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, 

Honorable Mat Allen, Judge presiding. 

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. Christiansen argued, Kalispell, Montana 

Submitted: October 7, 1977 

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Filed:-: ig& 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

C. C. Communications Corporation, a Florida based company, 

appeals from a judgment of the Flathead County District Court 

awarding the plaintiff-employee vacation pay and overtime pay, 

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 

evidence was not sufficient to sustain any agreement by 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-examination of 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 

employee was 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 filing of 

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 service date of 
employment. 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 service date 

is March, 1972, and, therefore, the employee is not entitled to 

vacation pay. In this respect, this was 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 its policy manual of employment, which states that an employee cannot "bridge" work experience 

from another employer for the purpose of obtaining benefits from 

C. C. Communications Corporation. The only policy manual introduced 

in evidence was that which was introduced by the employee. This 

manual had an effective date of January, 1975, which was after the 

date the employee went to work for the employer. Moreover, the 

employee testified that this was not the policy of the employer 

when he first went to work. He illustrated thisbytestifying that 

the first year he went to work for C. 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. This was strong evidence that the policy 

in effect at the time the employee first went to work for C. C. 

Communications Corporation was not the same as that shown by the 

employment policy manual bearing the 1975 date. It demonstrated 

that C. C. Communications Corporation did allow the employee to 

"bridge" his employment from VanVelkinburg Company to C. C. communications Corporation. The employer did not refute the employee's 

testimony. Accordingly, the District Court properly ruled that 

the employee was entitled to vacation pay. 
The issue of overtime pay 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 overtime wages to the employee because there is no 

evidence that it had agreed to do so. The employer contends that 

the employee had agreed to work for a flat salary. However, there 

was substantial evidence from which the District Court could conclude that the employer had agreed to pay overtime wages to the 

employee. 

The employee introduced exhibits showing that he was paid 

on an hourly basis rather than on a salary for this particular job. 

These exhibits also showed that C. C. Communications Corporation 

had regularly billed 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 a manager 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, the manager continued to assure the 

employee of compensation for overtime. Based on these assurances, 

the employee continued to work overtime. 

The employer called one management witness who testified 

that there was no agreement for the employee to receive overtime pay 

and that the employee was on a salary. Given this conflict in the 

evidence, the question was 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 District Court to resolve any 

discrepancies. 

The third issue relates to the employer's counterclaim, 

which in essence charged that the employee did not properly account 
for 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 the money entrusted to him. The trial was 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: "I will give you five minutes [to cross-examine]." 

Counsel contends that this limitation deprived the employer of a 

fair trial. On the facts before us, we do not agree. 

The trial judge's statement to employer's counsel was not 

made in the context the employer asserts. It was 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 then would 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, I will attempt to be 

very brief. I have a few questions, just very 

brief. 

"THE COURT: I will give you five minutes." 

From this it is obvious that counsel in effect told the 

court he needed only a few minutes to do the entire cross-examination. 

Counsel did not object to this time limitation and conducted a very 

brief examination concluding with the remark: "Your Honor, I have 

no further questions." 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 either witness. 

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 then make a report to the court. The 

employer never took up this suggestion nor suggested at a later 

time that it wanted an accountant to do a detailed study of the 

records. 

In the employer's motion in the District Court for a new 

trial, counsel did not point out the need for further questioning, 

and did not show in any way how additional cross-examination would 

have, or even might have, benefited the employer. 

Under these circumstances we cannot say the employer was 

denied a fair trial because of time restrictions placed upon the 

cross-examination of the employee. 

The judgment of the District Court is affirmed. 

/ - 

We Concur: