97-179

 No. 97-179

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 44

IN RE THE WAGE CLAIM OF

SHARON LANGAGER,

 Claimant, Respondent, and Cross-Appellant,

 v.

CRAZY CREEK PRODUCTS, INC.,

 Respondent, Appellant, and Cross-Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

 In and for the County of Carbon,

 The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Kent E. Young, Attorney at Law, Red Lodge, Montana

 For Respondent:

 Sharon Langager, Pro Se, Roberts, Montana

 For Intervenor State of Montana:

 Robert Campbell, Legal Services, Department of Labor

 and Industry, Helena, Montana

 Submitted on Briefs: December 11, 1997

 Decided: March 3, 1998

Filed:

 __________________________________________

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 Clerk

Justice Jim Regnier delivered the Opinion of the Court.

¶1 On April 24, 1996, claimant Sharon Langager filed an action in the District 

Court for

the Thirteenth Judicial District in Carbon County, seeking judicial review of an 

order issued

by the Department of Labor and Industry's Board of Personnel Appeals. The order 

denied

Langager's request that her employer, Crazy Creek Products, Inc., be required to 

compensate

her for two weeks of unused vacation time. On December 27, 1996, the District Court 

issued

its order reversing the decision of the Board of Personnel Appeals, and granting a 

judgment

in Langager's favor and against Crazy Creek in an amount equal to one week of 

vacation pay

plus penalties. It is from this order that Crazy Creek appeals, and Langager crossappeals. 

For the reasons discussed below, we reverse.

¶2 We find the following issues dispositive on appeal:

¶3 1. Did the District Court err in concluding that Crazy Creek's personnel 

manual

did not apply to Langager and thus did not alter the terms of her employment?

¶4 2. Did the Board of Personnel Appeals err in concluding that Langager was not

entitled to vacation pay pursuant to the terms of Crazy Creek's personnel manual?

 FACTUAL AND PROCEDURAL BACKGROUND

¶5 Langager began working for Crazy Creek on June 3, 1992, at which time Crazy 

Creek

had a verbal policy regarding vacation time pursuant to which each employee was 

entitled

to one week of paid vacation upon completion of one full year of employment. The 

verbal

policy additionally provided that an employee would earn one week of paid vacation 

after

completing each succeeding year of employment. For eligible employees to take 

advantage

of accrued vacation, Crazy Creek required only that they provide the company with

thirty-days' notice.

¶6 Langager continued to work for Crazy Creek until June 6, 1994. In February 

1994,

several months prior to Langager's separation, Crazy Creek adopted a written manual 

of

Employment Benefits and Policies For All Personnel (personnel manual). The personnel

manual modified the company's policy with respect to paid vacation, providing 

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specifically

as follows: 

 Vacation: CCP provides one week paid vacation per year after the completion

 of the first year of employment (1st anniversary date). After the completion

 of the second year of employment (2nd anniversary date) CCP will provide

 two weeks paid vacation per year.

 Employees must use their vacation within the year after it is earned. Vacation

 does not carry over from year to year. (ie. At the end of the first year an

 employee has one week of paid vacation accrued. Vacation must be taken

 before the end of the second year - 2nd anniversary date.) Vacation must be

 used all at once in consecutive days.

 If a company holiday falls within the vacation period it will be considered as

 a paid holiday and not vacation time. This day of vacation can be used either

 at the beginning or the end of the vacation time.

 An employee must work the regularly scheduled work days before and after

 the paid vacation period in order to be eligible to receive vacation pay.

 Vacations are allowed on a first come first served basis. In the event more

 than one employee requests the same days as another, management reserves

 the right to deny the second request received at their discretion.

 Requests for vacation should be made at least 30 days prior to the time

 requested. Please plan ahead.

¶7 Crazy Creek held a meeting on February 3, 1994, during which it provided each of

its employees, including Langager, with a copy of the new personnel manual. On

February 8, 1994, Crazy Creek convened a second meeting, at which Langager was 

present,

for the purpose of discussing the personnel manual. In February 1994, following 

distribution

of the personnel manual, Langager asked for and received permission to take her two 

weeks

of vacation in late June of that year. 

¶8 In early June 1994, Langager secured other employment. Thus, on June 6, 1994,

Langager provided Crazy Creek with notice that she intended to quit her job two 

weeks later,

at the start of her scheduled vacation. Upon learning of Langager's plans, however, 

the

Crazy Creek manager informed her that she would not receive any vacation pay if she 

did

not return to work following her vacation. In response, Langager opted to terminate 

her

employment effective June 6, 1994, and thus did not work her regular shift either 

prior to or

following her scheduled vacation period.

¶9 Crazy Creek did not provide Langager with two weeks of vacation pay following 

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her

separation from the company. Thus, on July 5, 1994, Langager filed a wage claim 

with the

Montana Department of Labor and Industry (DOL), claiming entitlement to $520 in 

vacation

pay. On July 28, 1994, DOL compliance specialist Jim Dobbins authored a written

determination in which he ruled that Crazy Creek owed Langager two weeks of vacation 

pay,

in an amount of $520, along with penalties pursuant to § 39-3-206, MCA.

¶10 Crazy Creek subsequently requested a hearing, which was conducted telephonically

by DOL hearing officer Stan Gerke on June 1, 1995. On October 13, 1995, the Hearings

Bureau issued its findings of fact, conclusions of law, and order in which it 

ordered that

Crazy Creek pay Langager $520 for two weeks of earned vacation, as well as $572 in

penalties pursuant to § 39-3-206, MCA.

¶11 Crazy Creek appealed to the DOL Board of Personnel Appeals, which issued its

findings of fact, conclusions of law, and order on March 25, 1996. The Board of 

Personnel

Appeals reversed the hearing officer's decision, concluding that because Langager 

did not

work the shifts prior to and after her vacation period, she did not qualify for 

vacation pay

pursuant to the terms set forth in Crazy Creek's personnel manual. The Board of 

Personnel

Appeals thus held that Crazy Creek did not owe Langager the vacation pay to which she

claimed entitlement.

¶12 Langager, acting pro-se, chose to appeal the Board of Personnel Appeals' 

decision and

filed a petition for judicial review in District Court on April 24, 1996. On June 

3, 1996, the

DOL filed a motion to intervene, which the District Court granted in an order dated 

June 26,

1996. On December 27, 1996, the District Court issued an order reversing the Board 

of

Personnel Appeals' determination that Langager was not entitled to vacation pay. 

The

District Court instead concluded that Crazy Creek's personnel manual did not apply to

Langager, and that she was entitled to recover one week of vacation pay pursuant to 

the

company's prior verbal vacation policy, as well as penalties. Crazy Creek filed a 

notice of

appeal on February 21, 1997, and Langager filed a notice of cross-appeal on March 6, 

1997. 

 DISCUSSION

¶13 A district court must review an administrative agency's findings of fact to 

determine

"whether the findings are clearly erroneous in view of the reliable, probative and 

substantial

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evidence in the whole record." State Personnel Div. of Dep't of Admin. v. Board of 

Personnel

Appeals, Div. of Dep't of Labor and Industry (1992), 255 Mont. 507, 511, 844 P.2d 

68, 71

(citing Department of Revenue v. United Parcel Service, Inc. (1992), 252 Mont. 476, 

482,

830 P.2d 1259, 1263); see also § 2-4-704, MCA. Furthermore, the district court will 

uphold

an agency's conclusion of law "if the agency's interpretation of the law is 

correct." State

Personnel Division of Dep't of Admin., 255 Mont. at 511, 844 P.2d at 71 (citing 

Steer, Inc.

v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). We in 

turn

employ the same standards when reviewing the district court's decision, and must

accordingly determine whether an agency's findings of fact are clearly erroneous and 

whether

its conclusions of law were correct. See Swan Corp. v. Department of Revenue 

(1988), 232

Mont. 210, 213, 755 P.2d 1388, 1390.

 ISSUE 1

¶14 Did the District Court err in concluding that Crazy Creek's personnel manual 

did not

apply to Langager and thus did not alter the terms of her employment?

¶15 In its order reversing the decision of the Board of Personnel Appeals, the 

District

Court ultimately concluded that the paid vacation policy contained in Crazy Creek's 

written

personnel manual did not apply to Langager, but that the terms of her employment were

instead governed by the verbal vacation policy in effect at the time she began 

working for

Crazy Creek in June 1992. In so concluding, the court relied upon our decision in 

Gates v.

Life of Montana Ins. Co (1982), 196 Mont. 178, 183, 638 P.2d 1063, 1066, in which we 

held

that "[a]n employee handbook distributed after the employee is hired does not become 

a part

of that employee's contract." In Gates, we concluded that an employee handbook 

distributed

two years after the plaintiff was hired "constituted a unilateral statement of 

company policies

and procedures" and that it could not have modified the employee's contract "because 

there

was no new and independent consideration for its terms" and because "its terms were 

not

bargained for." Gates, 196 Mont. at 183, 638 P.2d at 1066. 

¶16 In the present case, the court noted that Crazy Creek had adopted its personnel 

manual

long after Langager was hired, and reasoned that because "[t]he parties do not argue 

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and the

record does not reflect that the new terms were bargained for, nor that there was 

new and

independent consideration," the "new manual does not constitute a modification of 

the terms

of the claimant's employment." The court thus concluded the verbal vacation policy 

in effect

at the time Langager was hired controlled the present case. 

¶17 The court noted that, pursuant to Crazy Creek's verbal policy, Langager became

eligible for one week of paid vacation upon completion of her second year of 

employment,

and that to take advantage of that accumulated vacation she had only to put in her 

request for

vacation at least thirty days in advance. The court observed that Langager had met 

the

thirty-day requirement, and thus held she was entitled to receive one week of 

vacation pay

pursuant to the provisions of the verbal vacation policy, but not the two weeks of 

vacation

pay to which she claimed entitlement. Because the court concluded that Crazy Creek's

written personnel manual did not apply to Langager, whether or not she had worked the

shifts prior to and following her scheduled vacation was of no ultimate consequence 

to the

court's analysis. 

¶18 On appeal, Crazy Creek first argues the District Court erroneously exceeded the

proper scope of its review when it found that the administrative record "does not 

reflect that

the new terms were bargained for nor that there was new and independent 

consideration" and

accordingly concluded that "the vacation policy applicable to [Langager] is the 

verbal policy

in place at the time she began her employment at Crazy Creek Products, Inc." Crazy 

Creek

argues that the administrative record contains no specific findings with respect to 

the

presence of bargained for exchange or new and independent consideration, and thus 

suggests

the court erroneously substituted its own judgment for that of the agency, and 

reached a legal

conclusion with respect to the applicability of Crazy Creek's personnel manual based 

upon

assumed facts about which there existed no specific agency findings. Crazy Creek 

points to

§ 2-4-704, MCA, and asserts the District Court was without statutory authority to 

reverse the

Board of Appeals' decision as it did, and that its only option was to remand the 

case for

additional findings on the questions of bargained for exchange and new 

consideration. 

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¶19 Crazy Creek next argues that, even if the court was acting within the scope of 

its

reviewing authority, it erred in determining that the administrative record 

contained no

evidence of bargained for exchange and new consideration, and in concluding that 

Crazy

Creek's personnel manual thus did not apply to Langager. Instead, Crazy Creek 

argues that

the administrative record contains sufficient evidence of bargained for exchange and 

new

consideration to support the conclusion, implicit in the Board of Appeal's decision 

denying

Langager's request for vacation pay, that Crazy Creek's personnel manual effectively

modified the terms of Langager's employment.

¶20 Following a review of the administrative record, we note that this case is 

factually

distinguishable from the Gates case, and determine the elements of bargained for 

exchange

and independent consideration are indeed present. In Gates, a former employee 

brought an

action for wrongful discharge against her employer, asserting in part that her 

employer

"breached the contractual terms of her employment as set forth in [an] employee 

handbook." 

Gates, 196 Mont. at 183, 638 P.2d at 1066. We held that where the employer had 

merely

distributed the handbook two years after the plaintiff was hired, there was no new 

and

independent consideration for its terms and its terms were not bargained for. 

Gates, 196

Mont. at 183, 638 P.2d at 1066. In the present case, however, the administrative 

record

indicates that Crazy Creek not only distributed its personnel manual to each 

employee, but

additionally convened a second meeting on February 8, 1994, during which it asked if 

any

employees had questions regarding the provisions of the manual. That Langager not 

only

received a copy of the manual, but also attended this second meeting during which the

employer asked for input from its employees, indicates the manual's terms were 

sufficiently

bargained for. Moreover, Langager continued to work for Crazy Creek, thereby 

supplying

the necessary consideration. 

¶21 Based on the foregoing, we hold the District Court erred in finding no evidence 

of

bargained for exchange and new consideration under the circumstances of this case, 

and hold

the court consequently erred in concluding Crazy Creek's personnel manual did not 

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apply to

Langager. Because the record as a whole contains substantial evidence indicating 

that the

terms of the personnel manual were bargained for, and that there was new and 

independent

consideration, we conclude that remand for additional findings is unnecessary and 

that the

District Court did not exceed the proper scope of its review. 

 ISSUE 2

¶22 Did the Board of Personnel Appeals err in concluding that Langager was not 

entitled

to vacation pay pursuant to the terms of Crazy Creek's personnel manual?

¶23 Having determined that Crazy Creek's personnel manual did in fact apply to 

Langager,

we must reach that question not addressed by the District Court and determine 

whether the

Board of Personnel Appeals erred in concluding Langager was not entitled to recover 

two

weeks of vacation pay. We review an agency's conclusion of law to determine whether 

it is

a correct interpretation of the law. See, e.g., State Personnel Div. of Dep't of 

Admin., 255

Mont. at 511, 844 P.2d at 71. 

¶24 In a 1949 opinion, which remains valid authority for the resolution of vacation 

pay

disputes, the Attorney General concluded that "vacation pay which has been earned 

and is

due and owing must be considered in the same category as wages and is collectable in 

the

same manner and under the same statutes as are wages." 23 Op. Att'y Gen. 151, 153 

(1949);

See generally, Morris v. C.C. Communications Corp. (1977), 175 Mont. 23, 571 P.2d 

1163. 

The parties to the present action do not dispute the fact that Montana law 

recognizes vacation

pay as a wage, and do not take issue with the following conclusions by the Board of

Personnel Appeals:

 Employers are under no legal obligation to provide employees with a paid

 vacation. The decision to grant paid vacations to employees is left to the

 discretion of an employer. Although there is no legal obligation on the part of

 an employer to provide a paid vacation, once the decision is made to grant a

 paid vacation, the employer is obligated to pay that which is earned and due

 and owing.

¶25 Crazy Creek correctly identifies the critical question on appeal as whether 

Langager

has actually earned the paid vacation to which she claims entitlement, and whether 

Crazy

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Creeks is thus "obligated to pay that which is earned and due and owing." Faced 

with the

similar question of whether vacation pay is due and owing under a given set of

circumstances, other courts have recognized that "[a]n employer is free to set the 

terms and

conditions of employment and compensation and the employee is free to accept or 

reject

those conditions." Rowell v. Jones & Vining, Inc. (Me. 1987), 524 A.2d 1208, 1211. 

See

also Roberts v. Public Finance Co. (Or. 1983), 662 P.2d 330, 332 (similarly 

recognizing that

"[a]n employer is free to set the terms and conditions of the work and of the 

compensation

and the employee may accept or reject those conditions."). 

¶26 Thus, to determine whether vacation pay is due and owing in the present case, we

must look to the terms of the employment contract as set forth in Crazy Creek's 

personnel

manual. See, e.g., Roberts, 662 P.2d at 332 (recognizing that "[t]he employment 

contract

itself will control the employee's right to vacation."). In its decision denying 

Langager's

request for vacation pay, the Board of Personnel Appeals evaluated the requirements 

set forth

in Crazy Creek's personnel manual and concluded that Langager "had not yet earned her

vacation pay and is not entitled to recover the wages claimed for vacation pay." In 

so

concluding, the Board of Personnel Appeals reasoned that Langager "did not fulfill 

the

requirements delineated by the employer to qualify for vacation pay" because she did 

not

comply with the personnel manual's requirement that she "work both the day prior to 

and the

day after taking vacation." Thus, the Board of Personnel Appeals ultimately held 

that,

"[b]ecause of the failure of claimant to fulfill the contractual prerequisite to 

vacation pay, she

is not entitled to vacation pay."

¶27 Review of Crazy Creek's personnel manual reveals a number of "contractual

prerequisites" to an employee's entitlement to vacation pay. For example, Crazy 

Creek

requires that each employee work for at least one year before accruing any paid 

vacation. 

Crazy Creek's personnel manual additionally requires that, to take advantage of 

accrued

vacation, employees must take vacation in consecutive days within the next calendar 

year, 

request vacation thirty days in advance, and work their regularly scheduled shifts 

both before

and after a scheduled vacation. In light of these provisions, Crazy Creek argues 

that

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employees do not earn paid vacation until they comply with the conditions set forth 

in the

company's personnel manual, including the requirement that they report to work for 

their

regularly scheduled shifts immediately prior to and following a paid vacation 

period. Crazy

Creek asserts, and the Board of Personnel Appeals concluded, that because Langager 

failed

to work her regularly scheduled shifts both prior to and following her scheduled 

vacation,

she never earned any paid vacation, and is not entitled to prevail in the present 

action. 

¶28 Crazy Creek's personnel manual specifically states that the company "provides 

one

week paid vacation per year after the completion of the first year of employment (1st

anniversary date)" and explains that "[a]t the end of the first year an employee 

has one week

of paid vacation accrued." (Emphasis added.) Furthermore, the manual explicitly 

provides

that "[a]fter the completion of the second year of employment (2nd anniversary date) 

CCP

will provide two weeks paid vacation per year." (Emphasis added.) Thus, in no 

uncertain

terms, Crazy Creek states that it "will provide two weeks paid vacation" to 

employees who

reach their second anniversary date. 

¶29 In the present case, it is undisputed that Langager completed her second year of

employment with Crazy Creek on June 3, 1994. According to the above-cited portion of

Crazy Creek's personnel manual, Langager had two weeks of paid vacation accrued when 

she

completed the second year of her employment with Crazy Creek on June 3, 1994. 

Despite

the fact that Crazy Creek's personnel manual explicitly states that the company 

"will provide

two weeks paid vacation" to employees, like Langager, who complete their second year 

of

employment, Crazy Creek argues that because Langager quit her job and therefore 

failed to

comply with the condition that she work the shifts immediately preceding and 

following her

scheduled vacation, she never earned any paid vacation. Implicit in Crazy Creek's 

argument

is its attempted differentiation between accrued vacation and earned vacation, and 

its

apparent contention that an employee may have accrued two weeks of vacation after 

working

for the company for two years, but not yet earned it. Indeed, pursuant to Crazy 

Creek's

argument in this case, Langager could not have earned paid vacation until that 

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vacation had

come to an end. 

¶30 Notwithstanding Crazy Creek's argument to the contrary, we conclude that 

vacation

pay is earned by virtue of an employee's labor and once it has accrued, it has by 

definition

been earned. See, e.g., Wolf v. Sam's Town Furniture, Inc. (N.M. Ct. App. 1995), 

904 P.2d

52, 57 (recognizing that "[a]ccrued vacation is based upon vacation time 

earned . . . .");

Kistler v. Redwoods Community College Dist. (Cal. Ct. App. 1993), 19 Cal. Rptr. 2d 

417,

421 (equating "vacation pay which is to be earned in the future" with vacation pay 

"which

has not yet accrued"). Pursuant to the terms of Crazy Creek's own personnel manual, 

and

by virtue of her two years of labor for the company, Langager had accrued, or 

earned, two

weeks of paid vacation by the time of her June 3, 1994, second anniversary of 

employment. 

We recognize that an employer may, as did Crazy Creek in the present case, place 

reasonable

restrictions upon the accrual of paid vacation. We conclude, however, that once an 

employee

has accrued paid vacation pursuant to the terms of his or her employment contract, an

employer may not then impose conditions subsequent which would, if unmet, effectively

divest an employee of that accrued vacation. 

 

¶31 Crazy Creek argues employees only earn paid vacation if they comply with the

personnel manual's additional requirements and take their accrued paid vacation in

consecutive days within the next calendar year, request vacation thirty days in 

advance, and

work their regularly scheduled shifts both before and after vacation. Termed 

conditions

precedent by Crazy Creek, these contractual requirements are, in effect, conditions

subsequent which do not affect the accrual of paid vacation which occurs, pursuant 

to the

terms of Crazy Creek's personnel manual, upon each anniversary of employment. 

Instead,

these contractual requirements affect an employee's ability to take advantage of 

accrued

vacation and, if unmet, divest that employee of accrued vacation. In the present 

case, the fact

that Langager failed to fulfill Crazy Creek's requirements that she report to work 

for the

shifts immediately preceding and following her vacation effectively divested her of 

her two

weeks vacation already accrued pursuant to the explicit terms of the company's own

personnel manual. Moreover, we note the inherent inconsistency of a vacation policy

pursuant to which an employee cannot earn paid vacation until that vacation has come 

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to an

end. 

¶32 Based on the foregoing, we conclude the Board of Personnel Appeals erred in

concluding that Langager was not entitled to recover two weeks of vacation pay from 

Crazy

Creek, and that the District Court similarly erred in concluding Langager was 

entitled to one

week of vacation pay pursuant to Crazy Creek's verbal vacation policy. We remand to 

the

District Court for a determination of appropriate penalties, if any, pursuant to § 

39-3-105,

MCA, and § 39-3-206, MCA.

 

 /S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

Justice W. William Leaphart, specially concurring.

¶33 I specially concur in the Court's holding that vacation pay is earned by virtue 

of an

employee's labor and once it has accrued, it has been "earned" and cannot be 

divested by a

condition subsequent; e.g., that an employee work the next shift after having taken a

vacation. I write to address what I see as the fallacy in the dissent's position. 

The dissent

argues that the employer is entitled to fashion reasonable requirements pertaining 

to the

earning and using of vacation benefits granted to the employee. I agree to the 

extent that the

employer imposes conditions precedent on the awarding of vacation pay. If, however, 

as the

dissent seems to acknowledge, vacation pay is recognized as the equivalent of a 

"wage," then

vacation pay, like a wage, cannot be conditioned upon performance of conditions

subsequent. We would certainly not, for example, uphold an employer's policy which

provides that an employee will not be paid her wage for the month unless she returns 

and

works the first week of the succeeding month. If the employee works the month of 

March,

she has earned her pay and is entitled to be paid her wage for that month regardless 

of

whether she works at all in April. 

¶34 Langager earned her vacation pay when she completed the second year of her

employment. The condition subsequent, that she work the shift following her 

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vacation, does

not pertain to whether she "earned" the vacation, rather it pertains to whether she 

will be

paid for the vacation she earned. Conditions which purport to divest an employee of 

that

which the employee has earned are not reasonable and should not be upheld. 

 /S/ W. WILLIAM LEAPHART

Justice James C. Nelson specially concurs and dissents.

¶35 I concur in the Court's discussion of and in its conclusion that, once earned, 

vacation

pay is a wage collectible in the same manner and under the same statutes as are 

wages. I also

agree that, within the limits imposed by the constitution or by law, an employer is 

free to set

the terms and conditions of employment and compensation and that the employee is 

free to

accept or reject such conditions and compensation. Finally, I agree that the 

critical question

in the case at bar is whether Langager earned the vacation pay to which she claims

entitlement. On this question, I would hold that she has not. Rather, I would 

reverse the

District Court and affirm the conclusion of the Board of Personnel Appeals that 

Langager

"did not fulfill the requirements delineated by the employer to qualify for vacation 

pay"

because she did not comply with the personnel manual's requirement that she "work 

both the

day prior to and the day after taking vacation." Because Langager did not fulfill 

this

contractual prerequisite, she is not entitled to vacation pay.

¶36 As to issue 1, I do not see any particular need for our lengthy discussion of 

Gates v.

Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063. In the proceedings 

below,

the parties did not argue whether there was a bargained for agreement with new

consideration. Indeed, both Crazy Creek's and Langager's position was always that 

the new

agreement did apply. There is no question that Langager accepted the new 

agreement. She

sought to take advantage of it. If she had taken a contrary position, then she 

could not claim

two weeks vacation pay, as that was only payable under the new policy that went into 

effect

after she was hired. Whether there was a bargained for exchange and new 

consideration

under Gates is a non-issue.

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¶37 As to issue 2, there is no dispute that, absent a contractual or statutory 

requirement

to the contrary, the decision to grant employees vacation, paid or otherwise, is in 

the

discretion of the employer. Moreover, we appear to be agreed that, in exercising 

this

discretion, the employer is entitled to fashion reasonable requirements and 

restrictions

pertaining to earning and using the vacation benefits granted. 

¶38 I part company with the majority at the point it concludes that "in no 

uncertain terms,

Crazy Creek states that it 'will provide two weeks paid vacation' to employees who 

reach

their second anniversary date." That misrepresents Crazy Creek's vacation policy. 

In fact,

Crazy Creek agreed that it would provide its employees two weeks vacation pay 

subject to

various restrictions and requirements. These included, among others, that "[a]n 

employee

must work the regularly scheduled work days before and after the paid vacation 

period in

order to be eligible to receive vacation pay." (Italics added.) 

¶39 Crazy Creek implemented this policy to benefit its employees by granting them 

two

weeks paid vacation, as opposed to the one week to which they had been previously 

entitled. 

Crazy Creek also adopted the new vacation policy to benefit its own business 

operations by

discouraging seasonal turn-over in its work force and by providing incentives for 

employees

to remain in the company's service. 

¶40 In order to "earn" or to become eligible for vacation pay, employees had to 

comply

with the conditions clearly set forth in the employee manual. There is no dispute 

that

Langager knew of the requirements to become eligible for vacation pay; she simply 

did not

want to abide by those. She wanted the benefits of the employer's agreement to 

provide 

vacation pay without any of the concomitant obligations that the agreement imposed 

upon

her. Unfortunately, in agreeing with this tack, the majority has effectively and 

improperly

re-written the employment contract.

 In the construction of an instrument, the office of the judge is simply to

 ascertain and declare what is in terms or in substance contained therein, not to

 insert what has been omitted or to omit what has been inserted. Where there

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 are several provisions or particulars, such a construction is, if possible, to 

be

 adopted as will give effect to all.

Section 1-4-101, MCA. See also Talley v. Flathead Valley Community College (1993), 

259

Mont. 479, 487, 857 P.2d 701, 705, cert. denied 510 U.S. 1044, 114 S.Ct. 691, 126 L.

Ed.2d

658 (1994) (court may not disregard the express language of an employment contract 

and

read into the agreement expectations of employment not supported by the contractual

language used by the parties).

¶41 It is for these same reasons that I disagree with Justice Leaphart's 

concurrence. He

assumes that Langager "earned" her vacation pay merely by completing two years of

employment. She did not. The employer defined at what point vacation pay was 

"earned"

and that definition included certain prerequisites with which Langager did not 

comply. The

only way Justice Leaphart's view can be valid is to judicially write out of the 

employee

manual the very conditions that Langager agreed to in accepting the new vacation pay 

policy. 

Since she never earned vacation pay, she had no wages to claim.

¶42 Furthermore, the majority's reliance on Wolf v. Sam's Town Furniture, Inc. (N.M.

Ct.

App. 1995), 904 P.2d 52, is unavailing. Unlike the case at bar, Wolf did not 

involve any

issue of when, under the terms of a specific written employment policy, vacation time

"accrues" or is "earned". The same is true of Kistler v. Redwoods Community College

District (Cal. Ct. App. 1993), 19 Cal. Reptr. 2d 417. While in that case the Court 

ruled that

the employer could not divest the employee of vacation pay already earned (a point 

with

which no one argues), the Court also conceded the obvious--that by specific order or 

general

policy, the employer could bar the accrual of future vacation pay absent compliance 

with the

conditions which the order or policy imposed. Kistler, 19 Cal. Reptr. 2d at 421.

¶43 More to the point is the decision in Sweet v. Stormont Vail Regional Med.Ctr. 

(Kan.

1982), 647 P.2d 1274, wherein the Court held that the failure of a hospital employee 

to give

two weeks prior notice of termination as required by the handbook precluded any

determination that her unused vacation time constituted "earned wages." As the 

Court stated:

 It is apparent to this court that by the Claimant's agreement Claimant

 only became entitled to vacation pay, hence "earned" it, in one of two ways:

 scheduling time off with pay and continuing her employment, or giving

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 Respondent two weeks prior notice of her intent to resign. The nature of

 Respondent's service to the public requires a stable work force and requiring

 notice or continued employment for entitlement to vacation pay was

 Respondent's means of maintaining that work force. The notice requirement

 for "earning" unused accumulated vacation pay was consciously drafted for

 this purpose. Claimant's failure to comply with either of the requirements of

 her agreement with Respondent prevented her from earning vacation pay.

Sweet, 647 P.2d at 1281(quoting the trial court's analysis).

¶44 Similarly, the Court in New Mexico State Labor and Indus. Comm. v. Deming Nat'l

Bank (N.M. 1981), 634 P.2d 695, upheld the employer's right to condition payment of

vacation pay on the employee's compliance with the Bank's personnel guidelines. 

Accord

Bondio v. Joseph Binder, Inc. (La.Ct.App. 1946), 24 So.2d 398, 401. In Rowell v. 

Jones &

Vining, Inc., (Me. 1987), 524 A.2d 1208, 1211, the Court stated:

 An employer is free to set the terms and conditions of employment and

 compensation and the employee is free to accept or reject those conditions. 

 We see no reason why an employer may not condition the vesting of a benefit

 right on some event or act in addition to the performance of services, such as

 continued employment until a given date.

¶45 In the instant case, Crazy Creek, through its employee handbook, set clear and

unambiguous requirements for its employees to earn vacation pay. These conditions 

were

not unreasonable and were designed to benefit both Crazy Creek's employees and its 

own

business operations. Langager knew the requirements; agreed to the policy; and 

sought to

take advantage of her employer's vacation benefit package. She was not divested of 

payment

for vacation time which she had earned. Rather, by failing to comply with Crazy 

Creek's

paid vacation policy, Langager never earned vacation pay in the first place.

¶46 I would reverse the decision of the District Court and remand for an entry of 

an order

affirming the decision of the Board of Personnel Appeals. I dissent from our 

failure to do

so.

 /S/ JAMES C. NELSON

Justices Karla M. Gray and Terry N. Trieweiler join in the foregoing special 

concurrence and

dissent.

 /S/ KARLA M. GRAY

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 /S/ TERRY N. TRIEWEILER

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