Board of Trustees of Billings School District No. 2 v. State Ex Rel. Board of Personnel Appeals & Billings Education Ass'n

No. 14653
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979

BOARD OF TRUSTEES OF BILLINGS
SCHOOL DISTRICT NO. 2 of Yellowstone
County, Montana,
Petitioner,

STATE OF MONTANA ex re1 BOARD OF
PERSONNEL APPEALS AND BILLINGS EDUCATION
ASSOCIATION, a Montana non-profit corporation,
Respondent.

Appeal from: District Court of the Thirteenth Judicial District,
Honorable Robert H. Wilson, Judge presiding.
Counsel of Record:
For Petitioner:
Longan & Holmstrom, Billings, Montana
James Capser argued, Billings, Montana
For Respondent :
Hooks and Budewitz, Townsend, Montana
Patrick F. Hooks argued, Townsend, Montana
Hilley and Loring, Great Falls, Montana
Emilie Loring argued, Great Falls, Montana
Jerry Painter, Helena, Montana

Submitted: September 21, 1979
Decided :DEC 1979
Filed: DEC 2.i ~ ~ : J * I
Mr. Chief justice Frank I. Haswell delivered the Opinion of the
Court.
The Board of Trustees of Billings School District No. 2
appeals from the order of the Yellowstone County District Court
denying the School District's petition to modify the order of
the Board of Personnel Appeals. The BPA's order determined that
District No. 2 had committed an unfair labor practice by coerc-
ing its teachers to surrender their right to strike.
The BPA's order stated in part that the District shall
not issue individual contracts which include terms of employment
not yet adopted in a master agreement. The District staunchly
defends its right to issue individual contracts to teachers after
contraat negotiations have reached an impasse, and it fears that
the BPA order, if upheld, will interfere with its ability to keep
its schools operating when no agreement on a master contract can
be reached. Our decision does not concern the District's right
to issue individual contracts prior to adoption of a master agree-
ment. We are concerned here with the issuance of individual teach-
er contracts during the pendency of a lawful strike and hold only
that under the facts of this case the District's use of individual
contracts to terminate the strike was an unfair labor practice
under section 59-1605 (1)(a), R.C.M. 1947.
During the first ten months of 1975, appellant District
and respondent Billings Educational Association attempted to nego-
tiate a new contract for District teachers. Negotiations were
unsuccessful and District schools opened in the fall of 1975 with
the teachers working without a contract. On October 2, 1975, the
teachers went on strike. Three days later, the District's final
offer was rejected and BPA mediators withdrew. With negotiations
having ceased, the District mailed a letter with an attached con-
tract to each of its teachers. Each letter stated that the teacher
would be replaced unless his or her contract was signed and returned
by October 14, 1975, and he or she returned to work by ~ctober
15, 1975.
On October 10, 1975, BEA filed a complaint with the BPA
in which it alleged the District had violated section 59-1605(1)
(a)(e), R.C.M. 1947, of the Collective Bargaining Act by its
refusal to bargain. In addition BEA's brief contended that the
District had coerced teachers by mailing them letters contain-
ing a threat of discharge. After conducting a hearing on the
charges, a BPA hearing examiner concluded that the District had
violated section 59-1605(1)(e) by refusing to bargain, but that
the complaint failed to give the District fair notice of the
charge of coercion, and thus he could not consider that charge.
The BPA adopted the examiner's finding that the District
had refused to bargain, and in addition, concluded that the Dis-
trict had attempted to coerce its teachers into signing contracts
and returning to work, thereby interfering with their right to
engage in concerted activities including the right to strike.
The District petitioned the Yellowstone County District
Court to modify the BPA's order insofar as it ordered the District
to cease using individual contracts providing for wages, hours,
fringe benefits, or other conditions of employment. The District
Court denied the petition and this appeal followed.
The sole issue is whether the District Court committed
reversible error in affirming BPA's decision that the mailing of
individual contracts was an unfair labor practice under the facts
of this case.
The District contends that BEA's complaint failed to give
notice of the charge of coercion; that the evidence presented at
the hearing before the BPA's trial examiner does not support the

conclusion that the District coerced its teachers; and that sec-
tion 75-6102, R.C.M. 1947, authorizes the District to issue
individual teacher contracts containing terms of employment not
already adopted in a master agreement.
The first issue presented by defendant is whether BEAts
complaint complied with the requirements of notice for admin-

istrative hearings. Section 82-4209(1), R.C.M. 1947, of the
Montana Administrative Procedure Act provides that a party to a
contested case shall be given an opportunity for a hearing after
reasonable notice. Reasonable notice includes "a short and plain
statement of the matters asserted. " Section 82-4209 (2)(d), R.C.M.
1947. The District maintains that it did not receive reasonable
notice of the charge of coercion because the complaint did not
state that the District had "coerced" its teachers, and did not
allege facts which would support such a charge.
The importance of pleadings in administrative proceedings
lies in the notice they impart to affected parties of the issues
to be litigated at the hearing. Western Bank of Billings v. Mont.
34 St-Rep. 1197;
St. Banking (1977), Mont . , 570 P.2d 1115/ Davis, Adminis-
trative Law Text, (3rd ed. 1972), S8.02, pp. 196-197; Greco v.
State Police Merit Board (Ill. C.A. 1969), 105 Ill.App.2d 186,
245 N.E.2d 99, 101. Thus the pleadings are liberally construed
to determine whether the charged parties were given fair notice.
73 C.J.S. S120, p 439; Greco, supra; Glenn v. Board of County
.
Comtrs, Sheridan County (Wyo. 1968), 440 P.2d 1, 4. Fair notice
is given if a charged party having read the pleadings should have
been aware of the issues which it had to defend, N.L.R.B. v.
Johnson (6th Cir. 1963), 322 F.2d 216, 220. See also, Glenn, supra;
Dee1 Motors, Inc. v. Department of Commerce la. C.A. 1971), 252

We hold that the District received fair notice that the
charge of coercion would be litigated. The complaint charged
coercion when it stated that the District had violated section
59-1605 (1)(a)(e), R.C.M. 1947. Section 59-1605 (1)(a), prohibits
coercion of employees in the exercise of certain rights protect-
ed by the Collective Bargaining Act. Among those rights is the
right to strike.
The complaint also alleged facts to support the charge
of coercion as it stated the District was "attempting to force
the teachers to give up legally protected rights." In the same
context, the complaint stated that public employees have the right
to strike.
The word "coercion" is not a talisman without which the
complaint fails. The allegations stated in the complaint were
sufficient to inform the District that the issue of coercion
would be litigated. If the District still had doubts about whether
coercion was an issue, upon request it could have obtained a more
definite statement of the charges. See section 82-4209(2)(d),
R.C.M. 1947.
The District contends that the BPA's finding that it coer-
cively used individual contracts is clearly erroneous in view of
the evidence presented by the entire record. Due to the similarity
in the provisions of the National Labor Relations Act and Montana's
Collective Bargaining Act concerning this issue, it is appropriate
to consider federal cases in interpreting the prohibition against
coercion contained in section 59-1605 (1)(a), R.C.M. 1947. See
Local 2390 of Amer. Fed., Etc. v. City of Billings (1976), 171
Mont. 20, 555 P.2d 507.
Federal cases have established the right of an employer
to inform striking employees of his intent to permanently replace
nonreturning workers after a specified date. N.L.R.B. v. Robinson
(6th Cir. 1958), 251 F.2d 639; N.L.R.B. v. Bradley Washfountain
Co. (7th Cir. 1951), 192 F.2d 144, 152-154. The District contends
that the individual contracts and attached letters simply informed
its striking teachers of what the District had a legal right to do,
namely to replace teachers who refused to return to work after
October 15, 1975.
The facts of this case do not support the ~istrict's
contention. An employer's right to communicate his intent to
replace striking workers is not absolute. If the employer's
communication is an attempt to interfere with his employees
right to engage in concerted act!.vities, then he has committed
an unfair labor practice. National Labor Rel. Bd. v. Beaver
Meadow Creamery (3rd Cir. 1954), 215 F.2d 247; Cusano v. National
Labor Relations Board (3rd Cir. 1951), 190 F.2d 898; See also
1J.L.R.B. v. D'Armigene Inc. (2nd Cir. 1965), 353 F.2d 406; N.L.R.B.
v. Power Equipment Company (6th Cir. 1963), 313 F.2d 438.
The chairman of District No, 2's Board of Trustees testi-
fied at the hearing before the trial examiner that the District's
letter to its teachers included a deadline because "it was time
to bring the strike to a halt if we could." The District's fail-
ure to hire replacement teachers alfter the ddline passed suggests
that the District's primary motivation was to halt the strike
rather than to keep its schools open. See Dayton Food Fair Stores,
Inc. v. N.L.R.B. (6th Cir. 1968), 399 F.2d 153. The BPA's finding
that the District coerced its teachers to surrender their right
to strike is amply supported by the record.
We note in passing that in resolving this issue, we are
dealing with a lawful strike. Union activities that become vio-
lent and threaten the public safety are not protected by the
constitutional right to free speech or provisions for collective
bargaining. 51A C.J.S. 8289, p. 67; Clark v. State (Okla. C.C.A.
1962), 370 P.2d 46; Smith v. Grady (5th Cir. 1969), 411 F.2d 181;
Stevens v. Horne (Fla. C.A. 1976), 325 So.2d 459. See also,
Great Northern Ry. Co. v. Local G.F.L. of I.A. of M. (D.Mont.
1922), 283 F. 557.
The District's final contention is that State ex rel. BEA
v. District Court (1974), 166 Mont. 1, 531 P.2d 685, and section
\

75-6102, R.C.M. 2.944, authorize the issuance of individual
teacher contracts even though a master contract has not been
adopted.
In State ex rel. BEA, this Court held that nothing in
the Professional Negotiations Act for Teachers (formerly section
75-6115 through 75-6128, R.C.M. 1947) required District No. 2
to adopt a master agreement with BEA before issuing individual
teacher contracts. I? 1975, the legislature repealed the Pro-
fessional Negotiations Act and placed teachers under the Collec-
tive Bargaining Act. State ex rel. BEA did not concern a charge
of coercion or interpret the teachers' rights under the Collec-
tiv~Bargaining Act to participate in strikes. It is not rele-
vant to the present dispute.
Section 75-6102, R.C.M. 1947, requires teachers to be
employed by contract. The District contends that the legislature's
failure to repeal section 75-6102, R.C.M. 1947, after placing
teachers under the Collective Bargaining Act demonstrates the
legislature's intent to authorize the issuance of individual con-
tracts after negotiations on a master contract have reached an
impasse.
This argument also misses the point. Whether the District
can issue individual contracts after an impasse in negotiations
has occurred is not the issue here. This decision concerns only
the District's use of individual contracts as leverage to end
its teachers' participation in a lawful strike.
Affirmed.

Chief Justice
We concur:
n
Hon. Frank E. B l a i r , D i s t r i c t
Judge, s i t t i n g i n p l a c e of M r .
J u s t i c e John C. Sheehy.

M r . J u s t i c e D a n i e l J. Shea d i s s e n t s and w i l l f i l e a w r i t t e n
d i s s e n t later.