IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
KATHLEEN A. REYNOLDS,
Plaintiff and Appellant,
-vs-
PACIFIC TELECOM, INC.!
a Washington Corporation, and
NORTHWESTERN TELEPHONE, INC.,
an Oregon Corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Elizabeth A. Best; Best Law Offices, Great Falls,
Montana
For Respondents:
C. Eugene Phillips; Murphy, Robinson, Heckathorn,
& Phillips, Kalispell, Montana
Howard Rubin & Amy Alpern; Amburgey, Segel & Rubin,
Portland, Oregon
Claren Neal, Montana Department of Labor and
Industry, Helena, Montana
Submitted on Briefs: February 4, 1993
Decided: July 12, 1993
Filed:
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Kathleen Reynolds appeals from an order of the Eleventh
Judicial District Court, Flathead County, upholding the Board of
Labor Appeals' denial of unemployment insurance benefits. We
affirm.
We restate the issues on appeal as follows:
1. Did the District Court err in concluding that the Board
of Labor Appeals was properly constituted?
2. Did the District Court err in determining that the Board
of Labor Appeals' findings of fact were supported by substantial
evidence?
3. Did the District Court err in determining that the Board
of Labor Appeals properly disqualified Reynolds from receiving
unemployment insurance benefits under 1 39-51-2302, MCA?
Kathleen Reynolds (Reynolds) was employed by Northwestern
Telephone Systems, Inc. (Northwestern Telephone), a division of
Pacific Telecom, Inc., in Kaiispell. Reynolds worked as a traffic
supervisor in operator services.
In early 1990, Reynolds complained to Helen Shirtliff
(Shirtliff), manager of operator services, and Ken Sprain (Sprain),
division vice president, that supervisors were monitoring
conversations between employees. She characterized the monitoring
as a "public policy" violation. Reynolds asserts that Shirtliff
reduced her job responsibilities in response to this complaint.
Reynolds also complained to Shirtliff that supervisors had made
false statements regarding an employee's workers' compensation
2
claim, and that she had been denied the opportunity to make a
statement. According to Reynolds, Shirtliff responded to this
complaint by threatening to change the way in which work and
vacation schedules were selected.
On June 19, 1990, Reynolds began a six-month medical leave of
absence. Reynolds had developed depression, dysthymia and anxiety,
which she attributed to Shirtliff's retaliation. Her medical
conditions were diagnosed as work-related. While on medical leave,
Reynolds made a statement in support of the employee seeking
workers' compensation benefits. When her medical leave expired in
December of 1990, Reynolds went on unpaid leave.
Early in 1991, Toni Welliver (Welliver) replaced Shirtliff as
manager of operator services. Sprain also left his position as
division vice president and was replaced by Ken Laing (Laing).
When Reynolds learned of these changes in personnel, she obtained
a medical release and returned to her position as a supervisor in
operator services on February 11, 1991.
Reynoldsi conflicts with management personnel continued.
Northwestern Telephone had begun assigning vacation and work
schedules to supervisors in operator services on a rotating basis:
the schedules previously had been assigned by seniority. Reynolds,
who had the most seniority in her work pool, characterized the
change as retaliation for the statement she made during her leave
of absence regarding the workers' compensation claim. Welliver
also declined to implement Reynolds' suggestion that the fire
department's telephone number be placed on a "quick list" of
frequently called telephone numbers.
3
Reynolds complained to Laing about the continued monitoring of
employee conversations and the handling of the workers'
compensation claim. On February 20, Reynolds asked Laing for help
in obtaining compensation for the time that she was on unpaid
leave. Laing responded that he would not recommend pursuing the
compensation. Reynolds also inquired about a merit salary increase
that she did not receive while on medical leave. Laing indicated
that he did not know if she was entitled to the salary increase.
Reynolds then asked Laing to terminate her employment with
Northwestern Telephone. Reynolds subsequently took part in a
conference call with Wes Carson, manager of employee relations, who
suggested that she apply for long-term disability benefits.
Reynolds declined to do so. On March 1, Reynolds submitted a
letter of termination.
Reynolds filed a Claimant's Discharge Statement with the
Montana Department of Labor and Industry Unemployment Insurance
Division on April 4, 1991. Reynolds asserted that Northwestern
Telephone had "made work conditions intolerable causing severe
anxiety and depression and ulcers." Additionally, Reynolds
asserted that she was fired for refusing to violate public policy
and for reporting public policy violations.
On May 3, a claims specialist denied Reynolds1 application for
unemployment insurance benefits. Reynolds appealed the decision to
a Department of Labor and Industry appeals referee. The referee
determined that Reynolds had terminated her employment for good
cause and, therefore, was eligible to receive unemployment
insurance benefits.
4
Northwestern Telephone appealed the referee's decision to the
three-member Board of Labor Appeals (the Board) On July 26, 1991,
the Board reversed the referee's decision. Daniel Johns (Johns),
the attorney member of the Board, abstained.
Reynolds requested that the Board reconsider its decision
because she had not received notice of, and did not have the
opportunity to participate in, the July decision. The Board
granted Reynoldsf request and held a hearing on October 8. The
Board again reversed the referee's decision, determining that
Reynolds was disqualified from receiving unemployment insurance
benefits. Johns again abstained.
Reynolds petitioned the District Court to review the Board's
decision. The District Court upheld the decision, determining, in
pertinent part, that the Board was properly constituted, that the
Board's findings were supported by substantial evidence, and that
the Board's disqualification of Reynolds from receiving benefits
was not erroneous under 1 39-51-2302, MCA. This appeal follows.
Did the District Court err in concluding that the Board of
Labor Appeals was properly constituted?
Johns, the attorney member of the Board, abstained from
participating in the October 8 hearing due to a conflict of
interest. Johns indicated that a pro tempore member would be
appointed in the event that Joseph Thares and Stephen Birch, the
remaining Board members, did not reach a consensus on Reynolds1
eligibility for unemployment insurance benefits. Thares and Birch
both signed the Board's decision denying unemployment insurance
5
benefits.
The District Court concluded that the Board was properly
constituted when it denied Reynolds benefits. On appeal, Reynolds
reasserts her argument that the Board was not properly constituted.
We review a district court's conclusion of law to determine whether
the court's interpretation of the law is correct. Steer, Inc. v.
Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601,
603.
We agree with Reynolds that 5 2-15-1704(3), MCA, establishes
a three-member Board and 5 2-15-124(1), MCA, requires that one
member of the Board be a licensed attorney. We disagree, however,
with her contention that these statutes require all three members,
including the attorney member, to participate in the decision.
In construing statutes, courts are to ascertain what is in
terms or in substance contained within the statute; they may not
insert what has been omitted or omit what has been inserted.
Section 1-2-101, MCA. No language in §§ 2-15-1704(3) or 2-15-
124(1), MCA, requires the participation of all three members, or
the attorney member, in every case before the Board.
Furthermore, statutes must be construed to give effect to all
provisions wherever possible. Section 1-2-101, MCA. Under 5 2-15-
124(8), MCA, a majority of the membership of the Board of Labor
Appeals constitutes a quorum for the purpose of conducting business
and at least a majority vote of all members of the Board is
required to adopt a decision. A majority of the three-member Board
is two members. Nothing in 5 2-15-124(8), MCA, requires that the
attorney member be one of the members making up the quorum; nor
6
does the statute require the attorney member's vote to adopt a
decision of the Board. We decline to construe 5 5 2-15-1704 (3), and
2-15-124(1), MCA, as Reynolds suggests. Requiring all three
members, including the attorney member, to participate in a
decision would vitiate fi 2-15-124(8), MCA, which requires only a
majority of the Board's members to constitute a quorum to do
business and a majority vote of all members to adopt a decision.
The composition of the Board of Labor Appeals complied with 5 5
2-15-1704 ( 3 ) , 2-15-124 (I), and 2-15-124 (a), MCA, when the Board
determined that Reynolds was disqualified from receiving
unemployment insurance benefits. We hold that the District Court
did not err in concluding that the Board of Labor Appeals was
properly constituted.
Did the District Court err in determining that the Board of
Labor Appeals' findings of fact were supported by substantial
evidence?
A district court's review of a decision of the Board of Labor
Appeals is limited by 5 39-51-2410(5), MCA, which provides:
In any judicial proceeding under 39-51-2406 through 3 9 -
51-2410, the findings of the board as to the facts, if
supported by evidence, and in the absence of fraud, shall
be conclusive and the jurisdiction of said court shall be
confined to questions of law.
A finding is supported by evidence if it is supported by
substantial evidence. Substantial evidence is more than a
scintilla of evidence, but it may be less than a preponderance of
the evidence. Ward v. Johnson (l99O), 242 Mont. 225, 228, 790 P.2d
483, 485.
Pursuant to 5 39-51-2410(5), MCA, a district court is not
permitted to balance conflicting evidence in support of and in
opposition to the Board's findings, determine which is the more
substantial evidence, or consider where the preponderance of the
evidence lies. To do so would substitute the district court's view
of the evidence for that of the Board, effectively nullifying the
conclusive nature of the Board's findings provided by 5 39-51-
2410(5), MCA. Ward, 7 9 0 P.2d at 485.
This Court's review of the Board's findings is governed by the
same standard. Zimmer-Jackson v. Department of Labor and Indus.
(19881, 231 Mont. 357, 360, 752 P.2d 1095, 1098. Accordingly, we
review the record to determine whether substantial evidence
supports the Board's findings.
The Board made the following finding regarding Reynolds'
complaint that other supervisors violated "public policyvv by
monitoring conversations between employees:
The Board of Labor Appeals feels that the charge of
illegal monitoring of conversations is questionable.
Listening to others [sic] conversations may be immature
and even unethical, but it is not a violation of the
wiretap laws or F.C.C. regulations. If the claimant felt
strongly about the practice other remedies to the
situation were available. None of the employees whose
conversations were listened to complained about the
practice and no known grievance was filed.
Reynolds first contends that the absence of employee complaints or
grievances is unsupported in the record. Because she concedes that
their existence is not particularly relevant in determining whether
she had good cause to leave her employment, we need not review the
record for substantial evidence to support the finding that no
employee complained or filed a grievance about the monitoring.
Reynolds also contends that this finding, as a whole, does not
address the gravamen of her claim, which is that she left her
employment for good cause because she was subjected to retaliation.
According to Reynolds, Northwestern Telephone retaliated in
response to this complaint by reducing job responsibilities,
changing the assignment of work and vacation schedules, and denying
a merit salary increase. The only retaliation which is even
arguably supported by the record is Shirtliff's reduction of
Reynoldsf job responsibilities prior to her June, 1990, medical
leave. This alleged retaliation predates Reynolds' return to work
in February of 1991 under a new manager and her subsequent
resignation. Thus, it does not form a basis for her claim that she
had good cause to leave her employment on March 1, 1991.
The Board made the following finding concerning Reynolds'
complaint that Northwestern Telephone had mishandled a workers'
compensation claim:
The claimant was also upset that in her view the company
failed to respond properly to a workers [sic]
compensation claim. Testimony from the claimant reveals
that when she was asked who was responsible for filing
the companies [sic] answer to the claim she responded
that her responsibility was to report the incident to her
manager and that she didn't know where the claim went
from there. Her testimony also indicates that some
months prior to her termination she provided a statement
of the incident to both the union representative and to
company management. The burden of filing and following
up on the industrial accident claim falls on he [sic]
injured workman and his union.
Reynolds contends that this finding ignores Northwestern
Telephone's retaliatory response to her workers1 compensation
statement. According to Reynolds, Northwestern Telephone
terminated her leave on December 5 after it learned of her
statement instead of allowing the six-month leave to expire on
December 19. Other evidence of record, however, refutes this
testimony. A letter written by Robert Kemp, employment manager of
Pacific Telecom, Inc., Northwestern Telephone's parent company,
indicates that Reynolds was notified in December that she would be
placed on unpaid leave effective December 2 0 - The Kemp letter was
admitted as an exhibit before the Board, without objection, and
constitutes substantial evidence for the Board to disregard
Reynolds' allegation that Northwestern Telephone responded to her
workers' compensation statement by terminating her medical leave.
The Board made the following finding regarding Reynolds'
suggestion that the fire department's telephone number be added to
the "quick list":
The claimant also stated she incurred additional stress
when her suggestion that the fire departments [sic]
telephone number be returned to the "quick lists" was not
acted upon. For reasons of their own management elected
not to implement her suggestion. They are not bound to
put into practice every employee suggestion however
worthy that suggestion might be. Final decisions are a
management prerogative.
About two weeks after returning to work the claimant felt
the prior stress situations had not gone away and
tendered her resignation.
Reynolds contends that no evidence of record supports the
finding that she terminated her employment because she was unhappy
that her suggestion was not implemented. However, Reynolds
testified that she was upset when Welliver declined to implement
her suggestion and that she terminated her employment on March 1
when Laing did not respond to this and other concerns. We
determine that substantial evidence supports the finding that she
terminated her employment in part because she was unhappy that her
suggestion was not implemented.
Reynolds also contends that this finding failed to address
Northwestern Telephone's retaliatory response to her suggestion.
According to Reynolds, Northwestern Telephone responded by
withdrawing job responsibilities and benefits. Nothing in the
record supports Reynolds' assertion that the Company retaliated in
response to this suggestion. Therefore, it was unnecessary for the
Board to address the alleged retaliation relating to this
suggestion.
The Board made the following finding regarding the change in
vacation and shift scheduling:
Claimant was also opposed to the new procedure in
scheduling work shifts and vacation scheduling.
Management must have the flexibility to decide these
matters. None of the other employees affected by the
changes complained about the practice or the method of
notification.
Reynolds again contends that the Board failed to consider the
change in scheduling as a retaliatory response to her complaint
that other supervisors had made false statements regarding a
workers' compensation claim and to her own statement regarding the
claim. However, other evidence of record indicates that the
scheduling changes were not related to Reynolds in any way. The
Kemp letter indicates that the change in scheduling resulted from
a business decision. According to the letter, the assignment of
vacation and work schedules on a rotating basis met the needs of
Northwestern Telephone and complied with its policies. The letter
also indicates that Northwestern Telephone contemplated changing
the scheduling of vacation and work shifts as early as 1989, prior
to Reynoldsr workers' compensation statement. Because this
evidence refutes Reynolds' assertion that Northwestern Telephone
changed the scheduling in retaliation for her actions, the Board
could disregard the assertion,
The Board made the following finding regarding Northwestern
Telephone's reaction to Reynolds' request to terminate her
employment:
When management learned of her planned resignation they
initiated a series of conference calls in an attempt to
have her accept long term disability instead. She
declined the offers and resigned her employment.
Reynolds contends that the record does not support the finding that
management initiated the conference calls concerning the long-term
disability. We disagree. Reynolds testified that she was placed
on three conference calls with Wes Carson after she requested Laing
to terminate her employment and that Carson suggested that she go
on long-term disability.
Reynolds also contends that this finding ignores her rationale
for declining to accept long-term disability. According to
Reynolds, unrefutedtestimony establishedthat long-term disability
would result in a substantial loss of pay, terminate in two years,
and not guarantee employment at its expiration. Reynolds also
asserts that long-term disability would have been used as a device
to terminate her employment. Reynoldst reasons for declining to go
on long-term disability, however, do not form a basis for her claim
that she left her employment with good cause. Accordingly, the
Board did not have to consider those reasons in the above finding.
Finally, the Board made the following finding concerning the
conditions of Reynolds' employment after she returned to work:
The Board feels that the claimant was not treated
differently than others in the work group and that the
pay and conditions were substantially the same as before
her medical leave and continuing employment was
available.
Reynolds contends that other evidence of record contradicts
this finding. While this may be true, we have discussed above our
scope in reviewing findings of the Board, which is to review the
record only to determine whether the finding is supported by
substantial evidence. See 5 39-51-2410(5), MCA: Ward v. Johnson
(1990), 242 Mont. 225, 228, 7 9 0 P.2d 483, 485. The Kemp letter,
which reflects that Reynolds was not treated differently than other
supervisors in operator services, constitutes substantial evidence
that supports this finding.
We hold that the District Court did not err in determining
that the Board's findings were supported by substantial evidence.
Did the District Court err in determining that the Board of
Labor Appeals properly disqualified Reynolds from receiving
unemployment insurance benefits under g 39-51-2302, MCA?
The Board of Labor Appeals determined that Reynolds was
disqualified from receiving unemployment insurance benefits. The
District Court determined that the Board's denial of unemployment
insurance benefits was not erroneous under 3 39-51-2302, MCA.
Section 39-51-2302, MCA, provides in pertinent part:
Disqualification for leaving work without good cause.
(1) An individual shall be disqualified for benefits if
he has left work without good cause attributable to his
employment.
(2) He may not be disqualified if the department finds
that he left his employment because of personal illness
or injury not associated with misconduct upon the advice
of a licensed and practicing physician and, after
recovering from his illness or injury when recovery is
certified by a 1.icensed and practicing physician, he
returned to his employer and offered his service and his
regular or comparable suitable work was not available, if
so found by the department, provided he is otherwise
eligible.
Reynolds advances three separate arguments as to why she was
not disqualified from receiving benefits under 5 39-51-2302, MCA.
Reynolds first contends that she is not disqualified because she
left work with good cause as defined in 5 24.11.457, ARM. Section
24.11.457, ARM, provides in pertinent part:
(1) A claimant has left work with good cause
attributable to employment if:
(a) compelling reasons arising from the work
environment caused the claimant to leave:
(b) the claimant attempted to correct the
problem in the work environment; and
( c ) the claimant informed the employer of the
problem and gave the employer a reasonable
opportunity to correct it;
(d) the claimant left work which the depart-
ment determines to be unsuitable under 39-51-
2304, MCA.
(2) The term llcompelling reasons" as used in this rule
includes but is not limited to:
(a) undue risk of injury, illness, physical
impairment, or reasonably foreseeable risks to
the claimant's morals;
(b) unreasonable actions by the employer
concerning hours, wages, terms of employment
or working conditions, including, but not
limited to, unilaterally imposed reductions of
20% or more in the claimant's customary wages
or hours. . .
.
Reynolds asserts that Northwestern Telephone responded to her
complaints by reducing job responsibilities, changing the method of
selecting work and vacation schedules, shortening her medical leave
of absence, and denying a merit salary increase. According to
Reynolds, these alleged acts of retaliation created an undue risk
of illness and constituted unreasonable actions on the part of
Northwestern Telephone concerning hours, wages, terms of employment
or working conditions. On that basis, Reynolds contends that she
had compelling reasons and, therefore, good cause to leave her
employment under 5 24.11.457, ARM.
The existence of a compelling reason, in itself, is not
sufficient to constitute good cause under 5 24.11.457, ARM. That
rule also requires the employee to give the employer a reasonable
opportunity to correct the problem before the employee can he
considered to have left employment with good cause.
Here, even assuming that "compelling reasons1I existed,
Reynolds failed to give Northwestern Telephone a reasonable
opportunity to address her complaints. Reynolds returned from her
leave of absence on February 11. According to her testimony, she
requested Laing, the new district vice president, to terminate her
employment on February 20 when he indicated that he would not
recommend that she receive compensation for her unpaid leave and
did not know whether she should receive a merit salary increase.
Reynolds further testified that she terminated her employment on
March 1, when Lainq "did not have any answers1' to her concerns
regarding the workers' compensation claim, the monitoring of
employees' conversations, and the "quick list." Reynolds
terminated her employment less than three weeks after returning to
work.
The Kemp letter substantiates Reynolds1 failure to give
management a reasonable opportunity to address her concerns. The
letter indicates that Northwestern Telephone had thoroughly
investigated Reynolds' complaints and remained willing to continue
its dialogue with her. Furthermore, the letter indicates that
Laing was in the process of responding to her request for a merit
salary increase when she submitted her letter of termination. We
conclude that Reynolds did not have good cause to leave her
employment under § 24.11.457, ARM, because she failed to give the
new management a reasonable opportunity to address her concerns.
On that basis, Reynolds properly was disqualified from receiving
benefits under § 39-51-2302(1), MCA, which permits disqualification
when an employee leaves work without good cause attributable to the
employment.
Reynolds also contends that she left her employment on June
19, 1990, on the advice of a physician and that her regular or
comparable work was not available when she returned from the leave
of absence on February 11, 1991. According to Reynolds, the same
or comparable work was not available because she had not been
restored job responsibilities, had not been given a merit salary
increase and could no longer select work and vacation schedules on
the basis of seniority. On that basis, Reynolds contends that she
should not have been disqualified from receiving unemployment
16
insurance benefits under g 39-51-2302(2), MCA.
Section 9 39-51-2302(2), MCA, provides that a claimant may not
be disqualified from receiving unemployment insurance benefits if
the claimant has left employment on the advice of a physician and
the same or comparable suitable work is unavailable when the
claimant recovers. We note first, in this regard, that in neither
her Claimant's Discharge Statement nor her Claimant's Response to
Employer Statement did Reynolds claim that she left Northwestern
Telephone because work comparable to that she performed prior to
her leave was not available. Furthermore, as discussed above,
Reynolds returned to work as a traffic supervisor in operator
services, the position she held prior to her leave. The work
duties were essentially the same as when she left. The changes
asserted by Reynolds do not render her post-leave employment
substantially different from her employment prior to her leave.
Finally, Reynolds contends that she should not have been
disqualified from receiving the benefits under 5 39-51-2302(2),
MCA, because she continued to suffer from her medical condition
when she submitted her letter of termination on March 1. While she
may or may not have been suffering from the same medical condition,
we disagree that 9 39-51-2302(2), MCA, precludes disqualification
on these facts.
Nothing on the record before us indicates that Reynolds left
her employment on March 1 on "the advice of a licensed and
practicing physician;" nor did she subsequently return and offer
her services. Because Reynolds failed to meet these two statutory
conditions, we conclude that !
j 39-51-2302(2), MCA, does not bar her
17
disqualification from receiving unemployment insurance benefits.
We hold that the District court properly determined that the
Board of Labor Appeals' disqualification of Reynolds from receiving
unemployment insurance benefits was not erroneous under 5 39-51-
2302, MCA.
Affirmed.
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Section 2-15-1704, MCA, establishes a Board of Labor Appeals.
Subsection (4) of that statute designates the board as a
"quasi-judicial board for purposes of 2-15-124,-
Section 2-15-124, MCA, provides that:
If an agency is designated by law as a quasi-judicial
board for the purposes of this section, the following
requirements apply:
(1) The number of and qualifications of its members
are as prescribed by law. In addition to those
qualifications, unless otherwise provided by law, at
least one member shall be an attorney licensed to
practice law in this state.
(8) A majority of the membership constitutes a
quorum to do business. A favorable vote of at least a
majority of all members of a board is required to adopt
any resolutionl motionl or other decisionl unless
otherwise provided by law.
It is obvious that when the Legislature established a
requirement that quasi-judicial boards include an attorney, it was
concerned that boards which decide legal as well as factual issues
have the benefit of at least one member who is trained in the law.
In this case, it is stipulated by the parties that Dan Johns,
who was the board's chairman and its only attorney, was neither
present for Kathleen Reynolds' hearing, nor participated in the
board's determination of her rights. Therefore, the board which
denied Reynolds' claim was not properly constituted, as is required
under 5 2-15-124 (11, MCA.
The majority has set forth the proper rule for construing this
statute, but then completely ignores the rule in arriving at its
conclusion. Section 1-2-101, MCA, provides that "[iln the
construction of a statute . . . [wlhere there are several
provisions or particulars, such a construction is, if possible, to
be adopted as will give effect to all."
The only way to construe 5 2-15-124, MCA, in a way that gives
effect to both subsections (1) and ( a ) , is to hold that while a
majority of a quasi-judicial board can constitute a quorum, and
while a vote of at least a majority of the members is sufficient to
render a decision, the decision is not binding unless an attorney
licensed to practice law participated in the decision. If one of
the two members constituting a quorum is an attorney, the third
member need not be present. So long as an attorney is present for
the hearing and deliberations, he or she need not vote for the
final decision, so long as there are two other votes in support of
that decision.
This construction of 5 2-15-124, MCA, is the only way to give
effect to both subsections (1) and (8).
In addition to ignoring the rule of statutory construction
which it held is controlling, the majority opinion also ignores the
following rule of statutory construction:
In the construction of a statute, the intention of the
legislature is to be pursued if possible. When a general
and particular provision are inconsistent, the latter is
paramount to the former, so a particular intent will
control a general one that is inconsistent with it.
Section 1-2-102, MCA.
The requirement that two members of a three person board are
necessary to constitute a quorum and that two out of three votes
are necessary to render a decision is a general requirement. The
requirement that one of the members of the three member board be an
attorney is a specific rewirement. Tn this case, the majority
ignored legislative intent and elevated the general provisions
pertaining to a quorum and a majority over the specific requirement
that an attorney be a member of the Board of Labor Appeals.
The majority opinion completely defeats the Legislature's
intention that when boards such as this one decide the legal rights
of Montana's citizens, they include a member who has some working
familiarity with Montana's laws. Kathleen Reynolds did not have
the benefit of that reasonable requirement. Therefore, I dissent
from the majority opinion. I would reverse the judgment of the
District Court.
Justice William E. Hunt, Sr., joins in the foregoing dissent.
July 12, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Elizabeth A. Best
Best Law Offices
P.O. Box 2114
Great Falls, MT 59403-2114
C. Eugene Phillips
Murphy, Robinson, Heckathorn & Phillips
P.O. Box 759
Kalispell, MT 59903-0759
Howard Rubin & Amy Alpern
Amburgey, Segel & Rubin, P.C.
1750 S.W. Harbor Way, Ste. 450
Portland. OR 97201
Claren Neal, Legal Counsel
Montana Department of Labor & Industry
P.O. Box 1728
Helena, MT 59624-1728
ED SMITH
CLERK OF THE SUPREME COURT
STATE OJ? MONTANA ./