Hearings and Findings

(1) (a) If a hearing is ordered, the Department shall set the time and place for the hearing. (b) Should one or more parties to the hearing petition the Board, the Board, in its discretion, and for good cause shown, may order that the hearing be conducted by the Board in the first instance. The rules and procedures of 456 CMR 12:00: General Provisions and 13.00 shall apply to a hearing conducted by the Board in the first instance. (c) Any party may file a motion to dismiss the complaint or for a summary decision prior to a hearing. (d) At the hearing, which shall be presided over by a hearing officer or the Board, the employer, the employee organization, or the person so complained of shall have the right to appear in person or otherwise to defend against the complaint. (e) The charging party shall have the burden of proving the allegations of the complaint by a preponderance of the evidence. (f) At the discretion of the Department, any person may be allowed to intervene in such proceeding pursuant to 456 CMR 12.03: Intervention. (g) In any hearing, the Department shall not be bound by the technical rules of evidence prevailing in the courts. Mass. Register #1322 (9/23/16) (h) Witness testimony may be preserved by a recording or, at the discretion of the parties who shall be responsible for the costs thereof, by stenographic transcription. (i) The parties shall, at the discretion and direction of the hearing officer, electronically submit documentary exhibits to the hearing. (j) The refusal of a witness at a hearing to answer any question that has been ruled by the Department to be proper may be grounds for striking all testimony previously given by such witness on related matters. (k) At the conclusion of the hearing, the hearing officer shall issue written findings of fact and shall determine whether a practice prohibited under M.G.L. c. 150E, § 10 has been committed and, if so, shall issue an order requiring the respondent to cease and desist from such prohibited practice, and shall take such further affirmative action as will comply with the provisions of M.G.L. c. 150E, § 11(d), including but not limited to the withdrawal of certification of an employee organization established, or assisted in its establishment, by any such prohibited practice. (l) The hearing officer shall order the reinstatement with or without back pay of an employee discharged or discriminated against in violation M.G.L. c. 150E, § 10. (m) If the hearing officer determines that a practice prohibited under M.G.L. c. 150E, § 10 has not been or is not being committed, the hearing officer shall state findings of fact and issue an order dismissing the complaint. (2) A hearing officer presiding over a hearing shall have, in addition to the authority set forth in 456 CMR 13.07, the authority to make all rulings and orders necessary to decide the case based on the record of the proceedings. All decisions and orders of the hearing officer issued after the close of the hearing shall be in writing and may be appealed to the Board in accordance with 456 CMR 13.19.