No. 86-02 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

IN THEMATTER OF UNFAIR LABOR PRACTICENO. 38-80, JERRYT. KLUNDT, affiliated with Chaufeurs,Teamsters, and Helpers Local Union #190, Petitioner and Appellant,

STATE OF MONTANA,BOARD OF PERSONNELAPPEALS,MONTANA STATE DEPARTMENT OF LABORAND INDUSTRY; CITY OF BILLINGS, MONTANA, Respondents and Respondents.

APPEAL FROM: DistrictCourt of the Thirteenth JudicialDistrict, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Cate Law Firm;Brad L. Arndorfer, Billings,Montana D. PatrickMcKittrick,Great Falls,Montana ForRespondents: 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: 

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ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

This appeal arises from Mr. Klundt's charges of unfair laborpractices. 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. WereMr. Klundt's dueprocess rightsviolated by the three year delay between the filing of his unfair labor practice charges and the administrative hearing on the charges; and did theDistrict Courterr in denyinghis application for leave topresent additional evidenceon this issue? 2. Is the Board's decision denying Mr. Klundt's claims supportedby substantialcredible evidence? Mr. Klundt filed unfair labor practice (ULP) charges againsthis former employer,the City of Billings, in September 1980. In the charges, Mr. Klundt alleged that city officials took actions againsthim inMarch andApril 1980 in retaliation for his union activity, that he was forced to quit his job in June 1980,and that the citywould not rehire him in retaliation for filing the ULP charges. The City of Billings denied all charges. InDecember 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 theDistrict Court for leave topresent additional evidence. The courtdenied that application, finding thathe 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 administrativehearing on the charges; and did the District Courterr in denyinghis application for leave topresent 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 numerouswritten 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 dueprocess rights under the stateand federalconstitutions. 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 administrativeagency or a court. Section 2-4-601, MCA, and section 2-4-612(1), MCA. In this case, the Board fulfilled the fundamental requirementsof due process. Klundt received notice and was given an opportunity to be heard. The three-year delay isdisturbing, but not fatal.Klundt v. State, ex rel., ~d. of Person. App. (Monk=1986) 712P.2d 776,778-79, 43 St.Rep. 1, 3-4. Collateral estoppal bars the relitigationof an issuewhere 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 thatMr. Klundt isprecluded 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 supportedby substantialcredible 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 issueposes a realdilemma,because there isno transcriptof the initialhearing where therewas live testimony by actual witnesses. Mr. Klundt filed a motion to compel the transcript inDistrictCourt. 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 Petitionerwas present at the appeal before the Board. Further, the brief that counsel filed in connection with that appeal demonstrates knowledge of the testimony presentedto the hearing examiner. Counsel simply cannotnow protest ignorance of the evidence presented at any stage of the proceedingsbelow.

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

- , , GRANTED in copy

## ofthe Board of Pel 

### -- The cost ofpart and DENIED - transcript

### -- of th rsonnelAppeals,

this transcriptin part: le ~roceedi onlv. shal

. shall be a cer-tified nabefore the --L 

## - 1be ordered. 

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taxed to the Petitioner. (Emphasissupplied)
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 initialhearing aspart 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 transcriptof the original hearing, the transcript is essential to any meaningful review of the evidence regardinghis union activities and the purported reprisals. While all parties expendsignificant 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 originalhearing. 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 thatmatter 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. Ifhe 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 forMr. 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 judgmentof the District Court is affirmed. Remittitur shallnow issue.

We Concur: