                                                                                            May 25 2016


                                          DA 15-0330
                                                                                         Case Number: DA 15-0330

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2016 MT 125N


JON G. CRUSON,

               Plaintiff and Appellee,

         v.

MISSOULA ELECTRIC COOPERATIVE, INC.,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV 13-645
                       Honorable Edward P. McLean, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       David B. Cotner, Anna C. Conley, Datsopoulos, MacDonald & Lind, P.C.,
                       Missoula, Montana

                       Edward “Rusty” Murphy, Murphy Law Offices, PLLC,
                       Missoula, Montana


                For Appellee:

                       David C. Berkoff, Berkoff Law Firm, P.C., Missoula, Montana

                       Nate McConnell, McConnell Law Office, P.C., Missoula, Montana



                                                   Submitted on Briefs: March 16, 2016

                                                              Decided: May 25, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon 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     Missoula Electric Cooperative, Inc. (MEC) appeals from an order entered by the

Fourth Judicial District Court, Missoula County, partially denying its motion for

summary judgment on claims filed by Jon Cruson (Cruson). We reverse.

¶3     MEC employed Cruson as a master electrician from October 1, 2001, until

May 20, 2013.1     Employing Cruson as its lone master electrician qualified MEC to

receive an Unlimited Electrical Contractor’s License from the Montana State Electrical

Board. Cruson is a member of the Local Union 44 of the International Brotherhood of

Electrical Workers, which entered into a Collective Bargaining Agreement (CBA) with

MEC.

¶4     Around 2009, Cruson began complaining to MEC’s general manager, Mark

Hayden (Hayden), other management personnel, and MEC’s board of directors that

unqualified employees were performing work that only an electrician could perform.


1
 For additional factual background, see Cruson v. Missoula Elec. Coop., Inc., 2015 MT 309, 381
Mont. 304, 359 P.3d 98.
                                              2
Cruson resigned from his position on or about May 19, 2013. Cruson initiated the

grievance process on May 28, 2013, by submitting a written complaint to MEC alleging

constructive discharge and retaliation for whistleblowing. Cruson’s grievance described

the same facts that formulate the basis of the claims asserted in this action—that MEC

allowed unqualified employees to conduct electrical work which created an unsafe

working environment and put Cruson’s Master Electrician’s License at risk. Pursuant to

the grievance procedure, on June 5, 2013, Cruson, representatives from his union,

Hayden, and MEC’s attorney met to discuss settling the dispute, but failed to reach an

agreement. On June 6, 2013, Cruson filed a complaint against MEC and a demand for a

jury trial. On June 28, 2013, the union demanded arbitration of Cruson’s grievance. The

parties scheduled binding arbitration proceedings to be held April 14-15, 2014.

However, on March 10, 2014, before arbitration began, Cruson withdrew his grievance

under the CBA and cancelled the scheduled arbitration hearing.

¶5     After resigning, Cruson filed four separate actions against MEC.2            Cruson’s

June 6, 2013 complaint, included eleven counts: 1) Violation of Article II, Section 3 of

the Montana Constitution; 2) Deceit; 3) Fraud; 4) Constructive Fraud and

Misrepresentation; 5) Tortious Interference with Electrical License Requirements;

6) Constructive Discharge for Refusing to Violate Public Policy; 7) Retaliation for

Refusing to Violate Public Policy; 8) Negligent Hiring, Training, and Supervision;


2
   The record does not establish in what tribunals or forums the other three actions have been
filed and they are not currently before us.
                                               3
9) Negligent Infliction of Emotional Distress; 10) Intentional Infliction of Emotional

Distress; and 11) Negligence Per Se. On June 25, 2014, MEC filed a motion for

summary judgment on all claims. In its order, the District Court partially granted and

partially denied MEC’s motion for summary judgment. The District Court did not rule

specifically regarding each count.3

¶6     The issue raised on appeal is whether the District Court erred by concluding

Cruson’s claims relating to safety and licensing fell outside the scope of the parties’ CBA

and were not subject to its mandatory arbitration provision.

¶7     We review an entry of summary judgment de novo and perform the same analysis

as a district court pursuant to Rule 56 of the Montana Rules of Civil Procedure. Lorang

v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345 Mont. 12, 192 P.3d 186 (citation omitted).

Summary judgment “should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P.

56(c)(3).

¶8     In its motion for summary judgment and brief in support filed in the District

Court, MEC argued that Cruson failed to complete the arbitration process required by the

CBA and failed to exhaust his contractual remedies. This failure, MEC maintained,


3
  On appeal, the parties dispute whether the language of the District Court’s order dismissed
specific claims. However, because we conclude the CBA covers and preempts all of Cruson’s
claims, we do not address which, if any, specific claims the District Court’s order may have
dismissed.
                                              4
waived Cruson’s right to pursue this lawsuit in District Court.    On appeal, Cruson

contends that a) the CBA does not govern his employment because he has a special

relationship with MEC; b) MEC’s prior admission that the CBA does not cover Cruson’s

claims bars MEC from now arguing that there is coverage; and c) Cruson’s claims are not

covered or preempted by the CBA. We address each contention in turn.

      a. Special relationship

¶9    On appeal, Cruson first argues that a special relationship between himself and

MEC distinguished his employment such that Cruson was not governed by the terms of

the CBA. Cruson explains that this relationship is unlike MEC’s other employment

relationships because Cruson acted as MEC’s lone master electrician. Cruson contends

this special relationship allowed MEC to apply for and receive its Unlimited Electrical

Contractor’s License.   MEC responds that there was no special relationship that

exempted Cruson’s employment from the terms of the CBA.

¶10   We agree with MEC. “We interpret the provisions of a [CBA] ‘according to the

plain, ordinary language used by the parties.’”    Klein, ¶ 20 (quoting Winchester v.

Mountain Line, 1999 MT 134, ¶ 28, 294 Mont. 517, 982 P.2d 1024). Cruson was a

member of the Local Union 44 of the International Brotherhood of Electrical Workers.

That entity entered into the CBA with MEC, which governs the employment

relationships between MEC and “all employees with job classifications that perform

electrical maintenance and construction.” Cruson was employed by MEC as its master

electrician to perform electrical maintenance and construction. As such, his employment
                                          5
was governed by the CBA. Furthermore, Cruson implicitly appeared to recognize that

his employment was governed by the CBA because he initially followed its grievance

procedure, but did not complete it.      Pursuant to the plain language of the CBA,

grievances respecting Cruson’s employment were matters governed by the CBA.

      b. Prior admission

¶11   Next Cruson argues MEC is barred from asserting that the CBA covers Cruson’s

claims because MEC already admitted the CBA does not cover his claims. Cruson refers

to a letter written by Hayden and addressed to Cruson’s union as support for his assertion

that MEC admitted the CBA does not cover his claims. That letter states, in part: “Mr.

Cruson voluntarily quit his position with [MEC].         I do not believe that he has

demonstrated a violation of the [CBA]. Therefore his grievance is denied.” “A judicial

admission is an express waiver made to the court by a party or its counsel conceding for

the purposes of trial the truth of an alleged fact.” Bilesky v. Shopko Stores Operating

Co., LLC, 2014 MT 300, ¶ 12, 377 Mont. 58, 338 P.3d 76 (internal quotations and

citation omitted). “There must be a statement made to the court” and “[s]tatements made

outside the litigation proceedings are not made to the court, and thus cannot be judicial

admissions.” Bilesky, ¶ 13 (citations omitted). This letter was sent pursuant to the

grievance process, outside litigation proceedings before a court. Furthermore, contrary to

Cruson’s assertion, this letter did not expressly concede that the CBA does not cover

Cruson’s claims. Instead, it discusses MEC’s belief that the CBA was not violated.

MEC did not admit the CBA lacked coverage over Cruson’s claims.
                                            6
      c. CBA coverage

¶12   Cruson contends that his claims fall outside the scope of the CBA because they are

based on public policy and state licensing requirements. Cruson’s complaint contained

eleven allegations stemming from his contention that MEC allowed unqualified

employees to complete work only a licensed electrician is authorized to conduct. This,

Cruson contends, placed his Master Electrician’s License in jeopardy and endangered the

public at large. MEC counters that all of Cruson’s claims relate to safety and licensing

and are expressly covered by the CBA.

¶13   “Only in those cases where it is certain that the arbitration clause contained in a

[CBA] is not susceptible to an interpretation that covers the dispute is an employee

entitled to sidestep the provisions of the [CBA].” Small v. McRae, 200 Mont. 497, 504,

651 P.2d 982, 986 (1982) (citation omitted). For example, in MacKay v. State, 2003 MT

274, 317 Mont. 467, 79 P.3d 236, nursing instructors at the Montana State College of

Technology filed a complaint against their employer alleging failure to provide a safe

working environment, constructive discharge, and other related claims. MacKay, ¶ 9. On

appeal, this Court concluded the district court erred when it denied Montana State

College of Technology’s motion for summary judgment. Summary judgment should

have been granted because a CBA covered the parties’ employment relationship and

governed workplace safety. We stated, “If the CBA covers the dispute . . . the CBA

should be interpreted as requiring use of the grievance procedure.” MacKay, ¶ 24.

Further, we specified that this Court consistently holds that “an employee covered by a
                                           7
CBA that contains a grievance procedure must exhaust that remedy before bringing suit.”

MacKay, ¶ 25 (citations omitted). “The purpose of the rule is to encourage arbitration of

disputes, and to make the use of grievance procedures in union agreements attractive to

both labor and management.” MacKay, ¶ 25. In MacKay, we determined that the CBA

could be interpreted as offering coverage and, therefore, that the instructors must have

exhausted their contractual remedies before filing suit.

¶14    Conversely, in Klein v. State, 2008 MT 189, 343 Mont. 520, 185 P.3d 986, we

addressed whether an employee’s tort claims were covered by a CBA. There, the CBA

stated, “the parties hereto agree that they will promptly attempt to adjust all disputes

arising between them involving questions of interpretation or application of the terms and

provisions of this Agreement.” Klein, ¶ 13. We concluded that Klein was not required to

pursue her tort claims of deceit and negligent infliction of emotional distress through

arbitration pursuant to the CBA because these claims did not involve “interpretation or

application” of the CBA’s terms. Klein, ¶ 24. We stated, “the alleged actions of the

[employer] are far afield of any employment action and have nothing to do with [] any of

the rights, terms, or provisions enumerated in the CBA.” Klein, ¶ 26. In Klein, we

determined that the plain language limited the CBA’s coverage to disputes interpreting or

applying its terms and left Klein’s tort claims outside the scope of the parties’ agreement.

¶15    Here, the CBA covers “all employees with job classifications that perform

electrical maintenance and construction.”        Summarized, the CBA includes general

provisions, grievance and arbitration procedures, guidelines for proper crew make-up to
                                             8
ensure workplace safety, and working rules. The grievance and arbitration procedures

direct employees who believe they have been aggrieved on any matter covered by the

CBA to write a grievance stating the provision of the CBA allegedly violated and the

relief they seek. After the written grievance is submitted, this provision directs the

necessary parties to hold a conference to discuss the issues and agree on a remedy.

According to these procedures, if the controversy is not resolved and either party

demands arbitration, the parties proceed to arbitration. The working rules outline various

classifications of workers, such as working foremen, servicemen, electricians, linemen,

groundmen, and apprentices and specify crew make-up to perform work safely and

productively.

¶16    Although Cruson states many claims in his complaint, all are derived from his

assertion that MEC allowed unqualified employees to conduct work only an electrician is

authorized to do. This, he argued, jeopardized his Master Electrician’s License because

“[t]he responsible electrician of a licensed electrical contractor shall not allow any person

to perform electrical work unless properly licensed.”       Admin. R. M. 24.141.403(5).

Upon examination of each count in Cruson’s complaint and the factual allegations

offered as support, we conclude all of the claims arise from Cruson’s allegations related

to electrical safety and licensing violations occurring while Cruson was employed with

MEC.




                                             9
¶17    “When reviewing whether a claim is covered by the terms of a [CBA], the role of

the court is confined to ascertaining whether the party seeking arbitration is making a

claim which on its face is governed by the contract. If it is, then the aggrieved party must

pursue and exhaust those remedies provided for in the [CBA].” Klein, ¶ 20 (internal

quotations and citations omitted). The scope of a CBA may be negotiated to include

arbitration of any controversy and “a broadly written arbitration provision requiring

arbitration of ‘any controversy’ encompasses a tort claim of assault.”         Edwards v.

Cascade Cnty. Sheriff’s Dep’t, 2009 MT 451, ¶ 54, 354 Mont. 307, 223 P.3d 893

(citations omitted). “When the scope of a [CBA] is written more narrowly than ‘any

controversy’ or ‘all claims,’ the contract wording must be reviewed to determine which

claims are not rooted in the [CBA] and are capable of being litigated directly in court.”

Edwards, ¶ 54 (citation omitted). Here, the grievance and arbitration procedure outlined

in the CBA states, “Any employee or group of employees who believes that they have

been aggrieved on any matter covered by this Agreement shall proceed as follows.”

¶18    We now compare the CBA terms to determine whether allegations related to

electrical safety and licensing violations are covered by the CBA. Sections 11.02, 11.04,

11.07, 12.00, and 12.01 cover general safety in the workplace, providing for “proper crew

make-up,” avoiding accidents, and MEC’s duty and authority to draft and enforce safety

provisions. Sections 11.00, 11.01, 11.02, and 11.04 cover job classifications, work crew

assignments, and generally regulate what class of employee can do specific types of

work. Together, these provisions cover safety related issues and work assignments,
                                            10
which Cruson alleges were inappropriately completed and jeopardized his Master

Electrician’s License. Accordingly, whether interpreted as broadly written or narrowly

written, the provisions of the CBA cover Cruson’s safety and licensing claims.

¶19   Our decision today comports with the decisions discussed above. Because our

conclusion is that the plain language and interpretation of the CBA provides coverage for

Cruson’s claims, he is not entitled to “sidestep” its provisions. The CBA allows a party

to demand arbitration, § 5.01, and Cruson’s union did so on June 28, 2013. Cruson must

have exhausted his contractual remedies under the CBA before filing this suit. The

District Court erred by failing to grant MEC’s motion for summary judgment.

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

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no issues of first impression and does not establish new precedent or modify

existing precedent.

¶21   The District Court’s order is reversed and remanded for entry of summary

judgment in favor of MEC.


                                                /S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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