NO. 88-51
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

LOCAL 1334

### ,LABORERS INTERNATIONAL UNION OF NORTH AMERICA,AFL-C89, Plaintiff and Appellant,-vsCITY OF GREAT FALLS,
Defendant and Respondent.

APPEAL FROM: District Court of the Eighth JudicialDistrict, In and for the County of Cascade, The HonorableJohnMcCarvel,Judge presiding.
COUNSELOF RECORD:
ForAppellant: JosephW. Duffy,Great Falls,Montana
For Respondent: David Gliko,CityAttorney, Great Falls,Montana

Submitted on Briefs: July 21, 1988 Decided: August 25, 1988 

### &U6

### 251988 Filed:

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

This appeal is from an order and judgment of the District Court of the Eighth Judicial District, Cascade County, State of Montana, granting the City of Great Falls' motion for summary judgment. The parties' dispute concerns the terms and conditions of a labor agreement between them. We affirm. Vance Morrison (Morrison), overwhom this action arose, is a member of Local 1334, Laborers International Union of North America (Union). He was hired by the City of Great Falls (City) as a "temporary" employee on April 16, 1984, temporarily replacing a permanent employee, Richard Linton

(Linton). Linton had suffered an industrial accident on the job and was unable to continue in his capactiyas a full-time meter reader. Morrison was hired to perform Linton's duties

as ameter reader until Linton could recover and resumework. Morrison worked from April 16, 1984 to October 12, 1984, two days short of six calendarmonths. Linton returned to work on October 15, 1984. However, due to his injury he worked approximately three days, and subsequently returned to workers' compensation status. Thereafter, on November 2, 1984, Morrison was rehired for the second time to replace Linton pending the City's decision on whether to create a permanent meter reader position. Morrison's second hiring period with the City lasted from November 2, 1984 to April 30, 1985, oneday short of six calendarmonths. The City argues that after Lintonwas unable to return to work, the City decided to hire a new permanent employee. Further, since the City considered Morrison's position to be temporary, he had not gained recall rights under theseniority clause of the Union contract because he had not been employed for six continuousmonths. Morrison, along with 276 other applicants,applied for the permanent meter reader position. Of the 276, fifteen applicants were selected after initial screening. Morrison rated eleventh out of the final fifteen. According to the city attorney, the jobwas given to an applicant who claimed veteran's preference and scored second out the the final fifteenapplicants. The issues are as follows: 1. Whether the District Court erred in its interpretation of the contract at issue in the plaintiff's complaint. 2. Whether the District Court erred in not directing thematter to be submitted to arbitration. The appellant,Union is a labor organization certified to represent employees in collective bargaining matters and is so certified to represent employees working for the City. The City is an employer as defined by the Montana Public Employees Collective Bargaining Act. The Union argues that sinceLintonwas unable towork, and the City had "recreated" the temporary meter reader's position and rehired Morrison, and after Morrison's second 179-day layoff, that the City could not advertise for a permanent employee to perform the
same duties that both Linton and Morrison had previously performed. The Union argues that after Morrison's second layoff the City violated his Union contractby: (1) creating

a temporary position more than one time; (2) discharging Morrison, for the second time, from aposition that could not have been temporary at that time; and (3)refusing to recall Morrison to thepermanentposition. The Union argues that thesematters areprovided forby the contract for arbitrat.ionand that the City stalled andvacillated on the grievance in such away thatby thepassage of time, the potential cost to the City of losing the grievance would exceed $500. Over the $500 mark, the City argued it could invoke Article VII, Step 6, B, of the Grievance Procedure, its working agreement,which excused it from the obligationof arbitration. The section on arbitration in the contract contained in Article VII, Step 6,B,provides as follows: Any grievance involving amonetary issue, including those related to hours and working conditions which could have an apparent economic effect or impact less than fivehundred dollars ($500) shall be subject to final and binding arbitration. Any monetary issue, as defined in the last sentence, in excess of five hundred dollars ($500) may be subject to final and binding arbitration only if mutually agreed upon.
It is the City's position that itheld the job open for Linton, the injured worker, as long as it could. The reason for creating the temporary position was to help the injured worker and not to create a situation where the person hired in the temporary position could claim seniority benefits. The City also argues that Morrison understood this at the time of thehiring. The Union argues,contrary to the City's position, that Linton's job was a permanent position and when Morrison was recalled to that position having worked 120 days, he established seniority. Furthermore, Morrison was entitled to continue in the position and, as such an employee and due to his second hiring, he was not in a temporary position and therefore entitled to proceed through the grievance procedure. The Union argues that Morrison had seniority rights because suchwas established after 120 days. However,
as previously noted here, the 120 dayswere over twoperiodsof hiring. The City's argument stated that in order to have seniority rights, an employee must work a six-month continuousperiod. The trial court found in its findings of fact that. Lintonwas apermanent employeeand because ofhis industrial accident Morrison was hired as a temporary employee. Morrison was hired the second time on a temporary basis pending the City's decision to fill the position on a permanent basis. When it was determined that Linton could not return to work, the City advertised the position and hired a full-time meter reader on August 19, 1985. The District Court noted that Morrison was considered among various applicants for the position. The court found the parties were bound by the collective bargaining agreement entered into between the City and theUnion. This collective bargaining agreement was considered by the court in its decision and was attached to the court's findings of fact and conclusions of law as an exhibit. In addition, the District Court found that pursuant to the grievance procedure under the collective bargaining agreement, the Union grieved the failureof the City tohire Morrison as apermanent full-time employee in the full-time meter reader position. Additionally, the City denied the grievance through Steps 1 through 6 and further denied the plaintiff's request for arbitration pursuant to Article VII, Step 6, B, of the agreement. In granting summary judgment the District Court found that the City properly denied the grievance under the conditions of the collective bargaining agreement. The District Court correctly stated in its conclusions of law that "Morrison's grievance claimed entitlement to the permanent full-time meter reader position inclusive of back-pay cannot be waived asmatter of public policy." See,Hoehnev. Sherrodd, Inc. (1983), 205Mont. 365, 668 ~.2d 232. In denying the Union arbitration, the court found the claim well in excess of $500 in monetary value and that the City properly denied the claim for arbitrationunder Article VII, Step 6,B,of the collectivebargaining agreement. As to summary judgment the court noted that Morrison's employment fell short of six months on both occasions and thereby the position was a temporary position under Article 111,Section C of the collectivebargaining agreement. The court also noted that the "temporary" position filledby Morrisonwas "notrenewable" as contemplatedby the last phrase of Article 111, Section C. The court noted that 

### 5 2-18-601, MCA, provides inpart:

(12) "Continuous employment" means working within the same jurisdiction without a break in service ofmore than 5 working days or without a continuous absence without pay of more than 15 working days.

(13) "Break in service" means aperiod of time in excess of 5working days when the person is not employed and that severs continuousemployment.
Thebreak inMorrison's employment,twenty days, from October 12, 1984 toNovember 2, 1984,represented a substantialbreak in the service. Therefore, his employment cannot be considered continuous nor renewable as contemplated by the collectivebargaining agreement. Finally,the District Court found thatMorrison did not qualify for "recall" under the seniority clause,Article XI1 of the collective bargaining agreement, since recall rights are not earned until an employee has been employed for six months of continuous service. We agree. Morrison did notwork for six continuous months. The District Court correctly granted themotion for summary judgment. Affirmed.

We concur:

C

JusticesMr. Justice JohnC. Sheehy,dissenting:

Idissent. The position under Art. VI, B that any employment dispute having an economic impact more than $500 is "non-grievable" (in the parlance of the parties) guts the protection to employees under the collective bargaining agreement. That position forecloses any arbitration except for themost minuscule ofdisputes. What ismore important tome in this case is the obvious

use by the city of the collective bargaining agreement to engage in the unlawful practice of preventing a temporary employee from accumulation of annual leave time. The provisions of S 2-18-601(12)

## , (13)

## , MCA ("continuous employment" and "break in service"), relied on both by this Court and the city are definitions provided by the statutes for the determination of annual leave time under Part 6, Chapter 18, Title 2 of our codes. The use of these provisions should be limited to interpretations under § 2-18-611,MCA, the computationof annual vacation leave which provides for temporary employees: (5) Temporary employeesdo not earn vacation leave credits, except that a temporary employee who is subsequentlyhired into apermanentpositionwithin the same jurisdiction without a break in service, and temporary employees or employed c~ntinuously longer than six months may count as earned leave credits for the immediate term of temporary employment.
It seems obvious that the hiring of Morrison on a temporary basis for less than six months, laying him off for 14 working days and then rehiring him for an additional period of less than six months is a ploy to avoid the accumulation of benefits such as annual vacation leave forMorrison. Such a procedure is unlawful under S 2-18-621, MCA:Unlawful termination. It shallbe unlawful for an employer to terminate or separate an employee from his employment in an attempt to circumvent the provisions of 2-18-611, 2-18-612 and 2-18-614. Should a question arise out of this section, it shall be submitted to arbitration as provided in Title 27, Chapter 5, as if an agreement described in 27-5-114 is in effect, unless there is a collective bargaining agreement to the contrary applicable.
Thus not only should the union have the right to submit to arbitration the question of the refusal to hire Morrison, but there is an additional questionhere ofunlawful activity

on the part of the city to avoid the accumulation of annual leavewhich is itselfarbitrable by law. But even if we should conclude that the job renewal issue is not one for arbitration under the collective bargaining agreement, the matter should not end here. Morrison himself, as an individual, has a right to question in theDistrict Court, if the collectivebargaining agreement does not apply, his contractual rights both for reemployment and to annual leave time if the city acted unlawfully. I therefore dissent.

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/-I Justice