                                                                                              March 8 2016


                                           DA 15-0367
                                                                                            Case Number: DA 15-0367

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 53N



JEFF T. OLHAUSEN,

              Plaintiff and Appellant,

         v.

H&H CONTRACTING, INC.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Deer Lodge, Cause No. DV-13-93
                        Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jeff T. Olhausen (self-represented); Anaconda, Montana

                For Appellee:

                        Daniel D. Manson, Manson Law Firm, P.C.; Butte, Montana



                                                    Submitted on Briefs: February 3, 2016
                                                               Decided: March 8, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2        Jeff T. Olhausen appeals an order by the Third Judicial District Court, Deer Lodge

County, regarding his wage claims against H&H Contracting, Inc. We restate the issues

on appeal as follows: (1) whether the District Court correctly concluded that Olhausen’s

claims were preempted by federal law, and his only potential recovery was a wage claim

under state or federal law; (2) whether the District Court erred in determining the amount

of wages H&H owed to Olhausen; and (3) whether the District Court erred in ruling that

Olhausen could not introduce into evidence a draft collective bargaining agreement. We

affirm.

¶3        On May 1, 2013, H&H, the International Union of Operating Engineers, Local 400

(Operators’ Union), and the Laborers’ International Union of North America, Local 1686,

(Laborers’ Union) signed a collective bargaining agreement (Agreement). H&H hired

Olhausen in June 2013 and terminated his employment on September 4, 2013. Olhausen

retrieved his final paycheck from H&H on September 5, 2013. During the course of

Olhausen’s employment at H&H, he was a member of the Operators’ Union. At trial,

Olhausen produced a letter, dated October 1, 2013, which he allegedly sent to H&H and

the Operators’ Union, stating that there were errors in his paychecks. Olhausen also

                                              2
produced a second letter to the Operators’ Union, dated October 17, 2013, claiming he

was owed wages. John Riordan, the Operators’ Union’s business manager, investigated

Olhausen’s complaint. Riordan concluded that Olhausen was paid in full and in a timely

manner for all hours worked and was not entitled to additional or penalty pay.

¶4    On December 12, 2013, Olhausen filed a complaint against H&H in the District

Court, alleging that he was either underpaid or not paid at all for certain hours and days

he worked between June and September. He requested relief in the form of missing

wages, punitive damages, and a penalty pursuant to the Agreement. After ruling on

pretrial motions, the District Court held a bench trial. On March 10, 2015, the District

Court signed a proposed pretrial order that contained both parties’ signatures and

superseded the pleadings. In the pretrial order, Olhausen again claimed that he was either

not paid or underpaid for several hours and days worked between June and September.

H&H contended that Olhausen was paid correctly for every hour and day that he worked

as an employee of H&H. However, on March 10, 2015, H&H filed a notice of correction

to the pretrial order, alleging that it discovered a miscalculation in Olhausen’s wages.

H&H contended that, when originally calculating Olhausen’s wages, it was under the

impression that Olhausen was a member of the Laborers’ Union, rather than the

Operators’ Union, which receives a higher wage. Olhausen thus was underpaid for

certain hours he worked.

¶5    On March 29, 2015, the District Court entered its findings of fact, conclusions of

law, and final order. The court ordered H&H to pay Olhausen $432.66 to correct its error



                                            3
regarding his pay and assessed a 15% penalty as required by § 39-3-206, MCA, for a total

of $497.56. Olhausen appeals.

¶6     We review a district court’s findings of fact in a civil bench trial to determine

whether they are supported by substantial credible evidence.         DeNiro v. Gasvoda,

1999 MT 129, ¶ 9, 294 Mont. 478, 982 P.2d 1002. In doing so, we view the evidence in

the light most favorable to the prevailing party. DeNiro, ¶ 9. We review the District

Court’s conclusions of law to determine whether they are correct. DeNiro, ¶ 9.

¶7     Collective bargaining agreements are governed by federal law.           Edwards v.

Cascade Cnty. Sheriff’s Dep’t, 2009 MT 451, ¶ 50, 354 Mont. 307, 223 P.3d 893. “As a

general rule . . . 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.” Small v. McRae, 200 Mont. 497, 503,

651 P.2d 982, 986 (1982) (quoting Republic Steel Corp. v. Maddox, 379 U.S. 650, 652,

85 S. Ct. 614, 616 (1965)) (emphasis in original); see also DelCostello v. Int’l Bhd. of

Teamsters, 462 U.S. 151, 163, 103 S. Ct. 2281, 2290 (1983) (“Ordinarily, . . . an

employee is required to attempt to exhaust any grievance or arbitration remedies provided

in the collective-bargaining agreement.”).

¶8     Article V, Section 3 of the Agreement provides:

       Payrolls will be assumed to be correct and there will be no adjustment
       unless an employee makes a protest within ten (10) days in writing to the
       UNION and the EMPLOYER. This is not intended to by-pass State or
       Federal law concerning wages or the payment thereof; but only indicates
       that the UNION will not process a complaint unless within the ten (10)
       days.


                                             4
Article VII of the Agreement sets forth the grievance and arbitration provisions, and

requires the employer and the union to attempt to settle grievances regarding any

violation of the Agreement’s terms. The letter Olhausen produced at trial indicates that

he first notified the Operators’ Union of his wage claims on October 1, more than ten

days after his employment was terminated and he retrieved his last paycheck.

Nevertheless, Riordan investigated Olhausen’s complaint.             At the end of his

investigation, Riordan sent Olhausen a letter stating: “It was determined after reviewing

payroll records that you were paid in full and in a timely manner for all hours worked.

You are not entitled to any additional pay or penalty pay.”

¶9     Olhausen was bound by the result of the Agreement’s grievance procedure unless

the union representing him in the procedure “act[ed] in such a discriminatory, dishonest,

arbitrary, or perfunctory fashion as to breach its duty of fair representation.” DelCostello,

462 U.S. at 164, 103 S. Ct. at 2290. If this were the case, Olhausen’s remedy would be to

bring suit against both his employer and the union. His suit against the employer would

rest on § 301 of the Labor Management Relations Act (Act), 29 U.S.C. § 185, which

provides a mechanism for individual employees to enforce personal rights, such as wage

claims. See DelCostello, 462 U.S. at 164, 103 S. Ct. at 2290. His suit against the union

would have to be based on a breach of the union’s duty of fair representation.           See

DelCostello, 462 U.S. at 164, 103 S. Ct. at 2290. Although such lawsuits comprise two

causes of action, “the two claims are inextricably interdependent.” DelCostello, 462 U.S.

at 164, 103 S. Ct. at 2291. Thus, to prevail against either H&H or the Operators’ Union,



                                             5
Olhausen would have to demonstrate that the union breached its duty. See DelCostello,

462 U.S. at 165, 103 S. Ct. at 2291.

¶10    Throughout his various pleadings and the trial, Olhausen never alleged that the

Operators’ Union breached its duty of fair representation. After filing his complaint,

Olhausen continued to claim that he was owed wages for different hours and days

worked, at times citing dates and times that he previously had not claimed. Olhausen

never attempted to resolve these wage claims through the grievance and arbitration

provisions set forth in Article VII of the Agreement. Olhausen thus is not entitled to

recovery under the Agreement. By the same logic, the District Court did not err in not

applying the penalty provision set forth in the Agreement.            As the District Court

recognized, Olhausen’s only possible source of recovery was a wage claim under state or

federal law. Thus, the Court was correct in assessing a penalty under Montana’s wage

protection statutes, while declining to impose any penalty under the Agreement itself.

¶11    In his appellate brief, Olhausen makes a blanket assertion that “the District Court

erred in not holding [H&H] accountable for not paying Olhausen all wages due at [the]

time of termination.” Olhausen does not allege any specific hours, days, or amounts for

which he was not paid. Nor does he argue that the District Court’s decision was not

supported by the evidence before it. Likewise, Olhausen’s brief contains no support for

his naked assertion that the District Court erred “by not holding [H&H] accountable to all

State and Federal Laws governing pay dispersal.” Though Olhausen cites to multiple

state laws, he does not indicate how those laws apply to this case.



                                             6
¶12       While “we are willing to make accommodations for pro se parties by relaxing

those technical requirements which do not impact fundamental bases for appeal. . . , a

district court’s decision is presumed correct and it is the appellant who bears the burden

of establishing error by that court.”    In re Marriage of McMahon, 2002 MT 198, ¶ 7,

311 Mont. 175, 53 P.3d 1266. As far as Olhausen’s complaints about the District Court’s

ruling may pertain to the court’s findings, a review of Olhausen’s appellate brief fails to

clarify what specific findings he takes issue with. Accordingly, we will not disturb the

District Court’s findings. See McMahon, ¶ 7.

¶13       Olhausen also contends that the District Court erred in sustaining H&H’s

objection to Olhausen’s attempt to introduce a 2010 unsigned draft of the Agreement sent

to him by the Operators’ Union. However, he does not present any argument to support

this assertion. Accordingly, we will not consider his argument that the District Court

erred in its evidentiary ruling. See McMahon, ¶ 6 (“This Court has repeatedly held that

we will not consider unsupported issues or arguments.”); Wohl v. City of Missoula, 2013

MT 46, ¶ 48, 369 Mont. 108, 300 P.3d 1119 (“A party is responsible for developing legal

analysis that supports its position on appeal.”).

¶14       We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct and its findings of fact are not clearly erroneous. We

affirm.

                                              7
                          /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




                      8
