Bonner School District No. 14 v. Bonner Education Ass'n

                                                                                          January 15 2008


                                            DA 06-0724

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2008 MT 9



BONNER SCHOOL DISTRICT NO. 14,

              Petitioner and Appellee,

         v.

BONNER EDUCATION ASSOCIATION,
MEA-MFT, NEA, AFT, AFL-CIO,

              Respondents and Appellants.




APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. ADV-2005-719
                       Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Karl J. Englund (argued), Attorney at Law, Missoula, Montana

                For Appellee:

                       Debra A. Silk (argued) and Tony C. Koenig, Montana School Boards
                       Association, Helena, Montana



                                                     Argued and Submitted: September 5, 2007

                                                                    Decided: January 15, 2008


Filed:

                       __________________________________________
                                         Clerk

Justice Brian Morris delivered the Opinion of the Court.
¶1     The Bonner Education Association (BEA) appeals from an order of the First Judicial

District, Lewis and Clark County, granting the Bonner School District No. 14’s (District)

motion for summary judgment. We reverse.

¶2     BEA presents the following issues for review:

¶3     Whether the District Court properly determined that teacher transfers and assignments

are not mandatory subjects of bargaining under Montana’s Collective Bargaining for Public

Employees Act.

¶4     Whether the District Court properly determined that the management rights clause of

the collective bargaining agreement protected the District from an unfair labor practice claim

when it transferred teachers without bargaining.

¶5     Whether the District Court properly remanded to the Hearings Officer the question of

whether a long-standing practice should be treated as an express provision of a collective

bargaining agreement.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶6     The District hired a new superintendent, Doug Ardiana (Ardiana), between the 2002-

2003 and 2003-2004 school years. Ardiana and BEA president Julie Foley (Foley) met to

discuss Ardiana’s administrative plans before the start of the 2003-2004 school year.

Ardiana informed Foley that he had reassigned teachers in other school districts in which he

had worked, and that he would consider doing so in Bonner as he thought necessary to meet

the needs of the District. The District involuntarily transferred and reassigned several

teachers at Ardiana’s direction during the 2003-2004 school year.



                                              2
¶7     The transfers and reassignments affected the subjects taught and the teachers’ areas of

expertise. The District had not involuntarily transferred or reassigned teachers within the

previous ten years. BEA responded on April 14, 2004, by filing an unfair labor practice

claim with the Board of Personnel Appeals (Board). BEA alleged that the District

improperly had refused to bargain for the transfers and reassignments. BEA alleged that the

District violated §§ 39-31-401 and 39-31-305(2) MCA, by refusing to bargain in good faith

with respect to a condition of employment.

¶8     BEA and the District were parties to a collective bargaining agreement (CBA) at the

time. The term of the CBA ran from July 1, 2002, through June 30, 2004. The CBA did not

specifically provide procedures for teacher transfers and reassignments. The CBA did

include a management rights clause that recognized the School Board’s prerogative to

manage the school district, “except as limited by explicit terms of [the CBA].”

¶9     The Board conducted a hearing to determine whether Montana law or the terms of the

CBA required the District to bargain in good faith for the transfers. The Board considered

both the explicit statutory management right to “hire, promote, transfer, assign, and retain

employees . . . ,” provided in § 39-31-303(2), MCA, and the statutory duty to bargain in

good faith for conditions of employment, provided in § 39-31-305(2), MCA. The Board

determined that involuntary teacher transfers constituted mandatory subjects of bargaining as

conditions of employment and as conditions that “can have a great impact on the well-being

of an individual teacher,” citing its own decision in Florence-Carlton Unit v. Board of

Trustees of School District No. 15-6 (1979), ULP 5-77.



                                              3
¶10    The Board also considered whether the CBA allowed the District to make involuntary

teacher transfers and reassignments. The District asserted that the CBA’s management rights

clause provided express authorization.         The clause recognized the School Board’s

“prerogative[] . . . to operate and manage the school district and retain, without limitation, all

powers, rights, authority, duties and responsibilities conferred upon and vested in it by law.

. . .” The District claimed that this portion of the CBA expressly incorporated the statutory

management rights set forth in § 39-31-303(2), MCA.

¶11    The Board rejected this interpretation of the CBA. The Board concluded that such a

broad interpretation of management rights necessarily would defeat other express provisions

of the CBA regarding teacher choice in staffing and hiring decisions. Moreover, the Board

found the CBA to be ambiguous as to the parties’ intent to incorporate the statutory

management right. The Board also concluded that a teacher’s right to continue teaching a

subject or a grade represented a “professional advantage” explicitly preserved and protected

under the CBA.

¶12    The Board finally determined that the CBA’s integration clause and the management

rights clause did not constitute a waiver of BEA’s right to bargain for transfers and

reassignments. The Board applied a federal interpretative scheme that considered the

parties’ past bargaining history and the absence of an express waiver of BEA’s right in the

CBA. The Board determined that the parties past bargaining practice of not addressing

transfers and reassignments and the absence of an express waiver preserved BEA’s right to

bargain for transfers and reassignments in the CBA. The Board therefore concluded that the



                                                4
District committed an unfair labor practice when it transferred or reassigned teachers without

bargaining with BEA.

¶13    The District petitioned the District Court for judicial review. Both parties moved for

summary judgment. The District Court determined that the statutory management right

contained in § 39-31-303, MCA, expressly reserved to the District the right to transfer or

assign involuntarily as evidenced by management’s “prerogative[] . . . [to] hire, promote,

transfer, assign, and retain employees . . . .” The District Court concluded that only “other

working” conditions not expressly listed under § 39-31-303, MCA, represented mandatory

subjects of collective bargaining.

¶14    The District Court also determined that the CBA’s management rights clause and the

statutory management right authorized the District to transfer and assign unilaterally absent

an express provision requiring bargaining for teacher transfers. The District Court declined

to consider whether BEA had waived its right to bargain for transfers and assignments in

light of its decision that the transfers and assignments fell within the District’s management

rights. Finally, the District Court remanded to the hearing examiner the question of whether

the District’s long-standing practice of not making unilateral transfers without bargaining

should be treated as though it constituted an express term of the CBA. BEA appeals.




                                STANDARD OF REVIEW

¶15    A district court reviews an administrative agency’s findings of fact to determine

whether they are clearly erroneous in view of the reliable, probative, and substantial evidence
                                              5
in the whole record. A district court will uphold an agency’s conclusion of law if the

agency’s interpretation of the law is correct. We in turn employ the same standards when

reviewing a district court’s decision. Roos v. Kircher Public School Bd., 2004 MT 48, ¶ 7,

320 Mont. 128, ¶ 7, 86 P.3d 39, ¶ 7. The interpretation of a collective bargaining agreement

provision presents a question of law that this Court reviews to determine if it is correct.

Hughes v. Blankenship, 266 Mont. 150, 154, 879 P.2d 685, 687 (1994).

                                       DISCUSSION

¶16    Whether the District Court properly determined that teacher transfers and

assignments are not mandatory subjects of bargaining under Montana’s Collective

Bargaining for Public Employees Act.

¶17    Section 39-31-305(2), MCA, obligates a public employer to bargain “in good faith

with respect to wages, hours, fringe benefits, and other conditions of employment . . . .” This

mandate is virtually identical to the collective bargaining mandate in title 29, section 158(d)

of the United States Code, a section of the federal National Labor Relations Act (NLRA).

Section 158(d) provides that the parties must negotiate “in good faith with respect to wages,

hours, and other terms and conditions of employment . . . .” 29 U.S.C. § 158(d). An

employer commits an unfair labor practice under § 39-31-401(5), MCA, if it refuses to

negotiate in good faith on any of these subjects. Neither the Montana Collective Bargaining

for Public Employees Act, nor the NLRA defines “other conditions of employment.” We

have not had the opportunity yet to examine the scope of “other conditions of employment.”




                                              6
¶18    This Court has looked previously to federal courts’ construction of the NLRA as an

aid to interpretation of the Montana Public Employees Collective Bargaining Act. Small v.

McRae, 200 Mont 497, 502, 651 P.2d 982, 985 (1982) (citing State, Dept of Hwys. v. Public

Employees Craft Coun., 165 Mont. 349, 529 P.2d 785 (1974). The similarity between § 39-

31-305(2), MCA, and 29 U.S.C. § 158(d), and the fact that we have not yet explored the

scope of “other conditions of employment,” leads us to look to these federal decisions for

instruction.

¶19    The U.S. Supreme Court and the National Labor Relations Board (NLRB) have

construed conditions of employment broadly for purposes of the collective bargaining

mandate. For example, the Court in Fibreboard Corp. v. NLRB, 379 U.S. 203, 209-16, 85 S.

Ct. 398, 402-05 (1964), stated that the policy of fostering “industrial peace” represents a

primary consideration when classifying a bargaining subject as a condition of employment

under the NLRA. Similarly, the Court in Ford Motor Co. v. NLRB, 441 U.S. 488, 495, 99 S.

Ct. 1842, 1848 (1979), pronounced that the courts must show deference to the NLRB’s

classifications of bargaining subjects as conditions of employment. In Ford Motor Co.,

where the U.S. Supreme Court held that the setting of food prices for in-plant meals for

employees constituted a condition of employment, it described conditions of employment as

matters “plainly germane to the working environment,” and “not among those managerial

decisions which lie at the core of entrepreneurial control.” Ford Motor Co., 441 U.S. at 498,

99 S. ct. at 1850 (citing Fibreboard Corp., 379 U.S. at 222-23, 85 S. Ct. at 409) (internal

quotation marks omitted). Managerial decisions that “lie at the core of entrepreneurial

control,” as distinguished from conditions of employment, include those things related to the
                                             7
“basic scope of the enterprise. . . .” Fibreboard Corp., 379 U.S. at 223, 85 S. Ct. at 409

(Stewart, J. concurring).

¶20    The federal courts and the NLRB have determined that a diverse range of issues

qualify as conditions of employment, and thus constitute mandatory bargaining subjects.

The NLRB in Pepsi-Cola Bottling Co. of Fayetteville, 330 NLRB 900, 902-03 (2000), held

that telephone access, break policies, and accounting for product shortfalls qualify as

conditions of employment under the NLRA. Free agency and reserve issues in professional

baseball constitute conditions of employment under the NLRA. Silverman v. Major League

Baseball Player Comm., 67 F.3d 1054, 1060-62 (2d Cir. 1995). Rental rates for company

houses also represent conditions of employment under the NLRA. American Smelting and

Refining Co. v. NLRB, 406 F.2d 552, 553-55 (9th Cir. 1969).

¶21    The federal courts and the NLRB, in early cases interpreting the scope of the NLRA,

specifically have held that employee transfers constitute conditions of employment that must

be bargained under the NLRA. In Rapid Roller Co. v. NLRB, 126 F.2d 452, 457-60 (7th Cir.

1942), the court determined that transferring employees from department to department

constituted a condition of employment that required collective bargaining. The NLRB held

in In re U.S. Automatic Corp., 57 NLRB 124, 133-35 (1944), that even transfers of non-

union employees presented proper subjects of mandatory collective bargaining. And in

Inland Steel Co. v. NLRB, 170 F.2d 247, 252-53 (7th Cir. 1948), the court determined that a

related bargaining subject, seniority, posed a mandatory bargaining subject because requiring

negotiation provides “protection of employees against arbitrary management conduct in

connection with hire, promotion, demotion, transfer and discharge . . . .” (emphasis added).
                                             8
¶22    We agree with those early federal NLRA decisions that employee transfers and

reassignments, like those at issue in this case, constitute conditions of employment. The

teacher transfers in Bonner were “plainly germane to the working environment,” perhaps

more plainly so than the in-plant meal prices for employees in Ford Motor Co. Ford Motor

Co., 441 U.S. at 498, 99 S. Ct. at 1850. The involuntarily transferred Bonner teachers

experienced changes in the subjects they were expected to teach, the number of subjects they

were expected to teach, and the abilities and special needs of the students they were expected

to teach. The Board recognized the importance of a teacher’s particular assignment. The

Board noted the expertise that teachers acquire over years of teaching the same subject, the

supplies and materials pertinent to each subject (sometimes purchased with their own funds),

and the value of the continuing education unique to their particular subject or grade level.

¶23    The teacher transfers did not concern the “basic scope of the enterprise,” and thus did

not lie “at the core of entrepreneurial control.” Fibreboard Corp., 379 U.S. at 223, 85 S. Ct.

at 409. The transfers did not concern the subjects being taught at the school. The transfers

concerned who would teach those subjects. The transfers did not concern which grades were

taught at the school. The transfers concerned who would teach those grades. The scope of

the school’s enterprise remained the same – educating students in grades kindergarten

through eight. The conditions changed under which its employees were expected to work.

¶24    We hold that teacher transfers and reassignments constitute “other conditions of

employment” as contemplated by § 39-31-305(2), MCA. This interpretation comports with

the policy goals pronounced by the legislature in enacting the collective bargaining statutes.

Section 39-31-101, MCA, articulates that the overarching policy behind the Collective
                                              9
Bargaining for Public Employees Act encourages “the practice and procedure of collective

bargaining to arrive at friendly adjustment of all disputes between public employers and the

employees.” This policy mirrors the U.S. Supreme Court’s decision in Fibreboard, in which

it held that fostering “industrial peace” must be a primary consideration in determining

whether an issue constitutes a condition of employment under the NLRA. Fibreboard Corp.,

379 U.S. at 209-15, 85 S. Ct. at 402-06.

¶25    The District points out that the NLRA lacks a management rights provision that

corresponds to § 39-31-303, MCA. The District argues that this omission precludes us from

analogizing to federal law concerning topics deemed to be conditions of employment and

therefore subject to mandatory collective bargaining. The Montana management rights

provision recognizes, in pertinent part, the “prerogatives of public employers to operate and

manage their affairs in such areas as, but not limited to . . . hire, promote, transfer, assign,

and retain employees.” Section 39-31-303(2), MCA. BEA acknowledges this distinction

between Montana and federal law, but asserts nevertheless that federal court and NLRB

decisions should guide our decision in light of the fact the U.S. Supreme Court has

recognized an implicit and inherent right to manage existing in the NLRA.

¶26    BEA cites First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S. Ct. 2573

(1981), as an example of the broad management rights recognized by federal courts. The

Court held that management retains the right under the NLRA to manage “free from the

constraints of the bargaining process to the extent essential for the running of a profitable

business.” First National Maintenance, 452 U.S. at 678-79, 101 S. Ct. at 2580-81. The

Court concluded that the “employer’s need for unencumbered decisionmaking” empowered
                                              10
the employer to discharge a number of its employees without bargaining, notwithstanding

the statutory duty. First National Maintenance, 452 U.S. at 679, 101 S. Ct. 2581.

¶27    A comparison of the implicit federal management right recognized by the federal

courts with the explicit management right provided in § 39-31-303(2), MCA, reveals the

undefined federal right to be more expansive. The federal management right contains no

defined scope or outer limit. The federal courts nevertheless have determined that employers

have a duty to bargain for employee transfers under the NLRA. Rapid Roller Co., 126 F.2d

at 457-60; In re U.S. Automatic Corp., 57 NLRB at 133-35; Inland Steel Co., 170 F.2d 252-

53. The Montana management rights provision, on the other hand, discusses a “prerogative”

rather than a “right,” and defines the particular subjects to which it applies.

¶28    The District urges us to rely on federal authority interpreting management rights

clauses in collective bargaining agreements that employ language similar to the language in

§ 39-31-303, MCA. The District contends that those cases consistently have determined that

management rights clauses permit employers to exercise expressly reserved rights without

first bargaining. The District argues that Uforma/Shelby Business Forms, Inc. v. NLRB, 111

F.3d 1284, 1290 (6th Cir. 1997), and NLRB v. U.S. Postal Service, 8 F.3d 832, 838 (D.C. Cir.

1993), should guide our decision. The District’s reliance on Uforma and U.S. Postal Service

falls short.

¶29    Uforma involved a waiver by the union. The union’s express waiver of its right to

bargain collectively by agreeing to “clear and unmistakable” language in the collective

bargaining agreement sustained the Uforma court’s conclusion. Uforma, 111 F.3d at 1290.

The Court in U.S. Postal Service decided the case primarily on the basis of whether the union
                                              11
had lost its right to bargain for a subject by previously agreeing to its inclusion in the

management rights clause of a collective bargaining agreement. U.S. Postal Service, 8 F.3d

at 836-38. The current controversy involves no similar bargaining or express waiver of

rights.

¶30       Moreover, as a matter of statutory construction, the statutory management rights

provision does not absolve public employers from their duty to bargain for employee

transfers. The management rights provision refers to management’s “prerogative[]” to “hire,

promote, transfer, assign, and retain employees.” Section 39-31-303(2), MCA. Both BEA

and the District urge that we interpret “prerogative” according to the plain dictionary

meaning of the term. Both rely on substantially similar definitions of prerogative as “an

exclusive or special right, power or privilege.”

¶31       The District contends that an exclusive right, power, or privilege means an unlimited

right with regard to the subjects listed in the management rights provision regardless of the

duty to bargain under § 39-31-305, MCA. The District argues that the provision absolves it

of a duty to bargain for all subjects listed. BEA counters that the prerogative means the

exclusive right to make a final decision in the matter. BEA points out that this right to

decide remains intact whether the statute requires the employer to bargain. BEA asserts that

a bargaining mandate only obligates the employer to meet with the employees’

representative and negotiate in good faith. The statute mandates the process. It requires

management to concede nothing. We agree.

¶32       Such an interpretation avoids unnecessary conflict between the two statutes. It also

serves both the practical necessity for management rights and the stated purpose of the
                                               12
Montana Collective Bargaining for Public Employees Act “to encourage the practice and

procedure of collective bargaining to arrive at friendly adjustment of all disputes between

public employers and their employees.” Section 39-31-101, MCA.              In light of our

determination that § 39-31-305(2), MCA, requires the District to bargain regarding teacher

transfers, we hold that the District Court improperly determined that the District was not

required to bargain for teacher transfers and reassignments under the Montana Collective

Bargaining for Public Employees Act.



¶33    Whether the District Court properly determined that the management-rights clause of

the collective bargaining agreement between the District and BEA protected the District

from an unfair labor practice claim when it transferred teachers without bargaining.

¶34    The rules of contract construction guide us in determining whether the CBA permitted

the District to transfer teachers without bargaining. See e.g. Kuhr v. City of Billings, 2007

MT 201, ¶ 18, 338 Mont. 402, ¶ 18, 168 P.3d 615, ¶ 18. We long have recognized, however,

the importance of promoting “the practice and procedure of collective bargaining to arrive at

friendly adjustment of all disputes between public employers and their employees.” Small,

200 Mont. at 502, 651 P.2d at 987 (citing § 39-31-101, MCA). This same policy animates

federal labor law. This Court previously has looked to federal courts for guidance in

interpreting collective bargaining agreements. Small, 200 Mont. at 502, 651 P.2d at 985.

“[R]efusals to confer and negotiate had been one of the most prolific causes of industrial

strife” before the advent of modern labor principles. Fibreboard Corp., 379 U.S. at 211, 85

S. Ct. at 403. This overarching policy goal also guides our consideration of the CBA.
                                             13
¶35    The District argues that the CBA’s management rights provision explicitly provides

the District with authority to make unilateral teacher transfers without bargaining. This

provision, Article IV, § 4.1 of the CBA, provides as follows:

       [BEA] recognizes the prerogatives of the [District] to operate and manage
       the school district and retain, without limitation all powers, rights,
       authority, duties and responsibilities conferred upon and vested in it by law,
       except as limited by explicit terms of this agreement.

The District contends that the prerogatives recognized in this provision necessarily must

include the right to transfer because it is not “limited by explicit terms” elsewhere in the

CBA. The District further argues that the provision will be rendered meaningless unless we

interpret the provision in this way. The District contends that our failure to apply this

interpretation would violate the rule of contract construction that provides that “[t]he whole

of a contract is to be taken together so as to give effect to every part if reasonably practicable

. . . .” Section 28-3-202, MCA.

¶36    Reading the CBA as a whole, however, reveals that two other clauses figure

prominently. The CBA contains an integration clause, commonly known as a “zipper

clause,” that provides that the parties have subsumed all agreements into the CBA.

International Union v. Murata Erie North America, 980 F.2d 889, 903 (3rd Cir. 1992). A

union that agrees to a zipper clause generally waives its right to bargain for otherwise

mandatory subjects of bargaining that might not be included in the agreement. International

Union, 980 F.2d at 903.

¶37    The zipper clause provides:

       [The CBA constitutes] the full and complete [a]greement between the
       [District] and the BEA. The provisions herein relating to salary, hours, and
                                               14
       other terms and conditions of employment supersede any and all prior
       agreements, resolutions, practices, rules or regulations concerning salary,
       hours, and other terms and conditions of employment inconsistent with these
       provisions.

The clause, read in isolation, could be interpreted to waive BEA’s statutory right to

bargain for teacher transfers and assignments as terms and conditions of employment.

International Union, 980 F.2d at 903. We do not read a particular clause in isolation,

however, as we must interpret the CBA as a whole. Section 28-3-202, MCA.

¶38    The CBA also contains a professional advantages clause. The clause provides that the

CBA “shall not be interpreted to deprive teachers of professional advantages heretofore

enjoyed, however, this does not incorporate these advantages into this contract.” The Board

determined that “the ability to continue to teach in a subject or grade of a member’s choice”

constitutes a professional advantage protected under that clause. We have not yet had an

opportunity to interpret the scope of a professional advantages clause. Other jurisdictions

have interpreted a professional advantages clause as a condition that would “increase [a

teacher’s] employability” in his field, and a condition that would “aid [a teacher] in getting

and retaining subsequent employment in [the] teaching profession.” E.g. Westbrook Sch. v.

Westbrook Tchrs. Ass’n, 404 A.2d 204, 212 (Me. 1979).

¶39    We must interpret the CBA in a manner that “give[s] effect to every part if reasonably

practicable . . . .” Section 28-3-202, MCA. We noted above that transfers and reassignments

constitute conditions of employment, in part, because of the expertise teachers acquire over

years of teaching the same subject, and the value of the continuing education unique to their

particular subject or grade level. ¶ 22. Expertise and education represent conditions that

                                             15
could increase employability or aid “in getting and retaining subsequent employment in the

teaching profession.” Westbrook Sch., 404 A.2d at 212. The CBA’s professional advantages

clause could be interpreted to protect teachers from involuntary teacher transfers and

reassignments.

¶40    The zipper clause and the professional advantages clause in the CBA present us with

conflicting provisions. The zipper clause has the general effect of waiving mandatory

bargaining subjects not specifically contained in the CBA. In particular, it supersedes past

practices concerning conditions of employment. The District had not transferred or

reassigned teachers for the past ten years. ¶ 7. The zipper clause could be interpreted to

waive BEA’s right to bargain for teacher transfers or reassignments.             The CBA

simultaneously protected teachers from unilateral changes to conditions that concerned

professional advantages. The expertise and education acquired over years of teaching the

same subject could be interpreted to constitute a protected professional advantage.

¶41    The CBA, read as a whole, does not reveal conclusively whether the zipper clause

waived BEA’s right to bargain for teacher transfers. Likewise, the CBA does not reveal

whether the professional advantages clause specifically protected teachers from unilateral

transfers or reassignments. The CBA’s conflicting provisions lend themselves to more than

one meaning. The CBA is ambiguous as a matter of law. See Mary J. Baker Revoc. Trust v.

Cenex Harvest, 2007 MT 159, ¶¶ 20-21, 338 Mont. 41, ¶¶ 20-21, 164 P.3d 851, ¶¶ 20-21.

¶42    Section 39-31-305(1), MCA, provides that it is the duty of a public employer to

bargain in good faith. The statutory duty to bargain includes a duty to bargain as to “any

question arising” under the CBA. Section 39-31-305(1), MCA. Ambiguity in the zipper
                                            16
clause and the professional advantages clause constitutes a “question arising” under the

CBA. The CBA provides no clear mechanism to resolve the correct interpretation of those

competing provisions. Section 39-31-401(5), MCA, provides that it is an unfair labor

practice to refuse to bargain collectively in good faith.

¶43    The District overstates the concern that to require collective bargaining for teacher

transfers would defeat its expressly reserved management right under the CBA. To require

collective bargaining on a subject, in fact, has no effect on the employer’s fundamental right

to manage and operate. Collective bargaining does not impose on management the duty to

concede to union demands. Collective bargaining merely means, under Montana law, “to

meet at reasonable times and negotiate in good faith . . . .” Section 39-31-305(2), MCA. It

obligates the employer to no particular outcome. It merely obligates the employer to

participate in good faith in the actual collective bargaining process.

¶44    We note that bargaining also promotes the purpose of the Montana Collective

Bargaining for Public Employees Act to “remove[] certain recognized sources of strife and

unrest” and “arrive at friendly adjustment of all disputes between public employers and their

employees.” Section 39-31-101, MCA. Similarly, Congress, in its statement of policy goals

for the NLRA, emphasized that “[t]he denial by some employers of the right of employees to

organize and the refusal by some employers to accept the procedure of collective bargaining

lead to strikes and other forms of industrial strife or unrest . . . .” 29 U.S.C. § 151.

Collective bargaining provides a process that places little actual burden on the employer, but

can do so much to “defuse[] and channel[] conflict between labor and management.” First

National Maintenance, 452 U.S. at 674, 101 S. Ct. at 2578. We determine that the District
                                              17
committed an unfair labor practice when it refused to bargain in good faith for teacher

transfers and assignments, in light of the ambiguity in the CBA created by the competing

provisions of the zipper clause and the professional advantages clause.

¶45    Whether the District Court properly remanded to the Hearings Officer the question of

whether a long-standing practice should be treated as an express provision of a collective

bargaining agreement.

¶46    BEA argues on appeal that the District Court improperly remanded to the Hearings

Officer the issue of whether the District’s long-standing practice of not unilaterally

transferring teachers required it to bargain for teacher transfers. We need not address this

issue because we have held that both the Montana Collective Bargaining for Public

Employees Act and the CBA require the District to bargain.

¶47    Reversed.


                                                               /S/ BRIAN MORRIS


We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




                                            18