Collective Bargaining FAQ

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.

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.

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.

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.