No. 13674 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

RONALD G. MORRIS, Plaintiff and Respondent,

C. C. COMMUNICATIONS CORPORATION, Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, HonorableMat Allen, Judgepresiding. Counsel of Record: For Appellant: Astle and Astle, Kalispell,Montana William E. Astle argued, Kalispell,Montana For Respondent: Warden, Walterskirchen & Christiansen, Kalispell,

Montana Gary R. Christiansenargued,Kalispell,Montana

Submitted: October 7, 1977 -.g;-

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

C. C. Communications Corporation, a Florida based company, appeals from a judgmentof the Flathead County District Court awarding the plaintiff-employee vacation pay and overtimepay, together with the statutory penalties under Montana's wage statutes. C. C. Communications Corporation also appeals from the District Court's dismissal of a counterclaim it had filed against the employee. The employer's contentions are: First, the evidence was not sufficient to justify the award of vacation pay; second, the evidencewas not sufficient to sustain any agreementby the employer to pay overtime to the employee; and third, it was denied a fair trial on its counterclaim because the District Court improperly limited cross-examinationof the employee. The employment history involved here started with the employee becoming employed by the VanVelkinburg Company in September, 1970. On March 6, 1972, he went to work for the C. C. Communications Corporation, a "sister corporation" to the VanVelkinburg Company until 1974. In October, 1975, the employee was transferred from Toronto, Canada, to Kalispell,Montana to provide emergency help to the Northwestern Telephone Systems during a strike. At all times the employeewas employed by and paid by C. C. Communications Corporation although there was no written contract of employment between them. The employee continued to work for the C. C. Communications Corporation until December 31, 1975,when he resigned because of a dispute relating to payment of wages. This dispute led to the filingof

a wage claim,which is the subject of this appeal. The dispute as to the employee's right to vacation pay centers around 

### a determination of his anniversary servicedate ofemployment. The employer concedes that if the anniversary service date is September of 1970, the employee is entitled to vacation pay. The employer contends, however, that the anniversary servicedate isMarch, 1972,and, therefore, the employee is not entitled to vacationpay. In this respect, thiswas strictly a factual question presented to the District Court and resolved against the employer. There being sufficient evidence in the record to support this finding,we cannot set it aside. Rule 52,M.R.Civ.P.; Luppold v. Lewis, Mont. 

### , 563 P.2d 538, 34 St.Rep. 227, 229 (1977). 

### - The employer relies entirely on itspolicy manual of employment, which states that an employee cannot "bridge"work experience from another employer for the purpose of obtaining benefits from C. C. CommunicationsCorporation. The only policy manual introduced in evidencewas that which was introduced by the employee. This manual had an effective date of January, 1975,which was after the date the employeewent to work for the employer. Moreover, the employee testified that thiswas not the policy of the employer when he first went to work. He illustrated thisbytestifying that the first year he went to work forC. C. Communications Corporation, he was paid two weeks' vacation benefits. The policy manual required an employee to be employed two years before he was entitled to two weeks' vacation benefits. Thiswas strong evidence that the policy in effect at the time the employee firstwent to work for C. C. Communications Corporationwas not the same as that shownby the employmentpolicy manual bearing the 1975 date. It demonstrated that C. C. Communications Corporationdid allow the employee to "bridge" his employment fromVanVelkinburg Company to C. C. communications Corporation. The employer did not refute the employee's testimony. Accordingly, the District Courtproperly ruled that the employeewas entitled to vacation pay.The issue of overtimepay also involves a factual determination that the District Court resolved against C. C. Communications Corporation. The employer's sole contention is that it is not bound to pay overtimewages to the employee because there is no evidence that ithad agreed to do so. The employer contends that the employee had agreed to work for a flat salary. However, there

was substantial evidence fromwhich the DistrictCourt could conclude that the employer had agreed to pay overtimewages to the employee. The employee introduced exhibits showing that he was paid

on an hourly basis rather than on a salary for thisparticular job. These exhibits also showed that C. C. Communications Corporation had regularlybilled its client (Northwestern Telephone Systems) for the employee's overtime hours. During this entire period the employee submitted time sheets indicating the overtime hours he had worked. Moreover, the testimony of amanager of C. C. Communications Corporation, together with that of another employee, supported the employee's contention that there was an agreement to pay $500 a week for 40 hours and time and a half for anything over a 40-hour week. During the course of the employment, themanager continued to assure the employee of compensation for overtime. Based on these assurances, the employee continued to work overtime. The employer called onemanagement witness who testified that therewas no agreement for the employee to receive overtimepay and that the employeewas on a salary. Given this conflict in the evidence, the questionwas one of fact for the District Court to resolve. Schulz

### v. Fox, 136 Mont. 152, 345 P.2d 1045 (1959). Clearly, it was the province of the DistrictCourt to resolve any discrepancies. The third issue relates to the employer's counterclaim, which in essence charged that the employee did not properly accountfor funds entrusted to him. Before trial the employer took the employee's deposition, and also submitted detailed interrogatories to the employee concerning the funds, which interrogatories were answered. The employer also obtained the employee's records relating to themoney entrusted to him. The trialwas held in one day, August 17, 1976. Near the end of the trial, just before crossexamination of the employee started, the trial judge stated to


### . counsel: "Iwill give you five minutes [tocross-examine]." Counsel contends that this limitationdeprived the employer of a fair trial. On the factsbefore us,we do not agree. The trial judge's statement to employer's counselwas not made in the context the employer asserts. Itwas 5:00 p.m. and the trial judge asked employee's counsel how much time he needed before he finished the direct examination. The answer was that he

was finished with the employee, and thenwould call another witness for a brief examination. At the conclusion of the examination of the employee, the employer's counsel stated to the court: "MR. ASTLE: Your Honor, Iwill attempt to be very brief. Ihave a fewquestions, justvery brief. "THECOURT: 

### Iwill give you five minutes." From this it is obvious that counsel in effect told the court he needed only a fewminutes to do the entire cross-examination. Counsel did not object to this time limitation and conducted a very brief examination concludingwith the remark: "YourHonor, 

### Ihave no furtherquestions." Moreover, at the completion of this crossexamination, another witness was called to testify,was examined, cross-examined,and examined again on re-direct before the completion of the day-long trial. Counsel at no time indicated he needed more time to examine eitherwitness. At the conclusion 

### of trial, the trial judge suggested that because of the voluminous and complicated records as to the accounting,the parties might like to submit them to an accountant for proper study. The accountant could thenmake a report to the court. The employer never took up this suggestionnor suggested at a later time that itwanted an accountant to do a detailed study of the records.In the employer's motion in the DistrictCourt for a new trial, counsel did not point out the need for furtherquestioning, and did not show in any way how additional cross-examinationwould have, or even might have, benefited the employer. Under these circumstances we cannot say the employerwas denied a fair trial because of time restrictionsplaced upon the cross-examination of the employee. The judgment of the District Court is affirmed.

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We Concur: