                                 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     Court     erred       in     denying
appellant's Rule 5 2 ( b j , M.E.Civ.F.                motion to amend.
      Appellant worked                   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                   26,     1378, until
February 19, 1973.                   He was then promoted to city service
foremzn I.            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.       Appellant voluntarily terminated his employment with
the   City           on    June     10,    1-980.      On   August     24,        1983, the
Commission            issue2       its    lack    of   reasonable cause            finding.
Appellant does not contest this finding.
      Around October 17, 1380, the City posted notice to fill
a   vacant    position       for    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            the Human
Rights Commission the previous Farch.                 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
violation of his due process rights.                      The Union filed a
motion to dismiss claiming that appel-lant's complaint failed
to state a claim against the Union upon which relief could be
granted.      The Board filed a motion to clismiss alleging that
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   motion    to    anend    the    judgment pursuant           to Pule         52 (b),
b4.R.Civ.F.    This motion was denied on April 25, 1985.
      F   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.                         F7i11son    V.    Taylor
(Nont.     1981),     634    P.2d       1180,   38    St.Rep.       1606.          All
well--pleadeZ allegations 0 2 the non-l~oving party are deemed
to be true.
     Appellant     alleges      that    from   the     time    he    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    a     duty    of     fair
representation in areas covered by                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     has the right to affirmatively                  interfere with
appellant's    unfair      labor practice       charges.        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                       obtain a
sumnary judgment or a directed. verdict.            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.                The Eoard failed to set a
hearing for 37 months.         The Boa-rd repeatedly stated that
Klundt's charges had been put on hold at the request of the
Union.      Klundt alleges that this delay vjclated                   his due
process rights under the state and federal constitutions.
     The District Court properly granted respondent Board's
motion for summary judgment.           In Montana, the right to due
prccess    requires notice     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,
536 P.2d    187.    The requirements are the same whether deal-i~g
with an administrative agency or a court.             Section 2-4-601,
MCA, a i section 2--4-612(1), KCA.
      rd                                      In this case, the Board
fulfilled    the    fundamental      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      to   section   7-4-701, MCA,         "a    preliminary,
procedural,    or    intermediate     agency    action    or        ruling    is
imr;.ediately reviewable if review of the final agency decision
would! not provide ar, adequate remedy."          An agency's failure
to act constitutes agency action.           Under this stctute, Klundt
could have petitioned this Court to require the Board to hold
e hearing.      The petitioner S.n State ex rel. Great Falls Gas
Co.    v.   Department       of    Public     Servjce        Regulation,        Public
Service Commission, et a l .              (1976), 169 Ncnt.            68, 544 P.2d

815,    fzced     a    similar        situation.            The    Public     Service
Comrnissicn     failed to act on petitioner's                      request    for an
interim rate increase.            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.                           We
then    ordered        the   Commission          to     act       on   petitioner's
application      for    rate      increase.           The    same procedure was
available to appellant.                For three years, appellant Zezlt
with the Union or the Eoard, yet the Eoard failed to act.
Once    the   Board     held      a    hearing     on       appellant's      charges,
Klundt's      fundamental         right     to     due       process      was    met.
Therefore,      the     order     of    the      District         Court   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.                      motion to amend his
complaint.      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.antlsmotion 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.

        Therefore, t h ~
                       order of the District Court granting the
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
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             Justices
