     IN THE SUPREME COURT OF THE STATE OF MONTANA



                      No. 14739

THE STATE OF MONTANA, ex rel. THE
BOARD OF PERSONNEL APPEALS,
               Relators,


THE DISTRICT COURT OF THE ELEVENTH
JUDICIAL DISTRICT, OF THE STATE OF               AUG 15 1979
MONTANA, IN AND FOR THE COUNTY OF
FLATHEAD, AND THE HON. ROBERT SYKES,
PRESIDING JUDGE,                            CLERK OF SUPREME COURT
                                              STATE OF MONTANA
               Respondents.
                           -




                  OPINION AND ORDER

     This matter comes before us on the petition of the State

of Montana through its Board of Personnel Appeals as relators,
asking us either to stay or vacate by writ of supervisory

control or otherwise, a writ of mandate issued against BPA
out of the District Court, Eleventh Judicial District, Flathead
County.

     In the District Court, Bigfork Teachers Association (BTA)
had filed its petition for writ of mandate or other appropriate

writ against Robert R. Jensen, as administrator of the Board
of Personnel Appeals (BPA) requesting that he be ordered to hold

a decertification election to determine that the Bigfork

Area Education Association (BAEA) was no longer the bargaining

agent for teachers employed in School District No. 38,
Flathead and Lake Counties.

     It appears that BAEA had been recognized by School
District No. 38 as the exclusive representative for collective

bargaining for the teachers employed in the Bigfork schools.
The parties had negotiated a two year contract, beginning

July 1, 1976, and were engaging in collective bargaining for
a successor contract during the spring and summer of 1978.
BAEA and the School District failed to reach an agreement on

such successor contract.
        BAEA had filed with BPA a number of unfair labor practice

charges against the School District.    These charges were pending
before BPA at the time the petition for a decertification

election was filed by BAEA.     The administrator took the position,
and notified the parties, that until the Board's investigation

and decision on the unfair labor practice charges was completed,
BPA would not schedule a decertification election until it was

assured "that the necessary laboratory conditions are present."
        The Bigfork Area Education Association intervened

in the District Court action as an interested party.
        The District Court, after hearing, argument, and submission

of briefs by all parties, issued its writ of mandate requiring
BPA to "forthwith conduct an election" to determine the question

of the proper bargaining representative for the members of the
teachers' unit.

    The application of BPA to this Court for an order to
stay or vacate the writ of mandate followed.

    A writ of mandate is an extraordinary writ which, according
to statute, may be issued by a District Court "to compel the

performance of an act which the law specially enjoins as a duty
resulting from an office."    Section 27-26-102 MCA.     Without a
clear legal duty, mandamus does not lie.    Cain v. Department of
Health, Etc. (1978),        Mont   .    , 582 P.2d 332, 35 St.Rep.
1056.    The basic question for our decision in this case therefore,
is whether BPA has a present affirmative legal duty to hold a

decertification election.    We hold that it does not.
        The "laboratory conditions" under which BPA conducts

a decertification election occur where there are no pending
charges against the employer, of conduct constituting an unfair
labor practice.   The purpose of BPA in seeking laboratory
conditions is to accomplish a fair election and to determine
the uninhibited desires of the employees.

     In seeking the laboratory conditions, BPA is following the
lead of the National Labor Relations Board which interprets and

administers the Labor Management Relations Act under federal
statutes, 29 U.S.C.   S141 et seq.   The NLRB has adopted what it

calls the "blocking charge" rule to the effect that it will not
conduct an election to determine the bargaining representative

of a group where there is pending against the employer charges
of unfair labor practice.   Application of the "blocking

charge" rule by NLRB has been held to be within its administrative
procedural practices.   Furr's Inc. v. N.L.R.B.,   (10th C.A.

1965), 350 F.2d 84, 59 LRRM 2769.     It is said in Surprenant
Mfg. Co. v. Alpert (1st C.A. 1963), 318 F.2d 396, 53 LRRM


      "Whenever, shortly prior to a representation
     election, it is charged that the employer has
     engaged in an unfair labor practice which might
     affect the outcome, the Board, upon investigation
     and a determination that the charge has prima facie
     merit, customarily postpones the election until
      it has been found that no unfair labor practice
     has been committed, or until the union waives
     any claim to rely upon the employer's conduct
      to invalidate the election. There is no
     provision in the statute, or even any regulation,
     which expressly authorizes such action, but,
     concededly, the Board has followed this 'blocking
     charge' procedure from the beginning. United
      States Coal and Coke Company, (1937), 3 NLRB 398;
     '7115~1 Annual Report of the NLRB (1939) 143. So far
     as we can discover it has never been judicially
     overturned. "
     We held in State, Dept. of Hwys. v. Public Employees
Craft Coun. (1974), 165 Mont. 349, 529 P.2d 785, and in
Local 2390 of Amer. Fed., Etc. v. City of Billings (1976), 171

Mont. 20, 555 P.2d 507, 93 LRRM 2753, that it is appropriate
for the BPA to consider NLRB precedents in interpreting and

administering the Public Employees Collective Bargaining Act.
BTA contends that it is improper for BPA to apply the "blocking
charge" rule since it has not been adopted by regulation nor

has the power been granted by statute to BPA.    However, in
view of the federal precedents, it appears to be proper and

logical to determine that in the conduct of a certification
election, BPA has certain discretionary powers in order to
assure that an election for a bargaining agent, when held,
will be held under the best possible conditions insofar as

the freedom of choice of the employees involved is concerned.
The legislature appears to have given BPA a broad discretionary
power in this matter in section 39-31-202, MCA, wherein it
is stated:
     "Board to determine appropriate
     u n i t Sctors - be considered.
                    to -
     to assure employees the fullest freedom in
     exercising the rights guaranteed by this
     chapter, the board or an agent of the board
     shall decide the unit appropriate for the
     purpose of collective bargaining and shall
     consider such factors as community of interest,
     wages, hours, fringe benefits, and other working
     conditions of the employees involved, the history
     of collective bargaining, common supervision,
     common personnel policies, extent of integration
     of work functions and interchange among employees
     affected, and the desires of the employees."
     The duty of BPA on the presentation of a petition to
determine the bargaining representative is set forth in
section 39-31-207, MCA.   There it is stated in pertinent
part :
     " (1) The board or an agent of the board shall
     i n v e s t i g a t e wtifion - - -ft h a s
                                   and7i -
     reasonable cause to believe - - a question of
                                     that
     representation exists, it shall provide for an
     appropriate hearing upon due notice whenever,
     in accordance with such rules as may be prescribed
     by the board, a petition has been filed:

     "(a) by an employee or group of employees or any
     labor organization acting in their behalf
     alleging that 30% of the employees:


     "(ii) assert that the labor organization which
     has been certified or is currently being recognized
     by the public employer as bargaining representative
     is no longer the representative of the majority of
     employees in the unit; or
     ". . ."   (Emphasis added. )
         In view of the discretionary provisions that are set
   forth in sections 39-31-202, MCA, and 39-31-207, MCA, BPA

   may not be required by writ of mandate to conduct an election
   forthwith, absent a showing of an abuse of discretion by BPA.

         There is therefore no clear legal duty on the part of BPA
   to conduct the decertification election forthwith.       As long as
   the blocking charges are not being used simply to delay the
   decertification election, and until BPA is satisfied that the

   necessary laboratory conditions exist, BPA is under no clear
   statutory duty to conduct the decertification election.       Section
   39-21-207, MCA.

        Accordingly,

         IT IS ORDERED:
         1.   The writ of mandate dated March 12, 1979 by the District
   Court for the Eleventh Judicial District of the State of

   Montana, in and for the County of Flathead, in its cause no.
   DV-79-008, is hereby vacated and set aside.

         2.   Copies of this opinion shall be served by the Clerk
   of this Court by ordinary mail upon the said District Court and

   counsel of record.



                                         -
                                         J"
                                              r   Justice
                                                                  4
   We Concur:




              Chief Justice




w..............................
                Justices

    Mr. Justice Daniel J. Shea, deeming himself disqualified, did
    not participate.
