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456 Code of Massachusetts Regulations (CMR) |
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16.00:VARIOUS PROVISIONS OF THE LAW
For the purpose of 456 CMR 16.00, any collective bargaining agreement, the term of which does not exceed three years, which has been reduced to writing and executed by the employer or public employer and exclusive representative, shall be deemed to have been filed with the Commission, for the purposes of satisfying the provisions of M.G.L. c. 150E, s. 7, when an exact copy of said agreement has been filed by the employer, the exclusive representative, or any other person. 16.02: Requests for Binding Arbitration (1) When a party requests the Commission to order binding arbitration, as provided in M.G.L. c. 150E, s. 8, the party so requesting shall provide the Commission the following information in writing: [click here for form] (a) The full names and addresses of the employer and the employee organization involved. (b) A clear and concise statement of the dispute concerning the interpretation or application of such written agreement. A copy of the grievance for which arbitration is requested must be submitted with the request, along with the date and disposition of the last step of the grievance procedure at which the grievance has been considered. (c) A specific reference to the particular part or parts of the written agreement causing the dispute. A copy of the entire written agreement must be submitted with the request. (d) Any other relevant facts which may be required in the request for binding arbitration forms issued by the Commission. (2) Except for good cause shown, no request for binding arbitration shall be entertained by the Commission more than 60 days after exhaustion of the contractual grievance procedure, if any. (3) All requests for an order of binding arbitration shall be filed in accordance with the requirements of 456 CMR 12.11. Requests for an order of binding arbitration shall contain a declaration by the person signing it, under the penalties of perjury, that its contents are true to the best of his of her knowledge or belief. (4) The request for an order of binding arbitration shall be served by the party filing it upon all other parties to the collective bargaining agreement at the same time that it is filed with the Commission. (5) Within 15 days after receipt of a copy of a request for an order of binding arbitration, any other party to the collective bargaining agreement shall provide to the Commission a statement indicating whether the party joins in the request for binding arbitration, opposes the request, or takes no position, and all legal or other arguments in support of its position. (6) Upon receipt of the submissions of the parties referenced above, the Commission may conduct such further investigation as it deems necessary and may issue an order directing the parties to submit the grievance to binding arbitration, may dismiss the request for an order directing binding arbitration, or may authorize such other disposition of the matter as may effectuate the purposes of M.G.L. c. 150E. (1) When an employer petitions the Commission to make an investigation of an alleged violation of M.G.L. c. 150E, s. 9A(a), the employer shall include in the petition the following information: (a) The name, address and telephone number of the employer, and its legal representative, if any. (b) The names, addresses and telephone numbers, if known, of the employee organization and its officers or the public employees who are alleged to have violated or are about to violate the provisions of M.G.L. c. 150E, s. 9A(a). (c) The name, address and telephone number of counsel for the employee organization or public employees, if known. (d) The place of employment of the public employee or employees and the services affected. (e) A statement as to what facts cause the employer to believe that a strike has occurred or is about to occur or has been induced, encouraged or condoned. (f) Any other relevant facts which may be of assistance to the Commission. (2) (a)The employer shall serve a copy of the petition on an officer or representative of the employee organization and on all named public employees alleged to have violated or to be about to violate M.G.L. c. 150E, s. 9A(a). The petition served pursuant to this subsection shall contain a statement that the employer requests an investigation by the Commission and that the employee organization or employees may contact the Commission if they wish to present information pertinent to the investigation. The employer shall file an affidavit with the Commission specifying its compliance with 456 CMR 16.03(2). (b) The Commission may require the employer to serve a notice of the time, date and place of an investigation, if any, to be conducted by the Commission, upon an officer or representative of the employee organization and on each named public employee alleged to have violated or to be about to violate M.G.L. c. 150E, s. 9A(a). (c) The Commission may investigate the allegations of the employer's petition and may determine whether a strike is occurring or about to occur upon consideration of the employer's allegations and such other evidence as the Commission may consider. (3) Upon determination that a violation of M.G.L. c. 150E, s. 9A(a) is occurring or is about to occur, the Commission may issue orders setting requirements and may seek enforcement thereof. The Commission may require the employer to serve such orders upon an officer or representative of the employee organization and upon each named public employee found to have violated M.G.L. c. 150E, s. 9A(a). All petitions and requests filed under 456 CMR 16.00 shall be in writing and shall contain a declaration by the person signing it, under the pains and penalties of perjury, that its contents are true to the best of his or her knowledge or belief. The original and two copies of the petition or request shall be filed with the Commission. 16.05: Compliance with M.G.L. c. 150E,§13 & 14 For the purpose of 456 CMR 16.00, compliance with M.G.L. c. 150E,§13 & 14 means that: (1) Each employee organization has filed the information required by said sections on forms provided by the Commission or the equivalent thereof, or for good cause shown, has received permission from the Commission to extend the time for filing. (2) That each employee organization filing a petition or a charge, or seeking to intervene in a proceeding pending before the Commission, shall make a declaration under oath or affirmation that it has complied with the requirements of said sections. In the event of failure to comply with 456 CMR 16.05 the Commission may compel such compliance by appropriate order. (1) Whenever a party to collective bargaining negotiations challenges the negotiability of a written proposal submitted to it by the opposing party, either party may petition the Commission for an advisory ruling to determine whether the challenged proposal is within the scope of mandatory negotiations as defined in M.G.L. c. 150E, s. 6. The party petitioning for an advisory ruling shall simultaneously serve one copy of the petition upon the respondent or the respondent's attorney or representative. The filing of a petition pursuant to this section shall not affect either party's obligation to bargain under the Law. (2) When a party petitions for an advisory ruling, it shall file an original and four copies of such petition providing the Commission with the following information: (a) The full name and address of the petitioner; (b) The full name and address of the petitioner's attorney or representative; (c) The name and address of the respondent; (d) The name and address of the respondent's attorney or representative; (e) The text of the disputed proposal; (f) A concise statement as to what aspect of the disputed proposal has been challenged and the substance of the challenge; (g) Whether the parties are in negotiations, mediation or fact finding; and, (h) Why an evidentiary hearing is not required. (3) The respondent shall within ten days of service of the petition by the petitioner file an original and four copies of a response providing the Commission with the following information: (a) Whether the information in the petition required by 456 CMR 16.06(2) is accurate and, if not, the reasons therefor. (b) Whether the respondent considers the issuance of an advisory ruling appropriate and, if not, the reasons therefor. (4) The Commission shall determine whether a petition presents an issue appropriate for an advisory ruling. If the petition is granted, the Commission may allow the following: (a) the filing of stipulations of facts; (b) the filing of briefs and/or; (c) oral argument. (5) The Commission may render, after the filing of briefs or oral argument, if any, its advisory ruling upon the issues involved or otherwise dispose of the petition. (6) In any proceeding under M.G.L. c. 150E, s. 11 which is based in whole or in part on the subject matter of proceedings under 456 CMR 16.06, the record made under 456 CMR 16.06 shall be made a part of the Section 11 proceeding. Whenever, pursuant to the provisions of M.G.L. c. 23, s. 9R or M.G.L. c. 30A, a rule-making hearing is held by the Commission, the following procedural rules apply to the extent required by M.G.L. c. 30A. (1) The Commission will provide public notice of the proposed rules as required by M.G.L. c. 30A. Persons desiring to be heard with respect to proposed standards, rules or regulations including employers, employee organizations and members of the public are requested to appear at the designated time and place. A record of each such hearing will be kept. (2) Interested parties may be required to submit written statements regarding proposed standards, rules or regulations and such questions as they may have in advance of the hearing date and the time for such questions and responses may be limited by the Commission. (3) Such questions as interested parties may have should be submitted in advance, whether or not the submitting party wishes to appear, since questions to witnesses may only be put by the Commission or its agents. The order of presentation at the hearing will be as follows: (a) The Commission will present the proposed standards, rules or regulations and an explanation thereof. (b) Persons requesting the opportunity to speak, and who at the same time submit four copies of a memorandum outlining their respective positions, will each be afforded no more than 15 minutes to make an opening statement, in the order in which such requests are received by the Executive Secretary of the Commission, provided such requests are received five days in advance of the hearing. Each request to speak must contain an estimation of the amount of time required to make a further presentation following opening statements, if desired, and a justification therefor. (c) Following the opening statements, persons who complied with the provisions of 456 CMR 16.07(3)(b) may be allowed additional time for a further presentation, at the discretion of the Commission, in the order followed for the opening statements. (d) Other persons who request to speak, prior to or during the course of the hearing, may do so subject to the availability of time and to the Commission's discretion. (4) The Commission may limit presentation which are redundant, irrelevant or repetitious. Written statements or memoranda may be submitted for consideration by the Commission within seven days after the close of a hearing or such further time as, upon written application, the Commission shall allow. (5) Except to the extent that such waiver or modification may be inconsistent with the law, any of the procedures described herein relating to the conduct of a hearing may be waived or modified by the Commission to prevent undue hardship or manifest injustice or as the expeditious conduct of business so requires. (6) A copy of
M.G.L. c.
150E and a copy of the proposed standards, rules or regulations
shall be made available for inspection at the Boston office of the
Commission and appropriate notice of any hearing given, in accordance
with the requirement of 16.08: Compliance with Enforcement of Commission Orders (1) When a party requests the Commission to seek enforcement of any order issued by the Commission or a member or agent of the Commission, the party so requesting shall provide the Commission the following information, in writing: (a) The name and address of the party requesting enforcement; (b) The name and address of the requesting party's attorney or representative, if any; (c) The name and address of the party alleged to be in non-compliance with an order of the Commission or of a member or agent of the Commission; (d) The name and address of the alleged non-complying party's attorney or representative; (e) The Commission case number and text of the specific order or portion thereof which the requesting party claims has not been complied with; and, (f) A statement as to what facts cause the requesting party to believe that there has been non-compliance with the specific order described in 456 CMR 16.08(1)(e). Such statement shall be supported by affidavits made by individuals with personal knowledge, signed under the penalties of perjury. (2) The party requesting the Commission to seek enforcement of an order shall serve a copy of its request on the opposing party or its attorney or representative, if any. (3) The party alleged to be in non-compliance with an order of the Commission or a member or agent of the Commission shall, within ten days of service of the request for enforcement, or within such other time as the Commission shall establish, file an original and four copies of the response, providing the Commission with the following: (a) A stipulation that the information in the request for enforcement is accurate; or, (b) If it is contended that the information is not accurate, an explanation of the nature of any alleged inaccuracy and the reasons therefore. Such reasons shall be supported by affidavits made by individuals with personal knowledge, signed under the penalties of perjury, specifying the steps taken to fully comply with the orders or portions thereof of the Commission or any member or agent. (4) In the event of the failure of the party alleged to be in non-compliance to respond to the request for enforcement or in the event of admission of non-compliance or in the event that the information provided in support of compliance is insufficient, the Commission may institute appropriate enforcement proceedings. (5) If the Commission determines that: (a) the party requesting compliance has failed to provide the information in 456 CMR 16.08(1); (b) the party alleged to be in non-compliance has provided sufficient information to warrant a conclusion that appropriate compliance has occurred; or, (c) that no further action is necessary; the Commission may decline to institute enforcement proceedings. (6) If the Commission determines that there is a genuine dispute as to compliance, it may order that a hearing be held to determine whether compliance has occurred. At any hearing concerning the alleged non-compliance, the party required to comply with the Commission's order shall have the burden of proving such compliance by a preponderance of the evidence. The provisions of 456 CMR 13.00 et. seq. shall govern the proceeding insofar as applicable. (7) (a) Upon determination that a party is in non-compliance with an order of the Commission or of a member or agent thereof, the Commission may institute appropriate proceedings for enforcement of the order. (b) If the Commission, after consideration of the evidence and arguments of the parties, judges that the purposes of the Law would not be effectuated by instituting proceedings for enforcement, it may decline to institute proceedings for enforcement and shall so notify the parties. (8) The party requesting compliance may be required to provide the Commission with assistance, including the furnishing of affidavits, witnesses and documents in preparation for an enforcement proceeding and may be required to bear the expenses associated therewith. (9) If, following receipt of a final court judgement enforcing a Commission order, the Commission declines to seek execution of the court judgement the Commission's declination shall not preclude the party who desires such execution from seeking it independent of the Commission. |
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