Overview
The Department of Labor Relations (DLR) did not meet all of its case stage timeline goals. Our testing revealed that DLR did not meet 9 (39%) out of 23 of its case stage timeline goals.
The table below highlights the results of the case stage timeline goals that failed our testing for the following case types:
- unfair labor practice (ULP) cases;
- representation cases specifically concerning representation petition and election (RPE) cases;
- representation cases specifically concerning written majority authorization petition (WMA) cases; and
- labor dispute mediation cases specifically concerning police/firefighter interest mediation (PF) cases.
See Appendix B for a table that summarizes the results of the case stage timeline goals that both passed and failed our testing.
| Case Type | Case Stage* | Case Stage Timeline Goal |
|---|---|---|
| ULP | 3. Investigation Ripe for Decision to Issuance of Probable Cause Determination—Level 1 | 80% within 40 Days COVID-19 Target—45 days |
| ULP | 4. Investigation Ripe for Decision to Issuance of Probable Cause Determination—Level 2 | 80% within 50 Days |
| ULP | 5. Issuance of Complaint to 1st Day of Hearing—Level 1 | 70% within 210 Days |
| RPE | 1. Filing of the Petition to the Election Being Held | 80% within 120 Days |
| RPE | 2. Filing of the Petition to Consent Election Agreement | 70% within 60 Days |
| RPE | 3. Consent Election Agreement to Election | 80% within 60 Days |
| RPE | 5. Briefs Filed to Hearing Officer—Draft Decision | 60% within 60 Days |
| WMA | 2. Investigator Assigned to Certification | 80% within 30 Days |
| PF | 1. Filing of the Petition to the First Mediation Session | 60% within 60 Days |
* While DLR calls these case type descriptions, we have labeled them case stages to differentiate between these and the case types as defined in “Types of Cases Processed” in the Overview section of this report.
If DLR does not process cases in a timely manner, labor issues impacting the public sector may be prolonged, potentially resulting in a less stable, productive, and cooperative work environment.
Authoritative Guidance
In response to our prior audit recommendations (No. 2019-0231-3S), DLR created a document titled DLR Case Processing Goals (see Appendix A), which specified the following:
- the maximum number of days DLR should take to complete each of 23 unique case stage timeline goals and
- the percentage goals that DLR should meet regarding staying under the maximum number of days for each case stage timeline.
Reasons for Issue
DLR did not have adequate policies and procedures that outlined how to effectively monitor case stage timeline goals or that provided solutions to expedite cases that did not meet case stage timeline goals. Also, we found that there were several instances where an event recorded in a case file in DLR’s case management database did not match the terminology that was supposed to be recorded, according to the DLR Case Processing Goals document. When we informed DLR officials about this issue, they said this was because the case management database does not have a universal format for recorded information. Instead, employees must enter the information manually, which leads to consistency issues. This issue was especially prevalent when calculating the time between events.
DLR’s director told us that, during the audit period, various staffing changes resulted in an increased amount of time to complete cases.
Recommendations
- DLR should ensure that its policies and procedures outline how to effectively monitor case stage timeline goals and provide solutions to expedite cases that do not meet case state timeline goals.
- DLR should introduce universal formatting to its case management database to ensure data consistency, which will help DLR meet its case stage timeline goals, even during periods of high employee turnover.
Auditee’s Response
In response to the recommendations contained in the 2019 [Office of the State Auditor (OSA)] report (No. 2019-0231-3S), DLR developed case processing time targets for all types of cases processed. While DLR strives to achieve this target in every case, it is understood there will inevitably be cases where circumstances outside of DLR’s control will prevent achieving time targets. The goal reflects the percent of cases where the DLR expects to meet the time target as well as the percent of cases where it expects that circumstance outside of DLR's control will prevent it from meeting those time targets. The information below reflects those circumstances.
In addition to time targets, DLR also decided to track certain case processing times with the understanding these are not performance goals.
DLR also provided the responses below about case stages that did not meet the case stage timeline goal, as noted in the table in Finding 1.
Regarding ULP 3 case stages not meeting the case stage timeline goal, DLR stated the following:
Management agrees with the finding, based on the case processing goals that were formally in place at the time of the audit. We note, however, that in [fiscal year] 2021, it was decided that the time targets for new employees would be changed. During the audit period, four Counsel II Hearing Officers left DLR and their positions were backfilled by entry-level Counsel I Investigators. In November 2020, DLR modified its Performance Standard for new Counsel I Investigators to reflect that it would not be appropriate to expect them to meet the 45-day time target for issuance of probable cause determinations until they gained experience. This change to the case processing goals was conveyed to the affected staff but was not formally captured in the DLR Case Processing Goals at that time. The new Performance Standard for Counsel I Investigators in their first year of practice is as follows:
Investigate prohibited practice charges and issue resulting probable cause determinations within 45 days of the investigation or in the event that a party has permission to submit additional information after the investigation, within 45 days of the closing of the record. The timeframe for issuance of probable cause determinations will be 90 days for the first six months after assignment of investigation duties and 75 days for the next six months after assignment of investigation duties. If for any given reason that goal is unrealistic (due to complexity, other case priorities or current backlog), work together with the Director or designee to establish a reasonable goal.
Of the four cases identified as “Failed,” two were processed by new employees and in each instance, these two cases both met the adjusted Performance Standard. Adjusting for the change in time targets for new employees established in [fiscal year] 2021, this goal would have been met.
Management intends to formally modify its case processing goals to reflect these adjusted Performance Standards.
Regarding ULP 4 case stages not meeting the case stage timeline goal, DLR stated the following:
See above regarding change in time targets for newly hired investigators.
Of the 39 cases identified as “Failed,” 19 of those were processed by new employees and of these, 10 cases met the adjusted new employee targets and 9 failed the adjusted targets. Adjusting for the change in time targets for new employees established in [fiscal year] 2021, this goal would have been met.
Management intends to formally modify its case processing goals to reflect these adjusted Performance Standards.
Regarding ULP 5 case stages not meeting the case stage timeline goal, DLR stated the following:
Management agrees with this finding, however, as noted in Appendix A of the Audit, this metric is not considered a performance target and is not included in the staff’s Employee Performance Review System (EPRS). As discussed above, during the audit period, four of DLR’s twelve Hearing Officers left and their positions were filled by employees at the Counsel I Investigator level. Counsel I Investigators typically do not conduct hearings for at least their first year with DLR.
Training the new Hearing Officers, while at the same time having lost a third of our Hearing Officers, made it difficult to schedule hearings within the tracked time period while maintaining appropriate caseloads for the remaining Hearing Officers.
Regarding RPE 1 case stages not meeting the case stage timeline goal, DLR stated the following:
In an election case, the parties have a right, under [Massachusetts General Law] Chapter 150E, to a hearing before [DLR’s Commonwealth Employment Relations Board (CERB)] concerning the composition of the bargaining unit and other details concerning the election unless they agree otherwise. Thus, the election cannot be held until either (1) the parties agree to key aspects of the election through a Consent Election Agreement, or (2) the CERB conducts a hearing and issues an order setting forth the details of the election.
Of the 11 cases identified as “Failed,” one case . . . involved extensive litigation and a hearing before the CERB on a complex and novel issue. Six of the cases involved the parties’ own delays in reaching a Consent Election Agreement. Consent Election Agreements must be agreed upon by all parties to the case—and agreement is often outside the control of DLR. Because of the rules governing the sequence and timing of elections, filing the petition alone cannot be the only thing considered when reviewing related timing.
Management intends to utilize the reporting capabilities of the new case management system to encourage staff to be more diligent in pursuing Consent Election Agreements in a timely fashion.
Regarding RPE 2 case stages not meeting the case stage timeline goal, DLR stated the following:
Because a Consent Election Agreement must be agreed upon by all of the parties to the case, the ability to reach an agreement is often outside the control of DLR employee assigned to the case. Absent a Consent Election Agreement, the dispute must go to a hearing before the CERB and after briefs have been filed, the CERB will issue a decision resolving the disputed issue. This process will inevitably take far longer than the 60-day time target for reaching a Consent Election Agreement and thus it is typically preferable to continue to pursue an agreement between the parties rather than shift to the CERB hearing process. In addition, in one of the cases identified as “Failed,” . . . issues concerning a blocking ULP charge had to be litigated before the CERB before a Consent Election Agreement could be entered into.
Management intends to utilize the reporting capabilities of the new case management system to encourage staff to be more diligent in pursuing Consent Election Agreements in a timely fashion.
Regarding RPE 3 case stages not meeting the case stage timeline goal, DLR stated the following:
During the audit period, which included the COVID-19 pandemic, DLR conducted all elections by mail ballot, as opposed to holding elections in person. When conducting elections by mail ballot, meeting the time targets between the Consent Election Agreement and the election was a challenge because time must be allowed for the ballots to be received by the voter, filled out, and returned to DLR. In addition, in at least one case, . . . the mailing of the ballots was delayed after the Consent Election Agreement was reached because the Respondent failed to provide the required list of eligible voters and their mailing addresses, in a timely fashion, after staff sent reminders.
Management intends to utilize the reporting capabilities of the new case management system to encourage staff to schedule the elections in a timely fashion.
Regarding RPE 5 case stages not meeting the case stage timeline goal, DLR stated the following:
In one of the only two cases identified as “Failed,” . . . the Hearing Officer’s draft decision was untimely due to the extraordinary complexity of the case, involving a novel procedural question and extensive litigation over a complex issue.
Regarding WMA 2 case stages not meeting the case stage timeline goal, DLR stated the following:
Of the ten WMA cases identified as “Failed,” five involved employees working in the cannabis cultivation industry, which are cases that present new and unique challenges. DLR does not generally have jurisdiction over private sector employees, they come under the jurisdiction of the National Labor Relations Board (NLRB). However, agricultural employees are exempted by statute from NLRB jurisdiction and instead, DLR has jurisdiction over them. Most companies that are involved in cannabis cultivation have both agricultural and non-agricultural employees and so, when a case involving the cannabis cultivation industry is filed with DLR, the first step is to determine which employees are agricultural, over whom DLR has jurisdiction, and which are not (and therefore subject to NLRB jurisdiction). This process involves challenges and counterchallenges to the employee lists and can cause the time to certification to extend beyond the 30-day target.
Management intends to utilize the reporting capabilities of the new case management system for staff to more effectively track and comply with time targets.
Regarding Joint Labor Management Committee (JLMC) 1 case stages (which are referred to as PF cases in this report) not meeting the case stage timeline goal, DLR stated the following:
Historically, the JLMC has conducted all of its mediation sessions in person. With the onset of the COVID-19 pandemic, all mediations were conducted by video conference and many parties, unaccustomed to this mode of mediation, wished to have the mediation postponed in hopes the pandemic would abate, and in-person mediation could resume. As a result, and often at the request of the parties, initial mediation sessions occurred outside the time target.
[OSA] arrived at their figures by measuring, in the Time Matters case-tracking system, the number of days between event code “Case Filed” and event code “Mediation Conducted.” Management’s review of the data tested by SAO identified many cases where JLMC staff failed to input the first instance of the “Mediation Conducted” in the case tracking system.
Management reached this conclusion because subsequent events in the case tracking system could only have been entered if the initial mediation session had taken place. Assuming that the initial mediation sessions took place as scheduled (which, as explained above, is a logical and appropriate assumption), JLMC would have achieved an 85% success rate which is well above the goal of 60%. If the initial mediation session did not take place as scheduled, it was because one or both of the parties requested postponement.
In the new case management system, on the day after the initial mediation session was scheduled to occur, staff will be required to enter whether the mediation took place.
Regarding Recommendation 1 in this audit report, DLR stated the following:
DLR’s current legal case management system is 13 years old and has reached the end of its life cycle. The current system does not allow either staff or supervisors to monitor compliance with case processing targets in real time. DLR has been working with [the Executive Office of Technology Services and Security] over the past two years to design and implement a new legal case management system that will allow real-time monitoring of case processing targets. The new system, which is in the final stages of testing, is expected to go live on August 27, 2024, and certain functionality described above, such as reports and reminders, will be available in November 2024. The new system will provide staff with real-time information regarding the cases assigned to them and compliance with time targets. The new system will also include robust audit functionality, allowing supervisors and managers to make queries and generate related reports on various metrics including individual staff compliance and more broadly department-wide compliance with goals.
Policies and procedures to utilize the enhanced monitoring and reporting capabilities of the new case management system will be developed by December 2024.
Regarding Recommendation 2 in this audit report, DLR stated the following:
The new legal case management system, discussed above, is designed with universal formatting of case processing events to ensure data consistency. The new system will go live on August 27, 2024, and certain functionality described above, such as reports and reminders, will be available in November 2024.
Auditor’s Reply
In its response, DLR stated that it revised its case stage timeline goals in fiscal year 2021 to give newly hired investigators additional time to complete case stages. Additionally, DLR’s response stated that the results of this audit would have been different if we had used the updated case stage timeline goals. While fiscal year 2021 was in the audit period, DLR did not communicate these revised timeline goals to us while we conducted this audit, nor was it documented in the DLR Case Processing Goals document that DLR provided to us at the start of the audit. DLR’s response stated that it intends to update this document with the revised performance standards for meeting its goals. We agree that this will be important so DLR management and its staff members fully understand the case stage timeline goals.
In its response, DLR also stated that this audit measured whether DLR met case stage timeline goals for case types that DLR “did not consider a performance target.” These are noted in Appendix A as case types it will “track” rather than “target.” While we conducted this audit, it was our understanding that timelines for case types noted as “track” were still a requirement of DLR if these case types contained a corresponding case stage timeline goal, but that these were at a lower risk of not meeting the timeline requirement. Therefore, we included them in our audit to determine if DLR met case stage timeline goals for all case types marked as “track” and “target.” We recommend that DLR revise its Case Processing Goals document to clarify the distinction between case types that will be categorized as “track” and “target” so that DLR management and staff members understand the case stage timeline goals of the agency.
Based on its response, DLR is taking measures to address our concerns in this area. Our office looks forward to our post-audit review alongside DLR, where we intend to further review the revisions in DLR’s Case Processing Goals document.
| Date published: | October 30, 2024 |
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