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, COUNTY AND 

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 : NljV - ; 0 1571 

. -- ?;if *n - ?A Filed: . , I; - ' 
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 respondent City of Livingston. The Board of 

Personnel Appeals hearing examiner found that the city did commit 

an unfair labor practice. The Board of Personnel Appeals affirmed its hearing examiner. The city sought judicial review in 

the District Court under the Administrative Procedure Act. The 

District Court reversed the Board of Personnel Appeals and appellants appeal from that District Court ruling. 

Respondent City of Livingston (the City) entered into a 

written collective bargaining agreement with its employees on 

January 2, 1973. Paragraph X of the agreement dealt with discharge 

or suspension and stated in pertinent part: 

"1. After an employee has attained seniority he 

will not be disciplined or discharged without 

first being 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 status pursuant to City Superintendent Bulletin 

No. 27. In October, 1973, Dyer requested a hearing to review his 

reduction to half-time status. The grievance committee held a 

nearing in October, 1973, with Dyer present, but no decision was 

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, evidence was introduced, 

but since Dyer was not present he could not contest it. Councilman Gilbert testified that "Had he been there, he probably would 
have contested it vociferously". City Superintendent Tom Sharp 

issued "Bulletin No. 31", which was a written statement of the 

committee's conclusions, and delivered a copy to Dyer. The 

bulletin announced Dyer was: 

" * * * placed on one-half month work basis for 

the second one-half of each month (the first onehalf work was not affected by the previous bulletin), subject to the following conditions: * * * 

"5. Before being placed full time, permanent, with 

the Water Dept., he will become licensed by the 

Montana State Board of Certification for Water 

Operators, treatment and distribution. 

"6. Acceptance of this placement by Ken Dyer is 

construed as his acceptance of these conditions * * *. 

"ANY VIOLATION OF ANY CONDITION SET FORTH WILL BE 

CAUSE FOR IbIMEDIATE TEF@lINATIOM OF CITY EMPLOYMENT." 

Dyer had twice previously failed a written water operator's 

test. He failed a third time in April, 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 

committee hearing on Dyer's discharge, pursuant to the collective bargaining agreement. The city refused to hold a hearing. 

The issue presented on appeal is whether the city's 

failure to provide Dyer a dismissal hearing constituted an unfair 

labor practice. 

By failing to grant Dyer a grievance hearing, the city 

breached its collective bargaining agreement, and thereby 

committed an unfair labor practice in violation of section 59- 

1605 (1) (a), R.C.M. 1947. That section provides in part: 

"It is an unfair labor practice for a public 

employer to: 

"(a) interfere with, restrain, or coerce 

employees in the exercise of the rights 
guaranteed 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: 

" * * * 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 "in good faith" continues 

during the entire course of the contract. 

The Supreme Court has held that "Collective bargaining 

is a continuing process. Among other things it involves * * * 

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 (6th Cir. 1947). In Ostrofsky v. United Steelworkers of America, 171 F.Supp. 782, 790 (D. Md. 1959), aff'd., 

273 F.2d 614 (4th Cir. 1960), cert. den., 363 U.S. 849, 4 L Ed 2d 

1732, 80 S.Ct. 1628, (1950), the court stated: " * * * 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 labor practice 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, 94 Mont. 452, 461, 23 P.2d 266 (1933), this Court 
defined "hearing" as being " * * * synonymous with 'trial' and 

includes the reception of evidence and arguments thereon * * *." 

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: 

" * * * 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. (Citing cases.) 

"The opportunity to meet the charges before being 

dismissed under them necessarily includes notice 

of the charges against him, for without such notice 

the opportunity would be meaningless. The notice 

need not meet the formal requirements of a criminal indictment, however, it must 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 grievance which Dyer brought related 

solely to his reduction to one-half time status. At the grievance 

committee meeting, which he did not attend, evidence was produced 

and conclusions made which related to his dismissal, which, ostensibly, was not even in issue. The record does not contain any 

evidence whatsoever that Dyer was ever given any notice of an 

intent to discharge him 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 

(at which appellant was not present) stated only that appellant's 

failure to pass the test would preclude him from being placed on 

full-time, permanent status. This was not one of the enumerated 

conditions of employment, the breach of which 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 incompetence and discipline problems on the job, 

and that ample facts justifying Dyer's discharge were 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 law neither 

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 collective bargaining agreement 

requiring a "hearing" prior to dismissal was obviously contemplated 

by the parties to insure that an employee would not be discharged 

without due process. Observance of due process standards in a 

hearing has never been declared by this Court to be an "idle act". 

"'While the problem of additional expense must be kept in mind, 

it does 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. Due process 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, 167 Mont. 

149, 536 P.2d 187. "Once it is determined that due process applies, 

the question remains what process is due," Morrissey v. Brewer, 

408 U.S. 471, 33 L Ed 2d 484, 494, 92 Sect. 2593 (1972). At a 

minimum, however, a grievance committee must 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); 

Dohany v. 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 second meeting, a committee meeting 

at which 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 employee must at least have 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 conclusions and rationale of 

the grievance committee. These procedures are mandated by the 

collective bargaining agreement which requires a hearing, as well 

as by "common justice". Board of Trustees v. Superintendent of 

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 appellant Dyer 

a dismissal hearing, is affirmed. 

'7 

We concur: 

Chief Justice 0 

Justices fl