                                 NO. 88-51
                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1988



LOCAL 1 3 3 4 , LABORERS INTERNATIONAL
UNION OF NORTH AMERICA, AFL-C89,
                 Plaintiff and Appellant,
         -vs-
CITY OF GREAT FALLS,
                 Defendant and Respondent.




APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Joseph W. Duffy, Great Falls, Montana
         For Respondent:
                 David Gliko, City Attorney, Great Falls, Montana



                                   Submitted on Briefs:   July 21, 1988
                                     Decided:   August 25, 1988
          &U6 2 5 1988
Filed:


                                   Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

       This appeal is from an order and judgment of the
District Court of the Eighth Judicial District, Cascade
County, State of Montana, granting the City of Great Falls'
motion for summary judgment. The parties' dispute concerns
the terms and conditions of a labor agreement between them.
We affirm.
       Vance Morrison (Morrison), over whom this action arose,
is a member of Local 1334, Laborers International Union of
North America (Union).     He was hired by the City of Great
Falls (City) as a "temporary" employee on April 16, 1984,
temporarily replacing a permanent employee, Richard Linton
 (Linton). Linton had suffered an industrial accident on the
job and was unable to continue in his capactiy as a full-time
meter reader. Morrison was hired to perform Linton's duties
as a meter reader until Linton could recover and resume work.
       Morrison worked from April 16, 1984 to October 12,
1984, two days short of six calendar months. Linton returned
to work on October 15, 1984. However, due to his injury he
worked approximately three days, and subsequently returned to
workers' compensation status.     Thereafter, on November 2,
1984, Morrison was rehired for the second time to replace
Linton pending the City's decision on whether to create a
permanent meter reader position.     Morrison's second hiring
period with the City lasted from November 2, 1984 to April
30, 1985, one day short of six calendar months.
       The City argues that after Linton was unable to return
to work, the City decided to hire a new permanent employee.
Further, since the City considered Morrison's position to be
temporary, he had not gained recall rights under the
seniority clause of the Union contract because he had not
been employed for six continuous months.
      Morrison, along with 276 other applicants, applied for
the permanent meter reader position.     Of the 276, fifteen
applicants were selected after initial screening. Morrison
rated eleventh out of the final fifteen. According to the
city attorney, the job was given to an applicant who claimed
veteran's preference and scored second out the the final
fifteen applicants.
      The issues are as follows:
      1. Whether    the   District   Court   erred   in   its
interpretation of the contract at issue in the plaintiff's
complaint.
      2. Whether the District Court erred in not directing
the matter to be submitted to arbitration.
      The appellant, Union is a labor organization certified
to represent employees in collective bargaining matters and
is so certified to represent employees working for the City.
The City is an employer as defined by the Montana Public
Employees Collective Bargaining Act. The Union argues that
since Linton was unable to work, and the City had "recreated"
the temporary meter reader's position and rehired Morrison,
and after Morrison's second 179-day layoff, that the City
could not advertise for a permanent employee to perform the
same duties that both Linton and Morrison had previously
performed.   The Union argues that after Morrison's second
layoff the City violated his Union contract by: (1) creating
a temporary position more than one time; (2) discharging
Morrison, for the second time, from a position that could not
have been temporary at that time; and (3) refusing to recall
Morrison to the permanent position.
      The Union argues that these matters are provided for by
the contract for arbitrat.ion and that the City stalled and
vacillated on the grievance in such a way that by the passage
of time, the potential cost to the City of losing the
grievance would exceed $500. Over the $500 mark, the City
argued it could invoke Article VII, Step 6, B, of the
Grievance Procedure, its working agreement, which excused it
from the obligation of arbitration.
      The section on arbitration in the contract contained in
Article VII, Step 6, B, provides as follows:
           Any grievance involving a monetary issue,
           including those related to hours and
           working conditions which could have an
           apparent economic effect or impact less
           than five hundred dollars ($500) shall be
           subject to final and binding arbitration.
           Any monetary issue, as defined in the
           last sentence, in excess of five hundred
           dollars ($500) may be subject to final
           and binding arbitration only if mutually
           agreed upon.
      It is the City's position that it held the job open for
Linton, the injured worker, as long as it could. The reason
for creating the temporary position was to help the injured
worker and not to create a situation where the person hired
in the temporary position could claim seniority benefits.
The City also argues that Morrison understood this at the
time of the hiring.
      The Union argues, contrary to the City's position, that
Linton's job was a permanent position and when Morrison was
recalled to that position having worked 120 days, he
established seniority. Furthermore, Morrison was entitled to
continue in the position and, as such an employee and due to
his second hiring, he was not in a temporary position and
therefore entitled    to proceed     through the grievance
procedure.   The Union argues that Morrison had seniority
rights because such was established after 120 days. However,
as previously noted here, the 120 days were over two periods
of hiring. The City's argument stated that in order to have
seniority rights, an employee must work a six-month
continuous period.
      The trial court found in its findings of fact that.
Linton was a permanent employee and because of his industrial
accident Morrison was hired as a temporary employee.
Morrison was hired the second time on a temporary basis
pending the City's decision to fill the position on a
permanent basis.    When it was determined that Linton could
not return to work, the City advertised the position and
hired a full-time meter reader on August 19, 1985.        The
District Court noted that Morrison was considered among
various applicants for the position.     The court found the
parties were bound by the collective bargaining agreement
entered into between the City and the Union. This collective
bargaining agreement was considered by the court in its
decision and was attached to the court's findings of fact and
conclusions of law as an exhibit. In addition, the District
Court found that pursuant to the grievance procedure under
the collective bargaining agreement, the Union grieved the
failure of the City to hire Morrison as a permanent full-time
employee   in    the    full-time  meter   reader   position.
Additionally, the City denied the grievance through Steps 1
through 6 and further denied the plaintiff's request for
arbitration pursuant to Article VII, Step 6, B, of the
agreement.
      In granting summary judgment the District Court found
that the City properly denied the grievance under the
conditions of the collective bargaining agreement.        The
District Court correctly stated in its conclusions of law
that "Morrison's grievance claimed entitlement to the
permanent full-time meter reader position inclusive of
back-pay cannot be waived as matter of public policy." See,
Hoehne v. Sherrodd, Inc. (1983), 205 Mont. 365, 668 ~ . 2 d
                                                          232.
In denying the Union arbitration, the court found the claim
well in excess of $500 in monetary value and that the City
properly denied the claim for arbitration under Article VII,
Step 6, B,of the collective bargaining agreement.
      As to summary judgment the court noted that Morrison's
employment fell short of six months on both occasions and
thereby the position was a temporary position under Article
111, Section C of the collective bargaining agreement.
      The court also noted that the "temporary" position
filled by Morrison was "not renewable" as contemplated by the
last phrase of Article 111, Section C. The court noted that
5 2-18-601, MCA, provides in part:


           (12) "Continuous     employment"    means
           working within the same jurisdiction
           without a break in service of more than 5
           working days or without a continuous
           absence without pay of more than 15
           working days.
           (13) "Break in service" means a period of
           time in excess of 5 working days when the
           person is not employed and that severs
           continuous employment.
The break in Morrison's employment, twenty days, from October
12, 1984 to November 2, 1984, represented a substantial break
in the service.       Therefore, his employment cannot be
considered continuous nor renewable as contemplated by the
collective bargaining agreement.
      Finally, the District Court found that Morrison did not
qualify for "recall" under the seniority clause, Article XI1
of the collective bargaining agreement, since recall rights
are not earned until an employee has been employed for six
months of continuous service. We agree. Morrison did not
work for six continuous months.   The District Court correctly
granted the motion for summary judgment.
      Affirmed.




We concur:




C




Justices
Mr. Justice John C. Sheehy, dissenting:


     I dissent.
     The position under Art. VI, B that any employment
dispute having an economic impact more than $500 is
"non-grievable" (in the parlance of the parties) guts the
protection to employees under the collective bargaining
agreement.   That position forecloses any arbitration except
for the most minuscule of disputes.
     What is more important to me in this case is the obvious
use by the city of the collective bargaining agreement to
engage in the unlawful practice of preventing a temporary
employee from accumulation of annual leave time.          The
provisions of S      2-18-601 (12), (13), MCA    ("continuous
employment" and "break in service"), relied on both by this
Court and the city are definitions provided by the statutes
for the determination of annual leave time under Part 6,
Chapter 18, Title 2 of our codes.         The use of these
provisions should be limited to interpretations under §
2-18-611, MCA, the computation of annual vacation leave which
provides for temporary employees:
     (5) Temporary employees do not earn vacation leave
     credits, except that a temporary employee who is
     subsequently hired into a permanent position within
     the same jurisdiction without a break in service,
     and temporary employees or employed c~ntinuously
     longer than six months may count as earned leave
     credits for the immediate term of temporary
     employment.
     It seems obvious that the hiring of Morrison on a
temporary basis for less than six months, laying him off for
14 working days and then rehiring him for an additional
period of less than six months is a ploy to avoid the
accumulation of benefits such as annual vacation leave for
Morrison.    Such a procedure is unlawful under S 2-18-621,
MCA :
      Unlawful termination. It shall be unlawful for an
      employer to terminate or separate an employee from
      his employment in an attempt to circumvent the
      provisions of 2-18-611, 2-18-612 and 2-18-614.
      Should a question arise out of this section, it
      shall be submitted to arbitration as provided in
      Title 27, Chapter 5, as if an agreement described
      in 27-5-114 is in effect, unless there is a
      collective bargaining agreement to the contrary
      applicable.
     Thus not only should the union have the right to submit
to arbitration the question of the refusal to hire Morrison,
but there is an additional question here of unlawful activity
on the part of the city to avoid the accumulation of annual
leave which is itself arbitrable by law.
     But even if we should conclude that the job renewal
issue is not one for arbitration under the collective
bargaining agreement, the matter should not end here.
Morrison himself, as an individual, has a right to question
in the District Court, if the collective bargaining agreement
does not apply, his contractual rights both for reemployment
and to annual leave time if the city acted unlawfully.
     I therefore dissent.          .-
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