No. 13648 IN THE SUPREME:COURT OF THE STATE OF MONTANA 1977

THE CITY OF LIVINGSTON et al., Petitioners,

MONTANA COUNCIL NO. 9,AMERICAN FEDERATION OF STATE, COUNTYAND MUNICIPAL EMPLOYEES, et al., Respondents.

Appeal from: District Court of the Sixth Judicial District, Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Petitioners: Alexander, Kuenning,Miller and Ugrin, Great Falls,

Montana Neil Ugrin argued,Great Falls,Montana For Respondents: Byron L. Robb argued,Livingston, Montana

Submitted: October 

### 4, 1977 Decided: 

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## - 'Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Montana Council No. 9,American Federation of State, County and Municipal Employees brought an unfair labor practice charge against respondentCity of Livingston. The Board of PersonnelAppeals hearing examiner found that the city did commit

an unfair laborpractice. The Board of Personnel Appeals affirmed its hearing examiner. The city sought judicial review in the District Court under the Administrative ProcedureAct. The District Court reversed the Board of PersonnelAppeals and appellants appeal from that District Court ruling. Respondent City of Livingston (theCity) entered into a written collectivebargaining agreement with its employees on January 2, 1973. Paragraph X of the agreement dealt with discharge

or suspensionand stated in pertinent part: "1. After an employee has attained seniorityhe will not be disciplined or discharged without firstbeing given a hearing by the employer and the Local Committee." Appellant Kenneth Dyer had attained seniority as a city employee. In September, 1973, he was reduced from full-time to half-time employee statuspursuant to City SuperintendentBulletin No. 27. In October, 1973,Dyer requested a hearing to reviewhis reduction to half-time status. The grievance committeeheld a nearing in October, 1973, with Dyer present, but no decisionwas reached. In February, 1974,Dyer asked for another review of his half-time status. A city councilman told Dyer it was unnecessary for Dyer to attend the hearing. Dyer did not attend the February 4, 1974 hearing. At the February 4, 1974 hearing,evidencewas introduced, but since Dyer was not present he could not contest it. Councilman Gilbert testified that "Hadhe been there,he probably wouldhave contested itvociferously". City Superintendent Tom Sharp issued "BulletinNo. 31",which was a written statementof the committee's conclusions, and delivered a copy to Dyer. The bulletin announced Dyer was: 

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## * placed on one-half month work basis for the second one-half of eachmonth (thefirst onehalf work was not affected by the previous bulletin), subject to the following conditions: 

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"5. Before being placed full time, permanent,with the Water Dept., he will become licensed by the Montana State Board of Certification forWater Operators, treatment and distribution. "6. Acceptance of this placement by Ken Dyer is construed as his acceptance of these conditions 

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"ANYVIOLATION OF ANY CONDITION SET FORTHWILL BE CAUSE FOR IbIMEDIATE TEF@lINATIOMOF CITY EMPLOYMENT." Dyer had twice previously failed a written water operator's test. He failed a third time inApril, 1974,and was discharged effective July 15, 1974. Subsequent to his dismissal, he took a written test, his fourth, and also an oral water operator's test,but he failed both. In December, 1974,almost six months after Dyer's losing his job, the union requested a grievance committeehearing on Dyer's discharge, pursuant to the collective bargaining agreement. The city refused to hold a hearing. The issue presented on appeal iswhether the city's failure to provide Dyer a dismissal hearing constituted an unfair laborpractice. By failing to grant Dyer a grievance hearing, the city breached its collectivebargaining agreement, and thereby committed an unfair laborpractice in violation of section 59- 1605(1)(a), R.C.M. 1947. That section provides inpart: "It is an unfair laborpractice for a public employer to: "(a) interferewith, restrain,or coerce employees in the exercise of the rightsguaranteed in section 59-1603 of this act;" Section 59-1603(1) provides: "Public employees shall have 

## * * * the right 

## * * * to bargain collectively

## * * *." The phrase "to bargain collectively" is defined in section 59-1605(3)as: 

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## * * * the performance of the mutual obligation of the public employer 

## * * * and the representatives of the exclusive representative to 

## * * * negotiate in good faith with respect to 

## * * * conditions of employment, or the negotiation of an agreement, or any question arising thereunder. 

## * * *" (Emphasis added.) Thus, by statute, the duty to bargain "ingood faith" continues during the entire course of the contract. The Supreme Court has held that "Collectivebargaining is a continuing process. Among other things it involves

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## * * protection of employee rights already secured by contract." Conley v. Gibson, 355 U.S. 41, 2 L Ed 2d 80, 85, 78 S.Ct. 99 (1957). The processing of grievances in grievance hearings is collective bargaining. Tirnkin Roller Bearing Co. v. National Labor Rel. Bd., 161 F.2d 949, 954 (6thCir. 1947). In Ostrofsky v. United Steelworkers ofAmerica, 171 F.Supp. 782, 790 (D. Md. 1959), aff'd., 273 F.2d 614 (4thCir. 1960), cert. den., 363 U.S. 849, 4 L Ed 2d 1732, 80 S.Ct. 1628, (1950),the court stated: 

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## * * * the employer had the same duty to bargain collectively over grievances as over the terms of the agreement." Under Montana's Collective Bargaining Act for Public Employees a failure to hold a grievance hearing as provided in the contract is an unfair laborpractice for failure to bargain in good faith. Paragraph X., the discharge provision previously quoted, clearly requires that an employee with seniority, such as appellant Dyer,be given a "hearing"before he is discharged. In Grant

v. Michaels, 94Mont. 452, 461, 23 P.2d 266 (1933), this Courtdefined "hearing"as being 

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## * * * synonymouswith 'trial'and includes the receptionof evidence and arguments thereon 

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In Bd. of Trustees, Etc. v. Super. of Pub. Inst., Mont. I 557 P.2d 1048, 1050 (1976), this Court, in declaring a dismissal of a teacher to be improper, stated: 

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## * * * where dismissal must be for good cause and regulated by statute, that one is entitled, in common justice, to an opportunity to meet the charges before being dismissed. (Citingcases.) "Theopportunity to meet the chargesbefore being dismissed under them necessarily includes notice of the charges against him, forwithout such notice the opportunity would be meaningless. The notice need notmeet the formal requirements of a criminal indictment, however, itmust be sufficiently detailed to inform the teacher of the charges against him, so he is reasonably able to formulate a defense." In this case, the grievancewhich Dyer brought related solely to his reduction to one-half time status. At the grievance committee meeting, which he did not attend, evidencewas produced and conclusions made which related to his dismissal,which, ostensibly, was not even in issue. The record does not contain any evidencewhatsoever that Dyer was ever given any notice of an intent to dischargehim until he received his notice of termination on July l, 1974. Respondent City of Livingston presents three arguments for upholding the District Court's decision that a dismissal hearing was unnecessary. None of these arguments is convincing. It is not, as respondent contends, indisputable that appellant must be discharged due to his failure to pass the water operator's test. Bulletin 31, issued after the second "half-time status" meeting

(atwhich appellantwas not present) stated only that appellant's failure to pass the testwould preclude him from being placed on full-time,permanent status. Thiswas not one of the enumerated conditions of employment, the breach ofwhich would cause appellant Dyer's immediate termination of employment with the city.The city also argues that petitioner Kenneth Dyer had a long history of incompetenceand discipline problems on the job, and that ample facts justifying Dyer's dischargewere adduced by the grievance committee at the two previous meetings concerning Dyer's half-time status. Respondent states that there is nothing for the grievance committee to consider at a discharge hearing except the same data it received before. Because "The lawneither does nor requires idle acts", section 49-124, R.C.M. 1947, respondent argues that it should not be required to hold 

### a dismissal hearing. The provision in the collectivebargaining agreement requiring a "hearing"prior to dismissalwas obviously contemplated by the parties to insure that an employeewould not be discharged without due process. Observance of due process standards in a hearing has never been declared by this Court to be an "idleact". "'While the problem of additional expensemust be kept inmind, itdoes not justify denying a hearing meeting the ordinary standards of due process.'" Goldberg v. Kelly, 397 U.S. 254, 25 L Ed 2d 287, 295 

## , 90 S.Ct. 1011 (1970),quoting Kelly 

### v. Wyman, 294 F.Supp. 893, 901 (1968). The city's final argument is that "the traditional judicial definition of a hearing cannot and should not be imposed on a group of laymen acting as such a [grievance] committee." This is undoubtedly true. Dueprocess does not always mandate a judicial trial with lawyers and court reporters, but merely requires a hearing appropriate to the nature of the case and the interests of the parties involved. Mont. St. university

### v. Ransier, 167Mont. 149, 536 P.2d 187. "Once it isdetermined that due process applies, the question remains what process is due," Morrissey v. Brewer, 408U.S. 471, 33 L Ed 2d 484, 494, 92 Sect.2593 (1972). At a minimum, however, a grievance committeemust give t~ an employee with seniority notice of the dismissal hearing and an opportunity to be heard, so that he may defend against the charges. See Goss v, Lopez, 419 U.S. 565, 42 L Ed 2d 725, 737, 95 S.Ct. 729 (1975); Dohanyv. Rogers, 281 U.S. 362, 74 

### L Ed 904, 912, 50 S.Ct. 299

(1930). -6-In this case, the two committee meetings were officially conducted solely to discuss the matter of Dyer's reduction to half-time status. Dyer received no notice and could therefore prepare no defense to the matter of his discharge. The discharge bulletin was issued from the secondmeeting, a committeemeeting atwhich Dyer was not even present to present his side of the

case. For the term "hearing" in the collective bargaining agreement to have any meaning, this employeemust at leasthave notice of the alleged work violations,an opportunity to appear and present evidence in his own behalf, a right to cross-examine adverse witnesses, and a written report of the conclusionsand rationale of the grievance committee. Theseprocedures aremandated by the collective bargaining agreementwhich requires a hearing, aswell

as by "common justice". Board of Trusteesv. Superintendentof Public Instruction,supra. The decision of the District Court is reversed and the order of the Board of Personnel Appeals, finding that the city committed an unfair labor practice by not granting appellantDyer a dismissal hearing, is affirmed. '7

We concur: Chief Justice

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Justices

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