Morris v. C. C. Communications Corp. , 175 Mont. 23 ( 1977 )

No. 13674
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
RONALD G. MORRIS,
Plaintiff and Respondent,
C. C. COMMUNICATIONS CORPORATION,
Defendant and Appellant.
Appeal from: District Court of the Eleventh Judicial District,
Honorable Mat Allen, Judge presiding.
Counsel of Record:
For Appellant:
Astle and Astle, Kalispell, Montana
William E. Astle argued, Kalispell, Montana
For Respondent:
Warden, Walterskirchen & Christiansen, Kalispell,
Montana
Gary R. Christiansen argued, Kalispell, Montana
Submitted: October 7, 1977
Decided:
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Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
C. C. Communications Corporation, a Florida based company,
appeals from a judgment of the Flathead County District Court
awarding the plaintiff-employee vacation pay and overtime pay,
together with the statutory penalties under Montana's wage statutes.
C. C. Communications Corporation also appeals from the District
Court's dismissal of a counterclaim it had filed against the
employee.
The employer's contentions are: First, the evidence was
not sufficient to justify the award of vacation pay; second, the
evidence was not sufficient to sustain any agreement by the employer
to pay overtime to the employee; and third, it was denied a fair
trial on its counterclaim because the District Court improperly
limited cross-examination of the employee.
The employment history involved here started with the
employee becoming employed by the VanVelkinburg Company in September,
1970. On March 6, 1972, he went to work for the C. C. Communica-
tions Corporation, a "sister corporation" to the VanVelkinburg
Company until 1974.
In October, 1975, the employee was transferred from Toronto,
Canada, to Kalispell, Montana to provide emergency help to the
Northwestern Telephone Systems during a strike. At all times the
employee was employed by and paid by C. C. Communications Corporation
although there was no written contract of employment between them.
The employee continued to work for the C. C. Communications Corpora-
tion until December 31, 1975, when he resigned because of a dispute
relating to payment of wages. This dispute led to the filing of
a wage claim, which is the subject of this appeal.
The dispute as to the employee's right to vacation pay
centers around a determination of his anniversary service date of
employment. The employer concedes that if the anniversary service
date is September of 1970, the employee is entitled to vacation pay.
The employer contends, however, that the anniversary service date
is March, 1972, and, therefore, the employee is not entitled to
vacation pay. In this respect, this was strictly a factual ques-
tion presented to the District Court and resolved against the employer.
There being sufficient evidence in the record to support this find-
ing, we cannot set it aside. Rule 52, M.R.Civ.P.; Luppold v. Lewis,
-Mont. , 563 P.2d 538, 34 St.Rep. 227, 229 (1977).
The employer relies entirely on its policy manual of employ-
ment, which states that an employee cannot "bridge" work experience
from another employer for the purpose of obtaining benefits from
C. C. Communications Corporation. The only policy manual introduced
in evidence was that which was introduced by the employee. This
manual had an effective date of January, 1975, which was after the
date the employee went to work for the employer. Moreover, the
employee testified that this was not the policy of the employer
when he first went to work. He illustrated thisbytestifying that
the first year he went to work for C. C. Communications Corporation,
he was paid two weeks' vacation benefits. The policy manual required
an employee to be employed two years before he was entitled to two
weeks' vacation benefits. This was strong evidence that the policy
in effect at the time the employee first went to work for C. C.
Communications Corporation was not the same as that shown by the
employment policy manual bearing the 1975 date. It demonstrated
that C. C. Communications Corporation did allow the employee to
"bridge" his employment from VanVelkinburg Company to C. C. communi-
cations Corporation. The employer did not refute the employee's
testimony. Accordingly, the District Court properly ruled that
the employee was entitled to vacation pay.
The issue of overtime pay also involves a factual determina-
tion that the District Court resolved against C. C. Communications
Corporation. The employer's sole contention is that it is not
bound to pay overtime wages to the employee because there is no
evidence that it had agreed to do so. The employer contends that
the employee had agreed to work for a flat salary. However, there
was substantial evidence from which the District Court could con-
clude that the employer had agreed to pay overtime wages to the
employee.
The employee introduced exhibits showing that he was paid
on an hourly basis rather than on a salary for this particular job.
These exhibits also showed that C. C. Communications Corporation
had regularly billed its client (Northwestern Telephone Systems) for
the employee's overtime hours. During this entire period the employee
submitted time sheets indicating the overtime hours he had worked.
Moreover, the testimony of a manager of C. C. Communications Corpora-
tion, together with that of another employee, supported the employee's
contention that there was an agreement to pay $500 a week for 40
hours and time and a half for anything over a 40-hour week. During
the course of the employment, the manager continued to assure the
employee of compensation for overtime. Based on these assurances,
the employee continued to work overtime.
The employer called one management witness who testified
that there was no agreement for the employee to receive overtime pay
and that the employee was on a salary. Given this conflict in the
evidence, the question was one of fact for the District Court to
resolve. Schulz v. Fox, 136 Mont. 152, 345 P.2d 1045 (1959).
Clearly, it was the province of the District Court to resolve any
discrepancies.
The third issue relates to the employer's counterclaim,
which in essence charged that the employee did not properly account
for funds entrusted to him. Before trial the employer took the
employee's deposition, and also submitted detailed interrogatories
to the employee concerning the funds, which interrogatories were
answered. The employer also obtained the employee's records relating
to the money entrusted to him. The trial was held in one day,
August 17, 1976. Near the end of the trial, just before cross-
examination of the employee started, the trial judge stated to .
counsel: "I will give you five minutes [to cross-examine]."
Counsel contends that this limitation deprived the employer of a
fair trial. On the facts before us, we do not agree.
The trial judge's statement to employer's counsel was not
made in the context the employer asserts. It was 5 : 0 0 p.m. and
the trial judge asked employee's counsel how much time he needed
before he finished the direct examination. The answer was that he
was finished with the employee, and then would call another witness
for a brief examination. At the conclusion of the examination of
the employee, the employer's counsel stated to the court:
"MR. ASTLE: Your Honor, I will attempt to be
very brief. I have a few questions, just very
brief.
"THE COURT: I will give you five minutes."
From this it is obvious that counsel in effect told the
court he needed only a few minutes to do the entire cross-examination.
Counsel did not object to this time limitation and conducted a very
brief examination concluding with the remark: "Your Honor, I have
no further questions." Moreover, at the completion of this cross-
examination, another witness was called to testify, was examined,
cross-examined, and examined again on re-direct before the comple-
tion of the day-long trial. Counsel at no time indicated he needed
more time to examine either witness.
At the conclusion of trial, the trial judge suggested that
because of the voluminous and complicated records as to the accounting,
the parties might like to submit them to an accountant for proper
study. The accountant could then make a report to the court. The
employer never took up this suggestion nor suggested at a later
time that it wanted an accountant to do a detailed study of the
records.
In the employer's motion in the District Court for a new
trial, counsel did not point out the need for further questioning,
and did not show in any way how additional cross-examination would
have, or even might have, benefited the employer.
Under these circumstances we cannot say the employer was
denied a fair trial because of time restrictions placed upon the
cross-examination of the employee.
The judgment of the District Court is affirmed.
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We Concur: