Montana Administrative Register Notice 24-26-257 No. 14   07/28/2011    
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In the matter of the amendment of ARM 24.26.643 pertaining to petitions for decertification before the Board of Personnel Appeals







TO:  All Concerned Persons


1.  On June 9, 2011, the Board of Personnel Appeals (board) published MAR Notice No. 24-26-257 regarding the public hearing on the amendment of the above-stated rule on page 1006 of the 2011 Montana Administrative Register, Issue Number 11.


2.  On June 30, 2011, a public hearing was held at which a member of the public made oral comments.  Additional written comments were received during the comment period.


3.  The Board of Personnel Appeals (board) has thoroughly considered the comments and testimony received from the public.  The following is a summary of the public comments received and the board's response to those comments:


Comment 1: There were two commenters that opposed the proposed amendment to the rule on the grounds that it represented a substantial change.  One commenter contends that the amendment greatly expands a hearing officer's interpretation of the rule that determined that a petition for decertification could only be filed on the terminal date of a collective bargaining agreement and not after the terminal date of a collective bargaining agreement.  The commenter contends that this puts unions, particularly public employee unions, at a distinct disadvantage because the union would feel forced to unnecessarily compromise to ensure that negotiations are completed and a new agreement in place before a terminal date rather than facing a decertification petition.


Response 1:  The board acknowledges that the rule change represents a substantial change to the manner in which the board's hearing officer interpreted the existing rule on decertification.  However, the rule change does not represent a substantial change in the manner in which the board has been conducting business.  Prior to the ruling, the board routinely accepted petitions for decertification after the terminal date of a collective bargaining agreement.  Consequently, the amendment merely clarifies the board's standard practice.


Comment 2:  One commenter wrote in support of the proposed amendment on the grounds that it conforms to existing legal precedent in collective bargaining laws.  The commenter notes that the board has been interpreting the rule in a manner that has allowed decertification petitions to be filed on or after the terminal date of a contract.  Further, this commenter noted that there is no precedent for interpreting the rule in the manner that would disallow petitions after the terminal date and to do so would create a significant practical burden on a petitioner.


Response 2:  The board acknowledges the comment.


Comment 3:  One commenter opposed the board's changing the language in the rule from "shall" to "may."  The commenter feels the amendment will unnecessarily expand the field of persons or parties that would be able to file a petition for decertification.


Response 3:  The board believes that the amendment will not alter the standing of interested parties that may file a petition for decertification rather it corrects a verbal auxiliary from a mandatory to a discretionary.  The filing of a petition for decertification is not a mandatory act.


4.  The board has amended the following rule as proposed:  ARM 24.26.643.



/s/ MARK CADWALLADER                                    /s/ JACK HOLSTROM

Mark Cadwallader                                                    Chair

Alternate Rule Reviewer                                           Board of Personnel Appeals

                                                                                    Department of Labor and Industry




Keith Kelly


Department of Labor and Industry


Certified to the Secretary of State July 18, 2011



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