A. Unfair labor practice procedures

Information on procedures and services regarding public employee collective bargaining.

1. Initiation of Unfair Labor Practice Cases

a. Prefiling Assistance/Officer of the Day

The DLR provides assistance to the public through its officer of the day. DLR agents are available once a week on Thursday afternoon from 1:00 to 5:00 p.m. to answer inquiries and assist members of the public in filing Prohibited Practice Charges (Charge). The DLR agents answer public inquiries regarding the DLR and the laws it enforces, but at no time provide legal advice.

b. Filling Out the Charge

A Charge must be in writing and signed by the party making the Charge and include a declaration that it is signed under the penalties of perjury and that its contents are true and correct to the best of his or her knowledge and belief. Parties must use DLR Charge forms. Charges challenging the amount or the validity of an agency service fee are filed on a separate form.

A Charge must contain the following information:

• The full name and address of the individual, employer, employee, or employee organization making the Charge and his or her official position, if any.
• The full name and principle place of business of the employer or employee organization against whom the Charge is made (Respondent).
• An enumeration of the subdivision of the Law claimed to have been violated and a clear and concise statement of all relevant facts which cause the Charging Party to believe that the Law has been violated.
• Agency Service Fee Charges must also include the date on which the Employee Organization made a written demand for payment of the service fee, the amount of the regular membership dues, the amount of the service demanded and the beginning and expiration dates of the collective bargaining contract under which the service fee was demanded.
• Agency Service Fee Charges that challenge the amount of the service fee must also state whether the charging party has placed the disputed amount of the service fee into a joint escrow account. If the charging party has deposited the amount of the disputed service fee in a joint escrow account, evidence that the account has been established must be submitted with the Charge. If the charging party has not deposited the amount of the disputed service fee in a joint escrow account, a statement explaining why it has not must be included with the Charge.

c. Time Limit for Filing Charges

1. The Charging Party must submit a Charge on the DLR’s Charge of prohibited practice form with the DLR within six months from the date the Charging Party knew or should have known of the alleged prohibited practice, unless good cause is shown.
    
2. Any employee required to maintain union membership as a condition of employment who files a Charge pursuant to M.G.L. c. 150A, s. 6A, must file such Charge no more than 15 days after notice that the union has requested the employee’s discharge or other adverse action for failure to maintain union membership.

d. Filing a Charge

The DLR encourages the parties to file Charges electronically. There are two ways to electronically initiate a case at the DLR and links to both of them can be found on the DLR’s website.

Parties may also file Charges by hand-delivery, mail delivery or facsimile transmission. Charge forms can be found on the DLR’s website and are available at the DLR.

e. Service of a Charge

The Charging Party is responsible to serve the Respondent at the same time the Charge is filed with the DLR. At the time of filing, Parties are required to provide a certificate of service or other indication of service.

Parties who file electronically on the DLR website will be offered the opportunity to automatically serve the Respondent.

f. Case Docketing

When the DLR receives the Charge, the docketing staff assigns the Charge a case number. If the Charging Party is a union, the docketing staff also reviews DLR records to determine whether the union is in compliance with M.G.L. c. 150E, Sections 13 and 14. The Charging Party is notified that if the DLR authorizes the issuance of a complaint or notice of hearing then no complaint issues until the employee organization has complied with the applicable provisions of M.G.L. c. 150E, Sections 13 and 14 and 456 CMR 15.05(8).

The Director then reviews the Charge to ensure that it complies with the filing requirements described above and to review whether the case should be considered for deferral to the parties’ grievance and arbitration contractual provision. For those cases that meet the filing requirements and are not eligible for deferral, the Director then classifies the Charge using the DLR’s Impact Analysis System.

1. Procedure should the Charging Party fail to allege specific facts.

The Charging Party is required to allege specific facts in the Charge so that the Respondent may fully respond to the allegations. If the DLR determines that the Charge fails to provide sufficient information, the DLR sends a letter asking the parties to show cause (show cause letter) why the Charge shouldn’t be dismissed for failure to provide sufficient information. The DLR promptly considers the responses to the show cause letter, including amplification of the Charge by the Charging Party, and determines whether the Charge should be dismissed.

2. Procedure should the DLR determine that the case should be considered for deferral.

a) If the Charging Party checked the box on the Charge form indicating that a grievance concerning the subject of the Charge has been filed, the DLR sends a show cause letter to the parties asking them for their position on whether the DLR should defer the case to arbitration. [1] The parties are asked to address whether the grievance(s) were filed prior to the expiration of the collective bargaining agreement, whether the grievance remains pending, and any other issues the parties feel are relevant to the deferral determination.

b) If it appears from the face of the Charge that the allegations are essentially questions of contract interpretation, the DLR sends a show cause letter to the parties asking for their position on whether the DLR should defer the case to arbitration, even if the Charging Party did not indicate on the Charge that a grievance had been filed. The show cause letter in these cases also asks the employer whether it is willing to waive any timeliness defense in order to allow for deferral.

c) The DLR will give the parties 30 days to respond to the show cause letter. If the Charging Party fails to respond within 30 days, the DLR, after sending one reminder letter, dismisses the Charge with prejudice and without further notice. If the Respondent fails to respond, the DLR makes a deferral determination without the Respondent’s response.

d) The DLR promptly considers the responses to the show cause letter to determine whether the allegations in the Charge should be deferred to arbitration. In making this determination, the DLR considers if: 1) the issues posed by the Charge are essentially a question of contract interpretation; 2) the statutory issues raised by the case are well settled; and 3) the resources of the DLR and the parties can be conserved through deferral. [2]

e) The DLR promptly notifies the parties of the DLR’s deferral decision.

When the DLR determines to defer a case to arbitration, the DLR retains jurisdiction over the allegations in the Charge in order that it may act under any of the following circumstances: a) if the grievance is not resolved with reasonable promptness by the grievance-arbitration process; b) if the grievance and arbitration procedures have not been fair or regular; or c) if the result of the grievance and arbitration procedure is repugnant to 150E. The parties are also directed to notify the DLR within 30 days of the steps taken to comply with the Notice of Deferral, including forwarding the name of the arbitrator selected and the date of the scheduled hearing. The parties are further directed to forward to the DLR copies of any arbitration awards rendered within ten days of its issuance.

When the DLR determines that a Charge should not be deferred to arbitration, it then is handled as a regular Charge under the DLR’s Impact Analysis classification system.

f) After an arbitrator award issues, if the Charging Party believes the Charge should be reinstated, it may request that the DLR review the arbitrator’s award. The request must be filed within ten days of the arbitrator’s issuance of the Award and follow DLR filing requirements.[3] The request must address whether the arbitration process was fair and regular, whether the unfair labor practice allegations in the Charge were considered by the arbitrator, and whether the award is clearly repugnant to 150E.[4]

g) Classification of the Charge

The Director reviews any Charge that is not subject to a show cause letter to determine whether it should be considered a Level I or Level II case, using the DLR’s Impact Analysis Classification system. Cases where resolution of the dispute has the greatest urgency are processed first and the time frame for completion of the investigation is 14 to 45 days, depending on the level of urgency. Level II cases with less urgency are investigated between 30 and 90 days from the filing date. Although it is difficult to provide an exhaustive list of Level I and Level II cases, as a general rule the following types of cases are considered Level I cases: all representation-related cases, post-election cases, all blocking Charges (blocking a JLMC, Section 9 or representation Petition), 10(a)(3), (4) or (5) cases involving the permanent or indefinite loss of employment, 10(a)(6) and 10(b)(3) allegations, and cases involving novel legal issues that impact a significant number of cases.

h) Initial Notice to Parties of Pending Charge

After the initial docketing procedures discussed above, the DLR sends the parties a Notice of Investigation, notifying the parties of the pending Charge, its Impact Analysis classification, and the scheduling procedures.

1)    Level I scheduling procedures.

The parties are required to confer and agree to three proposed dates for the investigation of the Charge that fall within thirty days of the Notice of Investigation. The Charging Party is required to notify the DLR of those dates within five days of the Notice of Investigation. If after reasonable attempts to secure dates, the Charging Party notifies the DLR that the parties are unable to agree on a date to schedule the investigation, the DLR schedules the investigation and notifies the parties of same. If the Charging Party fails to submit dates or submit a written statement explaining why it has been unable to submit mutually agreed upon dates, the Charge is dismissed, absent extraordinary circumstances.

2)    Level II scheduling procedures.

The parties are required to confer and agree to three proposed dates for the investigation of the Charge that fall within thirty to ninety days of the Notice of Investigation. The Charging Party is required to notify the DLR of those dates within ten days of the Notice of Investigation. If the Charging Party fails to submit dates or submit a written statement explaining why it has been unable to submit mutually agreed upon dates, the Charge is dismissed, absent extraordinary circumstances.

i) Respondent’s Response

The Respondent has the right to file an answer to the Charge within fourteen days after it receives notice of the Charge. The response should be labeled “Respondent’s Response” and include the docket number.

j) Amendments to the Charge

The Charging Party may amend a Charge as of right before the DLR receives Respondent’s Response. A Charging Party seeking to amend a Charge after Respondent has filed its response must first seek permission from the DLR to amend the Charge.

The DLR does not allow a Charging Party to amend a Charge if the amendment does not relate to the underlying allegations.

A Charge is amended by typing “Amended” before the word Charge on the regular Charge form and by rewriting the contents of the Charge to include the desired changes.

k) Postponements

As detailed in 456 CMR 12.07, requests for postponement of an investigation are not granted unless good and sufficient cause is shown and the following requirements are met:

1. The request must be in writing to the Director or Hearing Officer.
2. The grounds for the request must be set forth in detail.
3. The requesting party must specify alternate dates for rescheduling the investigation.
4. The position of all parties concerning both the postponement request and the proposed alternate dates must be provided in the request.
5. Copies of the request must be served contemporaneously on all parties and that fact must be noted on the request.
6. The request must be signed by the party making the request.
7. In considering a postponement request, a “good and sufficient” reason may include a showing to the satisfaction of the DLR that a postponement results in the settlement of the case.
8. Absent compelling circumstances, no request for postponement is granted on any of the three days immediately preceding the investigation date.
9. Absent compelling circumstances, the DLR does not grant more than one postponement request.

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[1] Cohasset School Committee, MUP-410 (1973); M.G.L. c. 150E, Section 11 as amended by Chapter 145 of the Acts of 2007 (the Law or 150E).

[2] Town of Ware, 17 MLC 1565 (1991) (citing Whittier Regional School Committee, 13 MLC 1325 (1986)).

[3] 456 CMR 12.12.

[4] Boston School Committee, 1 MLC 1287 (1975) (adopting Spielberg Mfg. Co., 112 NLRB 1080 (1955)); City of Cambridge, 7 MLC 2111 (1981).

2. The Investigation

The DLR investigates prohibited practice Charge allegations through an In-Person Investigation procedure.

a. Purpose of the Investigation

The purpose of the In-Person Investigation is to provide the parties a full and fair opportunity to present to the Hearing Officer the relevant facts and law regarding the prohibited practice Charge so that the Hearing Officer can determine whether or not there is probable cause to believe that the Respondent violated the Law as alleged.

b. Role of the Hearing Officer

The Hearing Officer is an impartial Hearing Officer. At the investigation the Hearing Officer explains to the parties the purpose of the investigation. Hearing Officers does not provide advice to the parties and must remain neutral. Hearing Officers identify and discuss the legal theories and underlying facts upon which the theories are based with the parties at the investigation. This may be particularly true for individual charging parties who may not have any expertise in the Law and DLR procedures. If the Hearing Officer believes that an allegation is mistakenly alleged, the Hearing Officer provides the Charging Party the opportunity to withdraw or amend the allegations, if the facts are clearly identified in the Charge.

c. Representation by Counsel

Any party required to be present at the In-Person investigation may be represented by counsel or by an authorized representative, if they choose.

d. Burden of Proof

The Charging Party presents its case first and has the burden of presenting sufficient facts to support a finding of “probable cause” to believe that the Respondent violated the Law as alleged.[5]

e. Documents

The DLR does not require parties to submit documents as part of their case, but if a party wishes to submit documents, they should try their best to do so at least three days before the investigation. Additionally, the written material should be submitted in electronic form by e-mailing the documents to the DLR at [e-mail] and served on all other parties in accordance with 456 CMR 12.02. While affidavits are considered, they are not encouraged, as the parties should bring all individuals with first-hand knowledge of the relevant facts to the investigation.

f. Default Procedure

1. Charging Party fails to appear

After waiting for 30 minutes, and after the Hearing Officer attempts to contact the Charging Party, should the Charging Party fail to appear for an In-Person investigation on the pre-scheduled day, the Hearing Officer issues a show cause letter, seeking the Charging Party’s position on case dismissal. If in its show cause response, the Charging Party demonstrates to the DLR sufficient cause for its failure to appear, it is the Charging Party’s responsibility to reschedule the In-Person investigation, using the DLR’s scheduling directions. If in its show cause response the Charging Party fails to demonstrate sufficient cause for failure to appear, the Charge is dismissed. The Charging Party may appeal the DLR’s decision to dismiss the Charge.

2. Respondent fails to appear

After waiting for 30 minutes, and after the Hearing Officer attempts to contact the Respondent, should the Respondent fail to appear for an In-Person investigation on the pre-scheduled day, the Hearing Officer proceeds with the investigation, allowing the Charging Party to present its case. After the investigation, the Hearing Officer issues a show cause letter, seeking the Respondent’s position on closing the record. If in its show cause response, the Respondent demonstrates to the DLR sufficient cause for its failure to appear, it is the Respondent’s responsibility to reschedule the In-Person investigation, using the DLR’s scheduling directions. If in its show cause response, the Respondent fails to demonstrate sufficient cause for its failure to appear, the record is closed and the Hearing Officer makes his or her probable cause determination based on the evidence presented.

g. What to Expect at the Investigation

Although any party may appear through counsel or an authorized representative, the Hearing Officer expects the parties to bring individuals with first-hand knowledge of the facts and circumstances related to the Charge.

Because this is an investigation and not a hearing, the witnesses are not sworn and there is no direct or cross examination. Rather, the parties have the opportunity to present information themselves and in response to the Hearing Officer’s questions. A party may seek clarification or ask questions of the other party, but only through the Hearing Officer.

Generally, each party is limited to 45 minutes to present information, and 15 minutes for rebuttal, if necessary.

In most cases, the Hearing Officer closes the record immediately after the investigation. In the rare case where the Hearing Officer determines that additional information is necessary to make a probable cause determination, the Hearing Officer may keep the record open after the investigation and accept written submissions. This is not encouraged, however, since parties are expected to provide all facts, evidence and legal theories at the investigation. Should the Hearing Officer permit/request written submissions, the parties then receive a specific date by which to provide such written submissions to the Hearing Officer.

h. Motions

Parties must file all motions made before or after an In-Person Investigation in writing in accordance with 456 CMR 12.12. The DLR reviews all such motions and either rule on the motion in the first instance or, where appropriate, defers the motion to the Hearing Officer.

i. The Record

The record of the In-Person Investigation includes the Charge, Respondent’s answer, if any, evidence presented at the investigation, and any written submissions presented before, during, or with permission, after the investigation.

j. Post-Investigation Activity

1. Dismissing the Charge

The Hearing Officer may dismiss the Charge if the Hearing Officer finds no probable cause to believe that a violation of M.G.L. c. 150E has occurred or if he or she otherwise determines that further proceedings would not effectuate the purposes of M.G.L. c. 150E. 456 CMR 15.04

The Charging Party may request review of the Hearing Officer’s dismissal decision, by filing a request for review with the CERB within ten days from the date of receipt of the Hearing Officer’s dismissal decision. The request must contain a complete statement setting forth the facts and reasons upon which such request is based.[6] The CERB does not consider new information or case theories presented for the first time on review.

The record for reconsideration includes the documents referenced in Section II(A)(2)(i) and the dismissal letter.

Within seven days of service of the request for review, any other party to the proceeding may file a response with the CERB.[7]

2. Deferring the Charge to Arbitration

The Hearing Officer may determine that the Charge should be deferred to the parties’ contractual grievance and arbitration provision. This occurs if, after the investigation, it appears to the Hearing Officer that the allegations raised in the Charge are essentially questions of contract interpretation.[8]

If the Hearing Officer makes this determination, the DLR issues a letter explaining the deferral decision and the parties’ rights and obligations concerning this decision. See Procedures, Section 6(b) (2).

The DLR does not consider a deferral decision to be a final order. Accordingly, the initial decision to defer is not subject to CERB review. However, a party may seek reconsideration of the Hearing Officer’s deferral decision to the Director. The Director reviews the decision to ensure that the DLR’s deferral policy is consistently applied.

After an arbitration award issues, if the DLR determines not to reinstate the case, the Charging Party may ask the CERB to reconsider the deferral decision, by filing a request for review with the CERB within ten days from the date of receipt of the DLR’s decision not to reinstate the Charge. The request must contain a complete statement setting forth the facts and reasons upon which such request is based.

Within seven days of service of the request for review, any other party to the proceeding may file a response with the CERB.[9]

      3. Referring the Charge to Mediation

The Hearing Officer may determine that the allegations in the Charge are best handled through the DLR mediation procedure.

If the Hearing Officer makes this determination, the DLR issues a letter explaining the referral decision and the parties’ rights and obligations concerning this decision. The DLR also appoints a mediator to the case, who provides the parties with dates for the mediation.

If the parties are unable to reach a settlement agreement on their own or through mediation, the DLR reinstates the Charge and the Hearing Officer issues the probable cause determination at that time. If the Hearing Officer referred the case before the In-Person investigation was completed, the DLR asks the parties to schedule a date for an In-Person Investigation, following the DLR’s In-Person scheduling procedures, Section II(A)(1)(h).

The DLR does not consider a decision to refer a case to mediation to be a final order. Accordingly, the decision to refer a case to mediation is not subject to CERB review.

The Hearing Officer may refer charges involving police or fire fighters to the JLMC to promote resolution of the issues described in the charge.

     4. Issuing a Complaint or Partial Dismissal.

If the Hearing Officer determines that there is probable cause to believe that Respondent violated the Law as alleged, the Hearing Officer prepares a complaint. Should the Hearing Officer believe that there is probable cause to believe that Respondent violated the Law with respect to some of the allegations, but not others, the Hearing Officer issues one document that includes a complaint and a partial dismissal decision.

If the Charging Party is a union, the Hearing Officer checks the DLR records to be sure that the employee organization has complied with the applicable provisions of M.G.L. c. 150E, Sections 13 and 14 and 456 CMR 15.05 (8). If the Hearing Officer discovers that the employee organization has not complied with this statutory mandate, the DLR sends a letter to the union informing the union of its obligations and that no probable cause determination can issue until these obligations are met.

The Charging Party may request review of the Hearing Officer’s partial dismissal decision by filing a request for review with the CERB within ten days from the date of receipt of the Hearing Officer’s partial dismissal decision. The request must contain a complete statement setting forth the facts and reasons upon which such request is based.[10] The CERB does not consider new information or case theories presented for the first time on review.

The record for reconsideration includes the documents referenced in Section II(A)(2)(i) and the partial dismissal letter.

Within seven days of service of the request for review, any other party to the proceeding may file a response with the CERB.[11]

k. Expected Timing of Probable Cause Determination

The Hearing Officer issues a determination following the Impact Analysis guidelines. Cases where resolution of the dispute has the greatest urgency are classified as Level I cases and generally are completed within 14 to 45 days of filing the Charge, depending on the level of urgency. Level II cases with less urgency will generally be investigated and completed between 30 and 90 days from the date the investigation is completed.

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[5] M.G.L. c. 150E, Section 11; 456 CMR 15.07.

[6] 456 CMR 15.05 (9).

[7] 456 CMR 15.05 (9).

[8] 456 CMR 15.05 (1).

[9] 456 CMR 15.05 (9).

[10] 456 CMR 15.05 (9).

[11] 456 CMR 15.05 (9).

3. Complaint Litigation

a. Pre-hearing

1. Classification of the Complaint

After a Hearing Officer prepares the Complaint, the Director reviews the Complaint to determine classification and scheduling issues. She does not review the Complaint for substance.

Cases may change classification status after investigation. Accordingly, similar to the procedure outlined in the Charge Classification description discussed in Section II(A)(1)(g) using the DLR’s Impact Analysis Classification system, the Director determines whether the hearing is classified as a Level I or Level II hearing. Cases where resolution of the Complaint allegations have the greatest urgency are heard first. The DLR schedules Level I hearings within three to six months from when the Complaint issues, depending on the level of urgency and the decision typically issues within three months from when the record is closed. The DLR schedules Level II hearings within six months to a year from when the Complaint issues and the decision typically issues within six months from when the record is closed.

2. Mediation

Mediation is mandatory for all Level I cases. The mediation is generally scheduled to take place on the same day as the pre-hearing conference and is conducted prior to the pre-hearing conference. The parties must bring to the mediation individuals with settlement authority, or if that is impossible, ensure that those with settlement authority are available by telephone that day. Although not required in Level II cases, mediation is strongly encouraged, and the DLR provides mediators to assist the parties when they wish to mediate cases.

3. Notice of Complaint

Once the Director classifies the Complaint, the DLR sends the parties the Complaint, together with a Notice of Complaint and Procedure for Scheduling Hearing.

a) Level I Hearing Scheduling Procedures

The parties are required to confer and agree to three proposed dates for the hearing that fall within the period specified on the scheduling form. It is the responsibility of the Charging Party to initiate discussions with the Respondent and to provide the DLR the agreed-upon dates within seven days of the Notice of Complaint and Scheduling Procedure. If after reasonable attempts to secure dates, the Charging Party notifies the DLR that the parties are unable to agree on a date for the hearing, the DLR schedules the hearing and notify the parties of same. If the Charging Party fails to submit dates or a written statement explaining why the parties have been unable to agree upon dates, the DLR dismisses the charge and withdraws the Complaint, absent extraordinary circumstances.

b) Level II Hearing Scheduling Procedures

The parties are required to confer and agree to three proposed dates for the hearing that fall within the period specified on the scheduling form. It is the responsibility of the Charging Party to initiate discussions with the Respondent and to provide the DLR the agreed-upon dates within 30 days of the Notice of Complaint and Scheduling Procedure. If after reasonable attempts to secure dates, the Charging Party notifies the DLR that the parties are unable to agree on a date for the hearing, the DLR schedules the hearing and notifies the parties of same. If the Charging Party fails to submit dates or a written statement explaining why the parties have been unable to agree upon dates, the DLR dismisses the charge and withdraws the Complaint, absent extraordinary circumstances.

4. Amendments to the Complaint

a) Filing the Motion

Within ten (10) days after the DLR issues a complaint, if a party believes that the Complaint should be amended to correct an error or omission; the party files a Motion to Amend Complaint with the Investigating Hearing Officer who issued the Complaint. A party does not have a right to appeal the Hearing Officer’s decision to issue a Complaint or to file a motion to include new allegations it failed to raise at investigation. Should a party file a Motion to Amend Complaint after the hearing opens, it is up to the Hearing Officer to determine whether to Amend the Complaint or not or whether to remand the Complaint to the Investigating Hearing Officer.

b) Appeal

A Hearing Officer’s dismissal of a pre-hearing Motion to Amend is subject to Appeal to the CERB, but under no circumstances does the CERB consider such an Appeal if it is filed less than fourteen days before hearing. The CERB rules on all such motions within seven days.

Appeals of a Hearing Officer’s decision concerning Motions to Amend made at hearing should be filed as Interlocutory Appeals.[12]

5. The Answer

As described in 456 CMR 15.07 (1), the Respondent files an Answer to the Complaint or Amended Complaint within ten days from the date of service, unless otherwise notified by the DLR. The Respondent specifically admits, denies, or explains each of the facts alleged in the Complaint, unless the Respondent is without knowledge, in which case the Respondent so states, such statement operating as a denial. All allegations in the Complaint or Amended Complaint not specifically denied or explained in an Answer filed, unless the Respondent states in the Answer that it is without knowledge, is deemed to be admitted to be true and is so found by the DLR, unless good cause to the contrary is shown.

6. Notice of Hearing

After the Charging Party submits the three agreed-upon dates for hearing or an explanation concerning why the parties have been unable to reach agreement, the Director assigns a Hearing Officer to the case. The Hearing Officer then chooses the date(s) for hearing from the submitted dates and picks a pre-hearing conference date. Once the Hearing Officer chooses the pre-hearing conference and hearing dates, the DLR then issues a Notice of Hearing to the parties, ordering the parties to attend a hearing and pre-hearing conference.

7. Unilateral Settlement

The DLR encourages the parties to settle cases at every case stage, including before hearing. In addition to mandatory mediation in Level I cases, and offering the parties DLR mediators to assist them at every stage of their case, a Respondent willing to fully remedy the Complaint allegations may propose a unilateral settlement to the Director. The details of the DLR’s Unilateral Settlement Procedure can be found here. www.mass.gov/orgs/department-of-labor-relations

8. Petitioning the CERB to Hear a Case in the First Instance

Either party to the case or both jointly, may file a Petition asking the CERB to hear the case in the first instance. The CERB may grant such a Petition in its discretion, and for good cause shown.[13]

Generally, the CERB does not grant such a Petition unless the parties submit a stipulated record, in which the parties have agreed to all material facts, and exhibits in the case, and the CERB can issue a decision without a hearing.

9. Stipulated Records

Occasionally, the parties may agree on all case facts, but not on the applicable law. In this situation, the parties are strongly encouraged to seek permission from the Hearing Officer to stipulate to all facts and receive a decision without a hearing. If the parties wish to receive a decision from the CERB in the first instance, as mentioned above, they may seek permission from the CERB to submit a stipulated record and receive a CERB decision without a hearing. The parties who wish to submit a stipulated record in lieu of a hearing may be required to enter into a written Statement of Stipulated Facts and Exhibits that includes:

(a) A statement of agreement that the parties agree to waive a hearing;

(b) A statement reciting the agreed contents of the entire record;

(c) A statement of agreement that any conflict of fact between the statement of Stipulated Facts and Exhibits and the findings contained in the Complaint of Prohibited Practice or within the Respondent’s Answer, shall be resolved in favor of the Statement of Stipulated Facts and Exhibits; and

(d) A statement that the parties agree not to submit additional facts or exhibits.

The parties signing such a waiver do not waive their right to object to relevancy of any stipulated facts.

10.  Motions

All motions made prior to or subsequent to the hearing are filed in writing with the Hearing Officer and states the order or relief applied for and the grounds for the motion. (See 456 CMR 12.12 for filing instructions). Within seven days of service of the motion, any other party to the proceeding may file a response with the Hearing Officer, unless otherwise directed by the Hearing Officer. The Hearing Officer may defer ruling on any motions until the close of the hearing, and may direct the parties to proceed with the hearing while the motion is pending. All motions made at the hearing are stated orally, unless otherwise directed by the Hearing Officer and are included in the hearing record.[14]

11. Joint Pre-Hearing Memorandum

The DLR requires parties to engage in pre-hearing discussions in order to narrow the issues for hearing and to enable the parties to agree to as many stipulations as possible. As they are instructed to do in the Notice of Hearing, the parties are required to submit a Joint Pre-Hearing Memorandum (Joint Memo) no later than three days prior to the scheduled pre-hearing conference. The Joint Memo must include the following information:

a) Proposed stipulations of fact.

b) List of agreed-upon joint exhibits and copies of the exhibits.

c) List of prospective witnesses, including the witness’ title, the specific subject matter on which the witness will testify and the expected duration of their testimony.

d) List of documents each party intends to introduce at the hearing.

e) List of any subpoena issues (including who may be subpoenaed and a brief description of the documents/testimony requested).

f) Brief description of any pending motions.

g) Any other pertinent information.

The parties must cooperate fully in drafting the Joint Memo. The Charging Party is responsible for producing the initial draft and forwarding same to the Respondent. The Joint Memo is signed by both parties or their legal representatives. If the parties are unable to file a Joint Memo, each party files its own memorandum and includes a reason for the failure to file jointly.

The Joint Memo and all proposed exhibits should be e-filed before the pre-hearing conference to the DLR at its filing address [e-mail].

12. The Pre-Hearing Conference

The Hearing Officer holds a pre-hearing conference (Conference) to ensure that the time spent in the upcoming hearing is used as efficiently as possible.[15] At the Conference, the Hearing Officer explores potential issues, including all possible stipulated facts, joint exhibits, and subpoena issues. The parties are strongly encouraged to agree to as many facts in the form of stipulations as possible to enable the parties to use hearing time for witness testimony on disputed facts.

13. Subpoenas

A party may request the issuance of a subpoena to compel the attendance of witnesses or the production of books, records, documents or correspondence at a hearing.

For details on Subpoena requests, see 456 CMR 13.14 (2), (3) and (4).

For details on Motions to Quash a Subpoena see 456 CMR 13.14 (5).

For information on failing to comply with a Subpoena see 456 CMR 13.14 (6).

14. Postponement Requests

Requests for postponement of a pre-hearing conference or hearing are generally treated the same as investigation postponements discussed above in Section II(A)(1)(k) and detailed in 456 CMR 12.07. Postponement of a pre-hearing conference or hearing is not granted unless good and sufficient cause is shown and the following requirements are met:

a) The request must be in writing to the Director or Hearing Officer.

b) The grounds for the request must be set forth in detail.

c) The requesting party must specify alternate dates for rescheduling the hearing or conference.

d) The position of all parties concerning both the postponement request and the proposed alternate dates must be provided in the request.

e) Copies of the request must be served contemporaneously on all parties and that fact must be noted on the request.

f) The request must be signed by the party making the request.

g) In considering a postponement request, “good and sufficient” reason may include a showing to the satisfaction of the Hearing Officer that a postponement results in the settlement of the case.

h) Absent compelling circumstances, no request for postponement is granted on any of the three days immediately preceding the conference or hearing date.

i) Absent compelling circumstances, the DLR does not grant more than one postponement request in the case.

b. Hearing

1. Burden of Litigating the Complaint Allegations

Although the DLR issues the Complaint in its own name and must authorize all Complaint allegations, the Charging Party is responsible for litigating the case.

2. Burden of Proof

The facts that must be proven to support or defend against the Complaint depend on the allegations contained in the Complaint. Generally, the Charging Party has the burden to prove, by a preponderance of the evidence, any allegation that the Respondent has denied. For a fuller discussion of the elements of different types of charges, see the Summary of Decisions Section, below.

3. Role of the Hearing Officer

The Hearing Officer conducting the hearing assists the parties by answering questions about the DLR procedures, though the Hearing Officer cannot act as the representative of a party or give legal advice. The Hearing Officer may ask questions of the parties and witnesses to clarify testimony, issues, or positions.

The role and authority of the Hearing Officer are detailed in 456 CMR 13.03 (2) and 456 CMR 13.07.

4. Exhibits

a) DLR Exhibits

The Record always includes the underlying Prohibited Practice Charge, the Complaint, Notice of Hearing, and the Answer. These documents are marked as DLR Exhibits 1-4.

b) E-Filing Exhibits

Documents or records expected to be introduced in evidence should be e-filed before hearing to the DLR at its filing address [e-mail]. The Hearing Officer may ask the parties to e-file additional exhibits after the hearing is completed. Parties should also bring sufficient hard copies to the hearing for the Hearing Officer and all other parties and a witness copy.

5. Reporter and Transcript of Testimony

The Hearing Officer records the hearing and offers the parties a digital recording or computer disc of the recording.

Parties who wish to pay for the services of a stenographer to record and transcribe a hearing may request permission of the Hearing Officer. A party may further request that the Hearing Officer designate a written transcript of the proceeding as the official record subject to the following requirements listed in 456 CMR 13. 12:

a) The transcript is made available to all parties.

b) All have the opportunity to object to the accuracy of the transcript.

c) A copy of the transcript is made available for purchase to all other parties for a reasonable fee.

d) A copy of the transcript is provided without charge to the DLR.

6. Open to the Public

Except in extraordinary circumstances, a hearing is open to the public.

7. Opening Statements

The parties are given the opportunity to present opening statements to the Hearing Officer to set the context of the case, explain why certain elements and evidence are relevant to the case, and offer the party’s legal theories on the Complaint allegations. The Respondent may choose to wait to present its opening statement until before it presents its case.

8. Witness Testimony Live and Video

Witnesses are examined orally under oath or affirmation, except if they reside outside of the Commonwealth or because of illness or other cause are unable to testify at the DLR. In such situations, the DLR may direct that the testimony be taken by video.[16] A party requesting video testimony must provide all necessary video conferencing equipment. That party may also be required to retain a stenographer to ensure that the video testimony is accurately recorded.

In determining whether video testimony is appropriate the DLR considers the following:

a) Significance of the testimony.

b) Proximity of witness to the hearing site.

c) Circumstances leading to the request.

d) Number, length, and types of documents to be moved into evidence through witness testimony.

e) Number of witnesses who would testify by video and expected length of testimony.

f) Availability and adequacy of video conferencing equipment.

g) Position of the parties.

9. Sequestration of Witnesses

The Hearing Officer may grant a party’s motion to issue a Sequestration Order or may on her own order sequestration. This means that all persons who are going to testify, with certain exceptions, may be present in the hearing room only when they are giving testimony. In addition, witnesses may not discuss testimony with any other witnesses or potential witness during the course of the hearing. Parties can select one individual to remain in the hearing, even if they are a potential witness, if they deem the person essential to the presentation and management of the case.

10.  Examination of Witnesses and Introducing Exhibits

The Charging Party presents its evidence first, by calling its witnesses and submitting any documentary evidence that it has to support the allegations in the Complaint. The Respondent has the opportunity to cross-examine the Charging Party’s witnesses. The goals of cross-examination include impeaching the witness’ testimony and gaining admissions of fact. The Charging Party should “rest” its case in chief after it is done calling witnesses, subject to its right to present rebuttal witnesses after the Respondent has finished calling witnesses and rests its case.

Rebuttal testimony is limited to testimony offered to refute evidence provided by the Respondent’s witness. It may not be used to offer evidence that the Charging Party should have offered in its case in chief. Surrebuttal testimony is limited to testimony offered by Respondent to refute evidence that Charging Party offered in Rebuttal testimony.

Voir dire is an examination into the authenticity of an exhibit that an opposing party offers and the competence of the witness to authenticate the exhibit or to be an expert witness. Voir dire is used to explore whether to object to the witness or document. Counsel may use leading questions in voir dire examination, but must limit the questions to authenticity and are not allowed to ask general cross examination questions. Voir dire must be conducted at the time an exhibit is offered into evidence and is untimely after the exhibit is accepted into the record.

11.  Objections

A party should object to questions posed on direct or cross examination to keep improper evidence from being included in the record and considered, and to make a record for the Hearing Officer and possible appellate review. Objections are made in a timely manner by voicing the objection as soon as the question is posed. The Hearing Officer rules on all objections at the hearing. A party may file an Interlocutory Appeal of a Hearing Officer’s ruling on the objection.[17] The CERB applies an abuse of discretion standard when ruling on interlocutory appeal.[18]

12.  The Rules of Evidence

The Hearing Officer is not bound by the technical rules of evidence prevailing in courts.[19] However, the Hearing Officer uses these rules as a guide to ensure that only relevant and reliable evidence is introduced at hearing.

13.  Oral Arguments or Briefs

The parties are entitled to present oral arguments at the close of the hearing or more typically, with the Hearing Officer’s permission, to file briefs. Briefs must be filed within ten days after the close of the hearing, unless the Hearing Officer directs the parties to do otherwise.[20]

Any request for additional time to file a brief must be filed with the DLR no later than three days before the date the brief is due.[21]

No reply briefs may be filed without permission.[22]

14. Motion to Reopen the Hearing

A Hearing Officer has discretion to reopen a hearing and receive further evidence prior to the issuance of a final decision, but is only done so in extraordinary circumstances.

Absent extraordinary circumstances, a record is not reopened.[23] The reason for this standard is to protect the finality of the proceedings and to conserve limited public resources. To do otherwise would discourage parties from securing and presenting all available evidence at the hearing.

The party seeking to reopen the hearing must show that it was excusably ignorant of the existence of the evidence at the time of the hearing despite the exercise of due diligence.[24]

c. Post-Hearing

1. The Record

The Hearing Officer only considers the case record in deciding the case. The record consists of the evidence submitted at the hearing submitted through joint stipulations, exhibits (including DLR exhibits) or witness testimony. Evidence previously submitted at the investigation is not considered part of the record at the hearing unless it is independently submitted at the hearing.

2. The Decision

The Hearing Officer’s ultimate decision on the merits is based on full consideration of the record. After the close of hearing and submission of briefs, the Hearing Officer issues a decision that sets forth findings of fact, legal conclusions and a remedial order, should the Hearing Officer find a violation of the Law.[25]

As mentioned above in the “Classification of the Complaint” section, in Level I cases the DLR anticipates the decision to issue within three months from when the record is closed. In Level II cases, the DLR anticipates the decision to issue within six months from when the record is closed.

The Hearing Officer’s decision is final and binding on the parties unless within ten days of notice of the decision, one of the parties requests CERB review.[26]

3. Appeal of Hearing Officer’s Decision

A party must file with the DLR its notice of appeal of a Hearing Officer’s decision, together with a supplementary statement within ten days of receiving notice of the decision. The Notice of Appeal must be in writing and contain the case name and number, the date of the Hearing Officer’s decision and a statement that the party requests CERB review. Supplementary statements must state with specificity the basis of the appeal.

The record on CERB review consists of the Hearing Officer’s decision, the parties’ supplementary statements, portions of the record before the Hearing Officer as are necessary to resolve factual disputes and such other evidence from the hearing as the CERB may require.[27]

For detailed information on Hearing Officer Decision appeals to the CERB, see 456 CMR 13. 19. Failure to provide the information described in this section may result in summary dismissal of the appeal.[28]

The CERB’s Appeal decision is final and binding on the parties. Filing a Judicial Appeal of the CERB’s decision and order does not excuse compliance with the CERB’s order.[29]

4. Judicial Appeal

Any party seeking review of a CERB decision may institute proceedings for judicial review in the Appeals Court within thirty days after receipt of said order.[30]

The appealing party need not file a Notice of Appeal with the Appeals Court. Rather, to pursue an appeal, the appealing party must file a Notice of Appeal with the DLR within thirty days from when it receives the CERB decision.

Once the DLR receives the Notice of Appeal, it sends the appealing party a letter explaining next steps, including the appealing party’s obligations with respect to producing a transcript of the hearing. Failure to provide a transcript leaves the DLR unable to assemble the record. Accordingly, after proper notice is given to the parties, should the appealing party fail to provide a transcript, the DLR may dismiss the appeal.

The DLR is considered the lower court for purposes of the Appeals Court process and is responsible for assembling the record. The Chief Counsel notifies the appealing party when the record is in fact assembled so that the appealing party may docket the appeal in the Appeals Court. It is incumbent upon the appellant to enter the case in the Appeals Court within ten (10) days of receiving the Notice of Assembly of Record.[31] If the appellant does not take the required steps to enter the case in the Appeals Court, the DLR issues a notice requesting that the appellant show cause why the DLR should not dismiss the appeal with prejudice and permanently close the file for failure to comply with Mass. R.A.P. 10(a)(1).[32] If the appellant fails to respond accordingly, the appeal is dismissed with prejudice.

5. Mediation

The parties are encouraged to settle cases at all stages, including post-hearing. The Chief Counsel will identify cases that are likely to settle at the Judicial Appeals stage and inform the DLR Mediation Manager, so that she may assign a mediator to pursue mediation. The parties are also encouraged to contact the DLR if they believe mediation will be helpful.

6. Compliance and Enforcement

After a decision is final and binding, if the Hearing Officer or CERB ordered the Respondent to remedy the prohibited practice, it is Respondent’s responsibility to inform the DLR of the steps that it has taken to comply with the remedial order.

If a Charging Party claims that a Respondent has not done everything that the decision ordered, the Charging Party should notify the DLR in writing, following the process outlined in 456 CMR 16.08.

Based on the information provided, the DLR determines whether to institute enforcement proceedings in Superior Court, decline to seek enforcement, or in the case of a genuine dispute as to compliance, order that a compliance hearing be held. At any hearing concerning the alleged non-compliance, the party required to comply with the DLR’s order has the burden of proving such compliance by preponderance of evidence.

For detailed information about the parties’ responsibilities with respect to compliance and enforcement see 456 CMR 16.08(7) and (8).
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[12] 456 CMR 13.04.

[13] M.G.L. c. 150E, Section 11(f).

[14] 456 CMR 13.08.

[15] 456 CMR 13.07 (7).

[16] 456 CMR 13. 10.

[17] 456 CMR 13.04.

[18] City of Cambridge, 30 MLC 31 (2003); Commonwealth of Massachusetts, 7 MLC 1477  (1980).

[19] 456 CMR 13. 03.

[20] 456 CMR 13. 15(1) and (2).

[21] 456 CMR 13. 15(3).

[22] 456 CMR 13. 15(4).

[23] Commissioner of Administration and Finance Alliance, 21 MLC 1198 (1994) (citing City of Haverhill, 17 MLC 1215 (1990)).

[24] City of Haverhill, 17 MLC 1215 (1990); Boston School Committee, 17 MLC 1118  (1990); Boston City Hospital, 11 MLC 1065 (1984).

[25] M.G.L. c. 150E, Section 11; 456 CMR 13. 03 (1) (k).

[26] 456 CMR 13. 19 (1).

[27] 456 CMR 13.19(4).

[28] 456 CMR 13.19(3)(c).

[29] M.G.L. c. 150E, Section 11.

[30] M.G.L. c. 150E, Section 11.

[31] Mass. R.A.P. 10(a).

[32] See also Mass. R.A.P. 10(c).