                            No. 13767
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1977


AUDIT SERVICES, INC., a Montana
Corporation,
                        Plaintiff and Appellant,



BRASEL   &    SIMS CONSTRUCTION COMPANY,
                        Defendant and Respondent.


Appeal from:       District Court of the Eiahth Judicial District,
                   Honorable Joel G. Roth, District Judge presiding.
Counsel of Record:
    For Appellant:
             Cure and Borer, Great Falls, M.ontana
             Maxon R. Davis argued, Great Falls, Montana
   For Respondent:
          Smith, Emmons, Baillie and Walsh, Great Falls,
           Montana
          Robert J. Emmons argued, Great Falls, Montana
         Vidakovich, Pappas and Hooper, Lander, Wyoming


                               Submitted:   December 6, 1977
 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of the Court:


        Audit Services, I n c . , appeals from the order f o r summary

judgment and f i n a l judgment entered i n favor of Brasel & Sims

Construction Company by the D i s t r i c t Court, Cascade County.

        Audit Services, I n c . ,     (Audit Services) i s a nonprofit

Montana corporation created t o a s s i s t various union t r u s t funds

i n t h e c o l l e c t i o n of employer f r i n g e b e n e f i t contributions.   These

t r u s t funds were created pursuant t o the Labor Management Rela-

t i o n s Act, 29 U.S.C.     §186(c)(5) and t h e Employee Retirement

Income Security Act of 1974, 29 U.S.C.                Q l O O l e t seq.   Audit

Services i s suing i n i t s capacity a s assignee of e i g h t Montana

employee b e n e f i t t r u s t funds.    These t r u s t funds provide h e a l t h

and welfare, pension, apprenticeship and vacation b e n e f i t s t o

Montana l a b o r e r s , operating engineers and teamsters.               The t r u s t s

a r e funded ,by employer contributions based on hours worked by

union and nonunion employees within t h e p a r t i c u l a r c r a f t s .

Employer contribution r a t e s f o r each of the t r u s t funds a r e de-

termined by c o l l e c t i v e bargaining agreements negotiated between

the unions and individual employers o r between the unions and

associations of employers.

        Brasel & Sims Construction Company (Brasel & Sims) i s a

Wyoming construction firm.             During the period May 1972 through

August 1974, Brasel 6 Sims was performing under a road construc-

t i o n c o n t r a c t with the s t a t e of Montana, on a p r o j e c t located

i n southeastern Montana, on the Northern Cheyenne Indian Keserva-

tion.     A t the time Brasel & Sims commenced doing business i n

Montana i t r a t i f i e d t h e e x i s t i n g c o l l e c t i v e bargaining agreements

with t h e Montana Laborers, Operating Engineers, and Teamster
    Unions, negotiated i n 1971 and e f f e c t i v e from M y 1, 1971
                                                            a

    through April 30, 1974.

          O M y 8 , 1972, Brasel & Sims executed an instrument
           n a

    assigning i t s bargaining r i g h t s t o the Montana c o n t r a c t o r s '

,   Association f o r t h e purpose of negotiating and executing f u t u r e

    c o l l e c t i v e bargaining labor agreements with t h e Montana Laborers,

    Operating Engineers, and Teamsters Unions.                   The instrument of

    assignment s p e c i f i c a l l y provided:
          "
              * * * This         authority ***      s h a l l continue from
          year t o year unless n o t i c e of c a n c e l l a t i o n of t h i s
          a u t h o r i t y i s given t o t h e Montana Contractors'
          Association a t l e a s t s i x t y (60) days p r i o r t o t h e
          e x p i r a t i o n d a t e s of each of the e x i s t i n g aforesaid
          labor agreements. Cancellation of t h i s a u t h o r i t y
          s h a l l not r e l i e v e any contractor of the l e g a l respon-
          s i b i l i t i e s i t may have accrued by v i r t u e of the
          execution of any labor agreements on i t s behalf by
          t h i s Association. Contractor f u r t h e r understands
          t h a t i t can be released from the multi-employer
          bargaining u n i t of which i t c o n s t i t u t e s a p a r t , and
          t h e r e a f t e r negotiate and execute individual labor
          agreements only with t h e consent of the labor unions
          involved. "

          The present controversy arose when Audit Services f i l e d

    a complaint i n the D i s t r i c t Court, Cascade County, on April 11,

    1974, a l l e g i n g Brasel & Sims had f a i l e d t o pay employer c o n t r i -

    butions due under c e r t a i n c o l l e c t i v e bargaining agreements.

    Brasel & Sims f i l e d an answer denying l i a b i l i t y .         Plaintiff

    f i l e d an amended complaint on September 26, 1974, incorporating

    those claims previously a s s e r t e d , and prayed f o r judgment and

    an award of t r u s t fund contributions i n the sum of $14,175.64

    plus i n t e r e s t ; liquidated damages i n the sum of $580.78 plus

    i n t e r e s t ; i n t e r e s t i n t h e sum of $18.25; a u d i t fees i n t h e sum

    of $799.12 plus i n t e r e s t ; reasonable attorney fees i n the sum

    of $4,000; and c o s t s of s u i t .      Brasel & Sims f i l e d an answer t o
    t h e amended complaint renewing i t s d e n i a l of l i a b i l i t y .      The

    p a r t i e s commenced discovery and p r e t r i a l b r i e f s were f i l e d .

          O November 10, 1976, Brasel & Sims f i l e d a motion f o r
           n

    summary judgment.         A s t i p u l a t i o n of f a c t s f o r defendant's motion

    f o r summary judgment was executed by t h e p a r t i e s .           O December
                                                                            n

    30, 1976, the D i s t r i c t Court issued an order f o r summary

    judgment and f i n a l judgment, granting defendant's motion f o r

    summary judgment and dismissing p l a i n t i f f ' s complaint with

    prejudice.      O January 7 , 1977, Audit Services f i l e d a motion
                     n

    t o a l t e r judgment on the grounds: (1) The D i s t r i c t Court's

    order granting defendant's motion f o r summary judgment was based

    on an a f f i d a v i t which was never f i l e d with the D i s t r i c t Court;

    (2) newly discovered evidence; and, (3) insufficiency of the

    evidence.      A d i f f e r e n t judge assumed j u r i s d i c t i o n of the matter

    f o r t h e purpose of hearing and ruling on Audit Services' motion

    t o a l t e r judgment.    O January 24, 1977, the court issued i t s
                                n

    order granting Audit Services' motion t o a l t e r judgment-.

           "***           t o t h e extent t h a t the reference i n the order
           granting summary judgment r e f e r r i n g t o the a f f i d a v i t
           ***        i s s t r i c k e n on the grounds t h a t a t t h e time the
           order was made granting summary judgment, t h a t t h e
           a f f i d a v i t was not on f i l e a t t h a t time."

    Except f o r the exclusion of the unfiled a f f i d a v i t , which the

    court concluded was not the b a s i s f o r granting the summary

    judgment, Audit Services' motion t o a l t e r the judgment was

    denied.
\
          The p r i n c i p a l i s s u e on appeal i s whether the D i s t r i c t

    Court erred when it granted Brasel & Sims' motion f o r summary

    judgment.      Rule 56(c), M.R.Civ.P.,          provides:

           " (c)  ***         The judgment sought s h a l l be rendered
           forthwith i f t h e pleadings, depositions, answers
           t o i n t e r r o g a t o r i e s , and admissions on f i l e , together
          with t h e a f f i d a v i t s , i f any, show t h a t t h e r e i s
          no genuine i s s u e a s t o any material f a c t and t h a t
          t h e moving party i s e n t i t l e d t o . a judgment a s a
          matter of law        **     *."
    For an extensive discussion of t h e p r i n c i p l e s of summary judgment

    under Rule 56(c), M.R.Civ.P.,               see Harland v. Anderson, (1976), 169

    Mont. 447, 548 P.2d 613.

          Audit Services challenges t h e D i s t r i c t Court's order granting

    Brasel & Sims' motion f o r summary judgment and f i n a l judgment

    on these grounds: (1) That genuine i s s u e s of f a c t remain t o be

    determined; (2) t h a t matters accepted a s undisputed f a c t remain

    merely a l l e g a t i o n s of the defendant; (3) t h a t no b a s i s has been

    put f o r t h why the complaint should have been dismissed i n i t s

    e n t i r e t y ; and (4.) t h a t the D i s t r i c t Court misconstrued the law.

          Brasel & Sims, on the o t h e r hand,.contends summary judgment

<
    was properly granted i n i t s favor, since t h e r e were no genuine

    issues of material f a c t and f t was e n t i t l e d t o a judgment a s a

    matter of law.        Brasel & Sims argues: (1) I t s n o t i c e s t o the

    unions e f f e c t i v e l y communicated Brasel & ~ i m s ' i n t e n t t o with-

    draw from c o l l e c t i v e bargaining; (2) a t t h e time Brasel & Sims

    gave n o t i c e of i t s i n t e n t t o withdraw llunusual circumstances"

    e x i s t e d which permitted u n i l a t e r a l withdrawal; and (3) t h e

    unions consented t o Brasel & Sims' u n i l a t e r a l withdrawal.

          A l l p a r t i e s agree f e d e r a l labor law i s c o n t r o l l i n g s i n c e

    a dispute involving a c o l l e c t i v e bargaining agreement f a l l s within

    the purview of Section 301 of the Taft-Hartley Act, 29 U.S.C.                                 5185.

    While the Taft-Hartley Act provides f o r concurrent j u r i s d i c t i o n i n

    s t a t e c o u r t s , i n Dowd Box Co. v. Courtney, (1962), 368 U.S.                   502,

    82 S e c t . 519, 7 L ed 2d 483, t h e United S t a t e s Supreme Court held

    t h a t s t a t e c o u r t s must apply f e d e r a l law i n the exercise of t h a t

    jurisdiction.        Teamsters Union v. Lucas Flour Co.,                    (1962), 369
U.S.   95, 82 S.Ct. 571, 7 L ed 2d 593.                See Lowe v. O'Conner,

(1973), 163 Mont. 100, 515 P.2d 677.

       A t the o u t s e t , we hold the D i s t r i c t Court's order granting

summary judgment and f i n a l judgment must be vacated a s t o those

contributions sought f o r the period November 1, 1972 through

April 30, 1974, involving approximately 409 112 working hours.

During t h i s period of time, Brasel & Sims was bound by t h e 1971-

1974 c o l l e c t i v e bargaining agreement, e f f e c t i v e from May 1, 1971

through April 30, 1974.            Before t h i s Court, i n i t s w r i t t e n b r i e f s

and o r a l argument, counsel f o r Brasel & Sims admitted l i a b i l i t y

f o r these contributions.

       The remainder of the monetary r e l i e f sought by Audit

Services i s f o r contributions involving approximately 15,010

working hours performed a f t e r April 30, 1974, when the 1974-1977

c o l l e c t i v e bargaining agreement was i n e f f e c t .     Sixty days p r i o r

t o the e x p i r a t i o n of the 1971-1974 c o l l e c t i v e bargaining agree-

ment t h e unions gave timely n o t i c e of t h e i r i n t e n t t o renegotiate

the 1971-1974 agreement.            Good f a i t h bargaining between t h e unions

and t h e Montana Contractors' Association commenced, but no new

agreements were reached by M y 1, 1974.
                            a                            A t t h a t time members

of t h e operating engineers s e t up a picket l i n e and picketed

Brasel & Sims' work s i t e .        The laborers and teamsters refused t o

cross t h e picket l i n e , leaving Brasel & Sims with only nonunion

employees.

       O n May 3 , 1974 and M y 6 , 1974 Brasel & Sims dispatched
                             a

n o t i c e s of termination t o the Montana Operating Engineers,

Laborers,and Teamster Unions.              Although each of the memorandums

i s d r a f t e d i n a d i f f e r e n t form, they individually r e i t e r a t e

the phrase " A s of t h i s d a t e we a r e terminating our agreement with                    * * *"
the respective unions.         Two of the n o t i c e s contain the phrase

"Therefore, s i n c e the present contract expired on M y 1, 1974,
                                                       a

w a r e exercising our r i g h t t o terminate a t t h i s time."
 e                                                                             The

t h i r d n o t i c e contains t h e phrase "We, t h e r e f o r e a r e terminating

our agreement a s of t h i s time."        Neither a w r i t t e n n o t i c e s i m i l a r

t o the type Brasel & Sims dispatched t o t h e unions nor any o r a l

communication evidencing an i n t e n t t o withdraw from c o l l e c t i v e

bargaining was given t o the Montana Contractors ' Association.

      Meanwhile, the Montana Contractors' Association and

the unions continued negotiations.             Nw c o l l e c t i v e bargaining
                                                e

agreements were negotiated by t h e various unions and t h e

Montana Contractors' Association on June 11, 1974.                     In its

f i n a l executed form, t h e 1974-1977 c o l l e c t i v e bargaining agree-

ment r e l a t e d back t o May 1, 1974, the termination d a t e of

the 1971-1974 c o l l e c t i v e bargaining agreement.          I n t h e mean-

t i m e , Brasel & Sims had h i r e d nonunion employees t o complete

i t s road construction p r o j e c t .   It i s t h e employer contribu-

t i o n s f o r the period M y 1, 1974 through completion of Brasel
                            a

& Sims' road construction p r o j e c t which Audit Services seeks,

involving approximately 15,010 hours.

      The United S t a t e s Court of Appeals, i n N.L.R.B.              v. Beck

Engraving Co., Inc.(3rd C i r . 1975), 522 F.2d 475, summarized

f e d e r a l law c o n t r o l l i n g an employer's attempted withdrawal from

a multi-employer bargaining u n i t , a s announced i n R e t a i l

Associates, I n c . , (1958), 120 NLRB No. 66, pp. 388-400:

      '"Trimmed t o i t s e s s e n t i a l s , the R e t a i l Associates
      r u l e may be b r i e f l y s t a t e d : p r i o r t o negotiations,
      e i t h e r the union o r an employer i n a multi-employer
      bargaining u n i t may u n i l a t e r a l l y ( i . e . , without t h e
      consent of the o t h e r party) withdraw i f adequate w r i t t e n
      n o t i c e i s given which evidences an unambiguous i n t e n t
      t o withdraw; during negotiations, withdrawal is permis-
      s i b l e upon mutual consent o r may occur u n i l a t e r a l l y i n
     the event of unusual circumstances. The Courts of
     Appeals of several circuits have adopted and approved
     this formula. '" 522 F. 2d 481,
     Brasel & Sims contends its withdrawal from Montana Con-
tractors' Association during collective bargaining negotia-
tions was effective under the "unusual circumstances" test
discussed in N.L.R.B.     v. Beck Engraving Co., Inc,, supra,
However, such a conclusion must be premised on a finding that
Brasel & Sims sufficiently communicated to the unions and to
the multi-employer bargaining unit an intent to withdraw.
Otherwise, an employer might choose to remain silent until
new bargaining agreements are negotiated, evaluate the economic
benefit or detriment associated with declaring withdrawal, and
then contend unusual circumstances as a basis for releasing
the employer from contributions based upon man hours worked
after termination of the prior collective bargaining agreement.
     In the present fact situation, we fail to find Brasel &
Sims communicated to either the unions or to the Montana Con-
tractors' Association an unambiguous or unequivocal notice of
intent to withdraw from the multi-employer bargaining unit.
See N.L.R.B.    v. Hi-Way Billboards, Inc., (6th Cir. 1973), 473 F.2d
649; N.L.R.B.    v. John J. Corbett Press, Inc, (2nd Cir. 1968),
401 F.2d 673,675.       The notices dispatched by Brasel and Sims
were only sent to the unions, not to Montana Contractors'
Association, Further, the notices only evidenced an intent
to terminate agreements with the unions, i.e. the 1971-1974
collective bargaining agreements which expired on May 1, 1974.
In no specific terms do the notices dispatched by Brasel & Sims
communicate an intent to withdraw from the multi-employer bar-
gaining unit.     Nor is the unions' failure to respond to or protest
such n o t i c e s equivalent t o acquiescence o r consent t o a

purported withdrawal from the multi-employer bargaining u n i t .

Such a finding of i n s u f f i c i e n t n o t i c e of withdrawal d e f e a t s

Brasel & Sims' argument avoiding l i a b i l i t y f o r employer con-

t r i b u t i o n s under the 1974-1977 c o l l e c t i v e bargaining agreements.

The D i s t r i c t Court e r r e d when i t granted judgment f o r Brasel

& Sims a s a matter of law.

       The order of the D i s t r i c t Court granting Brasel & Sims'

motion f o r summary judgment and f i n a l judgment i s reversed and

the cause remanded t o the D i s t r i c t Court f o r f u r t h e r proceedings

c o n s i s t e n t with t h i s Opinion.



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