*1
421
Rеspon-
BILLINGS, MONTANA,
CITY
OF
Plaintiff
and
521,
dent,
v. BILLINGS FIREFIGHTERS
LOCAL NO.
Appeals,
and the Board
of Personnel
and
Defendants
2,
Appellants,
Teamsters Union Local No.
Butte
&
United
Food
Commercial Workers
International
Consisting
4R,
33,
Union,
of Local Unions No.
and (UFCWIU), AFL-CIO,
Curiae,
Amicus
and Montana
State
Firefighters,
Council
Professional
Curiae.
Amicus
No. 81-514.
Submitted June
1982.
Sept. 28,
Decided
1982.
Boschert Helena, Gardner, Appeals, Personnel for argued, Bd. James appellants. defendants and Peterson, plaintiff argued,
K.D. for Billings, respondent. Butte, Robinson, Poore, Robinson, D. Roth &
Donald C. Helena, McKittrick, Falls, Barry J. Hjort, Patrick Great Missoula, Gilko, Falls, Ellingson, Mae David V. Great Nan amicus curiae. for opinion delivered
MR. JUSTICE MORRISON Court. issued District Court of Montana
The Thirteenth Judicial part and re- affirming August on judgment *4 of Per- 26,1979, in of the Board versing part a March order (BPA) membership of the Appeals the establishing sonnel BPA and bargaining unit. The Billings Department’s Fire #521, appeal judgment the Billings Firefighters, Local the part in District Court reverse the оf the District Court. We 1979, BPA. 26, of the the March order and reinstate
425 Employees Public Collective Act Bargaining Montana in was 1973. Pursuant to national labor policy, enacted Act, set forth in the Labor Relations U.S.C. National 29 (1976), section et Act ex- seq. specifically the Montana the management employees cludes from supervisory and “public public definition are employee.” Only employees 39-31-201, MCA. bargain collectively, allowed to section Thus, supervisоry employees effec- management and were tively membership in denied collective units. bargaining 1977,
From until in the commencement this action the City of Billings continuously recognized Billings Firefighters Local #521 as the collective unit for bargaining all firefighters except Billings the Fire Chief and the Assis- tant negotiations 1977, City Fire Chief. labor in the During of Billings attempted chiefs, to exclude line the batallion specialty officers captains and fire from the unit. bargaining City contended those su- thаt were either pervisory management, or as defined Em- Public ployee Act, Collective thus Bargaining ineligible for membership unit. collective response, Union grandfa- contended that Act’s clause, ther 39-31-109, MCA, section all es- recognizing tablished bargaining agreements, recognized collective also all existing bargaining provides: units. That section
“39-31-109. Existing bargaining agreements Nothing affected. chapter this shall be construed to re- move recognition agree- еstablished collective already ments prior or in recognized existence to the effec- tive date of this act.” argues
Union that “existing agreement” recognizes Lo- therefore, cal #521 as the unit’s composition is not controlled section MCA. Union,
At the request City and the the BPA con- ducted hearing an administrative December 15 and clarify membership unit. On 28, 1978, February recom- hearings officer issued a *5 concluding appropriate bargaining mended order that “thе Fire has Billings Department unit in the is that unit which 1968, i.e., recognized by City Billings been the of since all Billings of Department except the Fire the Chief by and the Assistant Chief.” She this reached conclusion existing to interpreting grandfather recognize the clause existing bargaining agreements, units as well as by as advocated the Union. City appealed
The the recommended order to the Board On BPA an Appeals. July of Personnel the issued hearings in- order the case to the officer with remanding two-prong to the to test: apply following structions facts the (1) question of a man- position supervisor Is the that or agement official?
(2) is, position of bar- If it does the inclusion the which re- an conflict gaining create actual substantial any party in the of the interests of compromising sults its detriment? by the BPA to result effort
This test the of a considered clause, it rec- grandfather interprets the which as reconcile already agreements both units and ognizing MCA, existenсe, non- 39-31-201, forbidding with section public employees from to collective belonging sections come units. The BPA found that where the two pol- conflict, be in view of the into the conflict must settled MCA, icy policy: states Section Act. public by business Policy. promote order to “39-31-101. unrest, it of strife and removing recognized certain sources encourage prac- is the the state of Montana policy at to arrive procedure' of collective tice and public employ- adjustment disputes between friendly all employees.” their ers and BPA grandfathering allows for adopted test by the conflicts intended to be avoided prevents
and also officials from supervisors management exclusion posi- a supervisory management If or presence unit. un- “strife the source of tion within the unit becomes rest,” position will be from If removed the unit. there unrest, conflict, no strife or evidenced actual substantial grandfatherеd unit will be allowed to is.” remain “as hearings officer issued a thirty-page decision on Janu- ary 19, 1979,. again concluding that the bargaining unit should remain it has been since 1968.
To determine whether or positions not the were those supervisors officials, or management the hearings ap- office plied multi-question test to each position. contested She *6 considered the duties attendant to position each as well as the supervisor definitions of management and оfficial found in section MCA. She concluded that the line bat- chiefs, talion the communications officer and the fire mar- shall in Billings the Department Fire supervisory are em- ployees. She further concluded that captains, the maintenance officer and officer training supervisory are not employees. None of positions the were found to be that of a management official.
Next, hearings applied officer part the second of thе test positions to those found to be supervisory. She deter- mined that the presence of the in positions the unit created no actual substantial resulting conflicts in the compromis- ing of the any party Therefore, interests of to its detriment. she the supervisory positions allowed to remain the unit. conclusion, reaching that hearings officer considered the following:
(1) Local has gone #521 never on strike.
(2) Testimony twenty-six years of the fire chief that in his on Department, very grievances few formal had been filed. an
(3)Testimony engineer only of that one grievance had gone arbitration since 1968.
(4) Testimony of the fire his membership marshal that the unit problems had never meetings caused at staff with fife chief.
(5)Testimony chief, of the fire batallion and cap- chiefs tains that current structure the unit had never inter- operation Department. with the of the fered efficient membership his the unit (6)Testimony captain his authority. never interfered with exercise had negotiator chiеf for the 1977 (7)Testimony of the union’s no make-up the unit had caused dishar- contract that the within special groups there were no interest mony and that the unit.
(8) Testimony no internal engineers and firemen that unit, disharmony existed due to the conflict or structure.
(9) and specialty A of the officers petition signed 80% lieutenants, firefighters stating: engineers 83% 521 are in of I.A.F.F. Local undersigned “We the members in our unit.” any change opposition Appeals of Personnel the Board On March offiсer as hearings recommended order of adopted the District appealed to the City Billings its final order. The or- Court issued an hearing, the District Following Court. 28, 1981, following: July concluding der <6 excluded Supervisors management personnel are
“2. and former Bargaining #521 Unit Firefighters from Local clause], 59-1615, grandfather R.C.M. does Section [the *7 statutory the exclusions. change ex- supervisors and are The Line Batallion Chiefs are
“3. Unit. Bargaining #521 Firefighters cluded from Local Officer, Officers, Main- Communications Specialty “4. are su- Officer, Training Fire and Officer tenance Marshall Bar- Firefighters from Local #521 pervisory and excluded gaining Unit. Local Firefighters Captains
“5. The Fire shall remain with Bargaining #521 Unit. Appeals Board of Personnel applied by The test
“6. . .” arbitrary capricious. and logical and an actual requiring holding, In District Court found so manage- supervisory or removing a conflict to occur before presence as their illogical to be position ment from the unit addition, the unit is inherently In conflicting. it found all except captains officers fire supervisory personnel to be and excluded them from the unit.
In appeal their judgment of the order and of the District Court, the BPA and the Union present several issues for our consideration:
(1) Whether legislature state authorized the BPA as the agency to establish the appropriate units for public employees?
(2) interpretation 39-31-109, Whether BPA’s of section MCA, clause, the grandfather statutory was a rational con- struction, оr whether it was illogical, arbitrary capricious?
(3) Whether the BPA’s two-prong test the in- reconciling consistencies between two sections within the Montana Employees Public arbitrary Collective Bargaining Act was capricious? (4) Whether the BPA’s determination that certain em- ployees were supervisory or management officials was clearly erroneous?
(5) test, Whether rational, the BPA’s correctly ap- was plied by the BPA to the facts of this case?
On cross-appeal, the City presents us with one other issue: Whether the District Court erred when it failed to find the finding BPA’s captains were not supervisory or man- agement officials to be clearly erroneous?
ISSUE ONE legislature clearly Montana BPA authorized the agency as the to establish appropriate for bargaining units public employees when it enacted section MCA:
“39-31-202. Board to appropriate determine unit-factors be considered. order to assurе the fullest freedom in exercising rights guaranteed chapter, this agent board or an of the board shall decide appropriate for purpose *8 bargaining. . .”
430 determining orders, the member- all BPA an order
Like by ship subject District to review the of section 39-31- Court, Pursuant section MCA. gov- agency judicial 105, MCA, orders review of contested by Act Procedure Administrative the Montana erned (MAPA). MAPA 2-4-704, MCA, forth the stan- sets Section by re- Court when be followed a District dards viewing review to portions agency of section The relevant an dеcision. 2-4-704, MCA, state:
“(2) judgment may for its The court not substitute questions weight agency of the evidence on as to the agency may or re- affirm the decision of fact. court may proceedings. re- The court for further mand the case rights ap- modify if of the decision substantial verse or pellant prejudiced the administrative because have been findings, conclusions, are: inferences, or decision
“(e) probative, clearly reliable, of the view erroneous record; on the whole and substantial evidence “(f) by arbitrary capricious characterized abuse or or clearly discretion; unwarranted exercise discretion or il [99] agency findings statute, an of fact
Pursuant to that “clearly subject of re standard been to a erroneous” have (1978), County v. Bleeker Wheatland view the courts. subject of law are P.2d 175 Mont. 575 48. Conclusions differ standards an review. These “abuse discretion” regarding agency’s expertise facts involved due to the interpreting aрplying expertise and the court’s (1958). Treatise, §29.01 Law law. Davis’ Administrative employed statutory the terms and case law have Both “clearly and “substantial erroneous,” of discretion” “abuse entirely nor consistent. clear credible evidence” form opportunity appropriate clarification. for view this as an We findings Specifically, BPA will be the factual upheld supported by 39-31- evidence. Section substantial 409(4), findings over- to be MAPA allows factual MCA. *9 they “clearly
turned when in are erroneous view the reli- probative able, and substantial on evidence the whole rec- 2-4-704(2)(e), ord.” Section MCA. We find these tests can be harmonized. If there is substantial credible evidence findings “clearly record, the the are not erroneous.” Under scope judicial either statute the review is the same. If the support record contains for the factual determinations by agency, may weigh made They the courts the not evidence. by findings agency.
arе bound of the reviewing legal questions, scope of review is unclear, broader. Where the intent of statutes is deference given agency’s interpretation. will be to the Ford Motor (1980), Credit Co. v. 790, Milhollin 444 U.S. 100 S.Ct. 22; 63 L.Ed.2d FCC v. Guild, WNCN Listeners et al. (1981), 582, 101 U.S. 450 S.Ct. 521. L.Ed.2d Where appears legislative clearly contrary it that the intent is agency interpretation, the courts will not hesitate to reverse on the basis of “abuse of discretion.” bargaining
The determination of a unit involves mixed questions of law and fact herеafter In re- discussed. viewing findings BPA’s law, of fact and conclusions foregoing scope we will be bound of review.
ISSUE TWO interpretation 39-31-109, MCA, The BPA’s of section grandfather primarily question clause, of law. reviewing Therefore, the court should determine whether interpretation that involves “abuse The of discretion.” recognizes bargaining agreements all clause in existence at passage Employees the time of the Montana Public Bargaining existing Collective Act. BPA asserts that recognized. units should also be City Billings recognized has Local #521 agreement since 1968. The reflects its that “recognition by recognizing agree Therefore, clause.” City recognizes ment, the the Unit. The Unit not does cease agreement to exist when the ends. The Unit continues to The BPA’s recognized. Unit is formed and exist until a new rational, clause is does interpretaion grandfather of the it. reinstate involve an of discretion and we abuse THREE ISSUE clause interpretatiоn grandfather The BPA’s discussed, units previously recognizes existing of section 39- containing supervisory personnel violation 31-201, recognized public policy sup The Board MCA. ports of interest within a elimination conflict therefore, interpretation of the notwithstanding its unit and clause, of the Act sought spirit to foster the grandfather *10 conflict. a test to actual substantial adopting legal eliminate question of a test is a of law. validity The such supervisory or presence оf The District Court found the inherently unit to be officials in the management for irrational al- conflicting. It therefore held the test to be con- membership until actual substantial lowing continued agree. flict occurs. We do not #521, of consisting a
Testimony Local that well, relatively has had a firefighters supervisors, as as any inher- since 1968 a lack of peaceful existence indicates mean that actual substantial conflict. This does not ent occur. conflict cоuld not rational, A is consid
The the BP developed test BPA to assure an effective ered effort act, i.e., of to remove policy The unit. test considers units, well as some from strife and unrest MCA, for deter the factors set forth section “history of bar composition mining unit —the The result ac employees.” and the “desires of the gaining” underlying the act. public policy complished preserves the one for de to be a rational approach find the Board’s We memberships. termining bargaining unit ISSUE FOUR test, In applying the BPA’s officer hearings made many findings of fact regarding supervisory manage- or department positions. ment nature of various applied She multi-question test to each position and def- considered the initions of supervisory and management official in making her determination. Court,
The District to reverse findings these fact, had to find the record bare of “substantial credible ev idence.” We find such evidence to exist.
The District Cоurt supplied no for posi- reason finding the tion Rather, determinations unsupported. be it chose to findings its substitute for those of the BPA. governing provides: statute may “The court not its judg- substitute ment for agency as to weight the evidence questions on 2-4-704(2), fact.” Section MCA. There is substantial, and as we noted, have herein abundant evi- dence support Therefore, those determinations. we rein- state the findings only the BPA that the line batallion chiefs, the fire marshall and the communicatiоns officer are supervisors.
On cross-appeal, the City asks us to determine or whether the District Court erred when it failed to find the BPA’s captains determination that fire are neither supervisory nor management clearly officials to be errone ous. The District Court not err. hearings did officer considered the captains duties of the compared them to supervisors duties of the management officials set *11 39-31-103(3) forth in (4), section and MCA. There was sub stantial evidence support to the BPA’s determination.
ISSUE FIVE Finally, the District Court held that because the presence supervisors in a unit inher creates conflict, ent the second prong the BPA’s was not cor test rectly applied already to the instant facts. We have stated Local #521. addi- no exists within inherent conflict testimony presented tion, a substantial amount there was indicating that no actual substantial hearings to officer correctly applied the hearings conflict оfficer exists. test to Local #521. District is vacated and the March
The order of the Court is 26, 1979, Appeals of Personnel order of the Board reinstated. JUSTICES JUSTICE HASWELL and
MR. CHIEF SHEEHY, DALY, HARRISON, concur. SHEA and WEBER, dissenting: MR. JUSTICE thoughtful opinion constitutes a careful and majority law, statutes, underlying and the analysis of the case public employee in problems majority disagree analysis I do not with the sector. sign opinion. led and I am therefore to opinion a However, I does address opinion dissent becаuse I believe which interpretation of the statutes different calling this I the aim of should be considered. dissent with may de- legislature so that it matter to the attention of required. legislation termine additional Pub- majority opinion, in the the Montana pointed As out (herein Act called Bargaining Employees lic Collective “Act”) policy set as with the national labor agreement regard Act Labor Relations with in the National forth the Montana employees.” Both “publiс the definition of excludes “public employees” and the federal definition result of employees. The management supervisory both statutory exclusion is to neutralize the opinion the majority where management supervisory as to both prior part of a unit existence they are neutralizing of the stat- of the Act. Such 1973 effective date long years limit so will without utory exclusion continue sug- I remains existence. the collective given to the stat- interpretаion can be gest that different repealing the definition which will not have the effect of ute *12 public employees for bargaining prior units in existence to 1973. emphasizes Act “public employees” pro- shall be
tected in right self-organization, the exercise their col- lective bargaining and other rights. related The next step to determine employees what are be protected to this under public employees collective bargaining aсt. The Act itself specifically “public defines employees” in section MCA, as follows:
“(2) (a) ‘Public employee’ means: “(i) except (2) as provided (b) section, in subsection of this a person employed a public employer in any capacity;
“(b) ‘Public Employee’ does not mean: “(i) official; an elected
“(ii) person a directly appointed by the governor; “(iii) supervisory a employee, (3) as defined in subsection section; of this
“(iv) management official, a (4) as defined subsection section; this
“(v) a (12) employee, confidential defined subsection section; of this
“(vi) a any member of state board or commission who serves the state intermittently;
“(vii) school clerk; a district
“(viii) a adminstrator; school
“(ix) registered professional a performing nurse service for a health care facility;
“(x) professional a engineer; or “(xi) added.) an engineer-in-training.” (Underscoring The definition is totally clear. It per- excludes a number of sons, starting officials, with including supervisory eleсted employees officials, and management and ending engi- with neers-in-training. It is to critical note that does statute not base theory exclusion upon potential “substantial conflict” such are included legislature Instead, that these definition states unit. “public employees” persons not constitute described do right bargaining. granted The re- are who very disregard specific opinion majority sult of the be exclusions shall exclusion, a new idea—the add *13 only aрplied inter- Such an is “substantial conflict.” there pretation a included in the statute. adds test not bargaining organized were after
If a unit collective Act, a unit cannot include 1973 effective date of the such people public Act; in as defined other than supervisory employees situation, and man- such that in a so any agement in- could not under circumstance be officials though proof might part unit, be even cluded as presence not creatе a substan- that their would submitted per- direct conflict between the conflict. The result is a tial bargaining “public employees” in different who are sons units. grandfa- majority opinion on the bases its conclusions 39-31-109,MCA, as clause, which set forth in section
ther follows:
“Existing bargaining agreements affected. collective recog- chapter Nothing to remove in this shall be construed agreements bargaining al- nition of established collective ready prior recognized effectivе date or in existence to the of this act.” grandfather problem agreeing
I clause have no in that the bargaining requires recognition of the established recog- problem agreement in no also find with Local #521.1 question bargaining I unit. #521 as the do nition of Local persons were in the that all who the conclusion bargain- be to remain unit must continue to allowed years. ing in future unit bargaining agreements question the collective
Without prior to the 1973 date units in existencе and the negoti- recognized. However, in be contract of the Act must taking place of the Act the effective date after ations statutory appear require defi- that the the statutes “public employees” nition must with the recognized, be subsequent result that in negotiations, supervisory such em- ployees and management officials as defined the Act must be excluded from the unit. The result would be that negotia- would continue tions as it did prior to a unit longer but that could no part retain of the any per- members the unit sons statutory excluded from the “public definition of em- ployees.” The result would be legislative determi- persons nation as to the are bargain who entitled to collectively under the Act would be recognized. further result would be that all bargaining public units under the employees process would categories retain the same employees.
A parties number of representing different unions have apрeared in this action. Apparently all op- of them would pose a construction of statutory sug- exclusion as above gested. It seems to me expression that this is an disagree- ment the unions with the clear definition stated *14 legislature as who can and cannot be classed persons to the public purposes. for collective If the legislature agrees interpretation with the major- ity, no legislation hand, required. On the leg- other islature determines “public the definition of employ- ees” set forth in the statute through, should be carried then legislation additional required.