[ Text of section effective until November 12, 2007. For text effective November 12, 2007, see below.]
Section 11. When a complaint is made to the commission that a practice prohibited by section ten has been committed, the commission may issue an order dismissing the complaint or may order a further investigation or a hearing thereon. The commission may dismiss a complaint without a hearing if it finds no probable cause to believe that a violation of this chapter has occurred or if it otherwise determines that further proceedings would not effectuate the purposes of this chapter. If a hearing is ordered, the commission shall set the time and place for the hearing, which time and place may be changed by the commission at the request of one of the parties for cause shown. Any complaint may be amended with the permission of the commission. The employer, the employee organization or the person so complained of shall have the right to file an answer to the original or amended complaint within five days after the service of such complaint or within such other time as the commission may limit. Such employer, such employee organization or such person shall have the right to appear in person or otherwise to defend against such complaint. At the discretion of the commission any person may be allowed to intervene in such proceeding. In any hearing the commission shall not be bound by the technical rules of evidence prevailing in the courts. While retaining jurisdiction the commission may refer to the board or a joint labor management committee any matter alleging a refusal to bargain in good faith as required by section ten.
Whenever it is alleged that a party has refused to bargain collectively in good faith with the exclusive representative as required in section ten and that such refusal is based upon a dispute involving the appropriateness of a bargaining unit, the commission shall, except for good cause shown, issue an interim order requiring the parties to bargain pending its determination of the dispute. Where such interim order is issued the commission shall hold a hearing on the charge in a summary manner and shall speedily determine the issues raised and shall make an appropriate decision.
Upon any complaint made under this section the commission in its discretion may order that the hearing be conducted by a member or agent of the commission. At such hearing the employer, the employee organization or the person so complained of shall have the right to appear in person or otherwise to defend against such complaint. At the discretion of the commission, any person may be allowed to intervene in such proceeding. In any hearing the member or agent shall not be bound by the technical rules of evidence prevailing in the courts. At the conclusion of the hearing, the member or agent shall determine whether a practice prohibited under section ten has been committed and if so, he shall issue an order requiring it or him to cease and desist from such prohibited practice. If the member or agent determines that a practice prohibited under section ten has not been committed, he shall issue an order dismissing the complaint. Any order issued pursuant to this paragraph shall become final and binding unless, within ten days after notice thereof, any party requests a review by the full commission. A review may be made upon a written statement of the case by the member or agent agreed to by the parties, or upon written statements furnished by the parties, or upon such portions of the record of the hearing as the parties or commission may designate. The record in such cases shall consist of the pleadings, motions, rulings and the testimony taken at the hearing. The testimony may be preserved by a taped recording or by stenographic transcription, at the determination of the commission.
If, upon all the testimony, the commission determines that a prohibited practice has been committed, it shall state its findings of fact and shall issue and cause to be served on the party committing the prohibited practice an order requiring it or him to cease and desist from such prohibited practice, and shall take such further affirmative action as will comply with the provisions of this section, including but not limited to the withdrawal of certification of an employee organization established by or assisted in its establishment by any such prohibited practice. It shall order the reinstatement with or without back pay of an employee discharged or discriminated against in violation of the first paragraph of this section. If, upon all of the testimony, the commission determines that a prohibited practice has not been or is not being committed, it shall state its findings of fact and shall issue a final order dismissing the complaint. The commission may institute appropriate proceedings in the appeals court for enforcement of its final orders. Any party aggrieved by a final order of the commission may institute proceedings for judicial review in the appeals court within thirty days after receipt of said order. The proceedings in the appeals court shall, insofar as applicable, be governed by the provisions of section fourteen of chapter thirty A. The commencement of such proceedings shall not, unless specifically ordered by the court, operate as a stay of the commission's order.
Chapter 150E: Section 11. Complaints; investigation; hearing; orders; review; hearings before board
[ Text of section as amended by 2007, 145, Sec. 7 effective November 12, 2007. See 2007, 145, Sec. 9. For text effective until November 12, 2007, see above.]
Section 11. (a) When a complaint is made to the division that a practice prohibited by section 10 has been committed, the director may refer the matter to an investigator. The employer, the employee organization, or the person so complained of shall have the right to file an answer to the original or amended complaint within 5 days after the service of such complaint or within such other time as the division may require. Before the receipt of any answer, any complaint may be amended as of right, and, after the receipt of any answer, only with the permission of the division.
(b) The investigator may issue an order dismissing the complaint, deferring any complaint which is the subject of a pending grievance or arbitration, referring any complaint to one of the division's mediators, or directing that a hearing take place. Unless the complaint is dismissed, deferred, or referred, the investigator shall promptly meet with the parties, investigate whether settlement of the complaint is possible, clarify and narrow the issues before the complaint is forwarded to a hearing, or dismiss the complaint without a hearing. The investigator may dismiss the complaint if she finds no probable cause to believe that a violation of this chapter has occurred or if she otherwise determines that further proceedings would not effectuate the purposes of this chapter.
(c) If a hearing is ordered, the division shall set the time and place for the hearing, which time and place may be changed by the division at the request of one of the parties for cause shown. Any party may file a motion to dismiss the complaint or for a summary decision prior to a hearing. At the hearing, which shall be presided over by a hearing officer, the employer, the employee organization, or the person so complained of shall have the right to appear in person or otherwise to defend against the complaint. At the discretion of the division, any person may be allowed to intervene in such proceeding. In any hearing, the division shall not be bound by the technical rules of evidence prevailing in the courts. The testimony, if any, may be preserved by a taped recording or, at the discretion of the parties who shall be responsible for the costs thereof, by stenographic transcription.
(d) At the conclusion of the hearing, the hearing officer shall issue written findings of fact and shall determine whether a practice prohibited under section 10 has been committed and, if so, shall issue an order requiring the charged party to cease and desist from such prohibited practice, and shall take such further affirmative action as will comply with the provisions of this section, including but not limited to the withdrawal of certification of an employee organization established by or assisted in its establishment by any such prohibited practice. The hearing officer shall order the reinstatement with or without back pay of an employee discharged or discriminated against in violation of the first paragraph of this chapter. If the hearing officer determines that a practice prohibited under section 10 has not been or is not being committed, the hearing officer shall state her findings of fact and issue an order dismissing the complaint.
(e) Any order issued pursuant to this section shall become final and binding unless, within 10 days after notice thereof, any party requests a review by the board. A review may be made upon the record, which shall consist of the pleadings, motions, rulings, and the testimony taken at the hearing, if any, or upon such portions of the record as the parties may designate.
(f) Upon any complaint made under this section and a petition filed by one or more parties to the proceeding, the board, in its discretion, and for good cause shown, may order that the hearing be conducted by the board itself. At such hearing the employer, the employee organization or the person so complained of shall have the right to appear in person or otherwise to defend against such complaint. At the discretion of the board, any person may be allowed to intervene in such proceeding. In any hearing, the board shall not be bound by the technical rules of evidence prevailing in the courts. The testimony, if any, may be preserved by a taped recording or, at the discretion of the parties who shall be responsible for the costs thereof, by stenographic transcription.
(g) At the conclusion of the hearing, the board shall state its findings of fact and shall determine whether a practice prohibited under section 10 has been committed and if so, it shall issue an order requiring the charged party to cease and desist from such prohibited practice, and shall take such further affirmative action as will comply with the provisions of this section, including but not limited to the withdrawal of certification of an employee organization established by or assisted in its establishment by any such prohibited practice. The board shall order the reinstatement with or without back pay of an employee discharged or discriminated against in violation of the first paragraph of this chapter. If the board determines that a practice prohibited under section 10 has not been or is not being committed, it shall state its findings of fact and issue an order dismissing the complaint.
(h) Whenever it is alleged that a party has refused to bargain collectively in good faith with the exclusive representative as required in section 10 and that such refusal is based upon a dispute involving the appropriateness of a bargaining unit, the division shall, except for good cause shown, issue an interim order requiring the parties to bargain pending its determination of the dispute. Where such interim order is issued, the board shall hold a hearing on the charge in a summary manner and shall speedily determine the issues raised and shall make an appropriate decision.
(i) The board may institute appropriate proceedings in the appeals court for enforcement of its final orders. Any party aggrieved by a final order of the board may institute proceedings for judicial review in the appeals court within 30 days after receipt of the order. The proceedings in the appeals court shall, insofar as applicable, be governed by section 14 of chapter 30A. The commencement of such proceedings shall not, unless specifically ordered by the court, operate as a stay of the board's order.