No. 84-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE UNIT CLARIFICATION 

NO. 6-80, MONTANA PUBLIC EMPLOYEES 

ASSOCIATION, 

Petitioner and Appellant, 

DEPARTMENT OF ADMILIISTRATION, LABOR 

RELATIONS BUREAU; and THE BOARD OF 

PERSONNEL APPEALS, 

Respondents and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hjort, Lopach & Tippy; Barry L. Hjort, Helena, 

Montana 

For Respondent : 

Jayne Mitchell, Dept. of Administration, Helena, 

Montana 

James Gardner, Board of Personnel Appeals, Helena, 

Montana 

Submitted on Briefs: May 3, 1985 

Decided: August 5, 1985 

Filed: 4~i; 5 - 1985 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

This is an appeal by the Montana Public Employees 

Association (MPEA), appellant, from an adverse decision by 

the Board of Personnel Appeals (BPA), respondent, and the 

decision of the District Court affirming the order of the 

BPA, that excluded certain employees from a labor bargaining 

unit. 

We affirm. 

Two issues are presented on appeal. They are: (1) 

Whether the District Court erred in affirming the agency 

decision that a change of exclusive representatives nullified 

the applicability of the grandfather clause provided for in S 

39-31-109, MCA; and (2) Whether the District Court erred in 

denying the appel.lantls application to present additional 

evidence. 

Prior to November 1979, the employees at Montana State 

Prison were represented in collective bargaining by the 

American Federation of State, County, and Municipal 

Employees, AFL-CIO. This representative was decertified and 

replaced by the MPEA in November 1979. After the 

representative of the employees changed, the Labor Relations 

Bureau of the Montana Department of Administration filed a 

petition for unit clarification of the labor bargaining unit 

before the BPA. The petition sought a determination that 

certain classes of employment positions at Montana State 

Prison were "supervisory employees" and therefore should be 

excluded from the labor bargaining unit. 

A hearing examiner of the BPA determined that positions 

titled "correctional lieutenants" were llsupervisory.'f The 
appellant filed exceptions t.o this determination and the 

matter was then appealed to the BPA. The appellant argued 

before the board that a grandfather clause, S 39-31-109, MCA, 

contained in the Montana Public Employees Collective 

Bargaining Act, §$ 39-31-101 through 39-31-409, MCA, 

preserved the existing bargaining unit and precluded unit 

clarification. This argument was not made before the hearing 

examiner. After hearing and considering the matter the Board 

ruled that the change of representatives for the bargaining 

unit removed the existing unit from the application of the 

grandfather clause. The hearing examiner's proposed order 

was then adopted as the final order. The MPEA then 

petitioned for judicial review. 

Bef ore judicial review began, the agency order was 

stayed and the review was held in abeyance pending the 

outcome of City of Billings v. Billings Firefighters Local 

No. 521 (Mont. 1982), 651 P.2d 627, 39 St.Rep. 1844. That 

case involved the grandfather clause as it pertained to 

bargaining units and bargaining agreements in existence in 

1973, the effective date of the Act. After City - of Billings 

was decided judicial review commenced. The appellant 

petitioned for leave to present additional evidence based on 

City - of Billings. The District Court denied the reauest 

ruling that no good cause had been shown and affirmed the 

agency final order. It ruled that the Board's interpretation 

that a change of representative results in a loss of 

grandfather status was rational and not an abuse of 

discretion. This appeal followed. 

Issue no. 1 concerns the propriety of the decision of 

the BPA that a change of representative nullifies appl-ication 

of the grandfather clause. In 1973, the Montana legislature 
enacted a law governing collective bargaining for public 

employees. This law is contained in SS 39-31-101 through 

39-31-409, MCA, the Montana Public Employees Collective 

Bargaining Act. Several provisions of this Act are relevant 

here. First, the policy of the Act: 

"39-31-101. Policy. In order to promote public 

business by removing certain recognized sources of 

strife and unrest, it is the policy of the State of 

Montana to encourage the practice and procedure of 

collective bargaining to arrive at friendly 

adjustment of all disputes between public employers 

and their employees." 

Next, pursuant to national labor policy, as set forth in 

the National Labor Relations Act, 29 U.S.C. S 151, et seq, 

(19761, the Montana Act specifically excludes supervisory and 

management employees from the definition of "public 

employee. " Section 39-31-103 (2) (b) (iii) , MCA. Only public 

employees are allowed to bargain col.lectively. Section 

39-31-201, MCA. Supervisory and mana.gement employees were 

effectively denied membership in collective bargaining units. 

See, City of Billings v. Billings Firefighters Local No. 521 

(Mont. 1982), 651 P.2d 627, 629, 39 St.Rep. 1844, 1845. 

The last provision applicable here is the grandfather 

clause: 

"39-31-109. Existing collective bargaining 

agreements not affected. Nothing in this chapter 

shall be construed to remove recognition of 

established collective bargaining agreements 

already recognized or in existence prior to July 1, 

1973." 

The Board of Personnel Appeals held that this statutory 

provision does not apply when there has been "such a change 

of exclusive representatives in a grandfathered agreement and 

bargaining unit. " "Such a change" meaning election and 

certification of a new exclusive representative. 
The Board of Personnel Appeals argues that a change of 

exclusive representation nullifies the applicability of the 

grandfather clause as to preserving the unit. The Board 

argues that the term "recognized," in its technical la.bor 

vernacular, applies only to representatives and it therefore 

follows that, because units are not "recognized," the 

legislature did not intend to preserve units by enacting the 

grandfather clause. This interpretation of the law is 

rational. The word "recognized" as used in S 39-31-109, MCA, 

is a term of art used in labor as referring to a 

representative. The BPA decision also is in line with 

relevant portions of the acts set forth above which, in 

effort to remove causes of strife and unrest, exclude 

supervisory employees from bargaining units. We hold that 

the District Court did not err in affirming the agency 

decision. 

Issue no. 2 need not be considered or decided here 

because the resolution of issue no. 1 negates the need for 

additional evidence based on - Citl - of Billings to be received 

in this case. 

The District Court is affirmed.