No. 13603 

IN THE SUPREME COURT OF THE STATE 0FNI)PJTANA 

1977 

BUTTE TEACHERS' UNION, 

No. 332, AFL-CIO, 

Plaintiff and Respondent, 

BOARD OF EDUCATION OF SCHOOL DISTRICT 

No. 1, Silver Bow County, Montana et al., 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Poore, McKenzie, Roth, Robischon and Robinson, 

Butte, Montana 

Donald C. Robinson argued, Butte, Montana 

For Respondent : 

Maurice F. Hennessey and Robert McCarthy, Butte, 

Montana 

Maurice F. Hennessey argued, Butte, Montana 

Submitted: May 25, 1977 

Decided : JuL 2 9 imFiled: JUL- 2 9 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the 

Court . 

This is an appeal from a judgment of the district court, 

Silver Bow County, sitting without a jury, Hon. Nat Allen, presiding. The judgment ordered: (1) That the parties are bound 

by the contract and are required to submit the grievances filed 

by plaintiff to binding arbitration pursuant to Rule 44 of the 

contract; (2) that the arbitor, pursuant to the contract, after a 

hearing is empowered to make a decision as to the validity of the 

grievance. 

Plaintiff Butte Teachers' Union No. 332, AFL-CIO, brought 

action against the Board of Education of School District No. 1 

Silver Bow County, alleging defendant School Board had a contractual duty to arbitrate its decision to substitute time clocks for 

sign-in sheets as a means of reporting attendance. 

The suit was brought pursuant to two collective bargaining 

agreements; one contract covering teachers and the other covering 

secretarial, clerical and computer personnel. Each contract 

contained identical provisions as they pertain to this suit: 

"Rule 31 UNION RECOGNITION 

"The Board recognizes the Union as the exclusive 

bargaining representative for the purpose of 

representing all teachers * * * as to rates of 

pay, salaries, hours of employment, and all 

other items and conditions of employment." 

"Rule 44 GRIEVANCE PROCEDURE 

"(a) A grievance shall mean a complaint by an 

employee that (1) he has been treated unfairly 

or inequitably, (2) there has been a violation, 

misinterpretation, or misapplication of the 

provisions of this agreement or of established 

policy or practice.* * *" 

The School Board proposed to establish a more efficient and 

accurate method for teachers and all other employees of the district 

to record attendance and absence from work. The time clock system 
was adopted as a policy of operation and substituted for the 

manual sign-in sheet. Every district employee was required to 

punch-in at the beginning of each shift and all non-certified 

personnel were to punch-out at the end of their shift. 

The Union opposed this policy of operation contending the 

time clocks were a change of the working conditions under the 

contract and therefore subject to arbitration. Accordingly, the 

Union felt this unilateral change not only violated the past attendance procedure, but also amounted to unfair and inequitable treatment. The Union requested arbitration of this change of policy. 

The School Board declined to negotiate or arbitrate claiming this 

change was a nonmandatory arbitration matter, and a managerial 

prerogative under section 59-1603(2), R.C.M. 1947. The School 

Board contended that some form of attendance procedure existed; 

thus, the implementing of time clocks constituted a mere substitution 

of one procedure for another as allowed under section 59-1603(2). 

The Union sued to compel the School Board to submit this 

change to binding arbitration under Rule 44 and Rule 31 of the 

master contract. The district court ordered binding arbitration. 

From that order the School Board appeals. 

The issues presented are: 

1. Did the district court err when it required the School 

Board to submit to an arbitrator the question of whether it could 

substitute time clocks for the existing attendance procedure, 

pursuant to the provisions of the collective bargaining agreement 

between the parties? 

2. Did the district court err when it required this 

issue to be the subject of negotiation, and if necessary, arbitration under the Collective Bargaining for Public Employees Act, 

section 59-1601 et seq., R.C.M. 1947. 

The School Board argues the district court erred in sub- 
mitting the question of time clocks to arbitration. In McEwen v. 

Big Sky of Montana, Inc., Mont . , 545 P.2d 665, 668, 

33 St.Rep. 79, 83, this Court discussed a situation where the 

determination of the district court was in question: 

"An appellate court's function in a case 

such as this was set forth in Hornung v. Lagerquist, 

155 Mont. 412, 420, 473 P.2d 541, 546, wherein 

this Court said: 

"I* * * Our duty in reviewing findings of 

fact in a civil action tried by the district 

court without a jury is confined to determining whether there is substantial credible 

evidence to support them. * * *' 

"The meaning of 'substantial credible evidence' 

was thoroughly considered in Staggers v. U.S.F.&G. 

Co., 159 Mont. 254, 496 P.2d 1161. 

"In Hellickson v. Barrett Mobile Home Transp., 

161 Mont. 455, 459, 507 P.2d 523, 525, this Court 

said: 

"I* * * In examining the evidence, we must 

view the testimony in a light most favorable 

to the prevailing party. [citations] However, 

while the presumption is in plaintiff's favor, 

he is also the appealing party and as such, 

the burden is upon him to overcome the presumption of the correctness of the trial 

court's findings of fact.'" 

In reviewing the district court's findings, this Court 

needs only determine whether there is substantial evidence to 

support the findings. Unless there is a clear preponderance of 

evidence against such findings, the Court will not reverse. 

Crncevich v. Georgetown Recreation Corp., 168 Mont. 113, 541 P.2d 

The evidence presented by the School Board regarding an 

established sign-in attendance policy shows that only approximately 

1/2 of the professional people covered by the contract used some 

type of sign-in procedure. The remaining professional members of 

the Union were required to do nothing. 

The School Board cites Rust Craft Broadcasting of New 

York, Inc. and National Association of Broadcast Employees & 
~echnicians, AFL-CIO, 225 NLRB No. 65, 92 Labor Relations Reference 

~anual (LRRM) 1576 (1976), as a case precisely identical to the 

instant case, and, in support of its position. While the facts 

are similar, a close reading reveals that in Rust Craft each 

employee was required to enter his or her working time manually 

on printed cards. Thus, while the change to a mechanical procedure 

for recording working time marked a departure from previous practice, the rule itself remained intact. 

The instant case differs factually from Rust Craft. No 

attendance rule existed for each employee. The School Board failed 

to show an attendance procedure rule existed and every employee 

was subject to that rule. Instead, additional rules governing 

employee attendance were unilaterally promulgated, which substantially changed old rules on the same subject. Murphy Diesel 

Company v. N.L.R.B., 454 F.2d 303; N.L.R.B. v. Amoco Chemicals 

Corp., 529 F.2d 427. 

The burden to overcome the correctness of the district 

court's findings was upon the School Board. This presumption was 

not overcome. 

The School Board's second issue questions the district 

court's action in requiring the substitution of time clocks for 

the existing attendance procedure to be the subject of negotiation, 

and if necessary, arbitration. This Court recognizes that section 

59-1603(2) grants to public employers certain management prerogatives to operate and manage their affairs. Had the School Board 

established an attendance policy applying to every member under 

the union contract, then the unilateral initiating of a more 

dependable method to enforce this attendance policy would have 

been merely a change from previous practice, not a change from 

the established rule. Had there been an established rule applying 

to every union member, the substituting of time clocks as a more 
efficient method to record attendance, would be a managerial prerogative and not subject to mandatory and binding arbitration under 

section 59-1603 (2) . 

The facts of this case do not lead to that conclusion. 

The School Board initiated additional rules, substantially changing 

old rules on the same subject. 

The findings and conclusions of the district court are 

affirmed. 

- n 

Chief Justice / 1 

FJe Concur: