                               No. 86-141
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1987



CITY COUNTY OF BUTTE-SILVER BOW,
et al.,
              Petitioners and Appellants,


MONTANA STATE BOARD OF PERSONNEL
APPEALS, et al.,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Second Judicial District,
                In and for the County of Silver Bow,
                The Honorable Mark Sullivan, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                Robert McCarthy, County Attorney, Butte, Montana
                Ross Richardson & Brian Holland argued, Deputy County
                Attorneys, Butte, Montana
         For Respondent :
                Mary Anne Simpson argued, Dept of Labor     &   Industry,
                Helena, Montana



                                  Submitted:   November 20, 1 9 8 6
                                    Decided:   F e b r u a r y 5, 1987

Filed:         5- 18
                   97

                                  Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This is an appeal from the District Court of the First
Judicial District in and for the City/County of Butte-Silver
Bow, Montana.   The District Court upheld a decision by the
Montana Board of Personnel Appeals that the City/County of
Butte-Silver Bow refused to abide by the parties' collective
bargaining agreement in violation of S 39-31-401(5), MCA. We
reverse and remand.
      The Butte-Silver Bow Law Enforcement Commission heard
charges brought against police officer Gale Wood pursuant to
$ 7-32-4155, MCA, which is part of the Metropolitan Police
Act, and Butte-Silver Bow Ordinance 14, which in pertinent
parts is identical to the state act. Following the hearing,
the Commission found the officer guilty of neglect of duty,
misconduct in office, and conduct unbecoming an officer. His
termination as an officer was approved by the chief executive
of Butte-Silver Bow, pursuant to S 7-32-4161, MCA.        The
officer then filed a petition in District Court pursuant to
5 7-32-4164, MCA, seeking judicial review of the law
enforcement commission's decision.       The District Court
affirmed the decision and we upheld in Wood v. Butorovich
(Mont. 1986), 716 P.2d 608, 43 St.Rep. 546.
      Concurrently, Officer Wood pursued remedies through his
union under the grievance procedure, Article 14, of the
Collective Bargaining Agreement between the officer and
Butte-Silver Bow.    Butte-Silver Bow (appellant) refused to
grieve the matter as being outside the grievance procedure,
contending   Wood's   exclusive   remedy  was   pursuant   to
S 7-32-4164, MCA.   The union filed an unfair labor practice
complaint against Butte-Silver Row for refusal to bargain in
good faith in violation of S 39-31-401(5), MCA, with the
Board of Personnel Appeals.
      The parties stipulated to certain facts and to the
issue to be decided, namely, whether appellant violated
S 39-31-401(5), MCA, by refusing to process Officer Wood's
grievance.   The hearing examiner concluded the statute had
been violated, and ordered appellant to process the
grievance. Appellant filed exceptions and a hearing was held
before the Board of Personnel Appeals, which adopted the
hearing examiner's findings, conclusions, and recommended
order. Appellant petitioned for judicial review. Following
a hearing, the District Court affirmed the holding of the
Board of Personnel Appeals. Appellant's motion to amend and
a motion for a new trial were denied. This appeal followed.
      We are asked to decide whether the District Court erred
in affirming the findings of the Board of Personnel Appeals
that Butte-Silver Bow violated 5 39-31-401 (5), MCA, by
refusing to process Officer wood's grievance. When the issue
is one of law, the Court is free to reach its own conclusions
from the evidence presented. Section 25-7-102, MCA.
      Resolution of the issue turns on whether the grievance
procedure in the then existing collective bargaining
agreement between Officer Wood and appellant provides a
remedy for a police officer which is in addition to that set
out in S 7-32-4155 of the Metropolitan Police Act.        The
Metropolitan Police Act, 5 7-32-4101 et seq., MCA, enacted in
1907, fixes the conditions under which a policeman may be
appointed, may continue to enjoy the office, and may be
removed therefrom.   A police commission, $ 7-31-4151, MCA,
has the duty and the exclusive jurisdiction to hear, try and
decide all charges brought by any person against any officer
or member of the police department.       See State ex rel.
Mueller v. District Court (19301, 8 7 Mont. 108, 113, 285 P.
928, 930; In the Matter of Dewar (1976), 169 Mont. 437, 443,
548 P.2d 149, 153. The officer then has the right of appeal
to the District Court pursuant to 5 7-32-4164, MCA:
           District court review.      The district
           court of the proper county shall have
           jurisdiction to review all questions of
           fact and all questions of law in a suit
           brought by any officer or member of the
           police force, but no suit to review such
           hearing or trial or for reinstatement to
           office shall be maintained unless the
           same is begun within a period of 60 days
           after   the   decision  of   the   police
           commission or order of the mayor has been
           filed with the city clerk.
       The collective bargaining agreement between appellant
and Officer Wood provides in Article 3, Sec. 2 that after a
thirty    day   probationary  period   and  confirmation of
appointment by the police commission, an "applicant becomes a
member of the police force and holds such position during
good behavior unless suspended or discharged as provided by
law. "      The   agreement  specifically  incorporates the
Metropolitan Police Act in Article 31, in which the parties
"agree and recognize that the [Butte-Silver BOW] law
enforcement department is subject to the regulations of the
Metropolitan Police Law of the State of Montana . .      .  I
                                                            '
Therefore Butte-Silver Bow's method for discharge is that
found in the Metropolitan Police Act. Article 14, Sec. 4, of
the agreement defines grievance as "a complaint by an
employee that he/she has been treated unfairly or unjustly in
the interpretation or application of [the agreement's
           .
provisions 1 "      Thus a grievance arises only on a
misapplication of a provision of the agreement.       Neither
party claims a misapplication of the method of discharge.
       By the agreement's own terms, the Act is applicable.
It was applied. The agreement, pursuant to the Act, provides
adequate administrative and judicial determination and review
when an officer is discharged.       It does not provide a
grievance procedure for termination.     The parties to this
agreement are bound by these terms.
      Officer Wood seeks further review of the same conduct
by a different body.      Such an attempt could result in
contradictory holdings. More importantly, however, the terms
of the agreement do not permit this course of action.
      We find appellant did not commit an unfair labor
practice because the terms of the agreement were followed.
Therefore, we reverse and remand to the District Court for an
order consistent with this opinion.




We concur:
                 ./




Justices
Mr. Justice John C. Sheehy, dissenting.


     The majority are in grievous error when they conclude
that the metropolitan police law ( ~ i t l e7, Ch. 32, Part 41,
MCA) precludes the grievance procedures allowable to a
terminated policeman under his union's collective bargaining
agreement.
     The majority members ascribe "exclusive" jurisdiction to
the police commission under S 7-32-4155, MCA.         The words
"exclusive" or "exclusive remedy" are not to be found in S
7-32-4155, or any other part of the statute which is a part
of the Metropolitan Police Law. The assertion that procedure
before the police commission is "exclusive" is a legislative
amendment to the Metropolitan Police Act beyond the power of
this Court to adopt.
     Under S 39-31-305, MCA, collective bargaining includes
the performance of the mutual obligation of the public
employer and the representatives of the workers to negotiate
in good faith with respect to wages, hours, fringe benefits,
"and other conditions of employment or the negotiation of an
agreement or any question arising thereunder."       This Court
said in City of Livingston v. Montana Council No. 9 (1977),
174 Mont. 421, 425, 571 P.2d 374:
     The Supreme Court has held "collective bargaining
     is a continuing proce-ss." Among other things it
     involves  ...    protection of employees rights
     already secured by contract.    Connelly v. Gibson,
     355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, 85 (1957).
     The processing of grievances in grievance hearings
     is collective bargaining.    Timken Roller Bearing
     Company v. National Labor Relations Board, 161 F.2d
     949, 954 (U.S.C.A. 6th, 1947).       In Ostrofsky v.
     United Steel Workers of America, 171 F.Supp. 782,
     790 (D.M.D. 1957) aff'd 273 F. 2d 614 (U.S.C.A. 4th,
     1960), cert.den. 363 U.S. 849, 80 S.Ct. 1628, 4
     L.Ed.2d 1732 (1950), the Court stated:
     ". . .  the employer had the same duty to bargain
     collectively over grievances as over the terms of
     the agreement."
     When the Union and Butte-Silver Bow recognized in their
collective bargaining agreement that the law enforcement
department is subject to the regulations of the Metropolitan
Police Law, it was a recognition of all of the provisions of
that Act, including limits on salary, provisions for
retirement, as well as the provisions contained in the Act
for the termination of a policeman.         Nothing in the
collective bargaining agreement excluded, withdrew or
cancelled the right of the employee to found a grievance on
the termination proceedings before the police commission
within § 4, Art. 14, of the Collective Bargaining Agreement:
     § 4:   A grievance shall mean a complaint by the
     employee that he she has been treated unfairly or
     unjustly in the interpretation and application of
     the provisions of this agreement or of established
     policy or practice.
     When the terminated police officer in this case filed
his grievance, he was proceeding under the Collective
Bargaining Agreement but Butte-Silver Bow refused to process
his grievance. The refusal by Butte-Silver Bow to follow the
grievance procedure which it had bargained for amounted to a
failure to bargain in good faith and constituted an unfair
labor practice.      See Savage Public Schools v. Savage
Education Association (1982), 199 Mont. 39, 647 P.2d 833.
     The Collective Bargaining Agreement further provided
that even the interpretation of the agreement might give rise
to a grievance which would have to be processed under the
agreement. Section 6, Art. XIV, provided:
     Section 6:    Any grievance or dispute which may
     arise   between    the   parties    including   the
     application, meaning or interpretation of this
     agreement shall automatically proceed to the next
     step. (Emphasis added. )
     Under   the   Collective    Bargaining   Agreement,    if
Butte-Silver Bow disagreed with the application of the
Collective   Bargaining   Agreement    to   the    termination
proceedings before the Commission, under the grievance
procedure it could refer that question to an arbitrator. It
was that step that should have been taken under the agreement
by Butte-Silver Bow.      Instead it chose to breach its
grievance procedure agreement which it had bargained for, and
it was thereby guilty of an unfair labor practice.
     Finally, terminated Officer Wood is not a party to this
action. The parties are Butte-Silver Bow, the Montana State
Board of Personnel Appeals, which has determined that
Butte-Silver Bow committed an unfair labor practice, and the
local union of the American Federation of State, County and
Municipal employees (AFL-CIO)  .   The union is before this
Court claiming that Butte-Silver Bow, in refusing to process
a   grievance, has violated      its Collective Bargaining
Agreement. That sole issue should be decided by us, and not
the prospective or speculative possibility that "Officer Wood
seeks further review of the same conduct by a different
body."   That is what Butte-Silver Bow bargained for and it
should be held to its agreement.     The union is correct in
maintaining that an unfair labor practice occurred here, and
the Board of Personnel Appeals should be affirmed in this
action.
W e concur i n t h e foregoing d i s s e n t :   A
