No. 81-529 IN THE SUPREME CGURT OF THE STATE OF MONTANA

CHAUFFEURSI TEAMSTERSI AND HELPERSI LOCAL UNIOX NO. 190, Petitioner/Respondent arid STATE OF MONTANA BOARD OF PERSONNELAPPEALS, Respondent, Appellants.

CITY OF BILLINGS, Petitioner/Respondent and Respondent.

Appeal from: District Court of the ThirteenthJudicial District, In and for the County of Yellowstone,The Honorable Diane 

### G. Barz, Judgepresiding.

Counsel df Record: For Appellants: Hilley and Loriny, Great Falls, Montana James Gardner,Jr., Helena, Montana For Respondent: 

### K. D. Peterson; Peterson, Schofield & Leckie,Billings, Montana

Submitted on Briefs: April 15, 1982 Decided: August 5, 1982

### Mr. Chief Justice Frank I. 

### Haswell delivered the Opinion of the Court.

Susan Carlson, an animal warden employed by respondent,

was terminated on March 10, 1980. Appellant Board of Personnel Appeals (BPA)found that shehad been discharged because of her union activities, in violation of section 39-31-401(1) and (3),MCA, and ordered her reinstated with back pay. The District Court reversed the BPA's ruling because of improper procedure. We vacate the District Court decision and remand the case for further considerationby the BPA, section 2-4- 704(2),

### MCA. Initially,we note that the brief of Carlson's bargaining representative, appellant Chauffeurs, Teamsters and Helpers, contains no references to the record for any assertions contained in its statement of facts, in violation of Rule 23(a)(3),T4.R.App.Civ.P. As an appellate court,we are usually confrontedwith at least two conflicting versions of what the dispositive facts in a given case are. The above rule was instigated so thatwe needn't search the entire transcript for each "fact"asserted by a party. To do so merely lengthens the time necessary for the preparation of the opinion and prolongs any final determination of the

case.Carlsonwas first employed by respondent on January 17, 1977, as a water department clerk. On July 

### 1, 1977, she began work as a meter maid. Shebecame active in the union representing city employees at that time, the American Federation of State,County and Municipal Employees (AFSCME) and filed a grievance against respondent. On October 3, 

### 1977,Carlson began working as an animal warden at the city animal shelter and shortly thereafter shebecame shop steward. She served as steward for AFSCME until the end of May 1979. During that time she filed about six grievances including one alleging harassment by her supervisor which culminated in her supervisor being sent a warning to discontinue the harassment. In April 1979, this supervisorwas replacedby another supervisor, Darlene Larson. In lateMay 1979,appellant Teamsters defeated AFSCME

as the city employees' bargaining representative and, since objections to the electionwere filed, the Teamsterswere not certified by BPA until October 1979. During this time, Carlson received several written reprimands, including warnings for having an unauthorized rider in the animal van and conducting herself improperly at the animal shelter. On September 25, 1979,Larson completed an evaluation form on Carlsonwhich rated her above average in most categories, afterwhich time Carlson received a merit pay increase. In October 1979, Carlsonwas suspended for four days "because of insubordination and failure to obey direct orders" involving

a leg problem and the suspension letter concluded with the statement that "any further violationswill result in immediate dismissal." Due to the changeover in unions and election objections, therewas no grievance procedure in effect at this time. On February 2, 1980,during the contract negotiations between the Teamsters and the City, Carlson voiced her

concerns about the working conditions at the animal shelter and on the nextworking day, Larson told Carlson she shouldn't have said what she did and that her facts were wrong. The first contract between the Teamsters and respondentwas signed inmid-May 1980. The final event which precipitated Larson's termination involved a male schnauzer dog which

### Carlson had picked up running at large on March 3, 

### 1980. Carlson did not check the animal in at the shelter because shebelieved itbelonged to a friend of hers (Ostwald)who had reported thathis dog was missing. After finding the dog and talking to Ostwald, Carlson kept the dog at her residence at Ostwald's request because he was in the hospital. On March 5, 

### 1980, anotherperson who had lost amale schnauzer (Wertz) called the shelter. Larson then called Carlsonwho informed her that the dog had been returned to its owner. On March 7,

### Wertz called Larson fromOstwald's home, convinced that the dog was being hidden from her there. Carlson and Larsonwent to Ostwald's home and, after initially denying that Carlson had given him the dog, Ostwald admitted that he once had amale schnauzer but that he didn't have it any longer. Carlson stated the dog was at Shepherd,Montana (whereCarlson lived), but that nobody was home. After further discussion, she stated the dog was at 

### her house but refused to take Larson there. The assistant chief of police ordered Carlson (accompaniedby Larson) to retrieve the dog from her home in Shepherd and Carlson complied, returning the dog to the shelter. At the shelter, Wertz claimed the dog was hers and a veterinarian who had cared for the dog corroboratedher story. Carlson gave the dog to Wertz. On March 10, 1980, Carlson was discharged by Larson in

a letterwhich included the following statements: "Due to insubordinationand non-cooperation with your supervisorson incidents relating to events theweek of March 3 

### to March 8,you are hereby terminated as of today. "Youwere not cooperative in being truthful with me as to the whereabouts of a male schnauzer captured by youwhile on duty, March 3,

### nor inmyefforts to clear the situationwith a public citizen's suspicions of the shelter and you concerning the dog. "Youhave been previously warned on more than one occasion about cooperating with other city employees." On March 17, 1980,Carlson filed an unfair labor practice complaintwith the BPA. She alleged that the above reasons

were pretextual and that the actual reason for her termination

was her union activity, a violation of section 39-31-401 (1) and (3),MCA. A BPA-appointed hearing officer decided in Carlson's favor ordering respondent to reinstate her with back pay and this recommendationwas adopted by the BPA. Respondent refused to do so and on May 5, 1981, the Teamsters filed a petition for enforcement in the DistrictCourt. On May 11, 1981, respondent filed a petition to review the BPA's final order and the caseswere consolidated. On November 9, 1981, the District Court reversed the BPA and this appeal followed. Before we begin discussing the issues involved in this case, a few words about our standard of review are in order. Both the District Court's and this Court's standard of review are dictated by section 2-4-704(2)

### ,MCA, which provides as follows: 

### " (2) The courtmay 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 furtherproceedings. The courtmay reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: "(a) in violation of constitutional or statutory provisions; 

### " (b) in excess of the statutory authority of the agency;

### "(c) made upon unlawful procedure; "(d) affected by other error of law; "(el clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; "(f) arbitrary or capricious or characterized by 

### abuse of discretion or clearly unwarranted exercise of discretion;or 

### " (g) because findings of fact, upon issues essential to the decision,were notmade although requested." The DistrictCourt reversed the BPA on two grounds of unlawful procedure, a legitimate subjectof inquiry under section 2-4-704(2)(c), MCA. The District Court first found the BPA erred in giving primary weight to evidence of Carlson's union activities occurring more than sixmonths prior to the filing of her unfair labor practices claim. The District Court also found that the BPA erred in excluding evidence of Carlson's discipline problems prior to her merit increase. Thuswe frame the issues on appeal as follows: 1. Whether the District Court erred in reversing the BPA because it gave primary weight to incidents that occurred more than sixmonths prior to the filing of Carlson's claim; 2. Whether the District Court erred in reversing the BPA because itdid not admit evidence of Carlson'swork history prior to her merit increase; With regard to the first issue, the District Court found that the BPA erred in according substantialweight to Carlson's union activities occurring more than six months prior to the filing of her claim. Conclusion of law no. 2 

### reads: "TheBoard erred in giving primary weight to union activities which occurred more than six (6)

### months ~rior to the filing of the claim of unfair laborpractices."

### In the court's memorandum accompanying its findings and conclusions,we find the following sentence: "Theonly evidence of union activity fallingwithin the period is Carlson's appearance at negotiating sessions on February 2, 

### 1980,wherein she appeared with about 25 other City employees to discuss conditions of their working areas." In supportof its decision, the District Court cited section 39-31-404, MCA and N.L.R.B. 

### v. MacMillan Ring-Free Oil Co., Inc. (9thCir. 1968), 394 F.2d 26. Section 39-31- 404,provides as follows: "39-31-404. Six-month limitationon unfair labor practice complaint--exception. No notice of hearing shallbe issuedbased upon any unfair labor practice more than 6 months before the filing of the charge with the board 

# . .." Respondent City cites MacMillan, supra, also and Sioux Quality Packersv. N.L.R.B. 

### (8thCir. 1978), 581 F.2d 153, in support of the proposition that the BPA should not have used evidence of Carlson's activity occurring outside the six-month period as the principal foundation for its reasoning. The Teamsters Union does not dispute the rationale of these cases but argues that they are inapplicable here because they hold that the sixmonth period applies to the employer's activities and not the employee's. Appellant BPA contends that the federal equivalent of section 39-31-404, MCA, has never been interpreted the way the District Court did in this case and argues further that it is a statute of limitations barring the filing of a claim on an incident after six months, and not a rule of evidence prohibiting the consideration of relevant testimony concerning anti-union animuswhich is sixmonths ormore old.All parties agree that section 39-31-404,MCA, is substantially silimar to the National Labor Relations Act 5 10(b) 

### , 29 U.S.C. 160(b) (1976)and interpretations thereunder are pertinent here. The District Court properly relied on MacMillan for the proposition that a violation within the six-monthperiod must stand on its own: "To recapitulate, then,we hold thatwhile evidence of events occurring more than six months before the filing of a chargemay be used to 'shed light' upon events taking place within the six-month period, the evidence of a violation drawn fromwithin thatperiod must be reasonably substantial in its own right." 394 F.2d at 33. However, the actual holding of that case revolves around the charge of the employer's (MacMillan's) refusal to bargain with the union and the focus on the whole case is on the employer's activities and lack of promptness. The court continues from the above quote by saying: "Where, as here, that condition is not met, it is impermissibleunder the policies embodied in section 10(b) for a finding of an unfair labor practice to be justified by primary reliance on the earlier events. Thus the Board's conclusion thatMacMillan improperly refused to bargainwith the union during the applicable limitationsperiod cannotbe upheld." 394 F.2d at 33. The District Court erred in applying section 39-31-404, MCA, to Carlson's union activitiesand other interpretations of its federal counterpartbear this out. In Wilson Freight Co. (1978)

### , 234N.L.R.B. 844, 97L.R.R.M. 1412, rev'd. on other grounds (1979),604 

### F.2d 712, an employee (Smith)filed a number of grievances and was active in the union prior to his discharge for conduct exceedhq his authority as a shop steward. The administrative law judge noted with regard to the employer's answer:

### "Italso raised as an affirmative defense that the activities in which Smith is alleged to have engaged in occurred more than 6months prior to the filing of the unfair labor practice charge, therefore thematter is barred by Section 10(b)of theAct.

"Section 10(b) of theAct is unambiguous in clearly stating that it is the unfair labor 

### --- practice,not the employees' concerted or 

### -- union activity,which must be within the10(b) 

### ------ . . -- 

### period. The unfair labor practice in the present case occurred with Smith's discharqe on - - 

### September 3, 

### 1976. Smith filed the unfair laborpractice chargebased upon this discharge on October 20, 1976. Therefore, Smith is well within the 10(b) period and I reject Respondent's affirmative defense in this regard."

(Emphasisadded.) 234N.L.R.B. at 849, 97L.R.R.M. at 1412. Another caseworthy of note is Inland Steel (1981), 257 N.L.R.B. 

### No. 13 (11 

### 18,238), 107L.R.R.M. 1456. In Inlhnd Steel,an employee had been active in his union (filinga number of complaints)and inworkers' rightsmovements prior to his voluntary terminationof employment. TheN.L.B.B. found that his employer refused to hire him seven months later because of his union activities during his prior employment. There is no indication of union activities during his unemployment. Although the sixmonth statute is not specifically addressed, theN.L.R.B. clearly examined and based its decision on the employee's activity which occurred more than sixmonths prior to the filing of the claim. InAxelson Manufacturing Co. (1950), 88 N.L.R.B. 761, 25 

### L.R.R.M. 1388, theNational Labor Relations Board held: "The employer asserts that Section 10(b) of the amended NLRL3prohibits the introductionof evidence as to events occurring more than six months prior to the service of the charge. This contention iswithout merit. "Section10(b) forbids the issuance of complaints and consequently findings of violations of thestatutebased on conduct which did not occur within the sixmonths' period. However, it does not forbid the introductionof relevant evidence bearing on the issue of whether a violation has occurred during the sixmonths. Section 10(b) enacts a statute of limitations and not a rule of evidence." (~mphasis added.) Axelson, 88 

## N.L.R.B. at 765-66, 25 L.R.R.M. at 1388. Section 39-31-404, MCA, requires an employee to file a charge with the BPAwithin sixmonths after an alleged unfair labor practice. Here the alleged unfair labor practice occurred onMarch 10, 1980,and Carlson filed her complaint

on March 17,well within the six month period. The construction placed on the statuteby the District Court is not borne out by the above cases or by the language of the statute itself. See also Local Lodge No. 1424 v. N.L.R.B. (1960), 362 U.S.

The second issue relates to the BPA's failure to consider Carlson's conduct prior to her merit increase. The hearings officermade the following statements, which were adopted by the BPA: "All of the eventswhich occurred prior to Carlson's merit increase must be ignored as far as the City's argument in support of its decision is concerned. At the time of the merit increase Carlson was considered to he just that

# -- an employeeworthy of a merit increase." The District Court stated the followingwith regard to this issue: "Inexamining whether the City had met its burden of proof, the Board excluded from consideration all evidence of disciplinary problems relative to Carlson prior to her merit increase of October 3, 1979. Such exclusion has no basis in statutory or case law and was therefore improper. The fact, that an employer chooses to give a merit increase does not cause an employee's work history to vanish. It remains relative to the overall picture, and to ignore it is to place an unwarranted, artificial limitation on the employer's reviewprocess."Respondent City argues that a satisfactoryperformance rating does not erase prior disciplinary actions, citing Rockland-r am berg print Works, Inc. (1977), 231N.L.R.B. 305, 96 L.R.R.M. 1237 and Concrete Technology, Inc. (1976), 224 N.L.R.B. 961, 93 L.R.R.M. 1282. The Teamsters have not referred us to any case which directly holds (asthe hearings officer did) that all events occurringprior to a pay raise must be ignored;however, a number of cases are cited where unlawful dischargeswere found after pay increaseswere given, including N.L.R.B. v. Evans Packing Co. (6thCir. 1972), 463 F.2d 193; Lynch-Davidson Motors, Inc. (1970), 183 N.L.R.B. 841, 76 L.R.R.M. 1484 and Draggoo Electric Co., Inc. (1974)

### , 214 N.L.R.B. 847, 88 L.R.R.M. 1312. The District Court'sposition on this issuewas correct and the hearing officer should have included evidence of events occurring prior to Carlson's merit increase. The hearing officer cited no authority for his position and the union has not cited any case directly on point. We find the more persuasive reasoning to be along the lines of the

cases cited by the City above. For this reason,we remand this case to the BPA for considerationand a decision in light of events occurring prior to Carlson's merit increase

as well as subsequenthappenings. Although not necessary to a resolution of this case,

we 

### will commentbriefly on the other issues raised by appellant not previously addressed herein. Appellant argues that the District Court erred in considering alleged misconduct not mentioned in the notice of discharge, citing Board of Trustees

v. Superintendent of Public Instruction (1977), 171Mont. 323, 557 P.2d 1048. In support of this contention appellant quotes the following paragraph from the notice of discharge:"Dueto insubordinationand noncooperationwith your superiors on incidences relating to events the week of March 3 to March 8,you are hereby terminated as of today." Appellant contends that only events relating to the schnauzer incident, i.e., the events occurring in the week of March 3 to March 8, should have been considered. However, a close examination of the rest of the letter (setout verbatim earlier in this opinion) indicates the basis of the charge

was Carlson's noncooperation with other employees including her supervisors. There is a sufficient nexus between the other incidents consideredby the District Court reflecting Carlson's noncooperation and the discharge letter to warrant the District Court's action. Appellant next contends that the District Court erred in shifting the burden from the employer to the employee, pointing to the following language in the DistrictCourt's findings of fact: "SusanCarlson did not showby reliable probative and substantial evidence on the whole record that the City would not have discharged her but for her union activity." We recently adopted the "but for" test enunciated in Mt. Healthy City School District Board of Education v. Doyle

(1977),429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, for dual motivation cases under Montana's Collective BargainingAct, Board of Trustees v. State ex rel. Board of Personnel Appeals

(1979) -Mont. - 

### , 604 P.2d 770, 36 St.Rep. 2289. In Board of -Trustees,we quoted from the Mt. Healthy opinion as follows: "Initially, in this case, the burden was properly placed upon respondent to show that his conductwas constitutionallyprotected, and that this conductwas a 'substantialfactor1--orto put it in other words, that itwas a 'motivating factor' in the Board's decision not to rehire him. Respondenthaving carried that burden, however,the District Court should have gone on to determine whether the Board had shownby a preponderance of the evidence that itwould have reached the same decision as to respondent's reemployment even in the absence of the protected conduct." 429 U.S. at 285-287, 97 S.Ct. at 575-576. Ialont. at I 604 P.2d at 777, 36 St.Rep. at 2297. - Here the District Court's statementwas inaccurate. The Mt. Healthy test in this case required Carlson to show thather protected union activity was 

### a substantial ormotivating factor in the City's determination to discharge her. The burden then shifts to the City to show that itwould have terminated her, absent her protected activity, i.e., it would be an unfair labor practice by the City if,but for Carlson's union activity, shewould not have been terminated. Finally, appellant contends that the District Court erred in substituting its judgment for that of the agency on questions of fact. As an example, appellant refers us to the District Court's findings that "Carlsonwas untruthful, devious, deceptive" and that "[ilt is clear that the incident which resulted in her terminationwas sufficient cause for discharge without any previous warnings." Appellant argues therewere no such findings of fact made by the hearings officer. It is true that a courtmay not substitute its judgment for the agency's on questions of fact, section 2-4-704(2), MCA. Although these statements appear in the District Court's findings of fact, they are actually conclusions drawn from the facts found by the hearings officer, which the District Court accepted in finding of fact no. 3. There was

no error committed by the District Court in this regard. Vacated and remanded for proceedings not inconsistent with this opinion.

Chief JusticeWeconcur: