Procedures for public employee collective bargaining

Information on procedures and services regarding public employee collective bargaining.

A. Unfair labor practice procedures

1. Initiation of Unfair Labor Practice Cases 

a. Prefiling Assistance/Officer of the Day

The DLR provides assistance to the public through its officer of the day. DLR agents are available once a week on Thursday afternoon from 1:00 to 5:00 p.m. to answer inquiries and assist members of the public in filing Prohibited Practice Charges (Charge). The DLR agents answer public inquiries regarding the DLR and the laws it enforces, but at no time provide legal advice.

b. Filling Out the Charge

A Charge must be in writing and signed by the party making the Charge and include a declaration that it is signed under the penalties of perjury and that its contents are true and correct to the best of his or her knowledge and belief. Parties must use DLR Charge forms. Charges challenging the amount or the validity of an agency service fee are filed on a separate form.

A Charge must contain the following information:

• The full name and address of the individual, employer, employee, or employee organization making the Charge and his or her official position, if any.
• The full name and principle place of business of the employer or employee organization against whom the Charge is made (Respondent).
• An enumeration of the subdivision of the Law claimed to have been violated and a clear and concise statement of all relevant facts which cause the Charging Party to believe that the Law has been violated.
• Agency Service Fee Charges must also include the date on which the Employee Organization made a written demand for payment of the service fee, the amount of the regular membership dues, the amount of the service demanded and the beginning and expiration dates of the collective bargaining contract under which the service fee was demanded.
• Agency Service Fee Charges that challenge the amount of the service fee must also state whether the charging party has placed the disputed amount of the service fee into a joint escrow account. If the charging party has deposited the amount of the disputed service fee in a joint escrow account, evidence that the account has been established must be submitted with the Charge. If the charging party has not deposited the amount of the disputed service fee in a joint escrow account, a statement explaining why it has not must be included with the Charge.

c. Time Limit for Filing Charges

1. The Charging Party must submit a Charge on the DLR’s Charge of prohibited practice form with the DLR within six months from the date the Charging Party knew or should have known of the alleged prohibited practice, unless good cause is shown.
    
2. Any employee required to maintain union membership as a condition of employment who files a Charge pursuant to M.G.L. c. 150A, s. 6A, must file such Charge no more than 15 days after notice that the union has requested the employee’s discharge or other adverse action for failure to maintain union membership.

d. Filing a Charge

The DLR encourages the parties to file Charges electronically. There are two ways to electronically initiate a case at the DLR and links to both of them can be found on the DLR’s website.

Parties may also file Charges by hand-delivery, mail delivery or facsimile transmission. Charge forms can be found on the DLR’s website and are available at the DLR.

e. Service of a Charge

The Charging Party is responsible to serve the Respondent at the same time the Charge is filed with the DLR. At the time of filing, Parties are required to provide a certificate of service or other indication of service.

Parties who file electronically on the DLR website will be offered the opportunity to automatically serve the Respondent.

f. Case Docketing

When the DLR receives the Charge, the docketing staff assigns the Charge a case number. If the Charging Party is a union, the docketing staff also reviews DLR records to determine whether the union is in compliance with M.G.L. c. 150E, Sections 13 and 14. The Charging Party is notified that if the DLR authorizes the issuance of a complaint or notice of hearing then no complaint issues until the employee organization has complied with the applicable provisions of M.G.L. c. 150E, Sections 13 and 14 and 456 CMR 15.05(8).

The Director then reviews the Charge to ensure that it complies with the filing requirements described above and to review whether the case should be considered for deferral to the parties’ grievance and arbitration contractual provision. For those cases that meet the filing requirements and are not eligible for deferral, the Director then classifies the Charge using the DLR’s Impact Analysis System.

1. Procedure should the Charging Party fail to allege specific facts.

The Charging Party is required to allege specific facts in the Charge so that the Respondent may fully respond to the allegations. If the DLR determines that the Charge fails to provide sufficient information, the DLR sends a letter asking the parties to show cause (show cause letter) why the Charge shouldn’t be dismissed for failure to provide sufficient information. The DLR promptly considers the responses to the show cause letter, including amplification of the Charge by the Charging Party, and determines whether the Charge should be dismissed.

2. Procedure should the DLR determine that the case should be considered for deferral.

a) If the Charging Party checked the box on the Charge form indicating that a grievance concerning the subject of the Charge has been filed, the DLR sends a show cause letter to the parties asking them for their position on whether the DLR should defer the case to arbitration. [1] The parties are asked to address whether the grievance(s) were filed prior to the expiration of the collective bargaining agreement, whether the grievance remains pending, and any other issues the parties feel are relevant to the deferral determination.

b) If it appears from the face of the Charge that the allegations are essentially questions of contract interpretation, the DLR sends a show cause letter to the parties asking for their position on whether the DLR should defer the case to arbitration, even if the Charging Party did not indicate on the Charge that a grievance had been filed. The show cause letter in these cases also asks the employer whether it is willing to waive any timeliness defense in order to allow for deferral.

c) The DLR will give the parties 30 days to respond to the show cause letter. If the Charging Party fails to respond within 30 days, the DLR, after sending one reminder letter, dismisses the Charge with prejudice and without further notice. If the Respondent fails to respond, the DLR makes a deferral determination without the Respondent’s response.

d) The DLR promptly considers the responses to the show cause letter to determine whether the allegations in the Charge should be deferred to arbitration. In making this determination, the DLR considers if: 1) the issues posed by the Charge are essentially a question of contract interpretation; 2) the statutory issues raised by the case are well settled; and 3) the resources of the DLR and the parties can be conserved through deferral. [2]

e) The DLR promptly notifies the parties of the DLR’s deferral decision.

When the DLR determines to defer a case to arbitration, the DLR retains jurisdiction over the allegations in the Charge in order that it may act under any of the following circumstances: a) if the grievance is not resolved with reasonable promptness by the grievance-arbitration process; b) if the grievance and arbitration procedures have not been fair or regular; or c) if the result of the grievance and arbitration procedure is repugnant to 150E. The parties are also directed to notify the DLR within 30 days of the steps taken to comply with the Notice of Deferral, including forwarding the name of the arbitrator selected and the date of the scheduled hearing. The parties are further directed to forward to the DLR copies of any arbitration awards rendered within ten days of its issuance.

When the DLR determines that a Charge should not be deferred to arbitration, it then is handled as a regular Charge under the DLR’s Impact Analysis classification system.

f) After an arbitrator award issues, if the Charging Party believes the Charge should be reinstated, it may request that the DLR review the arbitrator’s award. The request must be filed within ten days of the arbitrator’s issuance of the Award and follow DLR filing requirements.[3] The request must address whether the arbitration process was fair and regular, whether the unfair labor practice allegations in the Charge were considered by the arbitrator, and whether the award is clearly repugnant to 150E.[4]

g) Classification of the Charge

The Director reviews any Charge that is not subject to a show cause letter to determine whether it should be considered a Level I or Level II case, using the DLR’s Impact Analysis Classification system. Cases where resolution of the dispute has the greatest urgency are processed first and the time frame for completion of the investigation is 14 to 45 days, depending on the level of urgency. Level II cases with less urgency are investigated between 30 and 90 days from the filing date. Although it is difficult to provide an exhaustive list of Level I and Level II cases, as a general rule the following types of cases are considered Level I cases: all representation-related cases, post-election cases, all blocking Charges (blocking a JLMC, Section 9 or representation Petition), 10(a)(3), (4) or (5) cases involving the permanent or indefinite loss of employment, 10(a)(6) and 10(b)(3) allegations, and cases involving novel legal issues that impact a significant number of cases.

h) Initial Notice to Parties of Pending Charge

After the initial docketing procedures discussed above, the DLR sends the parties a Notice of Investigation, notifying the parties of the pending Charge, its Impact Analysis classification, and the scheduling procedures.

1)  Level I scheduling procedures.

The parties are required to confer and agree to three proposed dates for the investigation of the Charge that fall within thirty days of the Notice of Investigation. The Charging Party is required to notify the DLR of those dates within five days of the Notice of Investigation. If after reasonable attempts to secure dates, the Charging Party notifies the DLR that the parties are unable to agree on a date to schedule the investigation, the DLR schedules the investigation and notifies the parties of same. If the Charging Party fails to submit dates or submit a written statement explaining why it has been unable to submit mutually agreed upon dates, the Charge is dismissed, absent extraordinary circumstances.

2)  Level II scheduling procedures.

The parties are required to confer and agree to three proposed dates for the investigation of the Charge that fall within thirty to ninety days of the Notice of Investigation. The Charging Party is required to notify the DLR of those dates within ten days of the Notice of Investigation. If the Charging Party fails to submit dates or submit a written statement explaining why it has been unable to submit mutually agreed upon dates, the Charge is dismissed, absent extraordinary circumstances.

i) Respondent’s Response

The Respondent has the right to file an answer to the Charge within fourteen days after it receives notice of the Charge. The response should be labeled “Respondent’s Response” and include the docket number.

j) Amendments to the Charge

The Charging Party may amend a Charge as of right before the DLR receives Respondent’s Response. A Charging Party seeking to amend a Charge after Respondent has filed its response must first seek permission from the DLR to amend the Charge.

The DLR does not allow a Charging Party to amend a Charge if the amendment does not relate to the underlying allegations.

A Charge is amended by typing “Amended” before the word Charge on the regular Charge form and by rewriting the contents of the Charge to include the desired changes.

k) Postponements

As detailed in 456 CMR 12.07, requests for postponement of an investigation are not granted unless good and sufficient cause is shown and the following requirements are met:

1. The request must be in writing to the Director or Hearing Officer.
2. The grounds for the request must be set forth in detail.
3. The requesting party must specify alternate dates for rescheduling the investigation.
4. The position of all parties concerning both the postponement request and the proposed alternate dates must be provided in the request.
5. Copies of the request must be served contemporaneously on all parties and that fact must be noted on the request.
6. The request must be signed by the party making the request.
7. In considering a postponement request, a “good and sufficient” reason may include a showing to the satisfaction of the DLR that a postponement results in the settlement of the case.
8. Absent compelling circumstances, no request for postponement is granted on any of the three days immediately preceding the investigation date.
9. Absent compelling circumstances, the DLR does not grant more than one postponement request.

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[1] Cohasset School Committee, MUP-410 (1973); M.G.L. c. 150E, Section 11 as amended by Chapter 145 of the Acts of 2007 (the Law or 150E).

[2] Town of Ware, 17 MLC 1565 (1991) (citing Whittier Regional School Committee, 13 MLC 1325 (1986)).

[3] 456 CMR 12.12.

[4] Boston School Committee, 1 MLC 1287 (1975) (adopting Spielberg Mfg. Co., 112 NLRB 1080 (1955)); City of Cambridge, 7 MLC 2111 (1981).

2. The Investigation

The DLR investigates prohibited practice Charge allegations through an In-Person Investigation procedure.

a. Purpose of the Investigation

The purpose of the In-Person Investigation is to provide the parties a full and fair opportunity to present to the Hearing Officer the relevant facts and law regarding the prohibited practice Charge so that the Hearing Officer can determine whether or not there is probable cause to believe that the Respondent violated the Law as alleged.

b. Role of the Hearing Officer

The Hearing Officer is an impartial Hearing Officer. At the investigation the Hearing Officer explains to the parties the purpose of the investigation. Hearing Officers does not provide advice to the parties and must remain neutral. Hearing Officers identify and discuss the legal theories and underlying facts upon which the theories are based with the parties at the investigation. This may be particularly true for individual charging parties who may not have any expertise in the Law and DLR procedures. If the Hearing Officer believes that an allegation is mistakenly alleged, the Hearing Officer provides the Charging Party the opportunity to withdraw or amend the allegations, if the facts are clearly identified in the Charge.

c. Representation by Counsel

Any party required to be present at the In-Person investigation may be represented by counsel or by an authorized representative, if they choose.

d. Burden of Proof

The Charging Party presents its case first and has the burden of presenting sufficient facts to support a finding of “probable cause” to believe that the Respondent violated the Law as alleged.[5]

e. Documents

The DLR does not require parties to submit documents as part of their case, but if a party wishes to submit documents, they should try their best to do so at least three days before the investigation. Additionally, the written material should be submitted in electronic form by e-mailing the documents to the DLR at [e-mail] and served on all other parties in accordance with 456 CMR 12.02. While affidavits are considered, they are not encouraged, as the parties should bring all individuals with first-hand knowledge of the relevant facts to the investigation.

f. Default Procedure

1. Charging Party fails to appear

After waiting for 30 minutes, and after the Hearing Officer attempts to contact the Charging Party, should the Charging Party fail to appear for an In-Person investigation on the pre-scheduled day, the Hearing Officer issues a show cause letter, seeking the Charging Party’s position on case dismissal. If in its show cause response, the Charging Party demonstrates to the DLR sufficient cause for its failure to appear, it is the Charging Party’s responsibility to reschedule the In-Person investigation, using the DLR’s scheduling directions. If in its show cause response the Charging Party fails to demonstrate sufficient cause for failure to appear, the Charge is dismissed. The Charging Party may appeal the DLR’s decision to dismiss the Charge.

2. Respondent fails to appear

After waiting for 30 minutes, and after the Hearing Officer attempts to contact the Respondent, should the Respondent fail to appear for an In-Person investigation on the pre-scheduled day, the Hearing Officer proceeds with the investigation, allowing the Charging Party to present its case. After the investigation, the Hearing Officer issues a show cause letter, seeking the Respondent’s position on closing the record. If in its show cause response, the Respondent demonstrates to the DLR sufficient cause for its failure to appear, it is the Respondent’s responsibility to reschedule the In-Person investigation, using the DLR’s scheduling directions. If in its show cause response, the Respondent fails to demonstrate sufficient cause for its failure to appear, the record is closed and the Hearing Officer makes his or her probable cause determination based on the evidence presented.

g. What to Expect at the Investigation

Although any party may appear through counsel or an authorized representative, the Hearing Officer expects the parties to bring individuals with first-hand knowledge of the facts and circumstances related to the Charge.

Because this is an investigation and not a hearing, the witnesses are not sworn and there is no direct or cross examination. Rather, the parties have the opportunity to present information themselves and in response to the Hearing Officer’s questions. A party may seek clarification or ask questions of the other party, but only through the Hearing Officer.

Generally, each party is limited to 45 minutes to present information, and 15 minutes for rebuttal, if necessary.

In most cases, the Hearing Officer closes the record immediately after the investigation. In the rare case where the Hearing Officer determines that additional information is necessary to make a probable cause determination, the Hearing Officer may keep the record open after the investigation and accept written submissions. This is not encouraged, however, since parties are expected to provide all facts, evidence and legal theories at the investigation. Should the Hearing Officer permit/request written submissions, the parties then receive a specific date by which to provide such written submissions to the Hearing Officer.

h. Motions

Parties must file all motions made before or after an In-Person Investigation in writing in accordance with 456 CMR 12.12. The DLR reviews all such motions and either rule on the motion in the first instance or, where appropriate, defers the motion to the Hearing Officer.

i. The Record

The record of the In-Person Investigation includes the Charge, Respondent’s answer, if any, evidence presented at the investigation, and any written submissions presented before, during, or with permission, after the investigation.

j. Post-Investigation Activity

1. Dismissing the Charge

The Hearing Officer may dismiss the Charge if the Hearing Officer finds no probable cause to believe that a violation of M.G.L. c. 150E has occurred or if he or she otherwise determines that further proceedings would not effectuate the purposes of M.G.L. c. 150E. 456 CMR 15.04.

The Charging Party may request review of the Hearing Officer’s dismissal decision, by filing a request for review with the CERB within ten days from the date of receipt of the Hearing Officer’s dismissal decision. The request must contain a complete statement setting forth the facts and reasons upon which such request is based.[6] The CERB does not consider new information or case theories presented for the first time on review.

The record for reconsideration includes the documents referenced in Section II(A)(2)(i) and the dismissal letter.

Within seven days of service of the request for review, any other party to the proceeding may file a response with the CERB.[7]

2. Deferring the Charge to Arbitration

The Hearing Officer may determine that the Charge should be deferred to the parties’ contractual grievance and arbitration provision. This occurs if, after the investigation, it appears to the Hearing Officer that the allegations raised in the Charge are essentially questions of contract interpretation.[8]

If the Hearing Officer makes this determination, the DLR issues a letter explaining the deferral decision and the parties’ rights and obligations concerning this decision. See Procedures, Section 6(b) (2).

The DLR does not consider a deferral decision to be a final order. Accordingly, the initial decision to defer is not subject to CERB review. However, a party may seek reconsideration of the Hearing Officer’s deferral decision to the Director. The Director reviews the decision to ensure that the DLR’s deferral policy is consistently applied.

After an arbitration award issues, if the DLR determines not to reinstate the case, the Charging Party may ask the CERB to reconsider the deferral decision, by filing a request for review with the CERB within ten days from the date of receipt of the DLR’s decision not to reinstate the Charge. The request must contain a complete statement setting forth the facts and reasons upon which such request is based.

Within seven days of service of the request for review, any other party to the proceeding may file a response with the CERB.[9]

      3. Referring the Charge to Mediation

The Hearing Officer may determine that the allegations in the Charge are best handled through the DLR mediation procedure.

If the Hearing Officer makes this determination, the DLR issues a letter explaining the referral decision and the parties’ rights and obligations concerning this decision. The DLR also appoints a mediator to the case, who provides the parties with dates for the mediation.

If the parties are unable to reach a settlement agreement on their own or through mediation, the DLR reinstates the Charge and the Hearing Officer issues the probable cause determination at that time. If the Hearing Officer referred the case before the In-Person investigation was completed, the DLR asks the parties to schedule a date for an In-Person Investigation, following the DLR’s In-Person scheduling procedures, Section II(A)(1)(h).

The DLR does not consider a decision to refer a case to mediation to be a final order. Accordingly, the decision to refer a case to mediation is not subject to CERB review.

The Hearing Officer may refer charges involving police or fire fighters to the JLMC to promote resolution of the issues described in the charge.

     4. Issuing a Complaint or Partial Dismissal.

If the Hearing Officer determines that there is probable cause to believe that Respondent violated the Law as alleged, the Hearing Officer prepares a complaint. Should the Hearing Officer believe that there is probable cause to believe that Respondent violated the Law with respect to some of the allegations, but not others, the Hearing Officer issues one document that includes a complaint and a partial dismissal decision.

If the Charging Party is a union, the Hearing Officer checks the DLR records to be sure that the employee organization has complied with the applicable provisions of M.G.L. c. 150E, Sections 13 and 14 and 456 CMR 15.05 (8). If the Hearing Officer discovers that the employee organization has not complied with this statutory mandate, the DLR sends a letter to the union informing the union of its obligations and that no probable cause determination can issue until these obligations are met.

The Charging Party may request review of the Hearing Officer’s partial dismissal decision by filing a request for review with the CERB within ten days from the date of receipt of the Hearing Officer’s partial dismissal decision. The request must contain a complete statement setting forth the facts and reasons upon which such request is based.[10] The CERB does not consider new information or case theories presented for the first time on review.

The record for reconsideration includes the documents referenced in Section II(A)(2)(i) and the partial dismissal letter.

Within seven days of service of the request for review, any other party to the proceeding may file a response with the CERB.[11]

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.

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[5] M.G.L. c. 150E, Section 11; 456 CMR 15.07.

[6] 456 CMR 15.05 (9).

[7] 456 CMR 15.05 (9).

[8] 456 CMR 15.05 (1).

[9] 456 CMR 15.05 (9).

[10] 456 CMR 15.05 (9).

[11] 456 CMR 15.05 (9).

3. Complaint Litigation

a. Pre-hearing

1. Classification of the Complaint

After a Hearing Officer prepares the Complaint, the Director reviews the Complaint to determine classification and scheduling issues. She does not review the Complaint for substance.

Cases may change classification status after investigation. Accordingly, similar to the procedure outlined in the Charge Classification description discussed in Section II(A)(1)(g) using the DLR’s Impact Analysis Classification system, the Director determines whether the hearing is classified as a Level I or Level II hearing. Cases where resolution of the Complaint allegations have the greatest urgency are heard first. 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.

2. Mediation

Mediation is mandatory for all Level I cases. The mediation is generally scheduled to take place on the same day as the pre-hearing conference and is conducted prior to the pre-hearing conference. The parties must bring to the mediation individuals with settlement authority, or if that is impossible, ensure that those with settlement authority are available by telephone that day. Although not required in Level II cases, mediation is strongly encouraged, and the DLR provides mediators to assist the parties when they wish to mediate cases.

3. Notice of Complaint

Once the Director classifies the Complaint, the DLR sends the parties the Complaint, together with a Notice of Complaint and Procedure for Scheduling Hearing.

a) Level I Hearing Scheduling Procedures

The parties are required to confer and agree to three proposed dates for the hearing that fall within the period specified on the scheduling form. It is the responsibility of the Charging Party to initiate discussions with the Respondent and to provide the DLR the agreed-upon dates within seven days of the Notice of Complaint and Scheduling Procedure. If after reasonable attempts to secure dates, the Charging Party notifies the DLR that the parties are unable to agree on a date for the hearing, the DLR schedules the hearing and notify the parties of same. If the Charging Party fails to submit dates or a written statement explaining why the parties have been unable to agree upon dates, the DLR dismisses the charge and withdraws the Complaint, absent extraordinary circumstances.

b) Level II Hearing Scheduling Procedures

The parties are required to confer and agree to three proposed dates for the hearing that fall within the period specified on the scheduling form. It is the responsibility of the Charging Party to initiate discussions with the Respondent and to provide the DLR the agreed-upon dates within 30 days of the Notice of Complaint and Scheduling Procedure. If after reasonable attempts to secure dates, the Charging Party notifies the DLR that the parties are unable to agree on a date for the hearing, the DLR schedules the hearing and notifies the parties of same. If the Charging Party fails to submit dates or a written statement explaining why the parties have been unable to agree upon dates, the DLR dismisses the charge and withdraws the Complaint, absent extraordinary circumstances.

4. Amendments to the Complaint

a) Filing the Motion

Within ten (10) days after the DLR issues a complaint, if a party believes that the Complaint should be amended to correct an error or omission; the party files a Motion to Amend Complaint with the Investigating Hearing Officer who issued the Complaint. A party does not have a right to appeal the Hearing Officer’s decision to issue a Complaint or to file a motion to include new allegations it failed to raise at investigation. Should a party file a Motion to Amend Complaint after the hearing opens, it is up to the Hearing Officer to determine whether to Amend the Complaint or not or whether to remand the Complaint to the Investigating Hearing Officer.

b) Appeal

A Hearing Officer’s dismissal of a pre-hearing Motion to Amend is subject to Appeal to the CERB, but under no circumstances does the CERB consider such an Appeal if it is filed less than fourteen days before hearing. The CERB rules on all such motions within seven days.

Appeals of a Hearing Officer’s decision concerning Motions to Amend made at hearing should be filed as Interlocutory Appeals.[12]

5. The Answer

As described in 456 CMR 15.07 (1), the Respondent files an Answer to the Complaint or Amended Complaint within ten days from the date of service, unless otherwise notified by the DLR. The Respondent specifically admits, denies, or explains each of the facts alleged in the Complaint, unless the Respondent is without knowledge, in which case the Respondent so states, such statement operating as a denial. All allegations in the Complaint or Amended Complaint not specifically denied or explained in an Answer filed, unless the Respondent states in the Answer that it is without knowledge, is deemed to be admitted to be true and is so found by the DLR, unless good cause to the contrary is shown.

6. Notice of Hearing

After the Charging Party submits the three agreed-upon dates for hearing or an explanation concerning why the parties have been unable to reach agreement, the Director assigns a Hearing Officer to the case. The Hearing Officer then chooses the date(s) for hearing from the submitted dates and picks a pre-hearing conference date. Once the Hearing Officer chooses the pre-hearing conference and hearing dates, the DLR then issues a Notice of Hearing to the parties, ordering the parties to attend a hearing and pre-hearing conference.

7. Unilateral Settlement

The DLR encourages the parties to settle cases at every case stage, including before hearing. In addition to mandatory mediation in Level I cases, and offering the parties DLR mediators to assist them at every stage of their case, a Respondent willing to fully remedy the Complaint allegations may propose a unilateral settlement to the Director. The details of the DLR’s Unilateral Settlement Procedure can be found here. www.mass.gov/lwd/labor-relations/procedures

8. Petitioning the CERB to Hear a Case in the First Instance

Either party to the case or both jointly, may file a Petition asking the CERB to hear the case in the first instance. The CERB may grant such a Petition in its discretion, and for good cause shown.[13]

Generally, the CERB does not grant such a Petition unless the parties submit a stipulated record, in which the parties have agreed to all material facts, and exhibits in the case, and the CERB can issue a decision without a hearing.

9. Stipulated Records

Occasionally, the parties may agree on all case facts, but not on the applicable law. In this situation, the parties are strongly encouraged to seek permission from the Hearing Officer to stipulate to all facts and receive a decision without a hearing. If the parties wish to receive a decision from the CERB in the first instance, as mentioned above, they may seek permission from the CERB to submit a stipulated record and receive a CERB decision without a hearing. The parties who wish to submit a stipulated record in lieu of a hearing may be required to enter into a written Statement of Stipulated Facts and Exhibits that includes:

(a) A statement of agreement that the parties agree to waive a hearing;

(b) A statement reciting the agreed contents of the entire record;

(c) A statement of agreement that any conflict of fact between the statement of Stipulated Facts and Exhibits and the findings contained in the Complaint of Prohibited Practice or within the Respondent’s Answer, shall be resolved in favor of the Statement of Stipulated Facts and Exhibits; and

(d) A statement that the parties agree not to submit additional facts or exhibits.

The parties signing such a waiver do not waive their right to object to relevancy of any stipulated facts.

10.  Motions

All motions made prior to or subsequent to the hearing are filed in writing with the Hearing Officer and states the order or relief applied for and the grounds for the motion. (See 456 CMR 12.12 for filing instructions). Within seven days of service of the motion, any other party to the proceeding may file a response with the Hearing Officer, unless otherwise directed by the Hearing Officer. The Hearing Officer may defer ruling on any motions until the close of the hearing, and may direct the parties to proceed with the hearing while the motion is pending. All motions made at the hearing are stated orally, unless otherwise directed by the Hearing Officer and are included in the hearing record.[14]

11. Joint Pre-Hearing Memorandum

The DLR requires parties to engage in pre-hearing discussions in order to narrow the issues for hearing and to enable the parties to agree to as many stipulations as possible. As they are instructed to do in the Notice of Hearing, the parties are required to submit a Joint Pre-Hearing Memorandum (Joint Memo) no later than three days prior to the scheduled pre-hearing conference. The Joint Memo must include the following information:

a) Proposed stipulations of fact.

b) List of agreed-upon joint exhibits and copies of the exhibits.

c) List of prospective witnesses, including the witness’ title, the specific subject matter on which the witness will testify and the expected duration of their testimony.

d) List of documents each party intends to introduce at the hearing.

e) List of any subpoena issues (including who may be subpoenaed and a brief description of the documents/testimony requested).

f) Brief description of any pending motions.

g) Any other pertinent information.

The parties must cooperate fully in drafting the Joint Memo. The Charging Party is responsible for producing the initial draft and forwarding same to the Respondent. The Joint Memo is signed by both parties or their legal representatives. If the parties are unable to file a Joint Memo, each party files its own memorandum and includes a reason for the failure to file jointly.

The Joint Memo and all proposed exhibits should be e-filed before the pre-hearing conference to the DLR at its filing address [e-mail].

12. The Pre-Hearing Conference

The Hearing Officer holds a pre-hearing conference (Conference) to ensure that the time spent in the upcoming hearing is used as efficiently as possible.[15] At the Conference, the Hearing Officer explores potential issues, including all possible stipulated facts, joint exhibits, and subpoena issues. The parties are strongly encouraged to agree to as many facts in the form of stipulations as possible to enable the parties to use hearing time for witness testimony on disputed facts.

13. Subpoenas

A party may request the issuance of a subpoena to compel the attendance of witnesses or the production of books, records, documents or correspondence at a hearing.

For details on Subpoena requests, see 456 CMR 13.14 (2), (3) and (4).

For details on Motions to Quash a Subpoena see 456 CMR 13.14 (5).

For information on failing to comply with a Subpoena see 456 CMR 13.14 (6).

14. Postponement Requests

Requests for postponement of a pre-hearing conference or hearing are generally treated the same as investigation postponements discussed above in Section II(A)(1)(k) and detailed in 456 CMR 12.07. Postponement of a pre-hearing conference or hearing is not granted unless good and sufficient cause is shown and the following requirements are met:

a) The request must be in writing to the Director or Hearing Officer.

b) The grounds for the request must be set forth in detail.

c) The requesting party must specify alternate dates for rescheduling the hearing or conference.

d) The position of all parties concerning both the postponement request and the proposed alternate dates must be provided in the request.

e) Copies of the request must be served contemporaneously on all parties and that fact must be noted on the request.

f) The request must be signed by the party making the request.

g) In considering a postponement request, “good and sufficient” reason may include a showing to the satisfaction of the Hearing Officer that a postponement results in the settlement of the case.

h) Absent compelling circumstances, no request for postponement is granted on any of the three days immediately preceding the conference or hearing date.

i) Absent compelling circumstances, the DLR does not grant more than one postponement request in the case.

b. Hearing

1. Burden of Litigating the Complaint Allegations

Although the DLR issues the Complaint in its own name and must authorize all Complaint allegations, the Charging Party is responsible for litigating the case.

2. Burden of Proof

The facts that must be proven to support or defend against the Complaint depend on the allegations contained in the Complaint. Generally, the Charging Party has the burden to prove, by a preponderance of the evidence, any allegation that the Respondent has denied. For a fuller discussion of the elements of different types of charges, see the Summary of Decisions Section, below.

3. Role of the Hearing Officer

The Hearing Officer conducting the hearing assists the parties by answering questions about the DLR procedures, though the Hearing Officer cannot act as the representative of a party or give legal advice. The Hearing Officer may ask questions of the parties and witnesses to clarify testimony, issues, or positions.

The role and authority of the Hearing Officer are detailed in 456 CMR 13.03 (2) and 456 CMR 13.07.

4. Exhibits

a) DLR Exhibits

The Record always includes the underlying Prohibited Practice Charge, the Complaint, Notice of Hearing, and the Answer. These documents are marked as DLR Exhibits 1-4.

b) E-Filing Exhibits

Documents or records expected to be introduced in evidence should be e-filed before hearing to the DLR at its filing address [e-mail]. The Hearing Officer may ask the parties to e-file additional exhibits after the hearing is completed. Parties should also bring sufficient hard copies to the hearing for the Hearing Officer and all other parties and a witness copy.

5. Reporter and Transcript of Testimony

The Hearing Officer records the hearing and offers the parties a digital recording or computer disc of the recording.

Parties who wish to pay for the services of a stenographer to record and transcribe a hearing may request permission of the Hearing Officer. A party may further request that the Hearing Officer designate a written transcript of the proceeding as the official record subject to the following requirements listed in 456 CMR 13. 12:

a) The transcript is made available to all parties.

b) All have the opportunity to object to the accuracy of the transcript.

c) A copy of the transcript is made available for purchase to all other parties for a reasonable fee.

d) A copy of the transcript is provided without charge to the DLR.

6. Open to the Public

Except in extraordinary circumstances, a hearing is open to the public.

7. Opening Statements

The parties are given the opportunity to present opening statements to the Hearing Officer to set the context of the case, explain why certain elements and evidence are relevant to the case, and offer the party’s legal theories on the Complaint allegations. The Respondent may choose to wait to present its opening statement until before it presents its case.

8. Witness Testimony Live and Video

Witnesses are examined orally under oath or affirmation, except if they reside outside of the Commonwealth or because of illness or other cause are unable to testify at the DLR. In such situations, the DLR may direct that the testimony be taken by video.[16] A party requesting video testimony must provide all necessary video conferencing equipment. That party may also be required to retain a stenographer to ensure that the video testimony is accurately recorded.

In determining whether video testimony is appropriate the DLR considers the following:

a) Significance of the testimony.

b) Proximity of witness to the hearing site.

c) Circumstances leading to the request.

d) Number, length, and types of documents to be moved into evidence through witness testimony.

e) Number of witnesses who would testify by video and expected length of testimony.

f) Availability and adequacy of video conferencing equipment.

g) Position of the parties.

9. Sequestration of Witnesses

The Hearing Officer may grant a party’s motion to issue a Sequestration Order or may on her own order sequestration. This means that all persons who are going to testify, with certain exceptions, may be present in the hearing room only when they are giving testimony. In addition, witnesses may not discuss testimony with any other witnesses or potential witness during the course of the hearing. Parties can select one individual to remain in the hearing, even if they are a potential witness, if they deem the person essential to the presentation and management of the case.

10.  Examination of Witnesses and Introducing Exhibits

The Charging Party presents its evidence first, by calling its witnesses and submitting any documentary evidence that it has to support the allegations in the Complaint. The Respondent has the opportunity to cross-examine the Charging Party’s witnesses. The goals of cross-examination include impeaching the witness’ testimony and gaining admissions of fact. The Charging Party should “rest” its case in chief after it is done calling witnesses, subject to its right to present rebuttal witnesses after the Respondent has finished calling witnesses and rests its case.

Rebuttal testimony is limited to testimony offered to refute evidence provided by the Respondent’s witness. It may not be used to offer evidence that the Charging Party should have offered in its case in chief. Surrebuttal testimony is limited to testimony offered by Respondent to refute evidence that Charging Party offered in Rebuttal testimony.

Voir dire is an examination into the authenticity of an exhibit that an opposing party offers and the competence of the witness to authenticate the exhibit or to be an expert witness. Voir dire is used to explore whether to object to the witness or document. Counsel may use leading questions in voir dire examination, but must limit the questions to authenticity and are not allowed to ask general cross examination questions. Voir dire must be conducted at the time an exhibit is offered into evidence and is untimely after the exhibit is accepted into the record.

11.  Objections

A party should object to questions posed on direct or cross examination to keep improper evidence from being included in the record and considered, and to make a record for the Hearing Officer and possible appellate review. Objections are made in a timely manner by voicing the objection as soon as the question is posed. The Hearing Officer rules on all objections at the hearing. A party may file an Interlocutory Appeal of a Hearing Officer’s ruling on the objection.[17] The CERB applies an abuse of discretion standard when ruling on interlocutory appeal.[18]

12.  The Rules of Evidence

The Hearing Officer is not bound by the technical rules of evidence prevailing in courts.[19] However, the Hearing Officer uses these rules as a guide to ensure that only relevant and reliable evidence is introduced at hearing.

13.  Oral Arguments or Briefs

The parties are entitled to present oral arguments at the close of the hearing or more typically, with the Hearing Officer’s permission, to file briefs. Briefs must be filed within ten days after the close of the hearing, unless the Hearing Officer directs the parties to do otherwise.[20]

Any request for additional time to file a brief must be filed with the DLR no later than three days before the date the brief is due.[21]

No reply briefs may be filed without permission.[22]

14. Motion to Reopen the Hearing

A Hearing Officer has discretion to reopen a hearing and receive further evidence prior to the issuance of a final decision, but is only done so in extraordinary circumstances.

Absent extraordinary circumstances, a record is not reopened.[23] The reason for this standard is to protect the finality of the proceedings and to conserve limited public resources. To do otherwise would discourage parties from securing and presenting all available evidence at the hearing.

The party seeking to reopen the hearing must show that it was excusably ignorant of the existence of the evidence at the time of the hearing despite the exercise of due diligence.[24]

c. Post-Hearing

1. The Record

The Hearing Officer only considers the case record in deciding the case. The record consists of the evidence submitted at the hearing submitted through joint stipulations, exhibits (including DLR exhibits) or witness testimony. Evidence previously submitted at the investigation is not considered part of the record at the hearing unless it is independently submitted at the hearing.

2. The Decision

The Hearing Officer’s ultimate decision on the merits is based on full consideration of the record. After the close of hearing and submission of briefs, the Hearing Officer issues a decision that sets forth findings of fact, legal conclusions and a remedial order, should the Hearing Officer find a violation of the Law.[25]

As mentioned above in the “Classification of the Complaint” section, in Level I cases the DLR anticipates the decision to issue within three months from when the record is closed. In Level II cases, the DLR anticipates the decision to issue within six months from when the record is closed.

The Hearing Officer’s decision is final and binding on the parties unless within ten days of notice of the decision, one of the parties requests CERB review.[26]

3. Appeal of Hearing Officer’s Decision

A party must file with the DLR its notice of appeal of a Hearing Officer’s decision, together with a supplementary statement within ten days of receiving notice of the decision. The Notice of Appeal must be in writing and contain the case name and number, the date of the Hearing Officer’s decision and a statement that the party requests CERB review. Supplementary statements must state with specificity the basis of the appeal.

The record on CERB review consists of the Hearing Officer’s decision, the parties’ supplementary statements, portions of the record before the Hearing Officer as are necessary to resolve factual disputes and such other evidence from the hearing as the CERB may require.[27]

For detailed information on Hearing Officer Decision appeals to the CERB, see 456 CMR 13. 19. Failure to provide the information described in this section may result in summary dismissal of the appeal.[28]

The CERB’s Appeal decision is final and binding on the parties. Filing a Judicial Appeal of the CERB’s decision and order does not excuse compliance with the CERB’s order.[29]

4. Judicial Appeal

Any party seeking review of a CERB decision may institute proceedings for judicial review in the Appeals Court within thirty days after receipt of said order.[30]

The appealing party need not file a Notice of Appeal with the Appeals Court. Rather, to pursue an appeal, the appealing party must file a Notice of Appeal with the DLR within thirty days from when it receives the CERB decision.

Once the DLR receives the Notice of Appeal, it sends the appealing party a letter explaining next steps, including the appealing party’s obligations with respect to producing a transcript of the hearing. Failure to provide a transcript leaves the DLR unable to assemble the record. Accordingly, after proper notice is given to the parties, should the appealing party fail to provide a transcript, the DLR may dismiss the appeal.

The DLR is considered the lower court for purposes of the Appeals Court process and is responsible for assembling the record. The Chief Counsel notifies the appealing party when the record is in fact assembled so that the appealing party may docket the appeal in the Appeals Court. It is incumbent upon the appellant to enter the case in the Appeals Court within ten (10) days of receiving the Notice of Assembly of Record.[31] If the appellant does not take the required steps to enter the case in the Appeals Court, the DLR issues a notice requesting that the appellant show cause why the DLR should not dismiss the appeal with prejudice and permanently close the file for failure to comply with Mass. R.A.P. 10(a)(1).[32] If the appellant fails to respond accordingly, the appeal is dismissed with prejudice.

5. Mediation

The parties are encouraged to settle cases at all stages, including post-hearing. The Chief Counsel will identify cases that are likely to settle at the Judicial Appeals stage and inform the DLR Mediation Manager, so that she may assign a mediator to pursue mediation. The parties are also encouraged to contact the DLR if they believe mediation will be helpful.

6. Compliance and Enforcement

After a decision is final and binding, if the Hearing Officer or CERB ordered the Respondent to remedy the prohibited practice, it is Respondent’s responsibility to inform the DLR of the steps that it has taken to comply with the remedial order.

If a Charging Party claims that a Respondent has not done everything that the decision ordered, the Charging Party should notify the DLR in writing, following the process outlined in 456 CMR 16.08.

Based on the information provided, the DLR determines whether to institute enforcement proceedings in Superior Court, decline to seek enforcement, or in the case of a genuine dispute as to compliance, order that a compliance hearing be held. At any hearing concerning the alleged non-compliance, the party required to comply with the DLR’s order has the burden of proving such compliance by preponderance of evidence.

For detailed information about the parties’ responsibilities with respect to compliance and enforcement see 456 CMR 16.08(7) and (8).
________________

[12] 456 CMR 13.04.

[13] M.G.L. c. 150E, Section 11(f).

[14] 456 CMR 13.08.

[15] 456 CMR 13.07 (7).

[16] 456 CMR 13.10.

[17] 456 CMR 13.04.

[18] City of Cambridge, 30 MLC 31 (2003); Commonwealth of Massachusetts, 7 MLC 1477  (1980).

[19] 456 CMR 13. 03.

[20] 456 CMR 13.15(1) and (2).

[21] 456 CMR 13.15(3).

[22] 456 CMR 13.15(4).

[23] Commissioner of Administration and Finance Alliance, 21 MLC 1198 (1994) (citing City of Haverhill, 17 MLC 1215 (1990)).

[24] City of Haverhill, 17 MLC 1215 (1990); Boston School Committee, 17 MLC 1118  (1990); Boston City Hospital, 11 MLC 1065 (1984).

[25] M.G.L. c. 150E, Section 11; 456 CMR 13. 03 (1) (k).

[26] 456 CMR 13.19 (1).

[27] 456 CMR 13.19(4).

[28] 456 CMR 13.19(3)(c).

[29] M.G.L. c. 150E, Section 11.

[30] M.G.L. c. 150E, Section 11.

[31] Mass. R.A.P. 10(a).

[32] See also Mass. R.A.P. 10(c).

B. Representation case procedures

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 14.02 – 456 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]        

2. 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]

3. 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.

2. 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]

3. 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]

4. 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]

5. 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.

2. 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.

3. 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]

2. 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.

2. 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 and 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 and 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

4. 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.

2. 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 directs Object 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.

2. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

2. 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.

3. 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. numbers (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.

4. 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.

5. 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.

2. 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]

2. 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]

3. 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.

2. Voter Eligibility

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

3. 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.

4. 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.

2. 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).

C. Arbitration and Mediation Services

1. Interest Mediation Services

Municipal Police and Fire procedures are discussed separately below under JLMC Process.

a. Filing the Petition

1. 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.

2. 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.

________________

[96] 456 CMR 21.03.

[97] 456 CMR 21.05(5).

[98] 456 CMR 21.02.

[99] 456 CMR 21.06.

[100] 456 CMR 21.08.

[101] M.G.L. c. 150E, Section 9; 456 CMR 21.09.

[102] 456 CMR 21.09(4).

[103] 456 CMR 21.12.

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

1. 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.

2. 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.

________________

[104] 456 CMR 22.04(2)

[105] 456 CMR 22.02

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

1. 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.

2. 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.

1. 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.

2. 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

1. 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.
2. 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.

________________

[106] 456 CMR 12.02.

D. The Joint Labor Management Committee

1. Services Provided

Collective bargaining disputes involving municipalities and their police officers and fire fighters (police and fire) are subject to the Joint Labor Management Committee’s procedures. It is the interest mediation process for police and fire. While parties use the same DLR mediators in an attempt to break successor collective bargaining impasse, the JLMC has its own procedures outlined in Chapter 589 of the Acts of 1987 and the Rules enacted pursuant to the statute. One major difference in JLMC cases is that parties unable to break an impasse will be ordered to arbitration.

2. Initiating a Case

a. Filing the Petition

When parties in municipal police or fire negotiations believe that they have reached an impasse in negotiating a collective bargaining agreement and think mediation is warranted, either or both parties jointly may file a petition requesting that the JLMC intervene and assist. One or both of the parties must believe that the process of bargaining has been exhausted in order to file a petition. The JLMC Petition form is available on the DLR website: www.mass.gov./lwd/labor-relations/.

b. DLR/JLMC Initial Steps – Scheduling the Initial Investigation/Mediation

After the DLR/JLMC receives a Petition, it dockets it and assigns a case number and mediator. The DLR/JLMC 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/JLMC of the three dates agreed upon by the parties. If after reasonable attempts to secure dates, the Petitioner notifies the DLR/JLMC that the parties are unable to agree on a date to schedule the initial investigation/mediation, the DLR/JLMC 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.

3. First Meeting (Investigation and Certifying the Issues)

The mediator meets with both parties in an attempt to resolve the outstanding issues or to assist the parties in narrowing the issues separating the parties. One of the important roles for the mediator is to identify the issues that the parties have bargained about and over which they are at impasse. This is known as certifying the issues. Parties will often raise different issues during the mediation process, but the JLMC holds the parties to these identified issues as the JLMC process progresses.

4. Jurisdiction

If the parties cannot resolve the dispute through the mediator or through continued negotiations on their own, the mediator requests that the JLMC take jurisdiction of the dispute. The mediator makes this recommendation at a JLMC meeting. The JLMC generally meets twice a month and posts the cases it expects to discuss on the DLR and JLMC websites in accordance with the Open Meeting Law.

If the JLMC votes to take jurisdiction, it then assigns two volunteer Committee members to assist the mediators and the parties -- one member from the labor volunteers (fire volunteers for fire and police volunteers for police) and one management representative.

The DLR notifies the parties of the JLMC’s jurisdiction decision.

The mediator assigned to the case continues to work with the parties in trying to resolve the impasse. The mediator may choose to involve the committee level volunteers and schedule Committee Level Mediation (CLM), using the volunteers experience to aid the parties as they mediate the impasse.

5. The 3(a) Process

a. Vote to 3(a)

If CLM mediation fails and the parties are unable to resolve the dispute on their own, the JLMC votes on whether to schedule a 3(a) hearing (named after the section of the law that describes this process). The JLMC votes to hold a 3(a) hearing if it finds that the issues in negotiations have remained unresolved for an unreasonable period of time, resulting in the apparent exhaustion of the collective bargaining process.

The JLMC vote on whether to order a 3(a) hearing is posted in the same manner as the jurisdiction votes.

The DLR notifies the parties of the JLMC’s decision on whether to order a 3(a) hearing.

b. The Purpose of the 3(a) Hearing

The purpose of the 3(a) Hearing is to allow the JLMC to identify the following:

• The issues that remain in dispute;
• The current positions of the parties;
• The views of the parties as to how the dispute should be resolved; and
• The preferences of the parties as to the mechanism to be followed in order to reach a final agreement. (Generally the parties choose issue-by-issue arbitration by a tripartite panel).

c. Parties’ Pre-Hearing Submission

The parties must submit the issues they intend to present at the 3(a) hearing to the mediator assigned to the case at least 48 business hours prior to the scheduled 3(a) hearing. These lists must be submitted electronically. Upon receipt, the mediator forwards the issues to the other party, 24 business hours in advance of the 3(a) hearing. The JLMC limits the parties from presenting issues to the 3(a) panel that were not certified issues.

d. The 3(a) Hearing

A subcommittee of the JLMC, also called the 3(a) panel, presides over the 3(a) hearing. The JLMC chair is generally the chair of the 3(a) panel and the other two members of the panel are the JLMC volunteers assigned to the case.

The parties make their presentation to the 3(a) panel, which then reports and makes a recommendation to the full committee at the next regularly scheduled JLMC case meeting.

e. After the 3(a) Hearing

If the committee finds that there is an apparent exhaustion of the processes of collective bargaining which constitutes a potential threat to public welfare, it votes to move the case forward to be resolved. In most cases, this means interest arbitration. The format most commonly invoked is the tripartite panel, though there are instances when the parties chose to have a single arbitrator.

The Chair of the interest arbitration panel is a neutral arbitrator chosen by the parties from a random lists that the JLMC sends out. The other two members of the panel are the JLMC volunteers assigned to the case.

The JLMC tells the arbitration panel what issues they are authorized to decide, which normally consists of wages, duration of the contract, and up to 5 separate issues for each party.

6. Interest Arbitration

Sometimes cases settle after the 3(a) Hearing but prior to interest arbitration. However, if the matter does not settle, the parties appear before the arbitration panel and present evidence through witnesses and/or exhibits. The neutral arbitrator controls the procedural hearing, such as the date, time and data that is needed, once the case is moved to interest arbitration.

The law creating the JLMC lists what criteria the arbitration panel should consider in reaching a decision. The basic questions are:

• What can the employer afford to pay given the demographics?
• What does the employer pay other employees, especially police and fire, both historically and present?
• How do communities demographically comparable to this community pay?

The parties generally submit post-hearing briefs about a month after the arbitration hearing and the arbitration panel generally issues its decision about a month after that.

7. After the Interest Arbitration Award is issued

The arbitration panel’s decision is binding upon the union and the executive branch of the employer. However, in order for the contract to be funded, it is binding only if and when the legislative branch of the government votes to appropriate such funding. The JLMC statute requires the executive branch of the municipality and the exclusive representative of the employees to support the award in the same manner as it would any other decision agreed to by the parties.

Most awards are funded by the legislative branch, but if they are not, the decision is no longer binding and the parties are sent back to the table. The JLMC may get involved once again at that point.

8. Case Closed by JLMC

A JLMC case is closed once an agreement in dispute has been funded. If the matter settles prior to arbitration, the JLMC tracks the tentative agreement through ratification and then funding. If an arbitration award is issued, the case is closed once the legislative branch has funded the decision.

E. Miscellaneous case procedures

1. Request for Binding Arbitration

The 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.[107] For information on filing a request for binding arbitration, see 456 CMR 16.02.

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[107] M.G.L. c. 150E, Section 8.

2. Strike Investigation

Section 9A(a) of the Law prohibits public employees and employee organizations from striking or inducing, encouraging, or condoning a work stoppage by public employees. When a strike occurs or is about to occur, a public employer may petition for a strike investigation pursuant to Section 9A(b). Generally, the DLR promptly schedules an investigation. For further information on strike investigations, see 456 CMR 16.03.

3. Request for Advisory Rulings

The CERB 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. For information on petitioning for an advisory ruling, see 456 CMR 16.06.