NO. 88-51 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

LOCAL 1 3 3 4 , 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 Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph W. Duffy, Great Falls, Montana 

For Respondent: 

David Gliko, City Attorney, Great Falls, Montana 

Submitted on Briefs: July 21, 1988 

Decided: August 25, 1988 

&U6 2 5 1988 

Filed: 

Clerk 
Mr. 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), over whom 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 capactiy as a full-time 

meter reader. Morrison was hired to perform Linton's duties 

as a meter reader until Linton could recover and resume work. 

Morrison worked from April 16, 1984 to October 12, 

1984, two days short of six calendar months. 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, one day short of six calendar months. 

The City argues that after Linton was 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 the 
seniority clause of the Union contract because he had not 

been employed for six continuous months. 

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 job was given to an applicant who claimed 

veteran's preference and scored second out the the final 

fifteen applicants. 

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 

the matter 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 

since Linton was unable to work, 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 contract by: (1) creating 

a temporary position more than one time; (2) discharging 

Morrison, for the second time, from a position that could not 

have been temporary at that time; and (3) refusing to recall 

Morrison to the permanent position. 

The Union argues that these matters are provided for by 

the contract for arbitrat.ion and that the City stalled and 
vacillated on the grievance in such a way that by the passage 

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 obligation of arbitration. 

The section on arbitration in the contract contained in 

Article VII, Step 6, B, provides as follows: 

Any grievance involving a monetary issue, 

including those related to hours and 

working conditions which could have an 

apparent economic effect or impact less 

than five hundred 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 it held 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 the hiring. 

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 such was established after 120 days. However, 

as previously noted here, the 120 days were over two periods 
of hiring. The City's argument stated that in order to have 

seniority rights, an employee must work a six-month 

continuous period. 

The trial court found in its findings of fact that. 

Linton was a permanent employee and because of his 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 the Union. 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 

failure of the City to hire Morrison as a permanent 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 as matter of public policy." See, 
Hoehne v. Sherrodd, Inc. (1983), 205 Mont. 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 arbitration under Article VII, 

Step 6, B,of the collective bargaining 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 collective bargaining agreement. 

The court also noted that the "temporary" position 

filled by Morrison was "not renewable" as contemplated by the 

last phrase of Article 111, Section C. The court noted that 

5 2-18-601, MCA, provides in part: 

(12) "Continuous employment" means 

working within the same jurisdiction 

without a break in service of more than 5 

working days or without a continuous 

absence without pay of more than 15 

working days. 

(13) "Break in service" means a period of 

time in excess of 5 working days when the 

person is not employed and that severs 

continuous employment. 

The break in Morrison's employment, twenty days, from October 

12, 1984 to November 2, 1984, represented a substantial break 

in the service. Therefore, his employment cannot be 

considered continuous nor renewable as contemplated by the 

collective bargaining agreement. 

Finally, the District Court found that Morrison 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 not 
work for six continuous months. The District Court correctly 

granted the motion for summary judgment. 

Affirmed. 

We concur: 

C 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. 

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 the most minuscule of disputes. 

What is more important to me 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 computation of annual vacation leave which 

provides for temporary employees: 

(5) Temporary employees do not earn vacation leave 

credits, except that a temporary employee who is 

subsequently hired into a permanent position within 

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 for 
Morrison. Such a procedure is unlawful under S 2-18-621, 

MCA : 

Unlawful termination. It shall be 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 question here of unlawful activity 

on the part of the city to avoid the accumulation of annual 

leave which is itself arbitrable 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 the District Court, if the collective bargaining agreement 

does not apply, his contractual rights both for reemployment 

and to annual leave time if the city acted unlawfully. 

I therefore dissent. .- 

: - '\ I '.- 

/- I Justice