KLOCK v DEPT OF LABOR
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NO. 95-206 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 DALE THOMASKLOCK, d/b/a TOM'S FOOD TOWN, a/k/a TOM'S IGA, Petitioner and Appellant, v. DEPARTMENT LABOR AND INDUSTRY, OF EX REL., JAMES F. MARSHALL, Respondent APPEAL FROM: and Respondent. District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas M. McKittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: John Keith, Attorney at Law, Great Falls, Montana For Respondent: Melanie Symons, Legal Counsel, Department Labor & Industry, Helena, Montana Submitted on Briefs: Decided: Filed: August of 31, 1995 September 14, 1995 Justice M. Gray delivered Karla Pursuant to Section 1995 Internal cited Operating as precedent document with result to I, Paragraph Rules, and shall the Clerk Montana the Opinion of the Court. 3(c), Montana Supreme Court the following be published decision by its of the Supreme Court Law Week, State shall filing not be as a public and by a report Reporter of its and West Publishing Company. Dale Thomas Klock Judicial District administrative for under 2. the issues while substantial the wages Tom's He recorded and Industry's was pending letter to the an improper decision book previously his in a time ex parte supported a pay raise According overtime he carried by to record to with him. earning book and was paid of fifty hours 2 30, 1991, 17, 1992, Marshall used by Marshall employee. home and a notebook hours On January The time he recorded IGA on September his manager and received another as follows: examiner's for to store promoted (Marshall) evidence? hours recorded. to an MCA? began working $4.50 per hour. of Labor hearing credible Marshall given affirming Tom's Food Town, a/k/a on appeal the decision § 2-4-613, IS all d/b/a of the Eighth We affirm. Court contact County, James F. Marshall Klock, Was the Department District from an order Cascade awarding worked for We restate 1. appeals court, order overtime IGA (IGA). for (Klock) was promoted cents his Marshall, on a calendar Marshall per hour. hours after being he kept was paid was at for forty hours paid for a week at $5.00 ten hours 1992. 2, of overtime Marshall Marshall per quit filed hour with for his Labor and Industry (DLI) Klock owed him 683 hours for amount of $5,122.50. for grocery bills, A contested a DLI hearing Marshall penalties, appealed with However, he reduced of this decision reviewing oral arguments, Fact, Conclusions that in the $1,042.63 15, 1993, before examiner in determined wages, wages. Appeals the parties' the hearing in Klock (Board). briefs examiner's in an order that $1,164.16 on the unpaid and considering of Law and Order of to $4,079.87. $2,328.32 the Board adopted 1992. Department owed Klock to the Board of Personnel the record 14, overtime was held on January to February He contended uncompensated The hearing entitled on May 1992. claim He was ending Montana since Marshall his case hearing IGA the 7, and $.51 per day in interest After of with on August examiner. was the pay period job a wage claim one exception. and Findings dated July 22, 1993. On August District Court successfully District 20, for 1993, Klock judicial review moved to intervene Court petitioned the Eighth of the Board's order. as the real party Judicial The DLI in interest. The issued an order dated March 20, 1995, affirming administrative order awarding Marshall and interest. Klock appeals. overtime wages, penalties 1. Was the Department of Labor and Industry's letter the District Court while the decision was pending improper ex parte contact under § 2-4-613, MCA? On March 10, 1995, the DLI sent a letter 3 the to the District to an Court requesting argues that it expedite on appeal that because the letter irrelevant Great against that Klock sending issue refers Tribune but in DLI to render Section its 2-4-613, contested the the other to Klock's the Court, on Marshall's ex parte consultations party with has notice between an issue stage of a contested an issue the District however, influenced Court an expeditious A copy of DLI's that the He presents that the a Notice is was In addition, Therefore, it had been DLI's MCA. letter influenced evidence decision 4 a case letter of Issue the District supporting does not suggest court's MCA, or law in the case; decision. no and the record was made. of fact by § 2-4-613, contends decision. here. but no response was not prohibited also in and an opportunity review attorney, and requested letter District were owed him. judicial did not address reminded assertion, the amount Klock in connection was not violated Court's order 2-4-613, it Klock Board's stated § proceeding, letter the letter that this filed DLI's allegations arguendo to merely if the in expeditiously. applicable the letter articles. printed Assuming participate. sent specify to collect and a party case unless was improper to articles not that, decision letter Klock which was unrelated, generally MCA, prohibits decision-maker the case. case. those requested of this matter does was concerned a result, of extraneous he would be unable behalf, to at determination to his contained Marshall the included Falls affirmed, As DLI's and prejudicial The letter the its on the this in any way that merits of the Nor does anything in in the Great case. Tribune printed We conclude contact under Falls that DLI's 5 2-4-613, evidence the hearing law letter for by failing Klock argues concluding that A the establishing Dist. party that it require record (1988), Rules legal hearing that Trustees, the of a record Klock support erred as a examiner's Court erred in was supported decision. the record an has the Missoula Rules by agency burden of County Sch. of recordings evidence while Appellate sufficient to enable and citation to the presented. to meet his burden. no transcript on appeal. Moreover, 5 of of arguments Klock included credible favor raised has failed to the tape substantial Montana in support that with reference examiner's the 501, 503, 757 P.2d 1315, 1317 the issues authority case hearing in arguing not hearing decision 232 Mont. review We note at the outset even a single that the submission 9 and 23, M.R.App.P. contested that Board decision in Moreover, to properly and to did the District exists is erroneous. omitted). Procedure the the examiner's challenging 1 v. Anderson Court that presumption (citation this on appeal asserted case hearing reverse by evidence. rebuttable decision; ex parte supported Review and that to the hearing credible articles an improper decision Judicial decision decision. substantial to Klock. was not at the contested examiner's of matter reference prejudice examiner's evidence? Petition presented letter's MCA. 2. Is the hearing substantial credible Klock's the of the Nor does he make of that proceeding does not support Klock argues that the a summary of evidence Marshall's and establishes cites to failure relied that on to provide for worked the the was improperly hearing preserved authority "best to a point judgment by he properly any legal of the party our hours in examiner, that support evidence" admitted of the fact-finder neither issue on the record of his argument undermines nor that a the credibility where we would be justified that he into in substituting on the critical question of credibility. Klock has simply for his argument supported cannot failed that the by substantial ascribe Court's error determination substantial credible to present hearing credible to examiner's evidence. either that any record that the evidence. Affirmed. We concur: 6 decision decision or legal decision On that or was the support was not basis, we District supported by
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