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Montana Administrative Register Notice 24-16-248 No. 23   12/09/2010    
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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 Personnel Appeals

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NOTICE OF AMENDMENT, ADOPTION, AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On July 29, 2010, the Department of Labor and Industry (department) and the Board of Personnel Appeals (board) published MAR Notice No. 24-16-248 regarding the proposed amendment, adoption, and repeal of the above-stated rules at page 1652 of the 2010 Montana Administrative Register, Issue Number 14.

 

            2.  On August 26, 2010, the department and the board held a public hearing in Helena at which time members of the public made oral and written comments and submitted documents.  Additional comments were received during the comment period.

 

            3.  The department and the board have thoroughly considered the comments and testimony received from the public.  The following is a summary of the public comments received and the agency's response to those comments:

 

Comment 1:  Butch Plowman commented that in two board rules, Rule 24.25.701 and Rule 24.25.801, the inclusion of "the" immediately prior to "authorized representative" is unnecessary and may cause confusion with "the exclusive representative."  A party, such as an employer, may work with more than one authorized representative, but a bargaining unit can only have one exclusive representative.  Therefore, changing the "the" to an "an" would work.

 

Response 1:  The board agrees and will change the article to "an" in the rules mentioned in the comment.

 

Comment 2:  Department of Labor and Industry staff noted during the rulemaking process that there were minor typographical or word usage errors in various board rules.  Specifically, staff noted that in Rule 24.25.503 (1), the board had inadvertently omitted changing a reference from "division" to "board" as it had done elsewhere throughout the board's rules.  Staff also noted that in Rule 24.26.680 (5) service of documents should be made "upon" a party, rather than "to" a party.  Likewise, in NEW RULE II (2), staff suggested that the board agent works "on behalf" of the board, rather than "in behalf" of the board, and that a comma appears to have been omitted in the text of NEW RULE VI (1).  Finally, staff notes that proposed NEW RULE IX, Consent Elections, should include 39-31-209, MCA, as part of the rule's IMP citation.

 

Response 2:  The board agrees and will correct the wording, punctuation, and implementation citations in the rules mentioned as in the comment.

 

            4.  The department has amended ARM 24.16.7506, 24.16.7541, 24.16.7544, and 24.16.7547 as proposed.

 

            5.  The board has amended ARM 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, 24.25.504, 24.25.505, 24.25.601, 24.25.702, 24.25.703, 24.25.704, 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, 24.26.680B, 24.26.681, 24.26.682, 24.26.684, and 24.26.685 as proposed.

 

            6.  The board has amended the following rules as proposed, but with the following changes from the original proposal, stricken matter interlined, new matter underlined:

 

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

            (2) remains as proposed.

 

AUTH:  39-32-103, MCA

IMP:  39-32-113, MCA

 

            24.25.701  COMPLAINT  (1) remains as proposed.

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

            (3) through (5) remain as proposed.

 

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 board, may be filed with the 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 the an authorized representative, and the original and three copies thereof shall be filed with the board.  The petitioner shall serve a copy of the petition simultaneously upon any party in the petition.  The petition shall contain:

            (a) through (2) remain as proposed.

 

AUTH:  39-32-103, MCA

IMP:  2-4-201, MCA

 

            24.26.680  COMPLAINT  (1) through (4) remain as proposed.

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

 

AUTH:  39-31-104, MCA

IMP:  39-31-406, MCA

 

            7.  The board has adopted the following rules as proposed, but with the following changes from the original proposal, stricken matter interlined, new matter underlined:

 

            NEW RULE II [24.26.207] DEFINITIONS  (1) remains as proposed.

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

            (3) through (10) remain as proposed.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, MCA

 

            NEW RULE VI [24.26.222] 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 IX [24.26.617]  CONSENT ELECTIONS  (1) remains as proposed.

 

AUTH:  2-4-201, 39-31-104, MCA

IMP:  2-4-201, 39-31-209, MCA

 

            8.  The board has adopted NEW RULE I [24.26.221], NEW RULE III [24.26.208], NEW RULE IV [24.26.209], NEW RULE V [24.26.211], NEW RULE VII [24.26.224], and NEW RULE VIII [24.26.229] as proposed.

 

            9.  The board has repealed ARM 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, and 24.26.712 as proposed.

 

/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 on November 29, 2010.

 

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