                               No. 8 5 - 3 7 5
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1986




ERNEST TERRY, Petitioner, on behalf
of himself and all other similarly
situated past and present employees
of defendants,
                Plaintiff and Appellant,


BOARD OF REGENTS OF HIGHER EDUCATION
OF THE STATE OF MONTANA AND MONTANA
STATE UNIVERSITY,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Eighteenth Judicial District,
                In and for the County of Gallatin,
                The Honorable Thomas 01-son,Judge presiding.

COUNSEL OF RECORD:
       For Appellant:
                James M. Kommers; Landoe, Brown, Planalp, Kommers and
                Johnstone, Bozeman, Montana

       For Respondent:
                Roger N. Flair, Montana State University, Bozeman,
                Montana
                William Richardson, Dept. of Labor & Industry, Helena,
                Montana




                                   Submitted on Briefs: Oct. 24, 1985
                                       Decided:   February 18, 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

         Ernest Terry, the plaintiff, appeals a Gallatin County
District    Court   order granting the defendant's motion      to
dismiss and/or for summary judgment.         The District Court
upheld    an administrative decision of the Labor Standards
Division and determined that the plaintiff was a farm worker
and an employee employed in agriculture and therefore exempt
from the overtime provision of S 39-3-405(1), MCA.        On ap-
peal, plaintiff raises issues concerning judicial review of
an administrative decision, his status as an employee of the
University and the certification of this action as a class
action suit.        We affirm the order of the District Court
uphol.ding the administrative decision and granting judgment
to the defendant.      Therefore, we do not reach the third issue
in this appeal.
         The plaintiff worked    at an Agricultural Experiment
Station for Montana State University in Bozeman, Montana from
October 1979 through March 1982.         He was employed as an
agricultural research technician, commonly referred to as a
beef herdsman.      During the term of his employment, the plain-
tiff resided on the Gerwin Farm or Gerwin Block.       This is a
160 acre farm purchased by the University in 1957 as part of
its Agricultural Experiment Station.
     The plaintiff's duties as a beef herdsman consisted of
the care and maintenance of the resident beef herd.       He fed
the cattle, provided them with salt and minerals, helped
deliver calves, maintained fences and assisted with artifi-
cial insemination chores.      He also maintained records neces-
sary for the management of the herd.           His duties were similar
in nature to those duties on any cattle farm or ranch.
         In April 1982, the plaintiff submitted a claim to the
Department of Labor and Industry for alleged unpaid overtime
wages.     The Department held a hearing on September 23, 1982,
before    a    hearing    officer of the Labor Commission.             The
hearing       officer    dismissed   the   plaintiff's   claim    on   the
grounds that he was           a   farm worker and exempt         from the
overtime provisions of S 39-3-405(1), MCA.               After hearing
oral argument on appeal, the District Court remanded the case
back    to the Department "for additional testimony on the
nature and extent of the Gerwin Research Farm."            It took the
defendant's motion to dismiss and/or for summary judgment
under advisement.
         The Department reheard the matter on November 30, 1983.
After    hearing    additional testimony       and   receiving    further
evidence from both parties, the hearing officer concluded
that plaintiff was an agricultural employee performing labor
on a farm or ranch and thus was exempt from the overtime
requirement of 5 39-3-405 (1), MCA.           He also concluded that
the Gerwin Research Farm, even though it was part of an
Agricultural Experiment Station and owned by the University,
was a farm or ranch for the purposes of determining overtime
exemptions under Montana's Minimum Wage and Overtime Act,
5 s 39-3-401, et. seq., MCA.
        After these findings and conclusions were transmitted
to the District Court, the defendant renewed its motion to
dismiss and/or for summary judgment.             The District Court,
after a hearing, granted the defendant's motion.           Judgment in
favor of the defendant was entered on April 23, 1985.
       Plaintiff appeals and raises three issues:
       (1) Did the District Court err when it upheld the
findings of fact and conclusions of law made by the Depart-
ment of Labor and Industry?
       (2)    Is plaintiff, as a.n       employee of Montana State
University working at an Agricultural Experiment Station,
either exempted or excluded from the overtime provisions of
5 39-3-405 ( I ) , MCA?
       (3)    Should this action be certified as a class action
to adjudicate wage claims of all those persons in positions
similar to this plaintiff's position?
       The Montana legislature set out the scope and standard
of judicial review of an administrative agency's decision in
5 2-4-704, MCA, part of Montana's Administrative Procedure
Act.   The relevant portions of that section state:
             (1) The review shall be conducted by the
             court without a jury and shall be con-
             fined to the record. In cases of alleged
             irregularities in procedure before the
             agency not shown in the record, proof
             thereof may be taken in the court. The
             court, upon request, shall hear oral
             argument and receive written briefs.
              (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 sub-
             stantial rights of the appellant have
             been prejudiced because the administra-
             tive findings, inferences, conclusions,
             or decisions are:


             (d) affected   by   other    error   of   law;
             (e) clearly erroneous in view of the
             reliable, probative, and      substantial
             evidence on the whole record; [or]
            (f) arbitrary or capricious or charac-
            terized by abuse of discretion or clearly
            unwarranted exercise of discretion           ...
This Court has defined these standards further in case law.
Findings are binding on the court and not "clearly erroneous''
if    supported. by     "substantial, credible          evidence   in   the
record." City of Billings v. Billings Firefighters Local No.
521     (1982),   200       Mont.   421,   431,   651   P.2d   627,     632.
Appellants carry the burden of showing prejudice from a
cl-early erroneous decision.          See, e. g. , Carruthers v. Board
of Horse Racing (Mont. 1985), 700 P.2d 179, 181, 42 St.Rep.
729, 732.
        Plaintiff contends, as part of his first issue, that
some of the administrative agency's findings of fact are not
supported by substantial evidence and are therefore clearly
erroneous.    In particular, he challenges the findings charac-
terizing the Gerwin Farm and the Agricultural Experiment
Station as engaging in farming or ranching and characterizing
his duties as similar to those of any other farm or ranch
worker.     Section 39-3-402(4), MCA, defines a farm or ranch
as:
             ...  any    endeavor primarily engaged in
            cultivatinq the soil or in connection
            with raisi';lg or harvesting any agricul-
            tural or horticultural commodity, includ-
            incr     the~    -



            feeding, carinq for,
                                -raisina.      shearinq,
                                        training     a&
            manaaement of                          poul-
            try and fur-bearing                  .dlife.
             (~m~hasis added. )
This description does not require that the employer - a farm
                                                    he
or ranch or even primarily engaged in those listed activi-
ties.     This description focuses on the activities at. the
situs of the work.          So long as the endeavor engaged in at the
particular location consists of one or more of the purposes
in 5 39-3-402(4), MCA, the location is a "farm or ranch" for
the purposes of Title 39, Chapter 3, Part 4, MCA, on minimum
wage   and overtime compensation.           The testimony heard on
remand corroborated the plaintiff's description of the Gerwin
Farm as     "a little small ranch on the South end of the
college    . . . [consisting of] . . . a             barn,     a    house,
corrals    . . . " The Station's director           testified that the
Gerwin Farm's function is to produce livestock for research
and teaching functions; it has a "normal production and sales
system;" it is operated in a conventional manner; and it has
"typical facilities that accompany a livestock operation"
such as a barn, residence, livestock facilities and fencing,
feeding and watering systems.      The operations of Gerwin Farm,
and similarly the Agricultural Experiment Station, fit within
the statutory description of an "endeavor primarily engaged
in   ...    raising,. . . feeding, caring for, . . . and man-
agement of   livestock . . ." We hold that the District Court
properly affirmed the administrative finding that this opera-
tion wa.s a farm or ranch within the statutory definition.
       As noted above, the plaintiff disputes the findings
that depict him as a farm worker or an employee engaged in
agriculture,      as   well.      Fa.rm    worker     is     defined    in
S 39-3-402(5), MCA, as "any person employed to do            any service
performed on a farm or ranch."            (Emphasis added. )        Having
established that plaintiff performed his services on a farm
or ranch, he fits within the statutory definition of farm

worker and thus is excluded from the overtime provisions as
required by 5 39-3-405(2), MCA.
       The plaintiff may also be described as an employee
employed     in    agriculture,     thus      fitting      within      the
S 39-3-406 (2)(g), MCA, exclusion to the overtime provisions.

Although the evidence conflicted, the plaintiff testified at
the first hearing on his overtime wage claim that his duties
were :
             ...   Calving cows and general mainte-
             nance of the herd, health and fence,
             :feeding in winter time.
            Q.  [by Hearing officer:] Did you have
            any other duties besides apparently
            taking care of the cattle just general
            maintenance?
            A. [by Ernest Terry:]   Not really.
The director of the Agricultural Experiment Station testified
that, as the beef herdsman, plaintiff had no responsibility
for any teaching or research activities on the Gerwin Farm.
Other testimony supports the characterization of the plain-
tiff's duties as that of an employee employed in agriculture
as well.     We hold that the findings that describe the plain-
tiff as a farm worker or employee in agriculture are support-
ed by     suhstantial credible evidence and are not clearly
erroneous.
         In the final part of his first issue, plaintiff con-
tends that the administrative agency's conclusions of law are
erroneous and an abuse of discretion and therefore should be
reversed.    He apparently questions only the scope or standard
of review on legal questions and notes that it is broader
than on factual issues because the courts are the specialists
in legal issues.    This Court's statement in City of Bill-ings,
expands on the language in 5 2-4-704, MCA.
            Where the intent of statutes is unclear,
            d.eference will be given to the agency's
            interpretation . ..  Where  it   appears
            that legislative intent is clearly con-
            trary to agency interpretation, the
            courts will not hesitate to reverse on a
              the basis of "abuse           of   discretion."
              (Citations omitted.)
200 Mont.      at   431,   651 P.2d    at    632.     As   with   factual
challenges, the appellant carries the burden of showing the
agency's decision was incorrect.            See, e.g. Carruthers, 700
P . 2 d at 181, 42 St.Rep. at 732.

         The legal conclusions challenged by plaintiff are the
subject of the second issue where he contends that the Dis-
trict Court's interpretations of "farm worker" and "employee
employed in agriculture" as including plaintiff, are incor-
rect.     In Plouffe v. Farm    &   F-anch Equipment Co. (1977), 174
Mont. 313, 316, 570 P.2d 1106, 1108, this Court determined
that the basis of the exemption from overtime for farm work-
ers is that the situs where the work is performed is a farm
     ranch.    That particular exemption did not apply in Plouffe
because the employee did not work on a farm or ranch.             Celmer
v.   Schmitt (1982), 198 Mont. 271, 273, 645 P.2d 946, 947,
although      citing   Plouffe, supra, appears to          consider the
exclusion from overtime provisions of an "employee employed
in agriculture," listed in      $   39-3-406(2) (g), rather than the
"farm worker" exemption.        The factors which supported the
holding that the plaintiff in Celmer was an agricultural
employee were (1) he was advised prior to employment that he
was an agricultural employee; and ( 2 )          he had to perform any
function required in the defendant's livestock, grain and
rneat production enterprise.        In the case at bar, the plain-
tiff performed his work on a farm or ranch, as discussed
above.     In addition, he was hired as a beef herdsman to do
any work necessary in this defendant's livestock enterprise.
We hold that the District Court correctly concluded plaintiff
was bo.th a farm worker and an employee employed in agricul-
ture and therefore not covered by the overtime provisions of
§ 39-3-405   ( I ) , MCA.

        In his third issue, the plaintiff requests certifica-
tion of his suit as a class action.          Our disposition of the
first    two    issues      renders   a   decision   on   this   issue
unnecessary.
        The order of the District Court is affirme




We concur:


  ief Justice
