Administrative Rules of Montana
Department 24 - LABOR AND INDUSTRY
Chapter 24.26 - BOARD OF PERSONNEL APPEALS
Subchapter 24.26.6 - Public Employees Collective Bargaining
Rule 24.26.680B - RESPONSE TO COMPLAINT AND INVESTIGATION OF COMPLAINT

(1) A party charged with an unfair labor practice shall file a response with the board to the complaint within ten days after the board has mailed the complaint. A response is a letter setting forth in detail facts relevant to the complaint which the respondent wishes to bring to the board's attention including a specific reply to each factual allegation made in the complaint.

(2) As provided for in 39-31-405(1), MCA, after receipt of the response, the board shall appoint an investigator to investigate the alleged unfair labor practice. In making a determination of probable merit, the investigator must determine whether there is substantial evidence to support the allegation(s). In reaching this decision, the board's agent shall rely on the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Substantial evidence is something more than a scintilla of evidence but may be less than a preponderance of the evidence.

(3) As provided for in 39-31-405(2), MCA, if after the investigation, the agent designated by the board determines that the charge is without probable merit the board shall issue a notice of its intention to dismiss the complaint. The dismissal becomes a final order of the board unless either party requests board review of the decision to dismiss the complaint. The request for a review must be made in writing within ten days from the date the board mailed its notice of intention to dismiss decision. This rule requires that the request for review must clearly set forth the specific factual and/or legal reasons indicating how the investigator's finding of no probable merit is in error. At the discretion of the board, interested parties will be afforded an opportunity to respond to a request for review.

(4) In considering a request to review a notice of intent to dismiss, the board will consider the record as prepared by the board's agent in reaching his or her decision of no probable merit, any report detailing the investigation and analysis of the board's agent, and any argument set forth by interested parties. At the discretion of the board, the board will allow interested parties to present oral argument. Following consideration, the board will determine whether the investigator erred in concluding that there was not substantial evidence to support a determination of probable merit or the investigator's determination was based on an error of law.

(5) As provided for in 39-31-405, MCA, if after the investigation or after the appeal provided for in 39-31-405(2), MCA, the investigator or the board determines that there is probable merit for the charge, the board shall issue a notice of finding of probable merit.

(6) As provided for in 39-31-405(4), MCA, if a finding of probable merit is made, the person or entity against whom the charge is filed shall file an answer to the complaint. The answer must be made in writing within ten days after the date the board mailed notice of finding of probable merit.

(7) A finding of probable merit is appealable only after the decision of the hearing examiner has been issued.