No. 12324
I N T E SUPREME C U T O T E STATE O MONTANA
H OR F H F
1973
ST. JOHN'S LUTHERAN HOSPITAL, INC. ,
a Montana Corporation,
P l a i n t i f f and Appellant,
STATE BOARD OF H A T O T E STATE O
E LH F H F
MONTANA, JOHN S. ANDERSON, Executive
O f f i c e r of t h e S t a t e Department of Health,
and Montana Nurses Association, a ~ o n t a n a
Corporation,
Defendants and Respondents.
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
Honorable Robert S. Keller, Judge presiding.
Counsel of Record:
For Appellant :
Chadwick H. Smith argued, and Robert J. Sewell, Jr.
appeared, Helena, Montana
For Respondents:
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
Charles H. Dickman, A s s i s t a n t Attorney General, argued,
Helena, Montana
B r a z i e r , Dowling and Erickson, Helena, Montana
Leif B. Erickson argued, Helena, Montana
Submitted: January 25, 1973
Decided: FEB 2 6 1973
FEB 2
Filed : 6 1973
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This appeal was brought by plaintiff St. John's Lutheran
Hospital, Inc. from a judgment rendered for defendants State
Board of Health of the state of Montana, John S. Anderson,
Executive Officer of the State Department of Health and Montana
Nurses Association, in the district court of the eleventh judi-
cial district, county of Lincoln. The judgment affirmed the re-
determination of Dr. Anderson, acting for the Board of Health,
which provided that the Nurses Association is the duly designated
representative of an appropriate unit of general duty registered
nurses at the Hospital for collective bargaining purposes, under
Title 41, Chapter 22, Revised Codes of Montana 1947.
On March 24, 1971, the Hospital petitioned the Board of
Health for a redetermination of the representative, if any,
designated to represent an appropriate unit of general duty regis-
tered nurses employed at the Hospital. Dr. Anderson, the Executive
Officer of the State Department of Health, replied by letter dated
March 26, 1971, that the request for redetermination would be
granted and asked for a list of all registered professional nurses
employed by the Hospital for the time period commencing ~ p r i l1,
1970, through and including March 31, 1971. Simultaneously, Dr.
Anderson requested of the Nurses Association a list of nurses
employed by the Hospital who had assigned their bargaining rights
to the Nurses Association. In response the Hospital furnished
a list of general duty registered nurses so employed, showing the
hours each had worked during the one year period. The Nurses
Association submitted copies of the assignments of nurses who had
assigned bargaining rights to it.
On April 13, 1971, Dr. Anderson notified the Nurses Asso-
ciation he would only consider assignments of bargaining rights
dated March 31, 1971, or later.
From an examination of the list of nurses supplied by
the Hospital, Dr. Anderson found that there were seventeen nurses
entitled to be included in the bargaining unit for the period
commencing April 1, 1970, and ending March 31, 1971, Dr. Ander-
son further determined from the bargaining assignments that nine
of the seventeen nurses had assigned bargaining rights to the
Nurses Association.
Leola H. Cain was one of the nine nurses who allegedly
assigned her bargaining rights to the Nurses Association. The
date shown on the assignment was April 2, 1971; however, upon
inquiry it was determined that the actual date of signing was
April 22, 1971, not April 2. Leola H. Cain had worked 808 hours
during the period from April 1, 1970, through March 31, 1971,
and was otherwise qualified as a member of the appropriate bar-
gaining unit. Leola H. Cain was employed as of the date of re-
determination, March 31, 1971, but left employment on April 5,
1971, which, by her own admission, was some seventeen days prior
to the actual signing of the assignment of bargaining rights to
the Nurses Association. She has not worked for the Hospital
since April 5, 1971.
The above facts were presented to the district court in
an agreed statement of facts.
Plaintiff Hospital appeals and sets forth two issues:
1. Does the Nurses Association have assignments of bar-
gaining rights from a majority of the employees in the appropriate
unit when, admittedly, one of the alleged assignments presented
to the Board of Health and necessary to make up the majority of
nine out of seventeen, was executed by an individual no longer
an employee at the time of such execution?
2. Can an assignment given by an individual to the
Nurses Association nearly four months prior to the effective date
of the redetermination be used when the Board of Health specific-
ally ruled that new assignments be submitted for a current re-
determination?
The Hospital argues the assignment made by Mrs. Cain,
erroneously dated April 2, 1971, when it should have been April
22, should not be counted nor should Mrs. Cain's original assign-
ment of December 2, 1970, have been considered by the district
court in its findings. We find no merit to this position.
The alleged errors set forth by the Hospital are of no
import to the settlement of this case. The facts are as set
forth by the court in its findings of fact and conclusions of
law and are controlling. By the Hospital's own admission, Mrs.
Cain was a general duty registered nurse employed by the Hospital
for a total of 808 hours during the year ending March 31, 1971.
Therefore, she was a member of the Nurses Association bargaining
unit. She did not terminate her employment at the Hospital until
five days after the date set by Dr. Anderson for redetermination.
Prior to that time she had assigned bargaining rights to the
Nurses Association on December 2, 1970, and there had been no
withdrawal.
Generally, the cases relied upon by the Hospital are cases
where the employee had terminated employment before the date set
for the election. Such are not the facts here.
Dr. Anderson, Executive Officer of the State Department
of Health, is charged with implementing the provisions of Chapter
22, Title 41, R.C.M. 1947, Sections 41-2201 through 41-2209,
Nurses-Employment Practices Act. Section 41-2205 is relevant
here:
"Proof of status as a bargaining unit. An
employee organization is considered to be the
duly designated representative of all the
employees in an appropriate unit for the purpose
of section 3 [41-22031 of this act if it can
show evidence that bargaining rights have
been assigned to it by a majority of the
employees in that unit."
Dr. Anderson determined seventeen nurses were entitled
to be included in the bargaining unit as of April 1, 1970 to
March 31, 1971; that nine of seventeen constituted a majority,
and that due to the fact Mrs. Cain had assigned her bargaining
rights to the Nurses Association and was working on March 31,
1971, her assignment made a majority of nine.
These being the facts, it is obvious that Hospital failed
to meet its burden of proving either that the evidence was in-
sufficient to show Mrs. Cain had assigned her bargaining rights
or that the Board had acted arbitrarily or capriciously in arriv-
ing at its finding that Mrs. Cain belonged to the Nurses Asso-
ciation.
This Court has long followed the policy concerning admin-
istrative regulations as it is stated in 73 C.J.S. Public Ad-
ministrative Bodies and Procedure, § 202, p. 549:
"Broadly speaking, the courts will only pass on
the questions whether the administrative agency
has acted within its constitutional or statutory
powers, whether its order or determination is
supported by substantial evidence, and whether
its action is reasonable and not arbitrary."
See also: State ex rel. Bailey v. Grander 154 Mont. 437, 465
P.2d 334; Langen v. Badlands Cooperative State Grazing Dist., 125
Mont. 302, 234 P.2d 467: Cascade County Consumers Assn. v. Public
Service Comm., 144 Mont. 169,394 P.2d 856, 380 U.S. 909, 85 S.Ct.
Appellant's second issue concerns whether the December 2,
1970 assignment could apply to the March 31, 1971 redetermination
date.
Trial judge Hon. Robert Keller, having found Mrs. Cain
working on the redetermination date resolved this issue in the
following memorandum, with which we concur:
"MEMO: The problem with this case is that it was
submitted to the Court on an agreed statement of
facts, and the briefs were concerned with all of
the inferences and motives of the parties, or
their agents. They might have been a proper sub-
ject of inquiry with a witness on the stand, but
I cannot read between the lines. The plaintiff
asked for a re-determination of the bargaining
representative on March 24, 1971, and the defendant
board acted with dispatch. The period of time was
fixed as of March 31, 1971, and the year prior
thereto. At that time, the plaintiff certified
that there were 17 employees eligible to vote, and
at that time the Montana Nurses Association had
assignments from nine of them. That really should
have been the end of the matter, right then. In
an over-exercise of caution, the Board asked that
the assignment of bargain rights to the Montana
Nurses Association be executed anew. There was
no need for this, for the Association already had
executed assignments, with no revocations. All
that the assignments did, after March 31, 1971,
was to reaffirm that there had been no revocation
of assignment of rights.
"Somewhere, there has to be a cutoff point, and
as of March 31, there were 17 employees, and nine
of whom had executed assignments. The Board should
not have asked for a new assignment, and was fortu-
nate that the assignments that were executed again
were consistent with the original assignments, i.e.,
supposing one of the nine had revoked her assignment,
executed before March 31, 1971, and revoked after
March 31, 1971?"
The judgment of the district court is affirmed.
\ ~ssociateJustice
\\+.-+-
\ h e doncur: A /
Associate Justices