                                  No. 85-515
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1986




TEAMSTERS LOCAL NO. 45, affiliated
with International Brotherhood of
Teamsters, et al.,
                Petitioners and Appellants,


STATE OF MONTANA, ex rel., BOARD OF
PERSONNEL APPEALS AND STUART McCARVEL,
                Respondents and Respondents.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis & Clark,
                The Honorable Gordon Bennett, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                Hilley   &   Loring; Emilie Loring, Great Falls, Montana

       For Respondent:
                Daniel J. Stevenson, Dept. of Labor, Helena, Montana
                Poore, Roth & Robinson; Douglas Buxbaum, Butte,
                Montana




                                      Submitted on Briefs: May 30, 1986
                                       Decided:   August 2 8 ,   1986
Mr. Justice John C.           Sheehy delivered the Opinion of the
Court.


        The   Union    appeals      from    the    opinion   and   order   and
judgment entered by the District Court of the First Judicial
District, Lewis and Clark County, which affirmed the decision
of the Board of Personnel Appeals.                We affirm.
        Stuart McCarvel was a bookmobile driver for Great Falls
from 1976 to 1978.           He received his first paycheck on March
5, 1976.      Although he had worked a 4 0 hour work week, he was
paid    at    the    rate provided         in the    collective bargaining
agreement for bookmobile drivers for only 2 0 hours.                   He was
paid at the clerical rate which was about $ 2 . 0 0             less per hour
for 2 0 hours.        McCarvel went to the Union Hall the same day
and sought to file a grievance.                    Under the terms of the
collective bargaining agreement, "a grievance involving wages
must be raised within ten (10) calendar days following the
event giving rise to such grievance or be forever waived."
The Union refused to file a grievance.               McCarvel attempted to
file grievances again in May, 1976, December, 1976, and
February or March,           1977.     He was refused at all times.
McCarvel tried numerous times to reach the Union's business
agent who would not return McCarvel's call.                  In the course of
these proceedings McCarvel learned that ten years earlier the
Union and the library worked out an oral side agreement
whereby drivers would be paid for 2 0 hours at the Union
driver's rate and 2 0 hours at the library's nonunion clerical
rate.
        In February, 1977, McCarvel met with the Union business
agent     who       stated   that    the     Union    was      preparing   for
negotiations with the city and that filing a grievance would
"rock the boat."      The business agent stated they would try to
straighten the matter out during negotiations.             Negotiations
were unsuccessful and the Union struck the city from July 1
to July 26, 1977.       Near the end of the strike the business
agent told McCarvel that negotiations would not settle the
matter, so the grievance procedure should be used.              McCarvel
filed an unfair labor practice charge against the Union on
August 8, 1977.       On the same day, the Union filed McCarvel's
grievance.        The Union processed the grievance through the
grievance committee which was composed of three city members
and three Union members.             It deadlocked.     The Union could
then have taken economic or legal action.             It did neither and
the grievance was waived.
     McCarvel pursued his unfair labor practice claim and on
November 30, 1978 the hearing examiner entered findings of
fact, conclusions of          law and a recommended order.           The
parties had agreed to bifurcate the liability and remedy
issues, so the hearing examiner's initial order was limited
to the liability issue.             She found the Union had failed to
fairly represent McCarvel by failing to accept and process
his grievance.
     On February 22, 1979, the Board of Personnel Appeals
affirmed    the    hearing examiner and ordered           an   additional
hearing    to   determine     remedies.      Prior to this hearing,
however, the Union filed a motion to dismiss the charges
before the Board, claiming the Board had no jurisdiction to
decide the case.      The Board refused to dismiss the charge and
the Union appealed that ruling to the District Court.                The
District     Court   held     the    Board   lacked   jurisdiction   and
dismissed the case.         The Board appealed to this Court and we
reversed.       Teamsters Local 45 v. State ex rel. Board of
Personnel Appeals (1981), 195 Mont. 272, 635 P. 2d 1310.             The
District Court remanded the matter to the Board for a hearing
on   remedies.      After     that hearing, the examiner entered
proposed findings and conclusions and recommended McCarvel be
awarded $8,353.17.         The Board issued its decision December
16, 1983, adopting the examiner's findings and ordering the
Union to pay lesser damages of $7,540.00 in accordance with
the apportionment scheme approved in Bowen v. U.S.               Postal
Service (1983), 459 U.S. 212, 103 S.Ct. 558, 74 L.Ed.2d 402.
The Union filed for judicial review on January 16, 1984.
Because    the prior       district   court action on this matter
involved consideration of the issue of jurisdiction only, the
District Court reviewed the Board's unfair labor practice
decision as well as the decision on remedies.              The District
Court affirmed the decision of the Board in its entirety.
The Union appeals.
     The Union raises five issues for review.             First, whether
the District Court erred in approving damages for the period
of McCarvel's employment prior to February 8, 1977.             Second,
whether the District Court erred in affirming damages after
August 8, 1977.      Third, whether the District Court erred in
affirming the Board's notice requirement.             Fourth, whether
the District Court erred in affirming the Board's finding the
Local failed to fairly represent McCarvel in handling his
claim for overtime pay.           Last, whether the District Court
erred     in   affirming    the   Board's    conclusion   the   "Union's
conduct was so unreasonable and arbitrary as to constitute a
breach of the duty of fair representation."
     We begin with the standard of review governing this
appeal.    The Board's order is subject to review by a district
court pursuant to     §    39-31-409, MCA.    The order of a district
court is subject to review by this Court pursuant to the same
section.     The standard of review at both levels is set by    §

39-31-105, MCA, which states that the Montana Administrative
Procedure Act    (MAPA) applies.   Section 2-4-704, MCA, sets
forth the MAPA standards of review.      Specifically, factual
findings will be upheld if they are not clearly erroneous,
that is if they are supported by substantial evidence on the
whole record.     In reviewing legal questions, the standard of
review is abuse of discretion.     City of Billings v. Billings
Firefighters (1982), 200 Mont. 421, 651 P.2d 627.
     The first issue raised by appellants is whether the
District Court erred in approving damages for the period of
McCarvel ' s employment prior to six months before the claim
was filed.    Section 39-31-404, MCA, states:
    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 unless the
    person aggrieved thereby was prevented from filing
    the charge by reason of service in the armed
    forces, in which event the 6-month period shall be
    computed from the day of his discharge.
This statute does not address damages; it is a statute of
limitations for charges based on unfair labor practices.       In
this case we agree with the District Court that the unfair
labor practice was a continuing course of conduct which began
on March 5, 1976, when McCarvel received his first paycheck
and the Union refused to file a grievance, and continued on
until well past the time the unfair labor practice charge was
filed in August 1977.     Thus the charge was filed within the
six month statute of limitations.       Once the unfair labor
practice is established, the issue of damage arises.       The
District Court affirmed the award of damages beginning on
February 17, 1976 and running until June 30, 1978 which
constitutes the entire time McCarvel worked for the city.
The Union argues the back pay should have been limited to six
months prior to August 8, 1977 (the date the charge was
filed. )      The   District      Court   noted    the    National     Labor
Relations Board (NLRB) has not taken a consistent position on
back pay.    At times, it limited back pay to six months prior
to   the    date    the   charge    is    filed.         Nelson-Hershfield
Electronics (1971), 188 NLRB 26, 77 LRRM 1013.                   In other
cases, the court awarded back pay for the entire time the
grievant suffered a wage loss due to the Union's failure to
process a grievance.           IBEW, Local 2088      (Federal Electric
Corp.)     (1975), 218 NLRB 396, 89 LRRM 1590; Abilene Sheet
Metal, Inc. v. NLRB         (5th Cir.     1980), 619 F.2d       332.      In
allowing damages prior to six months before the charge was
filed, the District Court held it would be manifestly unfair
to the grievant to limit the damages and would reward the
Union for its procrastination.             We agree that this is a
proper case to allow damages beyond the six month limit.
      The second issue raised by appellant is whether the
District Court erred in affirming damages after the wage
grievance was filed on August 8, 1977.             The Union argues it
processed McCarvells grievance properly once it was filed,
thus it should not be liable for the damages incurred after
the grievance was filed.
      The   District      Court   affirmed   the    hearing     examiner's
findings that the Union by its inaction cut off the only
avenue open to them to get a determination of the merits of
the grievance.       The hearing examiner relied on Clerks and
Checkers Local 1593, International Longshoreman Association
(1978), 234 NLRB 511, 98 LRRM 1328, and IBEW, Local 2088
(1975), 218 NLRB 396, 89 LRRM 1590, which held that in a duty
of fair representation case where the union failed to process
a wage grievance, the union's liability will cease on the day
of final disposition of the grievance.            The District Court
affirmed the Board's award of damages from the time McCarvel
began his employment until he ].eft it.          We find no abuse of
discretion on the part of the District Court.
     The third issue raised by the appellant is whether the
District     Court   erred     in    affirming   the    Board's      notice
requirement.     The Board ordered the Union to mail this notice
to "all employees in the bargaining unit of the City of Great
Falls :I
       '
     After a hearing at which both sides had an
     opportunity to present evidence and state their
     positions, the Board of Personnel Appeals found
     that we have violated the Collective Bargaining Act
     for Public Employees and has ordered us to mail
     this notice to each member of the bargaining unit.
     WE WILL NOT fail or refuse to fairly represent any
     employees represented by us or arbitrarily fail or
     refuse to file and process any employee's grievance
     on a fair basis or refuse to inform employees of
     the status of their grievance.
     WE WILL make Stuart Thomas McCarvel whole for the
     loss of pay he suffered as a result of our unlawful
     refusal to consider or process his grievance.
     INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
           WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 4 5
     The Union argues the order is in excess of the Board's
jurisdiction.        Section   39-31-406, MCA,         gives   the   Board
discretion to ntake such affirmative action               . . . as    will
effectuate the policies of this chapter."          Posting of notices
is more common but the NLRB has required the mailing of
notices to all employees.           NLRB v. H. W. Elson ~ottlingCo.
(1967), 379 F.2d 223.        The District Court held the egregious
behavior of the Union in refusing to file the grievance for
17 months justified the Board's remedial order.            The District
Court went on to state:
       The bargaining unit involved here is a broad,
       multicraft unit represented by the Public Employees
       Craft Council. The Union's membership constitutes
       only a portion of the bargaining unit.        Because
       this unfair labor practice involves only the
       Teamsters, it is difficult to see how mailing
       notice of the violation to all members of the
       bargaining unit will effectuate the policies of the
       statute. But the choice of the Board will not be
       disturbed unless it can be shown that the order is
       a patent attempt to achieve ends other than whose
       [sic] which can fairly be said to effectuate the
       policies of the statute.       (NLRB v. Electrical
       Workers, Local 3,      F.2d     , 115 E R M 3436 (2nd
       Cir. 1984) . ; such showingTas been made in this
                    N
       case.
       The District Court did not abuse its discretion in this
finding.
       The fourth issue raised by appellant is ~rhether the
District Court erred           in affirming the Board's finding a
failure to fairly represent McCarvel in handling his claim
for overtime pay.             The Union contends McCarvel failed to
provide the business agent with sufficient records of the
overtime he worked.             However, the record shows McCarvel
attempted to supply his time sheet to the Union but the
business agent brushed the offer aside saying he believed
him.    The Union also argues that McCarvel got compensatory
time rather than overtime in accordance with library policy.
However, the rights of the parties were set forth in the
collective bargaining agreement which provided for overtime

Pay          The    library    could   not    unilaterally    modify   that
agreement.         The District Court was correct in affirming the
Board's order.
       The    fifth issue raised by           appellant is whether the
District       Court    was    correct       in   affirming   the   Board's
conclusion that the Union conduct was so unreasonable and
arbitrary as to constitute a breach of the duty of fair
representation.        A union's duty of fair representation is a.
judicially created doctrine first recognized in the context
of the Railway Labor Act in Steele v. Louisville                 &   Nashville
Railroad Co.       (1944), 323 U.S.     192, 65 S.Ct.       226, 89 L.Ed.
173.     Steele required the Union to represent its individual
members "without hostile discrimination, fairly, impartially
and in good faith."        - at 204, 65 S.Ct. at 232, 89 L.Ed. at
                           Id.
184.     The Steele principle was later extended to bargaining
representations         under   the   National    Labor    Relations       Act
(NLRA)  .     Syres v. Oil Workers International Union, Local 23
(1955), 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785.                   The NLRB
first recognized a breach of the duty of fair representation
as an unfair labor practice in Miranda Fuel Co. (1962), 140
NLRR 181, 51 LRRM 1584, reasoning the privilege to act as an
exclusive bargaining representative granted in S                     9 of the
NLRA necessarily gives rise to a corresponding               §   7 right in
union constituents to fair representation by the exclusive
representative.          Although the duty of fair representation
arose in the context of racial discrimination, the doctrine
has been expanded to include arbitrary conduct by a union
toward bargaining unit members.          In Vaca v. Sipes (1967), 386
U.S.    171, 87 S.Ct.      903, 17 L.Ed.2d       842, the United States
Supreme Court stated the controlling test for breach of the
union       duty   of    fair   representation:     "A    breach      of   the
statutory duty of          fair representation occurs only when a
union's conduct         ...   is arbitrary, discriminatory, or in bad
faith."       - at 190, 87 S.Ct. at 916, 17 L.Ed.2d at 857.
              Id.
Thus it is settled under federal labor law and therefore
under Montana labor law that a union may not arbitrarily
ignore a meritorious grievance or process it in a perfunctory
manner.       - at 191, 87 S.Ct. at 917, 17 L.Ed.2d at 858.
              Id.
        In her examination of the Union's conduct in this case,
the hearing examiner found the only excuses offered McCarvel
for     the     Union's     refusal      to      accept      the     grievance
were:     (1) the    existence      of   an     oral    agreement; (2) the
problem would be taken care of at the bargaining table;
and,     (3)   pressing    the    grievance       would      upset    contract
negotiations with         the    city.     These       excuses were         found
"clearly specious" because             (1) the oral agreement did not
cover overtime and could not be used as an excuse to refuse
the grievance, since the right of an employee to the minimum
wage provided in the written agreement was an individual
right which could not be taken away by an oral agreement
between the employer and a union official (Eversole v. La
Combe    (1951), 125 Mont. 87, 231 P.2d                945) ; (2) since the
contract provided for overtime, failure to award overtime was
a contract violation and required no further negotiations;
and,     (3) negotiations were only part of the Union's duty to
its members.      Having so found, the hearing examiner concluded
the Union's action was arbitrary in that the Union advanced
no     substantial    reason     for     its    failure    to      accept    the
grievance, to make a good faith investigation, and to submit
the grievance for an organized screening process.                     Contrary
to the Union's assertion, the hearing examiner did not find
mere negligence in the Union's handling of the grievance.
Recognizing that the business agent's inaction in returning
telephone calls could be considered passive and therefore
negligent conduct, the hearing examiner emphasized, "However,
this inaction combined with              his subsequent statements to
McCarvel       indicate   an     active,       intentional      avoidance     of
accepting      the   grievance."         Even     unintentional       acts    or
omission by union officials may be considered arbitrary if
they reflect reckless disregard for the rights of individual
employees, if they severely prejudice the injured employee
and       if   the        policies   underlying        the     duty   of    fair
representation would not be served in shielding the Union
from liability in the particular case.                       Robesky v. Qantas
Empire Airlines Limited              (9th Cir.    1978), 573 F.2d           1082,
1088-90.         The      more   meritorious     the    grievance     the   more
substantial the reason must be to justify abandoning it.
Gregg v. Chauffeurs, Teamsters and Helpers Local 1.50 (9th
Cir. 1983), 699 F.2d 1015, 1016.               We can think of few issues
more meritorious and important to an employee than the issue
of pay.        The District Court's conclusion that the Union's
conduct was so unreasonable and arbitrary as to constitute a
breach of the duty of fair representation is firmly supported
by the law and the facts.
          We affirm the judgment of the District Court.


                                               Udr,R .a
                                                 Justice
We Concur:       ,,   /


      R. 7 - w ~
      '    Chief Justice
