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                                                                No. 98-361

                              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 318N




                                                    BENJAMIN L. SHUFFIELD,



                                                        Plaintiff and Appellant,



                                                                      v.



                     AFSCME LOCAL 238A, David Harris, President and AFSCME MONTANA

                     STATE COUNCIL NO. 9 AFL-CIO affiliated Tom Foley, Executive Director,



                                                    Defendants and Respondents,



                                                                     and



                       THE CITY OF MILES CITY, MONTANA, GEORGE T. KURKOWSKI,

                     Mayor and the Official Bonds of George T. Kurkowski, Mayor, Curtis Myran,

                                 Utilities Director, and Patrick Rogers, Operations Director,



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                                            Third-Party Defendants and Respondents.




                             APPEAL FROM: District Court of the Sixteenth Judicial District,

                                                   In and for the County of Custer,

                                          The Honorable Joe L. Hegel, Judge presiding.



                                                      COUNSEL OF RECORD:



                                                              For Appellant:



                                      Benjamin L. Shuffield, Pro Se, Miles City, Montana



                                                            For Respondents:



                              D. Patrick McKittrick; McKittrick Law Firm., P.C.; Great Falls,

                                           Montana (for Defendants and Respondents)



                                      James T. Carr, City Attorney; Miles City, Montana

                                                (for Respondent City of Miles City)




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                                              Submitted on Briefs: November 24, 1998

                                                      Decided: December 23, 1998

                                                                     Filed:



                                       __________________________________________

                                                                     Clerk




                      Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. Pursuant to Section I, paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. The plaintiff, Benjamin L. Shuffield, filed a complaint in the District Court for
the Sixteenth Judicial District in Custer County in which AFSCME Local 238A and
AFSCME Montana State Council No. 9 AFL-CIO, and officials of each union, David
Harris and Tom Foley, are named as defendants. He alleged that the unions
breached their duty to represent him in a labor dispute with his employer, the City of
Miles City. The defendants moved the District Court to dismiss the complaint
because it was time-barred. The District Court granted the motion and ordered
Shuffield to pay attorney fees. Shuffield appeals. We affirm the order of the District
Court.

¶3. There are three issues on appeal:

¶4. 1. Did the District Court err when it dismissed the action as time-barred?

¶5. 2. Did the District Court err when it awarded attorney fees to Harris and Foley

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for the cost of their allegedly improper personal joinder?

¶6. 3. Did the District Court err when it dismissed the claim prior to the time that
Shuffield filed for binding arbitration?

                                                FACTUAL BACKGROUND

¶7. Benjamin L. Shuffield was an employee of the City of Miles City and was a
member of and represented by the American Federation of State, County, and
Municipal Employees Local 238A, as well as the AFSCME Montana State Council
No. 9. After he was terminated from his employment in October 1996, Shuffield filed
a grievance request with the union in which he alleged that he had been wrongfully
discharged by the City. He was dissatisfied with the unions' response to the grievance
request, and on November 27, 1996, filed with the State Board of Personnel Appeals
unfair labor practice allegations against the unions.

¶8. The Board appointed a hearing officer to address the charges. Shuffield moved to
disqualify the hearing officer. However, based on the hearing officer's apparent
continued authority and the alleged bias of the Board, Shuffield withdrew his
complaint before the Board on May 7, 1997.

¶9. On August 18, 1997, Shuffield filed in the District Court a complaint against
AFSCME Local 238A and AFSCME Montana State Council No. 9 AFL-CIO, and
president David Harris and executive director Tom Foley of the respective unions.
Shuffield claimed that between the dates of July 5, 1993, and January 6, 1997, the
unions breached their duty to him; no more specific facts were alleged. Shuffield
later filed an amended complaint in an attempt to join the City of Miles City and a
number of other city officials as defendants.

¶10. Shuffield filed a motion to demand judgment by default. Harris and Foley
contended that they had not been properly served by Shuffield and consequently
challenged the District Court's jurisdiction over them, but nonetheless responded to
Shuffield's motion while preserving the issue of personal jurisdiction. They filed
motions which sought dismissal of Shuffield's complaint because it failed to state a
claim and because it was time-barred, and in the alternative, dismissal of Harris and
Foley personally and recovery of attorney fees and costs. Prior to the District Court's
decision, Shuffield filed an offer to enter arbitration, which the defendants rejected.


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¶11. On May 5, 1998, the District Court dismissed Shuffield's claim. It stated that
pursuant to § 39-31-404, MCA, a six-month statute of limitations applies to actions
filed for unfair labor practices, and that Shuffield's claim was therefore time-barred.
Pursuant to its dismissal, it awarded attorney fees and costs to Harris and Foley,
whom it found were improperly joined by Shuffield and forced to respond to his
allegations despite the well-established principle that union officials cannot be sued
individually.

                                                                 ISSUE 1

¶12. Did the District Court err when it dismissed the action as time-barred?

¶13. We review the question of whether a district court properly applied a statute of
limitations to determine whether the district court's interpretation of the law is
correct. See Barthule v. Karman (1994), 268 Mont. 477, 484, 886 P.2d 971, 976.

¶14. Shuffield's complaint alleges union wrongdoing against him between the dates of
July 5, 1993, and January 6, 1997. Defendants contend that pursuant to § 39-31-404,
MCA, and its six-month statute of limitations, his August 18, 1997, complaint is time-
barred, since more than six months had passed since the date of last injury. Shuffield
concedes that the six-month statute of limitations applies. However, he asserts that he
satisfied the statute when he filed his November 1996 claim before the Board of
Personnel Appeals which, according to him, was improperly dismissed.

¶15. We note first that Shuffield's November complaint before the Board did not
serve to toll the statute of limitations regarding the unfair labor practice claim filed
in the District Court. The two forums are distinct, and Shuffield has provided us no
legal authority by which we might effectively merge the one complaint with the other
for purposes of satisfying the statute of limitations. Moreover, Shuffield's allegation
that his complaint before the Board was improperly dismissed is incorrect since he
initiated its dismissal himself. Finally, he could have easily satisfied the statute of
limitations in the District Court even after the dismissal of his claim before the
Board. Shuffield's complaint in the District Court asserted Title 39, Chapter 31, the
Collective Bargaining for Public Employees Act, as the exclusive basis for his claim.
Accordingly, he is bound by its six-month statute of limitations. We conclude that the
District Court's interpretation of the law was correct.


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¶16. Shuffield also contends that the District Court erred when it failed to conduct a
hearing regarding the application of § 39-31-404, MCA, to this case. We find no
merit in his contention. When controlling dates are undisputed, as they are here, the
application of the statute of limitations is a question of law, and there would have
been no purpose for a hearing.

¶17. Based on our decision regarding the proper application of the statute of
limitations, we decline to address Shuffield's assertions regarding his right to join as
third parties the other parties he claims are jointly and severally liable. Because the
complaint was not timely filed, Shuffield has no claim against any of the alleged
parties.

                                                                 ISSUE 2

¶18. Did the District Court err when it awarded attorney fees to Harris and Foley for
the cost of their allegedly improper personal joinder?

¶19. The District Court found that Shuffield had ignored well-settled law when he
named Harris and Foley as defendants, and thereby improperly joined them in this
matter. It relied on Atkinson v. Sinclair Refining Co. (1962), 370 U.S. 238, 82 S. Ct.
1318, 8 L. Ed. 2d 462, which held that union officers cannot be made personally
liable for actions taken pursuant to their role as union officers. Accordingly, it
ordered Shuffield to pay the attorney fees that Harris and Foley incurred in their
defense.

¶20. Shuffield concedes that Atkinson controls and that Harris and Foley could not
be personally liable for their actions. Precisely for that reason, however, he contends
that the District Court erred when it awarded them attorney fees to defend what was,
in effect, never a real threat of liability. Shuffield's argument is unpersuasive. The
fact remains that Shuffield's action forced Harris and Foley to respond to his
allegations. Even though they learned from the attorney whom they retained that
they were improperly joined, they still had to pay for his services. Accordingly,
Shuffield should be responsible for the attorney fees that Harris and Foley incurred
to defend against his unjustified claim against them. While Shuffield contends on
appeal that Harris and Foley were named only in their official capacity as agents of
the union, as opposed to personally, his pleadings indicate otherwise. Regardless of
whether he intended to assert personal liability or not, Shuffield named the officials


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as parties and forced them to respond as parties.

¶21. Finally, Shuffield contends that because Harris and Foley contested whether
they had been properly served in this matter, they should not be able to recover their
costs pursuant to the initial period in which the District Court supposedly lacked
jurisdiction over them. In the same argument, however, Shuffield also seems to assert
that service was proper and that the officers' personal jurisdiction claim was
fraudulent and frivolous, on which basis we should hold that the District Court erred
when it concluded that service was inadequate and consequently denied Shuffield's
motion for default judgment.

¶22. Shuffield's position misconstrues the law regarding service, and our review of
the record in this case reveals that the District Court's interpretation and application
of Rule 4D, M.R.Civ.P., was correct. Contrary to Shuffield's contention, a party who
declines to acknowledge service by mail, as Harris and Foley did here, cannot be
made subject to default judgment until he has been properly served by the alternate
means provided in Rule 4D, M.R.Civ.P., an option which Shuffield did not properly
effect in this case. The officers' claims for attorney fees do not somehow transform
the attempted service by mail into a valid legal service. That is, even though the
service was inadequate, Harris and Foley were still forced by Shuffield to retain the
services of an attorney. Furthermore, their limited and qualified response to
Shuffield's claim, even if they were in fact never officially made subject to the action
due to the improper service, does not in and of itself become an acknowledgment of
service or an admission of their willingness to accept service. Accordingly, we affirm
the District Court's award of attorney fees to Harris and Foley.

                                                                 ISSUE 3

¶23. Did the District Court err when it dismissed the claim prior to the time that
Shuffield filed for binding arbitration?

¶24. Shuffield contends that the District Court erred when it granted the defendants'
motion to dismiss prior to the time that he supposedly could file for arbitration. The
record reveals that on March 31, 1998, Shuffield made an offer to the defendants to
enter binding arbitration. On April 10, the unions rejected the offer based in part on
their belief that their motion to dismiss would render Shuffield's request to arbitrate
moot; the City of Miles City did not respond. Shuffield seems to insinuate from the


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various dates and from the allegedly prompt dismissal by the District Court on May
5, 1998, that the defendants colluded with the District Court to bar his "apparent
and imminent" shift of this matter to binding arbitration.

¶25. First, we note that Shuffield has failed to present sufficient legal authority by
which we might conclude that he in fact had the right which he asserted to compel all
the parties here to arbitrate after he had already initiated this action in the District
Court. Second, even by Shuffield's own portrayal of the sequence of events, there was
still at least an eight-day period in which Shuffield was aware of the unions' rejection
and in which he could have attempted to enforce what he contends is the binding
arbitration aspect of his agreement with the union. His claim that the District Court
and the defendants unfairly barred his arbitration claim is unsupported by the
record. Finally, we find no support for his allegations of collusion. As part of their
rejection of Shuffield's offer to arbitrate, the unions renewed their request that the
District Court rule on the motion to dismiss, which had been pending for over six
months. The District Court's "quick" response was a reasonable reaction to the
unions' request. We conclude that the District Court did not err when it dismissed
Shuffield's claim prior to the time that he filed for binding arbitration.

¶26. We affirm the order and judgment of the District Court.



/S/ TERRY N. TRIEWEILER




We Concur:



/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

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/S/ KARLA M. GRAY




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