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457 Code of Massachusetts Regulations (CMR) |
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2.00: RULES FOR INTEREST MEDIATION, FACT-FINDING AND INTEREST
ARBITRATION IN DISPUTES INVOLVING PUBLIC EMPLOYERS AND PUBLIC EMPLOYEES;
PRIVATE SECTOR INTEREST MEDIATION
M.G.L. c. 30A and M.G.L. c. 150E, s. 9, provide that the Board of Conciliation and Arbitration (hereinafter the Board) can adopt such rules as may be required to regulate the conduct of mediation and fact-finding proceedings in public employment, including state, county, municipal, and district government. Public policy and the success of the Board's mission require that the Board and its employees maintain a reputation for impartiality and integrity. Pursuant to M.G.L. c. 150, s. 10A, and M.G.L. c. 150E, s. 9, any person acting as a mediator, including a fact-finder or interest arbitrator, will not be required by any administrative, arbitration, or non-criminal judicial tribunal to disclose any files, records, documents, notes, or other papers or be required to testify with regard to any information obtained while functioning in a mediatory capacity. 2.03: Initiation of Interest Mediation and Fact-Finding (1) Petition for Mediation and Fact-Finding. If a public employer and an employee organization have negotiated for a reasonable period of time and an impasse exists over one or more issues arising out of the negotiations, the public employer, the employee organization, or the parties jointly, may file a Petition for Mediation and Fact-Finding with the Board (MBCA FORM F-1). If the petition is being brought unilaterally, then the petitioning party shall cause a copy of the petition to be served on the principal representative of the other party in accordance with the provisions of this subparagraph. The party or parties requesting mediation and fact-finding shall mail the original petition and one copy, signed by the petitioning party or parties, to:
Upon receipt, the Board will stamp the petition with the date of receipt. If the petition is filed by FAX, the petitioner shall also immediately mail the original, signed petition and a copy of the pertinent collective bargaining agreement to the Board in the manner set forth above. (2) Unilateral Petitions. A petitioning party proceeding unilaterally must serve the petition on the principal representative of the other party by first-class mail, postage prepaid. The petition must state in the appropriate place that a copy of the petition has been served on the other party in accordance with these Rules. Failure to so state will suspend the processing of the petition. 2.04: Voluntary Interest Mediation At any time during bargaining, whether or not a Petition for Mediation and Fact-finding has been filed, an employee organization or a public employer may request mediation assistance in resolving a collective bargaining dispute. The Board will provide mediators for this purpose. 2.05: Appointment of a Mediator (1) Investigation. Upon receipt of the petition, the Board shall commence an investigation to determine if the parties have negotiated for a reasonable period of time and if an impasse exists. The Board will notify the parties of the results of its investigation within 10 days of the filing of the petition if it finds that the parties are not at impasse. Failure to notify the parties within ten days shall be taken to mean that an impasse exists. (2) Appointment. Within five days of the determination of an impasse, the Board will promptly appoint a mediator to assist the parties in the resolution of the impasse. (3) Selection. The mediator may be appointed from the staff of the Board unless the parties have stated in the Petition for Mediation and Fact-Finding that they jointly request that the Board appoint an outside mediator. If the parties request an outside mediator they shall specify on the Petition for Mediation and Fact-Finding the name, address, and telephone number of the person so selected. If the parties jointly request the appointment of a particular staff mediator, due consideration will be given to such request. (4) Disqualification or Withdrawal of the Mediator. Prior to accepting an appointment, the mediator is required to disclose to the Board any circumstances likely to create a presumption of bias, or which the mediator believes might disqualify him or her as an impartial mediator. (5) Fees. There will be no cost to the parties for a staff mediator. The cost of an outside mediator, selected by the parties, will be equally divided between the parties unless they agree otherwise. The function of a mediator is to assist employers and employee organizations in reaching a voluntary agreement. A mediator may hold separate or joint meetings for this purpose. The mediator shall consult with each party concerning the time, date, and place of each mediation session. However, the mediator retains ultimate control over the scheduling of mediation sessions. Pursuant to M.G.L. c. 150E, s. 9, the mediator is empowered to order the parties to provide specific representatives authorized to enter into a collective bargaining agreement to be present at meetings held for the purpose of resolving the impasse and negotiating such an agreement. There shall be no public access to mediation sessions. After a reasonable period of mediation, the staff or outside mediator shall report in writing to the Board the results of his or her efforts to resolve the impasse. This confidential report will contain the following information: (1) The names of the parties; (2) A statement of the dates of the first contacts with both the employer and the employee organization; (3) A brief description of the unresolved issues which existed at the beginning of the mediation effort; (4) A statement of the issues that have been resolved through the mediation effort; (5) A statement of the issues that are still unresolved, if any; and (6) A recommendation as to whether the Chairman of the Board should invoke fact-finding. 2.09: Designation of a Fact-Finder (1) Appointment by the Board. If the mediator's report (457 CMR 2.08) reveals that an impasse continues to exist, the Board shall send written notice to both parties informing them that mediation has not resolved the impasse and that the Board intends to act upon the petition for mediation and fact-finding by appointing a fact-finder. Promptly thereafter, the Board will appoint a fact-finder from its list of qualified individuals. (2) Selection by Alternative Means. If the parties jointly agree to select the fact-finder in an alternative manner, they must jointly inform the Board before the Board appoints a fact-finder. The parties must also inform the Board of the name, address, and telephone number of the fact-finder so selected. (3) Letter of Appointment. After a fact-finder has been selected or appointed, the Board will promptly send a letter of appointment and a copy of the petition to the fact-finder. Copies of the letter will be sent to both parties. The fact-finder is required to promptly notify the Board whether he or she accepts the appointment. (4) Disqualification or Withdrawal of the Fact-Finder. If the fact-finder has represented an employer or an employee organization within the last 12 months, the appointment will be absolutely revoked by the Board. Moreover, the fact-finder is required to disclose to the Board and the parties any circumstances likely to create a presumption of bias or which the fact-finder believes might disqualify him or her as an impartial fact-finder. Following such a disclosure, the Board will revoke the fact-finder's appointment unless both parties waive this presumptive disqualification. If a fact-finder is disqualified, resigns, dies, or withdraws from his or her duties, the Board will appoint another fact-finder in accordance with 457 CMR 2.09(1). 2.10: Withdrawal of Fact-finding Petition A fact-finding petition may be withdrawn by the petitioning party in the case of a unilateral filing, or by agreement of both parties in the case of a joint filing, at any time prior to the appointment of a fact-finder. After the appointment of a fact-finder, a fact-finding petition may be withdrawn only by joint agreement of the parties. The parties will compensate the fact-finder for such services as he or she performed in accordance with 457 CMR 2.17. 2.11: Fact-finder's Responsibilities (1) Authority. The appointed fact-finder will have the authority and responsibility for the conduct of the fact-finding proceedings, and will have sole discretion in deciding any issues of procedure. The fact-finder shall immediately advise the Board if a work stoppage has occurred or is imminent. (2) Scheduling of Conferences and Hearings. The fact-finder shall consult with each party concerning the time, date, and place of each meeting or hearing. The fact-finder shall make an effort to expedite the process. The fact-finder will be sole judge of scheduling, and his or her ruling as to time, date, place, adjournment, or continuance of any meeting or hearing will be final and binding. Within a reasonable period of time prior to any hearing, the fact-finder shall serve upon each of the parties and the Board, by first class mail, postage prepaid, a written notice of the time, place, and date of such hearing. 2.12: Mediation during Fact-Finding (1) Authority. The fact-finder or mediator has the authority to mediate the dispute. (2) Mediation Proceedings. When acting as mediator, the fact-finder may hold separate or joint meetings with the parties. There shall be no public access to mediation sessions. (3) Report to the Board. If the dispute is settled through mediation by the fact-finder, the fact-finder shall promptly notify the Board of the date and terms of the settlement. 2.13: Hearing before the Fact Finder; Subpoenas (1) Proceeding in the Absence of a Party. Fact-finding may proceed in the absence of a party who, after notice given in accordance with 457 CMR 2.11, fails to appear for a conference or hearing or to obtain a continuance. The fact-finder may choose not to base the report solely upon the presentation of the appearing party. If any party to the dispute fails to appear or to cooperate with the fact-finder, the fact-finder may determine what further evidence is required and may obtain and use any evidence deemed relevant. The fact-finder shall disclose to the appearing party what evidence he or she intends to use and shall give the appearing party an opportunity to respond to such evidence. (2) Waiver of Fact-Finding Hearing. The parties may agree to waive the fact-finding hearings. The fact-finder is authorized to issue the report on the basis of whatever documents and stipulations are submitted. (3) Representation. Any party may be represented by counsel or other person of its choosing. Such counsel or representative has exclusive authority to present that party's case. (4) Third Party Intervention. The fact-finder has authority to decide, in consultation with the parties, whether to permit third party intervenors to file any statements, memoranda, or briefs. (5) Order of Proceedings. The fact-finder will: (a) Obtain from the parties a statement of the issues in dispute; (b) Determine the order in which the parties present their cases. In the case of a unilateral petition, the petitioning party will ordinarily present its case first; (c) Afford each party a full and fair opportunity to present all relevant evidence. (6) Fact-Finder's Authority to Issue Subpoenas and Administer Oaths. The fact-finder shall have the authority, upon delegation of the Board, to administer oaths, to take the testimony of any person under oath, and to issue subpoenas to compel the attendance of witnesses or the production of documents (MBCA Form CA5). A request for a subpoena will be allowed unless it is overbroad, oppressive, or otherwise legally defective. (7) Waiver of Objections. Any party to a fact-finding hearing who fails to make a timely objection, as determined by the fact-finder, to an infraction of these rules will be deemed to have waived that objection. (8) Briefs. Upon the close of the hearings each party has the right to make an oral argument or to file a brief. The time limits on submission of briefs will be established by the fact-finder after consultation with the parties. Should the parties wish to make oral arguments, the order of proceeding will be at the discretion of the fact-finder. (1) Form and Contents. After the close of the hearing and the submission of briefs, if any, the fact-finder will prepare, sign, and date a written fact-finding report. It should include: (a) a statement of the issue(s); (b) the findings of fact regarding the issue(s); (c) a statement of the recommendation for each issue; (d) the rationale for the recommendation reached on each issue; and (e) a summary cover sheet containing a complete statement as to the fact-finder's recommendations on all issues. (2) Service of the Report. The fact-finder must send, by certified mail, two copies of the fact-finding report to the Board and one copy to the counsel or representative of each party to the dispute. (3) Clarification of Report. One or both parties may request that the fact-finder clarify any recommendation in the fact-finding report. This request must be received by the Board within seven days of the date of the report. The party(ies) making this request must also send a copy of the request to the fact-finder. The fact-finder will attempt to dispose of such request within ten days of the Board's receipt of the report. The fact-finder must promptly determine whether the clarification is warranted and then notify the parties and the Board in writing or by conference of the disposition of the request for clarification. (4) Action on Report. If the parties fail to notify the Board as to the disposition of the fact-finder's report within ten days after the Board's receipt of the report, the Board will assume that no agreement between the parties has been reached on the issues in dispute. (5) Publication of the Report. If the impasse remains unresolved ten days after the Board's receipt of the fact-finder's report, the Board will make it public. 2.15: Termination of Fact-Finding Unless the parties agree otherwise, the fact-finder will perform no further service in connection with the dispute once the fact-finding report and clarification, if any, have been served. The fact-finder will keep the Board informed of his or her activities and will notify the Board promptly of any settlement of the dispute and of the terms of the settlement. 2.16: Mediation after Fact-Finding If the parties are unable to come to agreement after the receipt of the fact-finder's report, a staff mediator may be appointed to assist them in resolving the dispute. 2.17: Compensation of Fact-Finder The fact-finder will be entitled to the compensation rate contained in his or her resume on file with the Board, for each day or portion thereof spent in hearing, preparation, and issuance of the fact-finder's report, including clarification, if any, and in mediation. The fact-finder will also be entitled to reimbursement for necessary and ordinary expenses. The costs for fact-finding will be equally divided between the parties unless they agree otherwise. The fact-finder's bill showing the amount payable by each of the parties must accompany the final fact-finding report. The fact-finder may submit interim bills to the parties in the course of the proceedings, and copies of such interim bills must also be sent to the Board. The parties shall make payment directly to the fact-finder. 2.18: Certification of Completion of the Collective Bargaining Process Either or both parties may request the Board to certify to the parties that the collective bargaining process, including mediation, fact-finding, or arbitration, if applicable, has been completed. If the Board determines that the dispute resolution mechanisms provided for in M.G.L. c. 150E, s. 9 have been exhausted, it will certify to the parties that the collective bargaining process has been completed. 2.19: Voluntary Interest Arbitration Upon joint request of the parties, the Board will administer any written and duly authorized agreement to enter into final and binding interest arbitration of a collective bargaining dispute. 2.20: Private Sector Interest Mediation Upon request, the Board may appoint a mediator to assist in the resolution of a private sector interest mediation dispute. If any of 457 CMR should be declared invalid by a final order or decree of a court with proper jurisdiction, such invalid provisions or rules will be severed. |
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