Langager v. Crazy Creek Products, Inc.

97-179

No. 97-179

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 44

IN RE THE WAGE CLAIM OF
SHARON LANGAGER,

Claimant, Respondent, and Cross-Appellant,

v.

CRAZY CREEK PRODUCTS, INC.,

Respondent, Appellant, and Cross-Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kent E. Young, Attorney at Law, Red Lodge, Montana

For Respondent:

Sharon Langager, Pro Se, Roberts, Montana

For Intervenor State of Montana:

Robert Campbell, Legal Services, Department of Labor
and Industry, Helena, Montana

Submitted on Briefs: December 11, 1997

Decided: March 3, 1998
Filed:

__________________________________________

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Clerk

Justice Jim Regnier delivered the Opinion of the Court.

¶1 On April 24, 1996, claimant Sharon Langager filed an action in the District
Court for
the Thirteenth Judicial District in Carbon County, seeking judicial review of an
order issued
by the Department of Labor and Industry's Board of Personnel Appeals. The order
denied
Langager's request that her employer, Crazy Creek Products, Inc., be required to
compensate
her for two weeks of unused vacation time. On December 27, 1996, the District Court
issued
its order reversing the decision of the Board of Personnel Appeals, and granting a
judgment
in Langager's favor and against Crazy Creek in an amount equal to one week of
vacation pay
plus penalties. It is from this order that Crazy Creek appeals, and Langager cross-
appeals.
For the reasons discussed below, we reverse.

¶2 We find the following issues dispositive on appeal:

¶3 1. Did the District Court err in concluding that Crazy Creek's personnel
manual
did not apply to Langager and thus did not alter the terms of her employment?

¶4 2. Did the Board of Personnel Appeals err in concluding that Langager was not
entitled to vacation pay pursuant to the terms of Crazy Creek's personnel manual?
FACTUAL AND PROCEDURAL BACKGROUND

¶5 Langager began working for Crazy Creek on June 3, 1992, at which time Crazy
Creek
had a verbal policy regarding vacation time pursuant to which each employee was
entitled
to one week of paid vacation upon completion of one full year of employment. The
verbal
policy additionally provided that an employee would earn one week of paid vacation
after
completing each succeeding year of employment. For eligible employees to take
advantage
of accrued vacation, Crazy Creek required only that they provide the company with
thirty-days' notice.

¶6 Langager continued to work for Crazy Creek until June 6, 1994. In February
1994,
several months prior to Langager's separation, Crazy Creek adopted a written manual
of
Employment Benefits and Policies For All Personnel (personnel manual). The personnel
manual modified the company's policy with respect to paid vacation, providing

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specifically
as follows:
Vacation: CCP provides one week paid vacation per year after the completion
of the first year of employment (1st anniversary date). After the completion
of the second year of employment (2nd anniversary date) CCP will provide
two weeks paid vacation per year.

Employees must use their vacation within the year after it is earned. Vacation
does not carry over from year to year. (ie. At the end of the first year an
employee has one week of paid vacation accrued. Vacation must be taken
before the end of the second year - 2nd anniversary date.) Vacation must be
used all at once in consecutive days.

If a company holiday falls within the vacation period it will be considered as
a paid holiday and not vacation time. This day of vacation can be used either
at the beginning or the end of the vacation time.

An employee must work the regularly scheduled work days before and after
the paid vacation period in order to be eligible to receive vacation pay.

Vacations are allowed on a first come first served basis. In the event more
than one employee requests the same days as another, management reserves
the right to deny the second request received at their discretion.

Requests for vacation should be made at least 30 days prior to the time
requested. Please plan ahead.

¶7 Crazy Creek held a meeting on February 3, 1994, during which it provided each of
its employees, including Langager, with a copy of the new personnel manual. On
February 8, 1994, Crazy Creek convened a second meeting, at which Langager was
present,
for the purpose of discussing the personnel manual. In February 1994, following
distribution
of the personnel manual, Langager asked for and received permission to take her two
weeks
of vacation in late June of that year.

¶8 In early June 1994, Langager secured other employment. Thus, on June 6, 1994,
Langager provided Crazy Creek with notice that she intended to quit her job two
weeks later,
at the start of her scheduled vacation. Upon learning of Langager's plans, however,
the
Crazy Creek manager informed her that she would not receive any vacation pay if she
did
not return to work following her vacation. In response, Langager opted to terminate
her
employment effective June 6, 1994, and thus did not work her regular shift either
prior to or
following her scheduled vacation period.

¶9 Crazy Creek did not provide Langager with two weeks of vacation pay following

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her
separation from the company. Thus, on July 5, 1994, Langager filed a wage claim
with the
Montana Department of Labor and Industry (DOL), claiming entitlement to $520 in
vacation
pay. On July 28, 1994, DOL compliance specialist Jim Dobbins authored a written
determination in which he ruled that Crazy Creek owed Langager two weeks of vacation
pay,
in an amount of $520, along with penalties pursuant to § 39-3-206, MCA.

¶10 Crazy Creek subsequently requested a hearing, which was conducted telephonically
by DOL hearing officer Stan Gerke on June 1, 1995. On October 13, 1995, the Hearings
Bureau issued its findings of fact, conclusions of law, and order in which it
ordered that
Crazy Creek pay Langager $520 for two weeks of earned vacation, as well as $572 in
penalties pursuant to § 39-3-206, MCA.

¶11 Crazy Creek appealed to the DOL Board of Personnel Appeals, which issued its
findings of fact, conclusions of law, and order on March 25, 1996. The Board of
Personnel
Appeals reversed the hearing officer's decision, concluding that because Langager
did not
work the shifts prior to and after her vacation period, she did not qualify for
vacation pay
pursuant to the terms set forth in Crazy Creek's personnel manual. The Board of
Personnel
Appeals thus held that Crazy Creek did not owe Langager the vacation pay to which she
claimed entitlement.

¶12 Langager, acting pro-se, chose to appeal the Board of Personnel Appeals'
decision and
filed a petition for judicial review in District Court on April 24, 1996. On June
3, 1996, the
DOL filed a motion to intervene, which the District Court granted in an order dated
June 26,
1996. On December 27, 1996, the District Court issued an order reversing the Board
of
Personnel Appeals' determination that Langager was not entitled to vacation pay.
The
District Court instead concluded that Crazy Creek's personnel manual did not apply to
Langager, and that she was entitled to recover one week of vacation pay pursuant to
the
company's prior verbal vacation policy, as well as penalties. Crazy Creek filed a
notice of
appeal on February 21, 1997, and Langager filed a notice of cross-appeal on March 6,
1997.
DISCUSSION

¶13 A district court must review an administrative agency's findings of fact to
determine
"whether the findings are clearly erroneous in view of the reliable, probative and
substantial

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evidence in the whole record." State Personnel Div. of Dep't of Admin. v. Board of
Personnel
Appeals, Div. of Dep't of Labor and Industry (1992), 255 Mont. 507, 511, 844 P.2d
68, 71
(citing Department of Revenue v. United Parcel Service, Inc. (1992), 252 Mont. 476,
482,
830 P.2d 1259, 1263); see also § 2-4-704, MCA. Furthermore, the district court will
uphold
an agency's conclusion of law "if the agency's interpretation of the law is
correct." State
Personnel Division of Dep't of Admin., 255 Mont. at 511, 844 P.2d at 71 (citing
Steer, Inc.
v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). We in
turn
employ the same standards when reviewing the district court's decision, and must
accordingly determine whether an agency's findings of fact are clearly erroneous and
whether
its conclusions of law were correct. See Swan Corp. v. Department of Revenue
(1988), 232
Mont. 210, 213, 755 P.2d 1388, 1390.
ISSUE 1

¶14 Did the District Court err in concluding that Crazy Creek's personnel manual
did not
apply to Langager and thus did not alter the terms of her employment?

¶15 In its order reversing the decision of the Board of Personnel Appeals, the
District
Court ultimately concluded that the paid vacation policy contained in Crazy Creek's
written
personnel manual did not apply to Langager, but that the terms of her employment were
instead governed by the verbal vacation policy in effect at the time she began
working for
Crazy Creek in June 1992. In so concluding, the court relied upon our decision in
Gates v.
Life of Montana Ins. Co (1982), 196 Mont. 178, 183, 638 P.2d 1063, 1066, in which we
held
that "[a]n employee handbook distributed after the employee is hired does not become
a part
of that employee's contract." In Gates, we concluded that an employee handbook
distributed
two years after the plaintiff was hired "constituted a unilateral statement of
company policies
and procedures" and that it could not have modified the employee's contract "because
there
was no new and independent consideration for its terms" and because "its terms were
not
bargained for." Gates, 196 Mont. at 183, 638 P.2d at 1066.

¶16 In the present case, the court noted that Crazy Creek had adopted its personnel
manual
long after Langager was hired, and reasoned that because "[t]he parties do not argue

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and the
record does not reflect that the new terms were bargained for, nor that there was
new and
independent consideration," the "new manual does not constitute a modification of
the terms
of the claimant's employment." The court thus concluded the verbal vacation policy
in effect
at the time Langager was hired controlled the present case.

¶17 The court noted that, pursuant to Crazy Creek's verbal policy, Langager became
eligible for one week of paid vacation upon completion of her second year of
employment,
and that to take advantage of that accumulated vacation she had only to put in her
request for
vacation at least thirty days in advance. The court observed that Langager had met
the
thirty-day requirement, and thus held she was entitled to receive one week of
vacation pay
pursuant to the provisions of the verbal vacation policy, but not the two weeks of
vacation
pay to which she claimed entitlement. Because the court concluded that Crazy Creek's
written personnel manual did not apply to Langager, whether or not she had worked the
shifts prior to and following her scheduled vacation was of no ultimate consequence
to the
court's analysis.

¶18 On appeal, Crazy Creek first argues the District Court erroneously exceeded the
proper scope of its review when it found that the administrative record "does not
reflect that
the new terms were bargained for nor that there was new and independent
consideration" and
accordingly concluded that "the vacation policy applicable to [Langager] is the
verbal policy
in place at the time she began her employment at Crazy Creek Products, Inc." Crazy
Creek
argues that the administrative record contains no specific findings with respect to
the
presence of bargained for exchange or new and independent consideration, and thus
suggests
the court erroneously substituted its own judgment for that of the agency, and
reached a legal
conclusion with respect to the applicability of Crazy Creek's personnel manual based
upon
assumed facts about which there existed no specific agency findings. Crazy Creek
points to
§ 2-4-704, MCA, and asserts the District Court was without statutory authority to
reverse the
Board of Appeals' decision as it did, and that its only option was to remand the
case for
additional findings on the questions of bargained for exchange and new
consideration.

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¶19 Crazy Creek next argues that, even if the court was acting within the scope of
its
reviewing authority, it erred in determining that the administrative record
contained no
evidence of bargained for exchange and new consideration, and in concluding that
Crazy
Creek's personnel manual thus did not apply to Langager. Instead, Crazy Creek
argues that
the administrative record contains sufficient evidence of bargained for exchange and
new
consideration to support the conclusion, implicit in the Board of Appeal's decision
denying
Langager's request for vacation pay, that Crazy Creek's personnel manual effectively
modified the terms of Langager's employment.

¶20 Following a review of the administrative record, we note that this case is
factually
distinguishable from the Gates case, and determine the elements of bargained for
exchange
and independent consideration are indeed present. In Gates, a former employee
brought an
action for wrongful discharge against her employer, asserting in part that her
employer
"breached the contractual terms of her employment as set forth in [an] employee
handbook."
Gates, 196 Mont. at 183, 638 P.2d at 1066. We held that where the employer had
merely
distributed the handbook two years after the plaintiff was hired, there was no new
and
independent consideration for its terms and its terms were not bargained for.
Gates, 196
Mont. at 183, 638 P.2d at 1066. In the present case, however, the administrative
record
indicates that Crazy Creek not only distributed its personnel manual to each
employee, but
additionally convened a second meeting on February 8, 1994, during which it asked if
any
employees had questions regarding the provisions of the manual. That Langager not
only
received a copy of the manual, but also attended this second meeting during which the
employer asked for input from its employees, indicates the manual's terms were
sufficiently
bargained for. Moreover, Langager continued to work for Crazy Creek, thereby
supplying
the necessary consideration.

¶21 Based on the foregoing, we hold the District Court erred in finding no evidence
of
bargained for exchange and new consideration under the circumstances of this case,
and hold
the court consequently erred in concluding Crazy Creek's personnel manual did not

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apply to
Langager. Because the record as a whole contains substantial evidence indicating
that the
terms of the personnel manual were bargained for, and that there was new and
independent
consideration, we conclude that remand for additional findings is unnecessary and
that the
District Court did not exceed the proper scope of its review.
ISSUE 2

¶22 Did the Board of Personnel Appeals err in concluding that Langager was not
entitled
to vacation pay pursuant to the terms of Crazy Creek's personnel manual?

¶23 Having determined that Crazy Creek's personnel manual did in fact apply to
Langager,
we must reach that question not addressed by the District Court and determine
whether the
Board of Personnel Appeals erred in concluding Langager was not entitled to recover
two
weeks of vacation pay. We review an agency's conclusion of law to determine whether
it is
a correct interpretation of the law. See, e.g., State Personnel Div. of Dep't of
Admin., 255
Mont. at 511, 844 P.2d at 71.

¶24 In a 1949 opinion, which remains valid authority for the resolution of vacation
pay
disputes, the Attorney General concluded that "vacation pay which has been earned
and is
due and owing must be considered in the same category as wages and is collectable in
the
same manner and under the same statutes as are wages." 23 Op. Att'y Gen. 151, 153
(1949);
See generally, Morris v. C.C. Communications Corp. (1977), 175 Mont. 23, 571 P.2d
1163.
The parties to the present action do not dispute the fact that Montana law
recognizes vacation
pay as a wage, and do not take issue with the following conclusions by the Board of
Personnel Appeals:
Employers are under no legal obligation to provide employees with a paid
vacation. The decision to grant paid vacations to employees is left to the
discretion of an employer. Although there is no legal obligation on the part of
an employer to provide a paid vacation, once the decision is made to grant a
paid vacation, the employer is obligated to pay that which is earned and due
and owing.

¶25 Crazy Creek correctly identifies the critical question on appeal as whether
Langager
has actually earned the paid vacation to which she claims entitlement, and whether
Crazy

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Creeks is thus "obligated to pay that which is earned and due and owing." Faced
with the
similar question of whether vacation pay is due and owing under a given set of
circumstances, other courts have recognized that "[a]n employer is free to set the
terms and
conditions of employment and compensation and the employee is free to accept or
reject
those conditions." Rowell v. Jones & Vining, Inc. (Me. 1987), 524 A.2d 1208, 1211.
See
also Roberts v. Public Finance Co. (Or. 1983), 662 P.2d 330, 332 (similarly
recognizing that
"[a]n employer is free to set the terms and conditions of the work and of the
compensation
and the employee may accept or reject those conditions.").

¶26 Thus, to determine whether vacation pay is due and owing in the present case, we
must look to the terms of the employment contract as set forth in Crazy Creek's
personnel
manual. See, e.g., Roberts, 662 P.2d at 332 (recognizing that "[t]he employment
contract
itself will control the employee's right to vacation."). In its decision denying
Langager's
request for vacation pay, the Board of Personnel Appeals evaluated the requirements
set forth
in Crazy Creek's personnel manual and concluded that Langager "had not yet earned her
vacation pay and is not entitled to recover the wages claimed for vacation pay." In
so
concluding, the Board of Personnel Appeals reasoned that Langager "did not fulfill
the
requirements delineated by the employer to qualify for vacation pay" because she did
not
comply with the personnel manual's requirement that she "work both the day prior to
and the
day after taking vacation." Thus, the Board of Personnel Appeals ultimately held
that,
"[b]ecause of the failure of claimant to fulfill the contractual prerequisite to
vacation pay, she
is not entitled to vacation pay."

¶27 Review of Crazy Creek's personnel manual reveals a number of "contractual
prerequisites" to an employee's entitlement to vacation pay. For example, Crazy
Creek
requires that each employee work for at least one year before accruing any paid
vacation.
Crazy Creek's personnel manual additionally requires that, to take advantage of
accrued
vacation, employees must take vacation in consecutive days within the next calendar
year,
request vacation thirty days in advance, and work their regularly scheduled shifts
both before
and after a scheduled vacation. In light of these provisions, Crazy Creek argues
that

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employees do not earn paid vacation until they comply with the conditions set forth
in the
company's personnel manual, including the requirement that they report to work for
their
regularly scheduled shifts immediately prior to and following a paid vacation
period. Crazy
Creek asserts, and the Board of Personnel Appeals concluded, that because Langager
failed
to work her regularly scheduled shifts both prior to and following her scheduled
vacation,
she never earned any paid vacation, and is not entitled to prevail in the present
action.

¶28 Crazy Creek's personnel manual specifically states that the company "provides
one
week paid vacation per year after the completion of the first year of employment (1st
anniversary date)" and explains that "[a]t the end of the first year an employee
has one week
of paid vacation accrued." (Emphasis added.) Furthermore, the manual explicitly
provides
that "[a]fter the completion of the second year of employment (2nd anniversary date)
CCP
will provide two weeks paid vacation per year." (Emphasis added.) Thus, in no
uncertain
terms, Crazy Creek states that it "will provide two weeks paid vacation" to
employees who
reach their second anniversary date.

¶29 In the present case, it is undisputed that Langager completed her second year of
employment with Crazy Creek on June 3, 1994. According to the above-cited portion of
Crazy Creek's personnel manual, Langager had two weeks of paid vacation accrued when
she
completed the second year of her employment with Crazy Creek on June 3, 1994.
Despite
the fact that Crazy Creek's personnel manual explicitly states that the company
"will provide
two weeks paid vacation" to employees, like Langager, who complete their second year
of
employment, Crazy Creek argues that because Langager quit her job and therefore
failed to
comply with the condition that she work the shifts immediately preceding and
following her
scheduled vacation, she never earned any paid vacation. Implicit in Crazy Creek's
argument
is its attempted differentiation between accrued vacation and earned vacation, and
its
apparent contention that an employee may have accrued two weeks of vacation after
working
for the company for two years, but not yet earned it. Indeed, pursuant to Crazy
Creek's
argument in this case, Langager could not have earned paid vacation until that

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vacation had
come to an end.

¶30 Notwithstanding Crazy Creek's argument to the contrary, we conclude that
vacation
pay is earned by virtue of an employee's labor and once it has accrued, it has by
definition
been earned. See, e.g., Wolf v. Sam's Town Furniture, Inc. (N.M. Ct. App. 1995),
904 P.2d
52, 57 (recognizing that "[a]ccrued vacation is based upon vacation time
earned . . . .");
Kistler v. Redwoods Community College Dist. (Cal. Ct. App. 1993), 19 Cal. Rptr. 2d
417,
421 (equating "vacation pay which is to be earned in the future" with vacation pay
"which
has not yet accrued"). Pursuant to the terms of Crazy Creek's own personnel manual,
and
by virtue of her two years of labor for the company, Langager had accrued, or
earned, two
weeks of paid vacation by the time of her June 3, 1994, second anniversary of
employment.
We recognize that an employer may, as did Crazy Creek in the present case, place
reasonable
restrictions upon the accrual of paid vacation. We conclude, however, that once an
employee
has accrued paid vacation pursuant to the terms of his or her employment contract, an
employer may not then impose conditions subsequent which would, if unmet, effectively
divest an employee of that accrued vacation.

¶31 Crazy Creek argues employees only earn paid vacation if they comply with the
personnel manual's additional requirements and take their accrued paid vacation in
consecutive days within the next calendar year, request vacation thirty days in
advance, and
work their regularly scheduled shifts both before and after vacation. Termed
conditions
precedent by Crazy Creek, these contractual requirements are, in effect, conditions
subsequent which do not affect the accrual of paid vacation which occurs, pursuant
to the
terms of Crazy Creek's personnel manual, upon each anniversary of employment.
Instead,
these contractual requirements affect an employee's ability to take advantage of
accrued
vacation and, if unmet, divest that employee of accrued vacation. In the present
case, the fact
that Langager failed to fulfill Crazy Creek's requirements that she report to work
for the
shifts immediately preceding and following her vacation effectively divested her of
her two
weeks vacation already accrued pursuant to the explicit terms of the company's own
personnel manual. Moreover, we note the inherent inconsistency of a vacation policy
pursuant to which an employee cannot earn paid vacation until that vacation has come

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to an
end.

¶32 Based on the foregoing, we conclude the Board of Personnel Appeals erred in
concluding that Langager was not entitled to recover two weeks of vacation pay from
Crazy
Creek, and that the District Court similarly erred in concluding Langager was
entitled to one
week of vacation pay pursuant to Crazy Creek's verbal vacation policy. We remand to
the
District Court for a determination of appropriate penalties, if any, pursuant to §
39-3-105,
MCA, and § 39-3-206, MCA.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART

Justice W. William Leaphart, specially concurring.

¶33 I specially concur in the Court's holding that vacation pay is earned by virtue
of an
employee's labor and once it has accrued, it has been "earned" and cannot be
divested by a
condition subsequent; e.g., that an employee work the next shift after having taken a
vacation. I write to address what I see as the fallacy in the dissent's position.
The dissent
argues that the employer is entitled to fashion reasonable requirements pertaining
to the
earning and using of vacation benefits granted to the employee. I agree to the
extent that the
employer imposes conditions precedent on the awarding of vacation pay. If, however,
as the
dissent seems to acknowledge, vacation pay is recognized as the equivalent of a
"wage," then
vacation pay, like a wage, cannot be conditioned upon performance of conditions
subsequent. We would certainly not, for example, uphold an employer's policy which
provides that an employee will not be paid her wage for the month unless she returns
and
works the first week of the succeeding month. If the employee works the month of
March,
she has earned her pay and is entitled to be paid her wage for that month regardless
of
whether she works at all in April.

¶34 Langager earned her vacation pay when she completed the second year of her
employment. The condition subsequent, that she work the shift following her

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vacation, does
not pertain to whether she "earned" the vacation, rather it pertains to whether she
will be
paid for the vacation she earned. Conditions which purport to divest an employee of
that
which the employee has earned are not reasonable and should not be upheld.

/S/ W. WILLIAM LEAPHART

Justice James C. Nelson specially concurs and dissents.

¶35 I concur in the Court's discussion of and in its conclusion that, once earned,
vacation
pay is a wage collectible in the same manner and under the same statutes as are
wages. I also
agree that, within the limits imposed by the constitution or by law, an employer is
free to set
the terms and conditions of employment and compensation and that the employee is
free to
accept or reject such conditions and compensation. Finally, I agree that the
critical question
in the case at bar is whether Langager earned the vacation pay to which she claims
entitlement. On this question, I would hold that she has not. Rather, I would
reverse the
District Court and affirm the conclusion of the Board of Personnel Appeals that
Langager
"did not fulfill the requirements delineated by the employer to qualify for vacation
pay"
because she did not comply with the personnel manual's requirement that she "work
both the
day prior to and the day after taking vacation." Because Langager did not fulfill
this
contractual prerequisite, she is not entitled to vacation pay.

¶36 As to issue 1, I do not see any particular need for our lengthy discussion of
Gates v.
Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063. In the proceedings
below,
the parties did not argue whether there was a bargained for agreement with new
consideration. Indeed, both Crazy Creek's and Langager's position was always that
the new
agreement did apply. There is no question that Langager accepted the new
agreement. She
sought to take advantage of it. If she had taken a contrary position, then she
could not claim
two weeks vacation pay, as that was only payable under the new policy that went into
effect
after she was hired. Whether there was a bargained for exchange and new
consideration
under Gates is a non-issue.

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¶37 As to issue 2, there is no dispute that, absent a contractual or statutory
requirement
to the contrary, the decision to grant employees vacation, paid or otherwise, is in
the
discretion of the employer. Moreover, we appear to be agreed that, in exercising
this
discretion, the employer is entitled to fashion reasonable requirements and
restrictions
pertaining to earning and using the vacation benefits granted.

¶38 I part company with the majority at the point it concludes that "in no
uncertain terms,
Crazy Creek states that it 'will provide two weeks paid vacation' to employees who
reach
their second anniversary date." That misrepresents Crazy Creek's vacation policy.
In fact,
Crazy Creek agreed that it would provide its employees two weeks vacation pay
subject to
various restrictions and requirements. These included, among others, that "[a]n
employee
must work the regularly scheduled work days before and after the paid vacation
period in
order to be eligible to receive vacation pay." (Italics added.)

¶39 Crazy Creek implemented this policy to benefit its employees by granting them
two
weeks paid vacation, as opposed to the one week to which they had been previously
entitled.
Crazy Creek also adopted the new vacation policy to benefit its own business
operations by
discouraging seasonal turn-over in its work force and by providing incentives for
employees
to remain in the company's service.

¶40 In order to "earn" or to become eligible for vacation pay, employees had to
comply
with the conditions clearly set forth in the employee manual. There is no dispute
that
Langager knew of the requirements to become eligible for vacation pay; she simply
did not
want to abide by those. She wanted the benefits of the employer's agreement to
provide
vacation pay without any of the concomitant obligations that the agreement imposed
upon
her. Unfortunately, in agreeing with this tack, the majority has effectively and
improperly
re-written the employment contract.
In the construction of an instrument, the office of the judge is simply to
ascertain and declare what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been inserted. Where there

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are several provisions or particulars, such a construction is, if possible, to
be
adopted as will give effect to all.

Section 1-4-101, MCA. See also Talley v. Flathead Valley Community College (1993),
259
Mont. 479, 487, 857 P.2d 701, 705, cert. denied 510 U.S. 1044, 114 S.Ct. 691, 126 L.
Ed.2d
658 (1994) (court may not disregard the express language of an employment contract
and
read into the agreement expectations of employment not supported by the contractual
language used by the parties).

¶41 It is for these same reasons that I disagree with Justice Leaphart's
concurrence. He
assumes that Langager "earned" her vacation pay merely by completing two years of
employment. She did not. The employer defined at what point vacation pay was
"earned"
and that definition included certain prerequisites with which Langager did not
comply. The
only way Justice Leaphart's view can be valid is to judicially write out of the
employee
manual the very conditions that Langager agreed to in accepting the new vacation pay
policy.
Since she never earned vacation pay, she had no wages to claim.

¶42 Furthermore, the majority's reliance on Wolf v. Sam's Town Furniture, Inc. (N.M.
Ct.
App. 1995), 904 P.2d 52, is unavailing. Unlike the case at bar, Wolf did not
involve any
issue of when, under the terms of a specific written employment policy, vacation time
"accrues" or is "earned". The same is true of Kistler v. Redwoods Community College
District (Cal. Ct. App. 1993), 19 Cal. Reptr. 2d 417. While in that case the Court
ruled that
the employer could not divest the employee of vacation pay already earned (a point
with
which no one argues), the Court also conceded the obvious--that by specific order or
general
policy, the employer could bar the accrual of future vacation pay absent compliance
with the
conditions which the order or policy imposed. Kistler, 19 Cal. Reptr. 2d at 421.

¶43 More to the point is the decision in Sweet v. Stormont Vail Regional Med.Ctr.
(Kan.
1982), 647 P.2d 1274, wherein the Court held that the failure of a hospital employee
to give
two weeks prior notice of termination as required by the handbook precluded any
determination that her unused vacation time constituted "earned wages." As the
Court stated:
It is apparent to this court that by the Claimant's agreement Claimant
only became entitled to vacation pay, hence "earned" it, in one of two ways:
scheduling time off with pay and continuing her employment, or giving

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Respondent two weeks prior notice of her intent to resign. The nature of
Respondent's service to the public requires a stable work force and requiring
notice or continued employment for entitlement to vacation pay was
Respondent's means of maintaining that work force. The notice requirement
for "earning" unused accumulated vacation pay was consciously drafted for
this purpose. Claimant's failure to comply with either of the requirements of
her agreement with Respondent prevented her from earning vacation pay.

Sweet, 647 P.2d at 1281(quoting the trial court's analysis).

¶44 Similarly, the Court in New Mexico State Labor and Indus. Comm. v. Deming Nat'l
Bank (N.M. 1981), 634 P.2d 695, upheld the employer's right to condition payment of
vacation pay on the employee's compliance with the Bank's personnel guidelines.
Accord
Bondio v. Joseph Binder, Inc. (La.Ct.App. 1946), 24 So.2d 398, 401. In Rowell v.
Jones &
Vining, Inc., (Me. 1987), 524 A.2d 1208, 1211, the Court stated:
An employer is free to set the terms and conditions of employment and
compensation and the employee is free to accept or reject those conditions.
We see no reason why an employer may not condition the vesting of a benefit
right on some event or act in addition to the performance of services, such as
continued employment until a given date.

¶45 In the instant case, Crazy Creek, through its employee handbook, set clear and
unambiguous requirements for its employees to earn vacation pay. These conditions
were
not unreasonable and were designed to benefit both Crazy Creek's employees and its
own
business operations. Langager knew the requirements; agreed to the policy; and
sought to
take advantage of her employer's vacation benefit package. She was not divested of
payment
for vacation time which she had earned. Rather, by failing to comply with Crazy
Creek's
paid vacation policy, Langager never earned vacation pay in the first place.

¶46 I would reverse the decision of the District Court and remand for an entry of
an order
affirming the decision of the Board of Personnel Appeals. I dissent from our
failure to do
so.

/S/ JAMES C. NELSON

Justices Karla M. Gray and Terry N. Trieweiler join in the foregoing special
concurrence and
dissent.

/S/ KARLA M. GRAY

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/S/ TERRY N. TRIEWEILER

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