Klundt v. State Ex Rel. Board of Personnel Appeals , 219 Mont. 347 ( 1986 )

NO. 85-258
LN THE SUPREME COURT OF THE STATE OF MONTANA
1985
JERRY T. KLUNDT,
Plaintiff and Appellant,
STATE OF MONTANA, ex rel., RGARD OF
PERSONNEL APPEALS and CHAUFFEURS,
T E M S T E F S and HELPERS UNION,
Defendants and Respondents.
APPEAL FROK: District Court of the Thirteenth Judicial District;
In and for the County of Yellowstone,
The Honorable W i l - 1 - i a m J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cate Law Firm; B r a d L . Arndorfer, Eillings, Montana
For Respondent:
R. Scott Currey, Dept. of Labor & Industry, Helena,
Eontana
C. Patrick McKittrick; McKittrick Law Firm, (Union),
Great Falls, Montana
Submitted on Briefs: Oct.. 3, 1985
Cecided.: January 2, 1986
-. - -
Clerk
P r Justice William E. Hunt, Sr. delivered the Opinion of the
t.
Cou.rt .
The appellant, Klundt, appeals from an order of the
Yellowstone County District Court granting respondents'
motions to Zisrrtiss fox failure to state a claim upon which
relief can be granted.
The order granting the Board of Personnel Appeal's
motion to dismiss is affirmed, and the order granting the
Union's motion to dismiss is reversed.
Cr, appeal, the appel-lank raises the following issues:
(1) Whether the District C ~ u r t erred in granting
respondents' motions to dismiss for failure to state a claim
where a three-year delay between the filing of a grievance
and a hearing was allegedly caused by Union interference and
Rozrd delay.
(2) Whether the District Court erred in denying
appellant's Rule 5 2 ( b j , M.E.Civ.F. motion to amend.
Appellant worked for the City of Billings as a city
service worker from October 31, 1-977, until June 26, 1978,
and as an equipment operator from June 26, 1378, until
February 19, 1973. He was then promoted to city service
foremzn I. He was demoted to equipment operator on 1.7arch 17,
1980.
Appellant filed an unfair 1-aborpractice charge with the
kontana Puman Fights Commission against the City on March 19,
1 9 80. Appellant voluntarily terminated his employment with
the City on June 10, 1-980. On August 24, 1983, the
Commission issue2 its lack of reasonable cause finding.
Appellant does not contest this finding.
Around October 17, 1380, the City posted notice to fill
a vacant position for a systems maintenance worker 11.
Appellant applied to the City to fill this position, but was
not hired. Appellant then filed grievances with the Board of
Personnel Appeals (Board) on September 8, 1980, and November
5, 1980. He alleged that in not rehiring him to fill the
vacant position, the City was discriminating against him for
filing the unfair labor practice charges with the Human
Rights Commission the previous Farch. A hearing was held on
Cecember 6, 1983, an2 the hearing examiner recommended the
case be dismissed. On November 28, 1984, the Board made its
final order adopting the hearing examiner's recommendatj-on.
On P-pril 11, 1984, appellant began the present action
alleging that his Union breached a duty of fair
representation in handling his unfair labor practice charge,
and alleging the Board denied him a timely hearing in
violation of his due process rights. The Union filed a
motion to dismiss claiming that appel-lant's complaint failed
to state a claim against the Union upon which relief could be
granted. The Board filed a motion to clismiss alleging that
a-ppellant failed to exhaust his administrative remedies and
that his complaint failed to state a claim upon which relief
can be granted. On April 9, 1985, the District Court granted
both motions to dismiss. On April 16, 1985, appellant filed
a motion to anend the judgment pursuant to Pule 52 (b),
b4.R.Civ.F. This motion was denied on April 25, 1985.
F motion to ciisrniss should not be granted unless it
appears beyond doubt that the non-noving party can prove no
set of facts entitling him to relief. F7i11son V. Taylor
(Nont. 1981), 634 P.2d 1180, 38 St.Rep. 1606. All
well--pleadeZ allegations 0 2 the non-l~oving party are deemed
to be true.
Appellant alleges that from the time he filed his
charges against the City until the hearing in December 1983,
approximately 37 months, appellant contacted the Union and
requested the Union to help him force the Board to take
action in the matter. The Union informed appellant that it
was up to the State to take action. However, Klundt claims
that the Union itself requested the Foard to put the natter
"on hold." Because of the Union's refusal to help the
appellant, the Board. took no action on his charges for over
three years.
While a union owes its members a duty of fair
representation in areas covered by collective bargaining,
section 39-31-205, MCA; Ford v. University of Montana (1979),
183 Mont. 112, 598 P.22 604, it is not required to represent
members outside of collective bargaining. Klundt was not
attempting to resolve his claim through binding arbitration
or internal union procedures. Instead, he filed charges with
the Eoard of Personnel Appeals, a state agency.
Klundt alleges that the Union requested the Board to put
his charges on hold. Even if the Union does not owe Klucdt a
duty of fair representation in this case, that does not mean
the Union has the right to affirmatively interfere with
appellant's unfair labor practice charges. Whether the
charges themselves are meritorious or not, a three-year delay
nay have prejudiced the appel-lant's handling of his claim.
In its argument before this Court, the Union argues that
Klura't requested it to ask the Eoard to put the matter on
hold, but there is no evidence in the District Court record
to support that argu~ent. Klundt c l a i m s the delay was caused
by Union i.nte~rfeuence. IF discovery or evidence at t r i a l
fails to support Riundt's claim, the Union may obtain a
sumnary judgment or a directed. verdict. We cannot say that
as a matter of law Rlurdt can prove no set cf facts stating a
claim against the Union.
Turning to appellant's allegations against the Board,
Klfinlt claims that from the time he filed his charges until a
hearing was held, he mad.e numerous written an3 oral demands
to the Board for a hearing. The Eoard failed to set a
hearing for 37 months. The Boa-rd repeatedly stated that
Klundt's charges had been put on hold at the request of the
Union. Klundt alleges that this delay vjclated his due
process rights under the state and federal constitutions.
The District Court properly granted respondent Board's
motion for summary judgment. In Montana, the right to due
prccess requires notice and an opportunity to be heard.
State v . Fedding (Font.. 1984), 675 P.2d 974, 41 St.Rep. 147;
Nygard v. Hillstead (1979), 1-80 Wont. 524, 591 P.2d 643;
bLcntana State University v. Ransier (1975), 167 Kont. 149,
536 P.2d 187. The requirements are the same whether deal-i~g
with an administrative agency or a court. Section 2-4-601,
MCA, a i section 2--4-612(1), KCA.
rd In this case, the Board
fulfilled the fundamental requirements of due process.
Klundt received nctj-ce and was giver, 2n cpportuni-ty to be
.
heard. The three-year delay is disturbing, but not f a t a l .
According to section 7-4-701, MCA, "a preliminary,
procedural, or intermediate agency action or ruling is
imr;.ediately reviewable if review of the final agency decision
would! not provide ar, adequate remedy." An agency's failure
to act constitutes agency action. Under this stctute, Klundt
could have petitioned this Court to require the Board to hold
e hearing. The petitioner S.n State ex rel. Great Falls Gas
Co. v. Department of Public Servjce Regulation, Public
Service Commission, et a l . (1976), 169 Ncnt. 68, 544 P.2d
815, fzced a similar situation. The Public Service
Comrnissicn failed to act on petitioner's request for an
interim rate increase. The company petitioned this Court and
we held that "the neglect, failure, or refusal of the . . .
Commission to act on petitioner's appl-ication for an interirr.
increase in rates . . ., constitutes arbitrary action on the
part of said Cc~m.ission." Great Falls, 544 P.2d at 815. We
then ordered the Commission to act on petitioner's
application for rate increase. The same procedure was
available to appellant. For three years, appellant Zezlt
with the Union or the Eoard, yet the Eoard failed to act.
Once the Board held a hearing on appellant's charges,
Klundt's fundamental right to due process was met.
Therefore, the order of the District Court dismissing
appellant's complaint against the Board was proper.
Finally, appellant claims that the District Court erred
in denying his Rule 52(b), b5.R.Civ.P. motion to amend his
complaint. Alth.ough appellant raises this argument, he cites
no authority and makes no substantive arguments in support of
this claim. Respcndents argue that Rule 52(b) provides a
method by which a district court's findings of fact can be
amended. In this case, the District Court rendered judgment
as a matter of law an(? nc findings of fact were made.
Therefore, the court's denial of the motion was proper. We
agree with the respondents.
Appell.antlsmotion can more properly be characterized as
a Mule 15 n.otion to amend pleadings. Even so, the District
Court's denial of the motion was proper. Klundt i d not
si.ate how he wished to amend his compl.aint and did not
provide the Districl: Court with a proposed amended complaint.
It was within the sound discretion of the District Court to
deny appellant ' s motion.
Therefore, t h ~
order of the District Court granting the
Eoard's motion to dismiss is affirmed, and the order granting
the Union's motion. to dismiss is r
We C o n c u r : -T
5
/ -"
.
Justices