Montana Administrative Register Notice 24-26-338 No. 15   08/10/2018    
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In the matter of the amendment of ARM 24.26.614, 24.26.620, 24.26.655, and 24.26.667, and the adoption of NEW RULE I, related to collective bargaining for public sector employees








            TO: All Concerned Persons


            1. On August 31, 2018, at 1:30 p.m., the Department of Labor and Industry and the Board of Personnel Appeals will hold a public hearing in conference rooms A and B of the Beck Building, 1805 Prospect Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules.


            2. The Department of Labor and Industry will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Labor and Industry no later than 5:00 p.m. on August 24, 2018, to advise us of the nature of the accommodation that you need. Please contact Patty Flynn-Anderson, Department of Labor and Industry, P.O. Box 201503, Helena, Montana, 59620-1503; telephone (406) 444-0032; fax (406) 444-4140; TDD (406) 444-5549; or e-mail pflynn-anderson@mt.gov.


            3.  General statement of reasonable necessity for amendments:  There is reasonable necessity to amend the rules outlined herein to eliminate mandatory election proceedings in all instances.  In the interests of efficiency for workers, employers, and the board, the board seeks to require representation elections only when there is a question of representation, as required by statute.  However, as currently stated, the rules require elections in all instances.  The board determines that, when a majority of unit employees sign authorization cards, there is no question of representation.  Rather than scheduling an election, the exclusive representative should then be recognized.  These proposed amendments continue to permit disputes regarding the proper members of a unit as well as the filing of intervention petitions.  In instances where these procedures create a question of representation, an election may be scheduled and held.


            4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


            24.26.614 EMPLOYER COUNTER PETITION (1) through (5) remain the same.

            (6) If an employer fails to file a timely counter petition, the board or its agent shall direct an election, when required pursuant to ARM 24.26.655, after the time for intervention has past passed, provided the board or its agent have determined the unit as described by the petitioner petition is appropriate under 39-31-202, MCA.

            (7) remains the same.


            AUTH: 39-31-104, MCA

            IMP:    39-31-207, MCA



            (3) After a hearing, the board 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 board shall schedule the election, when required pursuant to ARM 24.26.655, 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


            24.26.655 WHEN 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's agent.  Determinations made by the board's agent are subject to review by the Board of Personnel Appeals at the board’s discretion.  An election shall be conducted under the direction and supervision of the board's agent when:

            (a) a petition for an election has been filed with authorization cards of fewer than a majority of employees in the proposed unit;

            (b) after a determination by the Office of Administrative Hearings, including any appeals therefrom, fewer than a majority of employees in the unit have signed authorization cards; or

            (c) a petition to intervene pursuant to ARM 24.26.646 has been filed.

            (2) An election is deemed unnecessary and the board determines there to be no question of representation when a majority of the proposed unit sign authorization cards requesting representation by a designated representative and:

            (a) no counter petition is filed;

            (b) the time to file a petition to intervene has passed and no such petition has been filed; or

            (c) after determination by the Office of Administrative Hearings, including any appeals therefrom, a majority of the employees in the determined unit have signed authorization cards.


            AUTH: 39-31-104, MCA

            IMP:    39-31-208, MCA


            24.26.667 CERTIFICATION  (1)  If no objections are filed within the time set forth above, or if the challenged ballots are insufficient in number to affect the result of the election, or if an election is deemed unnecessary pursuant to ARM 24.26.655, the board shall forthwith issue to the parties a certification of representative, where appropriate.

            (2) remains the same.


            AUTH: 39-31-104, MCA

            IMP:    39-31-208, MCA


            5. The board proposes to adopt a new rule as follows:


            NEW RULE  I STANDARD OF REVIEW BY THE BOARD ON A NOTICE OF INTENT TO DISMISS COMPLAINT (1) The board reviews a notice of intent to dismiss a complaint of an unfair labor practice, issued pursuant to 39-31-405, MCA, to determine whether, in the sound discretion of the board, the board's agent erroneously concluded that the complaint is without reasonable merit.

            (2) In exercising its discretion, the board shall consider whether the investigator appropriately reviewed the evidence presented or that was otherwise reasonably available to the investigator, regarding the allegations of an unfair labor practice made in the complaint. The board may also consider other factors that go to question of reasonable merit, including the arguments of the parties.


            AUTH:   39-31-104, MCA

            IMP:       39-31-405, MCA


Reasonable necessity: There is reasonable necessity to adopt NEW RULE I in order to clearly establish the standard of review the board applies when reviewing an objection to a notice of intent to dismiss. The board has recently heard oral arguments in cases objecting to a notice of intent to dismiss, and notes that a standard of review has not formally been established by statute or by the board. The investigation is conducted as a somewhat informal procedure, without the right of the parties to conduct discovery or cross-examine witnesses. The board believes that if a majority of the board determines there is "probable merit" in a complaint, the matter should be set for a hearing on the merits of the dispute. An alternative standard of review, "an abuse of discretion by the investigator" has been considered and is rejected by the board as being too restrictive and deferential to the investigator's analysis. The board believes that in order to implement the protections against unfair labor practices, the board should have the ability to reasonably exercise its authority to decide whether or not a complaint's allegations have probable merit.


            6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to:  Amber Carpenter, Department of Labor and Industry, P.O. Box 201503, Helena, Montana, 59620-1503; telephone (406) 444-1376; fax (406) 444-7071; or e-mail acarpenter@mt.gov, and must be received no later than 5:00 p.m., September 7, 2018.


            7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in Paragraph 2 above or may be made by completing a request form at any rules hearing held by the department.


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


            9. With regard to the requirements of 2-4-111, MCA, the department and board have determined that the amendment and adoption of the above-referenced rules will not significantly and directly impact small businesses.


            10. The Office of Administrative Hearings, Department of Labor and Industry, has been designated to preside over and conduct this hearing.





/s/ Mark Cadwallader

Mark Cadwallader

Rule Reviewer

/s/ Galen Hollenbaugh

Galen Hollenbaugh


Department of Labor and Industry




/s/ Anne L. MacIntyre

Anne L. MacIntyre


Board of Personnel Appeals


            Certified to the Secretary of State July 31, 2018.


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