DLR Did Not Always Meet Its Established Time Standards for Completing Certain Case Types

During the audit period, some cases took over 2,500 days to resolve. The audit notes that the failure to provide a timely resolution to these cases could create an economic hardship for public employees who have brought forward grievances.

Overview

DLR did not always meet standards for the overall completion of the three case types for which it has established time standards: Unfair Labor Practice, Grievance Arbitration, and Clarification/Amendment Petition cases. For example, as detailed in the table below, 88% of the Level I Unfair Labor Practice cases that were completed during our audit period were not processed within the established time standard but rather were 164 days to 1,085 days late.

Analysis of Completed Cases by Case Type

Case Type	Standard Days to Complete	Completed Cases	Cases Exceeding Time Standard	Average Days Exceeding Time Standard	Maximum Days Exceeding Time Standard	Minimum Days Exceeding Time Standard
Unfair Labor Practice
Level I	315	8	7	475	1,085	164
Level II	630	33	28	802	2,903	85
Grievance Arbitration
Level I	120	35	17	252	876	29
Level II	270	68	32	592	2,334	1
Clarification/ Amendment Petition*	210	35	10	202	609	8

*      These cases are not assigned priority levels.

 

In addition, DLR did not consistently meet time standards it had established for different phases of each type of case. For example, 419 out of the 519 Unfair Labor Practice case phases (81%) that were completed during our audit period exceeded established time standards. We also noted that DLR did not record phase activity consistently with DLR guidance for Grievance Arbitration and Clarification/Amendment Petition cases in its case management system. Without time standards to help it monitor case phase and life cycle activity, DLR management cannot identify and address any problems in the case resolution process in a timely manner, which could result in cases becoming backlogged and public employees suffering economic losses because of delays in case processing.

Authoritative Guidance

DLR’s October 2017 document A Guide to the Massachusetts Public Employee Collective Bargaining Law (known as the Green Book) establishes the following time standards:

Phase and Life Cycle Time Standards by Case Type, in Days¹²

Unfair Labor Practice

Phases	Level I Duration	Level II Duration
“Case Filed” to “Probable Cause Determination”	45	90
“Probable Cause Determination” to “Hearing Conducted”	180	360
“Hearing Conducted” to “Hearing Officer Decision Issued”	90	180
Case Life Cycle Total	315	630

 

Grievance Arbitration

Phases	Level I Duration	Level II Duration
“Petition Filed” to “Hearing Conducted”	90	180
“Hearing Conducted” to “Decision Issued”	30	90
Case Life Cycle Total	120	270

 

Clarification/Amendment Petition*

Phases	Duration
“Petition Filed” to “Conference Conducted”	90
“Conference Conducted” to “‘Show Cause’ Letter Sent”	60
“‘Show Cause’ Letter Sent” to “‘Show Cause’ Response Received”	30
“‘Show Cause’ Response Received” to “Commonwealth Employment Relations Board (CERB) Issues Decision”	30
Case Life Cycle Total	210

*  These cases are not assigned priority levels.

 

More specifically, the Green Book contains the following language:

A. Unfair Labor Practice Procedures

1. Initiation of Unfair Labor Practice Cases. . . .
   
   f. Case Docketing. . . .
   
   The DLR will give the parties 30 days to respond to the show cause letter. [Emphasis added.] . . .
    
2. The Investigation. . . .
   
   k.   Expected Timing of Probable Cause Determination
   
   The Hearing Officer issues a determination following the Impact Analysis guidelines. Cases where resolution of the dispute has the greatest urgency are classified as Level I cases and generally are completed within 14 to 45 days of filing the Charge, depending on the level of urgency. Level II cases with less urgency will generally be investigated and completed between 30 and 90 days from the date the investigation is completed. [Emphasis added.] . . .  
    
3. Complaint Litigation
   
   a.   Pre-hearing
   
   1) Classification of the Complaint . . .     
   
   The DLR schedules Level I hearings within three to six months from when the Complaint issues, depending on the level of urgency, and the         decision typically issues within three months from when the record is closed. The DLR schedules Level II hearings within six months to a           year from when the Complaint issues and the decision typically issues within six months from when the record is closed. [Emphasis added.] . . .    

B. Representation Case Procedures. . . .
 

7.   Clarification/Amendment Petitions. . . .

d.   Procedure. . . .

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. [Emphasis added.] . . .

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. [Emphasis added.]

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. [Emphasis added.]

C. Arbitration and Mediation Services. . . .  

3.   Grievance Arbitration Services. . . .

d.   Classification of the Petition. . . .

Arbitration Impact I 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. [Emphasis added.]

Reasons for Issue

DLR has not established monitoring controls to ensure that its established time standards are adhered to.

Recommendation

DLR should develop monitoring controls regarding the completion of case phases and life cycles.

Auditee’s Response

The time standards set forth in the DLR’s “Guide to Massachusetts Public Employee Collective Bargaining Law” (the Green Book) were not based on any historical data and were understood to be aspirational challenge goals. Furthermore, a significant contributor to the failure to meet time standards were instances where the DLR acquiesced to joint requests by the parties for delays and postponements. Nevertheless, DLR will:

1. Review the workflow processes
2. Analyze why time standards were not met
3. Evaluate resources available for case processing
4. Consult with stakeholders, including the DLR Advisory Council, to develop appropriate time standards
5. Adjust workflow processes and time standards, as appropriate based on staffing and resource availability
6. Develop monitoring controls to ensure time standards are met

12.    For all authoritative references citing months and quarters, we used a 30-day month or 90-day quarter as an assumption in our analyses.

Date published:	May 15, 2019