05/04/2021
DA 20-0437
Case Number: DA 20-0437
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 107N
OFFICE OF ADMINISTRATIVE HEARINGS:
FRANCIS A. BOLTON, JOSHUA N. BOLTON,
TIM J. BYRNES, SHAWN COATES, DANIEL F.
EMETT, MICHAEL L. GIACOMINO, ROBERT
W. KENT, KEVIN S. LANE, JACOB S. PETERSEN,
DANIEL J. POWERS, MARK J. POWERS,
KEVIN J. SEYMOUR, DAVID B. STARCEVICH,
JESSE E. TRACY, CLARK R. WARD, and
RYAN P. ZEMLJAK,
Claimants and Appellants,
and
BUTTE SILVER BOW PUBLIC WORKS,
WATER UTILITY DIVISION,
Respondent and Appellee.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte/Silver Bow, Cause No. DV-19-124
Honorable Robert Joseph Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Wade J. Dahood, Jeffrey W. Dahood, Knight & Dahood, Anaconda,
Montana
For Appellee:
Cynthia L. Walker, Poore, Roth & Robinson, P.C., Butte, Montana
Submitted on Briefs: March 24, 2021
Decided: May 4, 2021
Filed:
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__________________________________________
Clerk
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Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Current and former laborers (collectively, Appellants), employed in
Butte-Silver Bow County’s Water Utility Division (BSB), appeal a judgment from the
Second Judicial District Court, Butte-Silver Bow County, which affirmed the
Final Agency Decision that Appellants were not “on call” and had been properly
compensated. We affirm.
¶3 In May 2015, Appellants filed a grievance under the grievance procedure of their
Collective Bargaining Agreement (CBA). The basis of their grievance was that in
November 2014, the Butte-Silver Bow Public Works Director unilaterally changed their
schedules without their consent and without negotiating with their Union. The change
required Appellants to take a 30-minute unpaid lunch break. The grievance was denied
by BSB in June 2015, and no further action was taken under the grievance procedure by
Appellants. In May 2017, Appellants filed wage claims with the Montana Department of
Labor and Industry alleging they were owed one hour of overtime compensation for each
shift from November 1, 2014, to May 2017. The claims were closed because the
Wage and Hour Unit lacked jurisdiction under the CBA.
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¶4 In January 2018, Appellants requested their claims be reopened for review, again
alleging they had worked through their lunch breaks and were owed overtime.
Specifically, Appellants asserted they were not completely relieved of duty during their
lunch breaks because they were still “on call.” The Wage and Hour Unit concluded the
wage claims sought overtime for lunch breaks in which Appellants were completely
relieved of their duties; concluded it did not have the proper authority to enforce the
CBA; and dismissed the wage claims. Appellants asked for a redetermination and the
claims were again dismissed.
¶5 Appellants appealed the dismissal of their wage claims and a contested hearing
was scheduled. BSB moved for summary judgment asserting: (1) the Wage and Hour
Unit did not have jurisdiction over the matter; (2) the undisputed facts established
Appellants were completely relieved of duty and that they were paid for all hours
worked; (3) that Appellants failed to exhaust their remedies under the grievance
procedure of the CBA; and (4) Appellants’ wage claims were time-barred pursuant to
§ 39-3-207(1), MCA. BSB also sought to exclude Appellants’ expert witness. On
November 9, 2018, BSB’s motion for summary judgment was denied; however, the
motion to exclude Appellants’ expert witness was granted.1
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The issue of whether the Hearing Officer’s decision to exclude Appellants’ expert witness was
clearly erroneous is not an issue before this Court on appeal. However, we note Appellants’
expert was to testify regarding whether BSB’s actions were a violation of the CBA, and not to
testify regarding statutory wage and hour issues. The Hearing Officer properly excluded the
expert witness and determined his opinions regarding whether BSB’s unilateral change without
negotiating with the Union was justified had no bearing on whether the Appellants performed
work during their 30-minute lunch period for which they were not compensated in violation of
Montana’s Wage Protection Act or the Fair Labor Standards Act.
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¶6 A hearing was held before a Hearing Officer on November 14, 2018. The
Hearing Officer determined that Appellants completed and signed daily timecards setting
forth the hours worked in a day, which were then turned in to payroll for approval.
Further, Appellants failed to present any testimony or evidence proving they were
“on call,” or engaged to wait during their 30-minute unpaid lunch, or establishing any
date on which they were required to work during their break and were not compensated.
Appellants filed a Petition for Judicial Review on October 22, 2019, in the District Court.
Oral argument was held on June 18, 2020. The District Court issued an order affirming
the Final Agency Decision issued by the Hearing Officer on July 16, 2020. On appeal,
this Court must decide whether the District Court correctly affirmed the Final Agency
Decision issued by the Hearing Officer.
¶7 This Court may not substitute its judgment for that of the agency as to the weight
of the evidence on questions of fact. Section 2-4-704(2), MCA. This Court reviews the
agency decision to determine whether the findings of fact are clearly erroneous and
whether the agency correctly interpreted the law. Mont. Solid Waste Contractors, Inc. v.
Mont. Dep’t of Pub. Serv. Regulation, 2007 MT 154, ¶ 16, 338 Mont. 1, 161 P.3d 837. A
finding of fact is clearly erroneous: (1) if the finding is not supported by substantial
evidence in the record; (2) if the fact finder misapprehended the effect of the evidence; or
(3) if a review of the record leaves the Court with a definite and firm conviction that a
mistake has been made. Owens v. Mont. Dep’t of Revenue, 2007 MT 298, ¶ 13,
340 Mont. 48, 172 P.3d 1227. “Administrative findings of fact may not be disturbed on
judicial review if they are supported by substantial evidence in the record.”
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Peretti v. Dep’t of Revenue, 2016 MT 105, ¶ 18, 383 Mont. 340, 372 P.3d 447.
“Substantial evidence is more than a mere scintilla of evidence but may be less than a
preponderance of the evidence.” Peretti, ¶ 18. If substantial credible evidence exists to
support the findings of the trier of fact, the Court may not re-weigh the evidence, but
instead must defer to the hearing examiner. Benjamin v. Anderson, 2005 MT 123, ¶ 37,
327 Mont. 173, 112 P.3d 1039. In reviewing an agency’s conclusions of law, the Court
must determine whether the agency’s interpretation and application of the law are correct.
Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 22, 353 Mont. 507, 222 P.3d 595.
¶8 The District Court was correct to affirm the Hearing Officer’s decision which
found that Appellants did not exhaust the grievance procedures within the CBA.
Grievance procedures provided for in the CBA must be exhausted when resolving
disputes between employers and employees involving alleged violations or interpretation
of the CBA. Klein v. State, 2008 MT 189, ¶ 11, 343 Mont. 520, 185 P.3d 986. The
District Court correctly concluded Appellants failed to exhaust the five-step grievance
procedure listed in the CBA. The District Court was also correct that the Wage and Hour
Unit’s jurisdiction was limited to violations of the Montana Wage Protection Act and the
Fair Labor Standards Act.
¶9 At issue here is whether the Hearing Officer correctly determined that Appellants
were not “on call” during their 30-minute unpaid lunch breaks. “Periods during which an
employee is completely relieved from duty and which are long enough to enable him to
use the time effectively for his own purposes are not hours worked.”
Admin. R. M. 24.16.1005(6)(a) (1972). “Ordinarily 30 minutes or more is long enough
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for a bona fide meal period.” Admin. R. M. 24.16.1006(2)(a) (1972). Time spent
waiting “on call” is compensable if the waiting time is spent “primarily for the
employer’s benefit and his business.” Stubblefield v. Town of W. Yellowstone,
2013 MT 78, ¶ 17, 369 Mont. 322, 298 P.3d 419. “Whether time is spent predominately
for the employer’s benefit or for the employee’s is a question dependent upon all the
circumstances of the case.” Stubblefield, ¶ 17. “The key is whether the employee was
engaged to wait, which is compensable, or whether the employee waited to be engaged,
which is not compensable.” Stubblefield, ¶ 17. The following factors are used to
determine whether someone is engaged to wait or waiting to be engaged: (1) the extent to
which there was an on-premises living requirement; (2) the extent to which there were
excessive geographical restrictions on employee movements; (3) the extent to which the
frequency of calls was unduly restrictive; (4) the extent to which a fixed time limit for on
call response was unduly restrictive; (5) the extent to which employees could easily trade
on call responsibilities; (6) the extent to which the use of a pager or cell phone could ease
restrictions; (7) the duration and danger of calls; (8) the extent to which employees
benefitted financially from the on call policy; (9) the extent to which the policy was
based upon an agreement between the parties; (10) the extent to which on call employees
engaged in personal activities during on call time. Stubblefield, ¶ 17.
¶10 The Hearing Officer found all the factors weighed in BSB’s favor. The Hearing
Officer concluded Appellants did not provide any evidence that they were not completely
relieved of duty during the 30-minute unpaid lunch break or that they performed work for
which they were not compensated. Appellants’ timecards and paystubs established they
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recorded all hours worked, they had been paid, and that they were not owed any wages.
The record establishes that the Hearing Officer correctly concluded Appellants were not
“on call,” or engaged to wait during their 30-minute unpaid lunch break, and thus were
fully compensated. There is substantial evidence that established Appellants were
permitted to spend their break for their own purposes; they were not required to stay
on-site; and, on the rare occasion when they were required to perform work during their
breaks, they were compensated with overtime pay for the time worked. For these
reasons, this Court concludes the District Court correctly affirmed the Hearing Officer’s
decision finding that Appellants were not “on call” and, if so, were properly
compensated.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶12 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
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Bolton v. Butte Silver Bow Public Works
Combined Opinion