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Montana Administrative Register Notice 24-16-248 No. 14   07/29/2010    
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

AND THE BOARD OF PERSONNEL APPEALS

STATE OF MONTANA

 

In the matter of the amendment of ARM 24.16.7506, 24.16.7541, 24.16.7544, 24.16.7547, 24.25.101, 24.25.102, 24.25.103, 24.25.104, 24.25.105, 24.25.107, 24.25.201, 24.25.203, 24.25.204, 24.25.206, 24.25.301, 24.25.302, 24.25.303, 24.25.304, 24.25.305, 24.25.306, 24.25.307, 24.25.308, 24.25.401, 24.25.501, 24.25.502, 24.25.503, 24.25.504, 24.25.505, 24.25.601, 24.25.701, 24.25.702, 24.25.703, 24.25.704, 24.25.801, 24.25.802, 24.25.803, 24.25.804, 24.26.102, 24.26.201, 24.26.202, 24.26.203, 24.26.206, 24.26.212, 24.26.215, 24.26.501, 24.26.502, 24.26.503, 24.26.508, 24.26.518, 24.26.614, 24.26.620, 24.26.630, 24.26.644, 24.26.655, 24.26.666, 24.26.680, 24.26.680B, 24.26.681, 24.26.682, 24.26.684, 24.26.685, the adoption of NEW RULES I through IX, and the repeal of 24.25.106, 24.25.108, 24.25.109, 24.25.120, 24.25.202, 24.25.602, 24.25.603, 24.25.604, 24.25.605, 24.25.606, 24.25.607, 24.25.608, 24.25.609, 24.25.610, 24.25.611, 24.25.612, 24.26.213, 24.26.216, 24.26.217,  24.26.701, 24.26.702, 24.26.705, 24.26.706, 24.26.707, 24.26.710, 24.26.711, 24.26.712, all related to collective bargaining proceedings heard by the Board of Labor Appeals

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On August 26, 2010, at 10:00 a.m., the Department of Labor and Industry (department) and the Board of Personnel Appeals (board) will hold a public hearing to be held in the first floor conference room (room 104), Walt Sullivan Building, 1327 Lockey Avenue, Helena, Montana to consider the proposed amendment, adoption, and repeal of the above-stated rules.

 

            2.  The department and the board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact the department no later than 5:00 p.m., on August 19, 2010, to advise us of the nature of the accommodation that you need.  Please contact the Office of Legal Services, Department of Labor and Industry, Attn: Marieke Beck, P.O. Box 1728, Helena, MT  59624-1728; telephone (406) 444-2917; fax (406) 444-1394; TDD (406) 444-5549; or e-mail mabeck@mt.gov.

 

            3.  GENERAL STATEMENT OF REASONABLE NECESSITY:  The Department of Labor and Industry's Commissioner of Labor and the Board of Personnel Appeals have determined that is necessary to amend, adopt, and repeal a number of the rules related to the administrative procedures for collective bargaining.

 

            The bulk of the proposed rule amendments reflect clarifications and additions that help better explain the existing functions.  The new rules will assist the parties in understanding their rights and responsibilities in front of the department's Hearings Bureau.  In addition, it is reasonably necessary to update certain rules in order to conform to legislative repeals, for example, the board is no longer the appellate body for wage and hour petitions.  Proposed amendments to Title 24, chapter 25, were made to conform to the procedures for collective bargaining by nurses with the collective bargaining procedures for public employees.

 

            The majority of the proposed amendments are technical and nonsubstantive in nature, such as renumbering, correcting syntax, streamlining, eliminating redundancies, and improving readability.  In addition, references to the division have been changed throughout the rules to accurately reflect the responsibility of either the board or the department.  The authority and implementation citations are being amended throughout for accuracy.

 

This general statement of reasonable necessity applies to all of the proposed amendments, new rules, and repeals.  Where additional specific bases for proposed action exists, those bases are identified and set forth in the statement of reasonable necessity that immediately follows the rule.

 

            4.  The rules proposed to be amended by the department provide as follows, stricken material interlined, new material underlined:

 

            24.16.7506  DEFINITIONS  (1)  "Adverse decision" means a decision by the department, a hearings officer or the board that is not favorable to the party who wishes to have the decision reviewed.

            (2)  "Board" means the board of personnel appeals, and has the same meaning as provided by 39-3-201, MCA.

            (3)  through (14) remain the same but are renumbered (2) through (13).

 

AUTH:  39-3-202, 39-3-403, MCA

IMP:  39-3-202, 39-3-216, 39-3-403, MCA

 

            24.16.7541  DEFAULT ORDERS AND DISMISSALS

            (1)  through (3) remain the same.

            (4)  Appeals of default orders and dismissals must be made in writing within 15 days of the date the default order or dismissal was mailed or served upon the requesting party.  The board is the body that hears appeals of default orders.

 

AUTH:  39-3-202, 39-3-403, MCA

IMP:  39-3-216, MCA

 

            24.16.7544  REQUEST FOR RELIEF IF MAIL IS NOT RECEIVED

            (1)  remains the same.

            (2)  All questions regarding alleged non-receipt of mail, or whether a request for a redetermination, request for a formal hearing, or an appeal was timely made must be resolved by the board.

            (3)  remains the same but is renumbered (2).

 

AUTH:  39-3-202, 39-3-403, MCA

IMP:  39-3-216, MCA

 

            24.16.7547  APPEAL OF FORMAL HEARING  (1)  Appeal of a formal hearing order is made to the board.  A party who has received an adverse decision may request an appeal a rehearing or file a petition for judicial review of the department's decision pursuant to Title 2, chapter 4, part 7, within 30 days of the date of the mailing of the hearing officer's decision.

            (2)  The time period in which to make an appeal is within 15 days of the date the decision of the hearing officer is mailed.  The appeal must identify where the appealing party alleges the hearing officer was in error.  The appeal must be filed with the Board of Personnel Appeals, P.O. Box 1728, Helena, MT  59620.

 

AUTH:  39-3-202, 39-3-403, MCA

IMP:  39-3-217 39-3-216, MCA

 

            5.  The rules proposed to be amended by the board provide as follows, stricken material interlined, new material underlined:

 

            24.25.101  BOARD OF PERSONNEL DIVISION APPEALS ADDRESS

            (1)  All requests, petitions, and other correspondence to the division board should be addressed to the Personnel Appeals Division, Capitol Station, Board of Personnel Appeals, P.O. Box 201503, Helena, MT 59601 59620-1503. The board's physical location is 1805 Prospect Avenue, Helena, MT 59601.

 

AUTH:  2-4-201, 39-32-103, MCA

IMP:  2-4-201, 39-32-112, MCA

 

            24.25.102  SERVICE OF PROCESS, FILING, COMPUTATION OF TIME

            (1)  All service, filing, and computation of time in proceedings before this division the board shall be bound by the Montana Rules of Civil Procedure in accordance with the board's administrative rules found at ARM Title 24, chapter 26.

 

AUTH:  2-4-201, 39-32-103, MCA

IMP:  2-4-201, 39-32-112, MCA

 

            24.25.103  INTERVENTION  (1)  Any employee, group of employees, employee representative, or employer may be permitted to intervene by serving a motion to intervene upon the parties and the division board.  The motion shall be accompanied by affidavit(s) establishing a basis for intervention.  The division board shall determine the validity of the basis for intervention.

 

AUTH:  2-4-201, 39-32-103, MCA

IMP:  2-4-201, 39-32-112, MCA

 

            24.25.104  AMENDING PETITIONS  (1)  Any petition may be amended, in whole or in part, by the petitioner or the division board or withdrawn by the petitioner at any time prior to the casting of the first ballot in an election, or prior to the closing of a case, upon such conditions as the division board considers proper and just.

 

AUTH:  2-4-21 2-4-201, 39-32-103, MCA

IMP:  2-4-201, 39-32-112, MCA

 

            24.25.105  CONTESTED CASES, DEFAULT ORDER WHEN PARTY FAILS TO APPEAR AT HEARING  (1)  When a notice of a hearing has been given, but a party fails to appear at the time specified for that hearing, the Personnel Appeals Division board shall enter an order at that time, stating the evidence before it supporting the division's board's action.  If the defaulting party is able to show good cause for his the absence, the order will be vacated and a new hearing date set.

 

AUTH:  2-4-201, 39-32-103, MCA

IMP:  2-4-201, 39-32-112, MCA

 

            24.25.107 HEARINGS  (1)  The division board shall conduct its hearings in accordance with the appropriate provisions of the Administrative Procedures Act and to the extent applicable, in conformance with the board's administrative rules, found at ARM Title 24, chapter 26.

 

AUTH:  2-4-201, 39-32-103, MCA

IMP:  2-4-201, 39-32-112, MCA

 

            24.25.201  DEFINITIONS  (1)  The Department of Labor and Industry board hereby adopts the definitions set forth in 39-32-102, MCA.

            (2)  The word "division" means the personnel appeals division and in the proper context may also mean an agent appointed by the division to perform certain division functions.

            (2)  "Board" means the Board of Personnel Appeals and in the proper context may also mean an agent appointed by the board to perform certain board functions.

 

AUTH:  39-32-103, MCA

IMP:  2-4-201, 39-32-103, MCA

 

            24.25.203  FILING OF A LABOR ORGANIZATION'S BYLAWS  (1)  Any employee organization seeking certification from the board as the exclusive representative of a group of employees must first file with the division board a copy of the labor organization's written bylaws.  The bylaws must be filed only once with the division.  If any revisions or changes are made, the bylaws must be refilled.

            (2)  remains the same.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108 39-32-103, MCA

 

            24.25.204  PROOF OF INTEREST CONFIDENTIAL  (1)  The proof of interest submitted with any petition shall not be furnished to any of the parties.  The division board shall consider the adequacy of the showing of interest and such decision shall not be subject to challenge.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108 39-32-103, MCA

 

            24.25.206  NOTICE OF STRIKE  (1)  Any notice of strike given by the employees of a health care facility or their duly elected representative as is required by 39-32-110, MCA, must be simultaneously filed with this division the board.

 

AUTH:  39-32-103, MCA

IMP:  39-32-110, MCA

 

            24.25.301  COMPOSITION OF UNIT  (1)  A unit may consist of all of the employees of the employer or any department, division, bureau, section, or combination thereof if found to be appropriate by this division the board.

            (2)  The composition of an appropriate unit may also be determined by mutual consent between such facility and the employees.


AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.302  APPROPRIATE UNIT  (1)  In considering whether a bargaining unit is appropriate, the division board shall consider such factors as:

            (a)  similarity of duties;

            (b)  licensure;

            (c)  conditions of employment;

            (d)  through (l) remain the same.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.303  PROFESSIONAL EMPLOYEES  (1)  When a petition for a unit determination proposes a unit which contains both professional and nonprofessional employees, and the unit is found to be appropriate by this division the board, an election will be conducted among the professional employees to determine whether or not they wish to be included in the proposed unit.

            (a) through (2) remain the same.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106(3) 39-32-106, MCA

 

            24.25.304  PETITIONS FOR NEW UNIT DETERMINATION AND ELECTION

            (1)  A petition for new unit determination and election shall be filed with the division board by an employee or a representative of a group of employees in accordance with ARM 24.26.612.

            (2)  The original petition shall be signed by the petitioner.

            (3)  The original petition and five copies of the petition shall be filed with the division.

            (4)  The petition shall contain:

            (a)  a description of the unit to be determined specifying inclusions and exclusions;

            (b)  a statement as to whether there is any known disagreement between the employer and the petitioner as to the nature and scope of the proposed unit and the reasons for the disagreement;

            (c)  the names of all labor organizations known to the petitioner who claims to represent employees in the proposed unit;

            (d)  the expiration dates and brief description of any contracts covering any employees in the proposed unit;

            (e)  the approximate number of employees in the proposed unit; and

            (f)  any other relevant facts.

            (5)  The petition shall be accompanied by proof, consisting of authorization cards, or copies thereof, which have been individually signed and dated within six months prior to the filing of the petition that the desire for organization represents 30 percent of the employees in the proposed unit.

            (6) (2)  The division board shall serve a copy of the petition upon the other party to the petition.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.305  EMPLOYER COUNTER PETITION  (1)  The A party served by the division shall have five ten working days from receipt of the petition after the date the board mails the petition for new unit determination in which to file a counter petition with the division board in accordance with ARM 24.26.614.

            (2)  The party served shall file a counter petition when the party served disagrees with the appropriateness of the proposed unit as described in the petition.

            (3)  The petition shall contain:

            (a)  discussion of the nature of the disagreement with the petitioner(s) proposed appropriate unit;

            (b)  description of the served party's proposed appropriate unit;

            (c)  the number of employees in the served party's proposed unit;

            (d)  the expiration dates and brief description of any contracts covering any employees in the served party's proposed unit; and

            (e)  any other relevant facts.

            (4) (2)  The division board shall serve a copy of the counter petition upon the petitioner.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.306  NOTICE OF UNIT DETERMINATION PROCEEDINGS  (1)  The division board shall require the employer to post in a conspicuous manner a notice of unit determination proceedings.  Such notice shall be provided by the division board and shall remain posted for a period of 20 days.

            (2)  The employer shall confirm in writing to the division board that it has received, posted, and shall continue posting of the notice for the required 20 days.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.307  PETITION TO INTERVENE  (1)  Within 20 days from the first day of posting of the notice of unit determination proceedings, any labor organization or group of employees may file a petition to intervene.  The petition to intervene will be processed in accordance with ARM 24.26.618.

            (2)  The petition shall contain the name and address of petitioner.

            (3)  The petition shall be accompanied by proof of interest consisting of authorization cards, or copies thereof, which have been signed and dated within six months prior to the filing of the petition representing ten percent of the employees in the unit.

            (4)  The petition to intervene shall conform in all other respects to the requirements for a petition for new unit determination and election.

            (5) (2)  The division board shall serve a copy of the petition to intervene upon all other parties.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.308  PROCEDURE FOLLOWING FILING OF PETITION FOR NEW UNIT DETERMINATION AND ELECTION  (1)  The division board shall direct an investigation of all questions and facts concerning the proposed unit in accordance with ARM 24.26.620., and shall have the following options:

            (a)  to direct a unit determination hearing within 20 days after time for intervening has passed; or

            (b)  to dispense with a unit determination hearing at its sole discretion, under the following conditions:

            (i)  there has been no counter petition filed;

            (ii)  no intervenors contest the petitioner's proposed unit structure.

            (2)  After a hearing, the division shall issue its determination of the appropriate unit.  If a unit petitioned for is found not to be appropriate, the findings and conclusions shall give specific reasons therefore.  If the unit is found to be appropriate, the division shall schedule the election and a pre-election conference at which time challenges for individual inclusions and exclusions shall be made by either party.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.401  PETITION FOR UNIT CLARIFICATION OF BARGAINING UNIT

            (1)  A Petition for Clarification of Bargaining Unit may be filed with the division board in accordance with ARM 24.26.630. only by a bargaining representative of the unit in question or by an employer and only if:

            (a)  there is no question concerning representation;

            (b)  the parties to the agreement are neither engaged in negotiations nor within 120 days of the expiration date of the agreement;

            (c)  a petition for clarification has not been filed with the division concerning substantially the same unit within the past 12 months immediately preceding the filing of the petition; and

            (d)  no election has been held in substantially the same unit within the past 12 months immediately proceeding the filing of the petition.

            (2)  A copy of any such petition shall be served by the division board upon the bargaining representative if filed by the employer and upon the employer if filed by a bargaining representative.

            (3)  A petition for clarification of an existing bargaining unit shall contain the following:

            (a)  the name and address of the bargaining representative;

            (b)  the name and address of the public employer involved;

            (c)  the identification and description of the existing bargaining unit;

            (d)  a description of the proposed clarification of the unit;

            (e)  the job classification(s) of employees as to whom the clarification issue is raised, and the number of employees on each such classification;

            (f)  a statement setting forth the reasons why petitioner desires a clarification of the unit;

            (g)  a statement that no other employee organization is certified to represent any of the employees who would be directly affected by the proposed clarification;

            (h)  a brief and concise statement of any other relevant facts; and

            (i)  the name, affiliation, if any, and the address of petitioner.

            (4) (3)  The A party on whom the petition was served shall have 20 days after the board mails the petition to file a response with this division the board.

            (5)  Upon a determination that a question of fact exists, this division may set the matter for hearing.  Upon completion of the hearing this division may:

            (a)  grant the petitioned for clarification in whole or in part; or

            (b)  deny the petitioned for clarification in whole or in part.

 

AUTH:  39-32-103, MCA

IMP:  39-32-106, MCA

 

            24.25.501  PETITION FOR DECERTIFICATION  (1)  A petition for decertification of an exclusive representative shall be filed by an employee, a group of employees, or a labor organizations, provided that 12 months have elapsed since the last election.  The petition must be filed in accordance with ARM 24.26.643.

            (2)  The petition must be filed not more than 90 days before, and not less than 60 days before the termination date of the previous collective bargaining agreement, or upon the terminal date thereof.  A contract whose duration is more than two years shall not be a bar to a decertification proceeding after the expiration of the second year.

            (3)  The original petition shall be signed by the petitioner(s) or their authorized representative.

            (4)  The original petition and five copies of the petition shall be filed with the division.

            (5)  The petition shall contain:

            (a)  the name and address of petitioner(s);

            (b)  a statement that the labor organization that has been certified or is currently being recognized by the employer as bargaining representative no longer represents the interests of the majority of the employees in the unit;

            (c)  the name of the labor organization, if any, which claims to be the majority representative;

            (d)  a description of the bargaining unit involved and the approximate number of employees; and

            (e)  any other relevant facts.

            (6)  The petition shall be accompanied by proof that 30 percent of the employees in the unit do not desire to be represented by the existing exclusive representative.  This proof will consist of authorization cards, or copies thereof, which have been individually signed and dated within six months prior to the filing of the petition.

            (7) (2)  The division board shall serve a copy of the petition upon the labor organization(s) concerned, and upon the employer.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108(3) 39-32-113, MCA

 

            24.25.502  ANSWER  (1)  Each party may file an answer to the petition for decertification within five ten working days after receipt thereof the date the board mailed a copy of the petition for decertification.

            (2)  remains the same.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108(3) 39-32-113, MCA

 

            24.25.503  NOTICE OF DECERTIFICATION PROCEEDINGS  (1)  The division board shall require the employer to post in a conspicuous manner, a notice of decertification proceedings.  Such notice shall be provided by the division and shall remain posted for a period of 20 days.

            (2)  The employer shall confirm in writing to the division board that it has received, posted, and shall continue posting of the notice for the required 20 days.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108(3) 39-32-113, MCA

 

            24.25.504  PETITION TO INTERVENE  (1)  Any labor organization or group of employees may file a petition to intervene within 20 days of the first day of posting of the notice of decertification proceedings in accordance with ARM 24.26.646.

            (2)  The original petition shall be signed by the petitioner(s) or their authorized representative.

            (3)  The original petition and five copies of the petition shall be filed with the division.

            (4)  The petition shall contain the name and address of petitioner(s).

            (5)  The petition shall be accompanied by proof of interest representing ten percent of the employees in the unit.  This proof will consist of authorization cards, or copies thereof, which have be individually signed and dated within six months prior to the filing of the petition.

            (6)  The petition to intervene shall conform in all other respects to the requirements for a petition for decertification.

            (7) (2)  The division board shall serve a copy of the petition to intervene upon all other parties.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108(3) 39-32-113, MCA

 

            24.25.505  PROCEDURE FOLLOWING FILING OF PETITION FOR DECERTIFICATION  (1)  The division board shall direct an investigation of all questions and facts concerning the proposed decertification in accordance with ARM 24.26.647. and shall have the following options:

            (a)  to direct a hearing if deemed appropriate, after which the election and pre-election conference shall be scheduled; or

            (b)  to schedule the election and pre-election conference.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108(3) 39-32-113, MCA

 

            24.25.601  ELECTION DIRECTED  (1)  When a petition for an election has been filed, the board The division shall direct an election to be held in accordance with 39-31-207 through 39-31-210, MCA, and ARM 24.26.655 through 24.26.666 conducted by an employee of the division where an appropriate unit has been determined and a question of representation exists or where a petition for an election has been filed.  The election shall be conducted under the direction and supervision of the division with all determinations made by an employee.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108(3) 39-31-207, 39-31-208, 39-31-209, 39-31-210, 39-32-113, MCA

 

            24.25.701  COMPLAINT  (1)  A complaint alleging that a person or organization has engaged in or is engaging in an improper employment unfair labor practice may be filed by an employee, or a group of employees, or a labor organization within six months of the asserted unfair labor practice.

            (2)  A complaint shall be in writing.  The original shall be signed and verified by the complainant or his the authorized representative.  The original and five three copies of the complaint shall be filed with the division board.  The division board shall serve one copy of the complaint on each party named in the complaint.

            (3) through (3)(c) remain the same.

            (4)  The board shall conduct an investigation in accordance with ARM 24.26.280B.

            (4) (5)  If the division board determines that the facts alleged in the complaint do not constitute an improper employment unfair labor practice under section 39‑32‑109, MCA, it shall dismiss the charge.

 

AUTH:  39-32-103, MCA

IMP:  39-32-109, 39-32-112, MCA

 

REASON:  The existing rule for filing a complaint on an unfair labor practice in Title 24, chapter 25, does not contain a time limitation, nor does the controlling statute.  However, there is a statute (39-32-112, MCA) that contains a provision that states that unfair labor practice complaints "are remediable by the board…in the same manner as provided for in Title 39, chapter 31, part 4."  Section 39-31-404, MCA, and the corresponding rules contain language that an unfair labor practice charge must be filed within six months.  Therefore, for consistency, the board will continue the six month limitation to Title 24, chapter 25.

 

            24.25.702  ANSWER  (1)  The party named in the complaint shall file a formal, written verified answer within ten days after the board has mailed a copy of the notice finding probable merit service of the complaint.

            (2)  One copy of the answer shall be served on the complainant, and the original, with proof of due service and five three copies, shall be filed with the division board.

            (3)  remains the same.

            (4)  If the party charged fails to file a timely answer, the division board may consider it an admission of material facts and waiver of a hearing.

 

AUTH:  39-32-103, MCA

IMP:  39-32-109, 39-32-112, MCA

 

            24.25.703  NOTICE OF HEARING   (1)  After the time for filing an answer has passed, the division board shall serve a notice of hearing upon the parties.  The hearing date shall not be less than five nor more than 20 working days from the date of service.  The notice shall include all those items listed in section 2-4-601, MCA, and shall state who will hear the complaint.

 

AUTH:  39-32-103, MCA

IMP:  39-32-109, 39-32-112, MCA

 

            24.25.704  PROPOSED FINDINGS  (1)  The hearing examiner board may request proposed findings of fact and conclusions of law from the parties.

 

AUTH:  39-32-103, MCA

IMP:  39-32-109, 39-32-112, MCA

 

            24.25.801  PETITION  (1)  In the event of an impasse, a petition, in writing, requesting assistance of the division board, may be filed with the division board by an employee or group of employees, a labor organization, or an employer.  The original of the petition shall be signed by the petitioner or his the authorized representative, and the original and five three copies thereof shall be filed with the division board.  The petitioner shall serve a copy of the petition simultaneously upon any party in the petition.  The petition shall contain:

            (a)  through (g) remain the same.

            (2)  A petition may be withdrawn with the consent of the division board.

 

AUTH:  39-32-103, MCA

IMP:  39-32-110 2-4-201, MCA

 

            24.25.802  MEDIATION  (1)  Upon petition, the division board, any member or employee thereof designated by the division board or any other competent, impartial, disinterested person designated by the division board may act as the mediator in a dispute or, if available, the division may request a mediator from the Federal Mediation and Conciliation Service or from the American Arbitration Association.

            (2)  Any information disclosed to the mediator in the performance of his these duties shall not be divulged unless approved by the parties involved.  All files, records, reports, documents, or other papers received or prepared by the mediator shall be classified as confidential and not as a public record.  Such matters shall not be disclosed to anyone without the prior consent of the division board.

            (3)  The mediator shall not produce any confidential records or testimony with regard to any mediation conducted by him on behalf of the a party to any case pending in any proceeding before any court, board, investigatory body, arbitrator, or fact finder without the written consent of the division board.

            (4)  remains the same.

            (5)  The mediator shall, within 30 days of his designation, report in writing the progress of his mediation efforts, as well as the terms of the settlement of the dispute, if any, to the division.

 

AUTH:  39-32-103, MCA

IMP:  39-32-110 2-4-201, MCA

 

            24.25.803  FACT FINDER  (1)  Either party to a dispute may petition the division board to initiate fact-finding in accordance with ARM 24.26.697 or, if it is apparent that matters in disagreement might be more readily settled if facts involved were determined and publicly known, the division board may initiate fact-finding.

            (2)  Within three days of receipt of a petition for fact finding, the division shall submit a list of five qualified, disinterested persons to each of the parties to the dispute.

            (3)  Within five days of receipt of the list, the parties shall select a fact finder by having the petitioner strike two names and then the other party strike two names.  The remaining name is that of the fact finder.

            (4)  The parties shall immediately notify the division of the name of the fact finder.  The board shall notify the fact finder and request him to immediately establish dates and places of hearings.

            (5)  Within 20 days from his notification by the division, the fact finder shall make written findings of fact and recommendations for resolution of the dispute.  The findings shall be served on both parties and a copy sent to the division.

            (6)  The fact finders may request the division to make the report public five days after the parties are served with the findings.

            (7)  Fifteen days after the parties are served the division shall provide that the report is open to public inspection.

            (8)  The fact finder shall submit his costs and fees to the division which shall send copies of an invoice to both parties on which they will be billed for one-third of the total.  The parties shall pay the division within five days and the division shall forward the total amount to the fact finder.

 

AUTH:  39-32-103, MCA

IMP:  39-32-110 2-4-201, MCA

 

            24.25.804  ARBITRATION  (1)  The parties may, at any period in the negotiations, agree to submit the issues to binding arbitration in accordance with ARM 24.26.698.

            (2)  Both parties shall jointly notify the division in writing of this decision and of the identity of the arbitrator.

            (3)  The parties may petition the division to assist in the selection of the arbitrator in accordance with rule 24.25.801.

            (4)  The arbitrator shall render a decision within 30 days of his appointment.

 

AUTH:  39-32-103, MCA

IMP:  39-32-110 2-4-201, MCA

 

            24.26.102  BOARD MEETINGS, QUORUM  (1)  The Board of Personnel Appeals shall meet upon the call of the chairman chair or at the written request of three members at a time and place designated by the chairman chair or members calling the meeting.

            (2)  A majority of the membership, provided that the chairperson is present, constitutes a quorum to do business.  In all proceedings before the board, a favorable vote of at least a majority of a quorum is sufficient to adopt any resolution, motion, or other decision.  A representative quorum of at least three members is required to adopt any resolution, motion, or other decision that is not purely procedural in nature.  For the purpose of this rule, the term "representative quorum" means at least one of the appointed management board members, one of the appointed labor union or association members, and the chair or his or her substitute.

            (3)  The board shall select a member or an agent to act as administrator of the board.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, 2-15-124, 2-15-1705, MCA

 

            24.26.201  ADOPTION OF ATTORNEY GENERAL MODEL RULES

            (1)  Pursuant to the authority vested in the To the extent that they do not conflict with statute or rule, the Board of Personnel Appeals of the Department of Labor and Industry, this board adopts the model rules proposed by the Attorney General as adopted by the Department of Labor and Industry.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.26.202  BOARD  BUSINESS OF PERSONNEL APPEALS ADDRESS

            (1)  All requests, petitions, and other correspondence to the board should be addressed to the Board of Personnel Appeals, P.O. Box 6518, Helena, MT 59604-6518 P.O. Box 201503, Helena, MT  59620-1503.  The board's physical location is 1805 Prospect Avenue, Helena, MT  59601.

            (2)  Any complaint, answer, petition or other document required or allowed to be filed with the board or served on a party may be filed or served by means of a telephonic facsimile communication device (fax).  The board fax number is (406) 444-7071.

            (3)  Filings with the board by fax are subject to the following conditions:

            (a)  a filing must conform with all applicable rules, except that only one copy of a document need be filed by fax even when multiple copies otherwise would be required;

            (b)  when a document is received after 5:00 p.m. mountain time, the date of filing of that document, for purposes of board rules, will be the date of the next regular work day;

            (c)  the original document and any copies must be received by the board within five days of the fax transmittal or the filing will not be recognized as timely; and

            (d)  the board's failure to receive a fax, for any reason, including but not limited to the unavailability or failure of fax equipment or transmission lines, does not excuse the late filing of documents.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.26.203  SERVICE OF PROCESS AND FILING  (1)  All service and computation of time in proceedings before the board shall be bound by the Montana Rules of Civil Procedure Unless otherwise provided by statute, service shall be accomplished by personal delivery or certified mail, return receipt requested, or by any other method reasonably calculated to effect actual notice on a party to the action.  Each party shall inform the board of any change of address within five days of the change.

            (2)  Any document required or allowed to be filed with the board may be filed or served by means of telephonic facsimile (fax).  The board fax number is (406) 444-7071.

            (3)  Any document required or allowed to be filed with the board may be filed or served by means of electronic mail (e-mail).  It is incumbent upon the party that is filing a document electronically to inquire and confirm the appropriate board staff person to whom the document should be electronically sent prior to filing the document.  The document must be received in a recognizable format and the party e-mailing the document must confirm receipt.

            (4)  Filings with the board by fax or electronic mail are subject to the following conditions:

            (a)  a filing must conform with all applicable rules, except that only one copy of a document need be filed even when multiple copies otherwise would be required;

            (b)  when a document is received after 5:00 p.m. mountain time, the date of filing of that document, for purposes of board rules, will be the date of the next regular work day;

            (c)  the original document and any copies must be received by the board within five days of the fax or electronic mail transmittal or the filing will not be recognized as timely; and

            (d)  the board's failure to receive a fax or electronic mail, for any reason, including but not limited to the unavailability or failure of equipment or transmission lines, does not excuse the late filing of documents.

 

AUTH:  2-4-201, 39-31-107, MCA

IMP:  2-4-201, 39-31-107, MCA

 

            24.26.206  COMPUTING COMPUTATION OF TIME FOR RESPONSES

            (1)  Unless otherwise specifically provided in these rules, time will be computed by excluding the first day and including the last day unless the last day falls upon a legal holiday, Saturday, or Sunday, in which case the last day also is excluded.  When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.  For the purposes of these rules, the term "days" means calendar days, unless otherwise specified.

            (2)  When a document is personally delivered, the time period specified for a response is counted starting the day after the delivery is made.

            (3)  When a document is mailed, the time period specified for a response is counted starting three days after the date of the postmark on the envelope.

            (4) (2)  Mailed documents are presumed to be mailed on the day they are dated.  That presumption may be rebutted by a showing of the postmark.  The burden of proof for showing that a document was mailed on a date different than the document's date rests with the person who claims that it was mailed on the different date.  A party which alleges that it did not receive notice by mail of a board proceeding has the burden of proof in showing that the party ought to be granted relief.  The party must present clear and convincing evidence to rebut the statutory presumption contained in 26-1-206, MCA, that a letter duly directed and mailed was received in the regular course of the mail.

            (3)  All questions regarding alleged nonreceipt of mail, or whether an appeal was timely made must be resolved by the board.

            (4)  If a rule requires a response within a certain number of days after the board mails a document, the party responding is not afforded any additional time for mailing in responding to the board.  The response must be received by the board within the time allotted by rule.  As provided for in ARM 24.26.203, both facsimile and electronic mail filing is accepted.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.26.212  MOTIONS  (1)  All motions other than those made during a hearing shall be made in writing and submitted to the board or the board's agent.  They shall briefly state the relief sought, and shall be accompanied by affidavits setting forth the grounds upon which they are based.  The moving party shall serve a copy of all motions on all other parties and shall file with the board the original with proof of service.  Answering affidavits, if any, must be served on all parties and the original thereof, together with proof of service, shall be filed with the board within five days after service of the moving papers, unless the board directs directed otherwise.  The board or the board's agent may decide to hear oral argument or testimony thereon.

            (2)  Motions for postponements of hearing or conference scheduled by the division will not be granted unless good and sufficient cause is shown and the following requirements are met:

            (a)  The request must be in writing directed to the administrator chair of the board if the matter is before the board or directed to the attention of the assigned hearing examiner officer if the matter is before the Hearings Bureau.

            (b)  through (3) remain the same.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.26.215  HEARINGS BEFORE THE HEARINGS BUREAU  (1)  The board shall may defer to a board agent from the department's Hearings Bureau or its designee to conduct its hearing hearings in accordance with the appropriate provisions of the Administrative Procedure Act.

            (2)  If a member of the board or an examiner appointed by the board presides over the hearing, the member, or the examiner, as the case may be, shall issue and cause to be served on the parties to the proceeding findings of fact, conclusions of law and recommended order, which shall be filed with the board, and if no written exceptions specifically stating to which part of the recommended order exception is being taken are filed with this board within 20 days after service of the recommended order upon the parties, or within such further period as the board may authorize, the recommended order shall become the order of the board.

            (3)  If the board refuses to adopt a board appointed examiner's proposal for decision (findings of fact, conclusions of law, and recommended order) as its final decision or order and, instead, remands the proposal or portion thereof to the examiner for further consideration pursuant to board direction, the examiner shall conduct whatever proceedings are necessary and conform the proposal for decision to board direction.

            (a)  The examiner shall serve the conformed proposal on all parties as well as upon the board's administrative assistant.  The board shall then consider the conformed proposal at a regularly scheduled meeting prior to issuing a final decision.

            (b)  Parties may file exceptions to any new material contained within the conformed proposal for decision.  Exceptions must be filed, in writing, with the administrative assistant to the Board of Personnel Appeals at P.O. Box 6518, Helena, MT  59604-6818.  To be considered, exceptions must be postmarked by no later than 20 days from the service of the conformed proposal for decision.  If no exceptions are filed, the board will rule on the record before it, including the conformed proposal for decision.  If exceptions are filed, the parties shall be afforded an opportunity to appear before the board prior to issuance of a final board order.

            (4)  If the board presides over the hearing, the board shall cause to be served on the parties to the proceeding a final order.

            (2)  All documents, pleadings, and papers to be filed with the Hearings Bureau shall be eight and one-half inches by eleven inches (8 1/2" x 11") in size, standard quality, opaque, unglazed paper, with a minimum 50 percent recycled content, of which at least ten percent shall be postconsumer waste, and be printed on both sides (double sided).  Exhibits or other documents shall be reproduced in like size unless the original exhibit is required.  A hearing officer may require the reproduction of an oversized demonstrative or other exhibit in a size appropriate for the record.

            (3)  The place of filing documents with the Hearings Bureau is the offices of the Hearings Bureau, Department of Labor and Industry, P.O. Box 1728, Helena, Montana  59624-1728, or during a hearing, by personal delivery to the presiding hearing officer.

            (4)  Filing with the Hearings Bureau is effective upon actual receipt at the offices of the department or by the hearing officer at the hearing and not upon mailing.

            (5)  Copies of all submissions filed must be served upon all parties of record, including intervenors or other parties allowed to appear for special purposes, and all submissions must contain or be accompanied by a certificate of service showing proof of the method of service and the date upon which such service was made.  Service of copies of submissions upon parties shall be made in accordance with the Montana Rules of Civil Procedure and may be made by means of first class mail, postage prepaid, unless the hearing officer designates another manner of service.

            (6)  The hearing officer may accept telephonic or oral filings of motions or requests for procedural relief, subject to recording by means of minute entry, note, or the subsequent filing of a true and accurate recording of such matters, upon fair and timely notice to all parties of record.

            (7)  Filing of a facsimile copy of a document of no more than 20 pages, which is an exact duplicate of the original, shall meet the filing requirements of these rules only if the facsimile copy is followed within five days by filing of the original or original copy of the document and required copies.

            (8)  The board agent shall issue a recommended order and serve a copy on each party.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, 39-31-105, MCA

 

            24.26.501  PURPOSE  (1)  The purpose of these regulations is to provide all classified employees of the state of Montana an orderly and uniform method to file and process appeals arising from the operation of the state employees' broadband classification and pay plan Title 2, chapter 18, MCA.

 

AUTH:  2-18-1011, MCA

IMP:  2-18-1011, MCA

 

            24.26.502  DEFINITIONS  (1) (6)  "Employee" means any person employed by the state of Montana, except: elected officials and their chief deputy and executive secretary; officers and employees of the legislative branch; judges and employees of the judicial branch; members of boards and commissions appointed by the governor, appointed by the legislature or appointed by other elected state officials, officers or members of the militia; agency heads appointed by the governor; academic and professional administrative personnel with individual contracts under the authority of the Board of Regents of Higher Education; personal staff of the executive officials enumerated in article VI, section one of the constitution of Montana persons exempt from policy under 2-18-103 and 2-18-104, MCA.

            (2)  remains the same, but is renumbered as (1).

            (3)  remains the same, but is renumbered as (4).

            (4)  remains the same, but is renumbered as (5).

            (5)  remains the same, but is renumbered as (3).

            (6) (10)  "State Human Resources Personnel Division" means the Personnel State Human Resources Division of the Department of Administration.

            (7)  remains the same, but is renumbered as (9).

            (8) (2)  "Appeal" means any complaint filed with the Board of Personnel Appeals relating to the operation of the state employees' broadband classification and pay plan, Title 2, chapter 18, MCA.

            (9)  remains the same, but is renumbered as (11).

            (10) (7)  "Form" means the state employees classification and wage appeal form BPA-C(1).

            (11)  remains the same, but is renumbered as (8).

 

AUTH:  2-18-1011, MCA

IMP:  2-18-1011, MCA

 

            24.26.503  INFORMAL RESOLUTION OF APPEALS  (1)  The board encourages the personnel State Human Resources Division and state employees to attempt to resolve appeals through an informal procedure as prescribed by the personnel State Human Resources Division before initiating the formal appeals procedure.  Every attempt should be made to resolve an appeal at the earliest possible stage of the appeals process, preferably between the employee and their immediate supervisor.

 

AUTH:  2-18-1011, MCA

IMP:  2-18-1011, MCA

 

            24.26.508  GRIEVANCE PROCEDURE  (1)  Any employee, group of employees not represented by a labor organization, or an appropriately designated representatives, may utilize this formal grievance procedure.  Employees must obtain a state employee classification and wage appeal form and follow the accompanying instructions.  Appeal forms may be obtained from the Board of Personnel Appeals, P.O. Box 6518 201503, Helena, Montana, 59604-6518 59620-1503, from the personnel human resource office of any department within the executive branch, or from the department's web site at:  erd.dli.mt.gov/laborstandard/wagehrbpa.asp.

            (a)  and (b) remain the same.

            (c)  If a number of appeals affect multiple employees in the same manner, the appeals may be consolidated at any step of the grievance process by the employees, by an appropriately designated representative, by the department, by the State Personnel Human Resources Division, or by the Board of Personnel Appeals.  If the appeals are consolidated, the timelines in this rule will run from the dates associated with the latest appeal included in the consolidation.  If an employee who is not represented by a labor organization opposes consolidation, that employee's appeal will not be consolidated absent a board order.  However, an employee represented by a labor organization may not contradict the employee's appropriately designated representative and either consolidate an appeal or opt out of a consolidated appeal unless by board order.  Consolidation of appeals will be by written stipulation of the parties or by board order.  A consolidation may be altered or amended at any time before the final order of the board.  If an employee opposes altering or amending the consolidation, the employee may request a hearing to be held before the final order of the board is issued.

            (d)  Pursuant to section 2-18-203(2), MCA, the grade pay band assigned to a class an occupation and benchmarks is are not an appealable subjects.  The appeal shall be described in terms of the following appealable issues:

            (i)  substantial changes have occurred in this position to warrant reclassification.  Specifically, this position should be allocated to (list class code band level and class occupation title);

            (ii)  this position was incorrectly allocated to (list class code band level and class occupation title) and should be allocated to (list class code band level and class occupation title);

            (iii)  pursuant to point factoring methodology, inappropriate levels have been assigned to the following factors: (list all applicable factors);

            (iv) (iii)  The pay plan the classification rules have been incorrectly applied to this position (specific rule(s) should be cited); and

            (v) (iv)  Other – "other", but the issue must specifically relate to position classification.

            (2)  Step one:

            (a)  remains the same.

            (b)  The department head or designee is not limited to the issues raised by the employee in the appeal form, but may address any other classification issue listed in (1)(c) above, deemed by the department head or designee to be important to the appeal.

            (c)  If the employee does not accept the findings of the department head or designee, the employee shall have 15 working days to forward the appeal to the State personnel Human Resources Division, step two.  The employee must identify and explain, in writing, how he or she disagrees with the findings of the department head or designee.

            (3)  Step two:

            (a)  The State personnel Human Resources Division shall have 30 working days to review the matter, record its findings in the appropriate section of the form, and return it to the employee or the proper representative.

            (b)  The State personnel Human Resources Division's review and findings are not limited to the issues raised by the employee in the appeal form, but may address any other classification issues listed in (1)(c) above, deemed by the State personnel Human Resources Division to be important to the appeal.

            (c)  The State personnel Human Resources Division must prepare clear written findings explaining its position regarding each relevant issue.

            (d)  If the employee accepts the State personnel Human Resources Division's findings and recommendations, the formal appeals procedure is concluded upon the implementation of the State personnel Human Resources Division's findings and recommendations.

            (e)  If the employee rejects the State personnel Human Resources Division's findings and recommendations or if the State personnel Human Resources Division fails to make its findings within 30 working days, the employee shall have 15 working days to forward the appeal to the Board of Personnel Appeals at step three.

            (4)  Step three:

            (a)  The employee must identify and explain, in writing, how the employee disagrees with the State personnel Human Resources Division's findings.

            (b)  remains the same.

            (i)  The board or its designee shall examine the issue(s) identified by the employee in the appeal form and the issues, findings, and explanations addressed by the department head or designee, or the State personnel Human Resources Division in steps one and two.  If the issue(s), findings, and explanations are adequately addressed, the board or its designee will accept the appeal at step three and serve notice of acceptance on the State personnel Human Resources Division and the employee within ten working days.  The board's notice to the State personnel Human Resources Division will include a copy of the employee's written explanation of why the employee disagrees with the State personnel Human Resources Division's step two response.

            (ii)  If the board or its designee finds that the issues, findings, or explanations raised by the employee, the department head or designee, or the State personnel  Human Resources Division are not adequately addressed, the board or its designee shall return the appeal to the appropriate party.  In such case, the party will expand its issues, findings, or explanations and refile them with the board within 15 working days.

            (c)  If, in the discretion of the board or its designee, a decision is made to conduct a preliminary investigation of the appeal, it shall have 20 working days to investigate and issue a preliminary decision.  The board or its designee may carry out any investigation deemed necessary for resolution of the appeal or complaint.  The employee or group of employees and the State personnel Human Resources Division shall have 15 working days to accept or reject the preliminary decision.  If the employee or group of employees and the State personnel Human Resources Division accept the preliminary decision, it shall be final and binding.

            (d)  If the employee, group of employees, or the State personnel Human Resources Division rejects the preliminary decision; or the board or its designee, in its discretion, decides not to conduct a preliminary investigation, the board or its designee shall conduct a hearing in accordance with Title 2, chapter 4, MCA.

            (e)  through (h) remain the same.

 

AUTH:  2-18-1011, MCA

IMP:  2-18-1011, MCA

 

            24.26.518  FAILURE OF DEPARTMENT HEAD, DESIGNEE, OR STATE PERSONNEL HUMAN RESOURCES DIVISION TO ACT WITHIN PRESCRIBED TIME LIMIT  (1)  If the department head or designee, or the State personnel Human Resources Division does not respond to an employee's appeal within the prescribed time limits in the appeals procedure, the employee may advance the appeal to the next step in the appeal procedure by forwarding his or her the employee's original copy of the form and a new copy of the form to the next step within 15 days of the expiration of the time limit.

 

AUTH:  2-18-1011, MCA

IMP:  2-18-1011, MCA

 

            24.26.614  EMPLOYER COUNTER PETITION  (1)  The employer shall have five ten working days from receipt of after the date the board mailed the petition in which to file a counter petition with the board.

            (2)  through (4) remain the same.

            (5)  If an employer fails to file a timely counter petition, the board or its agent shall direct an election after the time for intervention has past provided the board or its agent have determined the unit as described by the petitioner is appropriate under 39-31-202, MCA.

            (6)  If the board directs an election, and provided the employer has not previously done so, the employer must provide an eligible voter list to the board's agent and the petitioner within five days of the notice of the board directed election.  If the eligible voter list is not provided by the employer, then the board or its agent may ask the petitioner to determine the list of eligible voters in consultation with the board or its agent.

 

AUTH:  39-31-104, MCA

IMP:  39-31-207, MCA

 

REASON:  There is reasonable necessity to amend the current rule because there is no language to explain what happens when an employer does not respond to a petition.  The suggested amendments extend the amount of time an employer has to respond, but in the event that there is no response, the board has the option of defaulting to direct an election using the petitioner's excelsior list (in consultation with the board).

 

            24.26.620  PROCEDURE FOLLOWING FILING OF PETITION FOR NEW UNIT DETERMINATION AND ELECTION  (1)  and (2) remain the same.

            (3)  The parties may waive a hearing and enter into a consent election agreement after the time to intervene has past.  Such agreement shall be drafted by the board’s election judge and must include a description of the unit and the time and place for the election.  The bargaining unit set out in the consent agreement shall be deemed an appropriate bargaining unit when it is signed by the parties and approved by the election judge.

            (4) (3)  After a hearing, the board shall issue its determination of the appropriate unity unit.  If a unit petitioned for is found not to be appropriate, the findings and conclusions shall give specific reasons therefore.  If the unit is found to be appropriate, the board shall schedule the election and a pre-election conference at which time challenges for individual inclusions and exclusions shall be made by either party.

 

AUTH:  39-31-104, MCA

IMP:  39-31-207, MCA

 

            24.26.630  PETITION FOR UNIT CLARIFICATION OF BARGAINING UNIT

            (1)  through (4) remain the same.

            (5)  The A party on whom the petition was served shall have 20 days after the date the board mailed the petition to file a response with the board.  Absent an agreed upon stipulation of the parties to extend the response time, failure to respond will result in the agent of the board issuing a recommended order granting the relief requested by the petitioner.  The recommended order is subject to board review if appealed within ten business days.  If not appealed, the recommended order is the final board order.

            (a) through (6)(b) remain the same.

 

AUTH:  39-31-104, MCA

IMP:  39-31-207, MCA

 

            24.26.644  ANSWER  (1)  Each party may file an answer to the petition for decertification within five ten working days after receipt thereof the date the board mailed the petition for decertification.

            (2)  remains the same.

 

AUTH:  39-31-104, MCA

IMP:  39-31-207, MCA

 

            24.26.655  ELECTION DIRECTED  (1)  When a petition for an election has been filed, the board shall direct an election be held, if an appropriate unit has been determined or if no question of representation exists.  The election shall be conducted under the direction and supervision of the board with all determinations of the board's agent.  Determinations made by an the board's agent are subject to review by the Board of Personnel Appeals by an aggrieved party at the board's discretion.

 

AUTH:  39-31-104, MCA

IMP:  39-31-208, MCA

 

            24.26.666  BALLOT TALLY AND OBJECTIONS  (1)  remains the same.

            (2)  Objections by a party to the election relating to the conduct of the election or the conduct affecting the results of the election shall be in writing and shall contain a brief statement of the facts upon which the objections are based.  An original and three copies of such objections shall be signed and filed with the board, the original being sworn to.  The party filing an objection shall serve a copy upon each of the other parties to the election.

 

AUTH:  39-31-104, MCA

IMP:  39-31-208, MCA

 

            24.26.680  COMPLAINT  (1)  A complaint alleging that a person or organization has engaged in or is engaging in an unfair labor practice may be filed by an employee, a group of employees, a labor organization, or a public employer within six months thereof of the asserted unfair labor practice.

            (2)  through (4) remain the same.

            (5)  The board shall serve a copy of the complaint to each party charged with unfair labor practice.

 

AUTH:  39-31-104, MCA

IMP:  39-31-406, MCA

 

            24.26.680B  RESPONSE TO COMPLAINT AND INVESTIGATION OF COMPLAINT  (1)  The board shall serve one a copy of the complaint upon each party charged with the unfair labor practice.

            (2)  A party so charged with an unfair labor practice shall file a response with the board to the complaint within ten days after the board has mailed the complaint.  A response is a letter setting forth in detail facts relevant to the complaint which the respondent wishes to bring to the board's attention including a specific reply to each factual allegation made in the complaint.

            (3) (2)  As provided for in 39-31-405(1), MCA, after receipt of the response, the board shall appoint an investigator to investigate the alleged unfair labor practice.  In making a determination of probable merit, the investigator must determine whether there is substantial evidence to support the allegation(s).  In reaching this decision, the board's agent shall rely on the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.  Substantial evidence is something more than a scintilla of evidence but may be less than a preponderance of the evidence.

            (4) (3)  As provided for in 39-31-405(2), MCA, if after the investigation, the agent designated by the board determines that the charge is without probable merit the board shall issue and cause to be served upon the complaining party and the person being charged a notice of its intention to dismiss the complaint.  The dismissal becomes a final order of the board unless either party requests a board review of the decision to dismiss the complaint.  The request for a review must be made in writing within ten days of receipt of from the date the board mailed its notice of intention to dismiss decision.  This rule requires that the request for review must clearly set forth the specific factual and/or legal reasons indicating how the investigator's finding of no probable merit is in error.  At the discretion of the board, interested parties will be afforded an opportunity to respond to a request for review.

            (4)  In considering a request to review a notice of intent to dismiss, the board will consider the record as prepared by the board's agent in reaching his or her decision of no probable merit, any report detailing the investigation and analysis of the board's agent, and any argument set forth by interested parties.  At the discretion of the board, the board will allow interested parties to present oral argument.  Following consideration, the board will determine whether the investigator erred in concluding that there was not substantial evidence to support a determination of probable merit or the investigator's determination was based on an error of law.

            (5)  As provided for in 39-31-405, MCA, if after the investigation or after the appeal provided for in subsection (2) of 39-31-405(2), MCA, the investigator or the board determines that there is probable merit for the charge, the board shall issue and cause to be served upon the complaining party and any party charged a notice of finding of probable merit.

            (6)  As provided for in 39-31-405(4), MCA, if a finding of probable merit is made, the person or entity against whom the charge is filed shall file an answer to the complaint.  The answer must be made in writing within ten days of receipt of after the date the board mailed notice of finding of probable merit.

            (7)  remains the same.

 

AUTH:  39-31-104, MCA

IMP:  39-31-405(1), (2), (3), (4), MCA

 

REASON:  There is reasonable necessity to amend the rule to clarify the role and standard of review of the board's agent in reviewing an unfair labor practice charge.

 

            24.26.681  ANSWER  (1)  The party named in the complaint shall file a formal, written, verified answer within ten days after service of from the date the board mailed notice of finding of probable merit.

            (2)  through (4) remain the same.

 

AUTH:  39-31-104, MCA

IMP:  39-31-406, MCA

 

            24.26.682  NOTICE OF HEARING  (1)  After the time for filing an answer has passed, the board shall serve a notice of hearing upon the parties.  The hearing date shall not be less than five working days after the date of service.  The notice shall include all those items listed in section 2-4-601, MCA, and shall state whether the board or an agent of the board will hear the complaint.

 

AUTH:  39-31-104, MCA

IMP:  39-31-406, MCA

 

            24.26.684  EXCEPTIONS  (1)  If a majority of the board have not heard the case, the person who conducted the hearing shall serve a Following the contested case proceeding or summary disposition before the board's agent, the board's agent will serve a copy of the proposed decision and recommended order upon the parties. who The parties shall have 20 days from the date the proposed decision and recommended order is mailed to file exceptions with the board.

            (2)  remains the same.

 

AUTH:  39-31-104, MCA

IMP:  39-31-406, MCA

 

            24.26.685  DISQUALIFICATION OF HEARING EXAMINER OFFICER

            (1)  A party desiring to disqualify a hearing examiner officer on an unfair labor practice case must, within five days from receipt of information notifying that party of the appointment of the hearing examiner officer, file with the board a written request to disqualify the appointed hearing examiner officer.

            (2)  If several parties to an unfair labor practice proceeding disqualify the first appointed hearing examiner officer, then all parties, other than the party who first exercises the right, shall still retain their right to disqualify one succeeding, appointed hearing examiner officer, subject to the conditions of subsection (1), of this rule.  Upon the filing of a timely, written request to disqualify a hearing examiner officer, the hearing examiner officer shall take no further action in that case.

            (3)  If several unfair labor practices are being heard together in one proceeding, each party still has only one peremptory challenge to a hearing examiner for each proceeding.

 

AUTH:  39-31-104, MCA

IMP:  39-31-405(5), MCA

 

            6.  The proposed new rules of the board provide as follows:

 

            NEW RULE I  EXCEPTIONS  (1)  If a majority of the board has not heard the case, the hearing officer who conducted the hearing shall serve proposed finding of fact and conclusions of law along with the recommended order upon the parties who shall have 20 days to file exceptions with the board in conformance with ARM 24.26.684.

 

AUTH:  39-32-103, MCA

IMP:  39-32-112, MCA

 

            NEW RULE II  DEFINITIONS  (1)  "Board" means the Board of Personnel Appeals and in the appropriate context may also mean an agent appointed by the board to perform certain board functions.

            (2)  "Board Agent" means any person designated by the board to act in its behalf.

            (3)  "Date of Filing" means the date of receipt by the board.

            (4)  "Day" means calendar day unless otherwise specified.

            (5)  "Party" is any person, labor organization, or employer filing a petition, complaint, charge, or appeal with the board; any person, labor organization, or employer named as a party in a petition, complaint, charge, or appeal, or any other person, labor organization, or employer whose timely motion to intervene has been granted.

            (6)  "Party to an election" means a labor organization or employer.

            (7)  "Petitioner" means a party who files a petition with the board.

            (8)  "Recommended Order" means the order of a hearing officer or other board agent consisting of proposed rulings on motions and evidentiary matters, findings of fact, conclusions of law, and a recommended order.

            (10)  "Respondent" means a party who is required to respond to a complaint, petition, or charge.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            NEW RULE III  NOTICE OF HEARINGS  (1)  The time and place of hearing will be set by the board or its agent and notice thereof mailed at least ten days in advance of the hearing date.

 

AUTH:  2-4-201, 39-31-104, MCA 

IMP:  2-4-201, MCA

 

            NEW RULE IV  LAY REPRESENTATION BEFORE THE BOARD OR BOARD AGENT  (1)  A lay representative, authorized by a party to the proceedings, may be permitted to appear in proceedings before the board or before an agent of the board on behalf of interested parties so long as this lay representative does not charge a fee to provide representation and is not otherwise compensated for the representation except for the remuneration that he or she may receive as a permanent employee of the party to the proceedings.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            NEW RULE V  BRIEFS  (1)  Where briefs are required, or permitted, they must be captioned with the board case title and number, and must be typewritten or printed with double spacing on letter-sized paper.

            (2)  Briefs must substantially comply with the following format:

            (a)  brief statement of pertinent facts;

            (b)  statement and discussion of disputed issues supported by available precedent; and

            (c)  concise summary of reasons for granting requested relief.

            (3)  Briefs shall not exceed 20 pages, unless expressly permitted by the board or its agent.

            (4)  Copies of briefs must be served on the other party(ies) in the case, and proof of such service must accompany the brief when filed.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            NEW RULE VI  OBJECTIONS TO BOARD'S AGENT'S RECOMMENDED ORDER  (1)  The parties shall have 20 days from the issuance of a recommended order to file specific written objections with the board.  Upon good cause shown, the board may extend the time within which the objections shall be filed.  When objections are filed, the party making the objections shall serve a copy of the objections on all parties of record in the case and provide the board with proof of service.  A failure to so serve, and provide proof of service shall in the absence of good cause shown, invalidate any such objections as being untimely and the board may disregard same in making a final determination in the case.

 

AUTH:  2-4-201, 39-31-104, MCA 

IMP:  2-4-201, MCA

 

            NEW RULE VII  BOARD REVIEW  (1)  If timely objections are filed following the issuance of a recommended order, the parties will be given an opportunity to present oral argument to the board.  If a party desires to submit written argument in lieu of oral argument, it must be filed with the board not less than ten days before the date set for argument and the party filing the written argument shall serve a copy on parties of record.

            (2)  If parties wish to submit written memoranda in aid of oral argument in addition to argument, such written memoranda must be filed with the board not less than ten days before the date set for oral argument and copies must be served upon parties of record.

            (3)  Review by the board of a hearing officer's proposed rulings on motions and evidentiary matters, findings of fact, conclusions of law, and/or a recommended order shall be confined to the record.  The order of the board shall be in writing and shall be sent to the parties.

            (4)  If the board refuses to adopt a recommended order of a hearing officer as its final decision or order and, instead, remands the proposal or portion thereof to the hearing officer for further consideration pursuant to board direction, the officer shall conduct whatever proceedings are necessary and conform the proposal for decision to board direction.

            (5)  The hearing officer shall serve the conformed proposal on all parties as well as upon the board's administrative assistant.  The board shall then consider the conformed proposal at a regularly scheduled meeting prior to issuing a final decision.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            NEW RULE VIII  EX PARTE COMMUNICATIONS  (1)  At any time that petitions, complaints, objections, election challenges, or other contested case matters have been set for hearing by the board or its agents, if any party or counsel in the case communicates with the board, board member, or the board agent assigned to such case, concerning any fact in dispute in the case, the board, board member or board agent, as appropriate, shall notify all other parties and counsel in the case of such communications, either orally or in writing, and shall expressly include a statement of such communication, notification to other parties and counsel, and responses received thereto in the record of the case.

            (2)  The mere noting of such ex parte communications in the record will not be considered evidence of the facts in dispute unless otherwise agreed by all parties to the case.  The board and its agents shall rely only on the admissible evidence of record in determining the merits of any disputed issue in a case.

            (3)  This rule shall not apply to matters presented or obtained during preliminary investigation of the petition, complaint, objections, or challenge, made by board agents prior to the service of the notice of hearing in a case, and shall not apply to requests for subpoenas.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            NEW RULE IX  CONSENT ELECTIONS  (1)  The parties may waive a hearing and enter into a consent election agreement after the time to intervene has past.  Such agreement shall be drafted by the board's election judge and must include a description of the unit and the time and place for the election.  The bargaining unit set out in the consent agreement shall be deemed an appropriate bargaining unit when it is signed by the parties and approved by the election judge.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            7.  The board proposes the repeal of the following rules:

 

            24.25.106  MOTIONS  found at ARM page 24-1605.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.25.108  EXTENSION OR WAIVER OF TIME LIMITS  found at ARM page 24-1606.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.25.109  SUSPENSION  found at ARM page 24-1606.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.25.120  SEVERABILITY  found at ARM page 24-1606.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.25.202  FILING OF NEGOTIATED AGREEMENTS  found at ARM page 24-1609.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.602  CONDITIONS  found at ARM page 24-1625.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.603  SECRET BALLOT  found at ARM page 24-1625.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.604  ELIGIBLE VOTERS  found at ARM page 24-1625.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.605  NOTICE  found at ARM page 24-1625.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.606  BALLOTS  found at ARM page 24-1626.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.607  POLL WATCHERS  found at ARM page 24-1626.

 

AUTH:  39-32-103, MCA

IMP:  39‑32-108, MCA

 

            24.25.608  POLLING AREA ELECTIONEERING  found at ARM page 24‑1626.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.609  CHALLENGES  found at ARM page 24-1626.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.610  MAJORITY  found at ARM page 24-1627.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.611  OBJECTIONS  found at ARM page 24-1627.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.25.612  CERTIFICATION  found at ARM page 24-1627.

 

AUTH:  39-32-103, MCA

IMP:  39-32-108, MCA

 

            24.26.213  MOTIONS FOR SUMMARY JUDGMENT  found at ARM page 24‑1669.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-18-1001, 2-18-1011, 2-18-1012, 87-1-205, MCA

 

            24.26.216  DECLARATORY RULINGS  found at ARM page 24-1671.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.26.217  EXTENSION OR WAIVER OF TIME LIMITS  found at ARM page 24-1672.

 

AUTH:  2-4-201, MCA

IMP:  2-4-201, MCA

 

            24.26.701  PURPOSE  found at ARM page 24-1851.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.702  DEFINITIONS  found at ARM page 24-1851.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.705  RIGHT TO APPEAL  found at ARM page 24-1851.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.706  NOTICE OF REVIEW  found at ARM page 24-1852.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.707  REVIEW PROCEDURE  found at ARM page 24-1852.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.710  DECISION OF THE BOARD  found at ARM page 24-1852.

 

AUTH:  2‑4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.711  BOARD'S RECONSIDERATION OF ITS DECISIONS  found at ARM page 24-1853.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            24.26.712  CHALLENGES TO AND DISQUALIFICATIONS OF BOARD MEMBERS  found at ARM page 24-1853.

 

AUTH:  2-4-201, MCA

IMP:  39-3-217, MCA

 

            8.  Concerned persons may present their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to:  Marieke Beck, Office of Legal Services, Department of Labor and Industry, P.O. Box 1728, Helena, Montana  59624-1728; by facsimile to (406) 444-2917; or by e-mail to mabeck@mt.gov, and must be received no later than 5:00 p.m., September 2, 2010.

 

            9.  An electronic copy of this Notice of Public Hearing is available through the department's web site at http://dli.mt.gov/events/calendar.asp, under the Calendar of Events, Administrative Rules Hearings Section.  The department strives to make the electronic copy of this Notice of Public Hearing conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems, and that a person's difficulties in sending an e-mail do not excuse late submission of comments.

 

            10.  The department and the board both maintain a list of interested persons who wish to receive notices of rulemaking actions proposed by each agency.  Persons who wish to have their name added to the list shall make a written request, which includes the name and e-mail or mailing address of the person to receive notices, and specifies the particular subject matter or matters regarding which the person wishes to receive notices.  Such written request may be mailed or delivered to the Department of Labor and Industry, attention:  Mark Cadwallader, 1327 Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to mcadwallader@mt.gov, or may be made by completing a request form at any rules hearing held by the agency.

 

            11.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

            12.  The department's Hearings Bureau has been designated to preside over and conduct this hearing.

 

 

/s/ MARK CADWALLADER            /s/ KEITH KELLY

Mark Cadwallader                            Keith Kelly, Commissioner

Alternate Rule Reviewer                   DEPARTMENT OF LABOR AND INDUSTRY

 

 

/s/ MARK CADWALLADER            /s/ JACK HOLSTROM

Mark Cadwallader                            Jack Holstrom, Chair,

Alternate Rule Reviewer                   BOARD OF PERSONNEL APPEALS

 

Certified to the Secretary of State July 19, 2010

 

 
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