                             No.   92-295

          IN THE SUPREME COURT OF THE STATE OF MONTANA




FRAZER EDUCATION
ASSOCIATION, MEA/FEA,
                                                             JAN 2 1 1993
          Plaintiff and Respondent,
     v.
                                                       :   T A T S OF MONTANA
BOARD OF TRUSTEES, VALLEY COUNTY
ELEMENTARY SCHOOL DISTRICT NO. 2
and HIGH SCHOOL DISTRICT NO. 2B,
          Defendants and Appellants.



APPEAL FROM:   District Court of the Seventeenth Judicial
               District, In and for the County of Valley,
               The Honorable Leonard H. Langen, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               James D. Rector, Attorney at Law,
               Glasgow, Montana
          For Respondent:
               Emilie Loring, Hilley   &    Loring,
               Missoula, Montana


                            Submitted on Briefs:      November 12, 1992
                                           Decided:   January 21, 1993
Filed:
Justice ~illiam E. Hunt, Sr., delivered the opinion of the
Court.
       Plaintiff and respondent, Frazer Education Association (Union)
brought suit in the District Court for the Seventeenth Judicial
District, Valley     County, against defendants and      appellants,
Trustees of the Valley County School District (School District).
The Union filed suit to compel arbitration pursuant to the Uniform
Arbitration Act found at 5 27-5-101 through -324, MCA, and the
terms of the collective bargaining agreement in effect at the time
between the parties. The School District appeals from the District
Court's judgment granting summary judgment to the Union.          We
affirm.
       The only issue before the Court is whether the District Court
erred in granting summary judgment.
       In September 1990, former Frazer School Superintendent John
Marlett recommended to the School District Board of Trustees that
tenured teacher James Wheeler be dismissed pursuant to 5 20-4-207,
MCA.      Following a hearing by the Board of Trustees on the
Superintendent's recommendation, the Board dismissed Wheeler from
his teaching position.
       Wheeler filed a notice of appeal of his dismissal with the
Valley County Superintendent of Schools pursuant to statute on
December 21, 1990.    On January 11, 1991, three days prior to the
scheduled hearing, Wheeler requested a continuance.     The hearing
was reset for March 14, 1991. On January 16, 1991, the Union filed
a grievance under the terms of the collective bargaining agreement
regarding Wheeler's dismissal.    The Superintendent declined to
process the Union's grievance in light of the pending statutory
appeal and the Superintendent's interpretation of this Court's
decision in City/County of Butte-Silver Bow v. State (1987), 225
Mont. 286, 732 P.2d 835.
     Wheeler dismissed his statutory appeal on March 4, 1991, ten
days prior to the scheduled hearing.   On May 18, 1991, the Union
filed this suit to compel arbitration of its previously filed
grievance. Both parties filed motions for summary judgment in late
1991.   Following a stay pending this Court's decision in Colstrip
Faculty v. Rosebud County Trustees (1992), 251 Mont. 309, 824 P.2d
1008, the matter was submitted on briefs. The District Court heard
oral argument by long distance telephone conference call regarding
the motions for summary judgment. The District Court then filed a
memorandum opinion and order granting the Union's motion for
summary judgment and denying the School District's motion for
summary judgment.   The School District appeals.
     The only issue before the Court is whether the District Court
erred in granting summary judgment in favor of the Union.
    A district court judge may grant summary judgment when:
     [Tlhepleadings,depositions, answersto interrogatories,
     and admissions on file, together with the affidavits, if
     any, show that there are no genuine issues of material
     fact and that the moving party is entitled to judgment as
     a matter of law.
Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284,
815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P.   The party moving for
summary judgment has the initial burden of showing that there is a
complete absence of any genuine issue of material fact. To satisfy
this burden, the movant must make a clear showing as to what the
truth is so as to exclude any real doubt as to the existence of any
genuine issue of material fact. Kober v. Stewart (1966), 148 Mont.
117, 417 P.2d 476.     Summary judgment is never an appropriate
substitute for a trial if a factual controversy exists. Reeves v.
Reinbold (1980), 189 Mont. 284, 615 P.2d 896.      Upon reviewing a
grant or denial of a motion for summary judgment, this Court
applies the same standard as the district court.
     The question before the District Court was whether a union may
pursue a grievance to arbitration under the terms of a collective
bargaining agreement, even though one of its members may have
sought remedy by initiating a distinct statutory appeal process.
 his is essentially the same issue that was before this Court in
the Colstriv case.   However, in Colstriv we did not reach this
issue as the case was decided on narrower procedural grounds.
     The School District concedes that upon dismissal Wheeler had
two distinct avenues for remedy.   The School District argues that
upon dismissal Wheeler could either have initiated a statutory
appeal process seeking remedy or he could have filed a grievance
pursuant to the collective bargaining agreement.      However, the
School District contends that upon Wheeler's selection of the
statutory appeal process, the Union was then barred by the
equitable doctrine of election of remedies from subsequently
pursuing a remedy pursuant to the collective bargaining agreement.
     The Union argues that election of remedies does not apply in
this case and that Wheeler and the Union were both free to pursue
a remedy by proceeding concurrently with both avenues of appeal.
The Union argues in the alternative that by dismissing the
statutory appeal Wheeler was not proceeding concurrently with the
Union.   The School District responds by arguing that the election
of remedies doctrine applies despite the dismissal ofthe statutory
appeal, thus foreclosing the Union from proceeding under the
collective bargaining agreement.     The District Court granted
summary judgment in favor of the Union on the basis that election
of remedies did not apply. Additionally, the District Court based
its decision on the fact that Wheeler had dismissed his statutory
appeal and that, therefore, there were not two concurrent appeals
proceeding at the same time.
     The School District relies heavily on this Court's decision in
Butte-Silver Bow.    In Butte-Silver Bow, we held that a police
officer's only remedy to contest a decision to terminate him was by
the applicable statutory procedure.       The police officer had
attemptedto concurrently pursue remedies under the statute and the
collective bargaining agreement. In Butte-Silver Bow, we noted the
possibility that two concurrent proceedings could result in
conflicting and contradictory holdings.   However, that potential
problem was not the basis for our holding.        Our decision in
Butte-Silver Bow was based on the determination that the collective
bargaining agreement in effect only provided for a statutory
remedy. Election of remedies was not an issue because the officer,
unlike Wheeler in the present case, had only one option available
and that was to proceed by seeking a statutory remedy. The School
District argues that Wheeler's situation is similar to that of the
police officer and that Butte-Silver Bow should govern in this
situation.      This argument   is   inconsistent with   the School
District's concession that upon dismissal Wheeler could select to
seek remedy by either a statutory appeal or by filing a grievance
under the collective bargaining agreement.     Butte-Silver Bow is
readily distinguishable from the present case and the School
District's reliance upon it is misplaced.
     The School District argues that if the doctrine of election of
remedies is not applied in this case that it will be unduly
burdened in having to defend against two simultaneous proceedings.
~dditionally,there is the possibility of two conflicting results.
The Union counters by arguingthat collective bargaining agreements
can and do contain provisions for limiting an employee and a union
to one avenue of appeal only. The collective bargaining agreement
between the parties in this case, however, contains no such
provision.    The Union asserts that the School District is now
attempting to secure a restriction of remedies through the use of
the equitable doctrine of election of remedies, which it was unable
to obtain at the bargaining table.
     Wheeler had two options upon dismissal.       Nothing in the
collective bargaining agreement restricts the availability of these
options.     The only question is whether he was required by the
doctrine of election of remedies to select one option and thus
abandon the other.       This Court has previously recognized the
election of remedies doctrine.      Massett v. The Anaconda Company
(l98l), 193 Mont. 131, 630 P.2d 736.    Both parties agree that there
are three determining factors in applying the election of remedies
doctrine. All three criteria must be satisfied before the doctrine
of election of remedies may be successfully invoked. These factors
are :
        1.   The existence of two or more remedies;
        2.   an inconsistency between such remedies; and
        3.   a choice of one of them.
25 Am. Jur. 2d Election of Remedies S 8 (1966).
        The Union's initial attack of the application of election of
remedies in this situation rests on the contention that there are
different parties seeking the remedy in this situation. The Union,
in attempting to distinguish Butte-Silver Bow, points out that in
Butte-Silver Bow it was the same party seeking concurrent remedies
and not two distinct parties.    The Union also argues that not only
are the parties different, but the Union is attempting to protect
different rights, although the remedy sought is the same.        The
Union and Wheeler both seek the same remedy, but the Union is
motivated    in part by its desire to enforce and protect the
collective bargaining agreement. The District Court found that the
parties were not identical and this determination served in part as
a basis for the District Court's decision that election of remedies
did not apply.
     The School District argues in its brief "that both actions
have been brought by the same party to resolve the same issues."
The School District argues that in Palmer v. City of Oakland (Cal.
Ct. App. 1978), 86 Cal. App. 3d 39, 150 Cal. Rptr. 41, the
California Court of Appeals, in a similar situation found that
certain union member employees and the union were in privity and
should, therefore, be treated as if they were the same party.
While supportive of the School ~istrict's contention that the
parties in this case should be treated as if they were identical,
the Palmer case does not further the School District's argument
concerning election of remedies.    Election of remedies was not an
issue in Palmer.    In Palmer, the union members had entered into a
stipulation in regard      to certain litigation and     the union
subsequently attemptedtotake a contrary position in later related
litigation.   The California Appeals Court, finding that the union
members and the union were in privity, did not allow the union to
assert a position contrary to the position taken earlier by the
union members.    In this case, we need not determine if the parties
are in privity and should be treated as if they were the same
party, because in any event the doctrine of election of remedies
does not apply.
     The first criteria of election of remedies is clearly
satisfied in this case. There were two distinct remedies available
to Wheeler upon dismissal. The satisfaction of the third criteria
is disputed by the parties.    The Union contends that Wheeler did
not make an exclusive election of any remedy because he dismissed
his statutory appeal.     The School District argues that his
abandonment of the remedy did not revoke his election.          The
District Court appears to have given considerable weight to the
fact that Wheeler abandoned his statutory appeal.    However, this
Court need not determine if Wheeler's initiation of a statutory
appeal and his subsequent dismissal of that appeal constituted an
irrevocable election of that remedy because the second criteria
necessary for application of the election of remedies is clearly
not satisfied in this case.
     The second criteria which must be met in order to apply the
doctrine of election of remedies is that the available remedies
must be inconsistent. The doctrine may be successfully invoked:
     [Wlhere there are two or more coexistent remedies
     available to the litigant at the time of the election
     which are repugnant and inconsistent. This rule is upon
     the theory that, of several inconsistent remedies, the
     pursuit of one necessarily involves or implies the
     negation of the others. The rule of irrevocable election
     does not apply where the remedies are concurrent or
     cumulative merely, or where they are for the enforcement
     of different and distinct rights or the redress of
     different and distinct wrongs.
25 Am. Jur. 2d Election of Remedies 5 10 (1966).

     The Union has argued that in seeking its remedy it is
attempting to enforce a different and distinct right than is
Wheeler.   If this Court were to accept that argument, then the
election of remedies doctrine would not apply.   However, it is not
necessary to make that determination in this case as it is clear
that the remedies sought are consistent and merely cumulative.
Both parties seek the same remedy.   In attempting to determine if
the remedies are inconsistent it has been said that:
     [Tlhe so-called inconsistency of remedies" is not in
     reality an inconsistency between the remedies themselves,
     but must be taken to mean that a certain state of facts
     relied on as the basis of a certain remedy is
     inconsistent with, and repugnant to, another certain
     state of facts relied on as the basis of another remedy.
     For one proceeding to be a bar to another for
     inconsistency, the remedies must proceed from opposite
     and irreconcilable claims of right and must be so
     inconsistent that a party could not logically assume to
     follow one without renouncing the other. Two modes of
     redress are inconsistent if the assertion of one involves
     the negation or repudiation of the other. In this sense,
     inconsistency may arise either because one remedy must
     allege as fact what the other denies, or because the
     theory of one must necessarily be repugnant to the other.
25 Am. Jur. 2d Election of Remedies 5 11 (1966).

     The School District argues at one point in its brief that the
Union, who allegedly is in privity with Wheeler, is seeking an
inconsistent remedy. This position is contradicted by the argument
elsewhere in its brief that the two proceedings should not be
allowed because they are duplicative, seek a resolution of the same
issue, and are asking for the same remedy. The two remedies sought
are not inconsistent. While a duplication of hearings ought to be
avoided when   possible, there   is nothing    in the   collective
bargaining agreement nor the law of election of remedies which
precludes concurrent proceedings in this situation.
    The judgment of the District Court is affirmed.
We concur:



     Chief Justice




         Justices
Chief Justice J. A. Turnage specially concurring:
     I concur with the result the majority has reached in this case
but not for all of the reasons stated.
     I concur in the result because James Wheeler dismissed his
statutory appeal to the Valley County Superintendent of Schools
and, therefore, he had but one remaining remedy available under the
terms of the collective bargaining agreement in his suit to compel
arbitration of his filed grievance.   The majority opinion discus-
sion of election of remedies is not now appropriate because of the
dismissal of the statutory appeal.
     The district judge's reliance in part upon the fact of such
dismissal is appropriate and should be the basis for the decision
of the majority in this case.




Justice Karla M. Gray and Justice Fred J. Weber, specially
concurring:
     We concur in the special concurring opinion of Chief Justice
Turnage.
                                    January 21, 1993

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


James D. Rector
RECTOR & HICKEL
P.O. Box 1360
Glasgow, MT 59230

EMILIE LORING
Attorney at Law
500 Daly Avenue
Missoula, MT 59801




                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE O F MONTANA
