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, 

TEMSTEFS and HELPERS UNION, 

Defendants and Respondents. 

APPEAL FROK: District Court of the Thirteenth Judicial District; 

In and for the County of Yellowstone, 

The Honorable Wil-1-iam J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cate Law Firm; Brad 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 
Ptr. Justice William E. Hunt, Sr. delivered the Opinion of the 

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~urt 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 52(bj, 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-abor practice charge with the 

kontana Puman Fights Commission against the City on March 19, 

19 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 02 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 claims the delay was caused 
by Union i.nte~rfeuence. IF discovery or evidence at trial 

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, arid section 2--4-612(1), KCA. In this case, the Board 

fulfilled the fundamental requirements of due process. 

Klundt received nctj-ce and was giver, 2.n cpportuni-ty to be 

heard. The three-year delay is disturbing, but not fatal. 

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 Servj ce Regulation, Public 

Service Commission, et al. (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.antls motion 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 id 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, th~ 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 Concur: -5T 

/ -." 

Justices