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 28, 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 40 hour work week, he was 

paid at the rate provided in the collective bargaining 

agreement for bookmobile drivers for only 20 hours. He was 

paid at the clerical rate which was about $2.00 less per hour 

for 20 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 20 hours at the Union 

driver's rate and 20 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 45 

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 ~ottling Co. 

(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 ERM 3436 (2nd 

Cir. 1984) . N; such showingTas been made in this 

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." - Id. at 204, 65 S.Ct. at 232, 89 L.Ed. at 

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." - Id. at 190, 87 S.Ct. at 916, 17 L.Ed.2d at 857. 

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. - Id. at 191, 87 S.Ct. at 917, 17 L.Ed.2d at 858. 
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. 

We Concur: ,, / 

Udr, R .a 

Justice 

R. 7-w~ 

' Chief Justice