No. 86-02 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF UNFAIR LABOR 

PRACTICE NO. 38-80, 

JERRY T. KLUNDT, affiliated 

with Chaufeurs, Teamsters, and 

Helpers Local Union #190, 

Petitioner and Appellant, 

STATE OF MONTANA, BOARD OF 

PERSONNEL APPEALS, MONTANA 

STATE DEPARTMENT OF LABOR AND 

INDUSTRY; CITY OF BILLINGS, 

MONTANA, 

Respondents and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cate Law Firm; Brad L. Arndorfer, Billings, Montana 

D. Patrick McKittrick, Great Falls, Montana 

For Respondents: 

Daniel J. Stevenson, Dept. of Labor & Industry, 

Helena, Montana 

K.D. Peterson; Peterson, Schofield & Leckie, 

Billings, Montana 

Submitted on Briefs: April 10, 1986 

Decided: June 19, 1986 

Filed: JUN 1 3 1986 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This appeal arises from Mr. Klundt's charges of unfair 

labor practices. The administrative hearing officer's recommendation that the charges be dismissed was adopted by the 

Board of Personnel Appeals (Board), and the Yellowstone 

County District Court affirmed the Board's decision. We 

remand to District Court. 

These issues are raised: 

1. Were Mr. Klundt's due process rights violated by the 

three year delay between the filing of his unfair labor 

practice charges and the administrative hearing on the charges; and did the District Court err in denying his application 

for leave to present additional evidence on this issue? 

2. Is the Board's decision denying Mr. Klundt's claims 

supported by substantial credible evidence? 

Mr. Klundt filed unfair labor practice (ULP) charges 

against his former employer, the City of Billings, in September 1980. In the charges, Mr. Klundt alleged that city 

officials took actions against him in March and April 1980 in 

retaliation for his union activity, that he was forced to 

quit his job in June 1980, and that the city would not rehire 

him in retaliation for filing the ULP charges. The City of 

Billings denied all charges. 

In December 1983, a hearing officer for the Board held a 

hearing on Mr. Klundt's ULP charges. The hearing officer 

issued a recommended order ruling against Mr. Klundt and 

dismissing his charges. Then, in November 1984, the full 

Board held an oral argument on Mr. Klundt's challenge to the 

hearing examiner's decision. The Board adopted the hearing 

examiner's recommended order dismissing the complaint. 
Mr. Klundt petitioned the Yellowstone County District 

Court for judicial review of the Board's decision. He also 

applied to the District Court for leave to present additional 

evidence. The court denied that application, finding that he 

had ample opportunity to present the evidence he sought to 

present. In October 1985, the District Court affirmed the 

Board's final order which denied Mr. Klundt's claims. This 

appeal followed. 

Were Mr. Klundt's due process rights violated by the 

three year delay between the filing of his unfair labor 

practice charges and the administrative hearing on the charges; and did the District Court err in denying his application 

for leave to present additional evidence on this issue? 

Mr. Klundt appeals the District Court's determination 

that his right to due process was not violated by the delay 

between the time he filed his ULP charges and the time his 

hearing was held. In an earlier appeal by Mr. Klundt the 

Court considered this identical issue: 

Turning to appellant's allegations against the 

Board, Klundt claims that from the time he filed 

his charges until a hearing was held, he made 

numerous written and oral demands to the Board for 

a hearing. The Board failed to set a hearing for 

37 months. The Board repeatedly stated that 

Klundt's charges had been put on hold at the request of the Union. Klundt alleges that this delay 

violated his due process rights under the state and 

federal constitutions. 

The District Court properly granted respondent 

Board's motion for summary judgment. In Montana, 

the right to due process requires notice and an 

opportunity to be heard (citations omitted) . The 

requirements are the same whether dealing with an 

administrative agency or a court. Section 2-4-601, 

MCA, and section 2-4-612(1), MCA. In this case, 

the Board fulfilled the fundamental requirements of 

due process. Klundt received notice and was given 

an opportunity to be heard. The three-year delay 

is disturbing, but not fatal. 
Klundt v. State, ex rel., ~d. of Person. App. (Monk= 1986) 

712 P.2d 776, 778-79, 43 St.Rep. 1, 3-4. Collateral estoppal 

bars the relitigation of an issue where the issue is identical to an issue previously decided, a final judgment as to 

the issue has been rendered, and the party against whom the 

claim is advanced remains the same or is a privy of the 

earlier party. Aetna Life and Cas. Ins. Co. v. Johnson 

(Mont. 1984), 673 P.2d 1277, 1280-81, 41 St.Rep. 40, 43-44. 

We hold that Mr. Klundt is precluded from raising this issue. 

Mr. Klundt also asked for leave to present additional 

evidence relating to his due process claim. The District 

Court denied that motion. Because the additional evidence 

was to relate to the due process claim, and because of our 

holding on that issue, we conclude that this question is 

moot. 

Is the Board's decision denying Mr. Klundt's claims 

supported by substantial credible evidence? 

Our standard of review is whether the factual findings 

are "clearly erroneous in view of the reliable, probative, 

and substantial evidence on the whole record." Section 

2-4-704(2)(e), MCA. This issue poses a real dilemma, because 

there is no transcript of the initial hearing where there was 

live testimony by actual witnesses. Mr. Klundt filed a 

motion to compel the transcript in District Court. The order 

which denied the transcript at the initial hearing stated: 

The Court recognizes that counsel for the Petitioner may not have been present at the initial hearings in this case. The Court notes, however, that 

the record that has been transmitted by the Board 

reveals that counsel for Petitioner was present at 

the appeal before the Board. Further, the brief 

that counsel filed in connection with that appeal 

demonstrates knowledge of the testimony presented 
to the hearing examiner. Counsel simply cannot now 

protest ignorance of the evidence presented at any 

stage of the proceedings below. 

Acco~ rdinalv. - , , the Petitioner's Motion to Compel is 

GRANTED in 

copy of the 

Board -- of Pel 

The cost of 

part - and DENIED 

transcript -- of th 

rsonnel Appeals, 

this transcript 

in part: 

le ~roceedi 

onlv. shal . shall be 

a cer-tified 

--L 

nabefore - the 

-- 1 be ordered. 

taxed to the 

Petitioner. (Emphasis supplied) 

By order, the District Court affirmed the Board. In its 

accompanying memorandum it stated the court had carefully 

reviewed the entire case, including the complete administrative record of the Board. Apparently a tape of the hearing 

before the hearing examiner was available to the District 

Court. 

However, on appeal, Mr. Klundt failed to designate the 

initial hearing as part of the record: 

The petitioner, JERRY T. KLUNDT, hereby designates 

the record on appeal as follows: 

1. The entire court file now held by the Clerk of 

Court of the above-entitled Court. 

The petitioner states that there was a court reporter at the hearing held in the above-entitled 

matter, but that such record contains only the 

arguments of counsel and is therefore unnecessary 

for the appeal before the Montana Supreme Court. 

Mr. Klundt asks this Court to review the evidence to determine if his union activities were the motivating factor in 

the reprisals against him, and also to determine if the 

reprisals would have taken place without his union activities. While Mr. Klundt did not specifically appeal from the 

order of the District Court refusing to order a transcript of 

the original hearing, the transcript is essential to any 

meaningful review of the evidence regarding his union activities and the purported reprisals. While all parties expend 
significant portions of their briefs arguing on the sufficiency of the evidence, we cannot consider' any of these 

arguments in the absence of a transcript of the testimony at 

the original hearing. 

As the record now exists before us, our only choice is 

to affirm the District Court. From the briefs of Mr. Klundt 

we are not able to determine if he desires the opportunity to 

purchase a transcript of the original proceeding and have 

that matter considered. We therefore conclude: 

(1) This cause is remanded to the District Court. In 

the event that he desires to order and pay for a transcript 

of the hearing before the hearing examiner, Mr. Klundt shall 

appear before the District Court and make arrangements for 

the ordering and payment of the transcript. If he makes that 

election, the District Court shall examine the transcript 

when received and enter its further judgment on this issue. 

(2) In the event that the attorney for Mr. Klundt shall 

fail to appear before the District Court and make the above 

described arrangements for the transcript of the hearing 

before the hearing examiner within 30 days from the date of 

this opinion, the judgment of the District Court is affirmed. 

Remittitur shall now issue. 

We Concur: