### No. 14886 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

MONTANA STATE BOARD OF PERSONNEL APPEALS, HUGH V. 

### LARSON, Petitioners and Appellants,

MONTANA DEPARTMENT OF HIGHWAY, RON RICHARDS, DIRECTOR;MONTANA HIGHWAY COMMISSION, Respondents and Respondents.
Appeal from: District Court of the Twelfth Judicial District, In and for the County of Hill Honorable 

### B. W. 

### Thomas, Judge presiding. Counsel of Record: For Appellants: Weber, BOSC~, Kuhr, Dugdale,Warner & 

### Martin, Havre, Montana John Warner argued, Havre, Montana For Respondents: Jack A. Holstrom argued,Highway Legal Dept., Helena,

Montana For Amicus Curiae: James Gardner, Helena, Montana

Submitted: February 28, 1980 Decided: 

## fflfi'l2 

## jg$fi Filed: 

## !$!: - (. , a.Mr. Justice Daniel J. Shea delivered the Opinion of the Court

# . Hugh Larson appeals from an order of the HillCounty DistrictCourt which determined asa matter of 

### law that substantial evidence did not support the Board of Personnel Appeal's finding that the Highway Department unfairly denied him promotion for the Conrad sectionman position. Larson alsoappeals the DistrictCourt order insofar as itdenies payment of his attorney fees. Larson's grievance concerns the failureof the Montana Highway Department (Department) topromote him to the position of sectionman for the Conrad 

### area. The Conrad sectionman position was created in

### late summer or early fallof 1977 

### as a result of the 1977 Legislature's transfer of a sectionof highway between Dupuyer and Conrad to the responsibility of the Highway Department. The Chief of the Maintenance Bureau, Joseph Timmons, sent

### a personnel requisition for the new position tothe Administrator of Maintenance, Donald Gruel. Gruel inturn forwarded the requisition to LeRoy Broughton, the Personnel Director, who posted notice of the job opening on October 

### 14, 1977. Three men, Hugh Larson, Leonard Nygaard, and Chester Sanders applied for the position. Nygaard did not properly follow the application procedures and was not seriously considered. Chester Sanders, thebrother-in-law of Personnel Director Broughton, did not have asmuch seniority or experience operating highway equipment asLarson. However, Larson 

### was involved in three incidents of questionable conduct which reflected on hisreliability as an employee. Two or three summers prior to the hearing before the examiner, Larson, and two other employees went toBigSandy during lunch for some beer. Their work striping the highways that afternoon 

### was highly erratic. The second incident occurred inSeptember 1972 at Browning, when Larson took a day off togo hunting. Although Larson testified thathe received permission tobe away from work, there

### was other testimony to the effect thatLarson's immediate supervisor received no notice thatLarson would be gone and thatLarson's absence caused a delay in striping the highway. The finalincident occurred 

### atChinook when the paint machine operated improperly and blew paint over the road. Larson made numerous attempts toget the machine tooperate properly, but each additional effortresulted inan erratic spraying of paint on the highway. Sanders, on the other hand, has no record of misconduct inhis personnel file. Two of Sanders' fellow employees testified atthe hearing on Larson's grievance that Sanders drank on the job and thaton one occasion he fellasleep while operating a piece of highway machinery. However, no reportof thismisconduct 

### was ever given tomanagement. On November 2, 1977, fivedays after the closing of bids for the opening, Donald Gruel selected Sanders for the
new position. About two weeks 

### later, Larson filed 

### a grievance protesting the Department's selectionof Sanders 

### as the

new sectionman. The Board of Personnel Appeals 

### ("BPA") conducted an investigation of the

### matters stated inthe grievance, and on February 22, 1978, the hearings examiner conducted a hearing on the

### matter. The examiner issued a recommended order inwhich he found that hiring of new Department employees was governed by ~rticle 7 of an agreement between the Department and the union (AFSCME) which

### provided that

# ".

. . [Elxperience, qualifications, capabilities, and lengthof service shallbe factors for awarding advancements." He 

### concluded that the "department was not acting in good faithinawarding the advancement toMr. 

### Sanders over Mr. 

### Larson" and that "the department violated the contract between AFSCME and itself by not applying themandated criteria inawarding advancements 

# . 

# .." The examiner's recommended order awarded Larson with the sectionman position and backpay between his current

### rate of pay and that of
a grade 13, step 1

### from November 2, 

### 1977, to the date the order 

### is implemented. The Highway Department filed exceptions to the examiner's recommended order. The BPA 

### denied the exceptions and adopted adopted the the findings of fact, conclusions of law, andhecommended order of the examiner as

### its finalorder. The BPA and Larson petitioned the Hill

### County District 

### Court for enforcement of the BPA's final order. The Dis

### trictCourt, however, found that the record as 

### a whole did not support the BPA1sfinding that the Department did not 

### act ingood faithand violated the 

### terms of 

### itsagreement with the union, and that the order 

### was invalid and unenforceable. Larson appeals the DistrictCourt's denial of enforcement of the BPA order. The BPA has filed an amicus curiae brief insupport of Larson's appeal. Larson and the BPA 

### argue that the BPA 

### has the authority toaward the promotion toLarson if it 

### finds Larson is


### more qualified for the opening because he has more seniority. The BPA 

### found that the Department should have given greater weight tothe applicants' seniority and thatLarson was entitled to the promotion because he had more experience on road machinery and more seniority than Sanders. The Depart-

### ment, however, is not required to favor senior employees for promotion. The union contract governing the Department's promotion of its employees provides that advancements shall be made on the basis of the applicant's experience, qualifications, capabilities,and length of service. The contractdoes not require the Department to give greater weight to seniority than the other factors. Donald Gruel was aware that Larson had more seniority than the other applicants,but he relied heavily on the opinion of Joseph Timmons, the Chief of Maintenance. Although Timmons made no formal recommendation, he informed Gruel that he thought Sanderswas a better man for the job than Larson. The BPA placed greater weight on Larson's experience with road machinery than the Department. However, Larson's edge in experience in this category is somewhatmisleading. Sanders also has had considerable experience at jobs above his present grade level, and in facthad over 300 

### hours experience operating complicated machinery. Furthermore, at the sectionman level, Sanders had 132 hours experience while Larson had none. The BPA also found faultwith the Department's assessment of Larson's misconduct and concluded that the Department judged themisconduct serious enough to exclude Larson from consideration for the opening. There is no evidence to supportBPA's conclusion. Nor canwe say the Department lacked the discretion to determine Sanderswas the better
man for the job because his work record indicated he was more reliable. In sum, we conclude the BPA made an independent judgment as to whichman was more qualified for the job ratherthan determining whether the Department abused 

### itsdiscretion in selecting Sanders. The record asa whole supports the conclusion that theDepartment followed the contract guidelines forpromotion of itsemployees. Larson's second contention is that the Department's selection of Sanderswas biased. The BPA in

### itsconclusions of 

### law stated that the Department did not actingood faith. It based thisconclusion on its findings thatLarson 

### was
more qualified for the job, and that the Department did not
use experience, qualifications, capabilities, and length of service toaward advancement. Along this line, 

### it stated thatGruel 

### wasunusually vague inhis tc?stimony concerning Sanders' selection. The BPA found that Gruel had relied on Sanders' previous employment record, but thathis employment record did not support thisreliance. The BPA also found Gruel's failure toread 

### a letter of recommendation submitted
on behalf of Larson 

### was suspicious. The centralpoint of the BPA's analysis 

### is, however, contained inthe following findings: "Where it 

### isunrefuted by the highway department that the practice of promoting a man with more seniority to the sectionman position has always been followed and where there has been no justification for not following thatpast prac

### tice, the actionof thehighway becomes suspect. But where thebrother-in-law of the administrator of the personnel division of the department of highways is the firstindividual toget a promotion over an employee with more seniority, the action becomes highly suspect." Simply stated, the record does not support these findings. Rather than going into a detailed analysis of each of the circumstances discussed by the BPA, letit simply be said that there areno hard facts in support of the conclusion thatnepotism occurred here. LeRoy Broughton 

### is the brother-in-law of Sanders, but Broughton's position 

### aspersonnel administrator ispurely 

### a clerical position. He has no authority to award the advancement here. Furthermore, the BPA's conclusion that senior highway employees have always been preferred for promotions within the Department has no evidentiary foundation. The other circumstances raised by the BPA suggest that Gruel did not conduct a thorough investigation. Even assuming a 

### less than thorough investigation, this factdoes not by itself translate into bad faithconduct. There must be more, and more 

### isnot shown in the record before us. There isno need todiscuss the issue of attorney fees inlightof our decision upholding the DistrictCourt's decision reversing the Board of Personnel Appeals. The judgment 

### isaffirmed.

I- / 

# (.i
I, . ,' ' , 

# /U/ 

# &-s[u-1'-

> f, Justice /I"

We concur:

Chief Justice

I



## . . norable L. C. Gulbrandson, DistrictJudge, sittinginplace of Mr. Justice Sheehy i
Mr. Chief Justice Frank I. Haswell did not participate.