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457 Code of Massachusetts Regulations (CMR) |
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3.00: RULES FOR GRIEVANCE MEDIATION AND ARBITRATION IN THE PUBLIC AND
PRIVATE SECTORS
457 CMR 3.00 will govern the procedures for mediation and arbitration of grievances between parties whenever in their collective bargaining agreement(s) or by submission they have provided for mediation and/or arbitration through the Board of Conciliation and Arbitration. 457 CMR 3.00 will apply to the mediation and arbitration of grievances arising in the public sector pursuant to M.G.L. c. 150E s. 8, and in the private sector pursuant to M.G.L. c. 150. Public policy and the success of the Board's mission require that the Chairman and employees of the Board maintain a reputation for impartiality and integrity. Pursuant to M.G.L. c. 150, s. 10A, and M.G.L. c. 150E, s. 9, a mediator, including an arbitrator acting in a mediatory capacity, 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. 3.03: Voluntary Grievance Mediation At any time, an employee organization and employer may request mediation assistance for problems arising from the interpretation or application of terms of a collective bargaining agreement. This includes preventive mediation prior to the filing of a grievance and grievance mediation. A party making such a request must file a petition with the Board (MBCA Form F-2M). The original petition and one copy, signed and dated by the petitioning party(ies), should be sent to:
(1) Appointment. Upon receipt of the Grievance Mediation Petition, the Board will promptly ascertain whether the parties agree to grievance mediation. If the parties agree, the Board will appoint a staff mediator. Alternatively, should the parties request an outside mediator, the Board will assist them by providing a list from its panel of qualified individuals. (2) Fees. There will be no cost for a Board staff mediator. The cost of an outside mediator, however, will be equally divided between the parties, unless they agree otherwise. The function of the mediator is to assist the parties in reaching a voluntary settlement of the dispute prior to grievance arbitration. A mediator may hold separate or joint conferences for this purpose. An agreement to mediate, however, will in no way alter a scheduled arbitration date unless both parties agree to postpone the arbitration. At no time shall a grievance mediator act as arbitrator of any case he or she has mediated, nor shall a grievance mediator discuss any aspect of the grievance mediation process with the appointed arbitrator. 3.06: Admissibility of Grievance Mediation in Arbitration No discussions, offers of compromise, or proposed settlements generated during grievance mediation shall be admissible as evidence in an arbitration proceeding. 3.07: Initiation of Grievance Arbitration (1) Petition for Arbitration. An employer or an employee organization, or both, may petition the Board to initiate grievance arbitration (MBCA Form F-2A) as provided for in any collective bargaining agreement or other agreement between them. Pursuant to 457 CMR 3.03 through 3.06, at any time prior to the arbitration hearing, the parties may also jointly request the Board to appoint a mediator to aid them in resolving the grievance in advance of the arbitration proceeding. If the petition is being brought unilaterally, then the petitioning party shall cause a copy of the petition to be served by first-class mail, postage prepaid, on the principal representative of the other party in accordance with the provisions of this subparagraph. 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 shall suspend the processing of the petition. The party or parties requesting grievance arbitration shall mail the original petition, signed and dated by the petitioning party(ies) and a copy of the pertinent collective bargaining agreement 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) Fee for Grievance Arbitration. The fee for arbitration before the Board shall be $100.00, of which $50.00 shall be paid by the employee organization and $50.00 shall be paid by the employer. 3.08: Appointment and Qualifications of the Arbitrator (1) Appointment of a Single Neutral Arbitrator. The Chairman of the Board may appoint a single neutral arbitrator, who will hear and determine the case promptly. (2) Appointment of a Tripartite Board. The Chairman of the Board may appoint a tripartite board to hear and determine grievance arbitration cases on a case-by-case basis. The Chairman shall be the neutral member of this board. One of the other members shall be a representative of labor and one a representative of employers of labor. Prior to appointing these representatives, the Chairman will consult with the employee organization and employer involved in the case to determine whether they want a representative to sit on the case and, if so, what representative they recommend. (3) Disqualification or Withdrawal of the Arbitrator. Prior to accepting an appointment, the neutral arbitrator is required to disclose to the Board any circumstances likely to create a presumption of bias, or which the arbitrator believes might disqualify him or her as an impartial arbitrator. If the arbitrator is disqualified or withdraws, the Board will appoint another arbitrator in accordance with the provisions of 457 CMR 3.08(1) and (2). 3.09: Scheduling of Hearing by the Board (1) Scheduling. Upon receipt of the petition, the Board will serve upon each of the parties a written notice of the date and time of the hearing to be held at the offices of the Board in either Boston or Springfield. The notice will be given reasonably in advance of the hearing. The Board will make every effort to hold the hearing promptly after it receives the petition. (2) Continuances. Where both parties request a continuance of the hearing to another time and date, the Board will generally accept such requests. If one party requests a continuance of the hearing, the Board may for good cause shown and, where possible, after consultation with the other party, continue the hearing to another time and date, set at the discretion of the Chairman. Notice of a new hearing date and time will be given in accordance with the provisions of 457 CMR 3.09(1). Any party may request the Board to issue a subpoena 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. The party requesting the subpoena shall be responsible for service of the subpoena. 3.11: Hearing Before the Arbitrator (1) Proceeding in the Absence of a Party. Arbitration may proceed in the absence of a party who, after notice given in accordance with 457 CMR 2.09, fails to appear or to obtain a continuance. The Board shall investigate the circumstances surrounding a party's failure to be present, and, under extraordinary circumstances, may reopen the record, subject to rebuttal by the appearing party. (2) Representation. A party may be represented by counsel or other person of its choosing. Such counsel or representative has the exclusive authority to present that party's case. (3) Last Chance Grievance Mediation. Directly preceding the scheduled arbitration hearing and upon agreement of the parties, a mediator may assist the parties in a final attempt to settle the grievance. The conduct of such mediation shall be governed by 457 CMR 3.03 through 3.06. (4) Conduct of Proceedings. The arbitrator shall have the authority and responsibility for the conduct of the arbitration proceedings and will have sole discretion in deciding any issues of procedure. The arbitrator will: (a) Attempt to obtain from the parties a joint statement of the issue(s) in dispute; (b) Determine the order of presentation; (c) Record the date, time, and place of each hearing, and the names of the counsel or representatives and of all others present; (d) Administer oaths or affirmations; (e) Afford each party a full and fair opportunity to present relevant evidence and argument; (f) Require the parties to submit additional evidence that the arbitrator deems necessary to an understanding and determination of the dispute; and, (g) Rule on the admissibility of evidence. (5) Transcript or Recording of Proceedings. A party wishing a stenographic record of the proceedings shall make arrangements directly with a stenographer and shall notify the other party of such arrangements in advance of the hearing. The requesting party or parties shall pay the cost of such record. The other party may purchase a copy from the stenographer. Such transcript shall be the official record of the proceedings, and a copy shall be provided to the arbitrator free of charge. The arbitrator's copy of the transcript will be made available to the parties for inspection at a time and place determined by the arbitrator. The arbitrator, but not the parties, may make an unofficial recording of the proceedings strictly for his or her own use. (6) Waiver of Objections. Any party to an arbitration hearing who fails to make a timely objection, as determined by the arbitrator, to an infraction of these rules will be deemed to have waived that objection. (7) Closing of Hearings. When the arbitrator determines that all of the evidence has been offered, he or she shall declare the hearing closed. The arbitrator may reopen the record for good cause shown. Parties have the right to make oral arguments or to submit written briefs. The time limits on submission of briefs will be established by the arbitrator after consultation with the parties. Should the parties wish to make oral argument, the arbitrator will determine the order of proceeding. (8) Submission of Briefs. Any briefs submitted in arbitration proceedings before the Board should be submitted to the Board in duplicate, together with a pre-addressed and postage paid envelope addressed to the representative or counsel of the opposing party. The Board will convey all briefs. The arbitrator shall issue an award within a reasonable period of time after the hearing has been closed and any briefs have been filed. The Board will simultaneously send by first class mail, postage prepaid, a copy of the award and any accompanying opinion to the counsel or representative of each party. 3.13: Clarification, Modification, or Correction of the Award (1) Standards. (a) Clarification. The arbitrator may clarify the award if it is so indefinite or incomplete that it cannot be performed. (b) Modification or Correction. The arbitrator may modify or correct the award if there is: an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in an award; or if the award is imperfect in a matter of form not affecting the merits of the controversy. (2) Procedure. (a) Joint Request. A joint request for clarification, modification, or correction of an award must be submitted to the Board within a reasonable time after the requesting parties have received the award. The Board will promptly determine whether to grant the request. The Board may call a conference with the parties to consider the request. The Board will then promptly notify the parties in writing of the disposition of the request. (b) Unilateral Request. A unilateral request for clarification, modification, or correction of an award must be submitted to the Board within a reasonable time after the requesting party has received the award. Such a request must be served forthwith upon the opposing party's counsel or representative. The Board will give the opposing party an opportunity to respond or raise objections to the request. Any such response or objection must be received by the Board within a reasonable time after the opposing party has received a copy of the request. The Board shall then determine whether to proceed as set forth in 457 CMR 3.13(1). 3.14: Publication of Award and Opinion The award and opinion of the arbitrator will be treated as a public record and after issuance will be open to public inspection. The Board may have its awards and opinions published unless either party to the proceeding gives written notice to the Board within 30 days of the award that it does not wish to have such award and opinion published. 3.15: Request for Arbitration Before an Ad Hoc Arbitrator The Board will designate an outside arbitrator if so specified in the collective bargaining agreement. If no procedure is specified, the Board will appoint an arbitrator from its list of qualified individuals. The arbitrator so designated should conduct the arbitration proceedings and render an award in accordance with these rules. The compensation of an outside arbitrator will be in accordance with the requirements of 457 CMR 2.17. If any of 457 CMR 3.00 should be declared invalid by any final order or decree of a court with proper jurisdiction, such invalid provision or rule will be severed. |
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