BEFORE THE BOARD OF PERSONNEL APPEALS
DEPARTMENT OF LABOR AND INDUSTRY
STATE OF MONTANA
TO: All Concerned Persons
1. On November 8, 2019, the Board of Personnel Appeals (board) published MAR Notice No. 24-26-351 regarding the public hearing on the proposed amendment of the above-stated rules, at page 1948 of the 2019 Montana Administrative Register, Issue No. 21.
2. On December 3, 2019, a public hearing was held on the proposed amendment of the above-stated rules in Helena. Many comments were received by the December 6, 2019, deadline.
3. The board has thoroughly considered the comments received. A summary of the comments and the board responses are as follows:
COMMENT 1: Several commenters support the proposed amendments stating collective bargaining is an important employee right that has a long history in the state of Montana. The commenters believe unions are a positive part of the workplace, and they have had positive experiences working in unionized workplaces. The commenters believe that Montana workers should be allowed a fast and efficient process to form a collective bargaining unit to enjoy the benefits of union membership.
RESPONSE 1: The board acknowledges the comments.
COMMENT 2: Several commenters support the proposed amendments stating the amendments will allow faster and more-efficient certification of collective bargaining units. Several commenters noted that the current election and certification process for a new collective bargaining unit takes at least 62 days, and the process can often take longer, even without any opposition or filing of an employer's counter petition.
RESPONSE 2: The board acknowledges the comments.
COMMENT 3: One commenter specifically noted that, in the last year, one labor organization's efforts to certify new collective bargaining units before the board has taken 82 days, 71 days, 63 days, and 62 days from the date of the initial petition being filed and the date of certification by the board. The commenter noted that all of these petitions were supported by authorization cards from at least 66% of employees in the proposed unit. The commenter contrasted this with the labor organization's efforts before the National Labor Relations Board (NLRB). This organization's efforts before the NLRB has taken only 40 and 34 days in the last year to petition and certify new collective bargaining units.
RESPONSE 3: The board acknowledges the comments.
COMMENT 4: Several commenters support the proposed amendments stating a faster certification process will benefit both employers and employees by allowing faster negotiations of a contract and quicker resolution of workplace concerns and conflicts. The commenters noted that the current process of election and certification of a new bargaining unit is unnecessarily costly, lengthy, complicated, and cumbersome for all parties involved.
RESPONSE 4: The board acknowledges the comments.
COMMENT 5: Commenters spoke in support of the amendments stating the changes provide a more-efficient process for the board to certify a bargaining unit, and this process will save the board time and resources.
RESPONSE 5: The board acknowledges the comments.
COMMENT 6: Several commenters support the proposed amendments stating the process allows the employees to choose the method of forming a collective bargaining unit: certification without an election by indicating this preference on their authorization cards or a traditional secret-ballot election.
RESPONSE 6: The board acknowledges the comments.
COMMENT 7: Several commenters support the amendments stating they allow employees to form a collective bargaining unit with only submission of an authorization card. The commenters noted that the current election process requires employees to express their support for unionization twice: first through the authorization card and second in the election. The commenters support the amendments because the current election process requires more than other local, state, or federal election processes.
RESPONSE 7: The board acknowledges the comments.
COMMENT 8: Several commenters support the amendments stating it is a fair process for all parties involved, and it maintains the opportunities for any opposing party to object.
RESPONSE 8: The board acknowledges the comments and notes under the amendments, an employer may still file a counter petition, other employees may still file a petition to intervene, and another labor organization may still file a petition to intervene.
COMMENT 9: A commenter supports the proposed amendments and stated that the amendments are statutorily authorized under 39-31-208, MCA, of the Bargaining Act, because if a majority of employees submit authorization cards in support of the collective bargaining unit, then there is no question of representation requiring an election. The commenter specifically noted that both employers and employees will benefit from the amendments because time is critical when addressing issues of salary, benefits, and working conditions.
RESPONSE 9: The board acknowledges the comments.
COMMENT 10: A commenter supports the amendments stating a faster process will benefit employees who may fear retaliation, and a faster process will reduce stress and uncertainty for both employers and employees.
RESPONSE 10: The board acknowledges the comments.
COMMENT 11: Several commenters support the proposed amendments stating a faster process will reduce the risk that employees who support a union will be harassed or treated unfairly during the certification process, noting that employees have the right under the Bargaining Act to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection free from interference, restraint, or coercion." Section 39-31-201, MCA (emphasis added). These commenters emphasized that the proposed amendments will reduce strife and unrest, which is the purpose of the Act. The commenters indicated the long process sometimes results in harassment of employees who support unionization.
RESPONSE 11: The board acknowledges the comments.
COMMENT 12: Commenters support the proposed amendments stating a faster process will lead to less employee turnover. The commenters have witnessed employees leave employment due to a long election and certification process.
RESPONSE 12: The board acknowledges the comments.
COMMENT 13: A commenter supports the proposed amendments stating employees should be able to form a union in a simple and streamlined way. The commenter believes that unions are a benefit to an employer and employees, and unions give workers a positive outlook on their career paths.
RESPONSE 13: The board acknowledges the comments.
COMMENT 14: A commenter supports the proposed amendments stating a faster certification process will reduce the risk of divisiveness and conflict developing among employees and between the employees and the employer.
RESPONSE 14: The board acknowledges the comments.
COMMENT 15: Two commenters support the proposed amendments stating the signing of an authorization card is an important step, and public employees deserve to have their signing of an authorization card be given due weight as an expression of support for a union. The commenters state that collective bargaining allows public employees to join their voices together to carry important messages to their employers, address workplace issues, and move public industries forward. Public employees do important work for Montanans every day, and collective bargaining helps public employees grow so that they better serve the public. The commenters state the current process is also more work for the employer, disrupts employee morale, and creates an "atmosphere of inefficiency" at the job site.
RESPONSE 15: The board acknowledges the comments.
COMMENT 16: Two commenters argued the proposed amendments are beyond the board's statutory authority. The commenters asserted 39-31-207 and 39-31-209, MCA, require the board to conduct a hearing and an election if there is reasonable cause to believe that a question of representation exists, and the proposed amendments do not require that a hearing and election occur in every circumstance. The commenters also argued that determining there is no question of representation should require express legislative authorization. The commenters stated they believe the proposed amendments would likely lead to litigation.
RESPONSE 16: The board believes the commenters' arguments are an incorrect reading of the plain language of the statutes regarding the board's responsibilities. The board concludes that because the statutes only require the board to conduct an election when there is "reasonable cause to believe that a question of representation exists," the board has the authority to adopt rules which clarify when reasonable cause exists. Section 39‑31-401, MCA. The board notes that if an election is mandatory in all instances, the language "reasonable cause to believe that a question exists" has no meaning because the board could not make any determination of reasonable cause. The board believes that when a majority of the authorization cards from the members of a proposed bargaining unit indicate a desire for representation, there is no "reasonable cause to believe that a question of representation exists." Therefore, there is no question about representation that requires an election to be conducted. The board notes that current rules implementing the statute demonstrate the board's authority by setting a minimum percentage of employee authorization cards required to hold an election and that the proposed amendments further implement the board's authority to decide if and how an election should proceed. The board notes that the possibility of litigation is present in most, if not virtually all, disputes that come before the board, and that parties routinely decide the costs and benefits of litigation.
COMMENT 17: Commenters asserted that if there is no election, then the new unit will not be protected by what they describe as an "election bar" under 39-31-210, MCA, that prevents the direction of any election for one year after an election. The commenters suggested that nothing in the rules prevents 30% of the employees in a new unit from filing a petition for decertification immediately after the certification for a new unit without an election, but before a contract has been negotiated. The commenters are concerned that this will create confusion and further unrest between employees and employers.
RESPONSE 17: The proposed amendments will not allow an immediate filing of a petition for decertification as the commenters suggest. The current rules provide a specific window during which a petition for decertification can be filed based on the status of the bargaining unit's current collective bargaining agreement: "the petition [for decertification] must be filed during the 30-day window period which starts on the 90th day and ends on the 60th day prior to the termination date of the collective bargaining agreement, or after the terminal date thereof." ARM 24.26.643 (emphasis added). Therefore, a petition for decertification is not properly filed unless there is a collective bargaining agreement already in place. The commenters' concern for immediate filing of petitions for decertification after a certification without an election, but before negotiation of a contract, is incorrect under the rules.
COMMENT 18: A commenter raised concerns about the risk of fraud and forged signatures on authorization cards. The commenter questioned how the department will verify the authenticity of signatures on authorization cards and commented that there was no transparency or appeals process under ARM 24.26.655 to challenge the authenticity of signatures on authorization cards. The commenter questioned if employers would be able to inspect cards to verify their authenticity.
RESPONSE 18: The board disagrees that a risk of fraud would harm the process. First, if an employer questions the majority support for the union based only on the authorization cards, nothing in the proposed amendments prevents an employer from filing an employer counter petition under ARM 24.26.614. Under the proposed amendments to ARM 24.26.612, if an employer's counter petition is filed, a certification without an election will not occur and the election procedures will proceed under ARM 24.26.620. An employer counter petition effectively requests an election to prove the employee's majority support for a new collective bargaining unit. Furthermore, any labor organization or group of employees that question the majority support for a union based only on authorization cards may file a petition to intervene under ARM 24.26.618, in which case a certification without an election will not occur under the proposed amendments to ARM 24.26.612. Therefore, there is no need to alter the long-standing rules regarding the validation and confidentiality of authorization cards under ARM 24.26.604.
Second, validating authorization cards is currently and shall remain an act of the department that is not subject to review: "[t]he board shall consider the adequacy of the showing of interest and such decision shall not be subject to challenge," ARM 24.26.604(1) (emphasis added). This rule has been in effect since 1974, and this portion is not being changed in the proposed amendments. This rule is based on long‑standing precedent of the National Labor Relations Board (NLRB) and the NLRB's interpretation of the National Labor Relations Act (NLRA), which the board looks to for guidance. State ex rel. Dep't of Highways v. Pub. Emps. Craft Council, 165 Mont. 349, 529 P.2d 785 (1974). Under the NLRB rules, the review of authorization cards for validity and authenticity is a ministerial act that is not subject to review. In Re of O. D. Jennings & Co., 68 N.L.R.B. 516, 518 (1946).
Third, the confidentiality of authorization cards is currently required by and shall remain in the board rules, and authorization cards are not subject to review by the parties: "The proof of interest submitted with any petition shall not be furnished to any of the parties." ARM 24.26.604(1). This rule has also been in effect since 1974, and this portion is not being changed in the proposed amendments. This confidentiality is also based on long‑standing NLRB precedent. O. D. Jennings, 68 N.L.R.B. at 518.
Finally, the NLRB does provide guidance on the use and validation of authorization cards. Certain circumstances and NLRB procedures allow for recognition of a new collective bargaining unit without an election based on authorization cards. For example, the United States Supreme Court case NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and subsequent cases provide extensive guidance on the validity of authorization cards and on recognition of bargaining units without an election when there is evidence of a majority of support shown by authorization cards.
COMMENT 19: Commenters asserted that the amendments do not meet the stated purpose of saving time and resources because the amendments allow for a petition to intervene to be filed even if a majority of employees have already indicated support for one specific bargaining unit. They also stated that the proposed rule amendments appear to suggest that intervention petitions should also be eliminated, because if the authorization cards submitted by the majority are determinative of the question of representation, then no intervention petition would be successful.
RESPONSE 19: Under the current board rules, a petition to intervene may be filed by "any labor organization or group of employees," ARM 24.26.618(1), and it requires valid authorization cards from only ten percent of the employees in the proposed unit under ARM 24.26.618(3). As described in Response 3, under the proposed amendments, a valid petition to intervene from a minority of employees effectively requests an election to prove majority support for a new collective bargaining unit and/or for representation by a specific labor organization. The board believes it is important to maintain the intervention procedure as a means of maintaining public employees' "right of self‑organization, to form, join, or assist any labor organization," or to not form, join, or assist any labor organization under the Bargaining Act, 39-31-201, MCA. The commenter also appears to misunderstand the application of the proposed amendments. Authorization cards from a majority of the members of the proposed unit will be recognized only if an employer counter petition or another labor organization's petition for intervention is not filed. If either of those conditions is present, a secret-ballot election will be conducted.
COMMENT 20: Commenters asserted that the amendments do not meet the stated purpose of saving time and resources because the amendments are limited to petitions for new unit determinations only. The commenters suggested that the board should allow petitions for decertification to also be granted when there is a greater than 50% proof of interest, and that petitions to intervene should not be allowed in a petition for decertification without an election.
RESPONSE 20: The board acknowledges the comments. This suggestion for further amendment to the rules regarding decertification petitions is outside the scope of the current proposed amendments, but the board will consider this comment in future rules proposals. Please see Response 4 for discussion of petitions to intervene.
COMMENT 21: A commenter stated that because the rules allow the employer to file a counter petition, an employer could unilaterally delay the certification process with such a filing, and therefore the proposed amendments do not satisfy the stated reason for the amendments, to save time and resources.
RESPONSE 21: The board agrees that an employer could file a counter petition and thus unilaterally force an election under the proposed rule changes, and in that instance, time and resources would not be saved. However, the board is not convinced that every employer will inevitably file a counter petition, and believes that by adopting the proposed amendments the potential for saving time and resources exists. The board concludes that there is little down-side risk to allowing certification without a formal election, when the employer does not wish to force an election, given that the present rules require an election, whether one is requested or not.
COMMENT 22: A commenter opposed the amendments and argues that employees may be pressured into signing union authorization cards by other employees or union representatives.
RESPONSE 22: The board first notes that an employer who questions whether the majority of employees actually support the new collective bargaining unit may file an employer counter petition, which effectively requests a secret-ballot election to prove the employee's support for a new collective bargaining unit.
Furthermore, employees may choose not to exercise the rights guaranteed under the Bargaining Act, 39-31-201, MCA, and an employee who believes they have been restrained or coerced into supporting a labor organization may file an unfair labor practice with the board under 39-31-402, MCA. Finally, an employee may choose to sign an authorization card that does not contain an authorization to allow certification without an election.
COMMENT 23: A commenter opposed the amendments and argues that the amendments effectively create an "open ballot process," and this process will subject employees to harassment and intimidation by the employer or other employees.
RESPONSE 23: The board acknowledges the comments. The board believes that this process contains no greater risk of harassment and intimidation than the current process that requires the signing of authorization cards in support of a petition for an election.
The board again notes that employees maintain the right not to exercise the rights guaranteed under the collective Bargaining Act, 39-31-201, MCA, and an employee who believes they have been restrained or coerced into supporting a labor organization may file an unfair labor practice with the board under 39-31-401, MCA, et seq.
COMMENT 24: Commenters opposed the amendments and argue that there is room for error in the proposed amendments stating authorization cards can be signed over a six-month period. The commenters questioned if the cards can be withdrawn or changed by the employee.
RESPONSE 24: Following the guidance of the NLRB, an authorization card can be revoked by an employee; however, the revocation may not be valid if there is an allegation that the card was revoked as a result of an unfair labor practice by the employer (e.g., coercion, threats, or intimidation). Quality Markets, Inc., 160 NLRB 44, 44-46 (1966) enf'd 387 F.2d 20 (3d Cir. 1967); Warehouse Groceries Management, Inc., 254 NLRB 252, 254 (1981).
Under these amendments, if the revocation of cards by employees prior to certification without an election occurs, and the petition is then supported by less than 50% of the proposed bargaining unit but more than 30% of the proposed unit, then an election will proceed under the traditional board process.
COMMENT 25: Commenters opposed the amendments and argue that this process denies individuals the opportunity to share opinions with each other.
RESPONSE 25: The board believes that the process under the proposed amendments allows the opportunity for individuals to express opinions because the time for an intervention petition to be filed – ten days from the date of notice of union determination proceedings under ARM 24.26.618 – must pass before a new unit can be certified without an election. Furthermore, the amendments do not limit the ability of an employer to file an employer counter petition, and/or a minority group of employees or competing labor organization may file a petition to intervene. In addition, the signatures may be gathered over a six-month period, which is a significant amount of time for an employee to consider their decision.
COMMENT 26: A commenter opposed the amendments and argues that a secret-ballot election is more transparent and fair than the proposed amendments allowing the submission of authorization cards for certification without an election. The commenter expressed concern that these proposed amendments place too much authority in the hands of the board to authenticate and verify employees' support for a new collective bargaining unit. The commenter asserts that the election process upholds the integrity of collective bargaining by providing a structure that critics of collective bargaining cannot dispute.
RESPONSE 26: The board concludes that the proposed amendments are designed to make the election process more efficient in cases where there is already a clear majority of employees who support the proposed unit. Further, the board concludes the proposed amendments preserve the integrity of the collective bargaining process. The proposed amendments do not place more authority in the hands of the board or department than is placed on them under the current rules. As described in Responses 3, 6, and 9, the proposed amendments do not change an employer's ability to file a counter petition or a minority of employees' ability to file a petition to intervene, both of which will result in a secret-ballot election to prove majority support for a collective bargaining unit. The employer counter petition and petition to intervene serve to ensure the due process rights of all parties to collective bargaining. If neither an employer counter petition nor a petition to intervene is filed within the stated deadlines under the rules and the other requirements under the proposed amendments to ARM 24.26.612, only then does a bargaining unit get certified without an election. Finally, the board disagrees that the proposed changes undermine collective bargaining by allowing certification of a unit without an election. For example, in NLRB case law, a unit can be formed without an election when a majority of employees in the proposed unit have submitted authorization cards, but the actions of the employer have undermined the collective bargaining process through unfair labor practices making a fair election an impossibility. This process, and the proposed amendments here, seek to allow employee choice in representation in a fair and efficient way to further the purpose of the Bargaining Act. The board concludes the certification process provided for in the proposed amendments maintains employee choice and is an appropriate way for an employee to express their support for forming a new unit.
COMMENT 27: A commenter questions an employee's ability to understand that their authorization card can be used to certify a collective bargaining unit without an election under the proposed amendments to ARM 24.26.604.
RESPONSE 27: The 9th Circuit Court has held that if the language on an authorization card signed in support of an NLRB election is unambiguous, then there is a presumption that the signing employee understood the card. NLRB v. Bakers of Paris, Inc., 929 F.2d 1427, 1442 (9th Cir. 1991) ("[t]he general rule is that if an authorization card is unambiguous, the employee is presumed to have understood it.") The board concludes that the proposed amendments to ARM 24.26.604(1)(e) require specific and clear language to avoid the ambiguity described by the 9th Circuit. The proposed amendments to ARM 24.26.604(1)(e) state that authorization cards used to gain certification without an election must contain language that "the employee understands that the employee's signature may be used to obtain certification in the named labor organization as the exclusive bargaining representative without an election."
Furthermore, the board notes that employees who do not understand the written language on an authorization card may be given a verbal explanation, or other appropriate accommodation, to ensure understanding of the language on an authorization card. See Bakers of Paris, Inc., 929 F.2d at 1442-44.
COMMENT 28: A commenter supports certification without an election, but opposes the amendments and suggests that in order to certify a bargaining unit without an election, a supermajority of authorization cards should be required. The commenter asserts that this will ensure that there is no question of representation.
RESPONSE 28: The board disagrees that a supermajority should be required and notes that no other state using this procedure requires a supermajority. Neither the commenter nor the board has identified any reference to a "supermajority" required to certify a collective bargaining unit in the Bargaining Act, the NLRB, or any other state that contains a similar rule for certification of a collective bargaining unit without an election, including New York, Oregon, or Illinois. The commenter does not otherwise define "supermajority." By contrast, "majority" is defined in the MCA as "the next whole number greater than half" in the statute defining quasi-judicial boards, 2-15-124, MCA, which includes this board, 2‑15‑1705, MCA. See also 1-2-107, MCA. ("Whenever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears.")
Furthermore, the NLRB has long held that a bargaining unit is certified based on a majority of the votes cast in the election; certification does not require a number of votes that represent a majority of the workers in the bargaining unit. NLRB v. Standard Lime & Stone Co., 149 F.2d 435, 436 (4th Cir. 1945). ("[T]hose not participating in the election must be presumed to assent to the expressed will of the majority of those voting, so that such majority determines a choice.") In fact, the National Mediation Board, charged with implementing the federal Railway Labor Act, amended their election rules in 2010 to reflect the same election majority for certification required by the NLRB.
COMMENT 29: A commenter who generally opposes the amendments expressed concern that the proposed amendments will create more issues and conflicts than the amendments will solve. The commenter expressed doubt and concern that the NLRB will provide sufficient guidance on the issues that will be created under the proposed amendments.
RESPONSE 29: The board acknowledges the comments. The board notes that many resources are available for guidance in this area of law from the NLRB and other states that have adopted similar procedures to certify a collective bargaining unit without an election.
COMMENT 30: One commenter argued employees who sign authorization cards that allow certification without an election will not know if a petition to intervene is filed.
RESPONSE 30: The board notes this is incorrect, because the employee will be contacted for the election if a petition to intervene is filed.
COMMENT 31: A commenter who generally opposes the amendments stated the commenter appreciates that these amendments do not reference employer recognition, unlike a previous proposal of amendments to these rules.
RESPONSE 31: The board acknowledges the comments.
COMMENT 32: A commenter who generally opposes the amendments nonetheless appreciates and acknowledges that the current proposed amendments to the authorization cards require the card to contain an express statement that the card can be used to form a collective bargaining unit without an election. The commenter noted that a previous proposal did not contain this requirement for authorization cards, and the current proposal is an improvement.
RESPONSE 32: The board acknowledges the comments.
4. The board has amended the above-stated rules as proposed.
BOARD OF PERSONNEL APPEALS
ANNE L. MACINTYRE
/s/ MARK CADWALLADER
Alternate Rule Reviewer
/s/ GALEN HOLLENBAUGH
Galen Hollenbaugh, Commissioner
DEPARTMENT OF LABOR AND INDUSTRY
Certified to the Secretary of State December 17, 2019.