No. 92-330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

MACKLIN D. BERRY, 

Plaintiff and Appellant, 

v. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick F. Flaherty (argued), Attorney 

at Law, Great Falls, Montana 

For Respondent: 

Robert P. Goff and Jean E. Faure (argued), 

Church, Harris, Johnson & Williams, 

Great Falls, Montana 

For Amicus Curiae: 

Donald C. Robinson and J. Richard Orizotti 

(argued), Poore, Roth & Robinson, Butte, 

Montana (for Patrick Kearney) 

Daniel B. McGregor, Montana Department of 

Labor and Industry, Helena, Montana 

Jerome T. Loendorf, Harrison, Loendorf & 

Poston, Helena, Montana (for Montana Broadcasters) 

Filed: 

Submitted: August 30, 1993 

Decided: December 15, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiff Macklin D. Berry commenced this action against 

defendant KRTV Communications, Inc., in the District Court for the 

Eighth Judicial District in Cascade County to recover overtime pay, 

bonuses, statutory penalties, and attorney fees from his employer. 

The District Court granted his employer's motion for summary 

judgment and dismissed plaintiff's claim with prejudice based on 

its conclusion that his claim for overtime pay was barred by the 

federal Fair Labor Standards Act (FLSA) and that he was not 

entitled to any bonus pay under the plain terms of his employment 

contract. Plaintiff appeals from the District Court's decision. 

We reverse in part, and affirm in part, the judgment of the 

District Court. 

The following issues are presented on appeal. 

1. Did the District Court err when it held that plaintiff 

was a covered employee under the Fair Labor Standards Act found at 

29 U.S. C. 55 201 through 219 (1988) , and therefore, that he was not 

entitled to benefits for overtime work pursuant to § 39-3-405, MCA, 

of Montana's Minimum Wage and Maximum Hour Act? 

2. Did the District Court err by holding as a matter of law 

that plaintiff was not entitled to bonus pay pursuant to the terms 

of his contract with his employer? 

FACTUAL BACKGROUND 

In his complaint filed in the District Court on October 5, 

1990, Berry alleged that he had been employed at KRTV, Inc., from 

1986 through 1989 in various capacities. Principal among his 
responsibilities, however, were news editing and announcing. He 

alleged that from July 29, 1986, through May 19, 1989, he worked in 

excess of 1211 overtime hours for which his employer had refused to 

compensate him at the appropriate rate for overtime work. 

Berry also alleged that his contract with KRTV provided for a 

14 percent bonus when the station's local news led its competition 

under certain circumstances, and that he had satisfied the 

conditions for the bonus, but that KRTV had refused to pay him. 

Berry sought compensation for his overtime pay in the amount 

of $17,456.56, a bonus in the amount of $10,850.00, the statutory 

penalties provided for in Montana's wage statutes, and attorney 

fees . 

In its answer to Berry's complaint, KRTV denied the substance 

of his allegations. However, more importantly for purposes of this 

appeal, it alleged that since he was employed as a news editor and 

announcer during his tenure at the station, it was not obligated to 

pay him overtime benefits under the terms of the federal FLSA. 

On March 31, 1992, KRTV moved for summary judgment. In 

support of its motion, it offered affidavits from Donald G. 

Bradley, Patricia Roberts, and Peter Friden. 

Bradley was president of KRTV Communications and stated that 

the defendant is licensed by the FCC as a television station with 

call letters KRTV. To establish that it was covered by the 

provisions of the federal FLSA, he stated that defendant had gross 

receipts from the operation of its station in excess of $500,000 
per year, employed more than one employee, and was engaged in 

interstate commerce. 

Bradley stated that under his ownership the station had 

employed Berry from December 18, 1986, until May 19, 1989, in 

various capacities, including bureau chief of the news department, 

news anchor, and reporter for the news department. He pointed out 

that his principal responsibilities in those positions included 

gathering and editing news, and acting as an announcer of news 

during the station's nightly news broadcasts. 

Bradley stated that Berry's eligibility for bonus pay was 

limited by the terms of his written contract for employment, a copy 

of which was attached to his affidavit. The written contract of 

employment provided in relevant part as follows: 

KRTV will pay you a bonus of 14 percent of your base pay 

when our local news at 5:30 and 10:OO p.m. leads our 

competition. Determination will be based on ratings and 

shares in the DMA [designated market area] according to 

the same ratings service (Nielsen or Arbitron), for two 

consecutive rating periods. 

Bradley stated that KRTV's competition were stations known by 

the call letters KFBB and KTGF, and attached copies of Nielsen and 

Arbitron ratings during the period of Berry's employment which 

established that at no time during that employment did KRTV lead 

both stations for two consecutive rating periods. 

Patricia Roberts was an employee of the Montana Department of 

Commerce whose affidavit was offered to establish that the 

population in Great Falls, according to the 1990 census, was 55,097 

people, and that the population of the Great Falls metropolitan 
statistical area (coextensive with Cascade County) was 77,691 

people. As will be pointed out later in this opinion, these 

figures were relevant to determination of whether Berry was covered 

by, or exempted from, terms of the federal FLSA. 

Peter Friden stated that he was the general manager of KRTV 

during part of the time that Berry was employed there and further 

described the nature of Berry's work for the station. 

In opposition to his employer's motion for summary judgment, 

Berry did not offer facts to controvert those offered by KRTV. 

Instead, he contended that, based on those undisputed facts, he was 

entitled to overtime pay pursuant to Montana's Minimum Wage and 

Maximum Hour Act found at §§ 39-3-401 through -409, MCA, and our 

decision in Plouffe v. Farm & Ranch Equipment Company (1977) , 174 Mont. 

313, 570 P.2d 1106. He also argued that a reasonable 

interpretation of the bonus provision in his employment contract 

was that it entitled him to a bonus if KRTV led either of its 

competitors in the ratings for two consecutive rating periods, and 

that it had, in fact, done so. 

The District Court granted KRTV's motion for summary judgment 

by its decision entered on May 6, 1992. In support of that 

decision, the court found as fact those statements made in the 

previously discussed affidavits. The only findings of fact 

challenged by Berry on appeal are findings numbered 11 and 13. In 

Finding No. 13, the District Court found that Berry's l'competition'l 

was both of the other television stations in Great Falls. In 

Finding No. 11, the District Court found that Berry did not meet 

5 
the requirements for a bonus during the period of his employment 

with KRTV. 

Based on these findings, the District Court concluded that 

KRTV is an employer in an enterprise engaged in commerce as those 

terms are defined in the FLSA at 29 U.S.C. 55 203 (d) and 203 (s) (1) 

(1988), and that Berry was an employee as defined in 29 U.S.C. 

5 203(e) (1988). The District Court concluded that, although 

covered by the FLSA, KRTV was not required to pay Berry overtime 

benefits under that Act based on the exemption provided in 

29 U.S.C. 5 213(b) (9) (l988), which pertains to announcers and news 

editors. However, because of its conclusion that Berry was covered 

under the federal Act, the court concluded that he was entitled to 

no overtime benefits pursuant to S 39-3-408, MCA, in the Montana 

Act. 

The District Court concluded that its decision was not 

controlled by our decision in Plouffe, but rather by our more recent 

decision in Wage Claim of Stewart v. Child and Family Services (199 0) , 242 Mont . 

88, 788 P.2d 913. 

Based on these findings and conclusions, Berry's complaint was 

dismissed with prejudice and judgment was entered in favor of KRTV. 

STANDARD OF REVIEW 

This Court reviews an order of summary judgment by utilizing 

the same criteria used by a District Court initially under Rule 56, 

M . R . civ . P . Minnie v. City of Roundup ( 19 9 3 

212. Pursuant to Rule 56 (c) , summary 

), 257 Mont. 429, 849 P.2d 

judgment is proper when no 
genuine issues of material fact exist and the moving party is 

entitled to judgment as a matter of law. 

Did the District Court err when it held that plaintiff was a 

covered employee under the Fair Labor Standards Act found at 

29 U.S. C. 55 201 through 219 (1988) , and therefore, that he was not 

entitled to benefits for overtime work pursuantto 5 39-3-405, MCA, 

of Montana's Minimum Wage and Maximum Hour Act? 

In this case, we are once again called upon to construe the 

relationship of the federal FLSA and the Montana Minimum Wage and 

Maximum Hour Act. We have had occasion to do so previously in both 

Plouffe, 570 P.2d 1106, and Stewart, 788 P.2d 913. In Stewart, we 

summarized the history and purpose of both Acts as follows: 

In 1938, Congress passed the Fair Labor Standards 

Act to prevent the use of unfair trade practices in 

interstate commerce leading to "labor conditions 

detrimental to the maintenance of the minimum standard of 

living necessary for health, efficiency, and general 

well-being of workers. . . . " 29 U.S.C. 202(a). To 

ensure a minimum living standard, the F.L.S.A. 

establishes a minimum hourly wage, 29 U.S.C. 5 206, and 

a maximum workweek without overtime compensation, 29 

U.S.C. 5 207. Part of the Act's enforcement mechanism 

allows employees to recover all unpaid wages plus an 

equal amount in liquidated damages for any violation of 

its wage and hour provisions. 29 U.S.C. 5 216(b). 

Although nationwide in scope, the F. L. S.A. does not cover 

all employees. See 29 U.S.C. 5 203 (e) ; 29 U.S.C. 5 213. 

In 1971, the Montana Legislature enacted the Minimum 

Wage and Maximum Hour Act. Like the federal Act, the 

M.W.M.H.A. ensures workers a minimum living standard by 

setting minimum hourly wages, 5 39-3-404, MCA, and 

maximum allowable work hours perweek, 5 39-3-405, MCA. 

Also like the F.L.S.A., the M.W.M.H.A. allows employees 

to recover unpaid wages plus up to 100% in liquidated 

damages, 5 39-3-407, MCA; 5 39-3-206, MCA. 
Stewart, 788 P.2d at 917. 

The District Court held that because Berry was covered by the 

federal Act, he could not recover benefits for overtime work under 

the Montana Act based on 5 39-3-408, MCA, which provides in 

relevant part that: 

(1) The provisions of this part shall be in addition to 

other provisions now provided by law for the payment and 

collection of wages and salaries but shall not apply to 

employees covered by the Fair Labor Standards Act except 

as provided in subsection (2). 

Subsection 2 pertains to minimum wages and is not applicable 

to this claim. However, the District Court also concluded that 

while Berry was covered by the federal Act he was not entitled to 

compensation for overtime worked under that Act pursuant to 

29 U.S.C. 5 213(b)(9) (1988), which provides that: 

(b) Maximum hour requirements. The provisions of 

5 207 [29 U.S.C. 55 2071 shall not apply with respect to-- 

(9) Any employee employed as an announcer, news 

editor, or chief engineer by a radio or television 

station the major studio of which is located (A) in a 

city or town of one hundred thousand population or less, 

according to the latest available decennial census 

figures as complied by the Bureau of Census, except where 

such city or town is part of a standard metropolitan 

statistical area, as defined and designated by the Off ice 

of Management and Budgetl which has a total population in 

excess of one hundred thousand . . . . 

On appeal, Berry contends that pursuant to 29 U.S.C. 

55 213(b) (9) (1988), he was not covered under the FLSA, and 

therefore, pursuant to our decision in Plouffe, he was entitled to 

the overtime protection provided for in Montana's Minimum Wage and 
Maximum Hour Act. He concludes that, since under the Montana Act 

there is no exemption for news announcers or editors, he is 

entitled to overtime pay. 

The Montana Department of Labor and Industry has filed an 

amicus brief in which it concurs with Berry's position. 

KRTV responds that because it is an employer covered by the 

FLSA, according to criteria set forth in 29 U.S.C. 8 203 (1988), 

its employees are also covered by the terms of the Act. Its 

argument continues that since it is covered under the federal Act, 

the Montana law regarding overtime wages is not applicable pursuant 

to 5 39-3-408, MCA, of the Montana Act which excludes from coverage 

employees covered by the federal FLSA. Finally, it contends that, 

even though covered by the federal Act, Berry is entitled to no 

benefits for overtime work under that Act because of the exemption 

provided for in 29 U.S.C. 8 213(b) (9) (l988), and that the 

necessity of this conclusion is established by our decision in 

Stewart. 

We conclude that the facts in this case are more similar to 

those in the Plouffe case than in the Stewart case, and therefore, that 

Plouffe controls our decision. 

In Plouffe, the plaintiff was a former employee of the defendant 

who worked as a farm equipment mechanic for a business engaged in 

the sale and repair of farm equipment. He sued to recover overtime 

wages and vacation pay pursuant to Montana's Minimum Wage and 

Maximum Hour Act, now codified at 88 39-3-401 through -409, MCA. 
His employer defended on the basis that his claim under the Montana 

Act was preempted by the federal FLSA and that under the federal 

Act it was exempt from an obligation to pay him overtime benefits. 

In that case, the employer relied on the very next subsection of 

29 U.S.C. 5 213(b) (1988) after the one relied on in this case. It 

provided : 

(b) Maximum hour requirements. The provisions of 

S 207 [29 U. S.C. § 2073 shall not apply with respect to-- 

(10) (A) any salesman, partsman, or mechanic 

primarily engaged in selling or servicing automobiles, 

trucks, or farm implements, if he is employed by a 

non-manufacturing establishment primarily engaged in the 

business of selling such vehicles or implements to 

ultimate purchasers . . . . 

As in this case, the district court in Plouffe concluded that, 

by the nature of its business, that employer was exempt from the 

requirements of Montana's ~inimum Wage and Maximum Hour' Act and 

dismissed plaintiff's complaint. However, on appeal, relying on 

29 U. S. C. 5 213 (b) (10) (1988) , we held that the FLSA expressly 

exempted the employer in this case from paying overtime wages to 

the plaintiff, and therefore, that the employer was not exempt from 

payment of overtime wages under the Montana Minimum Wage and 

Maximum Hour Act. 

In arriving at our decision in Pkmffe, we concluded that there 

was an express intent by our national Congress not to preempt the 

field of wage and hour regulation through the enactment of 

29 U.S.C. § 218 (1988), which provides in relevant part that: 
(a) No provision of this chapter or of any order 

thereunder shall excuse noncompliance with any Federal or 

State law or municipal ordinance establishing a minimum 

wage higher than the minimum wage established under this 

chapter or a maximum work week lower than the maximum 

work week established under this chapter . . . 

We concluded that since the class of employees to which Plouffe 

belonged was exempted from the maximum hour protection of the 

federal FLSA, and since 5 218 of the Act specifically authorized 

states to enact stricter standards for wages and maximum hours, 

that: 

[TJhe Fair Labor Standards Act does not preempt the 

subject of wage, hour or overtime regulation to the 

exclusion of Montana's Minimum Wages and Hours Act I... 

Phffe, 570 P.2d at 1109. 

In our review of PloufSe, we note that we expressly stated: 

We hold that the federal air Labor Standards Act 

expressly exempts the employer in this case from paying 

overtime wages to plaintiff. Section 207 of the Fair 

Labor Standards Act provides that no employer shall 

employ any of his employees for a workweek longer than 

40 hours unless such employee receives time and a half 

his regular rate of pay for the excess. Section 213 

provided : 

Iq(b) The provisions of Section 207 of this title 

shall not apply with respect to-- . . . 

f' (10) Any salesman, partsman , or mechanicprimarily engaged 

in selling or servicing automobif es, trailers, trucks, fam 

implements, or aircraft if employed by a norzmanufacturing establishment 

primarily engaged irz the business of selling such vehicles to ultimate purchasers. 

.... 

This exemption from payment of overtime wages clearly 

applies under the admitted facts of this case. 
Plouffe, 570 P.2d at 1107. However, in our concluding summary, we 

stated as follows: 

In summary, we hold that the Fair Labor Standards 

Act does not preempt the subject of wage, hour or 

overtime regulation to the exclusion of Montana's Minimum 

Wages and Hours Act; that the employer here is not exempt 

from payment of overtime wages under either the Fair 

Labor Standards Act exemption or Montana's Minimum Wages 

and Hours Act . . . . 

It must be kept in mind that a principal issue in Plouffe was 

whether the claimant was precluded from coverage under the State 

Act based on the doctrine of federal preemption. The employer in 

that case argued that he was exempt from payment of overtime 

benefits under either state or federal law because the exemption in 

federal law preempted coverage under the state law. However, after 

discussing § 218 of the FLSA, we concluded there was no preemption, 

and that is what was referred to in our summary paragraph when we 

stated that the employer was not exempt from payment of overtime 

wages under the federal Act. While unartfully stated, that section 

clearly referred to the employer's federal preemption argument. In 

order that there may be no misunderstanding from Plouffe, we 

expressly construe the opinion in Plouffe to mean that the federal 

FLSA exempted the employee from coverage. 

The concurring opinion criticizes Plouffe for not discussing 

5 39-3-408, MCA. However, that section was not raised by the 

employer as a defense in that case. It makes no difference. 

Section 39-3-408, MCA, is simply a codification of federal 
preemption, and by resolving the issue of federal preemption, the 

Plouffe case addressed the very same issue that is raised in this 

case pursuant to g 39-3-408, MCA. 

KRTV argues that our decision in Plouffe should not control the 

outcome of this case because 15 years has passed since that 

decision; its result is questionable in light of our decision in 

Stewart; and the effect of 5 39-3-408, MCA, was not discussed in 

Plouffe. First, we note that the passage of time has not changed the 

statutory law relied on in Plouffe, nor the necessary conclusions 

from its application. Second, we conclude that 5 39-3-408, MCA, 

does not pertain to Berry because pursuant to the exemption 

provided for in 29 U.S.C. § 213(b)(9) (1988), he is not an employee 

covered by the FLSA with regard to overtime payment. Finally, the 

facts in our decision in Stewart are clearly distinguishable from 

this case. 

In Stewart, the plaintiffs were employees of a defendant 

corporation which provided residential care facilities for the 

developmentally disabled and multiply handicapped. The duties 

required that they spend overnight on their employer's premises. 

However, if they received five consecutive hours of uninterrupted 

sleep, they were compensated for only the time they spent attending 

to clients. If they did not receive five consecutive hours of 

uninterrupted sleep, they were paid for the entire overnight 

period. The employer established this policy in reliance on 
opinions from employees of the Wage and Hour Division of the United 

States Department of Labor. 

The claimants in the Stewart case filed claims for the time 

spent on their employer's premises when they were sleeping and 

uncompensated. In defense to the employees' claims, the defendant 

in Stewart argued that since it had been advised by a government 

official that it was complying with the law, it had an affirmative 

defense to its employees' claims pursuant to the good faith defense 

provided by the Portal-to-portal Act codified at 29 U.S.C. 55 216, 

251 through 262 (1988). The District Court concluded that if the 

claims were barred under the federal Act, then there was coverage 

under Montana's Minimum Wage and Maximum Hour Act. On appeal, we 

reversed based on a distinction between lack of coverage under the 

federal Act and an affirmative defense to a claim under the federal 

Act. Significantly, we noted that I1[i]n the present case, the 

parties do not dispute that the claimants are subject to the 

F.L.S.A." Stewart, 788 P.2d at 918. We distinguished Plouffe on the 

grounds that the employee in that case was not covered by the Act. 

We noted that: 

In Plouffe v. Fann & Ranch Equipment Co., the F. L. S. A. 

exempted the employer from federal wage regulation. We 

held that by enacting F.L.S.A. 5 218, Congress declined 

to preempt the entire field of wage and hour regulations 

and, therefore, the employee could still rely on the 

M.W.M.H.A. Plo~ffe, 174 Mont. at 319-20, 570 P.2d at 1109. 

Because the F.L.S.A. never applied to the employee, we 

did not need to decide if the employee was covered by 

both the federal and the Montana Acts. 

Stewart, 788 P.2d at 919. 
Finally, we concluded that since the employees in Stewart were 

covered by the federal Act, and since the employer in Stewart had 

satisfied the good faith affirmative defense as a matter of law by 

relying on interpretations of the Administrator of the Wage and 

Hour Division of the United States Department of Labor in 

formulating its overnight policies, .the employeest claims were 

barred. 

In summary, Stewart is distinguishable from the present case 

because the parties in that case did not dispute that the employees 

were covered by the FLSA; they were not the subject of specific 

exemption from coverage under the FLSA; and Berry is the subject of 

special exemption pursuant to 29 U.S.C. § 213(b)(9) (1988) which, 

as we pointed out in Stewart, requires the conclusion that the FLSA 

did not apply to him. 

We conclude that the Legislature's intent to provide greater 

overtime protection for the class of employees to which Berry 

belongs is further evident from an examination of Montana's 

statutory exemptions in comparison to the federal exemptions. 

The federal exemptions from overtime protection are found at 

29 U.S.C. 5 213(b) (1988) and currently include 20 classifications 

of employees. 

The Montana exclusions are found at 5 39-3-406(2), MCA, and 

include 22 classifications of employees which are, for the most 

part, patterned after their federal counterparts. Notably, 

however, Montana did not adopt the exclusion found at 29 U.S.C. 
9 213(b)(9) (1988) which pertains to news editors and announcers 

employed by television stations. 

Therefore, we conclude that pursuant to the exemption found at 

29 U.S.C. 9 213(b) (9) (l988), Berry was not covered by the federal 

FLSA with regard to compensation for hours worked over 40 hours per 

week while he was employed at KRTV. We furthermore conclude that 

when the Legislature of this State adopted Montana's Minimum Wage 

and Maximum Hour Act, it was aware of the exemptions provided for 

in the federal Act and chose to provide a maximum work week for 

employees in Berry's classification which is lower than the maximum 

work week provided for under the federal FLSA. Therefore, pursuant 

to 29 U.S.C. 5 218 (1988), Montana is not preempted from providing 

overtime protection to Berry, and he is entitled to overtime 

compensation pursuant to 5 39-3-405, MCA. 

11. 

Did the District Court err by holding as a matter of law that 

plaintiff was not entitled to bonus pay pursuant to the terms of 

his contract with his employer? 

Berry was entitled to a bonus during the period of his 

employment with KRTV when KRTV led its competition for two 

consecutive rating periods. Berry contends that either of the 

other two television stations in Great Falls was KRTV1s 

competition, and therefore, if KRTV led either of them for two 

consecutive rating periods, he was entitled to a bonus. He relies 

on 9 28-3-206, MCA, which provides that language of a contract, 
when unclear, should be interpreted against the party who caused 

the uncertainty to exist. 

KRTV responded, and the District Court agreed, that pursuant 

to our decision in Morning Star Enterpries v. R.H. Grover ( 1991) , 247 Mont. 

105, 805 P.2d 553, an ambiguity in a contract does not exist unless 

the contract is subject to two different interpretations and that 

the language in Berry's contract is clear and unambiguous. KRTV 

cites the definition for "c~mpetition~~ from the American Heritage 

Dictionary where it is defined as "the rivalry between businesses 

driving for the same customer or market." 

Other than the general rules for construction referred to 

previously, neither party has cited any authority which directly 

resolves the dispute over this term in their contract. We are left 

to determine, as a matter of law, whether the term "competition," 

when used to refer to business competitors, means all of those 

competitors or can pertain to each competitor individually. We 

look for guidance to Webster's Ninth New Collegiate Dictionary 268 

(1984) where competition, in the sense that it is used in this 

contract, is defined as "one's competitors." 

Black's Law Dictionary, while not discussing "competitionw as 

a description of persons or parties, refers to it as: 

Rivalry. The play of contending forces ordinarily 

engendered by an honest desire for gain. The effort of 

two or more parties, acting independently, to secure the 

custom of a third party by the offer of the most 

favorable terms. It is the struggle between rivals for 

the same trade at the same time; the act of seeking or 

endeavoring to gain what another is endeavoring to gain 

at the same time. [Citations omitted]. 
Black's Law Dictionary 355-56 (4th ed. 1968). 

We conclude, based on the general usage suggested by the 

previous authorities, that when used in a commercial setting the 

term 'lcompetition" refers to all those persons or parties competing 

for the same trade or economic interest. For that reason, we 

affirm the District Court's conclusion that KRTV's "competition," 

as referred to in its contract of employment with Berry, included 

the Great Falls television stations known by the call letters KFBB 

and KTGF, and that based upon the uncontroverted documentation 

provided by KRTV, it did not lead its "competition" for two 

consecutive rating periods during Berry's period of employment with 

that station. 

Based upon these conclusions, we affirm the District Court's 

judgment which dismissed Berry's claim for payment of a bonus 

pursuant to the terms of his contract with KRTV, and we reverse 

that part of the District Court judgment which dismissed Berry's 

claim for overtime pay pursuant to the Montana Minimum Wage and 

Maximum Hour Act. 

We concur: 
Justices 
District Court Judge John W. Larson specially concurring. 

Although the majority's result is correct, it is useful to 

track the Legislature's actions since Plouffe does not address 

g 39-3-408, MCA, the pivotal statute in the case at bar. 

Plouffe does not raise, nor does it address, the effect of 

g 39-3-408, MCA, which provides that the overtime pay provision of 

g 39-3-405, MCA, *'shall not apply to employees covered by the Fair 

Labor Standards Act except as provided in subsection (2)." 

Subsection (2) is inapplicable in this case. The issue in the case 

at bar, therefore, is whether plaintiff is "covered by the FLSA." 

Plouffe does not address the definition of "covered1* as used in 

g 39-3-408(1), MCA, despite the fact that at the time Plouffe was 

decided, the predecessor to 5 39-3-408(l), MCA, provided that 

Montana's minimum wage, maximum hours, and overtime pay provisions 

"shall not apply to employees covered" by the FLSA. Section 

41-2307, R.C.M. 1947. Plouffe, then, did not consider a statute that 

was highly relevant to the case at bar. 

Because Plouffe is unhelpful, and Stewart is distinguishable from 

the present case, as noted by the majority, the Court must fall 

back on the legislative history of Montana's minimum wage and 

overtime compensation provisions as contained in 5 39-3-401 

through -409, MCA, to determine whether the Legislature intended 

news editors, such as plaintiff, to be entitled to overtime pay. 

As noted by the majority, 5 39-3-406, MCA, contains numerous 

exclusions to Montana's overtime pay provisions, most of which are 
patterned on the exclusions in the FLSA. The Montana ~egislature 

has amended 5 39-3-406, MCA, six times since 1981, including most 

recently, in the 1993 regular legislative session. These 

amendments added a total of twelve exclusions to the statute, none 

of which relate to news editors employed by television stations in 

small cities. Thus, despite the fact that the FLSA contains a 

specific exclusion for such news editors, and despite ample 

opportunity to do so, the Legislature bas never chosen to 

incorporate that exclusion in the Montana statute. The only 

possible conclusion is that the Legislature has specifically 

decided not to exclude news editors in small cities from coveraae 

by the Montana overtime pay provisions. 

Thus, the majority is correct in holding that the FLSA does 

not cover plaintiff in this particular case, and that since 

plaintiff is not excluded from the Montana overtime pay provisions, 

plaintiff is 

provisions. 

Chief Justice 

concurrence. 

entitled to overtime pay pursuant to the Montana 

Turnage 

lA L? 

~idrict Judge John W. Larson, 

s$$ing for justice James C. fielson 

and Jus lk' ce Gray join tming special