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Collective Bargaining FAQ

The following is meant to provide very general information about some frequently asked questions involving cases before the Office of Administrative Hearings (OAH).  It is intended to inform, not to advise, and it does not constitute legal advice.  If you do not fully understand the law or your rights in the hearing process, you should seek advice from a lawyer.  If you need assistance in finding a lawyer, the Montana State Bar can help you through its lawyer referral program. Information on this service can be found at www.montanabar.org or by calling the Montana State Bar at (406) 449-6577.

Generally speaking, there are two types of collective bargaining cases that come to the Office of Administrative Hearings. The first type is an unfair labor practice case which originates when a charge of an unfair labor practice is filed.  Following the conclusion of an investigation by a Board of Personnel Appeals investigator as to whether there is probable merit to the unfair labor practice charge, the matter is transferred to the Office of Administrative Hearings for a contested case hearing.

The second type of case is what is known as either a unit determination or a unit clarification case. In a unit determination case, a new collective bargaining unit has been proposed by either labor or management (usually labor) and the opposing party objects to the unit that has been proposed for formation. In a unit clarification case, changing duties in a particular job position or job positions within a unit have created an issue as to whether that job or jobs should continue to be within the existing bargaining unit. In those cases, there is no investigative finding.  The matter is sent to the Office of Administrative Hearings for a contested case hearing once a party objects to the proposed unit or continued inclusion of a job position within the unit.

Before the Board of Personnel Appeals makes any finding in either an unfair labor practice case or a unit determination/clarification case, the parties have a right to have a hearing where evidence is presented and the opportunity for cross-examination of witnesses is allowed.  This right to have a hearing regarding the evidence and to engage in cross examination is sometimes called a "due process" hearing.

Because a hearing in front of the Office of Administrative Hearings is the first opportunity for the parties to have a due process hearing, an agency's investigative findings are not binding upon the Hearing Officer. Rather, when a case is in front of OAH, the parties must present their evidence anew to the hearing officer using witness testimony and documentary evidence. For this reason, parties in a hearing before the OAH should not rely on the agency's investigative findings to prove their case. Rather, they should be prepared to present their case through the use of witnesses and any relevant documents.

The Notice of Hearing is required by statute and it is sent to you to inform you that the Office of Administrative Hearings will be holding a hearing which involves you as a party (participant). The Notice of Hearing will tell you what the hearing will be about and it will also tell you the date and time that a scheduling conference will be held to set the date for the hearing.
In collective bargaining cases before the Office of Administrative Hearings, an entity may, but does not have to be represented by a lawyer.  A party to a collective bargaining can be represented by a non-lawyer provided that the representative does not charge a fee for representation. Admin. R. Mont. 24.26.209.
A scheduling conference is a telephonic meeting between the parties and the hearing officer to set up a mutually convenient date in the future to hold the hearing. It is also a time to set discovery deadlines and to set a date for the final pre-hearing conference.  After the scheduling conference has been held, the hearing officer will send the parties a scheduling order that will state in writing the dates for the hearing, discovery deadlines, and final prehearing conference that the parties have agreed to.  A scheduling conference will not take very long (usually only a few minutes) and it is very important that you attend the scheduling conference.  If you do not attend the scheduling conference, the hearing date, discovery deadlines, and final prehearing conference will be set without your input.
The hearing officer is an employee of the Office of Administrative Hearings who is assigned to hear a contested case.  The hearing officer is charged with making sure that all parties to a case have a fair, impartial, and independent forum in which to present evidence and make arguments in a contested case.  The hearing officer will decide the facts of the case and apply the law to the case in a written decision.

Discovery is a process by which the parties obtain and exchange information about the case before the hearing.  All parties to a case may undertake discovery.  In most cases it is conducted pursuant to the Montana Rules of Civil Procedure.  Discovery may include asking written questions of another party or answering written questions served upon you by a party.  These written questions are known as interrogatories. Discovery may also include taking or attending a deposition.  A deposition is an oral question-and-answer session where a witness to the case is placed under oath and asked questions about the case.  It is usually recorded by a court reporter.

All parties are required to cooperate in the discovery process. A party's failure to cooperate can result in the hearing officer imposing sanctions against that party.

The hearing officer will set a discovery deadline and a date by which the parties must exchange a list of witnesses they intend to call and a list of exhibits they intend to use at hearing. Discovery deadlines are set so that the hearing process can be completed as expeditiously as possible.  An exchange deadline is set so that each side will know what the other side intends to offer at the hearing, thereby reducing the likelihood of unfair surprise at the hearing.  This helps to ensure that each side has a fair hearing. The discovery deadline and date for exchanging witness exhibit lists will be noted in the scheduling order which the hearing officer will issue immediately after the scheduling conference.

Discovery deadlines and exchange deadlines are very important and the hearing officer will expect you to comply with them unless forces beyond your control (for example, a witness or opposing party refuses to comply with your discovery requests) prevent the you from meeting the deadline.  If you fail without good cause to comport with these deadlines, you may be precluded from presenting witnesses or exhibits at the hearing.

When planning out the discovery you wish to undertake, keep in mind that the discovery must be completed no later than the date which the hearing officer sets.  If you choose to send the opposing party a set of interrogatories, you must provide them to that party sufficiently ahead of time to allow them to respond to the interrogatories on or before the discovery deadline.  In Montana, a party has 30 days to respond to interrogatories.  Likewise, if you choose to obtain discovery about documents that a party or witness has, you must serve the party or witness with a request to produce the documents sufficiently ahead of time to permit them to provide you with the requested documents on or before the discovery deadline.

If you are unsure whether your witness will appear to testify at hearing, the hearing officer can issue a subpoena requiring the witness to appear at the hearing and testify.

There are basically two types of subpoenas.  The first is an order for someone to appear at the hearing to testify.  The second is an order for someone to make documents or other items available to you. If you want a subpoena, you must prepare a subpoena in the form prescribed by the Office of Administrative Hearings for the hearing officer's signature.  Subpoena forms are available through the OAH.

A subpoena may not be served by a party to the case.  Process servers can be found in the Yellow Pages. A copy of the subpoena, along with an affidavit from the person serving the original subpoena, must be returned to OAH.  Since you are required to have the subpoena served on the person or entity you wish to subpoena, you should request subpoenas well in advance of the hearing.

The hearing officer will usually hold a final telephonic prehearing conference a week to ten days before the hearing. The date and time for the prehearing conference will be noted in the scheduling order and it is important that you be available to participate in the conference.

The purpose of the conference is to streamline the hearing by (1) asking the parties if there are any facts to which the parties can stipulate (agree) and (2) identifying for the hearing officer exhibits which the parties will agree to admit into the record.  The hearing officer may also ask the parties about the exhibits the party intends to introduce and may also ask the parties about their respective exhibits and whether there will be any objections to the admission of those exhibits.  Finally, the hearing officer will consider any motions that have not been previously ruled on.

Be prepared for the conference.  Prior to the conference, take a look at the witnesses and the exhibits that the other side is proposing to present at hearing. Be prepared to tell the hearing officer which, if any, facts that you agree happened and which, if any, exhibits you will agree to admit into the record.

After the conference is concluded, the hearing officer may issue a final prehearing order setting out the issues to be decided in the case, each party's contentions of fact and law, and the facts that the parties agree occurred and the exhibits that the parties will agree to admit at hearing.  When you receive it, read it carefully.  The final prehearing order will control the hearing so it is important that it correctly reflects your understanding of the parties' discussions at the final prehearing conference.

An administrative hearing is like a court trial, but somewhat less formal. Evidence is presented by each party, either through sworn testimony or through admissible documents.  Before the hearing, each party may make an opening statement to tell the hearing officer what the party believes the evidence will show.  At the end of the hearing, each party may present a closing argument to explain why the hearing officer should rule one way or the other.

On some occasions, the hearing officer may ask the parties to file post-hearing briefs to further explain a legal or factual issue that may have arisen during the hearing.  If the hearing officer wants to have the parties file post-hearing briefs, he will set a date after the hearing by which the parties must do so and he will provide the parties with adequate time to do so.  After the hearing has concluded and post-hearing briefing, if any, is completed, the hearing officer will review all the evidence, argument and briefing and issue a decision as soon as practicable.

There are generally two types of evidence that are presented at hearings. The first is testimonial evidence, that is, evidence that comes from the testimony of a witness. The second type of evidence is documentary evidence, that is, documents that are relevant to the issues being decided in the case. As an example, in a wage and hour case, documents that will be very important are things such as pay check stubs, time cards, or perhaps a written employment agreement.

When deciding what testimonial evidence to present at hearing, choose witnesses who have firsthand information: a person who directly saw or heard the event to which they are testifying.  Someone who testifies about what someone else said, saw, or heard is giving hearsay testimony. While formal rules of evidence do not apply to hearings that involve collective bargaining matters, hearsay testimony may not be admissible at hearing.  Even if it is admitted, it may not carry as much weight as evidence coming through a person who has first-hand knowledge. A witness with firsthand information is generally considered more reliable than one who presents only hearsay evidence since a witness with firsthand information can be cross-examined.

When you are considering which documents to present at hearing, remember to make sure the documents are relevant to the issues in the case. Be prepared to have a witness testify (whether it is you or another person) who can explain what the document is and how it is relevant to the case. Although in many circumstances photocopies of relevant documents will be admissible, it is a good idea to bring original documents for the hearing if possible.

The evidence you produce at hearing is very important because only evidence presented at the hearing will be considered. Therefore, you should have all your witnesses and all your documents available for the hearing. When you are preparing for hearing, carefully think through your case. Ask yourself what information, documents, or witnesses will help to establish the facts in your favor.

Sometimes either or both parties may need to request that a hearing be rescheduled. This is done by filing a motion for a continuance.  If you need to file a motion for a continuance, you should first call the opposing side to find out if they have any objection to continuing the hearing. Your motion for a continuance must be in writing and must show good cause for requesting the continuance.  You should also note in your motion that you have contacted the opposing side and you should state whether or not they object to continuing the hearing.  The hearing officer will make a decision as to whether there is a good reason for granting a continuance. If there is, the hearing will be rescheduled.

When a litigant has the burden of proof, that litigant really has two burdens. The first is the "burden of going forward," also known as the "burden of production."  The second is called the "burden of persuasion." The burden of going forward is just what the name implies: the party who has this burden is required to present evidence first to prove his or her claim before the opposing party has any requirement to present any evidence. To borrow an analogy from running, the runner who never leaves the starting line is akin to the litigant who fails to meet the burden of going forward.  Like the runner who never "leaves the blocks," the litigant who fails in the burden of going forward can never hope to win his case because he is never in the race.

The burden of persuasion, on the other hand, entails more than the burden of putting on some evidence.  The burden of persuasion requires a party to persuade the hearing officer that the party is entitled to the relief or benefits sought.  It is possible for a party to meet the burden of production, yet still lose the case because the party failed to meet the burden of persuasion.  Returning to the runner analogy, the litigant who fails to meet his burden of persuasion is like the runner who loses the race because he has not trained sufficiently to run faster than the other runners. While he is obviously ahead of the runner who never left the starting block, he nevertheless fails to reach his goal of winning the race.

In order to meet the burden of persuasion, the litigant bearing that burden must, in most cases, prove his case by a "preponderance of the evidence."  This standard of proof basically requires the litigant to demonstrate to the hearing officer that the existence of the fact in question is more likely than not.

As a general rule, the party requesting that an action be taken bears the burden of proof.  In an unfair labor practice case, the party alleging the unfair labor practice must prove that an unfair labor practice occurred and must do so by a preponderance of the evidence. In a unit determination/clarification case, usually the party seeking to form the new bargaining unit or objecting to the continued inclusion of a job position within an existing bargaining unit bears the burden of proof.
The decision of the hearing officer in a collective bargaining case is called a recommended decision. A recommended decision explains what the hearing officer has found to be the facts in your case, the law that applies to your case and the hearing officer's recommendation on which party should win the case. The recommended decision will also contain important information about a party's rights to appeal the decision. It is important to read the decision carefully once you receive it and to also pay close attention to and comply with the information regarding appeal rights should you chose to appeal the decision.
If you do not agree with the hearing officer's recommended decision, you will have the right to appeal that decision by filing a notice of objections with the Board of Personnel Appeals. The recommended decision will contain explicit instructions (usually called a "Notice") that will tell you where to file an appeal, how to file an appeal, and the deadline by which the appeal must be filed. It is very important that you read and follow these instructions carefully. If you fail to file your appeal on or before the deadline stated in the instructions, the hearing officer's recommended decision will become the final agency decision of the Board of Personnel Appeals.
The Office of Administrative Hearings endeavors to ensure the accessibility of its hearings to all persons with disabilities.  Should you or anyone you call as a witness need an accommodation, contact the Office of Administrative Hearings at (406) 444-4662 as soon as you learn of the need for the accommodation.
The Office of Administrative Hearings will attempt to furnish an impartial interpreter at the hearing if you give advance notice.  If you need an interpreter, call the telephone number on your Notice of Hearing immediately.