IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

KATHLEEN A. REYNOLDS, 

Plaintiff and Appellant, 

-vsPACIFIC TELECOM, INC.! 

a Washington Corporation, and 

NORTHWESTERN TELEPHONE, INC., 

an Oregon Corporation, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Elizabeth A. Best; Best Law Offices, Great Falls, 

Montana 

For Respondents: 

C. Eugene Phillips; Murphy, Robinson, Heckathorn, 

& Phillips, Kalispell, Montana 

Howard Rubin & Amy Alpern; Amburgey, Segel & Rubin, 

Portland, Oregon 

Claren Neal, Montana Department of Labor and 

Industry, Helena, Montana 

Filed: 

Submitted on Briefs: February 4, 1993 

Decided: July 12, 1993 

Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

Kathleen Reynolds appeals from an order of the Eleventh 

Judicial District Court, Flathead County, upholding the Board of 

Labor Appeals' denial of unemployment insurance benefits. We 

affirm. 

We restate the issues on appeal as follows: 

1. Did the District Court err in concluding that the Board 

of Labor Appeals was properly constituted? 

2. Did the District Court err in determining that the Board 

of Labor Appeals' findings of fact were supported by substantial 

evidence? 

3. Did the District Court err in determining that the Board 

of Labor Appeals properly disqualified Reynolds from receiving 

unemployment insurance benefits under 1 39-51-2302, MCA? 

Kathleen Reynolds (Reynolds) was employed by Northwestern 

Telephone Systems, Inc. (Northwestern Telephone), a division of 

Pacific Telecom, Inc., in Kaiispell. Reynolds worked as a traffic 

supervisor in operator services. 

In early 1990, Reynolds complained to Helen Shirtliff 

(Shirtliff) , manager of operator services, and Ken Sprain (Sprain), 

division vice president, that supervisors were monitoring 

conversations between employees. She characterized the monitoring 

as a "public policy" violation. Reynolds asserts that Shirtliff 

reduced her job responsibilities in response to this complaint. 

Reynolds also complained to Shirtliff that supervisors had made 

false statements regarding an employee's workers' compensation 

2 
claim, and that she had been denied the opportunity to make a 

statement. According to Reynolds, Shirtliff responded to this 

complaint by threatening to change the way in which work and 

vacation schedules were selected. 

On June 19, 1990, Reynolds began a six-month medical leave of 

absence. Reynolds had developed depression, dysthymia and anxiety, 

which she attributed to Shirtliff's retaliation. Her medical 

conditions were diagnosed as work-related. While on medical leave, 

Reynolds made a statement in support of the employee seeking 

workers' compensation benefits. When her medical leave expired in 

December of 1990, Reynolds went on unpaid leave. 

Early in 1991, Toni Welliver (Welliver) replaced Shirtliff as 

manager of operator services. Sprain also left his position as 

division vice president and was replaced by Ken Laing (Laing). 

When Reynolds learned of these changes in personnel, she obtained 

a medical release and returned to her position as a supervisor in 

operator services on February 11, 1991. 

Reynoldsi conflicts with management personnel continued. 

Northwestern Telephone had begun assigning vacation and work 

schedules to supervisors in operator services on a rotating basis: 

the schedules previously had been assigned by seniority. Reynolds, 

who had the most seniority in her work pool, characterized the 

change as retaliation for the statement she made during her leave 

of absence regarding the workers' compensation claim. Welliver 

also declined to implement Reynolds' suggestion that the fire 

department's telephone number be placed on a "quick list" of 

frequently called telephone numbers. 

3 
Reynolds complained to Laing about the continued monitoring of 

employee conversations and the handling of the workers' 

compensation claim. On February 20, Reynolds asked Laing for help 

in obtaining compensation for the time that she was on unpaid 

leave. Laing responded that he would not recommend pursuing the 

compensation. Reynolds also inquired about a merit salary increase 

that she did not receive while on medical leave. Laing indicated 

that he did not know if she was entitled to the salary increase. 

Reynolds then asked Laing to terminate her employment with 

Northwestern Telephone. Reynolds subsequently took part in a 

conference call with Wes Carson, manager of employee relations, who 

suggested that she apply for long-term disability benefits. 

Reynolds declined to do so. On March 1, Reynolds submitted a 

letter of termination. 

Reynolds filed a Claimant's Discharge Statement with the 

Montana Department of Labor and Industry Unemployment Insurance 

Division on April 4, 1991. Reynolds asserted that Northwestern 

Telephone had "made work conditions intolerable causing severe 

anxiety and depression and ulcers." Additionally, Reynolds 

asserted that she was fired for refusing to violate public policy 

and for reporting public policy violations. 

On May 3, a claims specialist denied Reynolds1 application for 

unemployment insurance benefits. Reynolds appealed the decision to 

a Department of Labor and Industry appeals referee. The referee 

determined that Reynolds had terminated her employment for good 

cause and, therefore, was eligible to receive unemployment 

insurance benefits. 

4 
Northwestern Telephone appealed the referee's decision to the 

three-member Board of Labor Appeals (the Board) On July 26, 1991, 

the Board reversed the referee's decision. Daniel Johns (Johns), 

the attorney member of the Board, abstained. 

Reynolds requested that the Board reconsider its decision 

because she had not received notice of, and did not have the 

opportunity to participate in, the July decision. The Board 

granted Reynoldsf request and held a hearing on October 8. The 

Board again reversed the referee's decision, determining that 

Reynolds was disqualified from receiving unemployment insurance 

benefits. Johns again abstained. 

Reynolds petitioned the District Court to review the Board's 

decision. The District Court upheld the decision, determining, in 

pertinent part, that the Board was properly constituted, that the 

Board's findings were supported by substantial evidence, and that 

the Board's disqualification of Reynolds from receiving benefits 

was not erroneous under 1 39-51-2302, MCA. This appeal follows. 

Did the District Court err in concluding that the Board of 

Labor Appeals was properly constituted? 

Johns, the attorney member of the Board, abstained from 

participating in the October 8 hearing due to a conflict of 

interest. Johns indicated that a pro tempore member would be 

appointed in the event that Joseph Thares and Stephen Birch, the 

remaining Board members, did not reach a consensus on Reynolds1 

eligibility for unemployment insurance benefits. Thares and Birch 

both signed the Board's decision denying unemployment insurance 

5 
benefits. 

The District Court concluded that the Board was properly 

constituted when it denied Reynolds benefits. On appeal, Reynolds 

reasserts her argument that the Board was not properly constituted. 

We review a district court's conclusion of law to determine whether 

the court's interpretation of the law is correct. Steer, Inc. v. 

Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 

603. 

We agree with Reynolds that 5 2-15-1704(3), MCA, establishes 

a three-member Board and 5 2-15-124 (1) , MCA, requires that one 

member of the Board be a licensed attorney. We disagree, however, 

with her contention that these statutes require all three members, 

including the attorney member, to participate in the decision. 

In construing statutes, courts are to ascertain what is in 

terms or in substance contained within the statute; they may not 

insert what has been omitted or omit what has been inserted. 

Section 1-2-101, MCA. No language in §§ 2-15-1704(3) or 2-15- 

124(1), MCA, requires the participation of all three members, or 

the attorney member, in every case before the Board. 

Furthermore, statutes must be construed to give effect to all 

provisions wherever possible. Section 1-2-101, MCA. Under 5 2-15- 

124(8), MCA, a majority of the membership of the Board of Labor 

Appeals constitutes a quorum for the purpose of conducting business 

and at least a majority vote of all members of the Board is 

required to adopt a decision. A majority of the three-member Board 

is two members. Nothing in 5 2-15-124(8), MCA, requires that the 

attorney member be one of the members making up the quorum; nor 

6 
does the statute require the attorney member's vote to adopt a 

decision of the Board. We decline to construe 55 2-15-1704 (3), and 

2-15-124(1), MCA, as Reynolds suggests. Requiring all three 

members, including the attorney member, to participate in a 

decision would vitiate fi 2-15-124(8), MCA, which requires only a 

majority of the Board's members to constitute a quorum to do 

business and a majority vote of all members to adopt a decision. 

The composition of the Board of Labor Appeals complied with 55 

2-15-1704 (3), 2-15-124 (I), and 2-15-124 (a), MCA, when the Board 

determined that Reynolds was disqualified from receiving 

unemployment insurance benefits. We hold that the District Court 

did not err in concluding that the Board of Labor Appeals was 

properly constituted. 

Did the District Court err in determining that the Board of 

Labor Appeals' findings of fact were supported by substantial 

evidence? 

A district court's review of a decision of the Board of Labor 

Appeals is limited by 5 39-51-2410(5), MCA, which provides: 

In any judicial proceeding under 39-51-2406 through 39- 

51-2410, the findings of the board as to the facts, if 

supported by evidence, and in the absence of fraud, shall 

be conclusive and the jurisdiction of said court shall be 

confined to questions of law. 

A finding is supported by evidence if it is supported by 

substantial evidence. Substantial evidence is more than a 

scintilla of evidence, but it may be less than a preponderance of 

the evidence. Ward v. Johnson (l99O), 242 Mont. 225, 228, 790 P.2d 

483, 485. 
Pursuant to 5 39-51-2410(5), MCA, a district court is not 

permitted to balance conflicting evidence in support of and in 

opposition to the Board's findings, determine which is the more 

substantial evidence, or consider where the preponderance of the 

evidence lies. To do so would substitute the district court's view 

of the evidence for that of the Board, effectively nullifying the 

conclusive nature of the Board's findings provided by 5 39-51- 

2410(5), MCA. Ward, 790 P.2d at 485. 

This Court's review of the Board's findings is governed by the 

same standard. Zimmer-Jackson v. Department of Labor and Indus. 

(19881, 231 Mont. 357, 360, 752 P.2d 1095, 1098. Accordingly, we 

review the record to determine whether substantial evidence 

supports the Board's findings. 

The Board made the following finding regarding Reynolds' 

complaint that other supervisors violated "public policyvv by 

monitoring conversations between employees: 

The Board of Labor Appeals feels that the charge of 

illegal monitoring of conversations is questionable. 

Listening to others [sic] conversations may be immature 

and even unethical, but it is not a violation of the 

wiretap laws or F.C.C. regulations. If the claimant felt 

strongly about the practice other remedies to the 

situation were available. None of the employees whose 

conversations were listened to complained about the 

practice and no known grievance was filed. 

Reynolds first contends that the absence of employee complaints or 

grievances is unsupported in the record. Because she concedes that 

their existence is not particularly relevant in determining whether 

she had good cause to leave her employment, we need not review the 

record for substantial evidence to support the finding that no 

employee complained or filed a grievance about the monitoring. 
Reynolds also contends that this finding, as a whole, does not 

address the gravamen of her claim, which is that she left her 

employment for good cause because she was subjected to retaliation. 

According to Reynolds, Northwestern Telephone retaliated in 

response to this complaint by reducing job responsibilities, 

changing the assignment of work and vacation schedules, and denying 

a merit salary increase. The only retaliation which is even 

arguably supported by the record is Shirtliff's reduction of 

Reynoldsf job responsibilities prior to her June, 1990, medical 

leave. This alleged retaliation predates Reynolds' return to work 

in February of 1991 under a new manager and her subsequent 

resignation. Thus, it does not form a basis for her claim that she 

had good cause to leave her employment on March 1, 1991. 

The Board made the following finding concerning Reynolds' 

complaint that Northwestern Telephone had mishandled a workers' 

compensation claim: 

The claimant was also upset that in her view the company 

failed to respond properly to a workers [sic] 

compensation claim. Testimony from the claimant reveals 

that when she was asked who was responsible for filing 

the companies [sic] answer to the claim she responded 

that her responsibility was to report the incident to her 

manager and that she didn't know where the claim went 

from there. Her testimony also indicates that some 

months prior to her termination she provided a statement 

of the incident to both the union representative and to 

company management. The burden of filing and following 

up on the industrial accident claim falls on he [sic] 

injured workman and his union. 

Reynolds contends that this finding ignores Northwestern 

Telephone's retaliatory response to her workers1 compensation 

statement. According to Reynolds, Northwestern Telephone 

terminated her leave on December 5 after it learned of her 
statement instead of allowing the six-month leave to expire on 

December 19. Other evidence of record, however, refutes this 

testimony. A letter written by Robert Kemp, employment manager of 

Pacific Telecom, Inc., Northwestern Telephone's parent company, 

indicates that Reynolds was notified in December that she would be 

placed on unpaid leave effective December 20- The Kemp letter was 

admitted as an exhibit before the Board, without objection, and 

constitutes substantial evidence for the Board to disregard 

Reynolds' allegation that Northwestern Telephone responded to her 

workers' compensation statement by terminating her medical leave. 

The Board made the following finding regarding Reynolds' 

suggestion that the fire department's telephone number be added to 

the "quick list": 

The claimant also stated she incurred additional stress 

when her suggestion that the fire departments [sic] 

telephone number be returned to the "quick lists" was not 

acted upon. For reasons of their own management elected 

not to implement her suggestion. They are not bound to 

put into practice every employee suggestion however 

worthy that suggestion might be. Final decisions are a 

management prerogative. 

About two weeks after returning to work the claimant felt 

the prior stress situations had not gone away and 

tendered her resignation. 

Reynolds contends that no evidence of record supports the 

finding that she terminated her employment because she was unhappy 

that her suggestion was not implemented. However, Reynolds 

testified that she was upset when Welliver declined to implement 

her suggestion and that she terminated her employment on March 1 

when Laing did not respond to this and other concerns. We 
determine that substantial evidence supports the finding that she 

terminated her employment in part because she was unhappy that her 

suggestion was not implemented. 

Reynolds also contends that this finding failed to address 

Northwestern Telephone's retaliatory response to her suggestion. 

According to Reynolds, Northwestern Telephone responded by 

withdrawing job responsibilities and benefits. Nothing in the 

record supports Reynolds' assertion that the Company retaliated in 

response to this suggestion. Therefore, it was unnecessary for the 

Board to address the alleged retaliation relating to this 

suggestion. 

The Board made the following finding regarding the change in 

vacation and shift scheduling: 

Claimant was also opposed to the new procedure in 

scheduling work shifts and vacation scheduling. 

Management must have the flexibility to decide these 

matters. None of the other employees affected by the 

changes complained about the practice or the method of 

notification. 

Reynolds again contends that the Board failed to consider the 

change in scheduling as a retaliatory response to her complaint 

that other supervisors had made false statements regarding a 

workers' compensation claim and to her own statement regarding the 

claim. However, other evidence of record indicates that the 

scheduling changes were not related to Reynolds in any way. The 

Kemp letter indicates that the change in scheduling resulted from 

a business decision. According to the letter, the assignment of 

vacation and work schedules on a rotating basis met the needs of 

Northwestern Telephone and complied with its policies. The letter 
also indicates that Northwestern Telephone contemplated changing 

the scheduling of vacation and work shifts as early as 1989, prior 

to Reynoldsr workers' compensation statement. Because this 

evidence refutes Reynolds' assertion that Northwestern Telephone 

changed the scheduling in retaliation for her actions, the Board 

could disregard the assertion, 

The Board made the following finding regarding Northwestern 

Telephone's reaction to Reynolds' request to terminate her 

employment: 

When management learned of her planned resignation they 

initiated a series of conference calls in an attempt to 

have her accept long term disability instead. She 

declined the offers and resigned her employment. 

Reynolds contends that the record does not support the finding that 

management initiated the conference calls concerning the long-term 

disability. We disagree. Reynolds testified that she was placed 

on three conference calls with Wes Carson after she requested Laing 

to terminate her employment and that Carson suggested that she go 

on long-term disability. 

Reynolds also contends that this finding ignores her rationale 

for declining to accept long-term disability. According to 

Reynolds, unrefutedtestimony establishedthat long-term disability 

would result in a substantial loss of pay, terminate in two years, 

and not guarantee employment at its expiration. Reynolds also 

asserts that long-term disability would have been used as a device 

to terminate her employment. Reynoldst reasons for declining to go 

on long-term disability, however, do not form a basis for her claim 

that she left her employment with good cause. Accordingly, the 
Board did not have to consider those reasons in the above finding. 

Finally, the Board made the following finding concerning the 

conditions of Reynolds' employment after she returned to work: 

The Board feels that the claimant was not treated 

differently than others in the work group and that the 

pay and conditions were substantially the same as before 

her medical leave and continuing employment was 

available. 

Reynolds contends that other evidence of record contradicts 

this finding. While this may be true, we have discussed above our 

scope in reviewing findings of the Board, which is to review the 

record only to determine whether the finding is supported by 

substantial evidence. See 5 39-51-2410(5), MCA: Ward v. Johnson 

(1990), 242 Mont. 225, 228, 790 P.2d 483, 485. The Kemp letter, 

which reflects that Reynolds was not treated differently than other 

supervisors in operator services, constitutes substantial evidence 

that supports this finding. 

We hold that the District Court did not err in determining 

that the Board's findings were supported by substantial evidence. 

Did the District Court err in determining that the Board of 

Labor Appeals properly disqualified Reynolds from receiving 

unemployment insurance benefits under g 39-51-2302, MCA? 

The Board of Labor Appeals determined that Reynolds was 

disqualified from receiving unemployment insurance benefits. The 

District Court determined that the Board's denial of unemployment 

insurance benefits was not erroneous under 3 39-51-2302, MCA. 

Section 39-51-2302, MCA, provides in pertinent part: 

Disqualification for leaving work without good cause. 
(1) An individual shall be disqualified for benefits if 

he has left work without good cause attributable to his 

employment. 

(2) He may not be disqualified if the department finds 

that he left his employment because of personal illness 

or injury not associated with misconduct upon the advice 

of a licensed and practicing physician and, after 

recovering from his illness or injury when recovery is 

certified by a 1.icensed and practicing physician, he 

returned to his employer and offered his service and his 

regular or comparable suitable work was not available, if 

so found by the department, provided he is otherwise 

eligible. 

Reynolds advances three separate arguments as to why she was 

not disqualified from receiving benefits under 5 39-51-2302, MCA. 

Reynolds first contends that she is not disqualified because she 

left work with good cause as defined in 5 24.11.457, ARM. Section 

24.11.457, ARM, provides in pertinent part: 

(1) A claimant has left work with good cause 

attributable to employment if: 

(a) compelling reasons arising from the work 

environment caused the claimant to leave: 

(b) the claimant attempted to correct the 

problem in the work environment; and 

(c) the claimant informed the employer of the 

problem and gave the employer a reasonable 

opportunity to correct it; 

(d) the claimant left work which the department determines to be unsuitable under 39-51- 

2304, MCA. 

(2) The term llcompelling reasons" as used in this rule 

includes but is not limited to: 

(a) undue risk of injury, illness, physical 

impairment, or reasonably foreseeable risks to 

the claimant's morals; 

(b) unreasonable actions by the employer 

concerning hours, wages, terms of employment 

or working conditions, including, but not 

limited to, unilaterally imposed reductions of 
20% or more in the claimant's customary wages 

or hours. . . . 

Reynolds asserts that Northwestern Telephone responded to her 

complaints by reducing job responsibilities, changing the method of 

selecting work and vacation schedules, shortening her medical leave 

of absence, and denying a merit salary increase. According to 

Reynolds, these alleged acts of retaliation created an undue risk 

of illness and constituted unreasonable actions on the part of 

Northwestern Telephone concerning hours, wages, terms of employment 

or working conditions. On that basis, Reynolds contends that she 

had compelling reasons and, therefore, good cause to leave her 

employment under 5 24.11.457, ARM. 

The existence of a compelling reason, in itself, is not 

sufficient to constitute good cause under 5 24.11.457, ARM. That 

rule also requires the employee to give the employer a reasonable 

opportunity to correct the problem before the employee can he 

considered to have left employment with good cause. 

Here, even assuming that "compelling reasons1I existed, 

Reynolds failed to give Northwestern Telephone a reasonable 

opportunity to address her complaints. Reynolds returned from her 

leave of absence on February 11. According to her testimony, she 

requested Laing, the new district vice president, to terminate her 

employment on February 20 when he indicated that he would not 

recommend that she receive compensation for her unpaid leave and 

did not know whether she should receive a merit salary increase. 

Reynolds further testified that she terminated her employment on 

March 1, when Lainq "did not have any answers1' to her concerns 
regarding the workers' compensation claim, the monitoring of 

employees' conversations, and the "quick list." Reynolds 

terminated her employment less than three weeks after returning to 

work. 

The Kemp letter substantiates Reynolds1 failure to give 

management a reasonable opportunity to address her concerns. The 

letter indicates that Northwestern Telephone had thoroughly 

investigated Reynolds' complaints and remained willing to continue 

its dialogue with her. Furthermore, the letter indicates that 

Laing was in the process of responding to her request for a merit 

salary increase when she submitted her letter of termination. We 

conclude that Reynolds did not have good cause to leave her 

employment under § 24.11.457, ARM, because she failed to give the 

new management a reasonable opportunity to address her concerns. 

On that basis, Reynolds properly was disqualified from receiving 

benefits under § 39-51-2302(1), MCA, which permits disqualification 

when an employee leaves work without good cause attributable to the 

employment. 

Reynolds also contends that she left her employment on June 

19, 1990, on the advice of a physician and that her regular or 

comparable work was not available when she returned from the leave 

of absence on February 11, 1991. According to Reynolds, the same 

or comparable work was not available because she had not been 

restored job responsibilities, had not been given a merit salary 

increase and could no longer select work and vacation schedules on 

the basis of seniority. On that basis, Reynolds contends that she 

should not have been disqualified from receiving unemployment 

16 
insurance benefits under g 39-51-2302(2), MCA. 

Section 9 39-51-2302(2), MCA, provides that a claimant may not 

be disqualified from receiving unemployment insurance benefits if 

the claimant has left employment on the advice of a physician and 

the same or comparable suitable work is unavailable when the 

claimant recovers. We note first, in this regard, that in neither 

her Claimant's Discharge Statement nor her Claimant's Response to 

Employer Statement did Reynolds claim that she left Northwestern 

Telephone because work comparable to that she performed prior to 

her leave was not available. Furthermore, as discussed above, 

Reynolds returned to work as a traffic supervisor in operator 

services, the position she held prior to her leave. The work 

duties were essentially the same as when she left. The changes 

asserted by Reynolds do not render her post-leave employment 

substantially different from her employment prior to her leave. 

Finally, Reynolds contends that she should not have been 

disqualified from receiving the benefits under 5 39-51-2302(2), 

MCA, because she continued to suffer from her medical condition 

when she submitted her letter of termination on March 1. While she 

may or may not have been suffering from the same medical condition, 

we disagree that 9 39-51-2302(2), MCA, precludes disqualification 

on these facts. 

Nothing on the record before us indicates that Reynolds left 

her employment on March 1 on "the advice of a licensed and 

practicing physician;" nor did she subsequently return and offer 

her services. Because Reynolds failed to meet these two statutory 

conditions, we conclude that !j 39-51-2302(2), MCA, does not bar her 

17 
disqualification from receiving unemployment insurance benefits. 

We hold that the District court properly determined that the 

Board of Labor Appeals' disqualification of Reynolds from receiving 

unemployment insurance benefits was not erroneous under 5 39-51- 

2302, MCA. 

Affirmed. 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Section 2-15-1704, MCA, establishes a Board of Labor Appeals. 

Subsection (4) of that statute designates the board as a 

"quasi-judicial board for purposes of 2-15-124,- 

Section 2-15-124, MCA, provides that: 

If an agency is designated by law as a quasi-judicial 

board for the purposes of this section, the following 

requirements apply: 

(1) The number of and qualifications of its members 

are as prescribed by law. In addition to those 

qualifications, unless otherwise provided by law, at 

least one member shall be an attorney licensed to 

practice law in this state. 

(8) A majority of the membership constitutes a 

quorum to do business. A favorable vote of at least a 

majority of all members of a board is required to adopt 

any resolutionl motionl or other decisionl unless 

otherwise provided by law. 

It is obvious that when the Legislature established a 

requirement that quasi-judicial boards include an attorney, it was 

concerned that boards which decide legal as well as factual issues 

have the benefit of at least one member who is trained in the law. 

In this case, it is stipulated by the parties that Dan Johns, 

who was the board's chairman and its only attorney, was neither 

present for Kathleen Reynolds' hearing, nor participated in the 

board's determination of her rights. Therefore, the board which 

denied Reynolds' claim was not properly constituted, as is required 

under 5 2-15-124 (11, MCA. 
The majority has set forth the proper rule for construing this 

statute, but then completely ignores the rule in arriving at its 

conclusion. Section 1-2-101, MCA, provides that "[iln the 

construction of a statute . . . [wlhere there are several 

provisions or particulars, such a construction is, if possible, to 

be adopted as will give effect to all." 

The only way to construe 5 2-15-124, MCA, in a way that gives 

effect to both subsections (1) and (a), is to hold that while a 

majority of a quasi-judicial board can constitute a quorum, and 

while a vote of at least a majority of the members is sufficient to 

render a decision, the decision is not binding unless an attorney 

licensed to practice law participated in the decision. If one of 

the two members constituting a quorum is an attorney, the third 

member need not be present. So long as an attorney is present for 

the hearing and deliberations, he or she need not vote for the 

final decision, so long as there are two other votes in support of 

that decision. 

This construction of 5 2-15-124, MCA, is the only way to give 

effect to both subsections (1) and (8). 

In addition to ignoring the rule of statutory construction 

which it held is controlling, the majority opinion also ignores the 

following rule of statutory construction: 

In the construction of a statute, the intention of the 

legislature is to be pursued if possible. When a general 

and particular provision are inconsistent, the latter is 

paramount to the former, so a particular intent will 

control a general one that is inconsistent with it. 

Section 1-2-102, MCA. 
The requirement that two members of a three person board are 

necessary to constitute a quorum and that two out of three votes 

are necessary to render a decision is a general requirement. The 

requirement that one of the members of the three member board be an 

attorney is a specific rewirement. Tn this case, the majority 

ignored legislative intent and elevated the general provisions 

pertaining to a quorum and a majority over the specific requirement 

that an attorney be a member of the Board of Labor Appeals. 

The majority opinion completely defeats the Legislature's 

intention that when boards such as this one decide the legal rights 

of Montana's citizens, they include a member who has some working 

familiarity with Montana's laws. Kathleen Reynolds did not have 

the benefit of that reasonable requirement. Therefore, I dissent 

from the majority opinion. I would reverse the judgment of the 

District Court. 

Justice William E. Hunt, Sr., joins in the foregoing dissent. 
July 12, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Elizabeth A. Best 

Best Law Offices 

P.O. Box 2114 

Great Falls, MT 59403-2114 

C. Eugene Phillips 

Murphy, Robinson, Heckathorn & Phillips 

P.O. Box 759 

Kalispell, MT 59903-0759 

Howard Rubin & Amy Alpern 

Amburgey, Segel & Rubin, P.C. 

1750 S.W. Harbor Way, Ste. 450 

Portland. OR 97201 

Claren Neal, Legal Counsel 

Montana Department of Labor & Industry 

P.O. Box 1728 

Helena, MT 59624-1728 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OJ? MONTANA ./