” being fact, as opposed says to filed in court. In the CBA one) “may an employee grievance” and, file a formal (step written one, grievance if the step “may is not resolved at be filed two). Thus, (step with President.” has discretion in deciding “grievance” whether to invoke the If procedure. he or she does so, mandatory then the provisions triggered. the employee If decides to proceed “grievance” CBA, not with a under the he or she is free to file suit district court. Even if CBA, Orcutt were covered the CBA
did not mandate that comply procedure. its I would affirm the District denial summary Court’s of COT’s motion for judgment. REGNIER,
JUSTICE COTTER dissenting. and JUSTICE join foregoing We dissent of Leaphart. Justice dissenting. JUSTICE COTTER I Leaphart’s dissent, agree concur in Justice with his
conclusion that contained in the CBA was permissive following rather mandatory. arguments than I offer the Leaphart. addition to those offered Justice The United Supreme States Court has held that a requirement be arbitrate must “clear and Wright unmistakable.” In Corp. Universal Maritime Service Supreme 525 U.S. S.Ct. L.Ed. 2d Court judgment Appeals to vacated the of the Fourth Circuit Court of Wright complaint effect that arbitrate his of ADA compelled addressing violations set CBA. via forth right plaintiffs proceed judicial forum, in a the Court stated: general not provision We will infer from contractual parties statutorily protected intended waive unless the succinctly, undertaking ‘explicitly stated.’ More the waiver must be clear and unmistakable. (Internal omitted).
Wright,
error. Orcutt’s to a pursuit grievance, guaranteed lieu of the of a is also to them 39-31-306(5), MCA, upon by statute. Section which was relied plaintiffs opposition in the District Court in to State’s motion their summary judgment, provides pertinent part: agreement party
An a a to which school is must contain binding grievance procedure culminating in final and arbitration disputed interpretations agreements. unresolved aggrieved party may disputed or have interpretation resolved either final binding any legal or other method and arbitration available forum, grievance has to not both. After a been submitted but arbitration, grievant representative exclusive waive complaint any right pursue against to the school an action or remedy. grievant If a or the exclusive seeks the same school, representative complaint against or other action files remedy pursued seeking may not be filed or arbitration same under this section. clearly gives any aggrieved party unequivocally
This statute against election-grievance judicial a claim a school school,” By COT, undeniably “a remedy. filing against suit which is statutory right pursue their MacKay and Orcutt exercised their to complaint in a court of law. Justice Rice maintains in Concurring Opinion his 39-31- §
306(5), MCA, apply only was “meant” to elementary to local secondary schools. respect legislative With all due to Justice Rice’s recollections, the reliability which I have no reason dispute, to limiting statute contains no such language. 39-31-306(1), MCA, Section addresses agreements by “public reached employers,” 39-31-104(10), MCA, which defined at include, § among others, Regents. school boards and the Board of Section 39-31- 306(5), MCA, goes a special then on to carve out provision for collective bargaining agreements involving only “schools.” It stands reason provision apply that this would to all equally “public employers” those involving “schools” that are referenced in Chapter including the Board of Regents. if, Moreover, appears argue, Justice Rice the Legislature did 39, Chapter
not intend for Title apply public employers that *10 colleges universities, are it neglected to so inform Board the of Regents. The CBA between the of Regents defendant Board and the in very union references more than one chapter location this title and setting governing forth the with respect law to their mutual See, bargaining. e.g., (management collective 3.1 Article of the CBA rights 39-31-303, MCA, set forth applicable in unless specifically § contract), relinquished by (employees and Article 5.1 shall have the MCA). organize to freely 39-31-301, in with accordance § reasons, For the foregoing I submit this Court erred ¶41 has concluding and Orcutt’s cases must be dismissed their to pursue grievance procedures failure set forth the CBA. I strenuously dissent from the decision of this to Court reverse and remand with instructions to dismiss. I would reach the merits of the appeal, issues raised on and I would affirm the directed verdicts for MacKay and Orcutt. joins foregoing
JUSTICE REGNIER in the dissent. concurring. specially JUSTICE RICE holding by I concur and all with of conclusions reached and, therefore, signed opinion. separately have I write to opinion address the legitimate expressed by dissenting interest 39-31-306(5), MCA, to applicability dispute. this § 39-31-306(5), MCA, by The language adopted was § during Legislature regular by the 1993 session its enactment of Senate Blaylock. Bill Senator Chet After Bill introduced late Senate introduced, undersigned, representative, then state was Association, request representatives the Montana Education bill, carry the bill Blaylock’s agreed studying after Senator Representatives. House of pathway followed the convoluted way passage, On its the bill After actively opponents. proponents a bill lobbied
typical for Judiciary hearing in the House by the Senate and a passage adopted Committee, I amendments to the bill which were offered House, rejected Judiciary and the full but which were Committee Committee. When Senate, sending the matter to Conference by the in Conference yielded house to the other’s version bill neither dissolved, and a Free Conference Committee, that Committee was Blaylock, and Steve Committee, consisting of Senators Bob Brown Nelson, Randy Vogel myself, Linda Doherty, Representatives I authority to craft revisions to the bill. then appointed was adopted by the offered amendments in free conference which were Committee, houses, by the Governor. approved the full bill, beginning end, dispute an issue of between The was MEA, pushed by school teachers and school boards. bill opposed by Phil ably represented by Campbell, Eric Feaver and Association, represented by Boards also well Bob the Montana School Anderson, and, main, After the late Bruce Moerer. the bill’s Committee, hearing, introduction and its first the Senate Labor at the clarify, request Lynch, Senator John “J.D.” amended the bill to among things, it not applied, public other sector bargaining agreements generally agreements. to “school” At no but long journey legislators time in the to enactment did discuss or bill’s other than applicability provision consider the schools need for the elementary secondary schools. The evidence of bill exclusively experience from the of these local was demonstrated schools. houses, my After Governor Marc Racicot solicited action My to him referenced the
reasoning supporting response the bill. *11 over litigation school teachers and school boards pattern of between delaying and resolution of the issue of forum which was consideration merits-the same evidence considered disputes local school on their hearings. legislators during committee necessarily legislator’s I intention does not am well aware that history However, legislative Legislature’s intention.
constitute 15, ultimately becoming Chapter No. Laws to Senate Bill the bill’s references to clearly Montana demonstrates such, As only elementary secondary local schools. “schools” meant 20- definition of “school” within § that intention is consistent with the “high 6-501, MCA, “elementary an school” or a school.” provisions Annotated, The education Montana Code structure, language only refer K-12 referring education when to “school.” generally, Chapters See Title 1 through 20. For example, child, a “pupil” ages is defined as a between the of 6 and 20-1-101(10), who is enrolled in a contrast, “school.” Section MCA. noticeably the term “school” is provisions absent from the Code defining governing colleges generally, and universities. See Title 20, Chapters Chapter Colleges and Title 7. names, universities are specifically referred to in the Code other including “university,” “units,” “university system,” “colleges,” and 20-25-101, seq., 20-25-201, “institutions.” See et. et. MCA. seq., § § such, statutory authority As there is no attempt incorporate university system the units of the within a statute virtue of a solitary Indeed, reference to only authority “school.” there is for the opposite conclusion, one entirety which is also consistent with the legislative history of the matter. good Senate Bill 15 a very Perhaps embodied idea. idea agreements should be extended to involving colleges Legislature yet and universities. has not so, by enacting undertaken to do and did not do so Senate Bill 15 in