State Ex Rel. Board of Personnel Appeals v. District Court of Eleventh Judicial District , 183 Mont. 223 ( 1979 )

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 AUG 15 1979
MONTANA, IN AND FOR THE COUNTY OF
FLATHEAD, AND THE HON. ROBERT SYKES,
PRESIDING JUDGE, CLERK OF SUPREME COURT
STATE OF MONTANA
Respondents.
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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 N.L.R.B. 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
u n i t Sctors - be considered.
to -
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
i n v e s t i g a t e wtifion - - -ft h a s
and7i -
reasonable cause to believe - - a question of
that
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.
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J"
r Justice
4
We Concur:
Chief Justice
w..............................
Justices
Mr. Justice Daniel J. Shea, deeming himself disqualified, did
not participate.