                                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 recom-
mendation 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 charg-
es; 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 Septem-
ber   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 charg-
es; 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 re-
    quest 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 . Person. App. (Monk= 1986)
                              of

712 P.2d 776, 778-79, 43 St.Rep. 1, 3-4.      Collateral estoppal
bars the relitigation of an issue where the issue is identi-
cal 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 Petition-
        er may not have been present at the initial hear-
        ings 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.


            rdinalv. the Petitioner's Motion to Compel is
        Acco~-    ,,
        GRANTED in part and DENIED in part:
                    -                          a cer-tified
        copy of the transcript - -l ~roceedi
                               of th e       nabefore -
                                             - L
                                              -
                                                       the
        Board - -rsonnel Appeals, onlv. shal- - ordered.
              of Pel                         1 be
        The cost of this transcript. shall be 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 administra-
tive 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 re-
     porter 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 deter-
mine 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 activi-
ties.     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 activi-
ties and the purported reprisals.     While all parties expend
significant portions of their briefs arguing on the suffi-
ciency 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:
