                                No. 81-529
               IN THE SUPREME CGURT OF THE STATE OF MONTANA




CHAUFFEURSI TEAMSTERS I AND HELPERS I
LOCAL UNIOX NO. 190,
                        Petitioner/Respondent
       ai
        rd
STATE OF MONTANA BOARD OF PERSONNEL APPEALS,
                     Respondent,
                     Appellants.


CITY OF BILLINGS,
                        Petitioner/Respondent and Respondent.



Appeal from:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone, The Honorable
               Diane G. Barz, Judge presiding.

Counsel df Record:
      For Appellants:
               Hilley and Loriny, Great Falls, Montana
               James Gardner,Jr., Helena, Montana
      For Respondent:
               K. D. Peterson; Peterson, Schofield     &
               Leckie, Billings, Montana


                                Submitted on Briefs:       April 15, 1982
                                             Decided: August 5,     1982
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.

        Susan Carlson, an animal warden employed by respondent,
was terminated on March 10, 1980.        Appellant Board of Personnel
Appeals (BPA) found that she had been discharged because of
her union activities, in violation of section 39-31-401(1)
and (3), MCA, and ordered her reinstated with back pay.          The
District Court reversed the BPA's ruling because of improper
procedure.         We vacate the District Court decision and remand
the case for further consideration by the BPA, section 2-4-
704 ( 2 ) , MCA.
        Initially, we note that the brief of Carlson's bargaining
representative, appellant Chauffeurs, Teamsters and Helpers,
contains no references to the record for any assertions
contained in its statement of facts, in violation of Rule
23 (a)(3), T4.R.App.Civ.P.      As an appellate court, we are
usually confronted with at least two conflicting versions of
what the dispositive facts in a given case are.        The above
rule was instigated so that we needn't search the entire
transcript for each "fact" asserted by a party.        To do so
merely lengthens the time necessary for the preparation of
the opinion and prolongs any final determination of the
case.
        Carlson was first employed by respondent on January 17,
1977, as a water department clerk.        On July 1, 1977, she
began work as a meter maid.         She became active in the union
representing city employees at that time, the American
Federation of State, County and Municipal Employees (AFSCME)
and filed a grievance against respondent.
        On October 3, 1977, Carlson began working as an animal
warden at the city animal shelter and shortly thereafter she
became shop steward.   She served as steward for AFSCME until
the end of May 1979.   During that time she filed about six
grievances including one alleging harassment by her supervisor
which culminated in her supervisor being sent a warning to dis-
continue the harassment.    In April 1979, this supervisor was
replaced by another supervisor, Darlene Larson.
     In late May 1979, appellant Teamsters defeated AFSCME
as the city employees' bargaining representative and, since

objections to the election were filed, the Teamsters were

not certified by BPA until October 1979.   During this time,
Carlson received several written reprimands, including
warnings for having an unauthorized rider in the animal van
and conducting herself improperly at the animal shelter.     On
September 25, 1979, Larson completed an evaluation form on

Carlson which rated her above average in most categories,

after which time Carlson received a merit pay increase.    In
October 1979, Carlson was suspended for four days "because
of insubordination and failure to obey direct orders" involving
a leg problem and the suspension letter concluded with the

statement that "any further violations will result in immediate
dismissal."   Due to the changeover in unions and election
objections, there was no grievance procedure in effect at

this time.
     On February 2, 1980, during the contract negotiations

between the Teamsters and the City, Carlson voiced her
concerns about the working conditions at the animal shelter
and on the next working day, Larson told Carlson she shouldn't

have said what she did and that her facts were wrong.     The
first contract between the Teamsters and respondent was
signed in mid-May 1980.    The final event which precipitated

Larson's termination involved a male schnauzer dog which
Carlson had picked up running at large on March 3, 1980.
Carlson did not check the animal in at the shelter because
she believed it belonged to a friend of hers (Ostwald) who
had reported that his dog was missing.    After finding the
dog and talking to Ostwald, Carlson kept the dog at her
residence at Ostwald's request because he was in the hospital.
        On March 5, 1980, another person who had lost a male
schnauzer (Wertz) called the shelter.    Larson then called
Carlson who informed her that the dog had been returned to
its owner.     On March 7, Wertz called Larson from Ostwald's
home, convinced that the dog was being hidden from her
there.    Carlson and Larson went to Ostwald's home and, after
initially denying that Carlson had given him the dog, Ostwald
admitted that he once had a male schnauzer but that he
didn't have it any longer.    Carlson stated the dog was at
Shepherd, Montana (where Carlson lived), but that nobody was
home.    After further discussion, she stated the dog was at
her house but refused to take Larson there.    The assistant
chief of police ordered Carlson (accompanied by Larson) to
retrieve the dog from her home in Shepherd and Carlson
complied, returning the dog to the shelter.    At the shelter,
Wertz claimed the dog was hers and a veterinarian who had
cared for the dog corroborated her story.     Carlson gave the
dog to Wertz.
        On March 10, 1980, Carlson was discharged by Larson in
a letter which included the following statements:
        "Due to insubordination and non-cooperation
        with your supervisors on incidents relating
        to events the week of March 3 to March 8, you
        are hereby terminated as of today.
        "You were not cooperative in being truthful
        with me as to the whereabouts of a male schnauzer
        captured by you while on duty, March 3, nor in my
      efforts to clear the situation with a public
      citizen's suspicions of the shelter and you con-
      cerning the dog.

      "You have been previously warned on more than one
      occasion about cooperating with other city
      employees."
On March 17, 1980, Carlson filed an unfair labor practice
complaint with the BPA.      She alleged that the above reasons
were pretextual and that the actual reason for her termination
was her union activity, a violation of section 39-31-401 (1)
and ( 3 ) , MCA.   A BPA-appointed hearing officer decided in

Carlson's favor ordering respondent to reinstate her with
back pay and this recommendation was adopted by the BPA.
Respondent refused to do so and on May 5, 1981, the Teamsters
filed a petition for enforcement in the District Court.     On

May 11, 1981, respondent filed a petition to review the
BPA's final order and the cases were consolidated.     On
November 9, 1981, the District Court reversed the BPA and
this appeal followed.
      Before we begin discussing the issues involved in this
case, a few words about our standard of review are in order.

Both the District Court's and this Court's standard of

review are dictated by section 2-4-704 (2), MCA, which provides
as follows:

      " (2) The court may not substitute its judgment
      for that of the agency as to the weight of the
      evidence on questions of fact. The court may
      affirm the decision of the agency or remand the
      case for further proceedings. The court may
      reverse or modify the decision if substantial
      rights of the appellant have been prejudiced
      because the administrative findings, inferences,
      conclusions, or decisions are:
      "(a) in violation of constitutional or
      statutory provisions;

      " (b) in excess of the statutory authority
      of the agency;
     "(c) made upon unlawful procedure;
     "(d) affected by other error of law;
     "(el clearly erroneous in view of the reliable,
     probative, and substantial evidence on the
     whole record;
     "(f) arbitrary or capricious or characterized
     by abuse of discretion or clearly unwarranted
     exercise of discretion; or
     " (g) because findings of fact, upon issues
     essential to the decision, were not made although
     requested."
     The District Court reversed the BPA on two grounds of
unlawful procedure, a legitimate subject of inquiry under
section 2-4-704(2)(c), MCA.   The District Court first found
the BPA erred in giving primary weight to evidence of Carlson's
union activities occurring more than six months prior to the
filing of her unfair labor practices claim.    The District
Court also found that the BPA erred in excluding evidence of
Carlson's discipline problems prior to her merit increase.
Thus we frame the issues on appeal as follows:
     1.   Whether the District Court erred in reversing the
BPA because it gave primary weight to incidents that occurred
more than six months prior to the filing of Carlson's claim;
     2.   Whether the District Court erred in reversing the
BPA because it did not admit evidence of Carlson's work
history prior to her merit increase;
     With regard to the first issue, the District Court
found that the BPA erred in according substantial weight to
Carlson's union activities occurring more than six months
prior to the filing of her claim.
     Conclusion of law no. 2 reads:    "The Board erred in
giving primary weight to union activities which occurred
more than six (6) months ~ r i o rto the filing of the claim
of unfair labor practices."
     In the court's memorandum accompanying its findings and
conclusions, we find the following sentence:     "The only
evidence of union activity falling within the period is
Carlson's appearance at negotiating sessions on February 2,
1980, wherein she appeared with about 25 other City employees
to discuss conditions of their working areas."
     In support of its decision, the District Court cited
section 39-31-404, MCA and N.L.R.B.   v. MacMillan Ring-Free
Oil Co., Inc. (9th Cir. 1968), 394 F.2d 26.    Section 39-31-
404, provides as follows:
     "39-31-404. Six-month limitation on unfair
     labor practice complaint--exception. No notice
     of hearing shall be issued based upon any unfair
     labor practice more than 6 months before the
     filing of the charge with the board   . . ."
Respondent City cites MacMillan, supra, also and Sioux
Quality Packers v. N.L.R.B.   (8th Cir. 1978), 581 F.2d 153,
in support of the proposition that the BPA should not have
used evidence of Carlson's activity occurring outside the
six-month period as the principal foundation for its reasoning.
The Teamsters Union does not dispute the rationale of these
cases but argues that they are inapplicable here because
they hold that the six month period applies to the employer's
activities and not the employee's.    Appellant BPA contends
that the federal equivalent of section 39-31-404, MCA, has
never been interpreted the way the District Court did in
this case and argues further that it is a statute of limitations
barring the filing of a claim on an incident after six
months, and not a rule of evidence prohibiting the consideration
of relevant testimony concerning anti-union animus which is
six months or more old.
     All parties agree that section 39-31-404, MCA, is
substantially silimar to the National Labor Relations Act 5
      ,
10 (b) 29 U.S.C.    160 (b) (1976) and interpretations there-
under are pertinent here.
     The District Court properly relied on MacMillan for

the proposition that a violation within the six-month period
must stand on its own:
     "To recapitulate, then, we hold that while
     evidence of events occurring more than six
     months before the filing of a charge may be
     used to 'shed light' upon events taking place
     within the six-month period, the evidence of
     a violation drawn from within that period must
     be reasonably substantial in its own right."
     394 F.2d at 33.
However, the actual holding of that case revolves around the
charge of the employer's (MacMillan's) refusal to bargain
with the union and the focus on the whole case is on the
employer's activities and lack of promptness.      The court
continues from the above quote by saying:

     "Where, as here, that condition is not met,
     it is impermissible under the policies embodied
     in section 10(b) for a finding of an unfair
     labor practice to be justified by primary reliance
     on the earlier events. Thus the Board's conclusion
     that MacMillan improperly refused to bargain with
     the union during the applicable limitations period
     cannot be upheld." 394 F.2d at 33.
     The District Court erred in applying section 39-31-404,

MCA, to Carlson's union activities and other interpretations
of its federal counterpart bear this out.      In Wilson Freight
Co. (1978), 234 N.L.R.B.   844, 97 L.R.R.M.   1412, rev'd. on other
grounds (1979), 604 F. 2d 712, an employee (Smith) filed a
number of grievances and was active in the union prior to
his discharge for conduct exceedhq his authority as a shop
steward.   The administrative law judge noted with regard to
the employer's answer:
     "It also raised as an affirmative defense
     that the activities in which Smith is alleged
     to have engaged in occurred more than 6 months
     prior to the filing of the unfair labor practice
     charge, therefore the matter is barred by Section
     10 (b) of the Act.


     "Section 10(b) of the Act is unambiguous in
     clearly stating that - - - unfair labor
                           it is the
     practice, - - employees' concerted or
                not the
     union activity,- which must be within -- .
                   ---- -                  t h e 1 0 (b)
                                                      .

     period. The unfair labor practice in the
     present case occurred with Smith's discharqe on
     -                                             -
     September 3, 1976. Smith filed the unfair
     labor practice charge based upon this dis-
     charge on October 20, 1976. Therefore, Smith
     is well within the 10(b) period and I reject
     Respondent's affirmative defense in this regard."
      (Emphasis added.) 234 N.L.R.B. at 849, 97 L.R.R.M.
     at 1412.
     Another case worthy of note is Inland Steel (1981), 257
N.L.R.B.   No. 13 (11 18,238), 107 L.R.R.M.   1456.   In Inlhnd
Steel, an employee had been active in his union (filing a
number of complaints) and in workers' rights movements prior
to his voluntary termination of employment.      The N.L.B.B.
found that his employer refused to hire him seven months
later because of his union activities during his prior
employment. There is no indication of union activities
during his unemployment.     Although the six month statute is
not specifically addressed, the N.L.R.B.      clearly examined
and based its decision on the employee's activity which
occurred more than six months prior to the filing of the
claim.
     In Axelson Manufacturing Co. (1950), 88 N.L.R.B.       761,
25 L.R.R.M.   1388, the National Labor Relations Board held:
     "The employer asserts that Section 10(b) of the
     amended NLRL3 prohibits the introduction of
     evidence as to events occurring more than six
     months prior to the service of the charge. This
     contention is without merit.
     "Section 10(b) forbids the issuance of complaints
     and consequently findings of violations of the
     statute based on conduct which did not occur
     within the six months' period. However, it does
     not forbid the introduction of relevant evidence
     bearing on the issue of whether a violation has
     occurred during the six months. Section 10(b)
     enacts a statute of limitations and not a rule
     of evidence." (~mphasis added. ) Axelson, 88
     N.L.R.B. 765-66, 25 L.R.R.M. at 1388.
              at
     Section 39-31-404, MCA, requires an employee to file a
charge with the BPA within six months after an alleged unfair
labor practice.   Here the alleged unfair labor practice
occurred on March 10, 1980, and Carlson filed her complaint

on March 17, well within the six month period.   The construction

placed on the statute by the District Court is not borne out

by the above cases or by the language of the statute itself.
See also Local Lodge No. 1424 v. N.L.R.B.   (1960), 362 U.S.


     The second issue relates to the BPA's failure to con-
sider Carlson's conduct prior to her merit increase.    The

hearings officer made the following statements, which were
adopted by the BPA:
     "All of the events which occurred prior to
     Carlson's merit increase must be ignored as
     far as the City's argument in support of its
     decision is concerned. At the time of the
     merit increase Carlson was considered to he
     just that -- an employee worthy of a merit
     increase."
     The District Court stated the following with regard to
this issue:
     "In examining whether the City had met its
     burden of proof, the Board excluded from
     consideration all evidence of disciplinary
     problems relative to Carlson prior to her
     merit increase of October 3, 1979. Such
     exclusion has no basis in statutory or case
     law and was therefore improper. The fact,
     that an employer chooses to give a merit
     increase does not cause an employee's work
     history to vanish. It remains relative to
     the overall picture, and to ignore it
     is to place an unwarranted, artificial limit-
     ation on the employer's review process."
Respondent City argues that a satisfactory performance
rating does not erase prior disciplinary actions, citing
Rockland-r am berg print Works, Inc. (1977), 231 N.L.R.B.        305,

96 L.R.R.M.   1237 and Concrete Technology, Inc. (1976), 224
N.L.R.B.   961, 93 L.R.R.M.   1282.    The Teamsters have not

referred us to any case which directly holds (as the hearings officer
did) that all events occurring prior to a pay raise must be
ignored; however, a number of cases are cited where unlawful

discharges were found after pay increases were given, including
N.L.R.B.   v. Evans Packing Co. (6th Cir. 1972), 463 F.2d 193;
Lynch-Davidson Motors, Inc. (1970), 183 N.L.R.B.       841, 76
L.R.R.M.   1484 and Draggoo Electric Co., Inc. (1974), 214
N.L.R.B.   847, 88 L.R.R.M.   1312.
     The District Court's position on this issue was correct
and the hearing officer should have included evidence of
events occurring prior to Carlson's merit increase.       The

hearing officer cited no authority for his position and the
union has not cited any case directly on point.       We find

the more persuasive reasoning to be along the lines of the
cases cited by the City above.        For this reason, we remand

this case to the BPA for consideration and a decision in
light of events occurring prior to Carlson's merit increase
as well as subsequent happenings.
     Although not necessary to a resolution of this case,
we will comment briefly on the other issues raised by appellant
not previously addressed herein.       Appellant argues that the
District Court erred in considering alleged misconduct not
mentioned in the notice of discharge, citing Board of Trustees

v. Superintendent of Public Instruction (1977), 171 Mont.
323, 557 P.2d 1048.    In support of this contention appellant

quotes the following paragraph from the notice of discharge:
     "Due to insubordination and noncooperation with
     your superiors on incidences relating to events
     the week of March 3 to March 8, you are hereby
     terminated as of today."
Appellant contends that only events relating to the schnauzer
incident, i.e., the events occurring in the week of March
3 to March 8, should have been considered.    However, a close
examination of the rest of the letter (set out verbatim
earlier in this opinion) indicates the basis of the charge
was Carlson's noncooperation with other employees including
her supervisors.    There is a sufficient nexus between the
other incidents considered by the District Court reflecting
Carlson's noncooperation and the discharge letter to warrant
the District Court's action.
     Appellant next contends that the District Court erred
in shifting the burden from the employer to the employee,
pointing to the following language in the District Court's
findings of fact:

     "Susan Carlson did not show by reliable probative
     and substantial evidence on the whole record that
     the City would not have discharged her but for
     her union activity."
We recently adopted the "but for" test enunciated in Mt.
Healthy City School District Board of Education v. Doyle

(1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, for dual
motivation cases under Montana's Collective Bargaining Act,
Board of Trustees v. State ex rel. Board of Personnel Appeals

                ,
(1979) - Mont. - 604 P.2d 770, 36 St.Rep. 2289.
     In Board - Trustees, we quoted from the Mt. Healthy
              of

opinion as follows:

     "Initially, in this case, the burden was pro-
     perly placed upon respondent to show that his
     conduct was constitutionally protected, and that
     this conduct was a 'substantial factor1--or to
     put it in other words, that it was a 'motivating
     factor' in the Board's decision not to rehire
     him. Respondent having carried that burden, however,
       the District Court should have gone on to determine
       whether the Board had shown by a preponderance of
       the evidence that it would have reached the same
       decision as to respondent's reemployment even in
       the absence of the protected conduct." 429 U.S.
       at 285-287, 97 S.Ct. at 575-576.      I l n . at -
                                              aot        I
       604 P.2d at 777, 36 St.Rep. at 2297.
       Here the District Court's statement was inaccurate.
The Mt. Healthy test in this case required Carlson to show
that her protected union activity was a substantial or motivating
factor in the City's determination to discharge her.   The
burden then shifts to the City to show that it would have
terminated her, absent her protected activity, i.e., it
would be an unfair labor practice by the City if, but for
Carlson's union activity, she would not have been terminated.
       Finally, appellant contends that the District Court
erred in substituting its judgment for that of the agency on
questions of fact.   As an example, appellant refers us to
the District Court's findings that "Carlson was untruthful,
devious, deceptive" and that "[ilt is clear that the incident

which resulted in her termination was sufficient cause for
discharge without any previous warnings."   Appellant argues

there were no such findings of fact made by the hearings
officer.
       It is true that a court may not substitute its judgment
for the agency's on questions of fact, section 2-4-704(2),

MCA.   Although these statements appear in the District

Court's findings of fact, they are actually conclusions
drawn from the facts found by the hearings officer, which the
District Court accepted in finding of fact no. 3.   There was
no error committed by the District Court in this regard.
       Vacated and remanded for proceedings not inconsistent
with this opinion.


                                            Chief Justice
W e concur:
