KLUNDT v STATE
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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, T E M S T E F S and HELPERS UNION, Defendants and Respondents. APPEAL FROK: District Court of the Thirteenth Judicial District; In and for the County of Yellowstone, The Honorable W i l - 1 - i a m J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant: Cate Law Firm; B r a d 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 -. - - P r Justice William E. Hunt, Sr. delivered the Opinion of the t. 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 ~ u r t 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 appellant's Rule 5 2 ( b j , M.E.Civ.F. Appellant worked Court erred in denying motion to amend. 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 February 19, 1973. foremzn I. 26, 1378, until He was then promoted to city service He was demoted to equipment operator on 1.7arch 17, 1980. Appellant filed an unfair 1-aborpractice charge with the kontana Puman Fights Commission against the City on March 19, 1 9 80. the Appellant voluntarily terminated his employment with City Commission on June issue2 10, its 1-980. lack of On August 24, reasonable cause Appellant does not contest this finding. 1983, the finding. Around October 17, 1380, the City posted notice to fill a vacant for position 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 Rights Commission the previous Farch. the Human 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 The Union filed a violation of his due process rights. motion to dismiss claiming that appel-lant's complaint failed to state a claim against the Union upon which relief could be The Board filed a motion to clismiss alleging that granted. 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 judgment pursuant motion b4.R.Civ.F. F to anend the to Pule 52 (b), This motion was denied on April 25, 1985. 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. (Nont. 1981), 634 P.2d 1180, 38 F7i11son St.Rep. V. 1606. Taylor All well--pleadeZ allegations 0 2 the non-l~oving party are deemed to be true. Appellant alleges that from the he time 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 representation in areas covered by a duty of fair 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 appellant's has the right to affirmatively unfair labor practice charges. interfere with 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 c l a i m s the delay was caused by Union i.nte~rfeuence. IF discovery or evidence at t r i a l fails to support Riundt's claim, the Union may sumnary judgment or a directed. verdict. obtain a 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. hearing for 37 months. The Eoard failed to set a The Boa-rd repeatedly stated that Klundt's charges had been put on hold at the request of the Klundt alleges that this delay vjclated Union. his due process rights under the state and federal constitutions. The District Court properly granted respondent Board's motion for summary judgment. prccess requires notice In Montana, the right to due 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, 187. 536 P.2d The requirements are the same whether deal-i~g with an administrative agency or a court. rd MCA, a i section 2--4-612(1), KCA. fulfilled the fundamental Section 2-4-601, In this case, the Board requirements of due process. Klundt received nctj-ce and was giver, 2n cpportuni-ty to be . heard. The three-year delay is disturbing, but not f a t a l . According procedural, or to section 7-4-701, MCA, intermediate agency action "a preliminary, or ruling is imr;.ediately reviewable if review of the final agency decision would! not provide ar, adequate remedy." to act constitutes agency action. An agency's failure Under this stctute, Klundt could have petitioned this Court to require the Board to hold The petitioner S.n State ex rel. Great Falls Gas e hearing. Co. v. Department of Public Service Commission, et a l . 815, fzced Comrnissicn a similar Servjce Regulation, (1976), 169 Ncnt. situation. The failed to act on petitioner's interim rate increase. Public 68, 544 P.2d Public Service request for an 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. then ordered application the for to Commission rate increase. act The on We petitioner's same procedure was For three years, appellant Zezlt available to appellant. with the Union or the Eoard, yet the Eoard failed to act. Once the Klundt's Board held fundamental Therefore, the order a hearing right of to the on due appellant's process District Court charges, was met. 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. complaint. motion to amend his 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 i d 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. order of the District Court granting the Therefore, t h ~ Eoard's motion to dismiss is affirmed, and the order granting the Union's motion. to dismiss is r We C o n c u r : -T 5 / -" . Justices
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