No. 81-529 

IN THE SUPREME CGURT OF THE STATE OF MONTANA 

CHAUFFEURS I TEAMSTERS I AND HELPERS I 

LOCAL UNIOX NO. 190, 

Petitioner/Respondent 

arid 

STATE OF MONTANA BOARD OF PERSONNEL APPEALS, 

Respondent, 

Appellants. 

CITY OF BILLINGS, 

Petitioner/Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

Diane G. Barz, Judge presiding. 

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 she had 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 consideration by 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 confronted with at least two conflicting versions of 

what the dispositive facts in a given case are. The above 

rule was instigated so that we 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. 

Carlson was first employed by respondent on January 17, 

1977, as a water department clerk. On July 1, 1977, she 

began work as a meter maid. She became 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 she 
became 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 supervisor was 

replaced by another supervisor, Darlene Larson. 

In late May 1979, appellant Teamsters defeated AFSCME 

as the city employees' bargaining representative and, since 

objections to the election were filed, the Teamsters were 

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 

Carlson which rated her above average in most categories, 

after which time Carlson received a merit pay increase. In 

October 1979, Carlson was 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 violations will result in immediate 

dismissal." Due to the changeover in unions and election 

objections, there was 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 next working 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 respondent was 

signed in mid-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 

she believed it belonged to a friend of hers (Ostwald) who 

had reported that his 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, another person who had lost a male 

schnauzer (Wertz) called the shelter. Larson then called 

Carlson who informed her that the dog had been returned to 

its owner. On March 7, Wertz called Larson from Ostwald's 

home, convinced that the dog was being hidden from her 

there. Carlson and Larson went to Ostwald's home and, after 

initially denying that Carlson had given him the dog, Ostwald 

admitted that he once had a male schnauzer but that he 

didn't have it any longer. Carlson stated the dog was at 

Shepherd, Montana (where Carlson 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 (accompanied by 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 corroborated her story. Carlson gave the 

dog to Wertz. 

On March 10, 1980, Carlson was discharged by Larson in 

a letter which included the following statements: 

"Due to insubordination and non-cooperation 

with your supervisors on incidents relating 

to events the week of March 3 to March 8, you 

are hereby terminated as of today. 

"You were not cooperative in being truthful 

with me as to the whereabouts of a male schnauzer 

captured by you while on duty, March 3, nor in my 
efforts to clear the situation with a public 

citizen's suspicions of the shelter and you concerning the dog. 

"You have been previously warned on more than one 

occasion about cooperating with other city 

employees." 

On March 17, 1980, Carlson filed an unfair labor practice 

complaint with 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 recommendation was adopted by the BPA. 

Respondent refused to do so and on May 5, 1981, the Teamsters 

filed a petition for enforcement in the District Court. On 

May 11, 1981, respondent filed a petition to review the 

BPA's final order and the cases were 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 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: 

"(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 not made although 

requested." 

The District Court reversed the BPA on two grounds of 

unlawful procedure, a legitimate subject of 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 six months 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. 

Thus we 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 six months prior to the filing of Carlson's claim; 

2. Whether the District Court erred in reversing the 

BPA because it did not admit evidence of Carlson's work 

history prior to her merit increase; 

With regard to the first issue, the District Court 

found that the BPA erred in according substantial weight to 

Carlson's union activities occurring more than six months 

prior to the filing of her claim. 

Conclusion of law no. 2 reads: "The Board erred in 

giving primary weight to union activities which occurred 

more than six (6) months ~rior to the filing of the claim 

of unfair labor practices." 
In the court's memorandum accompanying its findings and 

conclusions, we find the following sentence: "The only 

evidence of union activity falling within 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 support of its decision, the District Court cited 

section 39-31-404, MCA and N.L.R.B. v. MacMillan Ring-Free 

Oil Co., Inc. (9th Cir. 1968), 394 F.2d 26. Section 39-31- 

404, provides as follows: 

"39-31-404. Six-month limitation on unfair 

labor practice complaint--exception. 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 . . ." 

Respondent City cites MacMillan, supra, also and Sioux 

Quality Packers v. N.L.R.B. (8th Cir. 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 six month 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 animus which is 

six months or more 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-month period 

must stand on its own: 

"To recapitulate, then, we hold that while 

evidence of events occurring more than six 

months before the filing of a charge may be 

used to 'shed light' upon events taking place 

within the six-month period, the evidence of 

a violation drawn from within that period 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 impermissible under 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 

that MacMillan improperly refused to bargain with 

the union during the applicable limitations period 

cannot be upheld." 394 F.2d at 33. 

The District Court erred in applying section 39-31-404, 

MCA, to Carlson's union activities and other interpretations 

of its federal counterpart bear this out. In Wilson Freight 

Co. (1978) , 234 N.L.R.B. 844, 97 L.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: 
"It also raised as an affirmative defense 

that the activities in which Smith is alleged 

to have engaged in occurred more than 6 months 

prior to the filing of the unfair labor practice 

charge, therefore the matter is barred by Section 

10 (b) of the Act. 

"Section 10(b) of the Act 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 

labor practice charge based 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." 

(Emphasis added.) 234 N.L.R.B. at 849, 97 L.R.R.M. 

at 1412. 

Another case worthy of note is Inland Steel (1981), 257 

N.L.R.B. No. 13 (11 18,238), 107 L.R.R.M. 1456. In Inlhnd 

Steel, an employee had been active in his union (filing a 

number of complaints) and in workers' rights movements prior 

to his voluntary termination of employment. The N.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 six month statute is 

not specifically addressed, the N.L.R.B. clearly examined 

and based its decision on the employee's activity which 

occurred more than six months prior to the filing of the 

claim. 

In Axelson Manufacturing Co. (1950), 88 N.L.R.B. 761, 

25 L.R.R.M. 1388, the National Labor Relations Board held: 

"The employer asserts that Section 10(b) of the 

amended NLRL3 prohibits the introduction of 

evidence as to events occurring more than six 

months prior to the service of the charge. This 

contention is without merit. 

"Section 10(b) forbids the issuance of complaints 

and consequently findings of violations of the 
statute based on conduct which did not occur 

within the six months' period. However, it does 

not forbid the introduction of relevant evidence 

bearing on the issue of whether a violation has 

occurred during the six months. 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 BPA within six months after an alleged unfair 

labor practice. Here the alleged unfair labor practice 

occurred on March 10, 1980, and Carlson filed her complaint 

on March 17, well within the six month period. The construction 

placed on the statute by 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 officer made the following statements, which were 

adopted by the BPA: 

"All of the events which 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 employee worthy of a merit 

increase." 

The District Court stated the following with regard to 

this issue: 

"In examining 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 review process." 
Respondent City argues that a satisfactory performance 

rating does not erase prior disciplinary actions, citing 

Rockland-r am berg print Works, Inc. (1977), 231 N.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 (as the hearings officer 

did) that all events occurring prior to a pay raise must be 

ignored; however, a number of cases are cited where unlawful 

discharges were found after pay increases were given, including 

N.L.R.B. v. Evans Packing Co. (6th Cir. 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's position on this issue was 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 consideration and a decision in 

light of events occurring prior to Carlson's merit increase 

as well as subsequent happenings. 

Although not necessary to a resolution of this case, 

we will comment briefly 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), 171 Mont. 

323, 557 P.2d 1048. In support of this contention appellant 

quotes the following paragraph from the notice of discharge: 
"Due to insubordination and noncooperation with 

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 (set out 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 considered by 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 District Court's 

findings of fact: 

"Susan Carlson did not show by 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 Bargaining Act, 

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 

conduct was constitutionally protected, and that 

this conduct was a 'substantial factor1--or to 

put it in other words, that it was a 'motivating 

factor' in the Board's decision not to rehire 

him. Respondent having carried that burden, however, 
the District Court should have gone on to determine 

whether the Board had shown by a preponderance of 

the evidence that it would 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 statement was inaccurate. 

The Mt. Healthy test in this case required Carlson to show 

that her protected union activity was a substantial or motivating 

factor in the City's determination to discharge her. The 

burden then shifts to the City to show that it would 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, she would 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 "Carlson was untruthful, 

devious, deceptive" and that "[ilt is clear that the incident 

which resulted in her termination was sufficient cause for 

discharge without any previous warnings." Appellant argues 

there were no such findings of fact made by the hearings 

officer. 

It is true that a court may 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 Justice 
We concur: