IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 14739 

THE STATE OF MONTANA, ex rel. THE 

BOARD OF PERSONNEL APPEALS, 

Relators, 

THE DISTRICT COURT OF THE ELEVENTH 

JUDICIAL DISTRICT, OF THE STATE OF 

MONTANA, IN AND FOR THE COUNTY OF 

FLATHEAD, AND THE HON. ROBERT SYKES, 

PRESIDING JUDGE, 

Respondents. 

AUG 15 1979 

CLERK OF SUPREME COURT 

STATE OF MONTANA 

- 

OPINION AND ORDER 

This matter comes before us on the petition of the State 

of Montana through its Board of Personnel Appeals as relators, 

asking us either to stay or vacate by writ of supervisory 

control or otherwise, a writ of mandate issued against BPA 

out of the District Court, Eleventh Judicial District, Flathead 

County. 

In the District Court, Bigfork Teachers Association (BTA) 

had filed its petition for writ of mandate or other appropriate 

writ against Robert R. Jensen, as administrator of the Board 

of Personnel Appeals (BPA) requesting that he be ordered to hold 

a decertification election to determine that the Bigfork 

Area Education Association (BAEA) was no longer the bargaining 

agent for teachers employed in School District No. 38, 

Flathead and Lake Counties. 

It appears that BAEA had been recognized by School 

District No. 38 as the exclusive representative for collective 

bargaining for the teachers employed in the Bigfork schools. 

The parties had negotiated a two year contract, beginning 

July 1, 1976, and were engaging in collective bargaining for 
a successor contract during the spring and summer of 1978. 

BAEA and the School District failed to reach an agreement on 

such successor contract. 

BAEA had filed with BPA a number of unfair labor practice 

charges against the School District. These charges were pending 

before BPA at the time the petition for a decertification 

election was filed by BAEA. The administrator took the position, 

and notified the parties, that until the Board's investigation 

and decision on the unfair labor practice charges was completed, 

BPA would not schedule a decertification election until it was 

assured "that the necessary laboratory conditions are present." 

The Bigfork Area Education Association intervened 

in the District Court action as an interested party. 

The District Court, after hearing, argument, and submission 

of briefs by all parties, issued its writ of mandate requiring 

BPA to "forthwith conduct an election" to determine the question 

of the proper bargaining representative for the members of the 

teachers' unit. 

The application of BPA to this Court for an order to 

stay or vacate the writ of mandate followed. 

A writ of mandate is an extraordinary writ which, according 

to statute, may be issued by a District Court "to compel the 

performance of an act which the law specially enjoins as a duty 

resulting from an office." Section 27-26-102 MCA. Without a 

clear legal duty, mandamus does not lie. Cain v. Department of 

Health, Etc. (1978) , Mont . , 582 P.2d 332, 35 St.Rep. 

1056. The basic question for our decision in this case therefore, 

is whether BPA has a present affirmative legal duty to hold a 

decertification election. We hold that it does not. 

The "laboratory conditions" under which BPA conducts 

a decertification election occur where there are no pending 

charges against the employer, of conduct constituting an unfair 
labor practice. The purpose of BPA in seeking laboratory 

conditions is to accomplish a fair election and to determine 

the uninhibited desires of the employees. 

In seeking the laboratory conditions, BPA is following the 

lead of the National Labor Relations Board which interprets and 

administers the Labor Management Relations Act under federal 

statutes, 29 U.S.C. S141 et seq. The NLRB has adopted what it 

calls the "blocking charge" rule to the effect that it will not 

conduct an election to determine the bargaining representative 

of a group where there is pending against the employer charges 

of unfair labor practice. Application of the "blocking 

charge" rule by NLRB has been held to be within its administrative 

procedural practices. Furr's Inc. v. N.L.R.B., (10th C.A. 

1965), 350 F.2d 84, 59 LRRM 2769. It is said in Surprenant 

Mfg. Co. v. Alpert (1st C.A. 1963), 318 F.2d 396, 53 LRRM 

"Whenever, shortly prior to a representation 

election, it is charged that the employer has 

engaged in an unfair labor practice which might 

affect the outcome, the Board, upon investigation 

and a determination that the charge has prima facie 

merit, customarily postpones the election until 

it has been found that no unfair labor practice 

has been committed, or until the union waives 

any claim to rely upon the employer's conduct 

to invalidate the election. There is no 

provision in the statute, or even any regulation, 

which expressly authorizes such action, but, 

concededly, the Board has followed this 'blocking 

charge' procedure from the beginning. United 

States Coal and Coke Company, (1937), 3 NLRB 398; 

'7115~1 Annual Report of the NLRB (1939) 143. So far 

as we can discover it has never been judicially 

overturned. " 

We held in State, Dept. of Hwys. v. Public Employees 

Craft Coun. (1974), 165 Mont. 349, 529 P.2d 785, and in 

Local 2390 of Amer. Fed., Etc. v. City of Billings (1976), 171 

Mont. 20, 555 P.2d 507, 93 LRRM 2753, that it is appropriate 

for the BPA to consider NLRB precedents in interpreting and 

administering the Public Employees Collective Bargaining Act. 
BTA contends that it is improper for BPA to apply the "blocking 

charge" rule since it has not been adopted by regulation nor 

has the power been granted by statute to BPA. However, in 

view of the federal precedents, it appears to be proper and 

logical to determine that in the conduct of a certification 

election, BPA has certain discretionary powers in order to 

assure that an election for a bargaining agent, when held, 

will be held under the best possible conditions insofar as 

the freedom of choice of the employees involved is concerned. 

The legislature appears to have given BPA a broad discretionary 

power in this matter in section 39-31-202, MCA, wherein it 

is stated: 

"Board to determine appropriate 

unit Sctors -- to be considered. 

to assure employees the fullest freedom in 

exercising the rights guaranteed by this 

chapter, the board or an agent of the board 

shall decide the unit appropriate for the 

purpose of collective bargaining and shall 

consider such factors as community of interest, 

wages, hours, fringe benefits, and other working 

conditions of the employees involved, the history 

of collective bargaining, common supervision, 

common personnel policies, extent of integration 

of work functions and interchange among employees 

affected, and the desires of the employees." 

The duty of BPA on the presentation of a petition to 

determine the bargaining representative is set forth in 

section 39-31-207, MCA. There it is stated in pertinent 

part : 

" (1) The board or an agent of the board shall 

investigate wtifion ---- and7if thas 

reasonable cause to believe -- that a question of 

representation exists, it shall provide for an 

appropriate hearing upon due notice whenever, 

in accordance with such rules as may be prescribed 

by the board, a petition has been filed: 

"(a) by an employee or group of employees or any labor organization acting in their behalf 

alleging that 30% of the employees: 

"(ii) assert that the labor organization which 

has been certified or is currently being recognized 

by the public employer as bargaining representative 

is no longer the representative of the majority of 

employees in the unit; or 

". . . " (Emphasis added. ) 
In view of the discretionary provisions that are set 

forth in sections 39-31-202, MCA, and 39-31-207, MCA, BPA 

may not be required by writ of mandate to conduct an election 

forthwith, absent a showing of an abuse of discretion by BPA. 

There is therefore no clear legal duty on the part of BPA 

to conduct the decertification election forthwith. As long as 

the blocking charges are not being used simply to delay the 

decertification election, and until BPA is satisfied that the 

necessary laboratory conditions exist, BPA is under no clear 

statutory duty to conduct the decertification election. Section 

39-21-207, MCA. 

Accordingly, 

IT IS ORDERED: 

1. The writ of mandate dated March 12, 1979 by the District 

Court for the Eleventh Judicial District of the State of 

Montana, in and for the County of Flathead, in its cause no. 

DV-79-008, is hereby vacated and set aside. 

2. Copies of this opinion shall be served by the Clerk 

of this Court by ordinary mail upon the said District Court and 

counsel of record. 

r Justice 

"-J 

4 

We Concur: 

Chief Justice 

w .............................. Justices 

Mr. Justice Daniel J. Shea, deeming himself disqualified, did 

not participate.