                                     No.      89-620
          IN THE SUPREME COURT OF THE STATE OF MONTANA




DANIEL DEBAR, THOMAS V. HORNUNG
and JOHN S. KOCHEL,
          Plaintiffs and Appellants,


TRUSTEES, YELLOWSTONE COUNTY ELEMENTARY
SCHOOL DISTRICT NO. 2 and HIGH SCHOOL
DISTRICT NO. 2,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable William J. Speare, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Emilie Loring; Hilley                &   Loring; Missoula, Montana
          For Respondent:
               Laurence Martln; Felt                &   Martin; Billings, Montana


                                            Submitted on Briefs:    July 13, 1990
                                                           ~ecided: September 5, 1990
Filed:                     ,Ffl--+


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                                            Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

     Three school teachers brought this action for monetary relief
after being suspended without pay for 2 1/2 days.               The District
Court for the Thirteenth Judicial District, Yellowstone County,
granted summary judgment in favor of the defendants.              Plaintiffs
appeal.    We affirm.
     The sole issue for our review is whether the District Court
erred in granting summary judgment?
     The    facts    in    this   case   are    simple    and   uncontested.
Plaintiffs, three teachers (teachers),were seen drinking alcoholic
beverages on the school bus on their way home from a mandatory
staff-only field trip to Custer Battlefield. The drinking incident
was reported to the building principal.          The teachers admitted to
drinking on the bus and the matter was referred to the School
District's central personnel administrators.
     The administrators interviewed the teachers individually in
separate meetings.        At the end of each meeting, each teacher was
informed that he was suspended pending further notice.
     The next day, the teachers were notified that they were being
suspended for 2 1/2 days without pay.           School Board members were
not involved in the decision.
     After filing a grievance which was not arbitrated, and a
petition in District Court for a writ of mandate which was denied,
the teachers filed the present action as a wage claim, seeking
wages for the 2 1/2 days salary that had been lost, plus statutory
penalties and       attorney   fees under      the Wage    Protection Act.
                                     2
Concluding that the School District was immune under 5 2-9-111,
MCA; that S 20-4-207, MCA, does not apply to temporary suspensions;
and that no wage claim existed; the District Court granted the
School District's motion for summary judgment and dismissed the
case on its merits.   From that decision, the teachers appeal.
     Did the District Court err in granting summary judgment?
     The teachers maintain that as teachers under contract with
the School District, they may not be suspended without pay in the
absence of action by the school board and compliance with the
statutory requirements of 5 20-4-207, MCA.   In so contending, they
argue that they were entitled to written notice and a hearing
before they could be suspended.
     The School District contends that because it is immune under
5 2-9-111, MCA, this Court need not consider the merits of the
case.   It further maintains that 5 20-4-207, MCA, is inapplicable
to short-term suspensions. It urges that the statute only applies
to dismissals, and a "suspensionu is not a ndismissaltt.The School
District claims that the power to suspend is not a statutory power,
but rather it is derived from the power to manage.
     The question of whether a temporary suspension is governed by
5 20-4-207, MCA, is a question of first impression in Montana.
Section 20-4-207, MCA, provides (in part) as follows:
     Dismissal of teacher under contract. (1) The trustees
     of any district may dismiss a teacher before the
     expiration of his employment contract for immorality,
     unfitness, incompetence, or violation of the adopted
     policies of such trustees.
          (2) (a) The following persons may recommend the
     dismissal of a teacher for cause under subsection (1):
           (i) a district superintendent;
           (ii)   in   a   district  without                    a     district
      superintendent, a principal;            ...
             ...
           (b)   A person listed in subsection (2)(a) who
      recommends dismissal of a teacher shall give notice of
      the recommendation in writing to each trustee of the
      district and to the teacher.
           (c) The notice must state the specific instances
      of behavior or acts that led to the recommendation for
      dismissal.
           (3) (a) .        ..
                         the trustees shall notify the teacher
      of his right to a hearing before the trustees either by
      certified letter or by personal notification for which
      a signed receipt must be returned.
The   District      Court    differentiated         between     lldismissalsll
                                                                             and
I1temporarysuspensions~. It concluded that while the above statute
explicitly deals with permanent dismissals, there is nothing to
suggest     any    legislative intent that             it   apply     to    temporary
suspensions.       Therefore, the lower court held that "it is not a
violation of that statute for a short-term disciplinary suspension
to be imposed by school district central administrative personnel,
without Board action."              We agree with the conclusion of the
~istrictCourt.        We hold that 2 1/2 day disciplinary suspensions
imposed by administrative personnel do not constitute dismissals
which come under the provisions of 5 20-4-207, MCA.
      The    District       Court        further    concluded       that    temporary
suspensions are        issues covered by            the collective bargaining
agreement    which     should       be    pursued     through   the        contractual
grievance/arbitration process provided in that agreement.                         The
District Court then concluded that issues surrounding short-term
disciplinary suspensions are grievable issues under the collective
bargaining        agreement,     and      therefore    were     not    proper     for
consideration by    the   District   Court.   We   agree with   that
conclusion.
     We point out that the teachers filed this claim under the Wage
Protection Act, 5      39-3-201, MCA, &   m, claiming a statutory
penalty and attorney fees.      In Julian v. Montana State Univ.
(1987), 229 Mont. 362, 747 P.2d 196, this Court ruled that where
no labor is performed, no claim for wages existed under the Montana
Wage Protection Act.    In the present case, the plaintiffs did not
perform any work during the 2 1/2 days of suspension. As a result
the District Court concluded that the claim for compensation did
not qualify as a wage claim.   We affirm that conclusion.
     We do not find it necessary to discuss the immunity aspect of
the case.     We hold that the District Court correctly granted
summary judgment for the defendants.




We Concur:                 I
