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No. 83-232 IN THE SUPFGME COURT OF THE STATE OF MONTASA 1984

IN THE 1G.TTER OF THE WAGE CLAIMS OF PAUL CHAGNON and LINDEN CHAGNON,

Petitioners and Respondents,

HARDY CONSTRUCTION COMPANY, and the LABOR STANDARDS DIVISION, DEPT. OF LABOR AND INDUSTRY, STATE OF MONTANA, Respondents and Appellants.

APPEAL FROM:

District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable Chan Ettien, Judge presiding.

COUNSEL OF RECORD: For Appellants: McNamer, Thompson & Cashmore; James Thompson argued for Bardy Construction, Billings, Montana William P. Richardson aruged, Dept. of Labor, Helena, Montana For Respondents: Altman & Lilletvedt; J. Brian Lilletvedt argued for Paul & Linden Chagnon, Havre, Montana

Submitted: 11/28/83 Decided: 3/23/84

Filed:

Clerk

Mr. Chief Justice Frank T. Haswell delivered the Opinion of the Court. This
js

an appeal from an order of the District Court

of Hill County reversing the determination of the hearing officer of the Department of Labor and Industry. We reverse

the District Court and reinstate the determination of the Department of Labor and Industry. This case arose from wage claims which were filed by Paul Chagnon and Linden Chagnon against Hardy Construction Company, with the Commissioner, Department of Labor and

Industry, State of Montana.

An administrative hearing was

held on July 8, 1982, before John Andrew, a hearing officer for the Commissioner, in Havre, Montana. Those present at the hearing included Paul and Linden Chagnon and their attorney, Les Hardy, president of Hardy Construction, and its attorney, as well as Dave Roseman, business manager of the Central Montana District Council of Carpenters and Larry Paulson, Superintendent for Hardy Construction at the Buttrey/Osco project in Havre. hearing, the hearing officer heard During the

the testimony of the

Chagnons, Hardy, Roseman and Paulson and evidence was introduced both claims. The Commissioner's hearing officer issued findings of fact, conclusions of law and an order on July 16, 1982. The in support of and in opposi-tion to the wage

hearing officer ordered that the wage claim of the Chagnons be dismissed. On August 11, 1982, the Chagnons filed a petition for judicial review with the District Court for the Twelfth Hardy and After

Judicial District, in and for the County of Hill.

the Commissioner appeared and answered the petition.

briefs and arguments, the District Court issued an order reversing the order of the Com.issioner and. awarding wages, penalties, costs and attorney fees to the Chagnons. Both the

Commissioner and Hardy now appeal the District Court's order. Several issues are raised by the parties but essentially one is dispositive of the matter: Did the District

Court err under section 2-4-704, MCA, by substituting its jud.gment for the determination of the Department. The scope and appropriate standard of judicial review of an administrative agency decision is set forth in section 2-4-704, MCA:
(1) The review "Standards of review. shall be coniucted by the court without a jury and shall he confined to the record. In cases of a.lleged irregularities in procedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.

"(2) The court may not substitute its judgment - - - - the agency - - for that of as to the weiaht of - - - the evidence on questions of fact. The court mav affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

" (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;" (Empha-sis added. )
The District Court reversed. the Department of Labor and Industry and substituted its own findings on the basis of section 2-4-704(e), MCA, which allows such action if the agency's decision is

". . .

clearly erroneous in view of the

reliable, probative, and substantial evidence on the whole

record."

While the standard cited by the court is proper, we

find nevertheless that under the circumstances of this case the District Court erred in substituting its judgment in place of that of the agency. We have discussed the proper

standard of review in previous cases and in Martinez v. Yellowstone County Welfare Department (~ont.1981), 626 p.2d 242, 38 St.Rep. 474, we stated the following: "In reaching its determination to reverse, the District Court reviewed the entire record, and in effect, redetermined the credibility of the witnesses and the weight given to evidence by the Commission. The scope of review of a District Court regarding agency determinations is governed by section 2-4-704, MCA

...

"The effect of this provision [of the sta.tute1 is to limit a reviewing District Court to a determination of whether or not substantial evidence exists to support the agency decision. "This Court spoke to that issue in Standard Chemical Manufacturing Company v. Employment Security Division (1980), Mont , 605 P.2d 610, 613, 37 St.Rep. 105, 108, stating that: In questions of this kind, where the agency is entrusted and charged with administering the statute and making necessary, initial factual determinations, it is well settled that a reviewing court's function is limited. Where factual determinations are warranted by the record and have a reasonable basis in law, they are to be accepted. It is not the court's function to substitute its own inferences of fact for those of an administrative tribunal or agency, where facts are supported by the evidence in the record.'"
11

I

. ...

Further, in Bronken's Goodtime Co. v. Bishop 1982), 664 P.2d 292, 39 St.Rep. 2165, we stated:

(Mont.

". . A court may not reverse the agency decision unless substantial rights of the appellant have been prejudiced because the agency determination was clearly erroneous in light of the reliable, probative and substantial evidence

.

(section 2-4-704 (2)(e), MCA) . Also, a reviewing court may not substitute its judgment for that of the agency's as to the weight of the evidence on questions In of fact (section 2-4-704(2), MCA). Montana Wilderness Association [State ex rel. Montana Wilderness et al. v. Board of Natural Resources and Conservation et al. (Mont. 1982), 648 P.2d 734, 39 St.Rep. 12381, supra, we noted that our review was 1-imitedto determining whether the administrative body's decision was supported by substantial evidence." We have reviewed the transcript of testimony and documentary evidence presented. There is clearly sufficient

evidence to support the hearing officer's determination in favor of Hardy. The scope of review of administrative agency decisions is exceedingly clear. In addition, we have consistently he1.d substitute its own Consequently, we hold that

that the District Court cannot judgment for that of the agency.

it was error for the District Court to reverse the Department of Labor and Industry's ruling and we herewith reverse the judgment of the District Court and reinstate the determination of the Department. The second issue is whether attorney fees should be awarded and, if so, to whom they should be given. It is a

well-settled principle that attorney fees are allowable only when provided for by cont.ract or statute. Thornton v. Corn-

missioner of Department of Labor 2nd Industry (Mont. 1980), 621 P.2d 1062, 37 St.Rep. 2026. In this case, section

39-3-214, MCA, represents the authority for a determination on this issue. It reads, in pertinent part, as follows:

"Court costs and attorneys' fees. (1) Whenever it is necessary for the employee to enter or maintain a suit at 1a.w for the recovery or collection of wages due as provided for by this part, a resulting judgment must include a reasonable attorney's fee in. favor of the successful

party, to be taxed as part of the costs in the case. "(2) Any judgment for the plaintiff in a proceeding pursuant to this part must include all costs reasonably incurred in connection with the proceeding, including attorneys' fees." We have held previously that an administrative hearing is not a "suit at law." In addition, a "determination" made Thornton, 621 P.2d

by the Commissioner is not a "judgment." at 1066.

Therefore, it would be improper to award fees to

any party for services rendered at the administrative agency level. However, section 39-3-214, MCA, provides that the

resulting judgment of a suit at law include reasonable a.ttorney fees in favor of the successful party. Consequently,

since Hardy Construction is the successful party, we hereby award attorney fees for services rendered at both the District Court and Supreme Court levels of the proceedings. In summary, we hold: (1) The District Court erred in reversing the determination of the Department of Labor and Industry and substituting its judgment for that of the agency; and, (2) Attorney fees be awarded Hardy Construction for services rendered for the District Court and Supreme Court proceedings. Reversed and remanded to the District Court for determina.tion of attorney fees.

2 Chief Justfce ~ 4,W!&J 4

We concur:

Justices

Mr. Justices Shea, Sheehy and Morrison dissent and will file written dissents later.

D I S S E N T O F MR.

J U S T I C E JOHN C .

SHEEHY

I N THE MATTER OF THE WAGE CLAIMS OF PAUL CHAGNON a n d LINDEN CHAGNON, P e t i t i o n e r s and. R e s p o n d e n t s ,
VS.

HARDY CONSTRUCTION COMPANY, and t h e LABOR STANDARDS D I V I S I O N DEPARTMENT O F LABOR AND INDUSTRY, STATE O F MONTANA,

,

R e s p o n d - e n t s and A p p e l l a n t s .

Majority Opinion Decided:

March 23,

1984

Mr. Justice John C. Sheehy, dissenting to the majority opinion, a.nd dissenting to the order denying rehearing:

The majority opinion is a faulty judicial effort.

It

purports to find "clearly sufficient evidence," upon which to support Hardy. the hearing officer's determination in favor of

Yet not a

smidgeon of that "clearly sufficient"

evidence is set forth in the majority opinion in support of the conclusion. Because I find the facts completely supportive of the decision made by the District Court in reversing the hearing officer, I dissent to the majority opinion; and because of my optimistic belief that the majority must have overlooked

these substantive facts, I would grant rehearing. Here is what happened Agency transcript: Paul Chagnon and Linden Chagnon, father and son, reside in Havre, Montana. Hardy Construction Company has its in this case, taken from the

principal office in Billings. the general contractor

Hardy Construction Company was in construction of the

involved

Buttrey-Osco building in Havre in 1981. Larry Paulson was the superintendent on the Buttrey-Osco job for Hardy Construction. Paul Chagnon obtained employment

from Larry Paulson on the Havre job, commencing April 5, 1981. Paul Chagnon requested employment for his son, Linden, Linden began

from Mr. Paulson as an apprentice carpenter. work on July 5, 1981.

Paul worked on the job through

September 20, 1981; Linden worked through September 20, 1981, and did some additional. work during the week of October 11, 1981.

Paul and Linden were members of the local carpenters trade union. At the time that Paul sought employment from

Hardy Construction, Larry Paulson asked Paul if he were a member of the carpenters union to which Pzul replied he was. Paulson at that time stated that Hardy Construction was also union. When Linden requested employment, he was also asked The

if he was a union member and Linden replied that he was.

union pay scale for Paul Chagnon, a carpenter, was $11.13 an hour. The prevailing union rate for a carpenter-apprentice

was $9.54. It developed that although Hardy Construction Company operates as a union employer in the Billings area, it did not do so in Havre, although on occasions, it signed "short agreements," that is, agreements to be bound by the union prevailing wage rates and fringe benefits in the area where the job was being completed. When Paul Chagnon received his first paycheck, he

discovered it was computed at a rate of 50 cents an hour under the union scale. He immediately told the job

superintendent about the shortage, and Paulson said he would take care of it. The shortage was not cleared up the first

week and Paul threatened to quit the job if Hardy was not going to pay him union scale. The job superintendent did get

the shortage resolved and Paul Chagnon was paid back-pay to make up the difference between what he had been paid and the union scale, and his next checks arrived at the proper union rate. On May 1, 1981, the union scale increased for

carpenters to $11.93 per hour.

The increased rate was not

automatically paid by Hardy Construction; again Paul brought this to the attention of Paulson. care of it. Paulson said he would take

Paul Chagnon wrote on his time card the new

union

scale.

The

information

went

into

the

Ilardy

Construction Company main office in Billings.

The next week

Hardy Construction Company paid Paul at the new rate. Linden Chagnon's paychecks were computed always at the rate of $9.54 an hour, the prevailing union rate for an

apprentice carpenter. In addition to the hourly rate, the union pay package for carpenters and apprentices included pensions, health and welfare contributions to be paid by the employer. Un.til llay

1, 1981, the hourly value of these fringe benefits for a carpenter was $2.05 and after Ma.y 1, 1981., was $2.15. For an

apprentice, such as Linden, the fringe benefits had an hourly value of $2.15. The union package also required that the employer deduct 50 cents an hour from each employee for a vacation trust fund. This is a deduction from the employees' pay and not a Hardy Construction, in this

contribution by the employer.

case, deducted 50 cents an hour from both Paul and Linden for each hour they worked. for Hardy Construction; there was no agreement or discussion between them about such deductions for vacation pay. It was done automatically by Hardy

Construction Company.

This would have been true in the case

of any union job, and Paul and Linden believed that these deductions for vacation were being paid into the union

vacation trust fund. The fringe benefits are contributions made by the

employer directed to the union.

The contributions a.re not It was not

reflected on the pay stubs of the employees.

until Paul a.nd Linden saw a union publication some three months later that they realized that the fringe benefits ha.d not been paid on their behalf by Hardy Construction Company.

Again, Paul Chagnon complained to Larry Paulson and again threatened to quit if Hardy Construction was not going to pay the union package. Larry Paulson told Paul Chagnon that Chagnon did not learn

everything would be taken care of.

that the vacation pay deductions had not been paid to the trust fund by Hardy Construction until after their employment had terminated. At the end of the job, Hardy Constryction did refund to Paul and Linden Chagnon all of the vacation deductions made by it. No contributions were made for fringe benefits. The

claim of Paul and Linden in this case relates to their fringe benefits, since they had been paid the union wages. On this statement of facts, the hearing examiner for the Department of Labor and Industry found in favor of Hardy Construction. Paul and Linden Chagnon appealed to the

District Court and the District Court reversed the Department of Labor and Industry, and ordered that the fringe benefits as well as penalties and attorneys fees be paid Chagnons to the

.

The majority of this Court, in the opinion promulgated in this case, have reversed the District Court, stating without support that clearly sufficient evidence supports the hearing examiner. To me that position is inexplicable.

On its appeal to this Court, Hardy Construction, in addition to claiming that the decision of the District Court was incorrect, raised additional issues that fringe benefits are not "wages," that the employee was not entitled to

attorney fees, and that the penalties begin only after final judgment was entered in the District Court. These issues

have been short-circuited because of the route taken for decision by the majority.

The evidence in this case is beyond rebuttal that the Chagnons would not have continued working for Hardy

Construction if they were not being paid union scale on the job. They continued to work for Hardy Construction because

they were led to believe by Hardy Construction that their employment was one for union scale. defaulted on the perceived When Hardy Construction it and the

contract between

Chagnons, the employees sought redress before the Department of Labor and Industry, and then before the District Court. As a result of the majority action in this case, the Chagnons lose not only the fringe benefits which they earned on the job but they must now pay Hardy Construction Company's

attorney fees for daring to claim those fringe benefits. Such, I am sad to relate, are the possible vagaries of this Court.

DISSENTING OPINION No. 83-232 IN THE MATTER OF THE WAGE CLAII'IS OF PAUL CHAGNON AND LINDA CHAGNOM, Petitioners and Respondents,
VS.

Justice

Daniel

J.

Shea

HARDY CONSTRUCTION COMPANY, and the LABOR STANDARDS DIVISION, DEPT. OF LAEOR AND INDUSTRY, STATE OF MONTANA, Respondents and Appellants.
$!
.JY'E~*J-;L%O~T

CLERK QF GUPi;EiQE COURT: STATE OF MCN'TAHA

Mr. Justice Daniel J. Shea, dissenting:

I

dissent.

Issues were

raised before

the hearing

examiner that were never decided.

As a result, neither the

Department of Labor and Industry nor the District Court could rule on the merits of the case until the factual disputes were resolved by the hearing examiner. This Court has previously held in effect, that whenever i-ssues are raised by the parties and the trial court failed
to make a record as to those issues, remand is appropriate to

make that record.

For example, in Diede v. Davis (Mont. 394, the District

1983), 661 P.2d 838, 843-844, 40 St.Rep. Court record

failed to establish in what months certain Without that determination, it

vehicle repairs were made.

could not he known which, if any, of those repairs were necessary a.nd therefore recoverable and In Wippert v.

Blackfeet Tribe of Blackfeet Indian Reservation (Mont. 19821,
654

P.2d

512, 39

St.Rep.

2117, the

complaint laid

the

foundation for inquiry into the amount of a tribal court jud-gment. We ruled remand was necessary for a determination of that amount. Here also, issues were raised. below, and not decided. There is no reasonable path to follow except to remand the matter for a determination of those issues.



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