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Clarification/Amendment petitions (CAS)

An employer or employee organization may file a clarification and amendment petition to clarify whether particular employees are included in, or excluded from, an existing bargaining unit.

The information that an employer or employee 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.  Any CAS petition found to raise a question of representation must be dismissed and the question of representation addressed by the filing of a representation petition.

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 newly-created positions or sever positions whose duties have been substantially changed from the bargaining unit may be filed at any time.

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.

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.

Option 1:  Traditional approach

Parties must schedule a conference at the DLR for mediation and investigation.  No later than 7 days before the conference, the parties must confer and e-file the following documents with the DLR:

  • position papers including facts and arguments regarding the disputed unit placement issues
  • sworn affidavits from those with firsthand knowledge supporting any facts included in the position paper
  • petitioned-for position(s)'s job description(s), or if none exists, the most recent job posting, including actual duties, qualifications, hours, and supervision exercised and received.  A statement explaining if the parties agree to the 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 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 a 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, the 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.  

The CERB reviews the show cause responses and either issues a decision based on the parties' written submissions or directs that the hearing officer 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.

Option 2:  Expedited Hearing

This option provides the parties a decision within 48 hours of the hearing, but only is used in the following circumstances:

  • the parties must mutually elect this procedure and sign an agreement prepared by the DLR describing their agreement
  • the 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.

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