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'l 2 jg$fi 

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

Court . 

Hugh Larson appeals from an order of the Hill County 

District Court which determined as a 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 

also appeals the District Court order insofar as it denies 

payment of his attorney fees. 

Larson's grievance concerns the failure of the Montana 

Highway Department (Department) to promote him to the position of sectionman for the Conrad area. The Conrad sectionman position was created in late summer or early fall of 

1977 as a result of the 1977 Legislature's transfer of a 

section of 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 to the Administrator of Maintenance, 

Donald Gruel. Gruel in turn 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, the brother-in-law of Personnel 

Director Broughton, did not have as much seniority or experience operating highway equipment as Larson. However, 

Larson was involved in three incidents of questionable 

conduct which reflected on his reliability as an employee. 

Two or three summers prior to the hearing before 

the examiner, Larson, and two other employees went to Big 
Sandy during lunch for some beer. Their work striping the 

highways that afternoon was highly erratic. 

The second incident occurred in September 1972 at 

Browning, when Larson took a day off to go hunting. Although 

Larson testified that he received permission to be away from 

work, there was other testimony to the effect that Larson's 

immediate supervisor received no notice that Larson would 

be gone and that Larson's absence caused a delay in striping 

the highway. 

The final incident occurred at Chinook when the paint 

machine operated improperly and blew paint over the road. 

Larson made numerous attempts to get the machine to operate 

properly, but each additional effort resulted in an erratic 

spraying of paint on the highway. 

Sanders, on the other hand, has no record of misconduct 

in his personnel file. Two of Sanders' fellow employees 

testified at the hearing on Larson's grievance that Sanders 

drank on the job and that on one occasion he fell asleep 

while operating a piece of highway machinery. However, no 

report of this misconduct was ever given to management. 

On November 2, 1977, five days 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 selection of Sanders as the 

new sectionman. The Board of Personnel Appeals ("BPA") 

conducted an investigation of the matters stated in the 

grievance, and on February 22, 1978, the hearings examiner 

conducted a hearing on the matter. The examiner issued a 

recommended order in which he found that hiring of new 

Department employees was governed by ~rticle 7of an agreement between the Department and the union (AFSCME) which 
provided that ". . . [Elxperience, qualifications, capabilities, 

and length of service shall be factors for awarding advancements." He concluded that the "department was not acting in 

good faith in awarding the advancement to Mr. Sanders over 

Mr. Larson" and that "the department violated the contract 

between AFSCME and itself by not applying the mandated 

criteria in awarding 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 final order. 

The BPA and Larson petitioned the Hill County District 

Court for enforcement of the BPA's final order. The District Court, however, found that the record as a whole did 

not support the BPA1s finding that the Department did not 

act in good faith and violated the terms of its agreement 

with the union, and that the order was invalid and unenforceable. Larson appeals the District Court's denial of enforcement of the BPA order. The BPA has filed an amicus curiae 

brief in support of Larson's appeal. 

Larson and the BPA argue that the BPA has the authority 

to award the promotion to Larson 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 to the applicants' seniority and that Larson 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 contract does 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 Sanders was 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 somewhat misleading. 

Sanders also has had considerable experience at jobs above 

his present grade level, and in fact had 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 fault with the Department's assessment of Larson's misconduct and concluded that the Department judged the misconduct serious enough to exclude Larson 

from consideration for the opening. There is no evidence to 

support BPA's conclusion. Nor can we say the Department 

lacked the discretion to determine Sanders was 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 which man was more qualified for the job rather 
than determining whether the Department abused its discretion in selecting Sanders. The record as a whole supports 

the conclusion that the Department followed the contract 

guidelines for promotion of its employees. 

Larson's second contention is that the Department's 

selection of Sanders was biased. The BPA in its conclusions 

of law stated that the Department did not act in good faith. 

It based this conclusion on its findings that Larson was 

more qualified for the job, and that the Department did not 

use experience, qualifications, capabilities, and length of 

service to award advancement. Along this line, it stated 

that Gruel was unusually vague in his tc?stimony concerning 

Sanders' selection. The BPA found that Gruel had relied on 

Sanders' previous employment record, but that his employment 

record did not support this reliance. The BPA also found 

Gruel's failure to read a letter of recommendation submitted 

on behalf of Larson was suspicious. 

The central point of the BPA's analysis is, however, 

contained in the following findings: 

"Where it is unrefuted by the highway department 

that the practice of promoting a man with more 

seniority to the section man position has always 

been followed and where there has been no 

justification for not following that past practice, the action of the highway becomes suspect. 

But where the brother-in-law of the administrator 

of the personnel division of the department of 

highways is the first individual to get 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, let it simply be 

said that there are no hard facts in support of the conclusion that nepotism occurred here. LeRoy Broughton is the 

brother-in-law of Sanders, but Broughton's position as 
personnel administrator is purely 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 fact does not by itself translate into 

bad faith conduct. 

There must be more, and more is not shown in the record 

before us. 

There is no need to discuss the issue of attorney fees 

in light of our decision upholding the District Court's 

decision reversing the Board of Personnel Appeals. 

The judgment is affirmed. 

I - / 

(.i I, . ,' 

' , /U/ &-s[u- 1'- > 

f, 

Justice /I" 

We concur: 

Chief Justice 

I 

. . 

norable L. C. Gulbrandson, 

District Judge, sitting in place 

of Mr. Justice Sheehy 

i 

Mr. Chief Justice Frank I. Haswell did not participate.