1. Interest Mediation Services
Municipal Police and Fire procedures are discussed separately below under JLMC Process.
a. Filing the Petition
- The Form
Petition for Mediation and Fact-Finding (Petition) forms are available on the DLR website (www.mass.gov./lwd/labor-relations/). Parties may file jointly or unilaterally.[96] The Petition must be entirely completed, including Petitioner name and address, Certification of Service (for unilateral petitions), date and signature.
- Filing Fee
The filing fee for a Mediation Petition is currently $1,000. The cost is equally divided between the parties.[97]
b. DLR Initial Steps – Scheduling the Initial Investigation/Mediation
After the DLR receives a Petition, it dockets it and assigns a case number and mediator. The DLR then sends the parties a letter informing them of the mediator assignment and the procedure to schedule the initial investigation/mediation. The parties are required to confer and agree to three proposed dates for the initial investigation/mediation that fall within 45 days of the date of the docketing notice. The Petitioner is required to notify the DLR of those dates within fourteen days of the date of the docketing notice. If the petition is filed jointly, either party may notify the DLR of the three dates agreed upon by the parties. If after reasonable attempts to secure dates, the Petitioner notifies the DLR that the parties are unable to agree on a date to schedule the initial investigation/mediation, the DLR will schedule the initial investigation/mediation and notify the parties of same. If the Petitioner fails to submit dates or submit a written statement explaining why it has been unable to submit mutually agreed upon dates, the Petition will be dismissed, absent extraordinary circumstances.
The mediator assigned to the case will make every effort to schedule the initial investigating/mediation on one of the days agreed upon by the parties.
The DLR promptly bills the parties if the filing fee has not been paid at the time of filing.
c. Mediator confidentiality
The mediator is not required to disclose any files, records, documents, notes, or other papers or be required to testify with regard to any information obtained while functioning as a mediator.[98]
d. Mediator role
At the mediator’s first meeting with the parties, the mediator investigates whether the parties have negotiated for a reasonable period of time and whether an impasse exists. If the mediator determines that impasse does exist, the mediator sets up additional meetings for the purpose of helping the parties break the impasse in negotiations.
The mediator may order the parties to bring individuals who have the authority to settle a collective bargaining agreement to all mediation sessions.[99]
The mediator retains ultimate control over mediation scheduling.
e. Mediator report to the DLR Director
After concluding mediation, the mediator reports to the DLR Director (Director) the status of the parties’ impasse.[100] The mediator’s confidential report includes the following:
- The number of mediation sessions.
- A brief description of the unresolved issues which existed at the beginning of mediation.
- A statement of issues that have been resolved through mediation and a statement of issues that remain unresolved.
- A recommendation as to whether the DLR Director should invoke fact finding.
f. Designation of a Fact-Finder
If, after reviewing the mediator’s report, the Director determines that an impasse continues to exist and that further mediation is unlikely to resolve the matter within a reasonable period of time, the DLR notifies the parties of its conclusion and of its decision to institute fact-finding. This notification letter also provides the parties with the names of seven randomly chosen fact-finders from the DLR’s fact-finder list. The letter asks the parties to return the list within ten days, striking no more than three names and ranking the remaining names. After the DLR receives the parties’ rankings, the DLR attempts to match the preference of each party. If a party fails to provide the ranking within ten days, the DLR assumes that all persons named on the list are acceptable.[101]
g. Fact-Finder appointment
Once the DLR receives the parties’ fact-finder rankings, it attempts to match their preference. The DLR then contacts the parties’ preferred fact finder to make sure the fact finder is available and not disqualified. A fact finder is disqualified if he/she has represented a party to the case within the last 12 months.[102] The DLR also asks the fact finder to disclose to the DLR and the parties any circumstances likely to create a presumption of bias or which the fact-finder believes might disqualify him or her as an impartial fact-finder.
The DLR sends the fact finder an appointment letter, explaining the process and reminding the fact-finder to transmit his/her findings and any recommendations for the resolution of the impasse to the DLR and to both parties within 30 days after the record is closed.
h. Fact-Finder costs
The cost for fact-finding is equally divided between the parties unless they agree otherwise. The parties must make payment directly to the fact-finder. The fact-finder sets his/her fee directly with the parties.
i. Fact-Finder role
The fact-finder has authority and responsibility for the fact-finding proceedings, and sole discretion in deciding any issues of procedure. The fact-finder immediately advises the DLR if a work stoppage has occurred or is imminent. The fact-finder has authority to mediate the dispute. Fact-finding and mediation are not open to the public.[103]
j. Fact-Finder hearing
Details of a fact-finder’s hearing are described in 456 CMR 21.13.
k. Fact-Finder report
Details concerning the fact-finder’s report (report) are described in 456 CMR 21.14. The report remains private while the parties attempt to reach an agreement after receiving the report. If the impasse remains unresolved ten days after the DLR’s receipt of the report, the DLR makes it public. Accordingly, if asked about the report or for a copy of the report, after ten days, the DLR makes it available.
l. Post Fact-Finding mediation
If the parties are unable to reach agreement after the fact-finder issues his/her report, the DLR mediator contacts the parties and schedules additional mediation to assist them in resolving the dispute. The mediator notifies the Director within 30 days whether any additional mediation is likely to resolve the impasse. If the DLR Director believes that no additional mediation will resolve the impasse, the mediator no longer works with the parties on the impasse.
m. Certification of Completion of the Collective Bargaining Process
Either or both parties may request that the Director certify to the parties that the collective bargaining process, including mediation, fact-finding, or arbitration, if applicable, has been completed. This is in the form of a motion or letter.
If the Director determines that the dispute resolution mechanisms provided for in M.G.L. c. 150E, Section 9 have been exhausted, the Director certifies to the parties that the collective bargaining process has been completed.
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[101] M.G.L. c. 150E, Section 9; 456 CMR 21.09.
2. Grievance Mediation Services
a. Services provided
The DLR offers grievance mediation services to public sector and private sector parties. Generally, parties using DLR services have agreed in their collective bargaining agreement to DLR grievance mediation services, though parties may also agree to request DLR grievance mediation services even if their contract does not specifically provide for this.
b. Initiating a case
- Filing the petition
A party seeking grievance mediation must file a Petition for Grievance Mediation (OGM Petition). Forms are available on the DLR website. (www.mass.gov./lwd/labor-relations/). A party making such a request must file a petition in accordance with 456 CMR 12.12 .
- Filing Fee
The filing fee for an OGM Petition is currently $300.00. The cost is equally divided between the parties.[104]
c. DLR initial steps
The DLR assigns the OGM Petition a case number and mediator. The DLR then sends the parties a letter informing them of the mediator assignment. The mediator contacts the parties within five days to schedule mediation sessions.
d. Mediator confidentiality
The mediator is not required to disclose any files, records, documents, notes, or other papers or be required to testify with regard to any information obtained while functioning as a mediator.[105] No discussions, offers of compromise, or proposed settlements generated during a grievance mediation are admissible as evidence in an arbitration proceeding.
e. Mediator role
The mediator decides whether to hold separate or joint conferences in an attempt to assist the parties in reaching a voluntary settlement of the dispute prior to grievance arbitration. An agreement to mediate does not alter a scheduled arbitration date unless both parties agree to do so.
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3. Grievance Arbitration services
a. Services provided
The DLR offers grievance arbitration services to public sector and private sector parties. Generally, parties using DLR arbitration services have agreed to use the DLR in their collective bargaining agreement, though parties may also agree to request DLR arbitration services even if their contract does not specifically provide for this.
b. Initiating a case
- Filing the petition
An employer or labor organization, or both, may petition the DLR to initiate grievance arbitration using the DLR arbitration form. Forms are available on the DLR website. (www.mass.gov./lwd/labor-relations/). A party seeking arbitration must file a petition in accordance with 456 CMR 12.
- Filing fee
The filing fee for arbitration services is currently $1,000 for public sector parties and $1,500 for private sector parties. The cost is equally divided between the parties.
c. DLR initial steps
When the DLR receives the petition, the docketing staff assigns the petition a case number. The Director, or her designee, then classifies the petition using the DLR’s Arbitration Impact Analysis System, discussed below.
d. Classification of the petition
Arbitrations are scheduled on a priority system, in much the same way as the DLR processes its unfair labor practice cases. This enables the DLR to provide more efficient scheduling to parties. Arbitration Impact I cases are those involving terminations, suspensions of five (5) days or more, layoffs, class action cases, and any case affecting the health and safety of employees. These cases are scheduled for hearing within one to three months, depending on the level of urgency, and it is anticipated that the decision generally issues within one month from the date that the parties’ briefs are received. The remaining cases are classified as Impact II, and are scheduled within three to six months. It is anticipated that the decision generally issues within three months from the time that the parties’ briefs are received.
e. Mediation
A mediator is assigned to all Impact I cases to assist the parties in resolving the underlying grievance. After the DLR sets an arbitration date, a mediator contacts the parties to discuss mediation. Mediators are also available for Impact II cases at the request of the parties.
f. Notice to Parties of Pending Petition
After the DLR dockets and classifies the petition, the DLR notifies the parties of the pending petition, its Impact Analysis classification and the scheduling procedures.
- Impact I scheduling procedures
The parties are required to confer and agree to three proposed dates for the arbitration hearing that fall within the assigned quarter. The petitioner must provide the dates within fourteen days of receiving the DLR notice. If the petitioner fails to submit dates or submit a written statement explaining why the parties have been unable to submit mutually agreed upon dates, the petition is dismissed, absent extraordinary circumstances.
- Impact II scheduling options
- Option one – traditional arbitration
The parties are required to confer and agree to three proposed dates for the arbitration hearing that fall within the assigned quarter. The petitioner must provide the dates within fourteen days of receiving the DLR notice. If the petitioner fails to submit dates or submit a written statement explaining why the parties have been unable to submit mutually agreed upon dates, the petition is dismissed, absent extraordinary circumstances.
- Option two – general expedited procedure
Parties are given the option to utilize the DLR’s general expedited procedure that moves an Impact II case to the front of the calendar and provides the parties an immediate decision after the arbitration hearing. In order to participate in this program, both parties must agree to the process set out in a General Expedited Arbitration Agreement (Agreement). If both parties agree to the terms, the parties are asked to sign, date and return the Agreement to the DLR with three proposed hearing dates within the assigned quarter. This is a summary of how the expedited arbitration procedure works:
- The arbitration hearing takes seventy minutes: the labor organization and the employer each receive up to twenty five minutes to present their positions and ten minutes for rebuttal. Time frames may be extended at the arbitrator’s discretion. There are no cross examination; however, either side may ask clarification questions through the arbitrator.
- Each party should bring one person to present the case and one additional representative. The employer and/or the labor organization may request the attendance of other necessary witnesses, and the arbitrator will not unreasonably deny such requests.
- The employer and/or the labor organization may submit a written position statement of not more than five pages to the arbitrator before the arbitration.
- The arbitrator’s Award is no more than one page in length and is transmitted to the parties the next regular business day.
- The arbitrator’s Award is final and binding on the parties and there is no right to appeal the arbitrator’s decision in any court or tribunal. The Award does not set precedent.
- Both parties have, either present at the arbitration hearing or immediately available by phone, a person(s) with full settlement authority in the event a settlement is proposed.
g. Arbitrator Appointment
The DLR Director appoints a single arbitrator who hears and determines the case on one of the dates provided by the parties. All pre-arbitration hearings and motions and issues are directed to the appointed arbitrator.
h. Subpoenas
Any party may request a subpoena from the arbitrator to compel the attendance of witnesses, or the production of documents. A request for a subpoena is allowed unless it is overbroad, oppressive, or otherwise legally defective. The party requesting the subpoena is responsible for service of the subpoena.
i. Hearing
The arbitrator has authority and responsibility for the conduct of the arbitration proceedings and has sole discretion in deciding any procedural issues. For further information about the arbitration hearing, see 456 CMR 23.07.
j. Arbitration Awards
In Impact I cases, the arbitrator generally issues an Award within one month from the time briefs are submitted. In all other cases, the arbitrator generally issues an Award within three months from the time briefs are submitted.
k. Clarification, Modification, or Award Correction
- A joint request for clarification, modification, or correction of an Award must be submitted to the DLR within 14 days after the parties have received the Award. The arbitrator promptly determines whether to grant the request and notifies the parties in writing of the decision.
- A unilateral request for clarification, modification, or correction of an Award must be submitted to the DLR within 14 days after the parties have received the Award. Such a request must be served upon the opposing party in accordance with the DLR’s Service requirements.[106] The opposing party must respond within seven days of service. The arbitrator promptly determines whether to grant the request and notifies the parties in writing of the decision.
l. Publication of Award and Opinion
The arbitrator’s Award and Opinion (decision) is treated as a public record. The DLR publishes arbitration decisions. If either party to the proceeding gives written notice to the DLR within 30 days that it objects to publication, the DLR considers such requests and notifies the parties within 30 days of its decision.
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