 |
 |
|
 |
457 Code of Massachusetts Regulations (CMR) |
||||||||||||
4.00: CONDUCT OF GRIEVANCE ARBITRATION PROCEEDINGS
4.01: Scope of Rules and Effective Date 457 CMR 4.00 shall govern the procedure for the arbitration of grievances which arise during the life of a collective bargaining agreement wherein the parties have agreed upon the Board of Conciliation and Arbitration (hereinafter the Board) as the arbitration tribunal. This chapter shall apply to the arbitration of grievances arising in either the private sector pursuant to M.G.L. c. 150 or the public sector pursuant to M.G.L. c. 150E s. 8. 457 CMR 4.00 shall become effective as of June 26, 1978 and shall revoke as of said date all grievance arbitration rules previously adopted by this Board. 4.02: Petition to Initiate Grievance Arbitration Before the Board (1) Who May File; When to File; Form; Where to File and Number of Copies; Service on Other Party. (a) Who. A petition to initiate grievance arbitration may be filed by an employer or by a labor organization or by both as the collective bargaining agreement or other agreement between the parties shall provide. In the absence of a controlling provision in the collective bargaining agreement, either party may bring such a petition. (b) When. Such a petition shall be filed in accordance with the time requirements of the collective bargaining agreement between the parties. In the absence of such provision in a collective bargaining agreement, such petition shall be filed within a reasonable period of time. (c) Form. The petition shall be prepared on a form furnished by the Board which appears as 457 CMR 4.90 Appendix. (d) Where; Copies. The original, signed by the petitioner(s) and one copy of said petition, shall be filed with the Board at its offices [at 399 Washington Street, 5th Floor, Boston, MA 02108.] (e) Service. If the petition is being brought unilaterally, then the petitioning party shall cause a copy of said petition to be served on the principal representative of the other party by registered or certified mail. The petitioning party, if proceeding unilaterally, shall state in the appropriate place on the petition that it caused a copy of the petition to be served on the principal representative of the other party in accordance with the provisions of 457 CMR 4.02(1)(e). Failure to so state shall suspend the processing of the petition. Upon receipt, the Board shall stamp the petition with the appropriate date. (2) Contents. The petition shall include the following: (a)The name, address and affiliation of the labor organization involved and the name, address, and telephone number of its principal representative. (b) The name and address of the employer involved and the name, address and telephone number of its principal representative. (c) The nature of the employer's business. (d) If the petition is being brought jointly and if the parties have agreed upon the issue(s), there shall be a brief statement as to the nature of the dispute and a statement as to the issues(s) jointly submitted; otherwise, the moving party shall give a brief statement as to the nature of the dispute and the remedy sought. (e) If the petition is being brought unilaterally, a statement that a copy of the petition is being served in accordance with the procedures contained in 457 CMR 4.02(1)(e). (f) The party(ies) bringing such petition shall sign and date such petition and shall file with the petition a copy of the pertinent collective bargaining agreement. 4.03: Scheduling of Hearing by the Board; Continuances (1) Scheduling. Upon receipt of the petition, the Board shall serve upon each of the parties a written notice of hearing to be held at the offices of the Board at a time and date fixed therein. Such notice shall be given reasonably in advance of such hearing. In cases where the petition has been brought unilaterally, the Board may give notice of hearing by certified mail, return receipt requested. (2) Continuances. Where both parties request a continuance of the hearing to another time and date, the Board shall continue the hearing to such time and date. If one party requests a continuance of the hearing, the Board may for good cause shown and after consultation with the other party, where possible, continue the hearing to another time and date. Notice of a new hearing date and time shall be given in accordance with the provisions of 457 CMR 4.03(1). Every effort shall be made by the Board to hold such hearing seasonably after receipt of the petition. A petition to initiate grievance arbitration may be withdrawn at any time prior to the holding of the arbitration hearing by the petitioning party in the case of a unilateral filing or by agreement of both parties in the case of a joint filing. Upon or after the holding of the arbitration hearing, the petition may be withdrawn only by joint agreement of the parties. 4.05: Hearing Before the Board (1) Proceeding in the Absence of a Party. Arbitration may proceed in the absence of any party who, after notice given in accordance with 457 CMR 4.03, fails to be present or fails to obtain an adjournment. The Board may choose not to base its award solely upon the presentation of one party; rather, it may afford the defaulting party 14 days from the date of the hearing to submit evidence and argument in writing to the Board with a copy to the other party. If the defaulting party makes no such offer of proof within the time aforesaid, the Board shall decide the case on the evidence and argument before it. If the defaulting party chooses to make such offer of proof, the Board shall afford the other party an appropriate opportunity to make a seasonable response. (2) Counsel or Representative of the Parties. At or before the first hearing conducted by the Board, each party to the dispute shall furnish the Board with a written appearance identifying that party's counsel or representative. Such person or his designee shall have the exclusive authority to present that party's case to the Board, and the Board shall deal with such person as the exclusive spokesman and representative for that party throughout the arbitration proceeding or until it receives notice that some other person shall serve as counsel or representative for a party. (3) Order of Proceedings. The Board shall open the hearing with a reading of the pertinent portions of the petition to initiate grievance arbitration. The petitioning party will ordinarily present its case first, but the Board may vary this procedure. In the case of a petition brought jointly, the Board shall determine the order of proceeding. (4) Record of Proceedings. If one or both parties desirethat a stenographic record of the proceedings be made, that party or both parties, as the case may be, shall contact the Board seven days in advance of the hearing to ask that the Board provide such a service. If the Board provides such a service, transcripts will be provided upon request at an appropriate cost to the requesting party(ies). The Board may on its own motion make a stenographic record of the proceedings. (5) Evidence. Each party shall be afforded full and equal opportunity for the presentation of relevant proofs. The parties may offer such evidence as they desire and shall produce such additional evidence as the Board may deem necessary to an understanding and determination of the dispute. The Board shall rule on the admissibility of the evidence offered. Conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of the counsel or representative of both parties except where one of the parties is in default or has waived its right to be present. (6) Waiver of Objections. Any party to an arbitration hearing who fails to make a timely objection, as determined by the Board, to infraction of these rules shall be deemed to have waived such objection. (7) Closing of Hearings. The Board shall inquire of both parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies, it shall declare the hearings closed, and it shall record the date and time thereof. Upon the close of the hearings each party shall have the right to make an oral argument and/or file a brief with the Board. The time limits on submission of briefs shall be established by the Board after consultation with the parties. Should the parties wish to make oral argument, the Board shall determine the order of proceeding. 4.06: Arbitration Awards by the Board (1) Arbitration Award. After the close of the hearing and the submission of briefs, if any, the Board shall render an award on a form prepared by it. The award shall be decided by majority vote of the Board members; any dissent shall be noted on the award. (2) Time of Award. The Board shall make every effort to render the award within 30 days of the close of the hearings. (3) Opinion. The Board shall make every effort to render an opinion to accompany the award. The opinion shall provide a statement of the rationale by which the result was reached. Dissenting opinions may also be given. (4) Service of Award. The Board shall simultaneously send by mail a copy of its award and accompanying opinion to the principal representative of each party as such name appears on the petition to initiate grievance arbitration or on the appearance form at the time of hearing. (5) Clarification of Award. (a) Request for Clarification. Each party or both parties may request the Board to clarify any aspect of its award provided such request is made within a reasonable time of the date of the Board's award. (b) Procedure in Cases of Joint Request. In cases where the Board receives a joint request from the parties to clarify its award, it shall promptly determine whether any clarification is warranted and shall determine the nature of the clarification, if any, and shall notify the parties in writing of the disposition of the request for clarification. If the circumstances so warrant, the Board may call a conference with the parties to consider the matter of clarification. (c) Procedure in Cases of Unilateral Request. In cases where the Board receives a unilateral request from a party to clarify its award, it shall have the discretion to decide whether to proceed with such request. If it decides to proceed, it shall promptly determine whether the other party has any objection to the request, and if the circumstances so warrant, it may call a conference with the parties to consider the matter of objections and clarification thereafter, the Board shall decide upon the question of clarification and shall promptly notify the parties in writing of the disposition of these issues. (6) Publication of Award and Opinion. The awards and opinions of the Board shall be treated as public records and after issuance shall be open to public inspection by any person. The Board may have its awards and opinions published by any of the publishing services unless either party to the proceeding gives written notice to the Board within 10 days from the date of the award that it does not wish to have such award and opinion published. 4.07: Request for Arbitration Before Ad Hoc Arbitrator In the case of those collective bargaining agreements where the Board is named as the tribunal administering grievance arbitration before ad hoc arbitrators, the Board shall follow the procedure specified in the collective bargaining agreement in the designation of an outside arbitrator. If no procedure is specified in such agreement, the Board shall appoint an arbitrator from the list of qualified persons that it maintains. The arbitrator so designated shall observe in the conduct of the arbitration proceedings and in the rendering of his award the procedures applicable to the Board's handling of such matters as previously spelled out in these rules. The compensation of an outside arbitrator shall be in accordance with the requirements set forth in 457 CMR 2.15 of the Board's Fact Finding Rules. (1) Gender. The masculine gender shall be deemed to denote the feminine or neutral gender, the singular to denote the plural and vice-versa where the context so permits. (2) Days. References to days shall mean calendar days, and time calculations shall commence with the day following notice. The provisions of these rules are severable, and if any of the rules contained herein should be declared invalid by an order or decree of a court with proper jurisdiction and if said order or decree has become final, such invalid provision or rule shall be severed herefrom. (4.10 through 4.89: Reserved) SEE TEXT |
|||||||||||||
|
|||||||||||||