No. 85-375 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

ERNEST TERRY, Petitioner,onbehalf ofhimself and all other similarly situated past and present employees ofdefendants, PlaintiffandAppellant,

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

APPEAL FROM: DistrictCourt of theEighteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Thomas 01-son,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: JamesM. 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 onBriefs: Oct. 24, 1985 Decided: February 18, 1986Mr. 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 plaintiffwas a farmworker and an employee employed in agriculture and therefore exempt from the overtime provision of S 39-3-405(1), MCA. On appeal, 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 ofhis employment, theplaintiff resided on the Gerwin Farm or Gerwin Block. This is a 160 acre farm purchased by the University in 1957 as part of itsAgricultural 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 artificial insemination chores. He also maintained records neces-sary for themanagement of the herd. His dutieswere similar innature 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 Departmentheld 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 thematter onNovember 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, 5s 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 favorof the defendantwas entered onApril 23, 1985.Plaintiffappeals and raises three issues: (1) Did the District Court err when it upheld the findings of fact and conclusions of law made by the Department 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 thisplaintiff'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 shallbe conducted by the court without a jury and shall be confined 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 courtmay affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative 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 thewhole record; [or](f) arbitrary or capricious or characterized by abuse of discretionor clearly unwarranted exerciseof discretion

# ... This Court has defined these standards further in case law. Findings are binding on the court and not "clearlyerroneous'' 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-earlyerroneous 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 administrativeagency's findings of fact are not supported by substantial evidence and are therefore clearly
erroneous. Inparticular,he challenges the findings characterizing 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 endeavorprimarily engaged in cultivatinq the soil or in connection with raisi';lg or harvesting 

### any agricultural or horticulturalcommodity,includincr the raisina. shearinq,

~ - 

## -- feeding, carinq for, training manaaement of try and fur-bearing a& poul- .dlife. (~m~hasis added.) Thisdescriptiondoesnot require that the employer - he a farm
or ranch or even primarily engaged in those listed activities. This description focuses on the activities at. the situs of thework. So long as the endeavor engaged in at the particular location consists of one or more of the purposesin 5 39-3-402(4), MCA, the location is a "farm or ranch" for the purposes of Title 39,Chapter 3, Part 4,MCA, onminimum wage and overtime compensation. The testimony heard on remand corroborated theplaintiff'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; ithas a "normal production and sales system;" it is operated in a conventional manner; and ithas "typical facilities that accompany a livestock operation" such as a barn, residence, livestock facilitiesand fencing, feeding andwatering systems. The operations of Gerwin Farm, and similarly theAgricultural Experiment Station, fit within the statutory description of an "endeavor primarily engaged in

# . . . raising,

# .

# .. feeding, caring for,

# ..

# . and management of livestock

# . .." We hold that the DistrictCourt properly affirmed the administrative finding that this operation 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 theS 39-3-406(2)(g)

### ,MCA, exclusion to the overtime provisions. Although the evidence conflicted, the plaintiff testified at the first hearing on his overtimewage claim that his duties
were:



# . .

# .Calving cows and general maintenance of the herd, health and fence, :feedingin winter time. Q. [by Hearing officer:] Did you have any other duties besides apparently taking care of the cattle just general maintenance? A. [byErnest Terry:] Not really. The director of theAgricultural 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 plaintiff's duties as that of an employee employed in agriculture
as well. We hold that the findings that describe the plaintiff as a farmworker or employee in agriculture are supported by suhstantial credible evidence and are not clearly
erroneous. In the final part of his first issue, plaintiff contends that the administrativeagency's conclusionsof 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.eferencewill be given to the agency's interpretation

# .

# . .Where it appears that legislative intent is clearly contrary to agency interpretation, the courtswill not hesitate to reverse on athe basis of "abuse of discretion." (Citationsomitted.) 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.2d 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 District Court's interpretations of "farmworker" and "employee employed in agriculture" as including plaintiff, are incorrect. In Plouffe v. Farm & F-anchEquipment Co. (1977), 174 Mont. 313, 316, 570 P.2d 1106, 1108, this Court determined that the basis of the exemption from overtime for farmworkers is that the situswhere the work is performed is a farm ranch. That particular exemptiondid not apply in Plouffe because the employeedid notwork on a farmor 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) hewas 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 plaintiff 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 DistrictCourt correctly concluded plaintiffwas bo.th a farm worker and an employee employed in agriculture and therefore not covered by the overtime provisions of § 39-3-405 (I),MCA. In his third issue, the plaintiff requests certification 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 DistrictCourt is affirme

We concur:

ief Justice