City of Livingston v. Montana Council No. 9 , 174 Mont. 421 ( 1977 )

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 : ;
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Filed: ? ; i f
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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 affirm-
ed 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 appel-
lants 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. Council-
man 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 one-
half work was not affected by the previous bulle-
tin), 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
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"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 collec-
tive 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 sec-
tion 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 Steel-
workers 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 appel-
lant 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 crim-
inal 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, osten-
sibly, 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 termina-
tion 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 appel-
lant 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, re-
spondent 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 stan-
dards 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).
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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 agree-
ment 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 wit-
nesses, 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.
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We concur:
Chief Justice
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Justices fl