                                                No.     14722

                        I N THE SUPREME COURT O THE STATE O M N A A
                                               F           F OTN




BOARD O F TRUSTEES OF BILLINGS
SCHOOL DISTRICT NO. 2 , o f Yellowstone
County, Montana,

                                   P e t i t i o n e r and A p p e l l a n t ,



STATE O MONTANA, e x r e l . BOARD O
       F                                  F
PERSONNEL APPEALS and BILLINGS EDUCATION
ASSOCIATION, a Montana n o n - p r o f i t c o r p o r a t i o n ,

                                   Defendant and Respondent.



Appeal from:          D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                      Honorable R o b e r t Wilson, J u d g e p r e s i d i n g .

Counsel o f Record:

         For A p p e l l a n t :

               James C . C a p s e r a r g u e d , B i l l i n g s , Montana

         F o r Respondent:

               H i l l e y and L o r i n g , G r e a t F a l l s , Montana
               Benjamin H i l l e y a r g u e d , Great F a l l s , Montana
               J e r r y P a i n t e r , H e l e n a , Montana



                                                    Submitted:           September 2 1 ,       1979

                                                        Decided :
                                                                          mc21 fgg
Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
        On July 18, 1977, a hearings examiner held that a school
teacher had been dismissed in violation of her rights and that
the Billings School District (School District) had interfered with
this employee's rights.   The hearings examiner ordered reinstate-
ment with full back pay and benefits.   On August 5, 1977, the
School District filed exceptions to the order of the hearings
examiner.    On the day of the hearing on this matter the School
District filed a motion to reopen the record to take additional
evidence.    On November 1, 1977, the Board of Personnel Appeals
(BPS) affirmed the findings of fact, conclusions of lawland
proposed order of the hearings examiner.
        The School District filed for judicial review and made a
motion to reopen the record before the District Court.   The motion
was denied and subsequently the District Court affirmed the BPS..
From this judgment the School District appeals.
        Ms. Widenhofer, the teacher on whose behalf the unfair
labor practice charge was filed by the Billings Education Asso-
ciation (BEA), was first employed as a teacher in the School Dis-
trict during the years 1959-61.   In 1973, she was again employed
by the School District and taught a sixth grade class at the Poly
Drive School during the academic years 1973-76.   During this latter
period Ms. Widenhofer was an active member of the BEA, serving as
an alternate building representative, a member of the Legislative
Committee, and a member of the Strike Financial Aid Committee,
        From the record it appears that the School District was
initially satisfied with Ms. Widenhofer's performance as a teacher.
During the agency hearing on this matter the BEA introduced as
exhibits written evaluations of Ms. Widenhofer's performance as
a teacher.   These evaluations, which uniformally gave Ms. Widen-
hofer good and excellent ratings in all areas, were written by the
P o l y D r i v e p r i n c i p a l and d a t e from October 8 , 1973, u n t i l March

3 , 1975.       The a r e a s upon which t h e e v a l u a t i o n s w e r e based

included personal traits, teacher-pupil r e l a t i o n s h i p s , instruc-

t i o n s k i l l s , c l a s s r o o m management, s t a f f r e l a t i o n s h i p s and p r o -

f e s s i o n a l t r a i t s and teacher-pupil-community                  relations.          During

t h i s t i m e M s . Widenhofer was a n o n t e n u r e d t e a c h e r .

             The BEA c a l l e d a n economic s t r i k e on October 2 , 1975,

and M s .    Widenhofer, a l o n g w i t h e i g h t o t h e r t e a c h e r s a t Poly               rive

went o u t on s t r i k e .        A p p a r e n t l y , 102 n o n t e n u r e d t e a c h e r s i n t h e

School D i s t r i c t f a i l e d t o r e p o r t t o work d u r i n g t h e s t r i k e .            Ms.

Widenhofer had been a c t i v e i n p r e s t r i k e p r e p a r a t i o n s and a l o n g

w i t h a n o t h e r Poly D r i v e t e a c h e r , M s .    Sayler, a c t i v e l y picketed

t h e P o l y D r i v e School.         M s Widenhofer had been a c t i v e i n encourag-

i n g h e r c o l l e a g u e s t o p a r t i c i p a t e i n and s u p p o r t t h e s t r i k e .     Ms.

Widenhofer was t h e o n l y n o n t e n u r e d P o l y D r i v e t e a c h e r t o p i c k e t

h e r own s c h o o l .      H e r p i c k e t i n g was v i s i b l e a s t h e p a r e n t s d e l i v e r e d

and p i c k e d up t h e i r c h i l d r e n from s c h o o l .         On t h e f i r s t day o f t h e

s t r i k e , some o f M s .     Widenhofer's s t u d e n t s u t i l i z e d a n t i - s t r i k e

placards.         Ms.     Widenhofer c o n t i n u e d t o p i c k e t t h e P o l y D r i v e School

u n t i l October 1 7 , 1975.             T h r e e d a y s l a t e r , t h e s t r i k e was s e t t l e d .

             Soon a f t e r t h e s t r i k e was s e t t l e d M s . Widenhofer e n c o u n t e r -

e d problems w i t h c e r t a i n p a r e n t s and s c h o o l o f f i c i a l s .          On Novem-

b e r 20, 1975, s h e and M s .            S a y l e r w e r e a s k e d t o meet w i t h a g r o u p

o f seven p a r e n t s .       These p a r e n t s were concerned a b o u t a comment M s .

S a y l e r had made c o n c e r n i n g h e r c l a s s .       They a l s o w e r e u p s e t w i t h
Ms.   Widenhofer b e c a u s e s h e had asked a s t u d e n t where h e r mother

had t a u g h t d u r i n g t h e s t r i k e and b e c a u s e s h e had g i v e n a t e s t i n

which a l l of h e r s i x t h g r a d e c l a s s e s had performed p o o r l y .                    Later,

t h e p a r e n t s of a n o t h e r c h i l d c a m e t o s c h o o l .,.cry u p s e t and r e q u e s t e d

a c o n f e r e n c e w i t h M s . Widenhofer i n r e g a r d t o h e r q u e s t i o n i n g of

t h e i r c h i l d a s t o t h e method i n which a homework a s s i g n m e n t was

done.
       As to these and other poststrike events the hearings
examiner made the following findings:
       "10. On November 20, 1975, a group of seven
       parents asked to have a meeting with Ms. Sayler
       and Ms. Widenhofer. One of the parents involved
       was Ms. Bowman.
           "a. Notice of the meeting was given to the
       two teachers involved after lunch that there was
       going to be a meeting with the parents that after-
       noon.
            "b. The meeting concerned a question asked by
        Ms. Widenhofer of Ms. Bowman's daughter, Amy, as
        to which school Ms. Bowman taught at during the
        strike. Evidently Ms. Bowman filled in as a
        teacher when the teachers struck. Ms. Bowman
        claimed that the school was intimidating and psycho-
        logically damaging her child by asking this type
        of question of Amy.
           "c. The other parents at the conference were
       parents of Ms. Saylerts students and they were
       annoyed because Ms. Sayler had told them that the
       group of sixth graders were a tough group to handle.
           "d. Finally the parents were upset because Ms.
       Widenhofer had given a test in which the four sixth
       grade classes h ~ d
                         done poorly.
       "11. After the meeting with the parents, Ms. Sayler
       and Ms. Widenhofer expressed their concern over the
       meeting to M r . Croff, the school principal, and
       stated that the next time they would either: like to
       have a tape recorder or a BEA representative present.
       Mr. Croff stated that a tape recorder could not be
       used without the permission of all persons present
       at the meeting and also said that the meeting con-
       cerned the teachers and parents and to keep the
       BEA out of it.
       "12. At the same conversation with Mr. Croff, Mr.
       Croff indicated to Ms. Widenhofer that he was dis-
       appointed that she had gone out on strike against
       him because he had hired her.
       "13. In another incident, Ms. Widenhofer assigned
       her class to make a family coat of arms. One child
       made the coat of arms on old paper. Ms. Widenhofer
       questioned the child if she had done it. When the
       child replied, 'yest,Ms. Widenhofer pointed out
       that the paper was old and the scotch tape was
       yellowed. The parents of the child came to the
       school very upset and explained that the child had
       used materials that the mother had kept from when
       she had taught kindergarten.
           "a. Mr. Croff did not attend the meeting with
       the parents even though it was his policy to usually
       attend meetings with parents and teachers.
"14. On January 28, 1976, Ms. Widenhofer and Ms.
Sayler again talked to Mr. Croff concerning some
rumors that there was a drive to have them removed
from their teaching position. Mr. Croff remarked
that the rumors were from the BEA rumor mill. Mr.
Croff went on to remark that he had heard rumors
that there was a petition being circulated concern-
ing Ms. Widenhofer's removal.
"15. On February 3, 1976, Mr. Frank, assistant super-
intendent of school [sic] in the elementary division
visited Ms. Widenhofer's room. No written evaluation
resulted from that visit.
    "a. After Mr. Frank visited Ms. Widenhofer's
room, Ms. Widenhofer had a conference with Mr. Frank.
Mr. Frank indicated that he was not there to save Ms.
Widenhofer's life or skin, that it might be too late
for that. Mr. Frank indicated that everyone else in
the district had gotten back to normal after the strike
except Ms. Widenhofer, that she had held a grudge and
that she had upset several parents, and that he had
had several phone calls about it. He went on to
state that Ms. Widenhofer was not getting along
with the staff at Poly Drive and that he, Mr. Frank,
did not feel welcome in Ms. Widenhofer's room.
    "b. Ms. Widenhofer asked if Mr. Frank thought a
transfer would be feasible. Mr. Frank stated no,
that they would not bow to parent pressure any more
as far as transfers go.
    "c. Mr. Frank said no one should know what was
said during the conference except for Ms. Widenhofer's
husband. Mr. Frank's suggestion for improvement was
that Ms. Widenhofer try to be pleasant and smile a
lot. Nothing was said about Ms. Widenhofer's class-
room performance.
"16. Mr. Frank again visited Ms. Widenhofer's class-
room on February 12, 1976. Upon his leaving Ms.
Widenhofer asked if he had heard anything more from
any parents. Mr. Frank said no, and said that he knew
Ms. Widenhofer could do the job, just keep smiling.
"17. On February 20, 1976, Ms. Widenhofer had a
discussion with Mr. Croff. l r Croff came into her
                             t.
classroom when she was free and said that nine letters
had been admitted to the school board, to Mr. Frank
and himself, by parents who were unhappy with what
Ms. Widenhofer was doing.
    "a. Four of the letters had been written by par-
ents whose children had been in Ms. Widenhofer's
class in previous years.
    "b. Although Ms. Widenhofer requested to see
them, and although Mr. Croff agreed to show them to
her, later he changed his mind and decided that she
should not see them since they had been addressed
to him.
        "18. On February 20, 1976, Mr. Croff asked Ms.
        Widenhofer how she felt about the situation and if
        she would ever strike again. Ms. Widenhofer responded
        that she would never put her family through it again.
            "a. Ms. Widenhofer asked Mr. Croff if he felt all
        the problems she was having were strike related. Mr.
        Croff responded that he felt that they were directly
        strike related. That the parents had indicated to Mr.
        Croff that they were unhappy with Ms. Widenhofer
        because she had gone out on strike.
        "19. Mr. Frank again visited Ms. Widenhofer's class-
        room on February 24, 1976. Mr. Frank's only comment
        was to keep smiling.
        "20. Mr. Croff told Ms. Widenhofer that he had to
        attend a school board meeting to discuss Ms. Widen-
        hofer's evaluation. After the meeting he came into
        Ms. Widenhofer's classroom and told her that he had
        said as many positive things about her as he could,
        but that he did not feel that any decision had been
        reached at that time." (Citations to transcript
        omitted. )
        On December 19, 1975, Ms. Widenhofer was again evaluated
by Mr. Croff.    The hearing examiner found that the tenor of this
evaluation was negative with respect to Ms. Widenhofer's teaching
performance.    The evaluation contained the following comments:
"You have demonstrated support for your professional organization."
While Ms. Widenhofer's request for a transfer was refused by Mr.
Frank, Ms. Sayler, the other Poly Drive teacher who picketed her
own school, but who was tenured, received a transfer for the next
school year.
        At one point Mr. Croff made it clear to Ms. Widenhofer
that "all of this trouble" was caused by her membership in the BEA.
        On or about March 16, 1976, the School Board met and dis-
cussed the matter of the renewal of Ms. Widenhofer's employment
contract.   The record establishes that the school board questioned
Mr. Frank and Mr. Croff closely concerning Ms. Widenhofer and
their evaluations of her.   Ms. Widenhofer was informed by a school
board member, Ms. Heizer, that no one had been fired at the March
16, 1976, meeting.   Nevertheless, the official minutes of the School
District for that meeting indicate thilt the decision to terminate
Ms. Widenhofer's employment was made on that date.        Ms. Widenhofer
was notified by letter of the Board's decision on April 9, 1976.
This letter stated, in part, that "[tlhe reason for nonrenewal
is unsatisfactory evaluations by your Principal."
         The issues presented by this appeal are as follows:
          I.   Did the BEA meet its burden of proof requirement in
establishing that an unfair labor practice had occurred?
         11.   Was it error for the BPA and the District Court to
affirm the hearing examiner in the absence of evidence which
established that the Board of Trustees of the School District
knew of Ms. Widenhofer's strike activities?
        111.   Was it error for the hearings examiner, the BPA, and
the District Court to fail to make the finding that Ms. Widen-
hofer's discharge would not have occurred 'but for' her protected,
union activity?
         Appellants are contending that there is an insufficiency
of proof to show that an unfair labor practice occurred in this
case.   The complaint which was originally filed in this action
alleged violations of section 39-31-401(1)     &   (3), MCA.   These
statutes define unfair labor practices of public employers.        In
the event of a charge of an unfair labor practice under these
statutes the Board of Personnel Appeals must conduct a hearing.
Section 39-31-405, MCA.     The complainant's case must be established
by a preponderance of the evidence before an unfair labor practice
may be found.     Section 39-31-406, MCA.
         The scope of judicial review for an unfair labor practice
case 1.s provided by section 39-31-409, MCA.       This statute provides,
in essence, that the courts are not to substitute their judgment
for that of the agency.    The findings of the board as to questions
of fact are conclusive if supported by substantial evidence on
the record considered as a whole.     Section 39-31-409(4).
         In Vita Rich Dairy, Inc. v. Dept. of Business Regulations
(1976), 170 Mont. 341, 553 P.2d 980, this Court had occasion to
discuss and comment upon the purposes of limited judicial re-
view of agency decisions.     Several reasons are given for the
desirability of this approach.    This Court summarized one of the
reviewing court's functions as follows:
        "The agency's actions need a balancing check.
        In the absence of a body within the agency which
        is separated from the actual decision and in
        which all parties have confidence, a limited
        judicial inquiry to see (a) that a fair procedure
        was used, (b) that questions of law were properly
        decided and, (c) that the decision is supported
        by substantial evidence is necessary." 170 Mont.
        at 345.
        "Substantial evidence has been defined by this Court
        as such as will convince reasonable men and on
        which such men may not reasonably differ as to
        whether it establishes the plaintiff's case, and,
        if all reasonable men must conclude that the evi-
        dence does not establish such case, then it is not
        substantial evidence. The evidence may be inherently
        weak and still be deemed 'substantial', and one
        witness may be sufficient to establish the preponder-
        ance of a case." Olson v West Fork Properties, Inc.
                                 .
        (1976), 171 Mont. 154, 158, 557 P.2d 821.
        In the instant case the agency decision is well documented.
The references to anti-union animus of the parents and of Mr. Croff
and Mr. Frank runs to several pages.    Some of the more striking
examples are:     Mr. Frank's comments on February 3, 1976, to the
effect that he could not save Ms. Widenhofer's "skin" and that
everyone else was back to normal after the strike; the fact that
only the detrimental letters appeared in Ms. Widenhofer's file;
Mr. Croff's statements that Ms. Widenhofer's problems were all
strike related; and Mr. Croff's remarks that the parei1.t~
                                                         were un-
happy over Ms. Widenhofer's strike activities.    This evidence stands
uncontradicted.    There are more examples of anti-union animus, but
the above examples serve the purpose of establishing substantial
evidence.   This Court finds that there was substantial evidence
to support the finding of anti-union animus and the commission of
an unfair labor practice.
       The appellants allege that it was error to find an unfair
labor practice where the hearings examiner made a finding that
x.he trustees did not know of Ms. Widenhofer's union activities.
There are no Montana cases which deal with this precise point.
Therefore, it is helpful to consider cases from jurisdictions
which have dealt with the issue of the employer's knowledge of
the employee's protected union activities.      There are federal
cases which discuss the knowledge requirement under S8(a)(3) of
the National Labor Relations Act.   29 U.S.C.    158(a) (3).   This
federal statute is identical, in pertinent part, to the statute
under which the instant case was brought.    Section 39-31-401(3),
MCA.   These statutes say:
         "It shall be [is] an unfair labor practice for an
         [a public] employer [to] :


        "(3) by discrimination [discriminate] in regard to
        hire or tenure of employment or any term or condition
        of employment [in order] to encourage or discourage
        membership in any labor organization     ..
                                                 ." (Differ-
        ences in Montana Act are bracketed,)
         In NLRB v. Whitin Machine Works (1st Cir. 1953), 204 F.2d
883, the Court said:
        "When a charge is made that by firing an employee the
        employer has exceeded the lawful limits of his right
        to manage and to discipline, substantial evidence
        must be adduced to support at least three points.
        First, it must be shown that the employer knew that
        the employee was engaging in some activity protected
        by the Act. Second, it must be shown that the employee
        was discharg3d because he had engaged in a protected
        activity. (Cites omitted.) Third, it must be shown
        that the discharge had the effect of encouraging or
        discouraging membership in a labor organization.
        (Cites omitted.) The first and second points con-
        stitute discrimination and the practically automatic
        inference as to the third point results in a violation
        of S8(a)(3)."  204 F.2d at 884.
         In the instant case, the trustees had the sole authority
to hire and fire teachers.   The hearings examiner found that the
trustees were unaware of Ms. Widenhofer's union activities.       The
hearing examiner dealt with this point as follows:
        "  ...  since Mr. Croff is an agent of the school
        board, the school board is responsible for his
        behavior and having dismissed Mrs. Widenhofer
        because of Mr. Croff's evaluation as was stated
        in her letter of nonrenewal, they terminated Ms.
        Widenhofer because of her union activity."
        We hold that the appellants have committed an unfair labor
practice despite the trustees' lack of knowledge of Ms. Widenhofer's
union activities.     Under the usual employer-employee relationship,
there cannot be discrimination unless the employer knows of the
protected activity.    However, in the circumstances presented by
this case, we are not dealing with a usual employee-employer
relationship.   The authority to hire or not hire is vested with
the trustees, but their decision not to hire in this case was based
on a tainted evaluation.    The hearings examiner found a direct
connection between the tainted evaluation and the decision not to
hire.   In other words, Ms. Widenhofer was denied employment be-
cause of her protected union activities.    This violates her rights
under section 39-31-401, MCA.
        We reach this decision without imputing knowledge to the
trustees.   An anti-union act was committed when Mr. Croff presented
the tainted evaluation to the trustees.    The trustees are respon-
sible for this action by Mr. Croff.    They relied upon this eval-
uation, thereby committing the prohibited act of discrimination.
They may not insulate themselves by claiming lack of knowledge.
If we were not to adopt such a policy a school board could violate
a public employee's rights with impunity in almost every instance.
We do not believe that the legislature intended that public employees'
rights should be disregarded in such a manner.
        Appellant's last contention concerns the application of
the correct legal test to be used in a case where the employer's
motivation is a material question.    The task of determining moti-
vation is not easy, and agencies and courts must rely on the out-
ward manifestations of the employer's subjective intent.    The task
is compounded in employment cases where there exist permissible
and impermissible reasons for a particular discharge.     This is
a problem of dual motivation.
           Ms. Widenhofer was a nontenured teacher.   The services
of a nontenured school teacher may be terminated without cause,
as long as the termination is not because of an impermissible
reason.     Branch v. School District No. 7 (D.C. Mont. 1977), 432
F.Supp.608, 609.     Since no reason need be given for dismissing
a nontenured teacher such as Ms. Widenhofer, the present case
presents a dual motivation problem.
           Courts have devised several tests to use when confronted
with this problem.     The trouble with most of these tests is that
employees could conceivably place themselves in a better position
by engaging in protected activity than they would have been had
they not engaged in such conduct.     The United States Supreme
Court had occasion to address and resolve this situation in Mt.
Healthy City Board of Education v. Doyle (1977), 429 U.S. 274,
97 S.Ct. 568, 50 L Ed 2d 471.
           In Mt. Healthy a nontenured school teacher was fired.
There were several reasons given for this action.      One of the rea-
sons for the termination was a protected free speech activity.
There were additional reasons which involved nonprotected activity
and these additional reasons were adequate reasons to discharge a
teacher.     The lower court held that the teacher could not be dis-
charged because one of the reasons given involved a protected ac-
tivity.     The Supreme Court reversed the lower court on the issue
of motivation or causation.     The Supreme Court handled the problem
as follows:
           "A rule of causation which focuses solely on
           whether protected conduct played a part, 'sub-
           stantial' or otherwise, in a decision not to
           rehire, could place an employee in a better posi-
           tion as a result of the exercise of constitutionally
           protected conduct than he would have occupied had
           he done nothing. The difficulty with the rule
           enunciated by the District Court is that it would
        require reinstatement in cases where a dramatic
        and perhaps abrasive incident is inevitably on
        the minds of those responsible for the decision
        to rehire, and does indeed play a part in that
        decision--even if the same decision would have
        been reached had the incident not occurred. The
        constitutional principal at stake is sufficiently
        vindicated if such an employee is placed in no
        worse a position than if he had not engaged in
        the conduct. A borderline or marginal candidate
        should not have the employment question resolved
        against him because of constitutionally protected
        conduct. But that same candidate ought not to be
        able, by engaging in such conduct, to prevent
        his employer from assessing his performance record
        and reaching a decision not to rehire on the basis
        of that record, simply because the protected con-
        duct makes the employer more certain of the correct-
        ness of its decision.
        "This is especially true where, as the District
        Court observed was the case here, the current
        decision to rehire will accord 'tenure'. The long-
        term consequences of an award of tenure are of
        great moment both to the employee and the employer.
        They are too significant for us to hold that the
        Board in this case would be precluded, because it
        considered constitutionally protected conduct in
        deciding not to rehire Doyle, from attempting to
        prove to a trier of the fact that quite apart from
        such conduct Doyle's record was such that he would
        not have been rehired in any event.


        "Initially, in this case, the burden was properly
        placed upon respondent to show that his conduct
        was constitutionally protected, and that this con-
        duct was a'substantial factorf--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 re-employment even in the absence of
        the protected conduct." 429 U.S. at 285-287.
        Even though the Mt. Healthy "but for'' test dealt with
first amendment rights, some Federal Circuit Courts have adopted
this test in labor law dual motivation    cases.   The First Circuit
specifically adopted this test in Coletti's Furniture, Inc. v.
NLRB (1st Cir. 1977),   550 F.2d 1292.   This was reaffirmed in NLRB
v. Rich's of Plymouth, Inc. (1st Cir. 1978), 578 F.2d 880, 887.
The Second Circuit has also applied the Mt. Healthy causation test
to the federal labor law field in the case of United States v.
Winston (2nd Cir. 1977), 558 F. 2d 105, 110.
        On the other hand the Fifth Circuit has refused to adopt
the Mt. Healthy test in labor law cases.    In Federal Mogul Corp.

v. NLRB (5th Cir. 1978), 566 F.2d 1245, 1265, Thornberry, J. spec-
ially concurring,said:
        "The Supreme Court has utilized a 'but for' test
        in first amendment cases, e.g., Mt. Healthy City
        School District v. Doyle, 429 U.S. 274, 97 S.Ct.
        568, 50 L Ed 2d 471 (1977), but that hardly means
        the test is appropriate in the labor context. In
        Mt. Healthy the Court, as it has done so often,
        struck a balance between competing interests. Sim-
        ilar competing interests exist in-the labor setting,
        but there Congress has already established a balance
        by passing the labor laws. That balance favors
        the employee, for Congress clearly recognized the
        superior bargaining position of the employer. See
        American Shipbuilding Co. v. N.L.R.B., 380 U.S.
        300, 316, 85 S.Ct. 955, 966, 13 L Ed 2d 855 (1965)
        (labor laws attempt to redress the 'imbalance of
        economic power between labor and management'). The
        'but for' standard significantly restrikes this
        balance in favor of the employer, and such a test
        is contrary to Congressional policy and the case
        law in this Circuit."
        We do not find in the Montana statutes a policy which
tips the balance in favor of either the public employee or employer.
The policy is stated in pertinent part, as follows:
        " . . . it is the policy of the state of Montana
        to encourage the practice and procedure of collec-
        tive bargaining to arrive at friendly adjustment
        of all disputes between public employers and their
        employees." Section 39-31-101, MCA.
        It must be noted, as it was in Federal Mogul, that the
courts are attempting to balance competing interests.   Mt. Healthy
balanced first amendment rights against the need of a school dis-
trict to be able to dismiss a person who obviously deserved to
be dismissed for permissible reasons.    Labor law rights under
Montana law should not be given a higher degree of protection
than federal first amendment rights are given.   The Mt. Healthy
'huc for' test is adopted for dual-motivation cases under Montana's
Collective Bargaining Act.    This adequately protects the interests
and rights of both parties.
           In the instant case it is not readily apparent which
  test the hearings examiner applied.    The language used by the
  hearings examiner is as follows:
          "  ...  it becomes clear that this Board's author-
          ity is limited to that instance where it can be
          shown that an employee was discharged for union
          activity. However, if the discharge was partially
          motivated by the employee's union activity, it is
          unlawful. Finally if there is substantial evidence
          that an employee was illegally discharged for union
          activity, then the burden is on management to show
          the reason for discharge was not union related."
          (Emphasis added.)
          A comparison of this language with the following Mt. Healthy
  passage is instructive:
          "  ...  the District Court should have qone on to
          determine whether the Board had shown b a prepon-
                                                ;
          derance of the evidence that it would have reached
          the same decision as to respondent's reemployment
          even in the absence of the protected conduct."
          (Emphasis added.) 429 U.S. at 287.
  Even though the two passages are not identical they are saying
  the same thing.     The hearings examiner was, in essence, using the
   'but for' test.
          Affirmed.
                                                                    -   i7




                                               Chief Justice




w g e , sitting in place of Mr.
  J u w e John C. Sheehy.
