Mountain States Telephone v. Commis

No. 14557

I N THE SUPREME COURT O THE STATE O MONTANA F F

THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a C o l o r a d o Corporation,

P l a i n t i f f and Respondent,

T E COMMISSIONER O L B R AND H F A O INDUSTRY O THE STATE O M N A A e t a l . , F F OTN

D e f e n d a n t s and A p p e l l a n t s .

Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , Honorable Gordon R. B e n n e t t , J u d g e p r e s i d i n g .

Counsel o f Record:

For Appellants:

Rosemary B. Zion a r g u e d , H e l e n a , Montana C l a y Smith a r g u e d , Denver, C o l o r a d o James G a r d n e r , H e l e n a , Montana F o r Respondent:

Hughes, B e n n e t t and C a i n , H e l e n a , Montana John F. S u l l i v a n a r g u e d , H e l e n a , Montana

Submitted: September 1 9 , 1979

Decided : I Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This litigation originated as an administrative pro-

ceeding in the state Department of Labor and Industry. The decision of the administrative hearing was adverse to Moun-

tain States Telephone and Telegraph Company (hereinafter "Mountain Bell") and judicial review and declaratory relief were sought. The District Court of the First Judicial District, Lewis and Clark County, entered judgment for Mountain Bell remanding the parties to the administrative level where the original proceeding could be dismissed. Appellants appeal from that judgment, and Mountain Bell, as respondent, cross-appeals from certain dicta included in the District Court opinion. Mountain Bell is a Colorado corporation engaged in interstate commerce throughout the Rocky Mountain west, including Montana. It is a signatory to a collective bar- gaining agreement with the Communication Workers of America (CWA), a labor union. This agreement provides that an employee may request up to one year's maternity leave but may receive no benefits during pregnancy except death bene- fits. Rae Bauer, a member of CWA, was an operator for Moun- tain Bell in Great Falls, Montana, and had been so employed since 1973. She became pregnant in the spring of 1975. Because of a past history of gynecological problems and on the advice of her doctor, she began a leave of absence on October 15, 1975. She gave birth on January 20, 1976, but did not return to work until October 11, 1976. Under the Mountain Bell disability benefits plan, she was clearly ineligible for compensation for the pregnancy

leave taken. The company traditionally denied disability benefits for pregnancy-related conditions. On February 11, 1976, Rae Bauer filed a complaint under the Maternity Leave Act of the State of Montana, section 41- 2601 et. seq., R.C.M. 1947, now section 39-7-201 et seq., MCA, alleging that she was entitled to certain maternity leave benefits. After an administrative hearing, it was found that the Department of Labor and Industry had juris- diction over the matter. As a result of a second administra- tive hearing, the claim for benefits was dismissed. All parties excepted to the result of this hearing. The commis- sioner issued a decision which, in effect, said the Maternity Leave Act governed the situation and that benefits were payable. In so holding, the commissioner rejected Mountain Bell's argument that either the federal Employee Retirement Income Security Act of 1974 (ERISA) or the Labor Management Relation Act of 1947, as amended (LMRA), preempted the state law. Further, under the state act, the phrase "disabled as a result of pregnancy" meant all disabilities related to pregnancy and that pregnancy meant both pre- and post- childbirth conditions. The next day, the commissioner adopted the decision as part of the department's admin- istrative rules. Mountain Bell subsequently sought judicial review of the decision as well as to have the rules of the department declared invalid. On August 17, 1978, the District Court

concluded that the federal laws did preempt the operation of the state law and that the state law was unenforceable against Mountain Bell. From that portion of the court's

ruling, appellants appeal. By way of dicta, the ~istrict Court opinion said, for intrastate enterprises, the state

law required that benefits be paid for all pregnancy-related occurrences, whether normal or abnormal, and that the statute applied from the beginning of disability through the termina- tion of gestation and for a reasonable time afterwards. From this portion of the opinion, Mountain Bell cross- appeals. The following issues have been presented to this Court for review: 1. Does either the Employee Retirement Income Security Act of 1974, 29 U.S.C. SlOOl et seq., or the Labor Manage- ment Relations Act of 1947, as amended, 29 U.S.C. S141 et seq., preempt the application of section 39-7-203(3), MCA, of the Montana Maternity Leave Act to respondent/cross- appellant, the Mountain States Telephone and Telegraph Company? 2. Whether the above Montana statute must be construed to confer benefits for normal and abnormal pregnancy dis- abilities and to pre- and post-childbirth conditions? Appellants/cross-respondents' position can be summarized

as follows: (1) The Montana Maternity Leave Act is not preempted by the Employee Retirement Income Security Act or by federal labor laws. (2) Congress did not intend to legislate within ERISA on employment discrimination. Regulation of this field was

left subject to Title VII of the Civil Rights Act of 1964. ERISA does not affect the operation of Title VII. (3) Title VII is based upon a model of state and federal cooperation. It provides for deferral to state anti-discrim-

ination agencies of Title VII complaints and protects state laws which do not conflict with Title VII from preemption by that Act.

(4) These provisions are part of a congressional pur- pose to encourage the development of state anti-discrimination laws* his purpose, which is essential to Title VII, would be impaired if ERISA were held to prohibit states from enacting anti-discrimination laws such as the Maternity Leave Act. (5) ~ i t l e VII affirmatively protects state anti-dis- crimination laws from preemption. Operation of local laws is an integral part of legislative scheme of Title VII. (6) The United States Supreme Court has refused to find preemption in areas where Congress has intended to foster cooperation. (7) The recent enactment of the Pregnancy Disability Act, a law amending Title VII, specifically overturned General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, and made it clear that Congress did not preempt state pregnancy disability laws by enacting ERISA. (8) Federal labor laws do not preempt the Montana

Maternity Leave Act. Applying a balancing test, the interest of the state in providing economic protection to its women workers clearly outweighs any implied incursions into the territory occupied by NLRA/LMRA. (9) Title VII also protects the Montana statute from preemption by federal labor law. (10) The statutory protection afforded by Title VII and the Montana Maternity Leave Act are in the nature of an

independent right and cannot be waived through collective bargaining. (11) There is a presumption in favor of the validity of state statutes which deal with an area of traditional state concern.

(12) The Montana Maternity Leave Act clearly applies to all periods of disability occurring as a result of pregnancy, whether these periods of disability are normal or unusual, and regardless of whether they occur before or after child- birth. Respondent/cross-appellant takes a generally contrary

position. The Equal Employment Opportunity Commission, appearing by amicus brief, argues that state fair employment laws such as section 39-7-201 et seq., MCA, are not preempted by ERISA for the reasons stated in Bucyrus-Erie C q . v. Department of Industry, Etc. (7th Cir. 1979), 599 F.2d 205, and for the reasons stated in the briefs of appellants/cross-respondents.

ERISA PREEMPTION - - MONTANA ACT OF THE The first issue facing this Court is whether section 39-7-203(3), MCA, is preempted by the Employee Retirement Income Security Act (ERISA, P.L. 93-406, 88 Stat. 897, enacted September 2, 1974, and in particular 5514 thereof, codified as 29 U.S.C. 51144 and referred to herein as 51144).

Section 39-7-203(3), MCA, of the Montana Maternity Leave Act, provides in pertinent part: "It shall be unlawful for an employer or his agent to:

"(3) deny to the employee who is disabled as a result of pregnancy any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by her employer . . ." The preemption provision of ERISA, 29 U.S.C. 51144(a), provides in pertinent part:

" ( a ) e x c e p t a s p r o v i d e d i n s u b s e c t i o n ( b ) of t h i s s e c t i o n , t h e provisions of t h i s subchapter ... s h a l l s u p e r s e d e any and a l l S t a t e laws i n s o f a r a s t h e y may now o r h e r e a f t e r r e l a t e t o any employee b e n e f i t p l a n d e s c r i b e d i n s e c t i o n 1 0 0 3 ( a ) of t h i s t i t l e . . ." 29 U.S.C. 5 1 0 0 3 ( a ) makes t h e above s e c t i o n a p p l i c a b l e

t o any b e n e f i t p l a n e s t a b l i s h e d o r m a i n t a i n e d by any employer engaged i n i n t e r s t a t e commerce. There i s no d i s p u t e t h a t Mountain B e l l i s engaged i n i n t e r s t a t e commerce n o r i s t h e r e any d i s p u t e t h a t Mountain B e l l ' s employee b e n e f i t p l a n i s c o v e r e d by ERISA.

Mountain B e l l a r g u e s , and t h e D i s t r i c t C o u r t h e l d , t h a t t h e f e d e r a l government h a s c l e a r l y and unambiguously o c c u p i e d t h e f i e l d w i t h r e s p e c t t o employee h e a l t h and w e l f a r e benef i t s and h a s preempted t h e s t a t e s from i n any way r e g u l a t i n g s u c h b e n e f i t s o t h e r t h a n by t h e s p e c i f i c exemptions p r o v i d e d i n 29 U.S.C. 5 1 1 4 4 ( b ) , exemptions which a d m i t t e d l y do n o t apply here.

A p p e l l a n t s do n o t a g r e e . They c o n t e n d t h a t t h e Montana s t a t u t e i s exempted from ERISA preemption by 29 U.S.C. § 1 1 4 4 ( d ) , which d e c l a r e s , " [ n l o t h i n g i n t h i s s u b c h a p t e r s h a l l be c o n s t r u e d t o a l t e r , amend, modify, i n v a l i d a t e , i m p a i r o r s u p e r s e d e any law o f t h e United S t a t e s ... "1 in c o n j u n c t i o n w i t h 42 U.S.C. 52000e-7 ( s e c t i o n 708 i n T i t l e VII, P.L. 88-352, C i v i l R i g h t s Act of 1964, 78 S t a t . 2621, which p r o v i d e s , " [ n l o t h i n g i n t h i s s u b c h a p t e r s h a l l be deemed t o exempt o r r e l i e v e any p e r s o n from any l i a b i l i t y , d u t y , p e n a l t y , o r punishment p r o v i d e d by any p r e s e n t o r f u t u r e law of any S t a t e . . ." Appellants argue t h a t t o a l l o w preemption of t h e Montana M a t e r n i t y Leave Act by s u b s e c t i o n ( a ) o f 29 U.S.C. S 1 1 4 4 would be t o v i o l a t e subs e c t i o n ( d ) of t h a t s t a t u t e by i m p a i r i n g a law of t h e u n i t e d S t a t e s ( t h e 1964 C i v i l R i g h t s A c t ) by r e l i e v i n g ~ o u n t a i n B e l l from i t s l i a b i l i t y under t h e Montana Act.

Appellants further contend that by permitting ERISA preemption, two other sections of the Civil Rights Act would be impaired. They are 42 U.S.C. S2000e-5(c) (section 706, Title VII, P.L. 88-352, 78 Stat. 259, which provides for deferral of federal action in equal employment opportunity cases for a period of sixty days to permit the commencement of proceedings under state law) and 42 U.S.C. S2000h-4 (section 1104, Title XI, 78 Stat. 268, which provides: "[nlothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is incon- sistent with any of the purposes of this Act or any provi- sion thereof"). In effect, appellants argue that if the Montana Act is preempted, the above sections of the Civil Rights Act will be delimited. Although appellants' arguments found little solace in the District Court's opinion, similar arguments have found support in other jurisdictions: Goodyear Tire & Rubber v. Dept. of Industry (1978), 87 Wis.2d 56, 273 N.W.2d 786; Bucyrus-Erie Co. v. Dept. of Industry (E.D. Wisc. 1978), 453 F.Supp. 75, aff'd, (7th Cir. 1979), 599 F.2d 205; Illinois Bell Tel. Co. v. Fair Employment Practices Commission (1979), 68 111.App.3d 829, 25 111.Dec. 328, 386 N.E.2d 599; Westing- house Elec. Corp. v. State Human Rights Appeals Board (1978), 60 A.D.2d 943, 401 N.Y.S.2d 597; Liberty Mutual Insurance Company v. State Division of Human Rights (1978), 61 A.D.2d 822, 402 N.Y.S.2d 218; Lukus v. Westinghouse Electric Corp.,

NO. GD77-14803 (Ct. of Common Pleas for Allegheny County, Pa., April 20, 1978 (unpublished opinion); Time Insurance Co. v. Department of Industry, Labor and Human Relations, No. 145-423, ( ~ t . Dane County, Wisc., January 3, 1978), of 16 BNA FEP 391. Although not dealing with facts similar to the instant case, a number of courts have interpreted the preemption provision in its "broadest sense." See Wadsworth v. Whaland (1st Cir. 1977), 562 F.2d 70; Standard Oil Co. of California v. Agsalud (N.D. Cal. 1977), 442 F.Supp. 695, 706-07; Bell v. Employee Security Benefit Ass'n (D. Kan. 1977), 437 F.Supp. 382, 385-88; Wayne Chemical v. Columbus Agency Service Corp. (N.D. Ind. 1977), 426 F.Supp. 316, 321, aff'd as modified, (7th Cir. 1977), 567 F.2d 692; Hewlett-Packard Co. v. Barnes (N.D. Cal. 1977), 425 F.Supp. 1294, aff'd, (9th Cir. 1978), 571 F.2d 502; Azzaro v. Harnett (S.D. N.Y. 1976), 414 F.Supp. 473, 474, aff'd, (2nd Cir. 1977), 553 F.2d 93, cert. denied, (1977), 434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82; National Carriers Conf. Com. v. Heffernan (D. Conn. 1978), 454 F.Supp. 914, 918; Francis v. united Tech- nologies Corp. (N.D. Cal. 1978), 458 F.Supp. 84. But see, Insurers Action Council, Inc. v. Heaton (D. Minn. 1976), 423 F.Supp. 921, 926. It is interesting to note that although Wadsworth and Bell favored broad preemption by ERISA, they both held that the individual statutes before them were spared from exemp- tion, albeit by the specific ERISA provision sparing state laws regulating insurance from preemption. Further, Wayne

Chemical, while finding preemption, incorporated the state statute in question into the federal common law of employee benefit plans. Hewlett-Packard and Azzaro, on the other

hand, found b r o a d p r e e m p t i o n . The s t a t e l a w s i n t h e s e two c a s e s , however, c o n c e r n e d a r e a s r e g u l a t e d by ERISA.

T h e r e a r e a number o f cases on p o i n t where a s t a t e law p r o h i b i t i n g discrimination i n t h e provision of d i s a b i l i t y b e n e f i t s t o p r e g n a n t workers i s involved. While t h e r e i s a s p l i t o f a u t h o r i t y , t h e m a j o r i t y o f o p i n i o n s t o d a t e have found no f e d e r a l p r e e m p t i o n o f t h e s t a t e law. G a s t v. S t a t e , by and t h r o u g h S t e v e n s o n ( 1 9 7 8 ) , 36 0r.App. 4 4 1 , 585 P.2d 1 2 ; Goodyear T i r e & Rubber v. Dept. o f I n d u s t r y , s u p r a ; Bucyrus-Erie Co. v. Dept. o f I n d u s t r y , s u p r a ; I l l i n o i s B e l l Tel. Co. v. F a i r Employment P r a c t i c e s Commission, s u p r a ; Westinghouse E l e c . Corp. v. S t a t e Human R i g h t s Appeals Board, s u p r a ; L i b e r t y Mutual I n s u r a n c e Co. v . S t a t e D i v i s i o n o f Human R i g h t s , s u p r a ; Lukus v. Westinghouse E l e c t r i c Corp., s u p r a ; Time I n s u r a n c e Co. v . DILHR, s u p r a . Contra, S t a t e o f Minnesota v . MMM Co., Department o f Human R i g h t s D e c i s i o n , Minn., September 1 6 , 1977; P e r v e l I n d u s t r i e s v. S t a t e o f Conn. (D. Conn. 1 9 7 8 ) , 468 F.Supp. 490; American Chain and C a b l e Co., I n c . v . Iowa C i v i l R i g h t s Commission, CE 6-2938 ( P o l k D i s t r i c t County C t . , Iowa, J u n e 28, 1 9 7 8 ) (unpublished o p i n i o n ) .

S e v e r a l of t h e above d e c i s i o n s have a d o p t e d t h e view t a k e n by a p p e l l a n t s h e r e i n - - t h a t T i t l e V I I p r o t e c t s state

s t a t u t e s from p r e e m p t i o n by ERISA.

The F e d e r a l D i s t r i c t C o u r t i n ~ u c y r u s - E r i e , s u p r a ,

a n a l y z e d t h e i n t e r r e l a t i o n s h i p o f T i t l e V I I , ERISA, and t h e Wisconsin pregnancy d i s a b i l i t y law. The c o u r t found t h a t

w h i l e ERISA d e a l s w i t h employee b e n e f i t p l a n s , t h e isc cons in

F a i r Employment A c t d o e s n o t s p e c i f i c a l l y a d d r e s s s u c h p r i v a t e employee b e n e f i t s p l a n s : "Rather, t h i s A c t i s

d e s i g n e d t o p r o h i b i t d i s c r i m i n a t i o n i n employment and i s

grounded on the state's police power. It does not impinge on federal regulation of employee benefit plans." 453

The court further found that although ERISA supersedes state laws relating to employee benefit plans, it does not expressly provide that all state fair employment laws are likewise superseded: "The legislative history of the Act fails to indicate that Congress, by enacting ERISA, intended to preempt state fair employment laws as they may concern employee benefit plans. "Section 1144(d) does, in fact, provide that ERISA shall not be construed to alter, modify or supersede any law of the United States. "Title VII of the Civil Rights Act of 1964, 42 U.S.C. 8 2000e, et seq., as amended, ex- pressly preserves state laws such as the Wis- consin Fair Employment Act which are designed to prohibit employment discrimination. 42 U.S.C. SB 2000e-7 and 2000h-4. "Title VII specifically provides that no charge may be filed with the EEOC under Title VII until sixty days after proceedings have been commenced under the state employment discrimi- nation law, 42 U.S.C. S 2000e-5(c), 5(d) and 5(e). The EEOC must give substantial weight to state agency findings and orders and must cooperate with such agencies. 42 U.S.C. S S 2000e-5 (b), 2000e-8. "From an examination of the provisions of ERISA and its legislative history, and con- sidering Congress' long-standing recognition of the importance of state employment discrimi- nation laws, this Court finds that it is not clear that Congress intended to preempt the Wisconsin Fair Employment Act insofar as it prohibits sex discrimination in employee bene- fit plans. "Because preemption is not clearly mandated in this Court's opinion, this Court declines to invalidate the Wisconsin Fair Employment Act against a claim of federal preemption grounded on ERISA. To hold otherwise, would also seri- ously impair the enforcement scheme of Title VII of the Civil Rights Act of 1964." Bucyrus- Erie, 453 F.Supp. at 79.

The c o u r t i n Goodyear T i r e & Rubber v . Dept. o f Indust r y , s u p r a , used a s i m i l a r r a t i o n a l e i n c o n c l u d i n g t h a t t h e exemption c o n t a i n e d i n S1144(d) a p p l i e s t o T i t l e V I I of t h e C i v i l R i g h t s A c t and t h r o u g h T i t l e V I I t o s e c t i o n 111.32 ( 5 ) ( g ) o f t h e Wisconsin F a i r Employment A c t s o a s t o p r e -s e r v e i t from ERISA preemption:

"There i s no q u e s t i o n b u t t h a t p r i o r t o ERISA, sec. 111.32 ( 5 ) ( g ) , S t a t s . , was c o n s i s t e n t w i t h T i t l e V I I which, l i k e t h e Wisconsin s t a t u t e , p r o h i b i t e d s e x d i s c r i m i n a t i o n i n employment. 42 U.S.C. s e c . 2000e-2 ( a ) (1). The Wisconsin s t a t u t e t h e r e f o r e s u r v i v e d and was n o t preempted by T i t l e V I I . More p r e c i s e l y , and i n t h e words of 42 U.S.C. s e c . 2000h-4, t h e r e was no ' i n t e n t on t h e p a r t o f Congress t o occupy t h e f i e l d ... ( o f s e x d i s c r i m i n a t i o n i n employment) ... t o t h e e x c l u s i o n o f ' W i s c o n s i n ' s l a w on t h e same s u b j e c t .

"And t h e r e i s no q u e s t i o n b u t t h a t T i t l e V I I s u r v i v e s i n t a c t t h e preemption p r o v i s i o n s o f ERISA by v i r t u e o f s e c . 1 1 4 4 ( d ) .

" I f sec. 1 1 1 . 3 2 ( 5 ) ( g ) , S t a t s . , s u r v i v e d T i t l e VII, and i f t h e l a t t e r s u r v i v e s ERISA, t h e n t h e l o g i c o f t h e f e d e r a l s t a t u t e s compels t h e con- c l u s i o n t h a t s e c . 1 1 1 . 3 2 ( 5 ) ( g ) s u r v i v e s ERISA." Goodyear, 273 N.W.2d a t 795.

The c o u r t r e j e c t e d a n argument ( s i m i l a r t o one made h e r e by Mountain B e l l ) by Goodyear t h a t :

". . . s e c . 111.32(5)(g), Stats., survives only T i t l e V I I and i s preempted a s t o employee bene- f i t p l a n s b e c a u s e t h e exemption from preemption i s limited t o T i t l e V I I . The argument i s based upon t h e o p e n i n g words o f 4 2 U.S.C. S2000h-4, ' N o t h i n g c o n t a i n e d i n any t i t l e o f t h i s Act s h a l l be c o n s t r u e d .. . ' a s preempting s t a t e laws and, t h e argument c o n t i n u e s , ' o t h e r f e d e r a l s t a t u t e s ' may work preemption. The ' o t h e r f e d e r a l s t a t u t e ' i n v o l v e d , however, i s sec. 1 1 4 4 ( d ) of ERISA which t e l l s u s , i n e f f e c t , t h a t n o t h i n g i n T i t l e V I I s h a l l be c o n s t r u e d a s a l t e r e d , amended, modi- f i e d , i n v a l i d a t e d , i m p a i r e d o r s u p e r s e d e d by ERISA. I f w e a r e t o a d o p t Goodyear's view of ERISA, an e x c e p t i o n a s t o employee b e n e f i t p l a n s must be found i n 4 2 U.S.C. 52000h-4 o f T i t l e V I I . T h a t e x c e p t i o n d o e s n o t a p p e a r on t h e f a c e of 42 U.S.C. S2000h-4. Such a n e x c e p t i o n would have t o be based upon a n i m p l i e d amendment of T i t l e V I I r e s u l t i n g from t h e a d o p t i o n of ERISA, and would be c o n t r a r y t o s e c . 1 1 4 4 ( d ) of ERISA.

"Goodyear argues it would be a nonsequitur for Congress broadly to declare that state laws are preempted and then to permit the states to regu- late employee benefit plans through the mecha- nism of a different federal statute. But the fact is that Congress declared in sec. 1144(d) of ERISA that federal laws remain unchanged after ERISA and Title VII continues to permit states to prohibit sex discrimination in employ- ment." Goodyear, 273 N.W.2d at 795-96. In Liberty Mutual Insurance Company v. State ~ivision of Human Rights, supra, the court reviewed a determination by the State Human Rights Appeal Board affirming an admin- istrative finding that an employer had discriminated against the complainant on the basis of her sex through disallowance of pregnancy-related benefits and stated: ". . . Althoughthe Congress fashioned a broad preemptive policy when it passed ERISA (see U.S. Code, tit. 29, 5 1144[al), the legislative history behind the passage of the retirement program leads us to conclude that Congress did not intend to narrow the jurisdiction of those Federal and State agencies whose duty it is to regulate unlawful employment practices. The statements of Senator Walter Mondale and Repre- sentative Bella Abzug, made in their respective Houses of Congress, indicate that anti-discrimi- nation amendments to the ERISA legislation were only withdrawn upon assurance from the ERISA draftsmen that discrimination claims would continue to fall within the jurisdiction of the Equal Employment Opportunity Commission under terms of existing law (see 119 Cong.Rec. S30409- 10 [Sept. 19, 19731; 120 Cong.Rec. H4726 [Feb. 28, 19741). Thus, it is clear that Congress did not intend to disturb the established structures for administering such claims. Since title VII of the Civil Rights Act has clearly not been impaired by ERISA (see U.S. Code, tit. 29, 51144 [dl; U.S. Code, tit. 42, §2000e-7), and since it vests concurrent jurisdiction in the Equal Em- ployment Opportunity Commission and similar State-level agencies to investigate these claims (see, e.g. U. S. Code, tit. 42, SS2000e-4 [gl [ll 2000e-7), we find that the jurisdiction of the State Division of Human Rights was not preempted by ERISA." Liberty Mutual, 402 N.Y.S.2d at 219. To the same effect as the above three cases are Lukus v. Westinghouse Electric Corp., supra, and Illinois Bell Tel. Co. v. Fair Employment Practices Commission, supra.

In Gast, supra, the court reviewed the history of ERISA as well as its substantive provisions and concluded there was no broad intent to preempt substantive provisions such as the Oregon pregnancy law: "The subject matter of ERISA does not compel the conclusion that Congress intended to preempt states in regulating such things as pregnancy benefits. The scope of the regulatory scheme embodied in ERISA is limited, particularly with respect to health and welfare benefits. The statutory purposes enumerated in 29 U.S.C. 51001 are: (1) to require disclosure and reporting to beneficiaries; (2) to ensure that employee pen- sion benefit programs are adequately funded; (3) to improve the equities of pension plans; and (4) to establish 'minimum standards * * * assur- ing * * * their finanacial soundness.'

"More significantly, there is no suggestion in the statute that Congress intended to regulate the substance of health and welfare benefits or the manner in which such benefits are to be pro- vided. Thus, if we are to adopt the construction of 29 U.S.C. 51144(a) advanced by plaintiffs we must import to Congress not only an intent to preempt state law, but also an intent to cease all governmental regulation, state or federal, other than the disclosure and fiduciary require- ments of health and welfare benefits paid by employers or employee organizations. There is nothing in the legislative history suggesting such an intent. To the contrary, the legislative history indicates Congress was concerned with the inadequacy of governmental regulations and con- cluded that there should be at least minimum federal standards with respect to disclosure and fiduciary responsibility. See, e.g., 29 U.S.C. S1001." Gast, 585 P.2d at 20-21. Although holding against preemption, the court, citing General Electric v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 3Br did not accept the argument that Title VII spared the state act from preemption. In Time Insurance Co. v. DILHR, supra, the court also concluded that Wisconsin's pregnancy disability statute was not within the field of law preempted by ERISA. It held

that the state law concerned:

". . . is a statute broad in scope grounded on the State's police power to prevent employers engaging in any employment practice which dis- criminates because of sex. It in no way impinges on federal regulation of employee benefit and pension plans. The sex discrimination prohibi- tions of the Wisconsin Fair Employment Law are merely of peripheral concern of ERISA. Until the United States Supreme Court rules to the contrary, this Court is of the Opinion that Wisconsin courts so long as there exists a rational doubt that preemption exists, should uphold validity of sec. 111.32(5)(g), Stats., against a claim of federal preemption grounded on ERISA." 16 BNA FEP cases at 396. While the nonpreemption view appears to be in the majority, not all maternity leave cases agree with the one quoted above. In American Chain and Cable Co., Inc. v. Iowa Civil Rights Commission, supra, the Iowa court held that according to General Electric v. Gilbert, supra, and under Iowa law, an employer's disability benefit plan which spe- cifically excluded disabilities due to pregnancy did not discriminate against women nor violate state or federal civil rights laws. The court also summarily concluded that ERISA had preempted the field. Similarly, the court in Pervel Industries v. State of Connecticut (D. Conn. 1978), 468 F.Supp. 490, rejected the double savings clause rationale that Title VII protected Connecticut's anti-discrimination law from preemption: "This Court does not accept the reasoning of this double savings clause contention. Section 514(d) of ERISA preserves federal law. Connec- ticut's anti-discrimination law does not become a federal law simply because Title VII preserves its validity as against a claim of preemption by Title VII. Nor is the textual argument sig- nificantly enhanced by focusing on §514(b)'s requirement that ERISA should not be construed to 'impair' any law of the United States. Pre- emption of Conn. Gen. Stat. S31-126(g) by ERISA does not impair any federal law. Title VII did not create new authority for state anti-discrim- ination laws; it simply left them where they were before the enactment of Title VII. What- ever is prohibited by Title VII remains prohi-

bited under ERISA but exclusion of disability benefits for pregnancy does not violate Title VII. . ." Pervel Industries, 468 F.Supp. at 493. As stated earlier, the nonpreemption viewpoint, as espoused by appellants, is favored by the majority of cases involving such maternity discrimination statutes. All the cases, however, rely on some, albeit varied, interpretation of how Title VII, ERISA, General Electric v. Gilbert, supra, and state laws interact. The parties agree that "potential problems of discrim- ination in employee benefit plans were not intended to be dealt with by ERISA," but were intended to be dealt with by Title VII of the Civil Rights Act of 1964. This is where the agreement ends, however, with Mountain Bell contending that under General Electric v. Gilbert, supra, it was not sex discrimination within the meaning of Title VII for an employer to exclude pregnancy disability benefits from coverage under employee plans, and appellants contending that the states were permitted to regulate employee benefit plans in the area of discrimination. Mountain Bell's position fails to take into account the rather checkered history of Gilbert, including the recent significant addition to Title VII demonstrating a contrary congressional intent, and the cases decided after Gilbert, demonstrating a consistent refusal on the part of the major- ity of the courts to follow Gilbert. An excellent discus-

sion of this history is set out in Illinois Bell Tel. Co. v. Fair Employment Practices Commission, supra: "On October 31, 1978 section 701(k) of the Civil Rights Act of 1964 was signed into law adding a definition to the Act which demands a view of the statute from a different perspective, pro- viding, in pertinent part:

"'The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth or related medical con- ditions shall be treated the same for all employ- ment-related purposes, including receipt of bene- fits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in sec- tion 703(h) of this title shall be interpreted to permit otherwise.' "The language of section 701(k) makes clear that Congress disagreed with the interpretation placed upon the pregnancy discrimination issue by the Gilbert decision. This inference is buttressed by the commentary set forth in the Report of the Committee on Education and Labor of the House of Representatives which stated, in part: "'It is the Committee's view that * * * dissent- ing justices [Brennan, Marshal and Stevens in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 3431 correctly inter- preted the act. * * * We recognize that the enact- ment of H.R. 6075 will reflect no new legislative mandate of the Congress nor affect changes in practices, costs, or benefits beyond those in- tended by title VII of the Civil Rights Act.' U.S. Code Cong. & Admin. News 1978, pp. 4749, 4750. "Even in the absence of section 701(k) of Title VII, recent cases from other jurisdictions, which were decided after the Gilbert decision by the Supreme Court and after the decision of the trial court herein, almost unanimously sup- port the conclusion we reach. (Massachusetts Electric Co. v. Massachusetts Cornm'n Against Discrim. (Mass. 1978), 375 N.E.2d 1192; Quaker Oats Co. v. Cedar Rapids Human Rights Comm'n (Iowa 1978), 268 N-W.2d 862; Castellano v. Linden Board of Education (1978), 158 N.J.Super. 350, 386 A.2d 396; Anderson v. Upper Bucks County Area Vocational Tech. School (1977), 30 Pa.Cmwlth. 103, 373 A.2d 126.) (Contra: Narragansett Elec- tric Co. v. Rhode Island Comm'n for Human Rights (R.I. 1977), 374 A.2d 1022; Group Hosp., Inc. V. Dist. of Columbia Comm'n on Human Rights (D.C. 1977), 380 A.2d 170.) Decisions by courts in other states, preceding that of the circuit court of Cook County herein, deciding contrary to its conclusion, include Brooklyn Union Gas Co. v. N. Y. State Human Rights Appeal Board (1976), 41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393; Ray- 0-Vac v. Wisconsin Dept. of Industry, Labor & Human Relations (1975), 70 Wis.2d 919, 236 N.W.2d 209; Cedar Rapids School Dist. v. Parr (Iowa Sup. Ct. 1975), 227 N.W.2d 486. See also Comment, Love's Labor Lost: New Conceptions of Maternity

Leave, 7 Harv.Civ.Rights-Civ.Lib.L.Rev. 260 (1972); Johnston, Sex Discrimination and the Supreme Court--1971-1974, 49 N.Y.S.L.Rev. 672 (1974); Comment, Pregnancy and the Constitution: The Uniqueness Trap, 62 Calif. L.Rev. 1532 (1974); Comment, Geduldig v. Aiello: Pregnancy Classi- fications and the Definition of Sex Discrimina- tion, 75 Colum.L.Rev. 441 (1975); Comment, Preg- nancy and Employment Benefits, 27 Baylor L.Rev. 767 (1975). "Representative of the viewpoints expressed by the foregoing authorities is the well-reasoned opinion in Massachusetts Electric Co. v. Massa- chusetts Comm'n Against Discrim. (Mass. 1978), 375 N.E.2d 1192 which held (375 N.E.2d at 1198- 99): "'In considering whether the exclusion of bene- fits for pregnancy-related disabilities from a comprehensive disability plan violates G.L. c. 151B, 84, the initial inquiry necessarily in- volves determining whether distinctions based on pregnancy are sex-linked classifications. Pregnancy is a condition unique to women, and the ability to become pregnant is a primary char- acteristic of the female sex. Thus, any classi- fication which relies on pregnancy as the deter- minative criterion is a distinction based on sex. General Elec. Co. v. Gilbert, 429 U.S. 125, 149, 97 S.Ct. 401, 414, 50 L.Ed.2d 343 (1976) (Bren- nan, J., dissenting) ("Surely it offends common sense to suggest . . . that a classification revolving around pregnancy is not, at the mini- mum, strongly 'sex related'"). Id. at 161-162, 97 S.Ct. at 421 (Stevens, J., dissenting) ("By definition ... [placing pregnancy in a class by itself] discriminates on account of sex; for it is the capacity to become pregnant which pri- marily differentiates the female from the male"). Gilbert v. General Elec. Co., 375 F.Supp. 367, 381 (E.D. Va. 1974), reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) ("[pregnancy] is undisputed[ly] and inextricably sex-linked. . .. That [exclusion of pregnancy-related dis- abilities] is discriminatory by reason of sex is self evident"). See Black v. School Comm. of Malden, 365 Mass. 197, 209-211, 310 ~.E.2d 330 (1974). "'The exclusion of pregnancy-related disabilities, a sex-based distinction, from a comprehensive disability plan constitutes discrimination. While men are provided comprehensive coverage for all disabilities which will necessitate their absence from work, including male-specific dis- abilities, women are not provided the assurance of comprehensive protection from the inability to earn income during a period of disability. * * * (Citations omitted.) Pregnancy exclusions

in disability programs "both financially burden women workers and act to break down the con- tinuity of the employment relationship, thereby exacerbating women's comparative transient role in the labor force". * * * (Citations omitted. ) Moreover, pregnancy exclusions reflect and per- petuate the stereotype that women belong at home raising a family rather than at a job as perma- nent members of the work force. * * *I (Cita- tions omitted. ) "It is also noteworthy that the decisions of the six federal courts of appeal which predate General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, concordantly concluded that pregnancy exclusions violated Title VII and constituted unlawful sex discrimination. Communi- cations Workers v. American Telephone & Telegraph Company (2nd Cir. 1975), 513 F.2d 1024, vacated, 429 U.S. 1033, 97 S.Ct. 724, 50 L.Ed.2d 744 (1977); Wetzel v. Liberty Mutual Insurance Co. (3d Cir. 1975), 511 F.2d 199, vacated, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Gilbert v. General Electric Co. (4th Cir. 1975), 519 F.2d 661, reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Satty v. Nashville Gas Co. (6th Cir. 1975), 522 F.2d 850, vacated in part, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Hutchison v. Lake Oswego School Dist. (9th Cir. 1975), 519 F.2d 961, vacated, 429 U.S. 1033, 97 S.Ct. 725, 50 ~.Ed.2d 744 (1977). "Since its decision in Gilbert, it appears that the Supreme Court has itself retreated from its position in two cases treating pregnancy-employ- ment problems with a somewhat different outlook. (Nashville Gas Co. v. Satty (1977), 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356; City of Los Angeles, Dept. of Water v. Manhart (1977), 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657.) Especially to be noted is the concurring opinion of Mr. Justice Blackmun in Manhart." Illinois Bell, supra, 386 N.E.2d at 601-03. The above history indicates Congress originally intended to protect against sex discrimination in employment under Title VII. This, coupled with the fact that the Equal Employment Opportunity Commission guideline overturned in Gilbert was still in effect when ERISA was being considered, indicates that Congress did not intend to preempt employment discrimination acts which tangentially affect employee benefit plans because it had already attempted to do so under Title VII.

Mountain Bell argues that statements made by Senators Javits and Williams, the principal architects of ERISA, concerning the impact of ERISA upon the Age Discrimination in Employment Act Amendments of 1978, P.L. 95-256, 92 Stat. 189 (1978), amending the Age Discrimination in Employment Act of 1967, 29 U.S.C. SS621-634, are entitled to substan- tial weight in interpreting ERISA, in that they reflect upon the legislative intent of an earlier statute through subse- quently enacted legislation. Goodyear made a similar argu- ment in Goodyear Tire & Rubber v. Dept. of Industry, supra. The court there rejected the argument, stating: "That senatorial colloquy occurred more than three years after ERISA was enacted. Legislative observations years after passage of the Act are not part of its legislative history. United Air Lines, Inc. v. McMann, 434 U.S. 192, 200, footnote 7, 98 S.Ct. 444, 54 L.Ed.2d 444 (1977). Our con- struction of ERISA is not foreclosed because mem- bers of Congress express contrary views after its passage. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 384, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). The Age Discrimination in Employment Act Amendments of 1978 do not amend, clarify or at- tempt to clarify ERISA. Goodyear's reliance upon Red Lion Broadcasting Co. v. F.C.C., 394 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1968), is therefore misplaced, for in -- the court said, 'Sub- Red Lion sequent legislation declaring the intent[ion] of - earlier statute is entitled to great weight- an in statutory construction.' (394 U.S. 381, 89 S.Ct. 1801, emphasis added.)" 273 N.W.2d at 797. It is well settled that the question of whether a state statute is invalid under the supremacy clause depends upon the intent of Congress. Malone v. White Motor Corp. (1978), 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443. It is also well settled that state statutes are presumed to be valid unless Congress clearly intended these statutes to be super- seded by federal law. Jones v. Rath Packing Co. (1977), 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604; Motor Coach Employees V. Lockridge (1971), 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d

473; E'lorida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248. As stated earlier: "The subject matter of ERISA does not compel the conclusion that Congress intended to preempt states in regulating such things as pregnancy benefits. The scope of the regulatory scheme embodied in ERISA is limited, particularly with respect to health and welfare benefits. The statutory purposes enumerated in 29 U.S.C. SlOOl are: (1) to require disclosure and reporting to beneficiaries; (2) to ensure that employee pen- sion benefit programs are adequately funded; (3) to improve the equities of pension plans; and (4) to establish 'minimum standards * * * assuring * * * their financial soundness.'" Gast, 585 P.2d at 20. There is nothing in ERISA which treats the area of employment discrimination. The problem arises because we are dealing with two statutes--one state and one federal-- that seek to regulate separate activities although some overlapping areas exist between them. While ERISA super- sedes state laws relating to employee benefit plans, it does not expressly supersede all state fair employment laws, nor does it mention them. Indeed, given the history of Title VII, it would have been illogical if it had. ". . . Here, we have a federal regulatory scheme which regulates a limited area coupled with an express declaration which, if broadly inter- preted, preempts states from a multitude of other areas which heretofore have been recog- nized as valid state concerns. . ." Gast, 585 P.2d at 22. To hold for preemption would be to create an enormous vacuum in areas that have heretofore been traditionally dealt with by the states through the liberal intent of Title VII. The substantive nature of health and welfare benefits are not addressed by ERISA. We should not presume congres- sional intent to preempt unless Congress "has unmistakably so ordained." Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 142.

NATIONAL LABOR RELATIONS ACT PREEMPTION The District Court declined to rule on this issue, noting: "Consideration of whether federal labor law preempts the Maternity Leave Act by implication is unnecessary in view of the much clearer preemptive declaration of ERISA. At any rate, I reach that conclusion and therefore will not attempt an analysis of federal labor law to determine whe- " ther or not it preempts our Maternity Leave .Act. As there was no ruling concerning the effect of federal labor law by the District Court, this issue is technically not before us. The parties, however, have spent substantial portions of their briefs discussing this issue, and in view of our decision concerning ERISA, it becomes necessary to discuss this issue as well. During the relevant time period of this lawsuit, the employment relationship between Mountain Bell and Rae Bauer was governed by a collective bargaining agreement between Mountain Bell and Rae Bauer's labor union, Communications Workers of America. This collective bargaining agreement was entered into under and subject to the provisions of federal labor law. Generally, federal labor law does not specify what the substantive terms of collective bargaining agreements must be. Instead, federal labor law requires that employers and unions must bargain in good faith that they may work out for themselves their own agreements for the governance of their industrial relations. See 29 U.S.C.

Sl58(d). Mountain Bell contends that federal labor law requires as a "mandatory subject of bargaining" that employers and unions come to some agreement on employer group insurance, including insurance for nonoccupational injuries or disease.

W. W. Cross & Co. v. NLRB (1st Cir. 1949), 174 F.2d 875, 878. Here, this mandatory collective bargaining between Mountain Bell and CWA resulted in an agreement which states that Mountain Bell is not required to pay disability bene- fits when an employee is on a maternity leave of absence. Mountain Bell further contends that the attempt by the Commission of Labor and Industry to compel Mountain Bell to pay such benefits under section 39-7-203, MCA, alters the collective bargaining agreement and violates the fundamental premise of federal labor law: that the terms and conditions of employment must be established by the collective bargain- ing which are not subject to being changed or altered by the application of contrary state laws. Appellants, on the other hand, reiterate that the Maternity Leave Act has been affirmatively authorized by Title VII. Further, they argue that such statutory protec- tion against certain forms of employment discrimination is in the nature of an independent right and cannot be waived through collective bargaining. The court in Goodyear Tire & Rubber v. Dept. of Industry, supra, faced a similar issue. Goodyear's disability plan was negotiated subject to the NLRA. The effect of the department of industry's order there was to invalidate a provision in the plan which excluded pregnancy disabilities from full benefits. The department's order, therefore, altered Goodyear's collective bargaining agreement. The court cited exten-

sively from Malone v. White Motor Corp. (1978), 435 U.S. 497, 98 S.Ct. 1185, 55 ~.Ed.2d 443, and found that under Malone it had to look at federal labor law to determine whether state law had been preempted. The court did so and

held ". . . we f i n d a n e x p r e s s s t a t e m e n t i n T i t l e V I I , 29 U.S.C. s e c . 2000h-4, t h a t t h e r e was no ' i n t e n t on t h e p a r t o f Congress t o occupy t h e f i e l d .. .' of sex discrimination i n employment t o t h e e x c l u s i o n o f s t a t e l a w s on t h e same subject matter." 273 N.W.2d a t 798.

I n Malone t h e i s s u e was whether a Minnesota p e n s i o n s t a t u t e w a s preempted p r i o r t o t h e e n a c t m e n t of ERISA by f e d e r a l labor policy i n s o f a r a s it purported t o override o r c o n t r o l t h e terms of c o l l e c t i v e b a r g a i n i n g agreements negot i a t e d under t h e NLRA. The c o u r t s t a t e d :

" I t i s u n c o n t e s t e d t h a t whether t h e Minnesota s t a t u t e i s i n v a l i d under t h e Supremacy C l a u s e depends on t h e i n t e n t o f Congress. 'The pur- p o s e o f Congress i s t h e u l t i m a t e t o u c h s t o n e . ' R e t a i l C l e r k s v. Schermerhorn, 375 U.S. 96, 103 ( 1 9 6 3 ) . O f t e n Congress d o e s n o t c l e a r l y s t a t e i n i t s l e g i s l a t i o n whether it i n t e n d s t o preempt s t a t e l a w s ; and i n s u c h i n s t a n c e s , t h e c o u r t s n o r m a l l y s u s t a i n l o c a l r e g u l a t i o n o f t h e same subject matter unless it c o n f l i c t s with federal law o r would f r u s t r a t e t h e f e d e r a l scheme, o r u n l e s s t h e c o u r t s d i s c e r n from t h e t o t a l i t y of t h e c i r c u m s t a n c e s t h a t Congress s o u g h t t o occupy t h e f i e l d t o t h e e x c l u s i o n of t h e S t a t e s . Ray v . A t l a n t i c R i c h f i e l d Co., a n t e , a t 157-158; J o n e s v . Rath Packing Co., 430 U.S. 519, 525, 540-541 ( 1 9 7 7 ) ; R i c e v . S a n t a Fe E l e v a t o r Corp., 331 U.S. 218, 230 ( 1 9 4 7 ) . 'We c a n n o t d e c l a r e pre-empted a l l l o c a l r e g u l a t G n t h a t t o u c h e s o r c o n c e r n s i n a n y w a y t h e complex G r = n r s h i p s between employees, employers and u n i o n s ; -o f t h i s _ o b v i o u s l y , much - - i s __ - - S t a t e s . ' l e f t t o the Motor Coach Employees v . L o c k r i d g e , 403 U.S. 274 ( 1 9 7 1 ) . The P e n s i o n A c t ' l e a v e s much t o t h e s t a t e s , though Congress h a s r e f r a i n e d from t e l l i n g u s how much. W must s p e l l o u t from c o n f l i c t i n g e i n d i c a t i o n s of c o n g r e s s i o n a l w i l l t h e a r e a i n which s t a t e a c t i o n i s s t i l l p e r m i s s i b l e . ' Garner v . T e a m s t e r s , 346 U.S. 485, 488 ( 1 9 5 3 ) . Here, t h e C o u r t o f Appeals concluded t h a t t h e Minnesota s t a t u t e was i n v a l i d because i t t r e n c h e d on what t h e c o u r t c o n s i d e r e d t o be s u b j e c t s t h a t Congress had committed f o r d e t e r m i n a t i o n t o t h e c o l l e c t i v e - bargaining process.

"There i s l i t t l e d o u b t t h a t under t h e f e d e r a l s t a t u t e s g o v e r n i n g labor-management r e l a t i o n s , a n employer must b a r g a i n a b o u t wages, h o u r s , and working c o n d i t i o n s and t h a t p e n s i o n b e n e f i t s a r e p r o p e r s u b j e c t s o f compulsory b a r g a i n i n g . But t h e r e i s n o t h i n g i n t h e NLRA, i n c l u d i n g

t h o s e s e c t i o n s on which a p p e l l e e r e l i e s , which e x p r e s s l y f o r e c l o s e s a l l s t a t e r e g u l a t o r y power w i t h r e s p e c t t o those i s s u e s , such a s pension p l a n s , t h a t may be t h e s u b j e c t o f c o l l e c t i v e bargaining. I f t h e P e n s i o n A c t i s pre-empted h e r e , t h e c o n g r e s s i o n a l i n t e n t t o do s o must be i m p l i e d from t h e r e l e v a n t p r o v i s i o n s of t h e labor statutes. . ." Malone, 435 U.S. a t 5 0 4 - 505. (Emphasis s u p p l i e d . )

The c o u r t found no s u c h i m p l i c a t i o n a n d , on t h e cont r a r y , found an i n t e n t i n t h e W e l f a r e and P e n s i o n P l a n s D i s c l o s u r e A c t of 1958 t o p r e s e r v e s t a t e a u t h o r i t y t o regul a t e p e n s i o n p l a n s . L i k e w i s e , t h e c o u r t i n Goodyear found an i n t e n t t o preserve s t a t e a u t h o r i t y t o r e g u l a t e sex discrimination. 273 N.W.2d a t 798.

I n San Diego B u i l d i n g T r a d e s C o u n c i l v . Garmon ( 1 9 5 9 ) , 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, t h e c o u r t s t a t e d :

". . . When t h e e x e r c i s e of s t a t e power o v e r a p a r t i c u l a r a r e a of a c t i v i t y threatened i n t e r - f e r e n c e w i t h t h e c l e a r l y i n d i c a t e d p o l i c y of i n d u s t r i a l r e l a t i o n s , i t h a s been j u d i c i a l l y n e c e s s a r y t o p r e c l u d e t h e S t a t e s from a c t i n g . However, due r e g a r d f o r t h e p r e s u p p o s i t i o n s of o u r embracing f e d e r a l system, i n c l u d i n g t h e p r i n c i p l e o f d i f f u s i o n of power n o t a s a m a t t e r o f d o c t r i n a i r e l o c a l i s m b u t a s a promoter o f democracy, h a s r e q u i r e d u s n o t t o f i n d w i t h - d r a w a l from t h e S t a t e s of power t o r e g u l a t e where t h e a c t i v i t y r e g u l a t e d was a merely p e r i - p h e r a l c o n c e r n o f t h e Labor Management R e l a t i o n s Act. [Citations omitted.] O r where t h e regu- l a t e d c o n d u c t touched i n t e r e s t s s o d e e p l y r o o t e d i n l o c a l f e e l i n g and r e s p o n s i b i l i t y t h a t , i n t h e a b s e n c e of c o m p e l l i n g c o n g r e s s i o n a l d i r e c t i o n , we c o u l d n o t i n f e r t h a t Congress had d e p r i v e d t h e S t a t e s of t h e power t o a c t . " 359 U.S. a t 243-44.

Mountain B e l l a r g u e s t h a t r a t h e r t h a n weighing and b a l a n c i n g s t a t e and f e d e r a l i n t e r e s t s , which t h e Garmon opinion prescribes, t h e f e d e r a l c o u r t s have e v o l v e d a comp a r a t i v e l y heavy-handed d o c t r i n e of preemption which a p p l i e s whenever a s t a t e law h a s any e f f e c t whatsoever on any a s p e c t of l a b o r r e l a t i o n s o r any e l e m e n t o f a c o l l e c t i v e b a r g a i n i n g agreement.

Mountain Bell relies on Local 24 of the International Brotherhood of Teamsters v. Oliver (1959), 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, and Lodge 76, Machinists v. Wis- consin Employment Relations Commission (1976), 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, to support its position that the federal policy under the NLRA is to preempt state attempts to alter or change the substantive terms of collective bargaining. "Our decisions . . . have made it abundantly clear that state attempts to influence the substantive terms of collective-bargaining agreements are as inconsistent with the federal regulatory scheme as are such attempts by the NLRB. . ." Lodge 76, 427 U.S. at 153. Both of the above cases dealt with areas substantively covered by NLRA: Oliver with wages and working conditions, and Lodge 76 with economic weapons of collective bargaining. Intent to preempt state action in such areas is readily recognizable. The instant case, however, does not deal with an area specifically covered by the NLRA but rather with an area of peripheral concern. To use a broad-sword approach to preemption in this area would be to forget the Supreme Court's own words: ". .. Federal labor policy as reflected in the National Labor Relations Act . . . has been con- strued not to preclude the States from regulating aspects of labor relations that involve 'conduct touch[ing] interests so deeply rooted in local feeling and responsibility that ... we could not infer that Congress had deprived the States of the power to act.' ... the federal law govern- ing labor relations does not withdraw 'from the states . . . power to regulate where the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act.' . . . Cases that have held state authority to be pre-empted by federal law tend to fall into one of two cate- gories: (1) those that reflect the concern that 'one forum would enjoin, as illegal, conduct which the other forum would find legal' and (2) those that reflect the concern 'that the [application

of state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts.'" Lodge 76, 427 U.S. at 136-38. (Omitting cases.) Clearly, this case does not fall in either of these tradi- tional areas of preemption but is in an area of traditional local concern which only peripherally affects the collective bargaining process. Goodyear, supra. Alexander v. Gardner-Denver Company (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, holds that an individual's rights to equal employment opportunities under Title VII ". . . form no part of the collective bargaining process . . ." 415 U.S. at 51. ". . . Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and insti- tutions relating to employment discrimination .. ." Alexander, 415 U.S. at 48-49. Mountain Bell argues the Maternity Leave Act does not create the kind of personal and individual right found in Alexander because "the rights sought to be vindicated [in Alexander] were substantially protected by Title VII, whereas with respect to pregnancy disability benefits the Supreme Court has held that a denial thereof is not sex discrimina- tion within the meaning of Title VII." This argument, however, ignores the fact that Title VII affirmatively protects and encourages state anti-employment discrimination legislationr as discussed herein, supra. The rights accorded under section 39-7-203, MCA, are uniquely personal and may not be waived through the collec- tive bargaining process. Alexander v. Gardner-Denver, supra.

"If Title VII rights to equal employment oppor- tunities are non-negotiable in collective bar- gaining, and if those rights are in addition to rights granted by state law, it is unlikely that Congress intended that the latter may be bar- gained away even though Title VII rights may not. And if the individual's rights to equal oppor- tunities are greater under state than federal law, it is unlikely that Congress intended that rights obtained from the state may be bargained away even though federal rights may not." Goodyear, 273 N.W.2d at 800. We therefore conclude that section 39-7-203, MCA, is not preempted by the National Labor Relations Act.

WHETHER THE MONTANA MATERNITY LEAVE ACT CONFERS BENEFITS FOR NORMLAND DISABILITIES AND TO PRE- ABNORMAL PREGNANCY AND POST-CHILDBIRTH CONDITIONS. - - P

Mountain Bell contends that section 39-7-203, MCA, should be limited to abnormal or unexpected complications of pregnancy. The District Court rejected this argument because the language of the statute and its legislative history do not expressly limit coverage to abnormal or involuntary complications. Mountain Bell, however, submits that the absence of such an express limitation is perfectly understand- able in light of the fact that pregnancy is a largely volun- tary condition, and, as such, the work absences associated with its normal and usual progression are not the types of disability usually covered by sick leave plans, which are primarily intended to compensate employees for unexpected illnesses and accidents. Mountain Bells continues that given the fact that pregnancy is not the typical covered disease or disability, one would expect that if the legislature had intended cover- age of the normal usual and voluntary assumed consequences thereof, it would have said so expressly; however, the statute itself is silent on this issue and there is nothing

i n t h e l e g i s l a t i v e h i s t o r y which a f f i r m a t i v e l y i n d i c a t e s a n i n t e n t t o r e q u i r e s i c k leave coverage f o r pregnancy-related p r o b l e m s which a r e normal, n a t u r a l , e x p e c t e d and v o l u n t a r i l y assumed. Mountain B e l l s u b m i t s t h a t t h e l e g i s l a t u r e ' s s i l e n c e on t h i s i s s u e c a n l e a d o n l y t o t h e c o n c l u s i o n t h a t it intended t h a t t h e phrase "disabled a s a r e s u l t of pregnancy" b e i n t e r p r e t e d i n a c c o r d a n c e w i t h t h e u s u a l p o l i c y o f s i c k l e a v e p l a n s t o compensate f o r u n e x p e c t e d wage l o s s . In t h e c a s e o f p r e g n a n c y , t h i s would mean t h a t compensation i s r e q u i r e d u n d e r s e c t i o n 39-7-203, MCA, only i n cases of d i s a b i l i t i e s r e s u l t i n g from abnormal and u n e x p e c t e d complic a t i o n s o f pregnancy.

A p p e l l a n t s c o n t e n d t h a t s u c h a narrow i n t e r p r e t a t i o n o f s e c t i o n 39-7-203(3), MCA, would be c o n t r a r y t o t h e p l a i n meaning of t h e s e c t i o n and would t o t a l l y d e f e a t t h e p u r p o s e of the legislature i n enacting the section. Appellants f u r t h e r c o n t e n d t h a t t h e S e n a t e had a p r o p o s e d l i m i t a t i o n , s i m i l a r t o t h e o n e e s p o u s e d by Mountain B e l l , which w a s r e j e c t e d i n a c o n f e r e n c e committee o f t h e House and S e n a t e . They f u r t h e r a r g u e t h a t t h e M a t e r n i t y Leave A c t was b a s e d on a C o n n e c t i c u t s t a t u t e which, w h i l e weaker i n many r e s p e c t s and more r e s t r i c t e d t h a n i t s Montana d e s c e n d a n t , h a s s t i l l been i n t e r p r e t e d t o a p p l y t o d i s a b i l i t i e s which r e s u l t from b o t h normal and abnormal p r e g n a n c i e s and t o d i s a b i l i t i e s which o c c u r b o t h b e f o r e and a f t e r c h i l d b i r t h .

The a n a l y s i s o f J u d g e B e n n e t t i n h i s o p i n i o n i n t h e D i s t r i c t C o u r t was d e c i s i v e on t h i s p o i n t :

" I n c o n s t r u i n g a s t a t u t e , words a r e t o b e g i v e n t h e i r n a t u r a l , p l a i n and o b v i o u s meaning. [Ci- t a t i o n s omitted.] In construing l e g i s l a t i v e i n t e n t , s t a t u t e s must b e r e a d and c o n s i d e r e d i n t h e i r e n t i r e t y - - t h e s t a t u t e a s a whole must b e considered. U.S. v . F o r t Belknap, 197 F.Supp.

812 ( ~ o n t ) . I n r e a d i n g t h e m a t e r n i t y l e a v e l a w a s a whole, t h e p u r p o s e o f t h e s t a t u t e seems o b v i o u s : when employed women become p r e g n a n t , t h e y c a n n o t be d e n i e d m a t e r n i t y l e a v e i f t h e y a r e eligible a t a l l f o r disability benefits. They are e n t i t l e d t o t h o s e b e n e f i t s u n t i l t h e y a r e p h y s i c a l l y a b l e t o go back t o work. There i s n o t h i n g i n t h e s t a t u t e t o even s u g g e s t t h a t b e n e f i t s s h o u l d be a l l o w e d o n l y i f t h e d i s a b i l i - t i e s a r e i n v o l u n t a r y o r r e s u l t from abnormal c o m p l i c a t i o n s . The t e r m ' d i s a b i l i t y ' means ' l a c k of p h y s i c a l c a p a c i t y ; t h e i n a b i l i t y t o p u r s u e a n o c c u p a t i o n o r perform s e r v i c e s f o r wages b e c a u s e o f p h y s i c a l ... impairment.' Websters T h i r d I n t e r n a t i o n a l D i c t i o n a r y . When i n t e r p r e t i n g a s t a t u t e a d o p t e d from a n o t h e r s t a t e , t h e l a t t e r s t a t e ' s i n t e r p r e t a t i o n can be used t o c l a r i f y t h e s t a t u t e a d o p t e d i n t h i s s t a t e . L i n l e y v. Davis 6 M 687 ( 1 8 8 7 ) ; Coburn v. Coburn 89 M 386 ( 1 9 3 1 ) . Our m a t e r n i t y l e a v e l a w w a s based on a C o n n e c t i c u t s t a t u t e ( L e g i s . h i s t o r y ; Minutes of Meeting J a n u a r y 1 0 , 1 9 7 5 ) . The C o n n e c t i c u t s t a t u t e h a s been i n t e r p r e t e d by t h a t s t a t e ' s Commissioner o f Human R i g h t s and Opportunities t o include d i s a b i l i t i e s r e s u l t i n g from normal and abnormal p r e g n a n c i e s , and t o e x t e n d from c o n c e p t i o n t h r o u g h d e l i v e r y and a reasonable period of recovery. Lagana, e t a 1 v. Middletown Board of Ed. 1976. The l e g i s l a t i v e h i s t o r y r e v e a l s no i n t e n t i o n t o l i m i t t h e s t a t u t e t o abnormal c o m p l i c a t i o n s . T h e r e f o r e t h e s t a t u t e must be c o n s t r u e d t o c o v e r d i s a b i l i t i e s r e s u l t i n g from normal and abnormal p r e g n a n c i e s . The s t a t u t e d o e s n o t p u r p o r t t o d e f i n e pregnancy i t s e l f a s a d i s a b i l i t y , but recognizes t h a t t h e condition of pregnancy m a n i f e s t s i t s e l f i n ways t h a t d i s - a b l e t h e woman f o r a p e r i o d o f t i m e . In deter- mining t h e s c o p e o f t h e t i m e p e r i o d t o be c o v e r e d by t h e b e n e f i t s , t h e r e seems t o be no l o g i c a l r e a s o n why m a t e r n i t y b e n e f i t s s h o u l d be t r e a t e d any d i f f e r e n t l y from o t h e r d i s a b i l i t i e s where b e n e f i t s a r e a l l o w e d f o r a r e a s o n a b l e p e r i o d of r e c o v e r y , The p l a i n t i f f i n t h e i n s t a n t c a s e ap- p a r e n t l y b e l i e v e s t h a t b a b i e s a r e d e l i v e r e d by t h e s t o r k and a r e n o t a n a t u r a l consequence o f pregnancy. The s t a t u t e s p e c i f i c a l l y s t a t e s ' d i s - a b l e d a s a r e s u l t of pregnancy.' ' P r e g n a n c y ' by d e f i n i t i o n i s a c o n d i t i o n t h a t b e g i n s w i t h con- c e p t i o n and e n d s w i t h d e l i v e r y ( B l a c k s Law ~ i c - t i o n a r y ; Stedman's Medical D i c t i o n a r y , 2 0 t h e d . ) . ' R e s u l t ' i s t h a t which arises a s a consequence o f something ( B l a c k s Law ~ i c t i o n a r y ) . C h i l d b i r t h i s a n o b v i o u s n a t u r a l consequence o f pregnancy and t h u s t h e s t a t u t e i n t e n d s t o c o v e r d i s a b i l i t i e s of c h i l d b i r t h .

"I conclude t h e r e f o r e t h a t t h e t e r m ' d i s a b i l i t y a s a r e s u l t o f p r e g n a n c y ' , a s used i n t h e Montana m a t e r n i t y l e a v e law a p p l i e s t o d i s a b i l i t i e s re- s u l t i n g from normal a s w e l l a s abnormal pregnan-

ties, and the period of coverage extends from the onset of actual disability through termination of gestation and a reasonable period of recovery, to be determined by competent medical authority." The judgment of the District Court is reversed on Issue No. 1, relating to preemption of section 39-7-203(3), MCA, by the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §lo01 et seq. Additionally, on the question of preemption of section 39-7-203(3), MCA, by the federal labor law (National Labor Relations Act, 29 U.S.C. S141 et seq.), on which the Dis- trict Court was not required to rule because of the nature of its opinion, we hold that the NLRA does not preempt the Montana Act. The judgment of the District Court is affirmed on Issue No. 3 on its finding that the term "disability as a result of pregnancy" as used in the Montana Maternity Leave Act applies to disabilities resulting from normal as well as abnormal pregnancies and the period of coverage extends from onset of actual disability through termination of gestation and a reasonable period of recovery, to be determined by competent medical authority. The case is remanded to the District Court to enter judgment in behalf of appellants/cross-respondents: the

Commissioner of Labor and Industry of the State of Montana, the Administrator of the Labor Standards Division of the Department of Labor and Industry of the State of Montana, Rae S. Bauer, Communications Workers of America, and the Montana Human Rights Commission, in conformity with this Opinion.

W e concur:

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