The Department of Labor Relations1 (DLR) was established in November 2007 pursuant to Chapter 145 of the Acts of 2007. This legislation formally merged the former Labor Relations Commission and Board of Conciliation and Arbitration. Section 9O of Chapter 23 of the Massachusetts General Laws established DLR within, but not subject to the jurisdiction of, the Executive Office of Labor and Workforce Development. DLR is administered by a director, appointed by the Governor, whose duties are set forth in Sections 9R(c) and (d) of Chapter 23 of the General Laws.
The majority of DLR’s work is dedicated to adjudicating charges2 of prohibited practices under Chapters 150A (the Private Sector Collective Bargaining Law) and 150E (the Public Employee Collective Bargaining Law) of the General Laws, which were enacted in 1973. Prohibited practices include employer discrimination or retaliation against employees engaged in activities protected by the law, failure of an employer or employee organization to collectively bargain3 in good faith, and failure of an employee organization to properly represent a member of the bargaining unit.4
To ensure prompt and fair resolution of labor disputes, DLR conducts investigative reviews and hearings on labor grievance charges or petitions filed with the agency, renders decisions, and litigates case decisions appealed to the Appeals Court. Conciliation efforts by DLR often result in voluntary resolution of cases instead of litigation.
DLR’s main office, located at 19 Staniford Street in Boston, serves eastern Massachusetts; its field office, at 436 Dwight Street in Springfield, serves western Massachusetts. As of June 30, 2018, DLR had 15 full-time and 10 part-time employees. DLR also had two per-diem members who served as members of the Commonwealth Employment Relations Board (CERB) and another per-diem member to serve as the chair of the Joint Labor Management Committee (JLMC) during the audit period. Staff members assigned to the field office perform the same functions as those in the main office, except for processing case intakes and conducting hearings, which are done only at the main office. According to Section 11 of Chapter 150E of the General Laws, these staff members are responsible for conducting investigations and hearings.
DLR received state appropriations of $2,333,049 and $2,374,663 for fiscal years 2017 and 2018, respectively. As of June 30, 2018, DLR had 422 open cases, which had been open for an average of 42 weeks.
DLR’s Organizational Structure
DLR comprises three active working groups.
Dispute Resolution Office
According to Section 9P of Chapter 23 of the General Laws,
The dispute resolution office shall consist of hearing officers, mediators, arbitrators, investigators, and other skilled professionals who shall attempt, through the use of pre-hearing investigative conferences, expedited hearings, mediation, deferral to arbitration, and other dispute resolution procedures, to resolve any labor dispute brought to the attention of [DLR].
CERB is a three-member appellate body within DLR that was created during the 2007 reorganization of certain Commonwealth agencies in accordance with Section 9R of Chapter 23 of the General Laws. CERB has one full-time chair and two per-diem members, who are all appointed by the Governor. It is primarily responsible for issuing decisions and final orders on appeals of Unfair Labor Practice cases. In addition, CERB is occasionally involved in resolving Representation cases, Clarification/Amendment Petition cases, and Written Majority Authorization cases.
JLMC is responsible for overseeing police and firefighter labor contract negotiations. According to its website, “JLMC may, at its discretion, take jurisdiction in any dispute over the negotiation of the terms of a collective bargaining agreement involving municipal firefighters or police officers.” JLMC consists of 12 members appointed by the Governor, plus a chair who is nominated by the members.
DLR Case Management System
During the audit period, DLR used Time Matters from LexisNexis as its case management system for managing all nine of its case types and their related workflows. The system also allows DLR to run queries against its data on an ad hoc, monthly, and year-to-date basis to obtain all of its case management metrics and generate operational reports.
According to DLR’s 2018 annual report and its October 2017 document A Guide to the Massachusetts Public Employee Collective Bargaining Law (known as the Green Book), the agency handles the following case types:
- Unfair Labor Practice: These cases, which represent most of the cases DLR handles, involve charges of prohibited practices listed in Chapter 150A (for the private sector) or 150E (for the public sector) of the General Laws. These charges may include, among others, allegations that an employer retaliated against an employee for participating in activities protected by law, that an employer did not bargain in good faith, or that a union did not properly represent one of its members.
- Grievance Arbitration:5 In these cases, a petition is filed with DLR by an employer or by a public-employee union representative requesting arbitration services. DLR facilitates meetings between the parties with the goal of settling disputed matters. If the parties cannot reach a settlement, DLR arbitrators conduct evidentiary hearings, hear oral arguments, and accept written briefs. The record is closed after the hearing and submission of briefs, and the DLR arbitrator subsequently issues an award.
- Clarification/Amendment Petition: According to the Green Book, these petitions are filed with DLR by a party to an existing bargaining relationship (i.e., an employer or employee union) to clarify “whether particular employees are included in or excluded from an existing bargaining unit.”
- Contract Mediation: In these cases, employer and employee union representatives from the public or private sector submit petitions to DLR to resolve contract negotiation disputes through a neutral third party. Accordingly, DLR provides the parties with a mediator who then coordinates meetings between them until the case is resolved.
- JLMC: In these cases, a petition has been filed with JLMC to exercise jurisdiction in prohibited-practice matters or assistance in collective bargaining discussions related only to unions representing municipal police and firefighting personnel.
- Representation: These cases involve matters related to petitions that may be filed by employees or employers regarding representation. This process is used by employees to select or reject representation by a particular union for collective bargaining purposes. Employers may also use the petition process to determine which union represents the most employees within a certain worker classification. An employer can also use it to clarify which employees fall within a designated union worker classification.
- Written Majority Authorization: The Green Book defines this process as follows:
A majority of employees in a petitioned-for, appropriate bargaining unit may designate an employee organization as their exclusive representative by signing authorization cards, petitions, or other suitable written evidence.
- Outside Grievance Mediation: These cases represent requests by parties to a collective bargaining agreement for DLR’s assistance in resolving grievances through mediation.
- Other: This category represents all other case types that are administered by DLR. These cases occur infrequently and include the following:
- Requests for Binding Arbitration: These relate to instances where, according to the Green Book,
DLR orders the parties to a written collective bargaining agreement to submit an unresolved grievance to arbitration if the parties’ collective bargaining agreement does not contain a final and binding arbitration procedure.
- Strike Investigations: These are prompted by petitions filed with DLR by public employers for investigation of legally prohibited work stoppages by public employees.
-Requests for Advisory Rulings: These are addressed by CERB, which, according to the Green Book, “issues an advisory ruling when a party to collective bargaining negotiations challenges the negotiability of a written proposal submitted to it by the opposing party.”
DLR Case Management Intake
DLR processes all submissions related to labor matters (e.g., charges or petitions) through its main office. These submissions are received via email, postal mail, or fax. Intake staff members record the receipt of each submission in DLR’s handwritten list of all cases (i.e., its docket log). DLR’s intake staff enters submission details in the agency’s Time Matters case management system. A DLR hearing officer accepts the case in Time Matters and, if applicable, assigns it a priority level6 (I or II) for further processing. The system automatically assigns a case number and notifies intake staff members of the approved case, and they update the docket log with the assigned case number. For submissions not in accordance with Chapter 150A or 150E of the General Laws, the submitting party is notified that the submission has been dismissed because DLR lacks jurisdiction.
The Green Book is available in electronic format on DLR’s website. It provides background information about the agency, cites relevant case law, and describes the ways the various case types are processed and their anticipated processing times. The following is a description of what occurs after the case intake process for Unfair Labor Practice, Grievance Arbitration, and Clarification/Amendment Petition cases, based on the processes described in the Green Book that have identifiable phase and case life cycle7 time standards.
Unfair Labor Practice Complaint Process8
DLR schedules and conducts an investigation to determine whether there is probable cause9 to proceed. If the investigation is concluded with a finding of probable cause, the investigator prepares a complaint and schedules a hearing. At the conclusion of the hearing, after receiving all pertinent information, a hearing officer issues a written decision to the parties involved. The case is subsequently closed unless the hearing officer’s decision is appealed. Before a decision is issued, the parties may continue to mediate among themselves and are encouraged to do so, because it could result in the withdrawal or settlement of a case.
Grievance Arbitration Process
DLR schedules a hearing with the parties to the arbitration but encourages them to try to reach a settlement before it begins. For those that do not settle, a DLR arbitrator conducts evidentiary hearings, hears arguments, and accepts briefs. After the close of the hearing and submission of any briefs, the arbitrator issues an award and the case is closed.
Clarification/Amendment Petition Process
DLR assigns a hearing officer to investigate the petition and sends a letter to the parties involved, giving them two options10 for case processing. According to the Green Book, under the traditional approach, “Parties must schedule a conference at the DLR for mediation and investigation.” Before the conference, the parties are required to confer and electronically submit documentation (e.g., sworn affidavits, job descriptions, and/or collective bargaining agreements). Once the conference has been conducted, the Green Book states,
If the Hearing Officer determines that there are no disputed facts, the Hearing Officer issues a notice [show cause letter] to the parties to show cause why the case should not be decided based on the parties’ submissions. . . .
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.
The Green Book also provides details regarding the phase and life cycle time standards for Unfair Labor Practice, Grievance Arbitration, and Clarification/Amendment Petition cases.
|May 15, 2019