1. Petitions

a. There are five different kinds of Representation Petitions that can be filed at the DLR.

  1. A Union Representation Petition – When employees wish to be represented by a union for the purposes of collective bargaining, a union can file a Union Representation Petition. This Petition can be filed when there has been no prior or current union representation or where employees have union representation but wish to be represented by a different union.
     
  2. Petition for Certification by Written Majority – When employees who wish to be represented by a union for the purposes of collective bargaining, a labor organization can seek to forego a DLR run secret election and can instead seek certification based on a Written Majority Authorization (WMA). This Petition can only be filed when no other employee organization has been, or currently is, recognized or certified as the exclusive representative of the employees.

    For detailed information concerning the DLR’s WMA processing, see Section II(B)(3) below.
     
  3. Petition for Union Decertification – When an employee or employees wish to decertify the incumbent union, the employee or employees can file a Petition requesting that the DLR conduct an election at which employees choose between no union or continued representation by the incumbent union.
     
  4. Employer Petition – An employer may file a representation petition when one or more unions claim to represent a substantial number of employees in a bargaining unit.
     
  5. Unit Clarification Petition – When the employer of one or more unions seek clarification of the bargaining unit placement of certain employees or amendment of an existing certification, the employer or one or more unions may file a Unit Clarification Petition. Individual employees may not file a Unit Clarification Petition.

    For detailed information concerning the DLR’s Unit Clarification processing, see Section II(B)(7) below.
     
  6. Parties petitioning for an add-on election or to sever employees from an existing bargaining unit may use a Representation Petition form. For further analysis of Add-on and Severance petitions, see the Summary of Law Section III(D)(2) below.

b. Filing Representation Petitions

1. The Forms

Petition forms are available on the DLR website (www.mass.gov./lwd/labor-relations/). The Petition must be entirely completed, including Petitioner’s name and address, Certification of Service on all parties, date and signature. For detailed information on filling out the Petition see 456 CMR 14.02456 CMR 14.04 and 456 CMR 14.19.

The Petitioner may file its Petition electronically, however, the showing of interest and evidence of written majority authorization, i.e., authorization cards, may not be filed electronically or by facsimile transmission.[33]

2. DLR Initial Steps

The DLR date-stamps the Petition and all authorization cards when it receives them. The DLR dockets and assigns the Petition a case number. The DLR examines the Petition for apparent defects. If the Petition is materially defective, it sends a notice to the Petitioner. In those cases, a DLR agent is not assigned and no further action is taken on the case unless the Petitioner corrects the defect within the time period for filing. Defects may include an inadequate showing of interest, lack of jurisdiction when apparent from the face of the Petition, or insufficient information on the Petition.

c. Showing of Interest

  1. What is it?

The term “showing of interest” means the percentage of employees in a proposed bargaining unit or a unit deemed to be appropriate who have designated a union as their exclusive representative or have signed a petition seeking decertification of an incumbent union. The showing of interest can be in the form of individual cards or a petition individually signed and dated by the employees, authorizing the named employee organization to represent them for the purpose of collective bargaining or seeking to decertify the incumbent employee organization. Any such cards or petitions must be signed and individually dated by employees within six months of Petition filing.[34] As noted below in the WMA Section, WMA cards are valid for 12 months.[35] The name of the card signer should also be printed so that the signature may be readily recognizable.

As mentioned above, a showing of interest may not be filed electronically or by facsimile transmission.[36]

The number of authorization cards and the identity of the employees who have signed cards or a petition are confidential. The DLR returns the showing of interest to the Petitioner and any Intervenors when the case is closed. See 456 CMR 14.05(3) and Sections II(B)(2)(c)(2) and II(B)(2)(e) for detailed information on Intervention. The DLR does not consider the showing of interest to fall within the public records statute.[37]        

  1. Showing of Interest Required          

Petitioners filing Union Representation Petitions and Union Decertification Petitions are required to file a Showing of Interest when filing a Petition. Unions that wish to intervene in such cases, other than the incumbent union, are also required to file a showing of interest as discussed below. The DLR may require the Employer to submit a payroll or personnel list to assist the DLR in determining whether the Petitioner has provided a sufficient showing of interest.[38]

If the DLR finds that the Petitioner failed to submit a sufficient showing of interest, the DLR notifies it of that finding and allows it 7 days to submit a further showing of interest. If after 7 days, the Petitioner fails to provide a sufficient showing of interest, the DLR may dismiss the Petition.

Within 30 days of the date of the DLR’s Notice of Hearing, other interested unions may file a Motion to Intervene in the Petition. With the exception of an incumbent’s Motion, an intervention motion must be accompanied by the required showing of interest.[39]

If the parties agree to a larger unit than the bargaining unit proposed on the Petition, or the CERB issues a decision and direction of election in a unit larger than that requested by the Petitioner, the Petitioner or an Intervenor must indicate its willingness to participate in such an election. Further processing of the Petition is then conditioned on the Petitioner or an Intervenor having an adequate showing of interest in the enlarged unit. As is the case discussed above, when a Representation Petition is initially filed, the DLR gives the Petitioner and/or the Intervenor seven days to provide a sufficient showing of interest.

a) Union Representation Petition

A Petitioner seeking to represent a proposed bargaining unit of employees who are not currently represented must submit a showing of interest of 30%.[40]

A Petitioner seeking to represent a bargaining unit of employees who are currently represented must submit a showing of interest of 50%.[41]

Should an additional union, other than the petitioning union, wish to intervene in a Union Representation case, it must submit a showing of interest of 10%, together with its Motion to Intervene, although an incumbent union need not submit a showing of interest with its Motion.[42] For more information on Motions to Intervene, see 456 CMR 14.18 and Sections II(B)(2)(c)(2) and II(B)(2)(e) below.

b) Petition for Union Decertification

A Petitioner seeking to decertify the incumbent collective bargaining representative must submit a showing of interest of 50%.[43]

  1. Challenging the Showing of Interest

The sufficiency of the showing of interest is an administrative determination made by the DLR and is not subject to litigation by the parties.[44] However, a party who wishes to challenge the showing of interest may request that the DLR investigate it. When presented with supporting evidence that gives the DLR reasonable cause to believe that the showing of interest may be invalid, the DLR conducts a further administrative investigation.

d. Petition Bars

There are five bars that prohibit the DLR from processing a Representation Petition.

  1. Contract Bar

Except for good cause, the DLR does not process a Petition during the term of a valid collective bargaining agreement unless the Petition is filed no more than 180 days and no fewer than 150 days prior to the termination date of the contract.[45] This is generally referred to as the “open period.”

No collective bargaining agreement operates as a bar for a period of more than three years.[46]

The open period of a Petition filed under M.G.L. c. 150A is no more than 90 days and no less than 60 days prior to the contract’s expiration.[47]

For further information on contracts, see Section III (E)(4)(b) below.

  1. Withdrawal/Disclaimer Bar

Except for good cause, the DLR does not process a Petition in any bargaining unit if, after the approval of a consent election agreement or the close of a hearing, but before the election is held, the Petitioner withdrew from a prior Petition for the same unit within the preceding six months, or disclaimed interest in continued representation of the bargaining unit within the preceding six months, or, withdrew a written majority authorization petition after the designation of a neutral, but before the start of the verification process within the preceding six months.[48]

  1. Election Year Bar

Except for good cause, the DLR does not conduct an election if an election has been conducted among the petitioned-for employees in the previous 12 months, or, if a neutral has conducted a written majority authorization verification process in the previous 12 months. See 456 CMR 14.19 for more detailed information on Written Majority Authorization.[49]

  1. Certification Year Bar

Except for good cause, the DLR does not process a Petition within the 12 month period after the DLR certifies a bargaining representative, either by election or the written majority authorization process.[50]

  1. Recognition Year Bar

Except for good cause, the DLR does not process a Petition for any existing bargaining unit for which a voluntary recognition agreement has been executed in the preceding 12 months. See 456 CMR 14.06(5) for more detailed recognition year bar information.

For further information on employer recognition, see the Green Book legal discussion section below.

e. Written Majority Authorization Bars

  1. Withdrawal Bar

Except for good cause, the DLR does not process a WMA Petition, if within the preceding six months, the Petitioner withdrew a WMA Petition or a Representation Petition in the same or similar bargaining unit, after the selection or designation of a neutral, but before the verification process.

  1. Verification/Election Year Bar

Except for good cause, the DLR does not process a WMA Petition in the same or similar bargaining unit within which a neutral conducted a WMA Authorization Verification in the preceding 12 months, or within which a valid election has been held in the preceding 12 months.

  1. Certification Year Bar

Except for good cause, the DLR will not process a WMA petition in the same or a similar bargaining unit represented by a union certified through a WMA process or a valid election process in which the DLR has issued a certification within the preceding 12 months.

f. Potential Petition Processing Pitfalls and Problems

  1. Deferral to AFL-CIO “no raiding” Procedure

If an employee organization affiliated with the AFL-CIO petitions to represent a bargaining unit currently represented by another AFL-CIO affiliated union, any party may request the DLR to defer processing of the Petition for 30 days to permit the employee organizations to pursue the settlement provisions of the AFL-CIO “no-raiding” procedure.[51]

  1. Blocking Charges

Any party to a Representation Petition may file a motion requesting that a pending prohibited practice charge block an election.[52] The party seeking to block the Petition from going forward must produce evidence that establishes probable cause to believe that the conduct alleged in the prohibited practice charge occurred and violated M.G.L. c. 150E or c. 150A. The party seeking to block processing of the Petition must also establish that the alleged unlawful conduct may interfere with the conduct of a valid election.

For further information on blocking charges, see the Summary of Law Section III(E)(4)(f) below.

________________

[33] 456 CMR 12.12 (5).

[34] 456 CMR 11.03.

[35] M.G.L. c. 150E, Section 1.

[36] 456 CMR 12. 12(5).

[37] M.G.L. c. 4, Section 7, cl. 26.  

[38] 456 CMR 14.05(6).

[39] 456 CMR 14.05(4); 456 CMR 14.18.

[40] 456 CMR 14.05(2).

[41] 456 CMR 14.05(3).

[42] 456 CMR 14.05(4).  

[43] 456 CMR 14.05(3).

[44] Commonwealth of Massachusetts, 10 MLC 1557 (1984).

[45] 456 CMR 14.06(1).  

[46] 456 CMR 14.06(1).

[47] Hudson Bus Lines, 4 MLC 1630 (1977).

[48] 456 CMR 14.06 (2).

[49] 456 CMR 14.06(3).  

[50] 456 CMR 14.06(4).  

[51] 456 CMR 14.17.

[52] 456 CMR 15. 11.

2. Initial Contacts with the DLR

a. Notice of Hearing

Once the DLR determines that the Petitioner has filed the appropriate showing of interest and that there is no impediment to processing the Petition, the DLR assigns a Hearing Officer to the case.

The DLR then issues a Notice of Hearing, informing the parties of the Petition. The Notice of Hearing provides dates for a pre-hearing conference and hearing and the name of the Hearing Officer assigned to the case. The Hearing is scheduled approximately six weeks from the date the Petition was filed. A copy of the Petition is served on all parties with the Hearing Notice.[53]

Despite the Notice of Hearing, the Hearing Officer continually encourages the parties to enter into a Consent Election Agreement.

  1. Employer’s Duty of Neutrality

When a rival union files a petition and proper showing of interest to represent a bargaining unit of employees currently represented by a union, the Petition raises a question concerning representation. Once the Employer receives the DLR’s Notice of Hearing, it is on notice of the rival union’s Petition. The Employer must then maintain strict neutrality, which includes not bargaining with the incumbent union during the pendency of the Representation Petition.[54]

After the DLR issues its Notice of Hearing, the parties should communicate exclusively with the Hearing Officer on all related matters.

b. Employer must post the Notice of Hearing

When the Employer receives the Notice of Hearing, it should post the Notice and the Petition in a place readily accessible to the employees. This is to ensure that employees affected by the filing of the Petition are aware of it.[55]

c. Initial Communications with the Parties

The Hearing Officer generally e-mails the parties asking for information approximately three to five days after the Notice of Hearing issues.

  1. Employer

The Hearing Officer seeks certain information from the Employer concerning the issues raised by the Petition, and copies all parties on the information request. Examples of information the Hearing Office may seek include the following:

  • A list of all positions in the department, school or agency in which the Petitioner is seeking to represent a bargaining unit of employees and an indication of which positions are represented by a union.
  • Current job descriptions for each of the petitioned-for positions.
  • The case numbers and dates of any prior petitions or DLR elections in the petitioned-for bargaining unit.
  • A description of the Employer’s legal position regarding the appropriateness of the petitioned-for bargaining unit, and the factual basis for the position.
  1. Incumbent Union
  • Motion to Intervene

If the Hearing Officer learns that there is an incumbent union representing the employees in the proposed bargaining unit, the Hearing Officer notifies the incumbent union that it has 30 days from the date of the DLR’s Notice of Hearing to file a Motion to Intervene.[56] As noted above, the incumbent need not file a showing of interest.[57] If an incumbent files a Motion to Intervene, other parties to the Petition have seven days to file an opposition.[58] After the seven-day period, the DLR decides whether to allow the Motion to Intervene and notifies the parties of its decision.

  • Disclaimer of Interest

If the incumbent union indicates to the Hearing Officer that it does not wish to intervene, the Hearing Officer sends a letter to the incumbent union, with copies to the Employer and the Petitioner, confirming that the incumbent union has decided not to intervene.

The failure of an incumbent union to file a timely Motion to Intervene is treated as a disclaimer of interest in representing the petitioned-for bargaining unit employees and the incumbent union is not on any ballot or is considered a necessary party to any consent agreement for election.[59]

d. Consent Election Agreements

The Hearing Officer contacts the parties to determine whether the parties can work out a Consent Election Agreement (Agreement). If they agree, the Agreement must include the following information:

  • The full and correct names of the parties involved in the manner in which the parties wish to be designated on the ballot.
  • A complete and accurate description of the bargaining unit.
  • Agreement on the appropriateness of the Petition (i.e., that the Union is a labor organization, the Employer is subject to the DLR’s jurisdiction, that the Petition was filed at a proper time).
  • The date that employees must be on the payroll in order to be eligible to vote, which is generally the last day of the payroll period preceding the execution of the Consent Election Agreement.
  • An agreement that the Employer files two copies of an election eligibility list, containing the names and addresses of all eligible voters with the DLR no later than seven days from the date the Agreement is approved by the DLR.

If the agreement does not include the time, date and hours of the election, the DLR consults with the parties prior to the preparation of the Notice of Election in making these determinations.

The Agreement is subject to the DLR’s approval because the DLR must be satisfied that the agreed-upon bargaining unit is appropriate within the meaning of M.G.L. c. 150E, Section 3. For further information on Consent Election Agreements, see 456 CMR 14.11.

e. Motions to Intervene

As noted above, an incumbent labor organization wishing to intervene may file its motion without evidence of a showing of interest. Other labor organizations seeking to intervene in a representation case must provide with their Motion to intervene a 10% showing of interest.

f. Failure to Reach Agreement

If the parties are unable to agree to a Consent Election Agreement, the DLR conducts an Investigatory Hearing to enable the CERB to decide any questions raised by the petition.

________________

[53] 456 CMR 14.08.

[54] Town of Wakefield, 10 MLC 1016 (1983); Commonwealth of Massachusetts (Alliance), 7 MLC 1228 (1980).

[55] 456 CMR 14.08(3).

[56] 456 CMR 14.18.  

[57] 456 CMR 14.05(4).  

[58] 456 CMR 13.08.  

[59] 456 CMR 14.18(1).  

3. Written Majority Authorization

a. Initiating a Written majority Authorization (WMA) Petition

See Section II(B)(1) for basic information on initiating a petition.

b. Representatives to Contact

  1. The petitioner must name and provide contact information for its representative. The representative must have knowledge of the positions included in the petitioned-for unit and any other bargaining units that include other employees of the Respondent. The representative must be prepared to respond to phone calls, letters, and/or emails from the DLR.
  2. The petitioner must also name and provide contact information for a representative for the employer that, to the best of his/her knowledge, has knowledge of the petitioned-for positions and is available to respond to phone calls, letters, and/or emails from the DLR.

c. Showing of Interest

  1. For general information, see Section II(B)(1)(c) above.
  2. Written Majority Authorization Evidence

Written Majority Authorization Evidence may be in card or petition form and must be signed and individually dated and include the following language:

      WRITTEN MAJORITY AUTHORIZATION

  • I, (FULL NAME & Job Classification/Title), designate (PRINT OR TYPE NAME OF EMPLOYEE ORGANIZATION) as my representative for the purposes of collective bargaining. I certify that this designation is my free act and deed and is given without consideration.

      SIGN & DATE

  • If the petitioned-for unit consists of both professional and non-professional employees, all professional employees must include an additional statement (either on the card/petition itself or on an accompanying signed & dated document) that they agree to be included in a collective bargaining unit consisting of both professional and nonprofessional employees
  • Signatures must be dated within 12 months of the filing of the petition
  • The DLR and the outside neutral, if any, maintains the confidentiality of the written majority authorization evidence. The written majority authorization evidence is not furnished to or examined by any of the parties or any other individual or entity (except insofar as the petitioner was in possession of the written majority evidence prior to submission).

d. Initial DLR Steps

  1. The DLR contacts the petitioner to clarify the scope of the petitioned-for unit or correct minor discrepancies prior to taking any further action on the petition.
  2. The DLR notifies the parties when the petition is docketed. The Notice includes a description of the petitioned-unit and an explanation of the written majority authorization procedure and associated timeframe.

e. Written Majority Authorization Bars

The three WMA bars to filing a petition are discussed in Section II(B)(1)(e).

f. Processing of the Petition

  1. The DLR performs an initial review of the petition for apparent defects and to determine if the Petitioner has submitted sufficient written majority evidence. If the petition is not materially defective and sufficient evidence of written majority authorization has been submitted, the DLR notifies the parties that the DLR docketed the petition.
  2. Within 10 days from the date that the DLR has docketed the petition, the petitioning employee organization notify the DLR whether the employee organization and the employer have agreed upon an outside neutral or whether the DLR will act as the neutral for the purpose of conducting a confidential inspection of the written majority authorization evidence and verifying the employee organization’s majority support. If the employee organization fails to provide this notice to the DLR or the parties cannot agree on a neutral, the DLR assumes the role without further notice. If the parties agree upon an outside neutral, the employee organization notifies the DLR of the outside neutral’s name and contact information including e-mail.[60] If an outside neutral is retained, the outside neutral performs his or her function pursuant to 456 CMR 14.19(11).
  3. Employer Written Response to the Petition

No later than three days after the selection of the neutral, the employer provides the petitioning employee organization and the Neutral with a written response to the Petition. The written response contains the following:

a) List of Employees in Petitioned-for Unit

The employer must provide a list containing the full names and titles or classifications of the employees in the petitioned-for bargaining unit. The list must be provided regardless of whether the employer is filing any challenges. This list includes all employees who were employed on the filing date of the Petition. If the employer does not supply this information within the specified timeframe, the employer is precluded from filing any challenges or exceptions and the DLR, or outside neutral, if any, determines the sufficiency of the written majority authorization based upon information provided by the petitioning employee organization. If the employer does not provide this information within three days after the selection or designation of the neutral, the petitioning employee organization provides this information to the Neutral within two business days from the date that the employer’s information was due.

b) Challenges and all Evidence in Support Thereof

The employer must include all evidence it intends to produce in support of its challenges in its Response. Potential challenges include:

  • A claim that the petitioner’s evidence regarding the written majority authorization evidence is invalid and does not conform to the requirements of 456 CMR 14.19 (1)(a) though (3)(g). The challenge includes factual disputes concerning the validity of the written majority authorization evidence including, for example, whether an employee was employed on the date that the petitioning employee organization filed the Petition of Certification for Written Majority Authorization.
  • A claim that the petitioned-for bargaining unit is inappropriate. If the employer challenges the appropriateness of the unit, in addition to any evidence in support of its challenge, the employer must also describe with particularity what it considers to be an appropriate unit.
  • A claim that the petitioned-for unit includes managerial, confidential or casual employees who are not employees within the meaning of M.G.L. c. 150E, § 1. See the Summary of Law Section III(B)(3) for further discussion of managerial, confidential and casual employee status. Evidence in support of a challenge that certain employees are managerial or confidential include job descriptions, organizational charts, and affidavits from persons with first-hand knowledge of the challenged individuals and specific examples of duties they perform that meet the statutory criteria.
  • A claim that the union engaged in fraud or coercion in obtaining the written majority authorization evidence. Such an allegation is alleged with particularity and the party or employee alleging fraud or coercion must provide its evidence of fraud or coercion in the form of a sworn affidavit. The employer filing the written opposition containing an allegation of fraud or coercion must provide some evidence that it has made an independent investigation into the veracity of the fraud or coercion claim prior to raising the claim in the written opposition. If no such evidence is provided, the employer is precluded from raising claims of fraud or coercion during the pendency of the Petition.

c) Statement Regarding Other Unions or Petitions

A statement that no other employee organization has been or currently is lawfully recognized as the exclusive representative of the employees in the appropriate bargaining unit and that there are no outstanding petitions, filed pursuant to M.G.L. c. 150E § 4, by any other employee organization which includes any of the employees, titles, or classifications in the petitioned-for unit.

d) Any Other Issues Raised by the Petition

  1. Within three days of receiving the employer’s written submission, the petitioner files a response including any challenges regarding specific employees or job titles included in the employer’s list of employees.[61] If the petitioner provides the neutral with a list of the employees in the petitioned-for unit because the employer failed to supply this information, the employer can challenge the inclusion or exclusion of a name on the list within three days of presentation of the petitioner’s list to the neutral.[62]

g. Challenge Determination

The Neutral (at the DLR the neutral agent making this determination is a Hearing Officer) makes a determination regarding the employer’s challenges based on written submissions. There is no hearing.

  1. Challenges that Affect the Determination of Majority Status

If the number of challenged employees would potentially result in the petitioner’s inability to show that a majority of the petitioned-for unit supported certification, the Neutral rules on the challenges.

If the Neutral determines that the employer’s challenges are without merit or if the employer failed to provide evidence in support of its challenges, the Neutral dismisses the challenges and verifies the petitioner’s majority support.

If the Neutral determines that the challenges have merit, the Neutral dismisses the petition.

  1. Challenges that do not Affect the Determination of Majority Status

If the number of positions/employees within the scope of the employer’s challenges would not change the determination of the petitioner’s majority status, the Neutral dismisses the challenges.

The Neutral’s decision regarding the employer’s challenges is based solely on the parties’ written submissions. The Neutral requests further information from either party if necessary.

h. Final Verification and Certification

If after ruling on all challenges, the Neutral determines that the petitioner has supplied sufficient evidence verifying majority support of the petitioned-for unit, the DLR issues a certification of the bargaining unit.

The DLR completes the verification process within 30 days.[63] The regulations describe two specific circumstances that permit the verification process to extend beyond 30 days: 1) the neutral must resolve the employer’s challenges and 2) allowing the petitioner to become compliant with G.L. c. 150E sec. 13 and 14. However, the regulations do not limit “exceptional circumstances” to those specifically listed.

i. Appeal

There is no judicial review of a representation decision and that includes WMA decisions. However, after the DLR certifies the petitioned-for bargaining unit, a party may seek review of the certification through the Reinvestigation of Certification procedure outlined in 456 CMR 14.15. Additionally, should the DLR dismiss the WMA Petition, the DLR’s decision to dismiss is subject to its reconsideration procedure outlined in 456 CMR 15. 05. Thus, after the DLR declines to issue a Certification based on WMA, the labor organization seeking Certification can file a request for review of such dismissal by filing a request with the CERB within ten days from the date of receipt of notice of such refusal. For further guidance, see 456 CMR 15.05 (9).

________________

[60] 456 CMR 14.19(6).  

[61] 456 CMR 14.19(8).  

[62] 456 CMR 14.19(8).  

[63] 456 CMR 14.19 (14).  

4. Hearings (see also Prohibited Practice Hearing Procedures Section II(A)(3)(b)).

a. DLR Staff Assigned to the Case

The Hearing Officer initially assigned to investigate the Petition processes the case through the Hearing. In addition, in most cases, the DLR assigns a mediator to meet with the parties in a continued effort to assist the parties in reaching a Consent Election Agreement.

b. Pre-Hearing

The Hearing Officer holds a pre-hearing conference (Conference) to ensure that the parties litigate the issues as efficiently as possible. At the Conference, the Hearing Officer discusses potential issues, including all possible stipulated facts and joint exhibits. The parties are strongly encouraged to agree to as many facts in the form of stipulations as possible. The parties should be able to agree to all facts that are not in dispute.

c. Role of the Hearing Officer

The Hearing Officer’s role is to guide, direct, and control the presentation of evidence at the Hearing. It is also the Hearing Officer’s job to keep the record as concise and complete as possible. The Hearing Officer calls and questions witnesses; introduces or requires the parties to produce relevant documentary evidence; solicits stipulations from the parties; takes administrative notice of evidence in related proceedings before the DLR; and excludes unnecessary evidence.

The role and authority of the Hearing Officer is detailed in 456 CMR 14.08(4)(c).

d. Nature of the Hearing

The Hearing is an investigatory hearing to enable the CERB to determine whether the petitioned-for unit is an appropriate unit under the Law. Although it is investigatory in nature and not adjudicatory, it is a formal proceeding and many of the unfair labor practice hearing procedures apply.[64] It is open to the public.[65]

e. Order of Presentation

There is no set order of presentation. In most cases, the employer proceeds first, since it can provide an overview of its operations that may be helpful to the Hearing Officer and to the parties. If the parties are unable to agree on the order of presentation, the Hearing Officer directs the order of testimony.

f. Written Briefs

The parties generally file written briefs after the conclusion of the Hearing. The briefs must be submitted within ten days after the close of the hearing. Requests for additional time to file briefs are granted only in extraordinary circumstances or to permit parties an opportunity to obtain a recording of the hearing, provided that the time period for filing briefs, including any extensions that are permitted do not exceed 21 days.[66]

________________

[64] 456 CMR 14.08(4).  

[65] 456 CMR 14.08(4)(b).

[66] 456 CMR 14.08(d).

5. Post-Hearing

a. The Record

The investigatory hearing record includes the Petition, Notice of Hearing, Motions, Rulings and Orders, digital recording or computer disc of the recording, stipulations, exhibits, and documentary evidence.[67]

b. Hearing Officer Report to the CERB

Generally, within 30 days of the parties submitting their briefs, the Hearing Officer meets with the CERB to inform the CERB of the factual findings ascertained during the Hearing.

c. The Decision

The CERB issues its decision generally within 30 days of receiving the Hearing Officer’s factual findings. The CERB bases its decision on the Hearing Officer’s report and the Hearing Record. The CERB decides to dismiss the Petition or to direct an election by secret ballot among the employees in a bargaining unit determined to be appropriate.[68]

d. There is no Judicial Review of Representation Decisions

CERB representation decisions are not adjudicatory and are not subject to judicial review.[69] Therefore, an employer that wishes to challenge the CERB’s decision in a representation case must do so by refusing to bargain and raising the issue as a defense to a prohibited practice charge.[70]

________________

[67] 456 CMR 14.09.

[68] 456 CMR 14.10.  

[69] Collective Bargaining Reform Association v. Labor Relations Commission, 436 Mass. 197 (2002).

[70] Town of Wenham v. Labor Relations Commission, 44 Mass. App. Ct. 195 (1998).

6. Elections

a. Types of Elections

After a Direction of Election or a Consent Agreement, the DLR prepares to conduct a secret ballot election. It directsObject that an election take place at or near the employees’ work locations or by mail ballot.[71]

b. Designation of Organizations on the Ballot

The name of the employee organization(s) on the ballot is the name designated by the employee organization on its Petition unless the employee organization wishes to appear on the ballot with a shortened designation. The shortened designation must not confuse or mislead the voters.

c. Order of Choices on the Ballot

The parties determine the order of the choices on the ballot. If the parties cannot agree, a coin toss or random drawing decides the placement on the ballot. The incumbent is not entitled to the left side of the ballot or any other preference. The order of the choices on the ballot cannot be litigated.

d. Form of Ballot

Under DLR letterhead, the ballot sets forth the voters’ choices. It also notifies the employee that he/she should not sign the ballot and that any signed ballot or ballot marked to indicate the identity of the voter is void.

e. Ballots for Professional Employees (Globe Ballots)

M.G.L. c. 150E, Section 3 provides that professional employees have the right to vote to be included in a unit of non-professional employees or to be represented in a separate unit. If there are professional and non-professional employees included in the same unit, a special ballot must be prepared for the professional employees asking them: 1) whether they wish to be included in the unit of non-professional employees; and 2) whether they wish to be represented by [name of employee organization] for the purpose of collective bargaining.[72] If the majority of the professional employees vote to be included with the non-professional employees, their ballots are counted with the non-professionals. If a majority of the professional employees vote not to be included in a bargaining unit with non-professional employees, their votes are counted sep­arately.

f. Withdrawal from Ballot

The DLR permits an employee organization to withdraw in writing from the ballot before the printing of the ballot and the posting of the election notice. Any incumbent employee organization seeking to withdraw from the ballot must give timely notice in writing and disclaim interest in continuing to represent the petitioned-for bargaining unit.[73]

  1. Petitioner

If the Petitioner seeks to withdraw from the ballot and there is no intervenor, the DLR allows the Petitioner's request and cancels the election. However, as noted above, if the Petitioner withdraws, the DLR does not entertain any petition for the same unit or any part thereof for a period of up 6 months.[74] If the Petitioner seeks to withdraw and there are one or more intervenors, in order for the election to be held, one of the intervenors must have either a 30 or 50 percent showing of interest, depending on whether there is an incumbent employee organization, in order to hold an election.[75] Thus, if the Petitioner withdraws, each intervening organization is given 10 days to submit the needed showing of interest. If one of the intervenors has already submitted a sufficient showing of interest, the case may continue uninterrupted.

  1. Intervenor

In determining whether to allow an intervenor to withdraw, the DLR considers whether a late withdrawal will confuse the voters.

g. Election Hours

When the DLR schedules an on-site election, no ballots are permitted by mail. There are no absentee ballots. The voting hours (during, before, or after working hours) are arranged so that all eligible employees on all shifts and at all locations have an adequate opportunity to vote. If there is one shift and all employees work the same hours, the voting time is scheduled to allow employees to vote at the start or close of the workday, or on a lunch break. If there are two shifts, the most convenient method is to open the polls over a period that straddle the shifts.

h. Election Date

The DLR schedules elections to maximize employee participation and minimize employer operational problems. The DLR also avoids days preceding or following a holiday. The selected date allows the Employer to post the DLR’s Notice of Election, as discussed below, for at least 10 days so that employees have sufficient notice of the time, date, and location of the election.

i. Eligibility Cut-Off Date

Employees are eligible to vote if they are on the Employer’s payroll on the last day of the payroll period immediately preceding the execution of the consent agreement, or the issuance of the direction of election.

j. Voter Eligibility List

Prior to an election, the DLR directs the Employer to provide to the DLR and the labor organizations election an alphabetical list of the names and addresses of employees within the bargaining unit. The list ensures that all the unions have an opportunity to communicate with voters prior to the election. The date for submission of the list is seven days after the execution of the consent agreement or seven days after the issuance of a direction of election. The Employer's failure to timely produce an accurate voter eligibility list may be grounds for setting aside an election.[76]

k. Pre-Election Disputes Concerning the Eligibility List

If, prior to the election, any party disputes the accuracy of the eligibility list, the DLR contacts the Employer to resolve any disputes. If the disputes cannot be resolved prior to the election, the party disputing the list has the right to file post-election objections based on the eligibility list. If the eligibility list is modified prior to the election, each party is served with the updated list. If there is insufficient time for the parties to agree to add names to the eligibility list, the potentially-eligible voters may appear at the election and vote by challenged ballot. The issue is resolved after the election is concluded.

l. Election Notice

The Notice of Election informs potential voters of the method, time, date, and location(s) of the election, the conditions under which it is conducted, and a description of the bargaining unit. Notices are posted for as long as possible, usually ten days preceding the election, to promote maximum communication of this essential information.

Attached to the Notice of Election is a sample ballot showing the question and choice(s). To avoid problems, actual ballots are a different color than the sample. The Employer should post Notices of Election in the normal and usual places where notices or information for employees are posted.

m. Amended Notice of Election

In case of an error in a Notice of Election, or a modification in the terms and conditions of the election, if time permits, an amended Notice of Election is drafted and posted.

n. Multiple Polling Sites

In any election where it is necessary to have more than one polling site, the following procedures apply.

  • The DLR requests the employer to prepare the eligibility lists with the names and addresses of eligible voters for each specific site. Voters cast their ballots once, in only one of the sites.
  • The Notice of Election informs voters at which site they should cast their ballots.
  • If voters appear at the wrong location, they are permitted to vote under challenge. The DLR agent challenges the voter because his/her name is not on the eligibility list for that location.

o. Observers

Each party may pick an observer to the election. The parties should avoid picking a supervisor or manager because they may intimidate the employees. Should a party insist on an observer that may be viewed as intimidating, the election proceeds, but the DLR agent advises the party that its observer may constitute grounds for objections to the election.

p. DLR Agent Responsibilities

The DLR agent who conducts and oversees the election has the following responsibilities:

  • Maintain order and laboratory conditions at the election site.
  • Instruct observers.
  • Preserve the secrecy of the voting process.
  • Attempt voluntary resolution of voting disputes.
  • Remove unruly observers and voters.
  • Open and close the polls and also change conditions of the election should the need arise.

q. Pre-Election Conference

The DLR agent usually arrives at least one-half hour prior to the opening of the polls to inspect the polling area to ensure that laboratory conditions are maintained throughout the conduct of the election. The agent also meets with the parties and their observers to check for changes in the voting list, instructs the parties and answers any questions, sets up the voting booths, and seals the ballot box. The agent may ask the parties or their observers whether they anticipate any challenges to the voter eligibility list and may attempt to resolve them before the election.

r. Setting Up the Election Site

The polling area is set up to protect the secret ballot election objectives. Voting booths are used so that the voter may mark his/her ballot in secrecy. Ideally, the voting area is one where access may easily be controlled. In determining the location of voting booths, check off tables, and entrances and exits from the voting area, the DLR agent tries to avoid any situations where voters who have already voted pass by those waiting to vote. Observers whose function is to identify voters and check their names off on the eligibility list are seated with the DLR agent in an area where the voters must pass in order to vote.

s. Role of the Observers

DLR agents and the parties’ observers wear identifying badges. Each observer is given a copy of the DLR’s Observer Instructions, and the agent explains these requirements. Observers are instructed not to communicate directly with voters and not to electioneer in the immediate area of the polls. All challenges are directed to the DLR agents. The observers may bring a list of voters whom they challenge, but this is the only document, other than the DLR’s official voting list, that is used to check off voters. The observers are instructed that the voting list DOES NOT leave the table at any time and is collected at the conclusion of the election.

t. Opening the Polls

Prior to the opening of the polls, if the parties cannot agree on an official time piece, the DLR agent selects a clock or watch as the official timepiece. The agent may permit voters to line up in an orderly fashion prior to the opening of the polls. Voters are reminded to have their photo identification ready to show to the DLR agent. At the appointed time, according to the official timepiece, the agent announces that the polls are open and asks all unauthorized persons to leave.

u. Late Opening of the Polls

If the polls open later than the scheduled polling time, the DLR agent notes the time and whether any voters have left the polling area due to the delay. The agent should write a statement explaining the reason(s) for the late opening of the polls and have the observers sign it. Unless the parties stipulate in writing, the DLR agent does not extend the closing time because the polls opened late.

v. Electioneering

The DLR agent removes all campaign literature from the polling area. No electioneering is permitted in the voting area during voting hours, including conversations between voters or between the observers and the voters. Observers may not wear any kind of button or insignia that relates to the election.

w. Conduct of the Polling

As voters approach the check off table, the DLR agent, not the observers, ask the voter for his or her name and for identification. The observers are entitled to inspect identifying material. If there is no question of eligibility, the observers for each party may check off the voter’s name on their copies of the eligibility list. The DLR agent then hands the voter a ballot and instructs them on voting procedures.

x. Spoiled Ballots

If a voter marks his/her ballot in error, the ballot contains instructions that the voter return the ballot to the DLR agent for a new ballot. The DLR agent destroys the "spoiled" ballot in the presence of the observers.

y. Challenged Ballots

The DLR agent or an observer for any party may challenge the eligibility of any voter. All challenges are directed to the DLR agent.[77]

z. DLR Challenges

The DLR agent challenges any voter whose name does not appear on the eligibility list but who appears at the polls to vote.[78] The parties may not ask the DLR agent to make challenges on their behalf.

aa. Party Challenges and Standard for Eligibility

Observers seeking to challenge the eligibility of a voter must do so at the time the person's name is announced and the voter receives a ballot. No challenge is accepted after the ballot is cast, or once the polls are closed.[79] The reason for the challenge is stated when the challenge is made and marked on the challenged ballot envelope by the DLR agent. A party who fails to make challenges at the proper time cannot remedy its oversight by raising the challenge as an objection to the election.

An employee who has a reasonable expectation of continued employment on the eligibility cutoff date set forth in the consent election agree­ment or direction of election is eligible to vote. This includes employees who were ill, on vacation, or temporarily laid off. Employees who have quit or been discharged for cause prior to the election date are not eligible to vote.

bb. Challenge Ballot Procedure

When an Observer challenges a voter, the DLR agent notes on the challenge ballot envelope the job title, work location, and reason for the challenge. The name of the challenged voter is noted on the DLR’s official copy of the eligibility list. The agent informs the voter that: 1) one of more of the parties to the election has challenged his/her eligibility; 2) his/her ballot is placed in an envelope having a perforated stub; 3) if counting the challenged ballots is necessary to determine the outcome of the election, the information on the stub is used to determine eligibility; 4) if it is found that the voter is not eligible, the ballot is destroyed unopened. The DLR agent then gives the voter a ballot and a challenge envelope and directs the voter to go to the voting booth, mark his/her ballot, fold the ballot, insert it in the long part of the envelope, seal the envelope, and drop it in the ballot box.

cc. Security of the Ballots

All ballots remain in the DLR agent’s possession at all times. Only DLR agents may handle blank ballots. All voters must place their ballot in the ballot box themselves. When there is more than one polling time or more than one polling site, the DLR agent secures the ballots by: 1) sealing the ballot box with tape and having each of the parties present sign across the tape; 2) sealing the blank ballots in the election envelope; and 3) taking the sealed ballot box and sealed election envelope and maintaining it in his/her possession at all times.

dd. Language Problems During Voting

If voters need translation services, the DLR agent instructs the translator to read only the information on the ballot, and, if necessary, the Notice of Election to the voter. However, the translator is not permitted to accompany the voter to the voting booth or to mark the ballot for the voter.

ee. Disabled Voters

If a voter is disabled and unable to vote without assistance, the voter is permitted to have someone accompany them to the voting booth and assist them if necessary. If a disabled voter needs assistance and does not have someone to accompany them to the voting booth, the DLR agent may assist the disabled voter after notifying the observers. However, neither the parties nor their observers are allowed to assist a voter to mark the ballot.

ff. Closing the Polls

The DLR agent notifies the observers a few minutes prior to the close of the polls of the amount of time remaining for voting and that all persons currently in line will have the opportunity to vote. The agent closes the polls early if all eligible voters have cast a ballot and the parties consent in writing. The agent closes the polls by announcing, “The polls are closed.” A late start for the election does not extend the time for voting, unless the parties stipulate in writing to extend the hours of the election. After the agent announces the end of the polling time, the DLR agent does the following:

  • If the ballots are not counted on-site, secure and seal the ballot box in the presence of the observers.
  • Ask the observers to sign the Certification of Conduct of Election.
  • Attempt to get a written agreement from the parties resolving any challenges prior to opening the ballot box. A party may withdraw any challenge before the ballots are counted.
  • Explain the ballot tabulation procedure.

gg. Ballot Tabulation

After all attempts to resolve the challenges have been ex­hausted, the tallying process begins.

  1. Preparation for Ballot Tabulation

If the election has been run at multiple polling sites or times, the DLR agent does not begin the ballot tabulation until all ballot boxes have arrived. The agent has all parties inspect the tape covering the ballot box to ensure that the seals are not broken. After inspection, the agent opens the ballot boxes and separates the challenged ballot envelopes from the other ballots. Any resolved challenges are opened and intermingled with the other ballots.

  1. Observers

Each party is permitted one observer at the count. The DLR agent allows spectators to observe the tabulation of the ballots from a reasonable distance.

  1. Tabulation Process

For elections with over 50 voters, the ballots are arranged in blocks of 50 ballots each and numbered sequentially. The DLR agent recounts the ballots in the block to ensure that there are 50. After a block is counted, each ballot is turned over, examined by the agent, and called for one of the choices on the ballot, or called “blank” or “void.” The intent of the voter must be clearly evident.

  1. Tabulation in Special Elections

In a Globe ballot election for professional employees, the self-determi­nation question is counted first. Ballots with two questions are sep­arated from those with a single question. If the DLR simultaneously conducts an election for two separate bargaining units, the ballots for each unit are different colors. The DLR agent sorts the ballots by color, with the ballots face down, and then counts them.

  1. Protested Ballots

Only the DLR agent calls the ballot. If the DLR agent cannot identify or determine the voter’s intent, the agent declares the ballot void. As the call is made, the agent lays the ballot on the count table face up and allows sufficient time for the observers to see how it is marked. If an observer believes that the DLR incorrectly interpreted the voter’s intent, the observer may protest. The back of the ballot will then be “stamped” or marked with the following information:

  • The name of the party protesting the ballot.
  • The reason for the protest.
  • The choice for which the ballot was called.
  • The choice for which the protesting party wants the ballot called.
  • The number of the block of ballots from which the ballot came, if applicable.

The protested ballot is then set aside. The DLR agent marks the tally sheet with the choice called by the agent and a notation that the ballot is protested.

  1. Post-Tabulation Process

After the tabulation process has been completed, each party’s chief representative signs the Official Tally of Ballots. The DLR agent retains the original and provides a copy to each party. To be certified as the exclusive bargaining representative, an employee organization must re­ceive a majority of the valid votes cast in an election. If the results of the election are determinative and not affect­ed by challenged or protested ballots, the ballots are sealed in an envelope containing the case name and number, the date of the election, and the tally. If challenges and protests are sufficient to affect the outcome of the election, these ballots are segregated and placed in a sealed envelope along with all copies of the eligibility list used at the election.

hh. Mail-Ballot Elections

In many cases, the DLR determines that a mail ballot election is more appropriate than an on-site election. The procedures in a mail ballot election differ from an on-site election.

  1. Mailing Process

a) Ballot and Instructions

Each envelope includes a ballot, a ballot envelope, a return envelope and voter instructions. The label on the reverse side of the return envelope also contains a code to help identify the voter and expedite the verification process.

b) Mailing Period

At least 2 ½ weeks are allotted for the voters to receive and return their ballots. This permits an adequate time for delivery and return of initial, as well as secondary ballots.

  1. Election Questions

At least one DLR employee is available to answer phone calls about the election at the time designated on the Notice of Election.

  1. Mail Related Problems

a) Failure to Receive a Ballot

Employees who call the DLR to report that they have not received a ballot are placed on color coded lists (with corresponding mailing labels). The callers’ names, addresses, and I.D. #’s (if applicable) are recorded. Different color codes are used to distinguish between: 1) employees who are on the eligibility list but who did not receive a ballot; 2) employees whose ballot was destroyed; and 3) individuals who are not on the eligibility list, but who believe that they are eligible to vote.

b) Undeliverable Ballots

Each day a DLR agent picks up ballots that have been returned to the post office and marked “undeliverable” due to a change of address or name, or where the address is incorrect. A list of undeliverable ballots is compiled and given to the parties to correct or amend. New ballots are sent immediately to those individuals whose ballots have been returned.

  1. Prior to the Mail Mailing Period Closing

Before the mail period closes, a DLR agent contacts the parties and informs them of their opportunity to have an observer at the count and to inform them of the time and date on which the agent will pick up the ballots at the post office, so that the parties may accompany the agent if they so desire. In addition, the DLR agent explains how the ballots are verified, sorted, and counted. The parties submit the names of the observers to the DLR agent in writing.

  1. Ballot Tabulation
  • Sorting

Using a numerical code, the ballots are sorted at the counting tables.

  • Verification

Each envelope is checked for a signature that matches the name on the label. Any challenged vote is set aside. Every color coded ballot is automatically challenged by the DLR agent. In the event both the original and duplicate ballots are received, only the ballot the DLR sent first is counted. If two ballots are returned in one envelope, both ballots are challenged. If the parties agree, one is counted, provided the secrecy of the ballot is maintained. Duplicate ballots that are not counted are not entered in the tally as challenged or voided ballots, but preserved for display to the parties as duplicates. The stubs of the envelope or postmark are returned and attached to the duplicate ballot. All envelopes without signatures are void. An envelope with a signature different from the mailing label is acceptable provided the name is not substantially different (i.e., Jack Douglas, signed, although label reads John Douglas). Any ballot that identifies the voter is void.

  • Tabulation Process

The verified envelopes are mixed after the DLR agent tears off the signature and label sections. The envelopes are slit and the ballots are placed faced down in blocks of 50. DLR agents call and tabulate the ballots. The intent of the voter must be clearly evident. The parties may protest any ballot where the intent is unclear. If the DLR agent cannot identify the intent of the voter, the agent declares the ballot void. The tallies are placed on sheets in the blocks of 50. The DLR agent announces the result when the tabulation process is completed.

ii. Post-Election Procedures

There are three kinds of post-election issues that may determine the outcome of the election: 1) protested ballots; 2) challenged ballots; and 3) objections to the conduct of the election or to campaign conduct affecting the outcome of the election.

  1. Protested Ballots

If the parties are unable to resolve protested ballots before the ballot count and those votes determine the election outcome, the DLR schedules a conference with the parties as soon as possible after the election. At the conference, the protested ballots are numbered with copies given to all of the parties. The parties are allowed seven days to submit a statement of position about the protested ballots. If objections and challenges are also pending, the time for submission of the parties' positions is extended until the close of the investigation into those matters. After the DLR receives the parties' positions, the DLR decides whether any of the protested ballots are counted.

  1. Challenged Ballots

If the number of challenged ballots is sufficient to determine the outcome of the election, within seven days after the tally of the ballots, each party must file a position statement with the DLR concerning the eligibility of each challenged voter.[80] The DLR reviews the consent agreement or direction of election, the notice of election, and the parties' position statements to decide whether to reject the challenged ballots or schedule a hearing. If any challenge presents no factual dispute, is frivolous, or has already been determined by the DLR, the challenge is denied without a hearing, and the ballot counted if required to determine the outcome of the election. If the challenge is clearly valid, as determined by the election documents or prior decision, the challenge is allowed without a hearing and the ballot is destroyed unopened.

jj. Objections to the Election

Objections are complaints by one or more of the parties that a DLR agent or one of the other parties to the election engaged in conduct that prevented a fair election. Within seven days after the tally of the ballots, any party to an election may file objections to the conduct of the election or to conduct affecting the result of the election.[81] The objections must include a statement that describes the objectionable conduct, including the nature of the conduct, the identity of persons involved, and the date, time, and place of the alleged conduct.[82] Requests to amend objections must conform to the evidence and may not raise additional allegations. If another party objects to a requested amendment, the DLR rules on whether to allow the amendment.

  1. Objections Investigation and/or Hearing

After the DLR receives objections and the other parties' responses to the objections, the DLR determines whether the objections merit further proceedings.[83] The DLR may dismiss some or all of the objections if it does not find probable cause to believe that the alleged conduct occurred or that the alleged conduct materially interfered either with the conduct of the election or with the results of the election.[84] If the DLR concludes that probable cause exists, it investigates further or schedules a hearing to take place before a DLR agent. In addition to the documents identified in 456 CMR 14.08 and 14.09, the record in an objections hearing, should the DLR order that one occur, is the statement of objections or the statement concerning the eligibility of challenged voters, the responses and the tally of ballots.[85] If there are undisputed material facts, the DLR may issue a decision without further fact-finding.[86]

If, after hearing, the DLR finds that the objections have merit, it sets aside the results of the election and directs that the election be re-run. However, if the DLR concludes that the objections are without merit, it issues a Certification of the Results of the Election.

The DLR’s objections and challenges decision is administrative and not subject to appeal to the CERB or to the courts.

See the Summary of Law Section III(E)(5)(d) for objectionable conduct examples.

kk. Runoff Elections

When there are three or more choices on the ballot and none of the choices on the ballot receives a majority of the valid votes cast, a runoff election is required. The DLR does not conduct a runoff election while objections to the election are pending.[87] The DLR does not conduct a second runoff election absent evidence that it would produce different results.[88]

  1. Voter Eligibility

Unless the DLR determines otherwise, employees who were eligible to vote in the initial election are eligible to vote in the runoff election.[89]

  1. Ballots

The two choices on the ballot that received the highest total of votes in the original election are on the run-off election ballot, whether those choices were employee organiza­tions or no union.[90]

  1. Scheduling

A runoff election is held as soon as possible af­ter the first election, but is not scheduled during the seven-day period during which a party may file objections to the conduct of the election. Usually, run­off elections are conducted at the same location and dur­ing the same hours as the original election.

ll. Re-Run Elections

The DLR conducts a Re-Run Election in each of the following circumstances:

  • There were two or more employee organization choices on the ballot and the votes were equally divided among the employee organizations.
  • The number of ballots cast for one choice equals the number for another choice but less than the number for a third choice (which did not receive a majority of valid votes cast).
  • The DLR set aside an election because of objectionable conduct.[91]
  1. Eligibility Cut-Off Date

The eligibility cut-off date for the re-run election is spe­cified in the Direction of Election and is usually the last day of the payroll period that precedes the Direc­tion of Election issuance date.

  1. Voter Eligibility

A new eligibility list is required for the re-run election.

  1. Election Notice

If a re-run election is the result of objectionable conduct by one of the parties, the DLR has discretion on whether to state this fact in the Notice of Election.

  1. Run-off and Re-run Elections Procedures

Any employee organization on the ballot of a re-run election must receive a majority of the votes cast to be certified. A re-run election may result in a subsequent runoff election.

Election and tabulation procedures for a re-run election are the same as for any other election. See Section II(B)(6). Objections are filed, following the same standards and procedures for a regular election. See Section II(B)(6)(jj).

mm. Certification

When a labor organization wins an election, the DLR certifies that it is the exclusive bargaining representative of the unit.

nn. Reinvestigation of Certification

The DLR retains the right for good cause shown to reinvestigate any matter concerning any certification it issues and after an appropriate hearing, may amend, revise, or revoke such certification.[92]

oo. Revocation of Certification

The DLR revokes a labor organization’s certification if it loses a decertification election.

The DLR also revokes a labor organization’s certification if the labor organization requests this in writing accompanied by a statement that the labor organization disclaims all interest in continued representation of the bargaining unit. A copy of the request must be served on the employer of the bargaining unit.[93]

________________

[71] 456 CMR 14.12.

[72] Globe Machine & Stamping Co., 3 NLRB 294 (1937).

[73] 456 CMR 14.12(1).  

[74] 456 CMR 14.06 (2).

[75] 456 CMR 14.05(1) and (2).  

[76] City of Springfield, 14 MLC 1010 (1987).

[77] 456 CMR 14.12(2).

[78] Town of Whitman, 16 MLC 1248 (1989).

[79] City of Springfield, 24 MLC 109 (1998).

[80] 456 CMR 14.12(2).  

[81] 456 CMR 14.12(3).  

[82] 456 CMR 14.12(3).  

[83] 456 CMR 14.12(3).  

[84] 456 CMR 14.12(3).

[85] 456 CMR 14.12 (5).  

[86] 456 CMR 14.12(3).  

[87] 456 CMR 14.13(1).  

[88] 456 CMR 14.13(1).

[89] 456 CMR 14.13(2).

[90] 456 CMR 14.12(3).

[91] 456 CMR 14.14(1).

[92] 456 CMR 14.15.

[93] 456 CMR 14.16.

7. Clarification/Amendment Petitions (CAS)

a. General Information

An employer or labor organization can file a Clarification and Amendment Petition (CAS) to clarify whether particular employees are included in or excluded from an existing bargaining unit.

The information that an employer or labor organization must include in a CAS petition is specified in 456 CMR 14.02(2) and 14.03(2). An individual employee has no right to file a CAS petition.[94] Any CAS petition found to raise a question of representation must be dismissed and the question of representation addressed by filing a representation petition.

b. Timeliness

CAS petitions that seek to accrete or sever positions that were in existence prior to the execution of a current collective bargaining agreement must be filed during the time for filing a representation petition unless the other party agrees to waive the contract bar and submit the issue to the DLR. However, CAS petitions seeking to accrete or sever newly-created positions of positions whose duties have been substantially changed from the bargaining unit may be filed at any time.[95]

c. Parties

Normally, the only parties to a CAS petition are the employer and the certified or recognized employee organization. In certain cases, however, other employee organizations may have an interest, or claim the same employees sought by the petition. When identified, those employee organizations are notified immediately and added to the interested parties list. No showing of interest is required for CAS petitions.

d. Procedure

After the DLR receives the CAS Petition, it assigns a Hearing Officer to investigate the Petition and sends a letter to the parties providing them with two options for case processing.

  1. Option 1 – Traditional Approach

Parties must schedule a conference at the DLR for mediation and investigation. Parties must confer and provide three dates in the quarter provided from which the DLR picks the conference date. Prior to the conference and no later than seven days before the conference, the parties must confer and e-file the following documents to the DLR:

  • Position papers including facts and arguments regarding the disputed unit placement issues.
  • Sworn affidavits from those with first-hand knowledge supporting any facts included in the position paper.
  • Petitioned-for position(s) job description(s), or if none exists, the most recent job posting, including actual duties, qualifications, hours, supervision exercised and received. A statement explaining if the parties agree to accuracy of the job description and, if not, identifying areas of disagreement.
  • The date the position was created.
  • An organizational chart showing the position.
  • A list of all bargaining unit titles.
  • A copy of the most recent collective bargaining agreement.

Parties coordinate document production to avoid submitting duplicate copies and to clarify areas of disagreement. They then serve the other party with copies of all materials submitted to the DLR.

Parties should bring decision-makers to the conference in order to participate in mediation. If the parties are unable to resolve the dispute, the Hearing Officer holds the conference in order to clarify the issues raised in the position papers and submitted documents. The Hearing Officer may ask the parties to submit additional documents after the conference. At the Hearing Officer’s discretion, parties are allowed to briefly present argument concerning their positions.

After the Hearing Officer reviews the parties’ submissions and the information presented at the conference, the Hearing Officer determines if there are disputed material facts. If the Hearing Officer determines that there are no disputed facts, the Hearing Officer issues a notice to the parties to show cause why the case should not be decided based on the parties’ submissions. This show cause letter generally is sent to the parties within two months of the conference.

The CERB reviews the show cause responses and either issues a decision based on the parties’ written submissions or directs the Hearing Officer to hold a hearing to resolve any material disputed fact. Generally the CERB issues its decision within one month of receiving the show cause responses. If there is a hearing, it is conducted as other representation case hearings are conducted. See Section II(B)(4) and 456 CMR 14.08(2) for further information.

  1. Option 2 – Expedited Hearing

This option provides the parties a decision within forty-eight hours of the Hearing but only is used in the following circumstances.

  • The parties mutually elect this procedure and sign an agreement prepared by the DLR describing their agreement.
  • Parties agree to waive any and all rights of appeal to the CERB, the courts or by testing certification.

Once the agreement is signed, the DLR expeditiously schedules the hearing and a Hearing Officer issues a brief decision within 48 hours of the hearing.

________________

[94] 456 CMR 14.04(2).  

[95] 456 CMR 14.06(1)(b).

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