A. Prohibited Practice Procedures - MERA, SERA, TNA and CGS §31-40bb
These proceedings are initiated by the filing of a complaint with the Labor Board alleging that an employer or a union has engaged in conduct prohibited by the MERA, SERA, TNA or CGS § 31-40bb. Under those Acts, a complaint may be filed by an employee, a group of employees, a union, or an employer. The procedure for processing complaints pursuant to the SLRA is different and is described in the next section.
After a complaint is filed, the Agent of the Labor Board assigns the complaint to an Assistant Agent for investigation. The investigation commences with an informal conference involving both the complainant and the respondent. The conference is designed to ascertain whether the complaint has merit and whether an informal mediation of the complaint is possible. If a settlement is reached, it is reduced to writing. If a mediated complaint has merit and is not settled, it is scheduled to be heard by the Labor Board. When a complaint lacks merit, however, the Agent, upon the advice of the Assistant Agent, will file a report recommending a dismissal of the complaint. The submission of a recommendation for dismissal does not foreclose the complainant from presenting the case before the Labor Board. The regulations for each of the public sector statutes administered by the Labor Board allow a complaining party to file objections within 14 days of receipt of the recommendation for dismissal.
The hearings before the Labor Board are formal and provide the opportunity for the parties to introduce documentary and testimonial evidence, cross-examine witnesses and file briefs. In making its findings, however, the Labor Board is not bound by the technical rules of evidence.
These proceedings are initiated by the filing of a charge with the Labor Board alleging that any person has engaged in conduct prohibited by the SLRA. The charge may be filed by "any person, his representative or labor organization". After the charge is filed, the Agent of the Labor Board assigns it to an Assistant Agent for investigation. If, after the investigation, the Agent determines that no violation of the Act has occurred, he will file a report with the Board recommending that no complaint be issued on the charge. The aggrieved party then has 14 days to request review of the Agent's recommendation. If the Agent finds reasonable grounds for any charge, he will issue a complaint stating the charges and containing a notice of hearing before the Board.
Appropriately filed petitions are referred to the Board's Agent who attempts to procure a consent election agreement or a recognition agreement. If no agreement is reached, the Agent may do any of the following: (a) order an election; (b) recommend dismissal of the petition; or (c) refer the petition to the Board with no election or recommendation. The Agent reports any action to the Board.
Modification petitions seek to modify an existing bargaining unit or clarify that a position belongs in an existing bargaining unit. Pursuant to §7-471(4) of the MERA and §5-275(c) of the SERA, these petitions can now only be filed by a union or an employer, but not during the "term" of any collective bargaining agreement. However, a Union may file a modification or clarification petition at any time if the position is unrepresented or if a new position is created.
Once an election has been held, it is presumptively valid unless there is a valid protest or there is a clear showing that the result failed to reflect the true wishes of the voters. Election misconduct must be serious and substantial in order to disrupt the election process. The objecting party bears the burden of proving that some event or circumstance was so disruptive as to prevent employees from making a free choice, or significantly altered the election results. If offensive conduct occurred during the course of an election campaign, it has been deemed waived by the Board if not timely objected to prior to the election itself. The Board will, however, set aside elections for flagrant violation of the rules. A certain amount of "mudslinging" is allowed during an election campaign. The rhetoric, however, is closely scrutinized if an opponent is denied an opportunity to rebut an allegation.
D. Miscellaneous Procedures
Section 4-176(a) of the Uniform Administrative Procedure Act provides that "any person may petition an agency . . . for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency". The Board has adopted regulations detailing the procedure for filing a declaratory ruling petition under the MERA, SERA or TNA. The Labor Board can also make scope of bargaining determinations upon the request of an employer, employee organization or arbitrator, if during the course of negotiations, binding arbitration, or grievance arbitration, one party seeks to negotiate a subject which the other party contends is not a mandatory subject of bargaining. The regulations for each statute directs the Board "to make every effort to expedite the proceeding".
2. Interim Relief
Under the MERA and TNA, the Labor Board may also issue an order of interim relief in appropriate circumstances. The standards for granting interim relief are similar to the standards typically used by the courts in deciding whether to issue a temporary injunction, and are as follows: (1) the harm to the complainant if an interim order is not issued, including whether irreparable injury, loss, or damage will result; (2) the harm to the respondent if an interim order is issued; (3) the probability of success on the merits; and (4) the interests of the public.