No. 85-375 

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 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 of his employment, the plaintiff 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 artificial 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, 

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 

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 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 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 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 court may 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 the whole record; [or] 
(f) arbitrary or capricious or characterized 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 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 endeavor primarily engaged in 

cultivatinq the soil or in connection 

with raisi';lg or harvesting any agricultural or horticultural commodity, includincr the ~ - raisina. shearinq, -- 

feeding, carinq for, training 

manaaement of 

try and fur-bearing 

a& 

poul- 

.dlife. 

(~m~hasis added. ) 

This description does not 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 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 management of livestock . . ." We hold that the District Court 

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 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 maintenance 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 plaintiff's duties as that of an employee employed in agriculture 

as well. We hold that the findings that describe the plaintiff as a farm worker 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 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 contrary 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.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 "farm worker" and "employee 

employed in agriculture" as including plaintiff, are incorrect. 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 workers 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 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 District Court correctly concluded plaintiff 
was 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 District Court is affirme 

We concur: 

ief Justice