NO. 85-258 LN THE SUPREME COURT OF THE STATEOF MONTANA 1985



### JERRY T. KLUNDT, Plaintiffand Appellant,

STATE OF MONTANA, 

### ex rel., RGARD OF PERSONNEL APPEALS and CHAUFFEURS, TEMSTEFS and HELPERS UNION, Defendantsand Respondents.

APPEAL FROK: DistrictCourt 

### of theThirteenth JudicialDistrict; In and for theCounty ofYellowstone, The HonorableWil-1-iamJ. Speare, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: CateLaw Firm; Brad L. Arndorfer,Eillings,Montana
For Respondent: R. Scott Currey,Dept. 

### of Labor & Industry,Helena, Eontana C. PatrickMcKittrick;McKittrick 

### Law Firm, (Union), Great Falls,Montana

SubmittedonBriefs: Oct.. 3, 1985 Cecided.: January 2, 1986

-. -- ClerkPtr. JusticeWilliam 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 canbe granted. The order granting the Board of Personnel Appeal's motion to dismiss is affirmed, and the order granting the Union'smotion to dismiss is reversed. Cr, appeal, the appel-lankraises the following issues:

(1) Whether the District C~urterred 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 interferenceand 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. Hewas demoted to equipment operatoron 1.7arch 17, 1980.Appellant filed an unfair 1-aborpractice charge with the kontana PumanFights Commission against theCity onMarch 19, 1980. 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 doesnot 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 nothired. Appellant then filed grievances with theBoard of PersonnelAppeals (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'scomplaint failed to state a claim against theUnion uponwhich relief could be granted. The Board filed a motion to clismiss alleging that a-ppellantfailed to exhaust his administrative remedies and that his complaint failed to state a claim upon which relief
canbe granted. OnApril 9,1985, theDistrict 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 motionwas denied onApril 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. Allwell--pleadeZallegations 02 the non-l~ovingparty are deemed tobe 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 ofMontana (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 chargeswith the Eoard 

### of PersonnelAppeals, a state agency. Klundt alleges that the Union requested the Board toput his charges onhold. Even if theUnion 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-yeardelay nay have prejudiced the appel-lant'shandling 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 delaywas causedby 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 amatter of 

### lawRlurdt canprove no set 

### cf facts stating a claim against theUnion. 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), 1-80Wont. 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-ceand was giver, 2.n cpportuni-tyto 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;.ediatelyreviewable if review

### of the final agency decision would! not provide ar, adequate remedy." An agency's failure to act constitutesagency action. Under this stctute,Klundt couldhavepetitioned this Court to require theBoard toholde hearing. The petitioner S.n State ex rel. Great Falls Gas Co. v. Department of Public Servjce 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-icationfor 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 wasproper. Finally, appellant claims that the District Court erred in denying his Rule 52(b), b5.R.Civ.P. motion to amend his complaint. Alth.oughappellant raises this argument,he cites no authority andmakes 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 DistrictCourt 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 canmore properly be characterizedas
a Mule 15 n.otion 

### to amend pleadings. Even so, the District Court's denial of the motion was proper. Klundt idnotsi.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 theUnion's motion.todismiss is r

We Concur: -5T /-."

Justices