STATE OF MONTANA
BEFORE THE BOARD OF PERSONNEL APPEALS

IN THE MATTER OF AFFILIATION PETITION NO. 2-2002:

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I.          INTRODUCTION

            This matter arose when the Petitioners sought to affiliate the Boulder Teachers Association (comprised of certified personnel) and the Boulder Association of Classified Personnel, into one entity, the Boulder Education Association/MEA-MFT.  On October 28, 2002, Hearing Officer Bernadine Warren ruled that the Board of Personnel Appeals had no authority to "recognize the affiliation petition of two or more bargaining units."  October 28, 2002 Recommended Order, page 5. 

            The Petitioner appealed the hearing officer's determination.  On January 24, 2003, the Board remanded this matter to the Hearings Bureau.  The Board directed  the hearing officer to determine whether the Petitioners properly filed a petition to amend certification.  The Board emphasized that, in making this determination, the hearing officer should "specifically address all of the factors set forth within Rule 24.26.650 ARM."  Order of Remand, page 1. 

            The remanded case was assigned to Hearing Officer Gregory L. Hanchett.  The parties agreed that the hearing officer could review the transcript of the original hearing in this matter held in July 2002.  In addition, the parties presented additional sworn testimony of Jane Fields and Andy Sever at a further hearing held on May 5, 2003.  After briefing, the parties submitted the matter to the hearing officer for determination.  Having considered the testimony of the July 2002 hearing, the testimony of the witnesses at the May 5, 2003 hearing, the briefs of the parties, the Board's remand order, and the applicable law, the hearing officer issues the following Findings of Fact, Conclusions of Law, and Recommended Order.  

II.         ISSUE ON REMAND

            Whether the requisites for affiliation, namely, due process and continuity of representation, are present in this case.

III.        FINDINGS OF FACT

            1.         School Districts 1 and 7 are comprised of the Boulder Elementary School District (District 7) and the Jefferson County High School (District 1).  Each district has a separate school board.

            2.         Employees of each district are currently represented by one of two local unions.  The Boulder Teacher's Association (BTA) is the certified exclusive representative of the teachers employed by the districts.  The Boulder Association of Classified Employees (BACE) is the certified exclusive representative of the classified employees employed by the districts.

            3.         The certified and classified units each has a contract with each of the two districts.  Both the present and past practice of the employees has been to have one negotiation team negotiate on behalf of the certified and classified personnel with each of the districts.  The negotiation team has been comprised of both certified and classified personnel.

            4.         While BTA and BACE are both affiliated with the statewide union, MEA/MFT, each has been autonomous in bargaining its specific contract with each  district.

            5.         There are 28 certified employees in the two districts and approximately 20 classified employees in the two districts.  Of the 20 classified personnel, only 12 are union members.

            6.         Both BTA and BACE have worked together in the past to help each of the entities in its respective negotiating with the districts.  Among other things, certified personnel have been part of the negotiating team in negotiating the collective bargaining agreement of the classified personnel.  Because of its small number of union members, BACE was at a disadvantage during negotiations with the two districts. 

            7.         Because BTA and BACE had worked together for so long, BTA proposed that BTA and BACE affiliate and become one union, Boulder Education Association MEA/MFT.  The members believed that an affiliation of the two would improve the bargaining power of BACE and would also benefit the members of BTA.

            8.         To initiate the process, both BTA and BACE held meetings with their respective members to discuss the affiliation and to specifically apprize the members of the advantages and disadvantages of affiliating.  The members were encouraged to ask questions about the proposed affiliation.

            9.         Subsequent to the meetings, BTA and BACE entities held secret ballot voting on the issue of whether to affiliate.  All teaching and classified personnel, even those that did not belong to the union, were permitted to cast votes in their respective entities.  A majority in each local voted to affiliate.  

            10.       After the vote, the two entities notified the BOPA of their desire to affiliate in a letter dated October 18, 2001.  The letter, signed by Lance Peeler of BACE, and Anika McCauley of BTA, informed the Board that both BACE and BTA believed that all due process and continuity of representation concerns had been met and that the affiliation should be recognized by BOPA. 

            11.       The newly created entity will maintain the same elected positions (i.e., president, vice-president, etc.) that BACE and BTA each maintained as individual entities.

            12.       The by-laws of the newly created entity are similar to those of each of the previously separate entities.  Record transcript of May 6, 2003 hearing, page 28, lines 8-10.

            13.       Procedures for handling member grievances will be the same under the new entity as they were under each of the individual entities.

            14.       There will be no substantial changes to dues amounts or dues structures.  There are three sets of dues that impacted the BTA and BACE.  These are comprised of national dues, state dues, and local dues.  These three dues components will continue to make up the dues structure of the new entity.

            15.       No objection to the merger has been voiced by any of individual members of either of BTA or BACE.  Nor has any objection regarding the notification procedure or the voting procedure been raised.

            16.       The affiliation of the BTA and BACE will not change the present practice of bargaining two collective bargaining agreements, one for the certified personnel and one for the classified personnel, with each of the districts. 

IV.       DISCUSSION

            The districts have challenged the Board of Personnel Appeals' (BOPA) ability to recognize an affiliation between two local unions and have further contended that the evidence in this case is insufficient to demonstrate that either due process or continuity of representation have been proven.  The district's reiteration of its argument that the board lacks the power to recognize the affiliation sought in this case has already been decided by BOPA.  BOPA remanded this matter to the hearings bureau to consider whether the requisites for affiliation had been met even though the previous hearings officer had concluded the BOPA had no power to recognize the affiliation.  BOPA has quite obviously concluded that it has the power to recognize the affiliation sought by the Petitioners.  Accordingly, this hearing officer is constrained, as directed by the Board, to the singular determination of whether the requisites for affiliation contained in Admin. R. Mont. 24.26.650 have been met in this case.

            Mont. Code Ann. § 39-31-201 states that public employees "shall have and shall be protected in the exercise of the right of self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing on questions of wages, hours, fringe benefits, and other conditions of employment, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection free from interference, restraint, or coercion."

            Admin. R. Mont. 24.26.650 (2) provides in pertinent part:

            Petitions to affiliate exclusive representatives of bargaining units with other labor organizations shall show that members of the bargaining unit were afforded due process and will have continuity of representation.           

(a)  Due process in the affiliation process shall be demonstrated by a showing that members of the bargaining unit were:

(i)   given notice of the impending affiliation vote;

(ii)  given an opportunity to discuss the proposed affiliation at a meeting prior to voting; and

(iii) permitted to vote by secret ballot on the affiliation question.

(b)  Continuity of representation shall be demonstrated by a showing that:

(i)   there will be a continuation of bargaining unit autonomy;

(ii)  local officers will be retained;

(iii) financial arrangements are not substantially different under the affiliation than before; and

(iv) procedures regulating grievance handling, voting and by-law changes are continued. 

            "Exclusive representative" means the labor organization which has been designated by the board as the exclusive representative of employees in an appropriate unit or has been so recognized by the public employer.  Mont. Code Ann. § 39-31-103(4).  "Labor organization" means any organization or association of any kind in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, fringe benefits, or other conditions of employment.
Mont. Code Ann. § 39-31-103(6).

            The districts have not challenged the Petitioner's contentions that BTA and BACE fit within the administrative definition of a labor organization.  Nor have the districts argued that BTA and BACE are not "exclusive representatives" as defined by administrative regulation.  In fact, each of these entities is both an "exclusive representative" and a "labor organization" as those terms are defined by the applicable regulations.               

            The Montana Supreme Court has approved the practice of the Board of Personnel Appeals in using federal court and National Labor Relations Board (NLRB) precedent as guidance in interpreting the Montana Collective Bargaining for Public Employees Act.  State ex rel. Board of Personnel Appeals v. District Court (1979), 183 Mont. 223, 598 P.2d 1117; Teamsters Local No. 45 v. State ex rel. Board of Personnel Appeals (1981), 195 Mont. 272, 635 P.2d 1310; City of Great Falls v. Young (Young III) (1984), 211 Mont. 13, 686 P.2d 185.    

            The United States Supreme Court has recognized that "an affiliation does not create a new organization, nor does it result in the dissolution of an already existing organization.  [citation omitted].  Rather, the union will determine 'whether any administrative or organizational changes are necessary in the affiliating organization." [citation omitted].  If these changes are sufficiently dramatic to alter the union's identity, affiliation may raise a question of representation, and the board may then conduct a representation election.  Otherwise, the statute gives the Board no authority to interfere in the Union's affairs."  NLRB v. Financial  Institution Employees of America (1986), 475 U.S. 192, 206. 

            In addressing questions of continuity, the NLRB has stated that the trier of fact must consider "the totality of the circumstances, eschewing the tendency toward a 'mechanistic approach' or the use of a 'strict checklist.'"  Mike Basil Chevrolet, Inc., 331 NLRB 1044, 1044 (2000). See also, Sullivan Brothers Printers, Inc., v. NLRB, 99 F.3d 1217, 1230 (1^st Cir. 1996) (The court, in affirming the NLRB's determination that the affiliation of two local unions had not raised a question of representation, stated "[w]e do not reach this conclusion merely because a majority of the factors we examined weigh in favor of affirming the NLRB's decision: this is not a mathematical analysis.").  Furthermore, as the Financial  Institution Employees of America court noted, the NLRB has "in general found that affiliations do not destroy continuity of representation."  Financial  Institution Employees of America, supra, 475 U.S. at 203, n. 10. 

            The requisites of both the "due process" component and the "continuity of representation" requirements of  Admin. R. Mont. 24.26.650(2) have been met in this case.  The evidence shows that the members of each local were given notice of the impending affiliation vote and were given ample opportunity to discuss the merits of affiliation prior to voting on the issue.  In addition, not only the union members, but indeed the non-union employees were permitted to vote on the affiliation.  The officer positions and the by-laws of the newly formed entity will remain largely the same.  The grievance procedure will remain essentially unchanged.  The dues structure will remain substantially unchanged.  And the new entity will continue to bargain two separate contracts, one for the certified personnel and one for the classified personnel.

            The districts' reliance on Western Commercial Transport, 288 NLRB 14 (1988), to support their contention that there are insufficient facts to demonstrate continuity is misplaced.  In the Western Transport case, a small independent union sought to affiliate with an organization representing 8,500 other employees.  There was ample evidence that the small bargaining representative would undergo "substantial changes in size, organizational structure, and administration."  Id. at 18.  In contrast, here two small locals, who have worked together for years in representing their employee members, would simply carry on their same function as one unit, with similar by-laws, dues structures, and grievance procedures.  The circumstances of the instant petition for affiliation demonstrate that the union members have been accorded due process in the affiliation proceeding and that continuity of representation exists between the former locals and the newly formed local.  

V.        CONCLUSIONS OF LAW

            1.         The requisites of Admin. R. Mont. 24.26.650(2) have been met in this case. 

            2.         Because the requisites of Admin. R. Mont. 24.26.650(2) have been met, the Board should recognize the Boulder Education Association/MEA-MFT as the exclusive representative of the employees in the Boulder Elementary School District (District 7) and the Jefferson County High School (District 1). 

VI.       RECOMMENDED ORDER

            Based on the foregoing, the Board should issue an amended certification of exclusive representative to the Boulder Education Association/MEA-MFT.  

            DATED this          day of July, 2003.

BOARD OF PERSONNEL APPEALS
By:                                                               
GREGORY L. HANCHETT
Hearing Officer

NOTICE:  Pursuant to ARM 24.26.215, the above RECOMMENDED ORDER shall become the Final Order of this Board unless written exceptions are postmarked no later than                                   .  This time period includes the 20 days provided for in ARM 24.26.215, and the additional 3 days mandated by Rule 6(e), M.R.Civ.P., as service of this Order is by mail.

The notice of appeal shall consist of a written appeal of the decision of the hearing officer which sets forth the specific errors of the hearing officer and the issues to be raised on appeal.  Notice of appeal must be mailed to:

Board of Personnel Appeals
Department of Labor and Industry
P.O. Box 6518
Helena, MT  59624-6518