EOLWD MassDLR Update

The purpose of this feature is to offer “practice tips” to those who practice before the DLR.  In this edition, we examine the changes in the way that the DLR investigates prohibited practice charges under the amended G.L. c. 150E, § 11.

Introduction

It has been more than one year since the new Division of Labor Relations came into existence pursuant to Chapter 145 of the Acts of 2007. Inter alia, the legislation reorganized the Commonwealth’s labor relations agencies into a unified agency that combines all of the functions and services provided by the former Labor Relations Commission (LRC) and the former Board of Conciliation and Arbitration (the Joint Labor Management Committee is placed under the DLR umbrella for administrative purposes, but otherwise remains intact).  For those who practiced before the former LRC, one of the most important changes brought about by the enactment of the reorganization legislation is the handling of prohibited practice charges.

The Written Investigation Procedure:  Delays and Backlog

Prior to November 2007, former LRC personnel investigated prohibited practice charges pursuant to a written investigation procedure.  Under the former procedure, the parties submitted all evidence in writing and no meeting or conference was held with the parties.  The LRC assigned such cases to individual hearing officers who would review the case file and make a recommendation to the Commissioners who would consider the recommendation in executive session.  Coupled with chronic personnel shortages, this cumbersome procedure resulted in a backlog of cases awaiting consideration by the Commissioners.  It was not uncommon for parties to wait up to two years for a probable cause determination.

The In-Person Investigation Procedure:  Prompt Scheduling and Timely Probable Cause Determinations

Under the new procedures, the DLR is statutorily mandated to investigate prohibited practice charges by conducting an in-person investigation with the parties.  The statute provides:  “…the investigator shall promptly meet with the parties, investigate whether settlement of the complaint is possible, clarify and narrow the issues before the complaint is forwarded to a hearing, or dismiss the complaint without a hearing.  The investigator may dismiss the complaint if she finds no probable cause to believe that a violation of this chapter has occurred or if she otherwise determines that further proceedings would not effectuate the purposes of this chapter.”  Since the DLR has started conducting in-person investigations of prohibited practice charges, over 50% of scheduled investigations have been postponed, often at the request of the parties.  This has resulted in unacceptable delays in the processing of cases.  In order to ensure that the parties receive a prompt probable cause determination, the DLR has changed the method by which parties schedule the in-person investigation.  Under the new scheme, most, if not all investigations will take place within sixty (60) days of the initial filing of the charge.  In addition, absent exigent circumstances, the parties will receive a probable cause determination within four (4) weeks after the close of the investigation.  The probable cause determination will take the form of either a short dismissal letter, a complaint, or a combination of the two.

The In-Person Investigation:  What to Expect and How to Prepare

The initial investigation is a critical event in the life of a prohibited practice case.  Based upon the facts presented during the investigation, the investigator “may issue an order dismissing the complaint, deferring any complaint which is the subject of a pending grievance or arbitration, referring any complaint to one of the division’s mediators, or directing that a hearing take place.” Chapter 145 of thef Acts of 2007. As such, the investigation is the main opportunity for the charging party to present the facts and legal theories to support a finding of probable cause and the issuance of a complaint.  For the respondent, the investigation is the main opportunity to rebut the facts presented by the charging party and to attack the charging party’s legal arguments in an effort to seek dismissal of the case for lack of probable cause.  It is important that the parties understand what to expect when they come to the DLR offices for an in-person investigation so that they may properly prepare. 

When the parties arrive, they can expect the investigator to ask “whether settlement of the complaint is possible.” Chapter 145 of the Acts of 2007.  The DLR will make a mediator available if the parties both agree to engage in settlement discussions.  If the parties agree, the Investigator may also mediate the case.

If the mediation is unsuccessful or if the parties do not avail themselves of the opportunity to employ the services of a DLR mediator, then the investigation will go forward.  The Investigator will commence the proceeding by introducing herself and stating that the purpose of the investigation is to determine whether there is probable cause to support the charging party’s allegation(s) that a violation of the law has taken place.  The Investigator will then give each party an opportunity to state their case.  The parties should expect that the Investigator will ask questions about the facts and legal arguments presented at the investigation and may ask the parties’ representatives to comment on the implications of prior DLR or court precedent.  Although the scope of the investigation is limited by the allegations contained in the charge, if the parties present additional facts that bring to light possible additional violations or defenses, then the parties can expect that the Investigator will thoroughly examine such additional facts.  The Investigator will also explore whether the charge should be deferred to the parties’ collectively bargained grievance and arbitration procedure and the parties should be prepared to discuss their position on deferral at the investigation.Since the statutory change, many parties and their representatives have inquired about what kind of evidence they ought to submit during the investigation in order to enable the Investigator to make an informed decision.  Clearly, the parties should submit the collective bargaining agreement and any other documentary evidence such as contemporaneous letters, reports or memos should be submitted.  In cases where there are no material factual disputes, the representations of the parties concerning the events will suffice and there is no need for written submissions.  In the majority of cases, there is usually a dispute concerning the facts.  In such cases, the parties should come prepared with (1) individuals with personal knowledge of the facts and circumstances surrounding the charge, (2) affidavits from individuals with personal knowledge of the events leading up to the charge, or (3) documentary evidence relative to the charge. In some cases, the Investigator also may allow or even require the parties to submit additional documents or other information in order to complete the investigation.  Once the Investigator closes the record, no additional documents or other evidence will be accepted.