If the Division finds probable cause to believe that a prohibited practice has occurred that may interfere with the conduct of a valid election, the representation case will be held in inactive status, subject to being reactivated after the prohibited practice charge is resolved. See, Commonwealth of Massachusetts, 17 MLC 1650 (1991). If the prohibited practice charge is dismissed or otherwise resolved without a remedy that the employer bargain with an incumbent union, the petitioner may file a request that the Division reactivate the representation petition. However, if the prohibited labor practice charge results in a Division order or a settlement agreement requiring the employer to bargain with the incumbent union, the Division will dismiss the representation petition. Commonwealth of Massachusetts, 17 MLC 1659-1660.
The Division has followed the criteria established by the National Labor Relations Board for determining whether the conduct alleged in a prohibited labor practice charge might interfere with a valid election under 456 CMR 14.12(1)( c). Commonwealth of Massachusetts, 21 MLC 1713, 1717 (1995). Those criteria are as follows: 1)the character and scope of the charge and its tendency to impair the employees' free choice; 2)the size of the working force and the number of employees involved in the events on which the charge is bases; 3)the entitlement and interest of the employees in an expeditious expression of their preference for representation; 4)the relationship of the charging parties to labor organizations involved in the representation case; and 5) the showing of interest, if any presented in the representation case by the charging party; and the timing of the charge.
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