State ex rel. Bd. of Personnel Appeals v. District Court of Eleventh Judicial Dist.

• Decision Date: 15 August 1979
• Docket Number: No. 14739,14739
• Citation: 183 Mont. 223,36 St.Rep. 1531,598 P.2d 1117
• Parties: , 103 L.R.R.M. (BNA) 2297 The STATE of Montana, ex rel. the BOARD OF PERSONNEL APPEALS, Relators, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT et al., Respondents.
• Court: Montana Supreme Court

Page 1117

598 P.2d 1117

183 Mont. 223, 103 L.R.R.M. (BNA) 2297

The STATE of Montana, ex rel. the BOARD OF PERSONNEL APPEALS, Relators, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT et al Respondents.

No. 14739.

Supreme Court of Montana.

Aug. 15, 1979.

[183 Mont. 223] Jerry Painter (argued), Helena, for relators.

[183 Mont. 224] Hilley & Loring, David Paull (argued), Richard Dzivi (argued), Great Falls, for respondents.

OPINION AND ORDER

SHEEHY, Justice.

This matter comes before us on the petition of the State of Montana through its Board of Personnel Appeals as relators, asking us either to stay or vacate by writ of supervisory control or otherwise, a writ of mandate issued against BPA out of the District Court, Eleventh Judicial District, Flathead County.

In the District Court, Bigfork Teachers Association (BTA) had filed its petition for writ of mandate or other appropriate writ against Robert R. Jensen, as administrator of the Board of Personnel Appeals (BPA) requesting that he be ordered to hold a decertification election to determine that the Bigfork Area Education Association (BAEA) was no longer the bargaining agent for teachers employed in School District No. 38, Flathead and Lake Counties.

It appears that BAEA had been recognized by School District No. 38 as the exclusive representative for collective bargaining for the teachers employed in the Bigfork schools. The parties had negotiated a two year contract, beginning July 1, 1976, and were engaging in collective bargaining for a successor contract during the spring and summer of 1978. BAEA and the School District failed to reach an agreement on such successor contract.

BAEA had filed with BPA a number of unfair labor practice charges against the School District. These charges were pending before BPA at the time the petition for a decertification election was filed by BTA. The administrator took the position, and notified the parties, that until the Board's investigation and decision on the unfair labor practice charges was completed, BPA would not schedule a decertification election until it was assured "that the necessary laboratory conditions are present."

The Bigfolk Area Education Association intervened in the District Court action as an interested party.

The District Court, after hearing, argument, and submission of briefs by all parties, issued its writ of mandate requiring BPA to "forthwith conduct an election" to determine the question of the proper bargaining representative for the members of the teachers' unit.

The application of BPA to this Court for an order to stay or vacate the writ of mandate followed.

A writ of mandate is an extraordinary writ which, according to statute, may be issued by a District Court "to compel the performance of an act which the law specially enjoins as a duty resulting from an office." Section 27-26-102 MCA. Without a clear legal duty, mandamus does not lie. Cain v. Department of Health, Etc. (1978), Mont., 582 P.2d 332, 35 St.Rep. 1056. The basic question for our decision in this case therefore, is whether BPA has a present affirmative legal duty to hold a decertification election. We hold that it does not.

The "laboratory conditions" under which BPA conducts a decertification election occur where there are no pending charges against the employer, of conduct constituting an unfair labor practice. The purpose of BPA in seeking laboratory conditions is to accomplish a fair election and to determine the uninhibited desires of the employees.

In seeking the laboratory conditions, BPA is following the lead of the National Labor Relations Board which interprets and administers the Labor Management Relations Act under federal statutes, 29 U.S.C. § 141 et seq. The NLRB has adopted what it calls the "blocking charge" rule to the effect that it will not conduct an election to determine the bargaining representative of a group where there is pending against the employer charges of unfair labor practice. Application of the "blocking charge" rule by NLRB has been held to be within its administrative procedural practices. Furr's Inc. v. N. L. R. B., (10th C.A.1965), 350 F.2d 84, 59 LRRM 2769. It is said in Surprenant Mfg. Co. v. Alpert (1st C.A.1963), 318 F.2d 396, 53 LRRM 2405:

"Whenever, shortly prior to a representation election, it is charged that the employer has engaged in an unfair labor practice which might affect the outcome, the Board, upon investigation and a determination that the charge has prima facie merit, customarily postpones the election until it has been found that no unfair labor practice has been committed, or until the union waives any claim to rely upon the employer's conduct to invalidate the election. There is no provision in the statute, or even any regulation, which expressly authorizes such action, but,...