No. 81-563 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF UNFAIR LABOR 

PRACTICE : 

BRUCE YOUNG, et al., 

Plaintiffs and Respondents, 

VS. 

CITY OF GREAT FALLS, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth ~udicial ~istrict, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

David V. Gliko argued, City Attorney, Great Falls, 

Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

D. Patrick McKittrick argued, Great Falls, Montana 

Robert Jensen, Bd. Personnel Appeals, Helena, Montana 

Submitted: May 11, 1982 

Decided: June 10, 1982 

Filed: 4UN I 0 9982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The City of Great Falls (City) appeals from a judgment 

of the Cascade County District Court, Eighth Judicial District, 

affirming that part of a decision of the Board of Personnel 

Appeals (Board) that the City was guilty of violations of 

sections 39-31-401(1) and (3), MCA. The respondent crossappeals from that part of the District Court's decision 

which reversed the hearings examiner's finding that the City 

had violated section 39-31-401 (4) , MCA. 

The parties raise these issues: 

1. Whether there was an unfair labor practice giving 

jurisdiction to the Board, or merely a possible breach of 

contract which should have been resolved under the contract's 

grievance procedure? 

2. Whether the hearings examiner and the Board failed 

to apply the "but for" test? 

CROSS-APPEAL 

3. Whether the District Court erred by reversing the 

Board's finding of violation of section 39-31-401(4), MCA, 

stating that "any alleged violation of subsection (4) must 

have occurred before the filing of the unfair labor practice 

charge. " 

On January 10, 1979, the Construction and General 

Laborers' Local No. 1334, AFL-CIO (Union), on behalf of 

Bruce Young, filed an unfair labor practice charge with the 

Board of Personnel Appeals. 

On October 12, 1979, the hearings examiner issued 

findings of fact, conclusions of law and recommended order, 

finding the City in violation of sections 39-31-401(1), 

(3), and (4). These findings were confirmed and adopted, 
after review of the City's objections, by the Board's final 

order, issued February 21, 1980. 

On March 21, 1980, the City petitioned the District 

Court for judicial review of the Board's final order. 

Pursuant to the complainant's motion, the District Court 

dismissed the petition for failure to name the Board as a 

party. 

On August 20, 1981, this Court reversed the District 

Court's order ( Mont. - , 632 P.2d 1111, 38 St.Rep. 

1317) holding that the Board need not be named as a party. 

Thereafter, the cause was heard in the District Court, 

which issued the October 21, 1981 order from which this 

appeal and cross-appeal are taken. 

Bruce Young was employed as a laborer in the Street 

Department of the City of Great Falls from March 20, 1977 to 

December 30, 1977, when he was laid off for lack of work. 

He was recalled on May 2, 1978, and worked until October 31, 

1978, when he was laid off again. 

During Young's tenure as a city employee, he filed, 

with the assistance of his union representative, four grievances 

under the collective bargaining agreement between the City 

and the Craft Council, of which Laborer's union No. 1334 is 

a member. 

The first, in May 1978, involved Young's transfer to 

the Water Department, while another employee with less 

seniority, Harold Spilde, remained with the Street Department. 

The grievance was resolved by Young's transfer back to the 

Street Department. 

The second grievance arose in June 1978 when Young was 

sent home without pay for lack of work while ~pilde again 

stayed. Young was subsequently compensated for four hours 

work. 
The third occurred shortly thereafter when Spilde was 

placed in a permanent position over Young and Gerald Hagen. 

This one was resolved when Hagen, the most senior employee 

involved, was given the job. 

The last grievance ultimately resulted in the filing of 

this unfair labor practice charge. Young challenged his 

October 31, 1978 lay-off because Spilde, with less Street 

Department seniority, was retained and doing laborer's work. 

Since Spilde was not a member of the Laborer's Union, the 

Union requested that he be terminated. At subsequent meetings 

between Union and City officials, pursuant to Step 1 of the 

Grievance Procedure in the Collective Bargaining Agreement, 

it was agreed that Spilde would not do work within the 

jurisdiction of the Laborer's Union. 

Spilde was then transferred to the Traffic Division of 

the Street Department, where according to Bob Duty, Superintendent of the Department, he did laborer's work only 

during emergencies. 

However, several Street Department employees testified 

that Spilde did perform "almost 100%" laborer's work until 

January 5, 1979. Also, his employment record classifies him 

as a laborer from May 1, 1978 to January 5, 1979, during 

which time he was paid laborer's wages. 

In addition to Spilde, CETA employees with less seniority 

than Young continued to do laborer's work after Young's 

discharge. Furthermore, 7 or 8 new employees were hired by 

the Street Department in April 1979, but not Young. It was 

in this time period that Duty, apparently during a safety 

meeting, said in effect, "I don't care what happens. I 

won't hire Bruce Young back in the Street Department." In 

the same vein, during the resolution of Young's first grievance, 
Duty told him that he had no hard feelings, "he just didn't 

like having some SOB telling him who he could or could not 

hire. " 

JURISDICTION 

The City contends that complainants' charge does not 

state an unfair labor practice giving the Board jurisdiction, 

and that the grievance should have been resolved through the 

grievance procedure set out in the collective bargaining 

agreement. 

Section 39-31-403, MCA provides that violation of 

section 39-31-401, MCA, the charge stated here, is an unfair 

labor practice remediable by the Board. At issue here is 

whether the Board should have deferred to the contract 

grievance procedure. 

The District Court, in its consideration of this issue, 

simply stated that "[Tlhis Court agrees with the reasoning 

of the Hearings Examiner." That reasoning, with which we 

also agree, is reflected in the following discussion. 

Because of the similarity between Montana's Collective 

Bargaining Act for Public Employees (Title 39, Chapter 31, 

MCA) and the National Labor Relations Act, it is helpful to 

consider federal precedent on this issue. 

A "prearbitral deferral policy" was first enunciated by 

the NLRB in Collyer Insulated Wire (1971), 192 NLRB 837, 77 

LRRM 1931. There, quoting from Jos. Schlitz re wing Co. 

(1968), 175 NLRB 23, 70 LRRM 1472, 1475, the NLRB found 

"that the policy of promoting industrial peace and stability 

through collective bargaining obliges us to defer the parties 

to the grievance-arbitration procedures they themselves have 

voluntarily established." Collyer at 77 LIIPJ!l 1936. 
It went on to note several circumstances in that case 

which "no less than those in Schlitz, weigh heavily in 

favor of deferral." The dispute arose within the confines 

of a long and productive collective bargaining relationship. 

No claim of enmity was made. Respondent had credibly 

asserted its willingness to arbitrate under a clause providing 

for arbitration in a broad range of disputes. The contract 

and its meaning lay at the center of the dispute. The 

contract obligated each party to submit to arbitration and 

bound them to the result. Collyer at 77 LRRM 1936-37. 

We can distinguish Collyer on these factors alone. The 

Board's findings, with respect to questions of fact which 

are supported by substantial evidence and are therefore 

conclusive (section 39-31-409(4), MCA) show that the City's 

conduct "does not lead one to believe that a stable collective 

bargaining relationship exists between the parties," that 

"[Tlhere was no indication of a willingness on the part of 

the City to arbitrate," and that the "grievance procedure 

provided in the contract does not culminate in a final and 

binding decision. It may - end in a 'binding' decision, - if a 

majority of a six-member committee formed by --- the city manager 

and comprised of three city and three union representatives 

can reach agreement." 

It should be noted here that the City's reliance on 

section 39-31-310, MCA is misplaced. It claims that the 

section is a legislative mandate that public employers are 

not bound to go to final and binding arbitration, thereby 

nullifying any contrary NLRB ruling. In fact, the section 

is permissive, not mandatory. It merely allows the parties 

to agree voluntarily to submit any or all issues to final 

and binding arbitration. No such agreement was made here, 
nor does the contract require it, which as we have stated, 

is one basis for not deferring in this case. 

Furthermore, the NLRB in General American Trans. Corp. 

(19771, 228 NLRB 808, 94 LRRM 1483, held that the Collyer 

doctrine is not applicable in cases involving alleged interference 

with protected rights or employment discrimination intended 

to encourage or discourage the free exercise of those rights. 

See sections 8 (a) (1) and (3), NLRA and sectlons 39-31-401 (1) 

and (3), MCA. The charge here involves such alleged violations. 

Deferral is inappropriate in this case. 

UNFAIR LABOR PRACTICES 

Regarding the charges themselves, the District Court 

concluded "that there is substantial evidence on the record 

considered as a whole to support the findings and conclusions 

of the Board with regard to the violations of Section 39-31- 

401(1) and (3)." Again we agree. Without wading through 

the wealth of available precedent propounded by the hearings 

examiner, we will simply restate his determinative findings. 

As to section 39-31-401(1), MCA, the examiner found 

"that the fact that Mr. Young had a record of filing grievances 

affected the judgment of those city officials responsible 

for laying him off and keeping a person with less seniority 

on the payroll as a laborer." Motive is not the critical 

element in this violation. 

As to section 39-31-401(3), the examiner found that 

"[Tlhe evidence clearly points to the conclusion that the 

City's discriminatory motive was a factor, and probably the 

dominate (sic) factor, in its decision to lay off complainant 

and thereby violate the agreement. Its actions caused 

unrest among union members and had the effect of discouraging 

membership." 
"BUT FOR" --- TEST 

The City relies here on Western Exterminator Co. v. 

N.L.R.B. (9th Cir. 1977), 565 F.2d 1114, which states the 

rule that where a discharge is motivated by both a legitimate 

business consideration and protected union activity, the 

test is whether the business reason or the protected union 

activity is the moving cause behind the discharge. 565 F.2d 

at 1118. This Court adopted essentially the same test in 

Board of Trustees of ~illings, etc. v. State (1979), - 

Mont. - , 604 P.2d 770, 777, 36 St.Rep. 2289, 2299. 

In this case, although the "but for" test was not 

utilized by the hearings examiner, he did find, again, "that 

the City's discriminatory motive was a factor, and probably 

the dominate (sic) factor, in its decision to lay off 

complainant." The record amply demonstrates that protected 

union activity was the moving cause behind the discharge. 

CROSS-APPEAL 

Section 39-31-401(4) makes it an unfair labor practice 

for an employer to: 

"(4) discharge or otherwise discriminate 

against an employee because he has signed 

or filed an affidavit, petition, or complaint 

or given any information or testimony under 

this chapter;. . ." 

The Board found there was a violation "after he (young) 

filed this unfair labor practice charge because he was not 

called back by the city." 

The District Court reversed because "any alleged 

violation of subsection (4) must have occurred before the 

filing of the unfair labor practice charge, not afterward." 

Respondents do not contend that filing a grievance is 

equivalent to signing or filing an affidavit, petition, or 

complaint. Instead, they point to two statutes: 
"39-31-407. Amendment of complaint. Any 

complaint may be amendedby the complainant 

at any time prior to the issuance of an order 

based thereon, provided that the charged 

party is not unfairly prejudiced thereby." 

"39-31-408. Modification bv board of 

findings -- and order. ~ntil?he record in 

a proceeding has been filed in district 

court, the board at any time, upon reasonable 

notice and in such manner as it considers 

proper, may modify or set aside, in whole or 

in part, any finding or order made or issued 

by it." 

We agree that Young was discriminated against after 

this charge was filed. Since he could have amended his 

complaint to include that discrimination had it not already 

been part of his original complaint, and since the City 

could therefore not possibly have been prejudiced thereby, 

we reverse the District Court on this point and grant the 

cross-apeal. The order of the Board is reinstated. 

Affirmed in part, reversed in part. 

F7e Concur: 

-_ Chief Justice