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| Montana Administrative Register Notice 24-26-353 | No. 24 12/24/2020 | |
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BEFORE THE BOARD OF PERSONNEL APPEALS DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On November 6, 2020, the Board of Personnel Appeals (board) published MAR Notice No. 24-26-353 pertaining to the public hearing on the proposed amendment, adoption, repeal, and transfer of the above-stated rules at page 1977 of the 2020 Montana Administrative Register, Issue Number 21.
2. On November 30, 2020, a public hearing was held over the Zoom videoconference and telephonic platform. Many comments were received by the December 7, 2020, public comment deadline.
3. The board has thoroughly considered the comments made. A summary of the comments and the board's responses are as follows:
COMMENT 1: A commenter expressed support of the proposed changes to the rules.
RESPONSE 1: The board acknowledges the comment.
COMMENT 2: A commenter expressed support for combining the rules found in ARM Title 24, ch. 25, regarding Collective Bargaining for Nurses with ARM Title 24, ch. 26, general rules for the Board of Personnel Appeals. The commenter believes that combining the rules will bring consistency and uniformity.
RESPONSE 2: The board acknowledges the comment.
COMMENT 3: A commenter stated support for the changes to the rules regarding Petitions for Elections.
RESPONSE 3: The board acknowledges the comment.
COMMENT 4: A commenter asked the reasons for new rules being proposed at this time in addition to the board's Statements of Reasonable Necessity found in MAR Notice No. 24-26-353.
RESPONSE 4: The board's reasons for adopting new rules are addressed in the board's statements of reasonable necessity in MAR Notice No. 24-26-353, published November 6, 2020.
COMMENT 5: A commenter suggested that the amendments to ARM 24.26.102(6) do not specify that the board is acting in its appellate level. The commenter suggested that parties will engage in ex parte communications by asking individual board members for extensions and procedural question on matters before the board.
RESPONSE 5: The commenter is correct that if a party directly requests a procedural order from an individual board member, when the matter has been set for a hearing before a hearing officer or the board, then the request is a prohibited ex parte communication under ARM 24.26.229. The board has included instructions for properly filing a request for extension of time under NEW RULE III (24.26.246) FILINGS WITH THE BOARD.
COMMENT 6: A commenter expressed concern that the definition of an excelsior list under ARM 24.26.207(12) includes a telephone number for employees. The commenter asserts that this will cause controversy and telephone numbers should be removed from the definition of excelsior list.
RESPONSE 6: The board asserts that phone numbers for employees on an excelsior list are necessary for speed and efficiency of communication. For example, a board agent may use phone numbers to verify authorization cards pursuant to ARM 24.26.604 (24.26.1002) REQUIREMENTS FOR PROOF OF INTEREST AUTHORIZATION DOCUMENTS – CONFIDENTIALITY filed in support of a unit determination petition, a petition to intervene, or a decertification petition.
COMMENT 7: A commenter expressed concern over NEW RULE XII (24.26.1005) APPROPRIATE UNIT because the new rule combines two prior rules that are being repealed, 24.26.610 COMPOSITION OF UNIT and 24.26.611 APPROPRIATE UNIT. The commenter believes that combining the two rules will cause confusion.
RESPONSE 7: The board has divided NEW RULE XII into two rules, as outlined above, to avoid confusion.
COMMENT 8: A commenter would like the deadline for filing objections to the hearing officer's decision with the board reduced from 20 days to 10 or fewer days under NEW RULE XVII (24.26.1016) EMPLOYER COUNTER PETITION, subsection (4)(a). The commenter asserts that the deadline to file objections with the board should be the same amount of time as the deadline to file an Employer Counter Petition. The commenter argues that the employees do not have the protections of a CBA at this point of the proceedings, and the employees should not have to wait additional time for formation of a bargaining unit.
RESPONSE 8: The board acknowledges the importance of efficient formation of unit determination matters. As outlined above, the board has amended the 20-day deadline to 10 days.
COMMENT 9: A commenter suggested that the board include a definition for consent elections to avoid confusion between consent elections, voluntarily recognition, and other board procedures.
RESPONSE 9: The requirements for a consent election are found in NEW RULE XXXIV (24.26.1072) CONSENT ELECTION.
COMMENT 10: Commenters expressed concern that the amendments to ARM 24.26.229 EX PARTE COMMUNICATIONS would prevent mediators, election judges, and other board agents from completing their work. The commenters specifically referenced concern over the ability of parties to engage in "side bar" discussions with a mediator or discussions with an investigator.
RESPONSE 10: "At any time that petitions, complaints, exceptions, election challenges, or other contested case matters have been set for hearing before the hearing officer or the board, ex parte communications are prohibited." ARM 24.26.229(1). A communication with a board agent, including a mediator, election judge, or investigator, is not considered an ex parte communication unless "the matter has been referred for a hearing before a hearing officer or the board." ARM 24.26.207(11). A specific matter that is subject to mediation, election, or investigation by a board agent cannot be simultaneously set for hearing before a hearing officer or the board. Therefore, the definition of ex parte communications does not prohibit board agents such as mediators, election judges, or investigators from completing their work and communicating with the parties to a specific matter.
COMMENT 11: Commenters expressed concern that the amendments to ARM 24.26.209 LAY REPRESENTATION BEFORE THE BOARD OR BOARD AGENT will require parties to be represented by an attorney before the board, rather than a lay representative.
RESPONSE 11: The amendments to ARM 24.26.209 preserve the rights of parties before the board or before a board agent to be represented by a lay representative. The amendment to the rule changes the phrase that a lay representative "may be permitted to appear," to "may appear" – in effect, the amendment removes any requirement for a lay representative to seek special permission to appear before the board or a board agent.
COMMENT 12: A commenter expressed concern with the amendments to ARM 24.26.695 (24.26.1401) INTEREST MEDIATION that remove the designation that mediation will be completed by a "board agent" because the commenter believes that the parties will have to wait for the entire board to pick a mediator rather than a single board agent.
RESPONSE 12: The board agrees with the commenter that the rule is unclear as written. As outlined above, the board is further amending the rule to align with current board practice. ARM 24.26.695(3) (24.26.1401(4)) now states that "department staff shall designate a qualified labor mediator" as outlined above. The act of assigning a labor mediator to a dispute is not a matter that is referred for consideration by the entire board; it is a procedural matter that is currently and will continue to be completed by department staff.
COMMENT 13: Commenters expressed concern with the amendments to ARM 24.26.695 (24.26.1401) INTEREST MEDIATION because it removes mediation by "an agent of the board." Commenters expressed concern that the amendments will allow the board to appoint unqualified people for mediation, the board will contract with outside parties or groups to perform mediation, and parties will be charged for mediation. Commenters stated that department mediators are available and have good relationships with employers and unions.
RESPONSE 13: The amendments to the rule now state that "[u]pon petition for interest mediation, department staff shall designate a qualified
COMMENT 14: Commenters expressed concern with the amendments to ARM 24.26.695 (24.26.1401) INTEREST MEDIATION because the amendments will prevent the parties from engaging in mediation before a current contract expires because the rule applies to a "new or expired CBA."
RESPONSE 14: The term "new" CBA includes both a CBA that is being negotiated for a new collective bargaining unit and a CBA that is being negotiated to replace an existing CBA. Nothing in the amendments prevents the parties from requesting mediation before a current CBA expires.
COMMENT 15: Commenters expressed concern with the amendments to ARM 24.26.695 (24.26.1401) INTEREST MEDIATION because of the removal of references to the Federal Mediation and Conciliation Service (FMCS). Commenters note that FMCS is a federal service that is not statutorily mandated to carry out Montana's Collective Bargaining Act for Public Employees, Title 39, ch. 31, MCA. The commenters ask that the rule be restored to the prior language to ensure that FMCS will inform the board if parties subject to Montana's Bargaining Act are requesting mediation from FMCS. The commenters assert that FMCS has similar agreements with other states that have public employees' collective bargaining laws.
RESPONSE 15: The board acknowledges the comment. As outlined above, the board has restored the language regarding FMCS to (4) of ARM 24.26.695 (24.26.1401) INTEREST MEDIATION.
COMMENT 16: Commenters expressed concern that the amendments to ARM 24.26.695 (24.26.1401) INTEREST MEDIATION do not protect the confidentiality of the mediation process. The commenters believe the board should retain the right to control the release of information related to mediation. The commenters noted that confidentiality is essential to an effective mediation process. The commenters expressed concern that the amendments will require mediators to retain records of mediations and mediators will be forced to testify in future legal proceedings about matters discussed at mediation.
RESPONSE 16: The board acknowledges the comments. As outlined above, the board has removed the acknowledgment of the possibility of disclosure of information discussed in the mediation process upon written consent of all parties.
COMMENT 17: A commenter expressed concern for the amendments to ARM 24.26.695 (24.26.1401) INTEREST MEDIATION because the amendments change the board's procedure for closing mediation meetings to the public.
RESPONSE 17: The prior language of the rule, ARM 24.26.695(6), stated that meetings between the parties and the mediator "shall be private and nonpublic, except if otherwise mutually agreed upon by the parties." The amended language now states that "[u]nless otherwise required by the constitution, mediations pursuant to this rule shall be held in private unless both parties agree in writing to waive private meetings." ARM 24.26.695(7). The amendment maintains that mediations are presumed to be private; however, the amendment acknowledges that certain meetings may be required to be open to the public under Montana's Open Meeting Laws, Title 2, ch. 3, pt. 2, MCA, and ultimately Montana's Constitution, including under the Right of Participation, and the Right to Know, Mont. Const. Art. II, §§ 8 and 9. The amendments allow for a case-by-case analysis of the privacy rights at issue in any given meeting.
COMMENT 18: A commenter expressed concern for the amendments to ARM 24.26.697 (24.26.1404) FACT FINDER because the rule does not specifically address the procedure for the invoicing of factfinding services.
RESPONSE 18: Invoicing and payment of fees for factfinding services is a business practice that need not to be specifically addressed by rule. Board agents and department staff may include instructions for paying fees for factfinding on the department's web site or in a relevant communication to the parties. Furthermore, the statute regarding factfinding, 39-31-309(5), MCA, specifies that the costs must be borne equally by the parties, or if factfinding is requested by the board then costs are borne equally by the parties and the board. As outlined above, the board is amending the rule further to clarify the rules and remove duplication with the statute.
COMMENT 19: A commenter expressed concern for the amendments to ARM 24.26.698A (24.26.1408) PANEL OF ARBITRATORS AND FACT FINDERS because the rule no longer requires a specific format for resumes submitted by arbitrators. The commenter also expressed concern with changes to the process for removing arbiters.
RESPONSE 19: The amendments simplify the process for accepting applications from potential arbitrators and for maintaining the current list of arbitrators and factfinders. The board sees no advantage of requiring a specific format for resumes from potential arbiters.
COMMENT 20: A commenter stated that the board should consider a "card check" process for decertification petitions that was previously adopted by the board for unit determination petitions. The commenter asks the board to consider comments previously made to the board regarding the "card check" process.
RESPONSE 20: The comment is outside the scope of the current proposed changes to the rules in MAR Notice No. 24-26-353. The board may consider such an amendment at another time.
COMMENT 21: A commenter noted that the following rules need to be transferred and amended, rather than only amended, for the proper organization of the rules: ARM 24.26.204 INTERVENTION; ARM 24.26.518 FAILURE OF DEPARTMENT HEAD, DESIGNEE, OR STATE HUMAN RESOURCES DIVISION TO ACT WITHIN PRESCRIBED TIME LIMIT; ARM 24.26.523 FILING OF A NEW PETITION FOR HEARING AFTER FINAL ORDER ISSUED; and ARM 24.26.530 FREEDOM FROM INTERFERENCE, RESTRAINT, COERCION, OR RETALIATION.
RESPONSE 21: The board agrees that the above-listed rules should be both amended and transferred to ensure clear and proper organization of the rules.
4. The board has amended the following rules as proposed: ARM 24.26.102, 24.26.207, 24.26.209, and 24.26.229.
5. The board has amended the following rules as proposed but transfers them in response to a comment: ARM 24.26.204 (24.26.240), 24.26.518 (24.26.552), 24.26.523 (24.26.554), and 24.26.530 (24.26.556).
6. The board has amended and transferred the following rules as proposed: ARM 24.26.603 (24.26.1001), 24.26.604 (24.26.1002), 24.26.651 (24.26.1052), 24.26.665 (24.26.1088), 24.26.667 (24.26.1092), 24.26.695A (24.26.1402), 24.26.698 (24.26.1406), and 24.26.698A (24.26.1408).
7. The board has adopted the following rules as proposed: New Rule I (24.26.242), II (24.26.244), III (24.26.246), IV (24.26.248), V (24.26.250), VI (24.26.254), VII (24.26.540), VIII (24.26.542), IX (24.26.544), X (24.26.546), XI (24.26.548), XIII (24.26.1006), XIV (24.26.1008), XV (24.26.1012), XVI (24.26.1014), XVIII (24.26.1018), XIX (24.26.1020), XX (24.26.1022), XXI (24.26.1024), XXII (24.26.1028), XXIII (24.26.1030), XXIV (24.26.1032), XXV (24.26.1034), XXVI (24.26.1036), XXVII (24.26.1038), XXVIII (24.26.1042), XXIX (24.26.1044), XXX (24.26.1046), XXXI (24.26.1048), XXXII (24.26.1050), XXXIII (24.26.1070), XXXIV (24.26.1072), XXXV (24.26.1074), XXXVI (24.26.1076), XXXVII (24.26.1078), XXXVIII (24.26.1080), XXXIX (24.26.1082), XL (24.26.1084), XLI (24.26.1086), XLII (24.26.1090), XLIII (24.26.1201), XLIV (24.26.1202), XLV (24.26.1204), XLVI (24.26.1206), and XLVII (24.26.1208).
8. The board has repealed the following rules as proposed: 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, 24.25.301, 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, 24.26.101, 24.26.202, 24.26.203, 24.26.205, 24.26.206, 24.26.208, 24.26.210, 24.26.211, 24.26.212, 24.26.215, 24.26.219, 24.26.221, 24.26.222, 24.26.224, 24.26.230, 24.26.501, 24.26.502, 24.26.503, 24.26.508, 24.26.601, 24.26.602, 24.26.610, 24.26.611, 24.26.612, 24.26.614, 24.26.616, 24.26.617, 24.26.618, 24.26.620, 24.26.622, 24.26.630, 24.26.643, 24.26.644, 24.26.645, 24.26.646, 24.26.647, 24.26.648, 24.26.649, 24.26.650, 24.26.655, 24.26.656, 24.26.657, 24.26.658, 24.26.659, 24.26.660, 24.26.661, 24.26.662, 24.26.663, 24.26.664, 24.26.666, 24.26.680, 24.26.680A, 24.26.680B, 24.26.681, 24.26.682, 24.26.683, 24.26.684, and 24.26.685.
9. The board has transferred the following rule as proposed: ARM 24.25.206 (24.26.1210).
10. The board has amended and transferred ARM 24.26.695 (24.26.1401) and 24.26.697 (24.26.1404) as proposed, but with the following changes, stricken matter interlined, new matter underlined:
24.26.695 (24.26.1401) INTEREST MEDIATION (1) through (3) remain as proposed. (4) Upon petition for interest mediation, (5) All communications, oral or written, from the parties to the mediator and any information and evidence presented to the mediator during the proceeding are confidential. Such matters shall not be disclosed to a non-party to the mediation (6) The mediator shall not testify or produce any confidential records or evidence with regard to any mediation to a non-party without written consent of all parties or in any proceeding before any court, board, investigatory body, arbitrator, or fact finder (7) remains as proposed.
24.26.697 (24.26.1404) FACT FINDER (1) through (6) remain as proposed. (7) When a party petitions the board to initiate factfinding, (9) remains as proposed but is renumbered (8).
11. The board has adopted New Rules XII (24.26.1005) and XVII (24.26.1016) as proposed, but with the following changes, stricken matter interlined, new matter underlined:
NEW RULE XII (24.26.1005) APPROPRIATE UNIT (2) remains as proposed but is renumbered (1). (a) through (c) remain as proposed.
NEW RULE XVII (24.26.1016) EMPLOYER COUNTER PETITION (1) through (4) remain as proposed. (a) If a party disputes the recommended order of the hearing officer, the party may file exceptions pursuant to [NEW RULE VI (24.26.254) (BOARD REVIEW OF HEARING OFFICER'S RECOMMENDED ORDER)] within (b) through (5) remain as proposed.
12. The board has adopted New Rule XLVIII (24.26.1004) in response to a comment.
NEW RULE XLVIII (24.26.1004) COMPOSITION OF UNIT (1) The board may consider a bargaining unit that consists of all the employees in any department, division, bureau, section, or combination thereof.
AUTH: 39-31-104, 39-32-103, MCA IMP: 39-31-202, 39-32-102, 39-32-106, 39-32-113, MCA
Certified to the Secretary of State December 15, 2020. | ||||||||||||||||||
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