                                      No.    81-563

             I N T E SUPREME COURT O THE STATE O MONTANA
                  H                 F           F




I N THE MATTER O UNFAIR LABOR
                F
PRACTICE :
BRUCE YOUNG, e t a l . ,

                                          P l a i n t i f f s and R e s p o n d e n t s ,

           VS.


C I T Y O GREAT FALLS,
         F

                                          Defendant and A p p e l l a n t .



Appeal from:       D i s t r i c t Court of t h e Eighth ~ u d i c i a l i s t r i c t ,
                                                                         ~
                   I n and f o r t h e County o f Cascade
                   Honorable J o e l G . Roth, J u d g e p r e s i d i n g .

Counsel o f Record:

    For Appellant:

          David V.      Gliko argued, C i t y Attorney, Great F a l l s ,
          Montana

    For Respondents:

          Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
          D. P a t r i c k M c K i t t r i c k a r g u e d , Great F a l l s , Montana
          R o b e r t J e n s e n , Bd. P e r s o n n e l A p p e a l s , H e l e n a , Montana



                                               Submitted:           May 11, 1982

                                                  Decided:          J u n e 1 0 , 1982

Filed:   4UN I 0 9982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     The City of Great Falls (City) appeals from a judgment
of the Cascade County District Court, Eighth Judicial District,
affirming that part of a decision of the Board of Personnel
Appeals (Board) that the City was guilty of violations of
sections 39-31-401(1) and (3), MCA.    The respondent cross-
appeals from that part of the District Court's decision
which reversed the hearings examiner's finding that the City
had violated section 39-31-401 (4), MCA.
     The parties raise these issues:
     1. Whether there was an unfair labor practice giving
jurisdiction to the Board, or merely a possible breach of
contract which should have been resolved under the contract's
grievance procedure?
     2.     Whether the hearings examiner and the Board failed
to apply the "but for" test?
CROSS-APPEAL
     3.     Whether the District Court erred by reversing the
Board's finding of violation of section 39-31-401(4), MCA,
stating that "any alleged violation of subsection (4) must
have occurred before the filing of the unfair labor practice
charge. "
     On January 10, 1979, the Construction and General
Laborers' Local No. 1334, AFL-CIO (Union), on behalf of
Bruce Young, filed an unfair labor practice charge with the
Board of Personnel Appeals.
     On October 12, 1979, the hearings examiner issued
findings of fact, conclusions of law and recommended order,
finding the City in violation of sections 39-31-401(1),
(3), and (4). These findings were confirmed and adopted,
after review of the City's objections, by the Board's final
order, issued February 21, 1980.
        On March 21, 1980, the City petitioned the District
Court for judicial review of the Board's final order.
Pursuant to the complainant's motion, the District Court
dismissed the petition for failure to name the Board as a
party.
     On August 20, 1981, this Court reversed the District

Court's order    (           ,
                      Mont. - 632 P.2d 1111, 38 St.Rep.
1317) holding that the Board need not be named as a party.
        Thereafter, the cause was heard in the District Court,
which issued the October 21, 1981 order from which this
appeal and cross-appeal are taken.
     Bruce Young was employed as a laborer in the Street
Department of the City of Great Falls from March 20, 1977 to
December 30, 1977, when he was laid off for lack of work.
He was recalled on May 2, 1978, and worked until October 31,
1978, when he was laid off again.
        During Young's tenure as a city employee, he filed,
with the assistance of his union representative, four grievances
under the collective bargaining agreement between the City
and the Craft Council, of which Laborer's union No. 1334 is
a member.
        The first, in May 1978, involved Young's transfer to
the Water Department, while another employee with less
seniority, Harold Spilde, remained with the Street Department.
The grievance was resolved by Young's transfer back to the
Street Department.
        The second grievance arose in June 1978 when Young was
sent home without pay for lack of work while ~pildeagain
stayed.     Young was subsequently compensated for four hours

work.
     The third occurred shortly thereafter when Spilde was
placed in a permanent position over Young and Gerald Hagen.
This one was resolved when Hagen, the most senior employee
involved, was given the job.
     The last grievance ultimately resulted in the filing of
this unfair labor practice charge.     Young challenged his
October 31, 1978 lay-off because Spilde, with less Street
Department seniority, was retained and doing laborer's work.
Since Spilde was not a member of the Laborer's Union, the
Union requested that he be terminated.    At subsequent meetings
between Union and City officials, pursuant to Step 1 of the
Grievance Procedure in the Collective Bargaining Agreement,
it was agreed that Spilde would not do work within the
jurisdiction of the Laborer's Union.
     Spilde was then transferred to the Traffic Division of
the Street Department, where according to Bob D u t y , Super-
intendent of the Department, he did laborer's work only
during emergencies.
     However, several Street Department employees testified
that Spilde did perform "almost 100%" laborer's work until
January 5, 1979.   Also, his employment record classifies him
as a laborer from May 1, 1978 to January 5, 1979, during
which time he was paid laborer's wages.
     In addition to Spilde, CETA employees with less seniority
than Young continued to do laborer's work after Young's
discharge.   Furthermore, 7 or 8 new employees were hired by
the Street Department in April 1979, but not Young.     It was
in this time period that Duty, apparently during a safety
meeting, said in effect, "I don't care what happens.     I
won't hire Bruce Young back in the Street Department."        In

the same vein, during the resolution of Young's first grievance,
Duty told him that he had no hard feelings, "he just didn't
like having some SOB telling him who he could or could not
hire. "
JURISDICTION
     The City contends that complainants' charge does not
state an unfair labor practice giving the Board jurisdiction,
and that the grievance should have been resolved through the
grievance procedure set out in the collective bargaining
agreement.
     Section 39-31-403, MCA provides that violation of
section 39-31-401, MCA, the charge stated here, is an unfair
labor practice remediable by the Board.    At issue here is
whether the Board should have deferred to the contract
grievance procedure.
     The District Court, in its consideration of this issue,
simply stated that "[Tlhis Court agrees with the reasoning
of the Hearings Examiner."   That reasoning, with which we
also agree, is reflected in the following discussion.
     Because of the similarity between Montana's Collective
Bargaining Act for Public Employees (Title 39, Chapter 31,
MCA) and the National Labor Relations Act, it is helpful to
consider federal precedent on this issue.
     A "prearbitral deferral policy" was first enunciated by
the NLRB in Collyer Insulated Wire (1971), 192 NLRB 837, 77
LRRM 1931.   There, quoting from Jos. Schlitz    re wing Co.
(1968), 175 NLRB 23, 70 LRRM 1472, 1475, the NLRB found
"that the policy of promoting industrial peace and stability
through collective bargaining obliges us to defer the parties
to the grievance-arbitration procedures they themselves have
voluntarily established." Collyer at 77 L I J l 1936.
                                         IP!
     It went on to note several circumstances in that case
which "no less than those in Schlitz, weigh heavily in
favor of deferral."     The dispute arose within the confines
of a long and productive collective bargaining relationship.
No claim of enmity was made.    Respondent had credibly
asserted its willingness to arbitrate under a clause providing
for arbitration in a broad range of disputes.    The contract
and its meaning lay at the center of the dispute.    The
contract obligated each party to submit to arbitration and
bound them to the result.    Collyer at 77 LRRM 1936-37.
    We can distinguish Collyer on these factors alone. The
Board's findings, with respect to questions of fact which
are supported by substantial evidence and are therefore
conclusive (section 39-31-409(4), MCA) show that the City's
conduct "does not lead one to believe that a stable collective
bargaining relationship exists between the parties," that
"[Tlhere was no indication of a willingness on the part of
the City to arbitrate," and that the "grievance procedure
provided in the contract does not culminate in a final and
binding decision.      -
                    It may end in a 'binding' decision, - a
                                                        if
majority of a six-member committee formed by - -
                                          - the city manager
and comprised of three city and three union representatives
can reach agreement."
     It should be noted here that the City's reliance on
section 39-31-310, MCA is misplaced.    It claims that the
section is a legislative mandate that public employers are
not bound to go to final and binding arbitration, thereby
nullifying any contrary NLRB ruling.    In fact, the section
is permissive, not mandatory.    It merely allows the parties
to agree voluntarily to submit any or all issues to final
and binding arbitration.    No such agreement was made here,
nor does the contract require it, which as we have stated,
is one basis for not deferring in this case.
     Furthermore, the NLRB in General American Trans. Corp.
(19771, 228 NLRB 808, 94 LRRM 1483, held that the Collyer
doctrine is not applicable in cases involving alleged interference
with protected rights or employment discrimination intended
to encourage or discourage the free exercise of those rights.
See sections 8 (a)(1) and (3), NLRA and sectlons 39-31-401 (1)
and (3), MCA.   The charge here involves such alleged violations.
Deferral is inappropriate in this case.
UNFAIR LABOR PRACTICES
     Regarding the charges themselves, the District Court
concluded "that there is substantial evidence on the record
considered as a whole to support the findings and conclusions
of the Board with regard to the violations of Section 39-31-
401(1) and (3)."   Again we agree.   Without wading through
the wealth of available precedent propounded by the hearings
examiner, we will simply restate his determinative findings.
     As to section 39-31-401(1), MCA, the examiner found
"that the fact that Mr. Young had a record of filing grievances
affected the judgment of those city officials responsible
for laying him off and keeping a person with less seniority
on the payroll as a laborer."   Motive is not the critical

element in this violation.
     As to section 39-31-401(3), the examiner found that
"[Tlhe evidence clearly points to the conclusion that the
City's discriminatory motive was a factor, and probably the
dominate (sic) factor, in its decision to lay off complainant
and thereby violate the agreement.    Its actions caused
unrest among union members and had the effect of discouraging
membership."
"BUT FOR" TEST
 ---
     The City relies here on Western Exterminator Co. v.
N.L.R.B.   (9th Cir. 1977), 565 F.2d 1114, which states the
rule that where a discharge is motivated by both a legitimate
business consideration and protected union activity, the
test is whether the business reason or the protected union
activity is the moving cause behind the discharge.    565 F.2d
at 1118.   This Court adopted essentially the same test in
Board of Trustees of ~illings,etc. v. State (1979), -
       ,
Mont. - 604 P.2d 770, 777, 36 St.Rep. 2289, 2299.
     In this case, although the "but for" test was not
utilized by the hearings examiner, he did find, again, "that
the City's discriminatory motive was a factor, and probably
the dominate (sic) factor, in its decision to lay off
complainant."    The record amply demonstrates that protected
union activity was the moving cause behind the discharge.
CROSS-APPEAL
     Section 39-31-401(4) makes it an unfair labor practice
for an employer to:
     "(4) discharge or otherwise discriminate
     against an employee because he has signed
     or filed an affidavit, petition, or complaint
     or given any information or testimony under
     this chapter;.   .
                      ."
     The Board found there was a violation "after he (young)
filed this unfair labor practice charge because he was not
called back by the city."
     The District Court reversed because "any alleged
violation of subsection (4) must have occurred before the
filing of the unfair labor practice charge, not afterward."
     Respondents do not contend that filing a grievance is
equivalent to signing or filing an affidavit, petition, or
complaint.   Instead, they point to two statutes:
     "39-31-407. Amendment of complaint. Any
     complaint may be amendedby the complainant
     at any time prior to the issuance of an order
     based thereon, provided that the charged
     party is not unfairly prejudiced thereby."
     "39-31-408. Modification bv board of
     findings --
              and order. ~ntil?he record in
     a proceeding has been filed in district
     court, the board at any time, upon reasonable
     notice and in such manner as it considers
     proper, may modify or set aside, in whole or
     in part, any finding or order made or issued
     by it."
     We agree that Young was discriminated against after
this charge was filed.   Since he could have amended his
complaint to include that discrimination had it not already
been part of his original complaint, and since the City
could therefore not possibly have been prejudiced thereby,
we reverse the District Court on this point and grant the
cross-apeal. The order of the Board is reinstated.
     Affirmed in part, reversed in part.




F e Concur:
 7



      Chief Justice
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