No. 86-141 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

CITY COUNTY OF BUTTE-SILVER BOW, 

et al., 

Petitioners and Appellants, 

MONTANA STATE BOARD OF PERSONNEL 

APPEALS, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert McCarthy, County Attorney, Butte, Montana 

Ross Richardson & Brian Holland argued, Deputy County 

Attorneys, Butte, Montana 

For Respondent : 

Mary Anne Simpson argued, Dept of Labor & Industry, 

Helena, Montana 

Submitted: November 20, 1986 

Decided: February 5, 1987 

Filed: 5 - 1987 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the First 

Judicial District in and for the City/County of Butte-Silver 

Bow, Montana. The District Court upheld a decision by the 

Montana Board of Personnel Appeals that the City/County of 

Butte-Silver Bow refused to abide by the parties' collective 

bargaining agreement in violation of S 39-31-401(5), MCA. We 

reverse and remand. 

The Butte-Silver Bow Law Enforcement Commission heard 

charges brought against police officer Gale Wood pursuant to 

$ 7-32-4155, MCA, which is part of the Metropolitan Police 

Act, and Butte-Silver Bow Ordinance 14, which in pertinent 

parts is identical to the state act. Following the hearing, 

the Commission found the officer guilty of neglect of duty, 

misconduct in office, and conduct unbecoming an officer. His 

termination as an officer was approved by the chief executive 

of Butte-Silver Bow, pursuant to S 7-32-4161, MCA. The 

officer then filed a petition in District Court pursuant to 

5 7-32-4164, MCA, seeking judicial review of the law 

enforcement commission's decision. The District Court 

affirmed the decision and we upheld in Wood v. Butorovich 

(Mont. 1986), 716 P.2d 608, 43 St.Rep. 546. 

Concurrently, Officer Wood pursued remedies through his 

union under the grievance procedure, Article 14, of the 

Collective Bargaining Agreement between the officer and 

Butte-Silver Bow. Butte-Silver Bow (appellant) refused to 

grieve the matter as being outside the grievance procedure, 

contending Wood's exclusive remedy was pursuant to 

S 7-32-4164, MCA. The union filed an unfair labor practice 

complaint against Butte-Silver Row for refusal to bargain in 
good faith in violation of S 39-31-401(5), MCA, with the 

Board of Personnel Appeals. 

The parties stipulated to certain facts and to the 

issue to be decided, namely, whether appellant violated 

S 39-31-401(5), MCA, by refusing to process Officer Wood's 

grievance. The hearing examiner concluded the statute had 

been violated, and ordered appellant to process the 

grievance. Appellant filed exceptions and a hearing was held 

before the Board of Personnel Appeals, which adopted the 

hearing examiner's findings, conclusions, and recommended 

order. Appellant petitioned for judicial review. Following 

a hearing, the District Court affirmed the holding of the 

Board of Personnel Appeals. Appellant's motion to amend and 

a motion for a new trial were denied. This appeal followed. 

We are asked to decide whether the District Court erred 

in affirming the findings of the Board of Personnel Appeals 

that Butte-Silver Bow violated 5 39-31-401 (5) , MCA, by 

refusing to process Officer wood's grievance. When the issue 

is one of law, the Court is free to reach its own conclusions 

from the evidence presented. Section 25-7-102, MCA. 

Resolution of the issue turns on whether the grievance 

procedure in the then existing collective bargaining 

agreement between Officer Wood and appellant provides a 

remedy for a police officer which is in addition to that set 

out in S 7-32-4155 of the Metropolitan Police Act. The 

Metropolitan Police Act, 5 7-32-4101 et seq., MCA, enacted in 

1907, fixes the conditions under which a policeman may be 

appointed, may continue to enjoy the office, and may be 

removed therefrom. A police commission, $ 7-31-4151, MCA, 

has the duty and the exclusive jurisdiction to hear, try and 

decide all charges brought by any person against any officer 

or member of the police department. See State ex rel. 

Mueller v. District Court (19301, 87 Mont. 108, 113, 285 P. 
928, 930; In the Matter of Dewar (1976), 169 Mont. 437, 443, 

548 P.2d 149, 153. The officer then has the right of appeal 

to the District Court pursuant to 5 7-32-4164, MCA: 

District court review. The district 

court of the proper county shall have 

jurisdiction to review all questions of 

fact and all questions of law in a suit 

brought by any officer or member of the 

police force, but no suit to review such 

hearing or trial or for reinstatement to 

office shall be maintained unless the 

same is begun within a period of 60 days 

after the decision of the police 

commission or order of the mayor has been 

filed with the city clerk. 

The collective bargaining agreement between appellant 

and Officer Wood provides in Article 3, Sec. 2 that after a 

thirty day probationary period and confirmation of 

appointment by the police commission, an "applicant becomes a 

member of the police force and holds such position during 

good behavior unless suspended or discharged as provided by 

law. " The agreement specifically incorporates the 

Metropolitan Police Act in Article 31, in which the parties 

"agree and recognize that the [Butte-Silver BOW] law 

enforcement department is subject to the regulations of the 

Metropolitan Police Law of the State of Montana . . . I' 

Therefore Butte-Silver Bow's method for discharge is that 

found in the Metropolitan Police Act. Article 14, Sec. 4, of 

the agreement defines grievance as "a complaint by an 

employee that he/she has been treated unfairly or unjustly in 

the interpretation or application of [the agreement's 

provisions 1 . " Thus a grievance arises only on a 

misapplication of a provision of the agreement. Neither 

party claims a misapplication of the method of discharge. 

By the agreement's own terms, the Act is applicable. 

It was applied. The agreement, pursuant to the Act, provides 
adequate administrative and judicial determination and review 

when an officer is discharged. It does not provide a 

grievance procedure for termination. The parties to this 

agreement are bound by these terms. 

Officer Wood seeks further review of the same conduct 

by a different body. Such an attempt could result in 

contradictory holdings. More importantly, however, the terms 

of the agreement do not permit this course of action. 

We find appellant did not commit an unfair labor 

practice because the terms of the agreement were followed. 

Therefore, we reverse and remand to the District Court for an 

order consistent with this opinion. 

We concur: ./ 

Justices 
Mr. Justice John C. Sheehy, dissenting. 

The majority are in grievous error when they conclude 

that the metropolitan police law (~itle 7, Ch. 32, Part 41, 

MCA) precludes the grievance procedures allowable to a 

terminated policeman under his union's collective bargaining 

agreement. 

The majority members ascribe "exclusive" jurisdiction to 

the police commission under S 7-32-4155, MCA. The words 

"exclusive" or "exclusive remedy" are not to be found in S 

7-32-4155, or any other part of the statute which is a part 

of the Metropolitan Police Law. The assertion that procedure 

before the police commission is "exclusive" is a legislative 

amendment to the Metropolitan Police Act beyond the power of 

this Court to adopt. 

Under S 39-31-305, MCA, collective bargaining includes 

the performance of the mutual obligation of the public 

employer and the representatives of the workers to negotiate 

in good faith with respect to wages, hours, fringe benefits, 

"and other conditions of employment or the negotiation of an 

agreement or any question arising thereunder." This Court 

said in City of Livingston v. Montana Council No. 9 (1977), 

174 Mont. 421, 425, 571 P.2d 374: 

The Supreme Court has held "collective bargaining 

is a continuing proce-ss." Among other things it 

involves . . . protection of employees rights 

already secured by contract. Connelly v. Gibson, 

355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, 85 (1957). 

The processing of grievances in grievance hearings 

is collective bargaining. Timken Roller Bearing 

Company v. National Labor Relations Board, 161 F.2d 

949, 954 (U.S.C.A. 6th, 1947). In Ostrofsky v. 

United Steel Workers of America, 171 F.Supp. 782, 

790 (D.M.D. 1957) aff'd 273 F. 2d 614 (U.S.C.A. 4th, 

1960), cert.den. 363 U.S. 849, 80 S.Ct. 1628, 4 

L.Ed.2d 1732 (1950), the Court stated: 
". . . the employer had the same duty to bargain 

collectively over grievances as over the terms of 

the agreement." 

When the Union and Butte-Silver Bow recognized in their 

collective bargaining agreement that the law enforcement 

department is subject to the regulations of the Metropolitan 

Police Law, it was a recognition of all of the provisions of 

that Act, including limits on salary, provisions for 

retirement, as well as the provisions contained in the Act 

for the termination of a policeman. Nothing in the 

collective bargaining agreement excluded, withdrew or 

cancelled the right of the employee to found a grievance on 

the termination proceedings before the police commission 

within § 4, Art. 14, of the Collective Bargaining Agreement: 

§ 4: A grievance shall mean a complaint by the 

employee that he she has been treated unfairly or 

unjustly in the interpretation and application of 

the provisions of this agreement or of established 

policy or practice. 

When the terminated police officer in this case filed 

his grievance, he was proceeding under the Collective 

Bargaining Agreement but Butte-Silver Bow refused to process 

his grievance. The refusal by Butte-Silver Bow to follow the 

grievance procedure which it had bargained for amounted to a 

failure to bargain in good faith and constituted an unfair 

labor practice. See Savage Public Schools v. Savage 

Education Association (1982), 199 Mont. 39, 647 P.2d 833. 

The Collective Bargaining Agreement further provided 

that even the interpretation of the agreement might give rise 

to a grievance which would have to be processed under the 

agreement. Section 6, Art. XIV, provided: 

Section 6: Any grievance or dispute which may 

arise between the parties including the 

application, meaning or interpretation of this 
agreement shall automatically proceed to the next 

step. (Emphasis added. ) 

Under the Collective Bargaining Agreement, if 

Butte-Silver Bow disagreed with the application of the 

Collective Bargaining Agreement to the termination 

proceedings before the Commission, under the grievance 

procedure it could refer that question to an arbitrator. It 

was that step that should have been taken under the agreement 

by Butte-Silver Bow. Instead it chose to breach its 

grievance procedure agreement which it had bargained for, and 

it was thereby guilty of an unfair labor practice. 

Finally, terminated Officer Wood is not a party to this 

action. The parties are Butte-Silver Bow, the Montana State 

Board of Personnel Appeals, which has determined that 

Butte-Silver Bow committed an unfair labor practice, and the 

local union of the American Federation of State, County and 

Municipal employees (AFL-CIO) . The union is before this 

Court claiming that Butte-Silver Bow, in refusing to process 

a grievance, has violated its Collective Bargaining 

Agreement. That sole issue should be decided by us, and not 

the prospective or speculative possibility that "Officer Wood 

seeks further review of the same conduct by a different 

body." That is what Butte-Silver Bow bargained for and it 

should be held to its agreement. The union is correct in 

maintaining that an unfair labor practice occurred here, and 

the Board of Personnel Appeals should be affirmed in this 

action. 
We concur in the foregoing dissent: A