No. 13603
I N THE SUPREME COURT OF THE STATE 0FNI)PJTANA
1977
BUTTE TEACHERS' U N I O N ,
No. 332, AFL-CIO,
P l a i n t i f f and Respondent,
BOARD O EDUCATION OF SCHOOL DISTRICT
F
No. 1, S i l v e r Bow C o u n t y , Montana e t a l . ,
Defendants and Appellants.
Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
H o n o r a b l e Nat A l l e n , J u d g e p r e s i d i n g .
C o u n s e l of Record:
For Appellants:
P o o r e , McKenzie, R o t h , R o b i s c h o n a n d R o b i n s o n ,
B u t t e , Montana
Donald C. Robinson a r g u e d , B u t t e , Montana
For Respondent :
M a u r i c e F. Hennessey a n d R o b e r t McCarthy, B u t t e ,
Montana
M a u r i c e F. Hennessey a r g u e d , B u t t e , Montana
Submitted: May 2 5 , 1977
Decided : JuL 2 9 im-
Filed: JUL- 2 9
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court .
This is an appeal from a judgment of the district court,
Silver Bow County, sitting without a jury, Hon. Nat Allen, pre-
siding. The judgment ordered: (1) That the parties are bound
by the contract and are required to submit the grievances filed
by plaintiff to binding arbitration pursuant to Rule 44 of the
contract; (2) that the arbitor, pursuant to the contract, after a
hearing is empowered to make a decision as to the validity of the
grievance.
Plaintiff Butte Teachers' Union No. 332, AFL-CIO, brought
action against the Board of Education of School District No. 1
Silver Bow County, alleging defendant School Board had a contrac-
tual duty to arbitrate its decision to substitute time clocks for
sign-in sheets as a means of reporting attendance.
The suit was brought pursuant to two collective bargaining
agreements; one contract covering teachers and the other covering
secretarial, clerical and computer personnel. Each contract
contained identical provisions as they pertain to this suit:
"Rule 31 UNION RECOGNITION
"The Board recognizes the Union as the exclusive
bargaining representative for the purpose of
representing all teachers * * * as to rates of
pay, salaries, hours of employment, and all
other items and conditions of employment."
"Rule 44 GRIEVANCE PROCEDURE
"(a) A grievance shall mean a complaint by an
employee that (1) he has been treated unfairly
or inequitably, (2) there has been a violation,
misinterpretation, or misapplication of the
provisions of this agreement or of established
policy or practice.* * * "
The School Board proposed to establish a more efficient and
accurate method for teachers and all other employees of the district
to record attendance and absence from work. The time clock system
was adopted as a policy of operation and substituted for the
manual sign-in sheet. Every district employee was required to
punch-in at the beginning of each shift and all non-certified
personnel were to punch-out at the end of their shift.
The Union opposed this policy of operation contending the
time clocks were a change of the working conditions under the
contract and therefore subject to arbitration. Accordingly, the
Union felt this unilateral change not only violated the past attend-
ance procedure, but also amounted to unfair and inequitable treat-
ment. The Union requested arbitration of this change of policy.
The School Board declined to negotiate or arbitrate claiming this
change was a nonmandatory arbitration matter, and a managerial
prerogative under section 59-1603(2), R.C.M. 1947. The School
Board contended that some form of attendance procedure existed;
thus, the implementing of time clocks constituted a mere substitution
of one procedure for another as allowed under section 59-1603(2).
The Union sued to compel the School Board to submit this
change to binding arbitration under Rule 44 and Rule 31 of the
master contract. The district court ordered binding arbitration.
From that order the School Board appeals.
The issues presented are:
1. Did the district court err when it required the School
Board to submit to an arbitrator the question of whether it could
substitute time clocks for the existing attendance procedure,
pursuant to the provisions of the collective bargaining agreement
between the parties?
2. Did the district court err when it required this
issue to be the subject of negotiation, and if necessary, arbitra-
tion under the Collective Bargaining for Public Employees Act,
section 59-1601 et seq., R.C.M. 1947.
The School Board argues the district court erred in sub-
mitting the question of time clocks to arbitration. In McEwen v.
Big Sky of Montana, Inc., Mont . , 545 P.2d 665, 668,
33 St.Rep. 79, 83, this Court discussed a situation where the
determination of the district court was in question:
"An appellate court's function in a case
such as this was set forth in Hornung v. Lagerquist,
155 Mont. 412, 420, 473 P.2d 541, 546, wherein
this Court said:
" I * * * Our duty in reviewing findings of
fact in a civil action tried by the district
court without a jury is confined to deter-
mining whether there is substantial credible
evidence to support them. * * * '
"The meaning of 'substantial credible evidence'
was thoroughly considered in Staggers v. U.S.F.&G.
Co., 159 Mont. 254, 496 P.2d 1161.
"In Hellickson v. Barrett Mobile Home Transp.,
161 Mont. 455, 459, 507 P.2d 523, 525, this Court
said:
" I * * * In examining the evidence, we must
view the testimony in a light most favorable
to the prevailing party. [citations] However,
while the presumption is in plaintiff's favor,
he is also the appealing party and as such,
the burden is upon him to overcome the pre-
sumption of the correctness of the trial
court's findings of fact.'"
In reviewing the district court's findings, this Court
needs only determine whether there is substantial evidence to
support the findings. Unless there is a clear preponderance of
evidence against such findings, the Court will not reverse.
Crncevich v. Georgetown Recreation Corp., 168 Mont. 113, 541 P.2d
The evidence presented by the School Board regarding an
established sign-in attendance policy shows that only approximately
1/2 of the professional people covered by the contract used some
type of sign-in procedure. The remaining professional members of
the Union were required to do nothing.
The School Board cites Rust Craft Broadcasting of New
York, Inc. and National Association of Broadcast Employees &
~echnicians,AFL-CIO, 225 NLRB No. 65, 92 Labor Relations Reference
~ a n u a l(LRRM) 1576 (1976), as a case precisely identical to the
instant case, and, in support of its position. While the facts
are similar, a close reading reveals that in Rust Craft each
employee was required to enter his or her working time manually
on printed cards. Thus, while the change to a mechanical procedure
for recording working time marked a departure from previous prac-
tice, the rule itself remained intact.
The instant case differs factually from Rust Craft. No
attendance rule existed for each employee. The School Board failed
to show an attendance procedure rule existed and every employee
was subject to that rule. Instead, additional rules governing
employee attendance were unilaterally promulgated, which substan-
tially changed old rules on the same subject. Murphy Diesel
Company v. N.L.R.B., 454 F.2d 303; N.L.R.B. v. Amoco Chemicals
Corp., 529 F.2d 427.
The burden to overcome the correctness of the district
court's findings was upon the School Board. This presumption was
not overcome.
The School Board's second issue questions the district
court's action in requiring the substitution of time clocks for
the existing attendance procedure to be the subject of negotiation,
and if necessary, arbitration. This Court recognizes that section
59-1603(2) grants to public employers certain management preroga-
tives to operate and manage their affairs. Had the School Board
established an attendance policy applying to every member under
the union contract, then the unilateral initiating of a more
dependable method to enforce this attendance policy would have
been merely a change from previous practice, not a change from
the established rule. Had there been an established rule applying
to every union member, the substituting of time clocks as a more
efficient method to record attendance, would be a managerial pre-
rogative and not subject to mandatory and binding arbitration under
.
section 59-1603 (2)
The facts of this case do not lead to that conclusion.
The School Board initiated additional rules, substantially changing
old rules on the same subject.
The findings and conclusions of the district court are
affirmed.
- n
Chief Justice /1
Fe Concur:
J