OAR Chapter 115 — Employment Relations Board

Division 1 PROCEDURAL RULES

Or. Admin. R. 115-001-0000 Notice of Proposed Rule

(1) Before permanently adopting, amending, or repealing any rule, the Employment Relations Board shall give notice of the intended action:

(a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days before the effective date of the rule.

(b) By delivering a copy of the notice to persons on the Employment Relations Board's mailing list established pursuant to ORS 183.335(8).

(c) By delivering a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule.

(2) The Employment Relations Board may update the mailing list described in subsection (1)(b) of this rule annually by requesting persons to confirm that they wish to remain on the mailing list. If a person does not respond to a request for confirmation within 28 days of the date that the Employment Relations Board sends the request, the Employment Relations Board will remove the person from the mailing list. Any person removed from the mailing list will be immediately returned to the mailing list upon request, provided that the person provides a mailing address or email address to which the notice may be sent.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 183.341(4)
ERB 2-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 1-1994, f. 6-23-94, cert. ef. 7-1-94
ERB 2-1993, f. & cert. ef. 12-15-93
ERB 3-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-001-0005 Model Rules of the Attorney General

The Employment Relations Board adopts only the Attorney General’s Model Rules of Procedure specifically identified in these rules.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedures is available from the agency.]

History

Statutory/Other Authority: ORS 183.341, 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 183.341, 240 & 243
ERB 2-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1994, f. 6-23-94, cert. ef. 7-1-94
ERB 3-1985, f. 10-29-85, ef. 10-1-85
ERB 2-1982, f. & ef. 1-21-82
ERB 1-1980, f. & ef. 1-9-80

Division 10 GENERAL/POLICY AND DEFINITIONS

Or. Admin. R. 115-010-0000 Purpose of Rules

The purpose of these rules is to implement and give effect to the provisions of state law in achieving the following objectives:

(1) To provide uniform procedures to resolve questions of representation, unit clarification and deauthorization.

(2) To remedy statutorily defined unfair labor practices.

(3) To render assistance to employers and employee organizations in resolving their differences without resort to strikes, lockouts or other forms of conflict.

(4) To foster and protect a merit system of personnel administration in state government.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0005 Statutory Authority for Rules

These rules are adopted under the authority provided by ORS 240.086(3) and 243.766(7).

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0010 Definition of Terms

As used in these rules, unless the context requires otherwise:

(1) “Appeal” means any request for review of a personnel action under ORS ch 240.

(2) “Appellant” means a person who requests review of a personnel action under ORS ch 240.

(3) “Appointing Authority” is defined in ORS 240.015.

(4) “Board” means the Employment Relations Board.

(5) “Board Agent” means any employee designated by the Board to act on its behalf.

(6) “Business day” means Monday through Friday, but does not include any holiday as defined by ORS 187.010 and ORS 189.020, or any day that the Board is closed.

(7) “Class” or “Classification” is defined in ORS 240.015(4).

(8) “Complainant” means a party who has filed an unfair labor practice complaint or a complaint alleging a violation of ORS 240.309.

(9) “Conciliator” means the head of the State Conciliation Service.

(10) “Date of Filing” means the date a document is received by the Board. Because there are different means for filing documents, the date of receipt is determined according to the rules that are set forth in OAR 115-010-0033.

(11) “Date of Service” means the date sent to another party or the date of personal service.

(12) “Day” means calendar day unless otherwise specified.

(13) “Demotion,” for purposes of action brought under ORS ch 240, means the voluntary or involuntary movement of an employee from a position in one classification to a position in another classification having a lower salary range number.

(14) “Management Service” is defined in ORS 240.212.

(15) “Party” is any person, labor organization or employer filing a petition, complaint, charge or State Personnel Relations Law appeal with the Board; any person, labor organization or employer named as a party in a petition, complaint, charge or State Personnel Relations System appeal, or any other person, labor organization or employer whose timely motion to intervene has been granted. Where applicable, “party” also is a person, labor organization or employer under Division 40 of these rules.

(16) “Personnel Action,” for purposes of appeals brought under ORS ch 240, means any action taken with reference to an applicant, employee or position.

(17) “Petitioner” means a party who files a petition with the Board.

(18) “Recommended Order” means the Order of an Administrative Law Judge or Board Agent consisting of proposed rulings on motions and evidentiary matters, findings of fact, conclusions of law, and a recommended order.

(19) “Regular Employee” means an employee who has been appointed to a position in the state service in accordance with state law after successfully completing a trial service period or who has been otherwise granted regular status through specific provisions of law.

(20) “Respondent” means a party who is required to respond to a complaint, petition, charge, or appeal.

(21) “Showing of interest” means the evidence of support that a petitioner must show in a proposed bargaining unit before its petition will be acted on. The showing may be made by original authorization cards or petitions, both of which must include a statement of a desire by affected employees to be represented by the petitioner for purposes of collective bargaining and that must be signed and dated by employees in the proposed unit during the 180 days preceding the filing of the petition; by dues records or payroll deduction records showing the employees to be current members of a petitioning organization; or, by an existing or the most recently expired bargaining agreement applicable to the bargaining unit, to which the petitioning organization was a party. A showing of interest in support of objections to a petition for certification without an election shall comply with OAR 115-025-0075.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 5-2021, amend filed 10/26/2021, effective 12/01/2021
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 4-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0012 Computation of Time

Unless otherwise specifically provided in these rules, time will be computed by excluding the first day and including the last day unless the last day falls upon a legal holiday, Saturday, or a day when the office is closed before the end of or all of the normal workday, in which case the last day also is excluded.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 2-2011(Temp), f. 8-25-11, cert. ef. 9-1-11 thru 12-31-11
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0020 Board Meetings and Contested Case Hearings

Ordinarily, contested case hearings shall be open to the public. When circumstances warrant, the Board may close contested case hearings. The Board shall meet at such times and places as specified by the chair or at the request of two members of the Board. Advance notice of the time and place of each meeting shall be given to each Board member. Two members shall constitute a quorum.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 192.610 - 192.690 & 240.080
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0025 Record of Public Meetings

Any minutes of Board public meetings and proceedings shall be approved by the Board.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0032 Board Public Records

(1) Inspection. Any record of the Board that is defined as a public record under ORS 192.410 to 192.505, and that is not exempt from disclosure, shall be available for inspection by members of the public at the office of the Board, in Salem, Oregon. All requests for inspection or copies of Board public records must be made in writing. Inspection of such records will be permitted:

(a) During normal work hours of the Board; and

(b) At reasonable times, provided there is no undue disruption of the work of the Board or its agents.

(2) Custodians and Certification:

(a) The Board’s Business Operations Administrator is designated as the custodian of Board public records.

(b) The custodian shall certify, upon request, released copies of Board public records as true copies.

(3) The Board may assess a fee to provide public records. The requesting party must agree to pay the fee before the records will be made available. The amount of the fee will be the actual cost to locate, compile, make available for inspection, prepare copies (whether in paper, audio, microfilm, machine readable format, or other format), and deliver the public records.

(4) The actual cost described in section (3) of this rule include:

(a) $1.50 per page for copies of any Board transcript or document of public record that is certified as a true copy;

(b) $0.25 cents per page for copies of documents that are not certified, including paper, electronic, or facsimile copies;

(d) $15 for a computer disk containing copies of Board forms;

(e) $150 per calendar year to receive copies of final Board Orders once a month; and

(f) $150 per calendar year to receive a copy of arbitration awards.

(5) No fees will be charged to state agencies for providing copies of Board transcripts, tapes, Orders or any document or exhibit included in a case record that is not exempt from disclosure.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 192
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2007, f. 12-17-07, cert. ef. 12-26-07
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1993, f. & cert. ef. 12-15-93
ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89
ERB 1-1988, f. & cert. ef. 4-25-88
ERB 4-1985, f. 10-29-85, ef. 10-31-85
ERB 4-1980, f. 8-15-80, ef. 8-18-80

Or. Admin. R. 115-010-0033 Filings and Service of Documents

(1)(a) Any document required or allowed to be filed with the Board or served on a party may be filed or served by mail, email, in person, or through the Board’s online case management system. The Board shall post on its website the street address for personal delivery, the mailing address for filing by mail, the email address to be used for email filing, and the website address for the online case management system.

(b) A complaint or answer will not be considered filed until the filing fees required by ORS 243.672(6) have been paid.

(c) If a physical document is filed at the Board’s office (e.g., by mail or other delivery service) and received by the Board by 5:00 p.m. Pacific Time on a business day, then the document is considered filed on that business day. A physical document received after 5:00 p.m. Pacific Time is considered filed on the next business day. If a document is filed by email or the Board’s online case management system, and the Board’s record indicates that the Board received the document on or before 11:59 p.m. Pacific Time on a business day, then the document is considered filed on that business day. Midnight is considered the beginning of the next day. A document filed by any means on a non-business day is considered filed on the next business day.

(d) Filing by email or the online case management system is considered complete upon receipt of the entire electronic transmission by the Board. The Board’s metadata created by the successful transmission of the email or the online case management system filing constitutes the time of receipt.

(2)(a) Unless otherwise stated in these rules or directed by the Board or Board Agent, the filing party must serve all documents filed with the Board on the named parties or a representative of record, and the filing party must include proof of service with the filing.

(b) If a party to a case is not using the Board’s online case management system, the other parties shall serve documents on that party by any of the other means authorized by OAR 115-010- 0033(1)(a).

(c) When the parties have a simultaneous filing deadline for a post-hearing brief or memorandum in aid of oral argument, the filing party is not responsible for serving the filing on the other parties. Instead, the Board will serve a copy of the post-hearing brief or memorandum in aid of oral argument on the other parties, after the filing deadline has passed. The Board or Board Agent may designate additional documents for filing and service under this provision.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2026, amend filed 04/22/2026, effective 06/01/2026
ERB 6-2021, minor correction filed 12/01/2021, effective 12/01/2021
ERB 5-2021, amend filed 10/26/2021, effective 12/01/2021
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

Or. Admin. R. 115-010-0035 Use of Board Agents

The Board may assign a Board Agent to hold any hearing that the Board is authorized to hold. Typically, the Board will assign an Administrative Law Judge (ALJ) as the Board Agent to conduct hearings and issue Recommended Orders.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0040 Time, Place, and Notice of Hearings

(1) The Board Agent shall set the time and place for hearing and serve a notice of hearing containing such information on all interested parties at least ten days before the hearing date, unless otherwise agreed to by the parties.

(2) The notice is not a part of the hearing record, and any party wishing to rely on a notice as an exhibit shall make an appropriate submission at the hearing.

(3) Notice for Hearings on Representation Petitions under Division 25. When a valid petition has been filed and objections or intervening petitions have been timely filed, the hearing generally will be held within 21 days after the objection period ends. In addition to the requirements of subsection (1) of this section, the notice shall include:

(a) a description of any proposed bargaining unit(s) that may be involved; and

(b) any objector(s) or intervenor(s).

(4) Notice for Hearings on Complaints under Division 35. The hearing will be set within 20 days from the date of service of the complaint, unless both parties agree to a later date, and the Board Agent approves.

(5) Postponements. Postponement requests are subject to the approval of the Board or Board Agent, who may also postpone a scheduled hearing, subject to the time restrictions of section (4) of this rule. In determining whether to grant a postponement request, the Board or Board Agent will consider the promptness of the request. Any postponement request shall state:

(a) the reason for the request; and

(b) whether the other party agrees, objects, or has no objection to the request.

(6) Consolidation or Severance of Cases. The Board or Board Agent may consolidate or sever cases or charges for purposes of conducting a hearing or issuing a Recommended Order.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0043 Hearings by Electronic Devices

(1) The Board or Board Agent has the discretion to conduct a hearing or portion of a hearing remotely, including by videoconference or telephone.

(2) Before making a determination whether to conduct a hearing in person or remotely, the Board or Board agent will request the parties’ preferences regarding the format for the hearing. The Board or Board Agent shall also consider the circumstances of the particular case, including:

(a) The amount of notice given;

(b) The availability of equipment;

(d) The amount of documentary evidence to be utilized during the proposed testimony;

(e) The number and location of witnesses;

(f) The degree to which witness credibility is at issue;

(g) The hardship on the parties or witnesses;

(h) Any objections of an opposing party; and

(i) The cost to the Board.

(3) The Board may conduct oral argument, under OAR 115-010-0095, or conduct other business remotely.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2026, amend filed 04/22/2026, effective 06/01/2026
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 2-1993, f. & cert. ef. 12-15-93
ERB 1-1982, f. & ef. 1-19-82

Or. Admin. R. 115-010-0045 Motions

(1)(a) A request for any ruling, order, or other relief may be made by filing a typewritten motion. The motion need not be in any particular form.

(b) Motions to Intervene. Any motion to intervene must be filed with the Board or Board Agent at least seven days before the hearing. The motion shall state the grounds on which the motion should be granted. The decision to grant or deny the motion rests within the discretion of the Board or Board Agent. A filing fee of $300 must be paid by the intervenor when the motion is filed. The motion will not be considered filed until the fee is paid.

(2) Before filing any motion, other than a dispositive motion (e.g., a motion to dismiss), the moving party shall make a good-faith effort to confer with the non-moving party to seek resolution of the matter. The motion must describe all efforts and the result of the effort.

(3) Any response to a motion must be filed within 14 days of the date the motion is served, unless another date is set by the Board or Board Agent.

(4) A reply from the moving party to the response is allowed only when requested or authorized by the Board or Board Agent.

(5) Motions made at hearing may be stated orally on the record, and shall briefly identify the grounds for the motion and the order or relief sought.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0050 Rules of Evidence

Except for hearings conducted under the rules for Divisions 60 and 70, the following rules of evidence apply:

(1) Evidence of a type commonly relied on by reasonably prudent persons in conduct of their serious affairs shall be admissible.

(2) Irrelevant, immaterial or unduly repetitious evidence shall be excluded.

(3) All offered evidence, not objected to, may be received by the Board or Board Agent subject to the Board or Board Agent's discretion to exclude irrelevant, immaterial or unduly repetitious matter.

(4) Evidence objected to may be received by the Board Agent with rulings on its admissibility or exclusion to be made at the time a Recommended Order is issued.

(5) Rights of Party not Answering or Failing to Specifically Deny an Allegation. If the respondent fails to file a timely answer, it will not be allowed to present evidence at the hearing as to the facts alleged, unless it can establish good cause. Respondent will be restricted to making legal arguments.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0055 Subpoenas

(1) A subpoena for the attendance of witnesses or for the production of records or other documents may be issued by an attorney of record in the manner and form prescribed by ORS 183.440.

(2) On its own motion, the Board or Board Agent may issue such a subpoena.

(3) The Board or Board Agent generally will not issue a subpoena on a party’s request, unless the party is not represented by an attorney or the party establishes that it is necessary for the Board to issue the subpoena on the party’s behalf.

(4) Subpoenaed witnesses shall receive fees and mileage as prescribed by ORS 44.415 for witnesses in civil proceedings. The fees and mileage shall be paid by the person that asks for the subpoena to be issued.

(5) All subpoenas shall be served within a reasonable time before the hearing or date designated for the production of records or documents.

(6) Any party desiring to contest a subpoena issued in any hearing of the Board may do so by filing a motion to quash.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 1-1988, f. & cert. ef. 4-25-88
ERB 4-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0060 Witnesses

(1) All testimony to be considered at a hearing, except matters officially noticed or entered by stipulation, shall be sworn or affirmed.

(2) Refusal of a witness to answer any question ruled to be proper shall, in the discretion of the Board or Board Agent, be grounds for excusing the witness or striking any or all testimony given by the witness.

(3) A party may not call the opposing party's representative as a witness, unless it shows that such testimony is necessary and will not be cumulative or repetitive. Notice of intention to call the opposing party's representative as a witness, together with a supporting affidavit, must be filed with the Board no later than 14 days before the hearing date.

(4) Subsection (3) of this rule does not apply to a party appearing pro se.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 1-1994, f. 6-23-94, cert. ef. 7-1-94
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0065 Depositions

The Board or Board Agent may order the taking of depositions for perpetuation of testimony. A request for deposition to perpetuate testimony shall be filed with the Board in a timely manner so that, if ordered, it can be taken in sufficient time to be prepared for use in any hearing scheduled on a complaint or petition, unless all parties agree to a continuance to accomplish same. The request shall set forth the name and address of the witness, materiality of testimony, reasons why perpetuation of such testimony is required, and specify the time that the deposition will be completed. The request shall ask for an order that the testimony of such witness be taken at no expense to the Board, before an officer authorized to administer oaths under state law, and shall set forth the name of such officer, and the time and place for said deposition.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0068 Prehearing Procedures

(1) The Board or Board Agent may convene prehearing conferences with the parties' representatives for the purpose of:

(a) Scheduling hearing dates, witnesses for hearing and further prehearing conferences;

(b) Disposing of pending motions;

(d) Discussing settlement of any or all of the issues;

(e) Avoiding submission of unnecessary or cumulative exhibits or other evidence;

(f) Stipulating to facts;

(g) Discussing the need for any special hearing procedures;

(h) Discussing reasonable access to exhibits during the hearing, including steps to ensure access for remote witnesses; and

(i) Discussing any other matters that may assist in the disposition of the matter.

(2) At the discretion of the Board or Board Agent, the prehearing conference may be held by telephone or in person and may be recorded.

(3) Witness and Exhibit Lists:

(a) Each party shall provide a witness list and exhibit list to the other parties and to the Board or Board Agent.

(b) These documents must be received no later than seven days before the scheduled hearing, unless the Board or Board Agent directs otherwise.

(4) Exhibits:

(a) A party intending to offer exhibits shall, where practicable, have them marked for identification. A party offering exhibits shall provide electronic copies to any other party and the Board or Board Agent by seven days before the hearing, unless another date is set by the Board or Board Agent. The Board or Board Agent may direct the parties regarding the formatting of exhibits. A failure to comply with this subparagraph shall result in the exhibit not being admitted, unless good cause is shown.

(b) A party offering exhibits in a remote hearing is not required to provide paper copies of exhibits unless directed by the Board or Board Agent. A party offering exhibits in an in-person hearing shall provide paper copies to any other party and to the witness before seeking its admission into evidence and shall provide a paper copy to the Board or Board Agent if directed by the Board or Board Agent.

(c) Nothing in this rule shall operate to exclude offering rebuttal evidence, to which any other party may object. Admissibility will be subject to the discretion of the Board or Board Agent.

(d) A party seeking to offer a physical object other than a document shall provide a photograph of that object, which will be received in lieu of the object. A copy of the photograph must be provided to any other party.

(e) A party relying on voluminous or bulky documents shall provide the Board or Board Agent and any other party with written excerpts of matters therein that are being relied on.

(f) A party wishing to submit a transcript of an audio recording as an exhibit must also submit a notarized statement from the transcriptionist that the document is a verbatim transcript of the audio recording. A copy of the audio recording and transcript must be provided to any other party no less than seven days before the first day of hearing.

(5) A party that fails to comply with prehearing requirements set forth in the rule or ordered by the Board or Board Agent shall be denied the right to offer such evidence or make an argument regarding such matter at the hearing unless good cause is shown.

(6) The Board or Board Agent may rule before hearing on one or more of the claims or defenses, or a portion of any claim or defense, asserted in a complaint or answer. The Board or Board Agent may defer issuing a proposed order on any such prehearing ruling until after a hearing is held and a Recommended Order is issued on remaining claims or defenses.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2026, amend filed 04/22/2026, effective 06/01/2026
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 2-1993, f. & cert. ef. 12-15-93

Or. Admin. R. 115-010-0070 Conduct of Hearings

(1)(a) The Board or Board Agent will open the hearing with a brief introduction of parties and issues.

(b) Parties shall enter appearances at the beginning of the hearing.

(d) Parties may present evidence in support of their respective positions. Parties shall be allowed to cross-examine witnesses and object to offered evidence.

(e) A party may make oral or written closing argument.

(2) Conference During Hearing. In any proceeding, the Board or Board Agent may call a conference. The results of such conference shall be stated on the record.

(3) Stipulation. A stipulation is an agreement. The parties in any proceeding or investigation may agree on any fact. Stipulations must be approved by the Board or Board Agent and will be included in the record of the proceeding or investigation. A stipulation will be binding on the parties. Stipulations may be regarded and used as evidence at hearing.

(4) Continuances. The Board or Board Agent may continue a hearing. The date of a continued hearing may be fixed at the time of the initial hearing or by later written notice to the parties.

(5) Burden of Proof:

(a) Representation, clarification and unit redesignation hearings are investigatory and there is no burden of proof on any party. Nevertheless, in disputes concerning whether employees are "public employees," there must be sufficient evidence establishing that a statutory exclusion applies. The Board or Board Agent shall determine the order of presentation of evidence and may examine witnesses, require the production of documents and call witnesses not called by the parties.

(b) Unfair labor practice complaint hearings are adversarial. The complainant has the burden of proof and the burden of going forward with the evidence. The respondent has the burden of proving affirmative defenses, if any.

(c) In a hearing on an appeal from a disciplinary action under ORS 240.555 or ORS 240.570(3), the respondent shall have the burden of proof and the burden of going forward with the evidence. The appellant shall have the burden of proving affirmative defenses. In all other ORS ch 240 cases, the appellant shall have the burden of proof and the burden of going forward with the evidence, and the respondent shall have the burden of proving affirmative defenses.

(6) If a party chooses to have a certified transcript of the hearing prepared, the Board will be provided, at no charge, with a certified copy of such transcript.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2026, amend filed 04/22/2026, effective 06/01/2026
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 1-1988, f. & cert. 4-25-88
ERB 4-1985, f. 10-29-85, ef. 10-31-85
ERB 4-1980, f. 8-15-80, ef. 8-18-80
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0075 Conduct at Hearing

(1) All parties to hearings, their counsel, and spectators shall conduct themselves in a respectful manner.

(2) The Board or Board Agent shall record the proceeding. No other recording or transmission of any portion of the proceeding shall be permitted, except that, upon request by a party’s representative and notice at the hearing, the Board will permit parties to the proceeding to audio record the proceeding or portions thereof.

(3) Failure to comply with the Board or Board Agent's effort to retain order and decorum or to comply with this rule is grounds for removal from the hearing.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 2-2025, amend filed 05/27/2025, effective 07/01/2025
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0077 Briefs

(1) Following the hearing or the submission of stipulated facts, the Board Agent or Board shall consult with the parties and set a date for the submission of post-hearing briefs.

(2) Briefs must contain a summary of pertinent facts and must contain a discussion of all issues the party seeks to have considered. Failure to address disputed claims or defenses during the hearing or brief may be considered a withdrawal and thus such claims or defenses may be disregarded by the Board Agent or Board.

(3) Briefs shall be in conformance with the following format:

(a) Briefs must be captioned with the Board case title and number.

(b) Briefs shall not exceed 30 pages, exclusive of cover pages, tables of contents, tables of authorities, indexes, and certificates of service. The Board Agent or Board has discretion to permit the parties to files pages in excess of 30 pages. Any brief submitted in excess of its permitted length or otherwise in non-conformance may result in all additional pages over the allowed amount being struck from the record and given no consideration.

(c) Briefs should be double-spaced, in 12-point Times New Roman or similarly readable font, with one-inch margins on the top, bottom, left, and right. Block quotes may be single-spaced with off-set margins. Footnotes may be in 11-point Times New Roman or similarly readable font and single-spaced.

(4) Reply briefs will not be accepted, unless expressly permitted by the Board or Board Agent.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 4-1985, f. 10-29-85, ef. 10-31-85
ERB 4-1980, f. 8-15-80, ef. 8-18-80

Or. Admin. R. 115-010-0080 Board Employees as Witnesses

A Board employee may not be called and may not appear as a witness in a case before the Board, without approval of the Board.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0085 Recommended Order

Unless a majority of the Board hears the case or considers the entire record, the Board Agent shall issue a Recommended Order and serve a copy on each party.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0090 Objections to Board Agent’s Recommended Order

(1) The parties shall have 14 days from the date of service of a Recommended Order to file specific written objections with the Board. Upon good cause shown, the Board may extend the time for filing objections.

(2) If one party has filed objections as set forth in subsection (1), but the other party has not, the party that has not objected may file cross-objections within 7 days of the service of the objections.

(3) If a party fails to comply with subsections (1) and (2) of this rule, then any objections or cross-objections shall be deemed invalid and disregarded by the Board in making a final determination in the case.

(4) If no objections are timely filed, then the Board shall adopt the Recommended Order as the Final Order.

(5) Where the Board adopts a Recommended Order under section (4) of this rule, that Final Order is precedential unless the Board determines to make some or all of that Final Order non precedential.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0095 Board Review

(1) If timely objections are filed, parties will be given an opportunity to present oral argument to the Board. If a party desires to submit written argument in lieu of oral argument, it must be filed with the Board at least five days before the date set for argument. The written argument shall be typewritten, double-spaced on letter-sized paper, and no more than 30 pages, unless the Board approves a greater page limit.

(2) When oral argument is provided, a party may submit a written memorandum in aid of oral argument. Any such written memorandum must be filed with the Board at least five days before the date set for oral argument. Any memorandum shall be typewritten, double-spaced on letter sized paper, and no more than 25 pages, unless the Board approves a greater page limit. The Board may strike any memorandum in aid of oral argument that does not comply with these rules.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0100 Petitions for Reconsideration or Rehearing

(1) A party has 14 days from the date of service of a Final Order to petition for reconsideration or rehearing. Any petition for reconsideration or rehearing must specifically state the ground(s) for the petition. A party has 7 days from the date of service of the petition for reconsideration or rehearing to file a response to the petition and/or to file a cross-petition for reconsideration or rehearing.

(2) Petition for Rehearing.

(a) A petition for rehearing asks the Board to return the matter to the ALJ for the purpose of submitting additional evidence.

(b) A petition for rehearing shall be granted only if the petitioner establishes that the petitioner would be unduly prejudiced if the petition was denied. If the basis for the petition is based on previously unavailable evidence, the petitioner must establish that the evidence could not reasonably have been discovered and produced at the hearing.

(3) Petition for Reconsideration.

(a) A petition for reconsideration asks the Board to reconsider a ruling, finding of fact, or conclusion of law in a Final Order.

(b) In a case where a Final Order is issued without a Recommended Order, the Board shall generally grant a party’s request for reconsideration and grant oral argument.

(c) In a case where a Final Order is issued following a Recommended Order, a petition for reconsideration should be limited to:

(A) A claim of factual error;

(B) A claim that there has been a change in the statutes or case law since the issuance of the Final Order that affects the case; or

(C) A claim that the Board erred in construing or applying the law. A claim addressing legal and factual issues already argued and addressed in the Final Order is disfavored.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 2-2025, amend filed 05/27/2025, effective 07/01/2025
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-010-0103 Amicus Curiae

(1) The Board will accept amicus curiae briefs that are received by the Board (and served on all parties) within 21 days after objections to the Recommended Order are filed with the Board, or, when an appellate court has remanded the matter to the Board, within 14 days of the appellate judgment. The Board may extend the filing date at its discretion.

(2) An amicus brief must be typewritten with double spacing on letter-sized paper and no more than 20 pages.

(3) Amicus curiae shall not be allowed to orally argue the case, unless authorized by the Board.

(4) The Board, at its discretion, may invite the filing of amicus curiae briefs. In such circumstances, the Board will set a briefing schedule.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

Or. Admin. R. 115-010-0110 Ex Parte Communications

(1) An ex parte communication is an oral or written communication to a Board member or Board Agent concerning a fact at issue in any matter before the Board or Board Agent that is not made in the presence of all parties.

(2) If a Board member or Board Agent receives an ex parte communication during the pendency of a matter, the Board member or Board Agent shall:

(a) Give all parties notice of the substance of the communication, if oral, or a copy of the communication, if written; and

(b) Provide any party that did not make the ex parte communication with an opportunity to respond to the ex parte communication.

(3) The mere noting of such ex parte communications in the record will not be considered evidence of the facts in dispute unless otherwise agreed by all parties to the case. The Board or Board Agent shall rely only on the admissible evidence of record in determining the merits of any disputed issue in a case.

(4) This rule shall not apply to mediation communications. This rule shall also not apply to matters presented or obtained during preliminary investigation of the petition, complaint, objections, or challenge, made by Board Agents before the service of the notice of hearing in a case, and shall not apply to requests for subpoenas.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-1980, f. 8-15-80, ef. 8-18-80

Division 20 EXISTING LOCAL CHARTERS AND ORDINANCES

Or. Admin. R. 115-020-0000 Method of Review

(1) A determination under ORS 243.772 of whether local charters and ordinances conflict with the rights and duties established in ORS 243.650 through 243.809 will be made by the Board only after reviewing and hearing comments on such charters and ordinances at a public meeting. At least ten days public notice of such a meeting shall be given, setting forth the date, time and place of the meeting and the purpose for which it is called.

(2) Anyone may petition the Board for a determination under section (1) of this rule. The petition shall state the name of the local government, the full text of the provision in the local charter or ordinance, and the date that the charter or ordinance was adopted. Upon receipt of such a valid petition, the Board shall conduct a public meeting in accordance with section (1) of this rule.

History

Statutory/Other Authority: 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 183.341, 240 & 243
ERB 2-2022, minor correction filed 05/12/2022, effective 05/12/2022
ERB 4-2021, minor correction filed 09/27/2021, effective 09/27/2021
ERB 3-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Division 25 PUBLIC EMPLOYEE REPRESENTATION

Or. Admin. R. 115-025-0000 Representation

(1) The purpose of these rules is to provide a uniform process for a public employee, group of public employees, labor organization, or public employer to determine whether the public employees of a public employer will be represented by a labor organization for collective bargaining under the Oregon Public Employee Collective Bargaining Act. The rules in this Division apply to the process for obtaining representation, seeking changes in which labor organization serves as the exclusive representative for employees, clarifying or making changes to who is included in a represented group of employees, or for eliminating representation.

(2) The General/Policy and Definitions provided in Division 10 apply to all proceedings under these rules. However, because these rules use certain technical terms applied by the Board when it is called upon to make decisions about representation and unit clarification cases, some additional definitions that relate only to these representation rules are included below in OAR 115-025-0005.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1981(Temp), f. 8-6-81, ef. 8-10-81
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0005 Definitions

When these terms are used by the Board in representation matters, they are defined as follows:

(1) Bargaining unit. A specific group of public employees who are, or seek to be, represented for collective bargaining by a labor organization. A bargaining unit can include all employees of an employer or only a portion of the employees.

(2) Card check. A process conducted by the Board to determine whether employees wish to be represented for collective bargaining, where the Board determines whether a sufficient number of employees have signed a document (often referred to as an “authorization card”) that demonstrates their desire to engage in collective bargaining and designates a labor organization as their exclusive representative. The card check process is described in OAR 115-025-0030 and can be used instead of the election process to establish a new bargaining unit (also referred to as "certification by card check") or to add unrepresented employees to an existing bargaining unit (also referred to as "unit clarification by card check").

(3) Certification. A declaration by the Board of the results of a representation election, card check petition, or other petitions filed under this Division.

(4) Decertification. Elimination of collective bargaining representation for a bargaining unit.

(5) Election Instead of Card Check. A formal representation election requested in response to a card check petition. This process is an alternative to the card check process and is held when thirty percent (30%) or more of the employees sign and submit the required showing of interest in support of the election. This process is described in OAR 115-025-0061.

(6) Exclusive Representative. Commonly referred to as a bargaining representative, the exclusive representative is the labor organization that represents a bargaining unit.

(7) Open Period. The time period during which certain representation or unit clarification petitions may be filed.

(8) Petition. The form filed with the Board to begin the process to obtain, change, clarify, or eliminate collective bargaining representation.

(9) Petitioner. As defined in OAR 115-010-0010(17), a petitioner is a party who files a petition with the Board. In this particular context, a petitioner is a public employee, group of employees, a labor organization, or public employer asking the Board to resolve issues related to collective bargaining representation.

(10) Representation Election. A secret ballot election conducted by the Board to determine whether employees wish to be represented for collective bargaining or which labor organization will serve as their exclusive representative.

(11) Showing of Interest. For some types of petitions under these rules, the Board may not process the petition unless the party submits evidence demonstrating that enough employees support the action being proposed. This evidence is referred to as a showing of interest. The amount and type of showing of interest required is determined by the purpose of the petition. The specific requirements for a showing of interest are described in OAR 115-025-0021.

(12) Unit Clarification. The process to change or clarify the composition of an existing bargaining unit, or to change the labor organization that serves as the exclusive representative of a bargaining unit.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14
ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14
ERB 4-1998, f. & cert. ef. 1-26-98
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 1-1990, f. 7-19-90, cert. ef. 8-1-90
ERB 1-1988, f. & cert. ef. 4-25-88
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0010 General Requirements for Filing Representation Petitions

All representation-related petitions must be filed in writing with the Board on a form approved by the Board. The Board or Board Agent will send a copy of the petition to the parties named in the petition. The Petitioner must check the box that describes the purpose of the petition and provide the information requested in the form. The Petitioner must sign and date the form.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14
ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0015 When Representation-Related Petitions Can Be Filed

A representation-related petition under these rules may be filed at any time unless one of the following limitations, or “bars,” applies:

(1) Certification Bar. When employees have already chosen representation and a bargaining representative has been certified within the preceding twelve (12) months, the Board will not accept petitions to change or decertify representation. This bar applies unless:

(a) The certified labor organization has dissolved or has become defunct;

(b) A schism has developed in the certified labor organization so that it cannot effectively represent bargaining unit members;

(d) Other changed circumstances warrant waiver of the certification bar.

(2) Contract Bar. No representation election involving employees covered by a written collective bargaining agreement with a term of up to three years’ duration shall be held during that agreement’s term.

(a) When a collective bargaining agreement covering the employees is in effect, the Board will not normally accept petitions to change or decertify representation except during the following “open periods”:

(A) For a collective bargaining agreement with a term of up to three years, a petition may be filed during a period not more than ninety (90) days and not less than sixty (60) days before the contract’s expiration date.

(B) For a collective bargaining agreement with a term of more than three years, a petition may be filed during a period not more than ninety (90) days and not less than sixty (60) days before the end of the first three years of the contract or any time after three years from the effective date of the contract. However, if a new contract is executed after the third year of the contract and before the filing of a petition, the new contract will serve as the basis for a contract bar.

(b) A contract renewed either by execution of a successor agreement or by automatic renewal has the same effect as a new contract. However, the short-term extension of an existing contract to afford the parties time to negotiate a new contract will not serve as a basis for the contract bar.

(A) the agreement is no longer a stabilizing influence; and

(B) an election should be held to restore stability to the representation of employees in the unit.

(3) Election Bar. The Board will not conduct a representation election or process a card check petition if a valid election was conducted for the bargaining unit or a subdivision of the unit in the 12-month period preceding the date of the petition. In mail ballot elections, the date of the election shall be the deadline for return of ballots to the Board. In on-site elections, the date of the election shall be the last day that the polls are open. In mixed on-site and mail ballot elections, the date of the election will be the latest of the foregoing dates.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 1-1988, f. & cert. ef. 4-25-88
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0020 Appropriate Unit

(1) Petitions to create a new bargaining unit or to change an existing unit must include a description of the proposed unit. The proposed unit must be an appropriate unit for collective bargaining. The proposed unit does not need to be the most appropriate unit.

(2) Subject to ORS 243.650(1), 243.650(19) and 243.682(1)(a), a bargaining unit may consist of all of the employees of the employer, or any department, division, section or area, or any part or combination thereof, if found to be appropriate by the Board.

(3) When considering whether a proposed bargaining unit is appropriate, among the things the Board considers are community of interest (e.g., similarities of duties, skills and benefits; interchange or transfer of employees; promotional ladders; common supervision; etc.); wages, hours and other working conditions of the employees involved; the history of collective bargaining; and the desires of the employees.

(4) Questions concerning public employee status will not be decided in proceedings to determine the appropriate bargaining unit for a representation matter, unless the representation matter cannot be certified without the resolution of such questions.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0021 Showing of Interest Requirements

(1) Many petitions must be supported by a valid showing of interest.

(2) A petitioner can fulfill the showing of interest requirement by submitting authorization documents (typically cards) signed by eligible employees. An authorization document must, at a minimum, contain the following:

(a) The employee's name, typed or legibly printed;

(b) The employee's signature;

(d) A statement that the employee designates the named labor organization as the employee's exclusive representative for purposes of collective bargaining with the employee's employer (if applicable); and

(e) A statement that the employee understands how the authorization document may be used. The statement must be consistent with the type of petition being filed. Model language for card check petitions is provided below, in section (4) of this rule.

(3) An authorization document must be signed and dated within the 180-day period before the petition is filed.

(4)(a) The Board has developed the following model language that may be used for the showing of interest for a card check petition (to certify a new bargaining unit or to add unrepresented employees to an existing unit):

(b) The authorization document may use different language than subsection (4)(a) of this rule, but the document must include the same information for the authorization to be valid.

(5)(a) When authorization cards are used for the showing of interest, the petitioner should arrange the cards alphabetically by last name. Authorizations that do not substantially comply with this rule will not be counted.

(b) An electronic record and an electronic signature, as those terms are defined in ORS 84.004, may be used to prepare and sign authorizations.

(c) Notwithstanding section (2) of this rule, and except as otherwise provided in subsection (d) of this section, a petition submitted under this Division as an electronic record that includes a signed authorization using an electronic signature must:

(A) Include the following information:

(i) The name of the signer;

(ii) The signer’s email address or social media account;

(iii) The signer’s telephone number;

(iv) The exact language that the signer is assenting to by providing the electronic signature;

(v) The date of submission of the electronic signature; and

(vi) The name of the public employer that employs the signer; and

(B) Be accompanied by a verification declaration by the petitioning party:

(i) Specifying the technology used to obtain and verify the signatures;

(ii) Providing the methods used to ensure the authenticity of the signature; and

(iii) Confirming that the information transmitted to the signer was the same information to which the signer assented.

(d) If the technology used to provide the signed authorization does not support digital signatures that are suited to satisfy the requirements of the verification declaration described in subsection (c) of this section, the petitioning party must submit evidence that, after the petitioning party obtained an electronic signature, the party promptly transmitted a confirmation transmission to the signer confirming that all of the information described under subparagraphs (c)(A)(i) to (vi) of this section is true.

(6)(a) The showing of interest submitted under these rules will not be furnished to any of the parties except the party that filed the showing of interest, which may examine cards or petitions when signatures are deemed invalid.

(b) The showing of interest will be destroyed when the file is closed unless the party filing the showing of interest requests that its showing of interest be returned. The Board will return the original showing of interest to a petitioner upon request if the petition is withdrawn.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 2-2023, amend filed 11/29/2023, effective 01/01/2024
ERB 1-2023, temporary amend filed 08/29/2023, effective 08/29/2023 through 02/24/2024
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0025 Petitions to Certify a New Bargaining Unit (by Card Check or Election)

(1) A representation petition may be filed to certify a new bargaining unit. The petition may request that the Board determine whether a majority of the employees in the proposed bargaining unit desire representation by the designated representative by conducting a card check (see OAR 115-025-0030) or an election (see OAR 115-025-0031). Public employees or a labor organization may file a petition for certification by card check or an election. A public employer may file a petition to certify an exclusive representative by election, under the circumstances set forth in OAR 115-025-0031(2).

(2) A petition to certify a new bargaining unit (by card check or election) must not propose a unit that includes employees who are in a bargaining unit that is represented by another labor organization at the time the petition is filed.

(3) A petition to certify a new bargaining unit is subject to the “election bar” under Board rules. See OAR 115-025-0015(3).

(4) Voluntary Recognition. Nothing in the Board's rules is intended to prevent an employer from voluntarily recognizing a labor organization pursuant to ORS 243.666(3). If an employer agrees to voluntarily recognize a labor organization as the exclusive representative of a group of its employees, the labor organization is not required to file a petition for certification.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2008, f. 3-12-08, cert. ef. 3-17-08
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0030 Petition for Certification of a New Bargaining Unit by Card Check (Without an Election)

(1) A petition for certification of a representative without a formal election, commonly referred to as the card check process, may be filed when a majority of unrepresented employees in a proposed bargaining unit wish to be represented by a labor organization. The petition may be filed by public employees or a labor organization. The petition requires a showing of interest from more than fifty percent (50%) of employees in the proposed unit. The showing of interest document must comply with OAR 115-025-0021(4) (showing of interest requirements for card check), including by indicating that the signer understands that the document may be used to obtain certification without an election.

(2) If the Board determines that a majority of employees in an appropriate unit have signed valid authorization documents designating the labor organization named in the petition as the exclusive representative, and that no other labor organization is currently certified or recognized as the exclusive representative for any employee in the proposed bargaining unit, then the Board will certify the labor organization named in the petition as the exclusive representative without an election, unless a timely petition for election is filed under OAR 115-025-0061.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14
ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14
ERB 1-2008, f. 3-12-08, cert. ef. 3-17-08
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 1-1988, f. & cert. ef. 4-25-88
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0031 Petition for Certification of a New Bargaining Unit by Election

(1) Petition by Employees or Labor Organization for Certification by Election. Public employees or a labor organization may file a petition for certification of a new bargaining unit by an election process. The petition requires a showing of interest from at least thirty percent (30%) of employees in the proposed unit. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements).

(2) Petition by Public Employer for Certification by Election.

(a) A public employer may file a petition for an election to certify a public employee representative if the employer is presented with a request from one or more labor organizations to be recognized (or continue to be recognized) as the employee representative, and the employer has a good faith doubt (based on reasonable objective standards) as to the continued majority status of the incumbent labor organization.

(b) The petition must include a brief statement of the reasons for the employer’s doubt, including a summary of the facts that the employer believes support the petition. A simple assertion of the employer’s doubt is insufficient.

(d) The petition may be filed whenever the competing claims are made. Petitions by the employer are subject to the same bars that apply to the competing claims.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0035 Petition for an Election to Change Exclusive Representative

(1) A labor organization may file a petition for an election to replace the current exclusive representative of an existing bargaining unit.

(2) The petition requires a showing of interest from at least thirty percent (30%) of employees in the existing bargaining unit. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements), including by indicating that the signer desires to be represented by the petitioning labor organization instead of the current exclusive representative.

(3) This type of petition is subject to the “election,” “contract” and/or “certification” bars under Board rules.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0045 Petition to Decertify Exclusive Representative

(1) Public employees may file a petition for an election for decertification of an existing bargaining unit.

(2) The petition requires a showing of interest from at least thirty percent (30%) of the employees in the bargaining unit. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements), including by indicating that the signer no longer desires to be represented for purposes of collective bargaining by the recognized or certified representative.

(3) The election, contract, and certification bars apply.

(4) The petition may be filed in any open period.

(5) If employees vote to decertify their exclusive representative, under the Board’s election bar rules, no new petition for representation may be filed for that group of employees for one year.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0050 Unit Clarification Petitions

(1) A unit clarification petition may be filed to determine whether there should be certain changes to an existing bargaining unit or its exclusive representative, or to resolve certain questions about an existing bargaining unit. Specifically, a unit clarification petition may be filed to determine the following types of questions:

(a) whether certain unrepresented employees should be added to an existing bargaining unit (the petitioner can request either a card check or an election process);

(b) whether certain employees are “public employees,” “supervisory employees,” “managerial employees,” or “confidential employees,” as those terms are defined by the Public Employee Collective Bargaining Act;

(c) whether certain employees should be included or excluded from a bargaining unit based on the contract recognition clause included in the parties’ collective bargaining agreement;

(d) whether a certain group of employees should be transferred from their existing bargaining unit to a different, currently represented bargaining unit;

(e) whether an existing bargaining unit should be redesignated because it includes certain employee(s) who should not be included in the bargaining unit based on the statutory standard for an appropriate bargaining unit;

(f) whether multiple bargaining units represented by the same bargaining representative should be merged into a single bargaining unit;

(g) whether the certification or recognition of a bargaining representative should be amended, such as when there is a change in the labor organization’s affiliation, or a change to the name of the labor organization or the public employer; or

(h) whether a current certification should be revoked.

(2) All unit clarification petitions must be completed on a form provided by the Board. Each type of unit clarification has its own filing requirements (e.g., the rules regarding the showing of interest, when the petition may be filed, type of unit, and who may file), as set forth below.

(3) Unit Clarification Petition to Add Unrepresented Employees to Existing Bargaining Unit (by Card Check or Election):

(a) A labor organization may file a unit clarification petition to add unrepresented employees to an existing bargaining unit. The petitioner may request that the Board determine whether the majority of employees in the petitioned-for group desire to be added to the bargaining unit by conducting a card check or an election.

(b) The petitioned-for group must not include employees who are represented by another labor organization at the time the petition is filed.

(c) If the petitioned-for group includes employees who occupy positions that existed and were filled at the time of the most recent certification or recognition agreement, the contract bar applies and the petition must be filed in the open period. The petition also will be subject to the election and certification bars.

(d) If the employees in the petitioned-for group occupy positions that were created or were filled since the most recent certification or recognition agreement, the petition may be filed at any time.

(e) If any objections to a petition to add employees to a bargaining unit are received, the designated Board Agent may determine the issues raised by the petition. If the Board Agent determines that the issue raised is different from that designated on the form, the Board Agent will determine whether the petition complies with the requirements of the appropriate subsection(s) for adding unrepresented employees to a bargaining unit.

(4) Adding by Card Check:

(a) A labor organization may file a unit clarification petition to add a group of unrepresented employees to an existing unit by card check. The petition requires a showing of interest from more than fifty percent (50%) of the employees in the group to be added to the existing bargaining unit. The showing of interest document must comply with OAR 115-025-0021(4) (showing of interest requirements for card check), including by indicating that the signer understands that the document may be used to obtain certification without an election.

(b) Unrepresented employees will be added to an existing bargaining unit by card check under ORS 243.682(2)(a) and this rule, if the Board finds that:

(A) a majority of employees in the group of employees seeking to be included in the existing bargaining unit have signed authorizations designating the labor organization specified in the petition; and

(B) no other labor organization is certified or recognized as the exclusive representative of any of the employees in the group of unrepresented employees seeking to be included.

(5) Adding by Election:

(a) A labor organization may file a unit clarification petition to add a group of unrepresented employees to an existing bargaining unit by election. The petition requires a showing of interest from at least thirty percent (30%) of employees in the group to be added to the existing bargaining unit. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements).

(b) If the Board determines the petition requirements have been met, the Board will order an election in which the unrepresented employees will vote either to be represented within the existing bargaining unit or for no representation.

(6) Unit Clarification Petition to Determine Public Employee Status:

(a) A labor organization or public employer may file a unit clarification petition to determine whether an employee is a “public employee” entitled to representation under the Public Employee Collective Bargaining Act, or a “supervisory,” “confidential,” or “managerial” employee ineligible for representation under the Public Employee Collective Bargaining Act.

(b) No showing of interest is required for this type of petition.

(c) The petition may be filed at any time, except the contract bar applies if the title of a position sought to be excluded is expressly included within the unit description in the certification or recognition agreement.

(d) The Board may determine that an election is appropriate to further the policies expressed in ORS 243.662, and order a self-determination election among the affected employees described in a petition filed by a labor organization. For example, a self-determination election may be ordered when the affected employees, as a class, were excluded from voting when the bargaining unit was certified and subsequently were treated as being excluded from the unit.

(7) Unit Clarification Petition to Include Employees in Existing Unit Based on Certification or Contract Language. A labor organization or a public employer may file a unit clarification petition to determine whether certain employees are or are not included in a bargaining unit under the express terms of a unit description in a certification or collective bargaining agreement. No showing of interest is required, and the petition may be filed at any time. However, if a grievance is being processed that may resolve the issue, the petitioner will be required to exhaust the grievance in process.

(8) Unit Clarification Petition to Transfer Represented Employees into a More Appropriate Bargaining Unit:

(a) A labor organization may file a unit clarification petition to determine whether a group of employees currently represented within (as a fragment of) another bargaining unit more appropriately belongs in a unit represented by the labor organization petitioning for clarification.

(b) The petition requires a showing of interest from more than fifty percent (50%) of the employees in the group described in the petition. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements), including by indicating that the signer desires to be included in the bargaining unit represented by the petitioning labor organization.

(d) If the Board determines that it would be appropriate to transfer the employees to the petitioner’s bargaining unit, the Board will order a self-determination election among the employees described in the petition. The employees will vote either to continue to be represented within the current bargaining unit or to transfer and be represented within the petitioner’s bargaining unit.

(9) Unit Clarification Petition to Redesignate (Remove Employees from) Existing Bargaining Unit. A public employer may file a unit clarification petition to determine if a bargaining unit should be redesignated because it includes an employee or employees who should not be included in the unit according to the criteria in ORS 243.682(1)(a). No showing of interest is required. The election, contract and certification bars apply. If a contract is in effect, a petition for a redesignation must be filed not less than one hundred fifty (150) days nor more than one hundred eighty (180) days before the end of the contract. If a collective bargaining agreement with a term of more than three years is in effect, a petition for redesignation may also be filed any time after three years from the effective date of the contract. However, if a new contract is negotiated during the fourth year of the contract and before the filing of a petition for redesignation, the new contract will serve as a contract bar. An order redesignating a unit where a contract exists will be effective upon expiration of the contract.

(10) Unit Clarification Petition to Merge Existing Bargaining Units:

(a) A labor organization may file a unit clarification petition to determine whether to merge two or more bargaining units represented by the same labor organization and employed by the same employer.

(b) The Board will order the clarification if it determines that the merged unit includes all employees in the existing units and is an appropriate unit.

(c) The petition requires a showing of interest from more than fifty percent (50%) of the employees in each unit. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements), including by indicating that the signer desires their bargaining unit to be merged with the other unit(s).

(d) The election, certification and contract bars apply. The petition must be filed during the open period provided for in OAR 115-025-0015, as that rule applies to the larger (or largest) of the bargaining units.

(e) When the Board approves a merger of bargaining units, and the employees in the smaller unit are covered by a collective bargaining agreement, the employment conditions for the employees in the smaller unit will remain governed by their collective bargaining agreement until that agreement expires. Before the expiration of that agreement, the parties are obligated to begin negotiations for inclusion of the smaller unit employees under the larger-unit agreement.

(11) Unit Clarification Petition to Amend or Modify Existing Certification or Recognition:

(a) A labor organization or public employer may file a unit clarification petition to amend a certification or employer recognition. The petition may be filed at any time so long as there is no other pending petition that raises a valid question of representation. Such a petition may be appropriate to reflect a change in name or affiliation of the exclusive representative or a change in name of the employer.

(b) If the petition is filed because of an affiliation or change in affiliation, the petitioner will be required to prove that petitioner’s affiliation procedure was conducted in accordance with at least minimal due process to show that no question of representation exists.

(12) Unit Clarification Petition to Revoke Certification or Recognition:

(a) A labor organization or public employer may file a unit clarification petition to revoke a Board certification or employer recognition of an exclusive representative that disclaims interest or is defunct. No showing of interest is required. The petition may be filed at any time when no collective bargaining agreement is in effect.

(b) The Board will order revocation only if:

(A) No collective bargaining agreement is in effect; and

(B) The labor organization disclaims further interest in representing the bargaining unit or the labor organization is defunct.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 1-1982, f. & ef. 1-19-82
ERB 3-1981(Temp), f. 10-5-81, ef. 10-9-81
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0051 Board Processing of Petitions

(1) Showing of Interest Determination. When a petition is received by the Board, the Board or Board Agent will determine the sufficiency of the showing of interest. That determination is an administrative matter not subject to attack.

(2) Eligibility of Employees and List of Eligible Employees:

(a) Eligible Employees. For the purposes of determining the sufficiency of the showing of interest, public employees who were employed on the filing date of the petition are included in the proposed or affected bargaining unit and are considered eligible in the processing of the petition. The Board may also include as eligible other employees who have a reasonable expectation of continuing employment, including but not limited to, seasonal employees or employees on layoff.

(b) List of Eligible Employees. Within seven (7) days after a public employer receives notice from the Board that a petition has been filed that requires a showing of interest, the public employer will submit to the Board and the petitioner an alphabetical list of eligible employees in the proposed or affected bargaining unit, including their names, addresses and job classifications. The employer will provide the Board proof that it provided a copy of the list to the labor organization named in the petition.

(3) Challenges to the List of Eligible Employees:

(a) Challenges to the inclusion or exclusion of a name(s) from the list of eligible employees must be filed with the Board within seven (7) days after the employer provides the labor organization and the Board with a copy of the list under section (4) of this rule.

(b) The Board Agent will determine whether a majority of employees on the list supplied by the employer have signed valid authorizations. The Board Agent will then determine whether there is a sufficient number of challenged names to affect the result.

(A) If the number of challenges is insufficient to potentially affect the result, then the challenges will be dismissed.

(B) If the number of challenges is sufficient to potentially affect the result, the Board Agent will investigate and, when appropriate, issue a notice of hearing on the challenges. The hearing will be conducted under the expedited procedures set forth in OAR 115-025-0065(2). The challenging party will bear the burden of proof.

(4) Authentication. The Board will determine whether each otherwise valid authorization document was signed by an eligible employee.

(5) Amendments to Petitions:

(a) The Board Agent may require amendments to petitions filed under Division 25. A petition may be dismissed if the petitioner fails to amend the petition within ten (10) days of the Board Agent request, unless the petitioner can establish that it has good cause for failing to do so.

(b) A petitioner may amend a petition at any time before it is sent to respondents. Once the petition is sent, amendments may only be made with approval of the Board Agent.

(6) Withdrawal of Petition:

(a) A petitioner may withdraw a petition filed under these Division 25 rules with the approval of the Board or designated Board Agent.

(b) If a petition is withdrawn after a Recommended Order is issued, after a consent election agreement is executed by the parties, or after a representation election is requested under OAR 115-025-0031, the withdrawal will be granted with prejudice. Prejudice means there will be limitations against filing the same petition again. The petitioner may not submit a new petition for the bargaining unit for a period of six months from the date the withdrawal was approved. Any subsequent petition will also be subject to any applicable bars and open periods.

(7) Dismissal of Petition:

(a) The Board may request that a party withdraw its petition without prejudice, if the Board determines after an investigation that:

(A) The petition has not been timely or properly filed;

(B) No valid question concerning the representation of employees exists; or

(b) If the party declines to withdraw the petition after such a Board request, the Board may dismiss the petition. Such action may be taken by the Board at any time before the closing of the case.

(c) Within fourteen (14) days of the date of service of a Board dismissal of a petition, a petitioner may request reconsideration. This request must contain a complete statement describing the facts and reasons for the request. When the Board grants a request for reconsideration, the Board will normally allow oral argument. The Board may affirm the dismissal, or set the dismissal aside and remand the matter for hearing.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0060 Notice of Petition

(1) When a petition is received by the Board under OAR 115-025-0010, a Board Agent will provide a notice of the petition to the public employer for posting in the work areas granting maximum access to employees in the existing or proposed unit. The public employer shall distribute the notice electronically when reasonably appropriate. Copies of the notice will be sent to the public employer and any known exclusive representative. The notice will include:

(a) The name of the petitioning organization or employer;

(b) A description of the unit involved; and

(A) Objections to the appropriateness of the proposed unit;

(B) Objections to the positions to be included or excluded;

(D) Objections that a labor organization is currently certified or recognized as the exclusive representative of one or more employees in the proposed unit; and

(E) Requests to intervene as provided in OAR 115-025-0062.

(2) When the notice is for a petition for certification or unit clarification by card check, a copy of the notice also will be sent to the recognized or certified representative of any existing bargaining unit, if that representative did not jointly file the petition with the group of unrepresented employees. In addition to the information provided in subsection (1), the notice will include:

(a) A statement that certification for representation or unit clarification without an election has been requested;

(b) The name of the labor organization that seeks certification, and the name of any recognized or certified representative of the existing bargaining unit;

(c) A description of the proposed bargaining unit, or, in the case of a unit clarification petition, a description of the existing bargaining unit and the unrepresented group of employees to be added to that existing unit; and

(d) A statement that a request for an election pursuant to ORS 243.682(3) must be filed within fourteen (14) days from the date of the notice.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2010, f. 9-23-10, cert. ef. 10-1-10
ERB 1-2010(Temp), f. & cert. ef. 4-13-10 thru 10-10-10
ERB 4-1998, f. & cert. ef. 1-26-98
ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 6-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-025-0061 Request for Election Instead of Card Check

(1) After a card check petition (to certify a new bargaining unit or to add employees to an existing bargaining unit) has been filed, an employee or group of employees in the petitioned-for group may file a request for the Board to conduct an election instead of a card check.

(2) The request for an election instead of card check requires a showing of interest of at least thirty percent (30%) of the employees in the proposed new bargaining unit, or at least thirty percent (30%) of the unrepresented employees in the proposed group to be added to an existing bargaining unit. The showing of interest must comply with the requirements of OAR 115-025-0021. Specifically, the showing of interest must contain the employee’s name, typed or printed legibly; the employee’s signature; the date of the employee’s signature; and a statement indicating that the employee requests an election on whether the Board should certify the named labor organization as the exclusive bargaining representative for the employees of the employer, or in the case of a unit clarification petition, that the employee requests an election on whether the group of unrepresented employees should be added to the existing bargaining unit.

(3) When determining the sufficiency of the showing of interest for an election request, the Board will use the same list of eligible employees that it used to check the showing of interest for the underlying petition.

(4) The request for an election must be filed within fourteen (14) days from the date of the notice posted under OAR 115-025-0060.

(5) If the Board determines that the requirements for a request for an election instead of card check have been met, the Board will conduct an election, according to the rules set forth in OAR 115-025-0066 through 115-025-0076.

(a) The election shall be completed within forty-five (45) days from the date that a valid request for an election was filed.

(b) All employees in the bargaining unit designated in the petition for certification without an election or all employees designated to be added to the existing bargaining unit in the petition for unit clarification without an election shall be eligible to vote. The two choices on the ballot shall be no representation, or the labor organization named in the petition for certification or unit clarification without an election.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0062 Request to Intervene in an Election

(1) Request to Intervene after the Filing of an Election Petition by Another Party. A labor organization may file a request to intervene in an election petition filed by another party (including a petition for certification by election, a petition for unit clarification by election, and a petition to change or decertify a representative) if a sufficient number of employees in the affected bargaining unit wish to be represented by the intervening labor organization. The intervening labor organization seeks to be a choice on the election ballot.

(2) Showing of Interest. The intervention request must be supported by a showing of interest of at least ten percent (10%) of employees in the petitioned-for unit. The showing of interest document must comply with OAR 115-025-0021 (showing of interest requirements), including by indicating that the signer wishes to be represented by the labor organization named in the intervention request.

(3) The intervention request must be filed within fourteen (14) days of the notice of the initial petition.

(4) A request to intervene may propose a bargaining unit different from that sought by the petitioner, but that still includes some of the employees in the bargaining unit proposed by the petitioner in the initial petition. In such cases:

(a) The intervention request must be supported by a showing of interest of at least thirty percent (30%) of employees in the different proposed unit. The employees must clearly state in their showing of interest that they wish to be represented by the labor organization named in the intervention request.

(b) The intervention request must be filed within fourteen (14) days of the notice of the initial petition.

(c) If the intervenor’s proposed unit or a major part of it is currently represented, the certified or recognized labor organization that is the exclusive representative will be included as a party in interest in any hearing on the petition and will be included on the ballot in any resulting election, unless it files a disclaimer pursuant to OAR 115-025-0072(1)(f).

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0063 Objections to a Petition

(1) Objecting to a Petition. An affected employee or a party, including an intervenor, may file an objection regarding a petition to certify an exclusive representative, a petition to change or decertify an exclusive representative, or a unit clarification petition (except for a petition to amend or modify an existing certification or recognition filed under OAR 115-025-0050(11), or a petition to revoke certification or recognition filed under OAR 115-025-0050(12)).

(2) Filing of Objections. When a party objects to a petition submitted under these rules, it will serve a copy of the objections at the same time on the petitioner and all known interested parties, and provide the Board with proof of service.

(3) Objections must contain a clear and concise statement of the legal and factual reasons for the objections. For example, if a party files objections asserting that a proposed bargaining unit is not appropriate, the party must explain why the unit is not appropriate and provide a summary of the factual basis for those assertions. A simple assertion that the unit is not appropriate is insufficient.

(4) The Board may dismiss without hearing any objections that do not meet these requirements. Further, the Board may dismiss objections without a hearing when, even assuming that the facts alleged by the objecting party are true, the asserted basis for the objections would not be sufficient to sustain the objection. Before the Board dismisses objections without a hearing, it shall provide the objecting party two (2) days to submit additional information in support of its objections.

(5) Objections that are not dismissed will be subject to the expedited hearings process under OAR 115-025-0065(2).

(6) Objections to a petition must be filed within fourteen (14) days of the date of the notice posted pursuant to OAR 115-025-0060.

(7) If a hearing is necessary to resolve objections to a petition, the hearing process may be expedited as provided for in OAR 115-025-0065(2). The Board may conduct an election before resolving objections to the petition. If the Board does so, the Board may delay counting the ballots until all objections are resolved.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0065 Hearings Process

(1) Disputes regarding representation issues will be resolved through one of three possible procedures, depending on the nature of the dispute:

(a) Administrative Review by Board. The Board may resolve certain disputes administratively without the need for a hearing where the Board is acting in an administrative capacity. For example, the Board may dismiss filings for failure to comply with the Board’s procedural rules, including but not limited to requirements relating to the information that must be submitted in a petition, the adequacy of any required showing of interest, and timeliness of petitions or other filings.

(b) Standard Hearing Process. The hearing process under OAR 115-010-0050 through OAR 115-010-0110 will apply to cases under this Division that do not require expedited resolution.

(c) Expedited Hearing Process. When a party has filed a petition to create a new bargaining unit or to add unrepresented employees to an existing unit, and the Board must conduct a hearing to resolve a dispute regarding whether the petitioned-for bargaining unit is appropriate, the Board shall use the expedited hearing process set forth below, in OAR 115-025-0065(2), unless all of the parties agree to use the standard hearing process. In any other type of representation matter that requires a hearing, any party may ask the Board to expedite all or part of the hearing process by filing a motion (pursuant to the Board’s rule regarding motions, OAR 115-010-0045).

(2) In expedited representation matters, the following rules apply:

(a) When scheduling the hearing and related deadlines, and when deciding whether a party has shown that there is good cause for a continuance, extension, or other delay, the Board shall consider the statutory mandate to expedite representation matters, as set forth in ORS 243.682(2)(b)(F).

(b) The Board order in an expedited representation matter generally shall be issued within 120 days of the filing of the petition.

(c) The Board or a Board Agent may require the parties to produce or exchange information (including documents and position statements) to identify or narrow the legal and factual issues in dispute.

(d) The parties may submit pre-hearing briefs.

(e) The Board or a Board Agent may conduct the hearing. Regardless of who conducts the hearing, the Board generally shall issue a final order without a recommended order.

(f) At the conclusion of the hearing, the parties may submit oral closing argument or elect to submit post-hearing briefs. If the parties elect to submit post-hearing briefs, they must submit the briefs within seven (7) days of the last day of the hearing. A motion to extend the deadline for submitting briefs will be granted only if all parties involved agree, or if the movant establishes that there is good cause for the requested extension based on unforeseeable circumstances.

(g) If the Board issues the final order without a recommended order, the Board generally shall grant a party’s request for reconsideration and grant oral argument, consistent with OAR 115-010-0100. However, in expedited representation matters, the Board generally shall schedule oral argument on the request for reconsideration within fourteen (14) days of the request filing date.

(3) Notice of Hearings, Conduct of Hearings, and Post-Hearing Procedures. Unless the context requires otherwise, OAR 115-010-0050 through OAR 115-010-0110 apply to cases under this Division.

(4) Evidence at Hearing. As provided in OAR 115-010-0070(5)(a), representation hearings are investigatory and there is no burden of proof on any party. Nevertheless, in disputes concerning whether employees are "public employees," there must be sufficient evidence establishing that a statutory exclusion applies

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2024, minor correction filed 05/16/2024, effective 05/16/2024
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14
ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14
ERB 1-2008, f. 3-12-08, cert. ef. 3-17-08
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08

Or. Admin. R. 115-025-0066 Election Procedures

(1) Setting the Election Process. If the Board determines that a valid petition for an election has been filed, the Board will conduct an election by secret ballot. The Board will confer with the parties to set the terms of the election process, such as the date of the election. If the parties do not enter into a consent election agreement regarding the election process, the Board shall conduct a hearing to resolve any disputes about the election process. The Board will schedule a hearing to resolve such disputes as soon as practicable, and provide notice of hearing as required by OAR 115-010-0040. If objections to the petition were filed, the Board may consolidate all of the issues for hearing, and the hearing rules set forth above, in OAR 115-025-0065, apply.

(2) Consent Election Agreements. The parties may waive a hearing and enter into a consent election agreement after fourteen (14) days from the date that the notice of petition was posted by the employer. The agreement will include a description of the unit; the dates, times and places of the election; and the payroll period or formula to be used in determining the employees eligible to vote. The bargaining unit set out in the consent election agreement will be deemed an appropriate bargaining unit when the consent election agreement is approved by the Board.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0070 Notice of Election; Improper Use of Notice

(1) In cases requiring an election, the Board will provide a notice of election to the public employer for posting in the work areas granting maximum access to employees in the existing or proposed unit. The Board will require the public employer to post the notice of election for at least fourteen (14) days before the election. Notice shall be posted electronically when reasonably appropriate. The Board will also provide copies of the notice to all parties.

(2) The notices will describe the details and procedures for the election, the unit, the employee eligibility period, and date(s), hour(s) and place(s) of the election. Notices also will contain a sample ballot.

(3) The reproduction of any document purporting to be a copy of the Board’s official ballot, which directly or indirectly suggests to employees that the Board endorses a particular choice, may constitute grounds for setting aside an election. A reproduction that is completely unaltered in form and content and clearly marked "sample" on its face is permitted.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14
ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08

Or. Admin. R. 115-025-0071 Voter Eligibility

(1) Voter Eligibility. Public employees eligible to vote in an election will be those:

(a) employed on the date of the election; and

(b) who were employed on a payroll date agreed to by the parties or on a date specified by the Board.

(c) The Board may include as eligible voters other employees who have reasonable expectations of continued employment, including, but not limited to, seasonal employees, on-call employees, or employees on layoff.

(2) List of Eligible Voters. The public employer will submit an alphabetical list of eligible voters, their names, addresses, job classifications, and, if known, personal email addresses and phone numbers to the Board. Unless otherwise expressly agreed to by the parties, the submission will be provided at least twenty (20) days before the date of the on-site election or twenty (20) days before the date set for the Board to mail out ballots in a mail ballot election. The Board will provide each labor organization and other appropriate parties with a copy of the list.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0072 Voting Procedures

(1) Voting:

(a) Voting will be by secret ballot with an opportunity to vote for any labor organization on the ballot or for no representation (if that choice is applicable).

(b) Elections will be conducted by mail ballot, unless a mail ballot election would not fulfill the policy statements in ORS 243.656.

(A) In a mail ballot election, the date of the election will be the date ballots are to be returned.

(B) A ballot that is not delivered by the voting deadline is void. Ballots may be delivered through the U.S. mail, other commercial delivery service, or in person by anyone other than a supervisor or manager employed by the public employer or a representative employed by the labor organization.

(C) If any individual believes they are eligible to vote but they do not receive a mail ballot, they may contact the Board to request a provisional ballot. Such provisional ballots may be challenged or resolved according to this Board’s rule, OAR 115-025-0051(3).

(c) For on-site elections, the date of the election is the last day that the polls are open. For elections that include both on-site voting and mail ballot voting, the date of the election will be the latest of the foregoing dates.

(d) For all representation elections the choice on the ballot receiving the majority of valid votes cast will be declared the winner. In an initial election or runoff election where the ballot has only two choices, and the balloting results in a tie vote, the Board Agent will certify that no representative has been chosen.

(e) Elections will be completed within forty-five (45) days from the date of a petition requesting an election.

(f) Disclaimer. A labor organization may request in writing to have its name removed from the ballot, disclaiming any representation interest for the employees in the unit. For an on-site election, the disclaimer must be filed at least ten (10) days before the date of the election. For a mail ballot election the disclaimer must be filed at least ten (10) days before the date ballots are mailed. When a disclaimer is allowed by the Board after a consent election agreement has been signed, or after the Board has ordered an election, the Board will not accept or consider a new representation petition filed by the disclaiming organization for the same bargaining unit for a period of six months from acceptance of the disclaimer.

(2) Observers. Parties to an election may be represented by observers of their own choosing. The number and the function of the observers will be determined by the Board Agent conducting the election. For on-site election polling place(s):

(a) Observers for the employer cannot be supervisors employed by the employer.

(b) Observers for the labor organization(s) must be eligible voters.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0073 Ballot Count Procedures

(1) Counting of Ballots. The Board Agent conducting the election will notify the parties of the date of the ballot count and advise the parties that they are entitled to be represented at the count. Upon the conclusion of the ballot count, the Board Agent will, on that same date, furnish the parties with a tally of ballots.

(2) Challenged Ballots:

(a) When there is good cause to question the eligibility of an individual to cast a ballot, a party to the election or the Board Agent may challenge the eligibility of the individual to participate in the election. Challenges may be made before or at the ballot counts.

(A) Challenges submitted before the ballot count must be in writing, supported by a statement describing the challenge, and provided to the other parties to the election.

(B) At the ballot count, challenges may be made orally before any ballots are opened.

(b) Challenged ballots will be impounded until eligibility is resolved. Successfully challenged ballots will not be opened and counted.

(c) The parties may resolve any challenged ballot(s) at the time of the ballot count. Challenges will not be resolved by the Board when the number of challenges will not affect the outcome of the election.

(d) When the number of challenged ballots is sufficient to affect the results of the election, the Board Agent will conduct an investigation and, when appropriate, will issue a notice of hearing.

(A) The dispute will be processed under the rules described in OAR 115-035-0060(5).

(B) The challenging party will bear the burden of proof and of going forward in the hearing.

(C) If the Board Agent exercised a challenge because the voter's name was not on the list of eligible voters, the party seeking to have the vote counted will have the burden of proof of eligibility and the burden of going forward.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0074 Runoff Election

A runoff election will be conducted in any representation election where there are more than two choices on the ballot and no choice receives a majority of the valid votes cast. The Board will follow the procedures for conducting an election. The ballot in a runoff election will be the two choices that received the largest number of votes on the original ballot. To be eligible to vote in the runoff election, an employee must have been eligible to vote in the original election and must still be employed on the date of the runoff election.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0075 Election Objections

(1) A party to an election may object to the conduct of an election or conduct affecting the results of an election. An individual voter is not a party. Conduct of the election means the manner in which the election was carried out by the Board and its agent(s). Conduct affecting the results of the elections means acts and/or statements by a party that improperly influence the free choice or fairness of the votes.

(a) Objections must be filed within ten (10) days after the tally of ballots has been furnished to all parties. When the tally results in a runoff election, the deadline applies for objections to the original election, and for objections in the runoff election.

(b) Objections must comply with OAR 115-025-0063.

(2) When timely objections are filed the Board Agent will conduct an investigation and will, when appropriate, issue a notice of hearing.

(a) The dispute will be processed under the rules described in OAR 115-025-0065.

(b) The objecting party will bear the burden of proof and of going forward in the hearing.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14
ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14
ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08

Or. Admin. R. 115-025-0076 Certification of Representative or Results of Election

If no objections are filed within ten (10) days and any challenged ballots are insufficient in number to affect the results of the election, the Board will issue to the parties a certification of the results of the election, including certification of representative, where appropriate.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, adopt filed 01/07/2021, effective 01/07/2021

Or. Admin. R. 115-025-0090 Merger of School Districts

(1) Application of Rule. This rule shall apply when there is a "merger," as defined in ORS 330.003, of school districts. As used in this rule, the term "labor organization" includes, in addition to the definition under ORS 243.650(13), an entity composed of two or more local affiliates of a state or national labor organization.

(2) Petition for Certification. A labor organization may file a petition for certification as the exclusive representative of a group of employees of a surviving school district. A petition shall be filed on a form provided by the Board and a copy shall be sent by a Board Agent to parties disclosed in the petition.

(a) Time for Filing. A petition for certification may be filed only between the date of final action by the State Board of Education or by a boundary board to merge the districts and the date that the merger takes effect.

(b) Contents of Petition. The petition must include:

(A) A description of the proposed bargaining unit for which certification is sought;

(B) A statement that the labor organization currently represents a majority of the employees who will be included in the proposed bargaining unit when the merger takes effect. This statement must be supported by collective bargaining agreements or certifications of representative and must include the number of employees in the proposed bargaining unit and the number of employees represented by the labor organization in each current unit;

(C) The name of the superintendent of schools and the name, address and telephone number for each district affected by the merger; and

(D) The dates set forth in subsection (2)(a) of this rule.

(c) Posting of Notice. The Board shall send a notice of the filing of a petition for certification to each affected school district. Each district shall post copies of the notice in work areas granting maximum access to affected employees. The notice shall include a description of the proposed bargaining unit and shall state the rights of interested parties under this Division. The notice shall remain posted for at least ten (10) regular school days.

(d) Objections by Surviving District. Within fourteen (14) days of the date the notice is posted, the surviving school district may file objections to the petition for certification on the ground that the proposed unit is not appropriate or that the district has a good faith doubt that a majority of the employees in the proposed bargaining unit will desire certification of the petitioners as their exclusive representative.

(A) Objections to Unit. If the proposed unit description on its face describes an appropriate bargaining unit, objections to the appropriateness of the unit or to the inclusion or exclusion of certain employees will not delay the certification of representative unless the Board finds that the resolution of the objections may affect the majority support for the petitioning labor organization. A hearing will be held on any valid objections after certification of representative by this Board.

(B) Good Faith Doubt. An objection based on a district's good faith doubt concerning the petitioner's majority support among employees in the proposed bargaining unit must include a statement of the objective basis for the doubt. If the Board finds, based on the objection and any supporting material, that the district's doubt is reasonable, the petition for certification shall be dismissed.

(e) Certification. If no employer objections are filed or are sufficient to delay certification, and no petition for an election affecting employees in the proposed unit is pending, the Board shall issue a certification of representative as soon as is practicable, unless the Board finds the petition to be otherwise defective.

(3) Petition for Election. A labor organization claiming to represent at least thirty percent (30%) of the employees in a proposed bargaining unit in a surviving district may file a petition for representation at any time after the final official action, by the State Board of Education or a boundary board, necessary to effect a merger of school districts, unless a certification of representative for substantially the same group of employees has been issued by the Board.

(a) Showing of Interest. A labor organization's claim to represent thirty percent (30%) of the employees must be supported by a showing of interest, as provided for in OAR 115-010-0010(21) and 115-025-0021, by collective bargaining agreements or certifications showing current representation by the labor organization of at least thirty percent (30%) of the employees who will be in the proposed bargaining unit, or by a combination of a showing of interest and agreements or certification.

(b) Conduct of Election. After a petition is filed under section (3) of this rule, procedures concerning the petition and any subsequent election will be governed by the other provisions of OAR Chapter 115, Division 25, except that a labor organization's petition to intervene as a candidate under OAR115-025-0062 may be supported by a ten percent (10%) showing of interest, by a showing that it currently represents at least ten percent (10%) of the employees who will be in the proposed bargaining unit or by a combination of the two showings equaling ten percent (10%) support.

(4) Voluntary Recognition. Nothing in this rule is intended to prevent an employer from recognizing a labor organization pursuant to ORS 243.666(3).

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1992, f. & cert. ef. 6-15-92

Division 35 UNFAIR LABOR PRACTICE COMPLAINTS IN PUBLIC EMPLOYMENT

Or. Admin. R. 115-035-0000 Filing an Unfair Labor Practice Complaint

(1) Who may file. An injured party may file a complaint, on a form approved by the Board, alleging that a person(s) has engaged in or is engaging in an unfair labor practice as defined in ORS 243.672.

(2) Supporting Data. At the time the complaint is filed, the complainant may submit documentary evidence that may be relevant to the issues raised by the complaint.

(3) Filing fee. A filing fee of $300 must be paid at the time the complaint is filed. The complaint is not considered filed until the Board has received the filing fee. Complaints that are filed without a filing fee will not be considered.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 1-1994, f. 6-23-94, cert. ef. 7-1-94
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0005 Investigation of Complaint

A Board Agent shall investigate the complaint to determine if an issue of fact or law exists that warrants a hearing. Information submitted by a party as part of the investigatory process is confidential.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0010 Amendment of Complaint

(1) At Request of Board Agent. When a complaint appears to raise an issue of fact or law, but such complaint is incomplete by reason of insufficiently detailed allegations or inadvertent omissions, the Board Agent, with notice to all parties, may request that the complainant amend its complaint within ten days of the request. Failure of the complainant to timely amend the complaint without good cause will subject the complaint to dismissal. If the complaint, as amended, does not raise an issue of fact or law that warrants a hearing, it shall be dismissed.

(2) Upon Request of Complainant. Complainant may amend the complaint at any time before service of the complaint. Thereafter, an amendment to the complaint may be made only if good cause is shown. If the Board or Board Agent allows the amendment, respondent shall be given a reasonable period of time to amend its answer. Any case severance or consolidation is governed by OAR 115-010-0040(6).

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0015 Withdrawal of Complaint

Unless the respondent agrees, a complainant may not withdraw a complaint after issuance of a Recommended Order without a showing of good cause.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0020 Dismissal of Complaint

If an investigation reveals that no issue of fact or law exists that warrants a hearing, the Board may dismiss the complaint.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0030 Service of Notice and Complaint

If a question of fact or law exists that warrants a hearing, the Board shall serve a notice of hearing and (if not provided previously) a copy of the complaint on the respondent(s).

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0035 Answer to Complaint

(1) Answer. A respondent shall have 14 days from date of service of the complaint in which to file an answer. All allegations in the complaint not denied by the answer, unless the respondent states in the answer that it is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. Complainant shall be required to establish a prima facie case. The answer will be deemed sufficient if it generally denies all allegations of the complaint. Respondent’s answer shall specifically admit any undisputed allegations and shall set forth any affirmative defenses.

(2) Supporting Data. At the time that the answer is filed, the respondent shall either submit a written statement setting forth its version of the relevant facts, or include such information in the body of the answer. This information shall include individuals involved (by name or initials), dates and places, together with any documentary evidence that may be relevant to the issues raised by the complaint or by the answer, including available information in support of any affirmative defenses.

(3) Amendments. A respondent may amend its answer with the approval of the Board Agent. If an amendment is allowed, complainant shall be given a reasonable period of time to amend its complaint.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11
ERB 3-2007, f. 12-17-07, cert. ef. 12-26-07
ERB 1-2007(Temp), f. 6-29-07, cert. ef. 7-1-07 thru 12-27-07
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0040 Notice of Hearings, Conduct of Hearings, and Post-Hearing Procedures

Unless the context requires otherwise, OAR 115-010-0040 through 115-010-0110 apply to cases under this Division.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-035-0055 Representation Costs

(1) General:

(a) Pursuant to ORS 243.676(2)(d) and (3)(b), the Board shall award representation costs to the prevailing party in unfair labor practice cases.

(b) "Representation costs" shall be awarded as follows:

(A) $250 for a case dismissed without a hearing, providing that the dismissal order contains a conclusion that the person named in the complaint has not engaged in or is not engaging in an unfair labor practice.

(B) $1,000 for a case presented solely on stipulated facts.

(D) $5,000 for a case that requires more than one day of hearing (neither hearing day need last a full day).

(E) The full amount of reasonable representation costs if a civil penalty is awarded.

(F) If a non-prevailing party had to rely on personal financial resources to litigate the matter, the prevailing party shall be awarded $500 in representation costs, unless the Board determines that a lesser award is more appropriate.

(G) The Board will not award representation costs if the parties notify the Board that they have agreed to waive the awarding of those costs.

(c) A petition for representation costs needs to be filed only when a party seeks an award of costs in excess of $5,000 (due to a civil penalty being awarded).

(d) Prevailing party is the party in whose favor a Board Order is issued. Where one charge (or more) in a complaint is upheld while one charge (or more) in a complaint is dismissed, the Board shall determine which party is the “prevailing party” based on the charge or charges that the Board determines to be the primary or most significant in the case. If the Board determines that upheld and dismissed charges are equally significant, no representation costs will be awarded.

(e) For purposes of this rule, charges are “separate” only if:

(A) they are based on clearly distinct and independent operative facts; i.e., the charges could have been pleaded and litigated without material reliance on the allegations of the other(s), and the separate charges concerned the enforcement of rights independent of the other(s); or

(B) they concern two or more scope of bargaining questions that are dealt with by the Board in separate conclusions of law.

(2) Representation Costs Order.

(a) The Board will not award representation costs until the appeal period under ORS 183.482 has run or, if an appeal has been filed, until the Board receives the appellate judgment.

(b) If the Board orders a civil penalty and a prevailing party seeks costs in excess of $5,000, the party must file a petition within 21 days of the date of the issuance of the Board Order that awarded a civil penalty. That petition shall include a statement of the amount of costs requested, along with a description of the actual amount of the fees incurred by the petitioner or, where the petitioner has not charged fees, the basis for the amount of the costs requested. If a petition is not timely filed under this subsection, the Board shall award representation costs based on the scale set forth in section (1) of this rule.

(c) If a petition for representation costs in excess of $5,000 is filed, an opposing party shall have 21 days from the date of service of such petition to file written objections.

(d) A party objecting to costs based on excessive time spent must submit a supporting statement describing the amount of time spent on the case by the objecting party.

(e) A party objecting to costs based on an excessive hourly rate must submit a supporting statement identifying the hourly rate and total costs incurred by the objecting party.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1984, f. & ef. 4-11-84
ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83
ERB 1-1982, f. & ef. 1-19-82
ERB 4-1980, f. 8-15-80, ef. 8-18-80

Or. Admin. R. 115-035-0057 Attorney Fees For Appeals

Pursuant to ORS 243.676(2)(e), the Board will award attorney fees, if any, to the prevailing party on an appeal of a Board Order, in the amount of $5,000. The Board may award an amount in excess of $5,000 subject to all of the following:

(1) An award of attorney fees on appeal shall not exceed $5,000, unless a civil penalty is awarded in the Board proceeding and not reversed by the court.

(2) Petitions for attorney fees must be filed with the Board within 21 days of the date of the appellate judgment. The petition shall include a statement of the amount of the costs requested, along with a description of the actual amount of the fees incurred by the petitioner or, where no fees were charged, the basis for the greater amount of costs requested.

(3) Any objection to the petition shall be filed within 14 days of the date of service of the petition. A party objecting to costs based on excessive time spent must submit a supporting statement describing the amount of time spent on the case by the objecting party. A party objecting to costs based on an excessive hourly rate must submit a supporting statement identifying the hourly rate and total costs incurred by the objecting party.

(4) The prevailing party is the party designated as such in the appellate judgment issued by the Court of Appeals or the Supreme Court following the ultimate appellate decision regarding a particular case.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 2-2025, amend filed 05/27/2025, effective 07/01/2025
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89
ERB 1-1989(Temp), f. 6-15-89 & cert. ef. 6-23-89
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1984, f. & ef. 4-11-84
ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83

Or. Admin. R. 115-035-0060 Expedited Procedures for Unfair Labor Practice Complaints

(1) The Board has the discretion to expedite a complaint, or any portion of a complaint.

(2) If a party requests that a complaint be expedited, the complaint shall be filed in accordance with OAR 115-035-0000 and accompanied by an affidavit setting forth:

(a) The reason that the complaint should be expedited;

(b) An estimate of the length of any hearing;

(d) Any specific harm, injury or loss that would result if the complaint is not expedited; and

(e) A specific statement of any legal authority in support of complainant's position.

(3) If the requested expedited complaint concerns an alleged unfair labor practice during or arising out of the collective bargaining procedures set forth in ORS 243.712 or 243.722, the complaint, in addition to meeting the requirements of subsection (2) of this section, shall identify the relevant collective bargaining stage at which the alleged unfair labor practice arose out of or was committed.

(4) If the requested expedited complaint concerns an allegation that respondent has violated ORS 243.672(1)(e) or (2)(b) by refusing to bargain over a mandatory subject, or by unlawfully pursuing a permissive or unlawful subject of bargaining, the complaint shall be filed in accordance with OAR 115-035-0000, and the affidavit identified in subsection (2) of this section shall also include:

(a) The precise language of the last bargaining proposal on the subject(s) in dispute;

(b) The date of the proposal; and

(5) Expedited complaints under this section shall be processed in accordance with this Division of the Board’s Rules, except for the following:

(a) When an expedited complaint raises a question of fact or law that warrants a hearing, the complaint shall be served on the respondent and the notice of hearing shall be served on all parties. The complaint must be answered within ten days.

(b) Normally, the Board and not a Board Agent will hear the matter.

(d) If a complaint is withdrawn after the matter is heard, it shall be with prejudice.

(e) If the Board, and not a Board Agent, conducts the hearing, no Recommended Order will be issued; rather, the Board will issue a final order.

(6) When expedited consideration is granted, a Board order generally shall be issued within 45 days of the filing of the expedited complaint.

(7) In exercising its discretion to grant a request to expedite a complaint or a portion of a complaint, the Board shall consider:

(a) Its schedule;

(b) Its workload;

(d) The necessity for prompt action and the possibility of immediate or irreparable injury, loss or damage to the complainant, if the complaint is not expedited; and

(e) The relative importance to the parties and the public of a more rapid decision on the question presented.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 3-1980, f. 7-16-80, ef. 8-1-80
ERB 2-1980(Temp), f. 1-31-80, ef. 2-1-80

Or. Admin. R. 115-035-0070 Consent Orders

Before the issuance of a final order, the Board may approve a consent order submitted by the parties to a contested case in which all factual, legal and remedial issues have been settled. The consent order submitted by the parties must contain a statement of the case and a recitation of the complete agreement of the parties. If the parties do not submit an agreement regarding representation costs, the Board will award representation costs consistent with OAR 115-035-0055.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1984, f. & ef. 4-11-84
ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83
ERB 1-1983, f. 2-16-83, ef. 2-25-83
ERB 3-1982(Temp), f. & ef. 8-19-82

Or. Admin. R. 115-035-0075 Civil Penalty; Fee Reimbursement

Any request for civil penalty under ORS 243.676(4) or for reimbursement of a filing fee under ORS 243.672(6) must be included in a party’s complaint or answer. The request must include a statement as to why a civil penalty or filing-fee reimbursement is appropriate, with a clear and concise statement of the facts alleged in support of the statement. A party may move to amend its complaint or answer to request a civil penalty or reimbursement of a filing fee at any time before the evidentiary hearing concludes.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 1-2025, minor correction filed 04/21/2025, effective 04/21/2025
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 1-1984, f. & ef. 4-11-84
ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83

Division 40 DISPUTE RESOLUTION IN PUBLIC EMPLOYMENT

Or. Admin. R. 115-040-0000 Mediation

(1) Negotiations concerning a new or reopened collective bargaining agreement.

(a) If the parties have not reached agreement on the terms of a collective bargaining agreement after a 150-calendar-day period of good faith negotiations, either party may notify the Board and request assignment of a mediator. The parties may jointly request assignment of a mediator during the 150-day period. Such notification and request shall be in writing and shall contain a statement as to each issue in dispute and a statement describing when negotiations commenced. Upon receipt of the notification and request, the State Conciliator shall appoint a mediator and notify the parties of the appointment.

(b) The 150-calendar-day period of negotiations begins:

(A) When an exclusive representative is recognized or certified; or

(B) In a successor-agreement negotiation or a contractual reopener negotiation, when the parties meet for the first bargaining session and each party has received the other party's initial proposal.

(c) Any time after 15 days of mediation, either party may declare an impasse. Written notification of an impasse shall be filed in writing with the State Conciliator, and a copy of the notification shall be submitted to the other party on that same day. The mediator may declare an impasse at any time during the mediation process.

(d) Within seven days of a declaration of impasse, each party shall submit to the mediator in writing the final offer of the party, including a cost summary of the offer. Each party's proposed contract language shall be titled "Final Offer." Each party shall submit a copy of the final offer and cost summary to the other party on the same day it is submitted to the mediator. Upon receipt of the final offers and cost summaries, the mediator shall make them public.

(e) A party's cost summary shall be completed using a form approved by the Board. Although a party’s cost summary may include additional information, it must, at a minimum, include a fully completed form approved by the Board.

(2) Mid-contract negotiations (ORS 243.698).

(a) At any time during a 90-day period of expedited negotiations concerning a proposed change in employment relations not covered by a collective bargaining agreement or concerning the renegotiation of contract terms pursuant to ORS 243.702, the parties may jointly request mediation. A written request must be filed with the State Conciliator and signed by a representative of each party. Upon receipt of a joint request, the State Conciliator shall assign a mediator and notify the parties of the assignment.

(b) Mediation of a labor dispute subject to expedited negotiations shall not continue past the 90-day period. The 90-day period of expedited negotiations begins:

(A) When the employer notifies the exclusive representative in writing of anticipated changes that impose a duty to bargain; or

(B) When a party requests in writing renegotiation of contract terms pursuant to ORS 243.702.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 1-1999, f. & cert. ef. 1-28-99
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 1-1993, f. 9-30-93, cert. ef. 10-1-93
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-040-0005 Conciliation Service Fees

(1) When mediation concerns negotiations over the terms of a collective bargaining agreement, the Board will charge a fee for mediation services, subject to ORS 240.610.

(2) When mediation concerns a grievance arising under a collective bargaining agreement, a local public employer and an exclusive representative each will be charged $250 per session.

(3) When mediation concerns a pending unfair labor practice complaint, a local public employer and an exclusive representative each will be charged $250 per mediation session.

(4) Training: Fees for training under ORS 240.610 shall be $2,500 for two-day training programs, $1,500 for one-day refresher training, and $700 for half-day training programs. The fees for facilitations and related travel time shall be $60 per hour.

(5) Billing: For mediation services, parties will be billed when the first mediation session occurs. For training, parties will be billed when the training session occurs, with the employer and exclusive representative sharing equally the costs unless the parties agree otherwise.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11
ERB 3-2007, f. 12-17-07, cert. ef. 12-26-07
ERB 1-2007(Temp), f. 6-29-07, cert. ef. 7-1-07 thru 12-27-07
ERB 5-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1995(Temp), f. 6-26-95, cert. ef. 7-1-95

Or. Admin. R. 115-040-0010 Factfinding

Where the parties to a labor dispute jointly petition the Board to appoint a factfinder within 30 days after the mediator makes public their final offers, the State Conciliator shall acknowledge in writing the request, and factfinding shall occur using the process set forth in ORS 243.722.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 2-1993, f. & cert. ef. 12-15-93
ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89
ERB 11-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-040-0015 Binding Interest Arbitration

(1) Applicability of Rule. This rule shall apply in all cases in which the Board initiates arbitration of a labor dispute relating to negotiations over employment relations.

(2) Court-Ordered Arbitration. When arbitration is ordered by a circuit court pursuant to ORS 243.726(3)(c), the affected employer or labor organization, or both jointly, shall notify the Board of the court order within five days of the date that the order was issued. Such notification must be accompanied by a copy of the court order. The Board will initiate arbitration within five days of its receipt of the notification.

(3) Voluntary Arbitration. When an employer and a labor organization, pursuant to ORS 243.706(2) or 243.712(2)(e), agree to submit any or all of the issues in a negotiations labor dispute to arbitration, either party or both may request the Board to initiate arbitration. Such a request must be accompanied by a copy of the agreement to arbitrate. The Board will initiate arbitration within five days of its receipt of the request.

(4) Arbitration Where Strike is Prohibited. When a negotiations labor dispute exists between an employer and a labor organization that represents a bargaining unit that includes employees prohibited from striking by ORS 243.736 or ORS 243.738, the Board shall initiate arbitration pursuant to ORS 243.746(2) or, where applicable, ORS 243.698.

(5) A labor organization that represents a bargaining unit which it contends includes strike-prohibited employees must file notice of such contention with the Board and the employer at least 180 days before the expiration of the contract covering such bargaining unit, unless such notice was previously filed and there has been no substantial change in the composition of the unit since that filing, or within 30 days after the labor organization demands bargaining for an initial contract. If the labor organization fails to file such notice and subsequently requests the Board to initiate arbitration, the Board shall notify the employer of the request and the employer shall have ten days to file objections on the basis that the unit does not include strike-prohibited employees or that the unit should be redesignated because it also includes strike-permitted employees. The Board shall resolve such objections prior to the initiation of arbitration.

(6) Selection of Arbitrator:

(a) Arbitrator selection shall be pursuant to ORS 243.746(1) and (2), as supplemented by this subsection.

(b) Financial or Personal Interest of Arbitrator. No person shall serve as an arbitrator in any arbitration proceeding in which he/she has any financial or personal interest in the result of the arbitration, unless the parties, in writing, waive such disqualification.

(c) Notice of Appointment. Upon selection of the arbitrator the parties shall notify the Board and the arbitrator of his/her selection.

(d) Disclosure by Arbitrator. Before accepting an appointment, the prospective arbitrator shall disclose to the parties and the Board any circumstances likely to create a presumption of bias. If the prospective arbitrator believes that there is any other potentially disqualifying information, that information also shall be disclosed. If either party declines to waive the presumptive disqualifications, the vacancy thus created shall be filled in the same manner as that governing the making of the original appointment.

(e) Challenges Relating to Bias or Qualifications of Arbitrator:

(A) A party may challenge a selected or appointed arbitrator by charging that the arbitrator is biased or not qualified.

(B) A petition raising such a challenge must be filed with the Board within 15 days of the selection or appointment of the arbitrator. The petition must include a statement of facts on which the challenge is based. The other party to the underlying labor dispute will be asked to respond to the petition.

(C) The Board will hold a hearing on the petition within 10 days of the date of filing. The hearing will be conducted according to the provisions of OAR 115, Division 010 to the extent that they are applicable and practicable in light of the statutory time lines.

(D) The Board will issue a final and binding decision regarding the arbitrator's neutrality or qualifications within 10 days of the hearing.

(f) Vacancies. If any arbitrator should resign, die, withdraw, refuse or be unable to, or be disqualified to perform the duties of his/her appointment, the Board shall, upon satisfactory proof, declare the appointment vacant. Vacancies shall be filled in the same manner as that governing the original appointment, and the matter shall be reheard by the new arbitrator, unless the parties mutually agree to a different procedure.

(7) Arbitration Rules and Procedures.

(a) Time and Place of Hearing. The arbitrator, with the agreement of the parties, shall fix the time and place for each hearing. However, in circumstances where final offer packages are submitted to the mediator, the arbitration hearing must be at least 30 days after that submission.

(b) Representation by Counsel. Any party may be represented by counsel or by other authorized representative.

(d) Subpoenas. Subpoenas may be issued by the arbitrator.

(e) Attendance at Hearings. The arbitration hearing shall be open to the public unless otherwise mutually agreed to by the parties.

(f) Adjournments. If all parties agree, the arbitrator shall adjourn the hearing. Additionally, the arbitrator may adjourn the hearing:

(A) on the arbitrator’s own motion; or

(B) at the request of a party, if good cause is shown.

(g) Oaths. In the discretion of the arbitrator, all witnesses who testify at the hearing may be sworn or make an affirmance.

(h) Order of Proceedings. The order of presentation at the hearing shall be as mutually agreed between the parties or as determined by the arbitrator.

(i) Exhibits. Each exhibit introduced by a party shall be filed with the arbitrator and a copy shall be provided to the other party. The arbitrator shall retain exhibits filed by the parties, unless the parties otherwise agree or the arbitrator otherwise permits.

(j) Evidence. The parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. The arbitrator shall be the judge of the relevancy and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the parties except where any of the parties is absent in default or has waived the right to be present. Parties shall have the right to cross-examine.

(k) Arbitration in the Absence of a Party. The arbitrator may proceed in the absence of any party, who, after due notice, fails to be present or fails to obtain a continuance or recess. Findings of fact and order shall not be made solely on the default of a party. The arbitrator shall require the other party to submit such evidence as required for the making of findings of fact and issuing an order.

(l) Closing of Hearing(s).

(A) The arbitrator shall declare the hearing closed after the parties have completed presenting their cases.

(B) If the arbitrator allows the filing of post-hearing briefs or other documents, the hearing shall be deemed closed as of the final date set by the arbitrator for the filing of such briefs or other documents.

(m) Waiver of Rules. Any party who proceeds with arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state a written objection, shall be deemed to have waived the right to object.

(n) Waiver of Oral Hearing. The parties may provide, by written agreement, for the waiver of oral hearing.

(o) The parties shall cause to be made a record of all testimony, by recording or other method. The arbitrator shall resolve any dispute over the type of record to be made. The arbitrator or one of the parties, as agreed by the parties or directed by the arbitrator, shall maintain custody of such record, along with all other evidence produced by the parties, for at least 180 days after the arbitration decision was issued. However, when the hearing is recorded by a court reporter, but the parties agree not to have the reporter’s notes transcribed, those notes may remain in the custody of the reporter.

(8) Time of Arbitration Findings and Order. The arbitration order shall be issued consistent with ORS 243.746(4), (5) and (6).

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89
ERB 1-1988, f. & cert. ef. 4-25-88
ERB 1-1987(Temp), f. & ef. 11-3-87
ERB 11-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-040-0017 Interest Arbitration Enforcement

Pursuant to ORS 243.752, a party alleging that another party is refusing or failing to comply with an interest arbitration award may seek enforcement of the award by filing an unfair labor practice complaint with the Board charging a violation of 243.672(1)(f) or (2)(c). The Board generally will hold an expedited hearing on the matter, if requested to do so, under the procedures provided by OAR 115-035-0060.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1984, f. & ef. 4-11-84
ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83

Or. Admin. R. 115-040-0018 Notice of Intent to Strike

The exclusive representative shall send notice of intent to strike to the Board and the employer by certified mail. The notice shall state the reasons for the intent to strike including the unresolved bargaining issues. The Board and the employer must receive the certified notice ten days before the first date of the strike. However, the Board will not declare a strike unlawful when the exclusive representative has entrusted the notice to the postal service for certified mailing at such time that timely delivery could reasonably be expected, provided that both the Board and the employer have actually received written notice of intent to strike at least ten days before the strike begins.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-1998, f. & cert. ef. 1-26-98
ERB 11-1985, f. 10-29-85, ef. 10-31-85

Or. Admin. R. 115-040-0020 Petition to Declare a Strike Unlawful

When it is alleged in good faith by a public employer that a labor organization representing a group of its employees has declared or authorized a strike by such employees and that such strike is or would be in violation of ORS 243.726 or 243.732, the employer may petition the Board for a declaration that the strike is or would be unlawful. The petition shall contain a detailed statement of the facts on which petitioner bases its request for a declaration of an unlawful strike. A copy of the petition shall be served upon the labor organization that is alleged to have declared or authorized the unlawful strike and proof of service shall be provided to the Board. Upon receipt of such a petition, the Board shall either dismiss the petition or set it for a hearing before the Board. If a hearing is held, it will be conducted like an unfair labor practice proceeding, and the Board will expedite processing of the petition to attempt to issue a decision before the strike begins. Notice of the hearing shall be by personal service or certified mail, and shall be personally served or mailed at least seven days before the date of the hearing, unless the parties, with the approval of the Board, otherwise agree. The Board shall issue its decision within seven days of the close of the hearing on the petition.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 5-1980, f. 10-14-80, ef. 10-17-80
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-040-0030 Panel of Arbitrators and Factfinders

(1) The State Conciliation Service of the Employment Relations Board shall maintain a panel of qualified labor arbitrators and factfinders for referral, upon request, to the parties to a labor dispute. Panel members are expected to conform to the ethical standards and procedures set forth in the code of professional responsibility for arbitrators of labor disputes as approved by the National Academy of Arbitrators.

(2) Persons seeking to be listed on the panel must complete and submit an application form. The form may be obtained from the State Conciliation Service of the Employment Relations Board. Upon receipt of a completed application, including the application fee in subsection (4) of this section, the Chair and the Conciliator will review the completed application in light of the criteria set forth below and decide whether to include an applicant on the panel. Each applicant will be notified in writing of the decision:

(a) General Criteria. Applicants will be accepted on the panel if they:

(A) Are experienced in decision-making roles in the resolution of collective bargaining or labor relations disputes; or

(B) Have extensive experience in relevant positions in collective bargaining; or

(D) Are capable of conducting an orderly hearing, can analyze testimony and exhibits and can prepare clear and concise findings and awards within reasonable time limits, and appear, based on references, to be acceptable to the parties.

(b) Proof of Qualification. The qualifications listed in subsection (2)(a) of this rule, are preferably demonstrated by the submission of actual arbitration awards and/or factfinding reports prepared by the applicant while serving as an impartial arbitrator or factfinder chosen by the parties to disputes. Equivalent experience acquired in training, internship or other development programs, or experience such as that acquired as a hearing officer or judge in labor relations controversies also may be considered.

(A) An advocate is a person who or a member of a firm/business which represents employers or labor organizations, as an employee, attorney or consultant, in matters related to collective bargaining.

(B) No advocate shall be listed on the panel. A person who becomes an advocate while listed on the panel must notify the Conciliator immediately.

(d) Duration of Listing. A member will be removed from the panel by the Chair and Conciliator whenever the member:

(A) No longer meets the criteria for admission;

(B) Has been repeatedly and flagrantly delinquent in submitting awards;

(D) Has been the subject of complaints by parties who use the State Conciliation Service Panel and facilities and cause for removal has been shown;

(E) Is determined to be unacceptable to the parties who use the State Conciliation Service Arbitration and Factfinding Panel; or

(F) Fails to pay the annual fee in subsection (4) of this section within 30 days of billing;

(3) Procedures for Cancellation or Suspension of a Listing. The Conciliator, at the direction of the Board Chair, will review the reasons alleged for the cancellation or suspension. Before cancelling or suspending a listing, a panel member will be provided 30 days written notice of the proposed action. The notice will specify the action that is proposed, the reasons for the action, and the results of any review conducted by the Conciliator into this matter. The notice will also provide an opportunity for the panel member to submit a response or information to the Board Chair, or a designated representative, showing why the listing should not be canceled or suspended. The Board Chair's decision shall be in writing and shall be a final decision.

(4) An applicant to the panel of qualified arbitrators and factfinders shall pay an application fee in accordance with ORS 662.445. To remain on the panel, a member shall pay an annual fee in accordance with ORS 662.445.

(5) Nothing contained herein should be construed to limit the right of parties to select jointly any arbitrator or arbitration procedure acceptable to them.

(6)(a) Arbitrators and factfinders selected by the parties pursuant to State Conciliation Service procedures shall promptly notify the Service of their selection.

(b) Arbitrators and factfinders selected pursuant to State Conciliation Service procedures shall promptly provide the State Conciliation Service with copies of decisions or recommendations.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 5-2007, f. 12-17-07, cert. ef. 1-1-08
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91
ERB 1-1984, f. & ef. 4-11-84

Or. Admin. R. 115-040-0032 Lists of Arbitrators or Factfinders

(1) When, pursuant to statute (including ORS 342.934(7) and ORS 342.905(10)), or at the request of a party, the State Conciliator submits a list of arbitrators or factfinders to the parties to a dispute, the names on the list shall be drawn at random from the panel described in OAR 115-040-0030. However, the State Conciliator will attempt to comply with a joint request of the parties to restrict the list in any of the following ways:

(a) Only arbitrators who are listed on the labor arbitration panel of the American Arbitration Association;

(b) Only arbitrators who are Oregon residents;

(d) Only arbitrators who charge from the Oregon border; or

(e) Only arbitrators who have issued at least two factfinding recommendations under ORS 243.722 or at least one interest arbitration award under ORS 243.752, if the dispute at issue is to be resolved through interest arbitration.

(2) Parties may jointly request a second list of arbitrators or factfinders. A second list will consist of names drawn at random from the panel without regard to any restrictions requested by the parties.

(3) Financial or Personal Interest of Arbitrator. No person shall serve as an arbitrator in any arbitration proceeding in which the arbitrator has any financial or personal interest in the result of the arbitration, unless the parties, in writing, waive such disqualification;

(4) Disclosure by Arbitrator. Before accepting an appointment, the prospective arbitrator shall disclose any circumstances likely to create a presumption of bias or which he/she believes might disqualify him/her as an impartial arbitrator. Upon receipt of such information, the Board shall immediately disclose it to the parties. If either party declines to waive the presumptive disqualifications, the vacancy thus created shall be filled in the same manner as that governing the making of the original appointment.

(5) Vacancies. If any arbitrator should resign, die, withdraw, refuse or be unable to, or be disqualified to perform the duties of his/her appointment, the Board shall, upon satisfactory proof, declare the appointment vacant. Vacancies shall be filled in the same manner as that governing the original appointment, and the matter shall be reheard by the new arbitrator, unless the parties mutually agree to a different procedure.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2000, f. & cert. ef. 12-1-00
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89

Or. Admin. R. 115-040-0034 Appoint Arbitrator for Arbitration proceedings under ORS 243.706(3)

(1) When a party submits a request for the Board to appoint an arbitrator under ORS 243.706(3), the Board shall randomly appoint an arbitrator from the panel described in OAR 115-040-0030 and as follows:

(a) To qualify for appointment under this rule, the arbitrator must have issued an award in at least one public sector discipline or discharge case (by the time of selection). An arbitrator may opt out of being included on the random appointment list under this rule by notifying the Board.

(b) An arbitrator selected from this list must agree to bill only for travel costs and travel time incurred within the borders of Oregon.

(A) Submit to the Board up to five (5) but no fewer than one (1) of their awards or decisions in public sector discipline or discharge cases, preferably involving cases between law enforcement employers and labor organizations; and submit an updated resume and current fee schedule, or

(B) Opt out, in which case the Board will randomly select another arbitrator.

(d) If the randomly selected arbitrator fails to provide the information in paragragh (c)(A), the Board will randomly select another arbitrator.

(e) With the selected arbitrator’s consent to the appointment, the Board will notify the parties of the appointed arbitrator and provide the parties with the arbitrator’s submitted prior awards or decisions, updated resume, and current fee schedule.

(f) Within seven (7) business days of the appointment, either party may object to the appointed arbitrator. If a party objects to the appointed arbitrator, the Board will randomly appoint a second arbitrator from the panel described in OAR 115-040-0030 and this rule. The party that did not previously object to the first-appointed arbitrator has seven (7) business days to object to the second-appointed arbitrator. If such an objection is filed, the Board will randomly appoint a third arbitrator, who shall serve as the arbitrator in the matter.

(2) Once a final appointment is made, with the arbitrator’s consent to the appointment, the Board shall notify the appointed arbitrator and the parties, and provide the arbitrator’s submitted prior awards or decisions, updated resume, and current fee schedule.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 243.706
ERB 1-2022, minor correction filed 01/03/2022, effective 01/03/2022
ERB 7-2021, adopt filed 12/15/2021, effective 01/01/2022
ERB 3-2021, temporary adopt filed 07/26/2021, effective 07/26/2021 through 01/21/2022

Or. Admin. R. 115-040-0035 Filing of Arbitrator and Factfinder Decisions

All arbitrators and factfinders listed on the State Conciliation Panel pursuant to OAR 115-040-0030 shall provide the State Conciliation Service with one copy of all written decisions or recommendations issued concerning a labor dispute involving public employees, public employers or labor organizations as defined by ORS 243.650.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 243
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 11-1985, f. 10-29-85, ef. 10-31-85

Or. Admin. R. 115-040-0040 Exemption from Disclosure Under ORS 192.410 to 192.505 and Inadmissibility of Mediation Communication Pursuant to OEC Rule 408

(1) Except to the extent that rules of this agency adopted pursuant to Oregon Laws 1997, chapter 670 make mediation communications confidential, any mediation communications that are public records, as defined in ORS 192.410(4), are not confidential unless the substance of such communication is confidential under state or federal law. Mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.

(2) Nothing in this rule affects any confidentiality created by other law.

(3) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408).

(4) The words and phrases used in this rule have the same meaning as given to them in Oregon Laws 1997, chapter 670, section 11.

History

Statutory/Other Authority: ORS 243.766(7), 240.086(3) & OL 1997 & Ch. 670
Statutes/Other Implemented: ORS 192.410 - 192.505
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1998, f. & cert. ef. 10-27-98
ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98

Or. Admin. R. 115-040-0041 Applicability of Mediator Disclosure Rules

(1) OAR 115-040-0041 to 115-040-0044 apply only to mediations:

(a) In which the agency is a party or is mediating a dispute as to which the agency has regulatory authority; and

(b) That:

(A) Are conducted under OAR 115-040-0000, ORS 243.712, OAR 115-075-0000 and ORS 662.425; or

(B) Involve other joint requests for mediation from labor and management.

(2) OAR 115-040-0041 to 115-040-0044 do not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in Oregon Laws 1997, chapter 670, section 7.

(3) Nothing in OAR 115-040-0041 to 115-040-0044 affects any confidentiality created by other law.

(4) The words and phrases used in OAR 115-040-0041 to 115-040-0044 have the same meaning as given to them in Oregon Laws 1997, chapter 670, sections 7 and 11.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7), OL 1997 & Ch. 670
Statutes/Other Implemented: ORS 192.410 - 192.505
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1998, f. & cert. ef. 10-27-98
ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98

Or. Admin. R. 115-040-0042 Mediator May Not Disclose Mediation Communications in Subsequent Proceedings

Except as provided in this rule, a mediator may not disclose or be compelled to disclose mediation communications in mediations described in OAR 115-040-0041(1) and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless all the parties to the mediation and the mediator agree in writing to the disclosure.

(1) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, a mediator may disclose mediation communications to the extent that those communications may be necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(2) A mediator may disclose confidential mediation communication directly related to child abuse or elder abuse if the mediator is a person who has a duty to report child abuse under ORS 419B.010 or elder abuse under 124.050 to 124.095.

(3) A mediator may disclose confidential mediation communications if the mediator reasonably believes that disclosing the communication is necessary to prevent a party from committing a crime that is likely to result in death or bodily injury to any person.

(4) A mediator may disclose a mediation communication if, as a condition of a professional license, the mediator is compelled by law or the rule of a court to disclose a communication related to the conduct of another licensed professional.

(5) When the only parties to the mediation are public bodies, mediation communications and mediation agreements are not confidential except to the extent those communications or agreements are exempt from disclosure under ORS 192.410 to 192.505 and may be disclosed and introduced into evidence in any subsequent proceeding.

(6) When the parties to the mediation include a private party and two or more public bodies, mediation communications are not confidential if the laws, rules or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential and may be disclosed and introduced into evidence in any subsequent proceeding.

(7) When a person acts as the mediator in the mediation and also acts as the hearing officer in a contested case involving some or all of the same matters, the communications in the mediation are not confidential and may be disclosed and introduced into evidence in any subsequent proceeding.

(8) A mediator may disclose mediation communications described in OAR 115-040-0043 and such communications may be introduced into evidence in any subsequent proceeding to the extent provided in that rule.

(9) The terms of any mediation agreement are not confidential, may be disclosed and may be introduced as evidence in any subsequent proceeding.

History

Statutory/Other Authority: ORS 243.766(7), 240.086(3) & OL 1997 & Ch. 670
Statutes/Other Implemented: ORS 192.410 - 192.505
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1998, f. & cert. ef. 10-27-98
ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98

Or. Admin. R. 115-040-0043 Mediator May Disclose Certain Mediation Communications

For the purposes of OAR 115-040-0042, a mediator may disclose the following mediation communications and such communications may be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding:

(1) A request for mediation;

(2) Communications from the Conciliation Service establishing the time and place of mediation;

(3) Notification of declaration of impasse submitted to the Board;

(4) Communication from the Conciliation Service establishing the time for filing final offers;

(5) Final offers and cost summaries submitted by the parties to the mediators;

(6) Petitions to initiate factfinding or interest arbitration submitted to the Board; or

(7) Strike notices submitted to the Board.

History

Statutory/Other Authority: ORS 243.766(7), 240.086(3) & OL 1997 & Ch. 670
Statutes/Other Implemented: ORS 192.410 - 192.505
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1998, f. & cert. ef. 10-27-98
ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98

Or. Admin. R. 115-040-0044 Notice of Disclosure of Mediation Communications

(1) When a mediation is of a type described in OAR 115-040-0041(1), the agency must provide written notice to all parties to the mediation and the mediator informing them of the extent to which mediation communications may be confidential.

(2) The notice required by this rule must be in writing and must include:

(a) An explanation of the agency's role in the mediation, including:

(A) Whether the agency is a party; and

(B) Whether the mediator is an employee, contractor or agent of the agency.

(b) A statement that:

(A) Mediation communications in mediations not described in OAR 115-040-0041(1) are not confidential unless provided otherwise by rules of this agency adopted pursuant to Oregon Laws 1997, chapter 670, section 3, or by other state or federal law; and

(B) The parties to the mediation may agree in writing to less confidentiality and greater disclosure of mediation communications.

(A) A copy of OAR 115-040-0040 and 115-040-0041 to 115-040-0044;

(B) A summary of OAR 115-040-0040 and 115-040-0041 to 115-040-0044; or

(C) Citations to the rules affecting the confidentiality of mediation communications and a statement indicating where a copy of these rules can be obtained.

(3) Any notice required by this rule is not confidential and may be disclosed.

History

Statutory/Other Authority: ORS 243.766(7), 240.086(3) & OL 1997 & Ch. 670
Statutes/Other Implemented: ORS 192.410 - 192.505
ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1998, f. & cert. ef. 10-27-98
ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98

Division 45 APPEALS, HEARINGS AND INVESTIGATIONS IN THE STATE SERVICE UNDER THE STATE PERSONNEL RELATIONS LAW

Or. Admin. R. 115-045-0000 Definition of Terms

See OAR 115-010-0010.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 1-1998, f. & cert. ef. 1-26-98
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0002 Computation of Time

See OAR 115-010-0012.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 240.086(3)
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0005 Filing of Appeals

An appeal must be in writing and filed not later than 30 days after the effective date of the action being appealed. An appeal shall be considered filed when it is received by the Board or postmarked, if mailed postpaid and properly addressed. Amendments or supplements to appeals will be accepted only on a showing of good cause. Failure to timely file may result in dismissal of the appeal.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2005, f. & cert. ef. 1-24-05
Reverted to ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 9-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0010 Regular Employee Appeals from Suspension, Reduction in Pay, Demotion and Dismissal Actions

An appeal under ORS 240.560 must contain a detailed statement specifying:

(1) The action being appealed;

(2) The reasons why appellant believes the action was not in good faith for cause or was taken for political, religious or racial reasons, or because of sex, marital status or age; and

(3) The corrective action being requested.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2005, f. & cert. ef. 1-24-05
Reverted to ERB 1-2002, f. & cert. ef. 5-21-02
ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04
ERB 1-2002, f. & cert. ef. 5-21-02
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 9-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0017 Appeals Concerning Temporary Appointments

(1) A complaint filed under ORS 240.307 that alleges a violation of ORS 240.309 (temporary appointment duration) must be in writing and must contain a detailed statement specifying:

(a) The action being appealed;

(b) The reason complainant believes that the action violates ORS 240.309; and

(2) The complaint must be filed with the Board no later than 30 days after the employee knew or reasonably should have known of the alleged violation.

History

Statutory/Other Authority: ORS 240.086(3)
Statutes/Other Implemented: ORS 240.086(1) & 240.309
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1990, f. 11-8-90, cert. ef. 11-19-90

Or. Admin. R. 115-045-0020 Other Appeals from Other Personnel Actions

(1) Pursuant to ORS 240.086, a classified employee not in a bargaining unit may appeal any personnel action affecting the person (including trial service removals) that is alleged to be arbitrary or contrary to law, rule or policy, or taken for political reasons.

(2) The appeal must be in writing and must contain a detailed statement specifying:

(a) The action being appealed;

(b) The reasons why the appellant believes the action was arbitrary, contrary to law, rule or policy, or taken for political reasons; and

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2005, f. & cert. ef. 1-24-05
Reverted to ERB 1-2002, f. & cert. ef. 5-21-02
ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04
ERB 1-2002, f. & cert. ef. 5-21-02
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01, Renumbered from 115-045-0015
ERB 1-2001, f. 2-16-01, cert. ef. 7-1-01
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 9-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0021 Dismissal Appeals by Management Service Employees with Immediate Prior Regular Classified Service

An appeal under ORS 240.570 shall comply with OAR 115-045-0005 and must contain a detailed statement specifying:

(1) The action being appealed;

(2) The reason(s) why the employee believes that the action violated ORS 240.570 (and any related statute); and

(3) The corrective action being requested.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2005, f. & cert. ef. 1-24-05
Reverted to ERB 2-2000, f.12-1-00, cert. ef. 7-1-01, Renumbered from 115-045-0010
ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04
ERB 2-2000, f.12-1-00, cert. ef. 7-1-01, Renumbered from 115-045-0010
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 9-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2005, f. & cert. ef. 1-24-05
Reverted to ERB 1-2002, f. & cert. ef. 5-21-02
ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04
ERB 1-2002, f. & cert. ef. 5-21-02
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 9-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0025 Hearings

(1) The Board Agent may investigate and attempt to resolve the dispute with the parties. If the case cannot be resolved within a reasonable time, the Board Agent will schedule a hearing.

(2) Time and Place of Hearings. The time and place of hearing will be set by the Board Agent. At least ten days before the hearing, the Board Agent will serve a notice of the hearing on the parties. The Board Agent will also provide the agency head and any other interested party with a copy of the notice. Unless the parties agree otherwise, the initial hearing date will be set within 30 days from the date that the appeal was filed.

(3) Postponements. When the parties to a hearing agree to a postponement, they shall promptly submit a written request for postponement to the Board Agent, who has the discretion to grant or deny the request.

History

Statutory/Other Authority: ORS 240.086(3) & ORS 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 1-2005, f. & cert. ef. 1-24-05
Reverted to ERB 1-2002, f. & cert. ef. 5-21-02
ERB 1-2003(Temp), f. & cert. ef. 8-1-03 thru 1-31-04
ERB 1-2002, f. & cert. ef. 5-21-02
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 6-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-045-0030 Conduct of Hearings

Unless the context requires otherwise, OAR 115-010-0040 through 115-010-0110 apply to cases under this Division.

History

Statutory/Other Authority: ORS 240.086(3) & ORS 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 8-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2000, f. 12-1-00, cert. ef. 7-1-01
ERB 9-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Division 50 REVIEW AND ENFORCEMENT OF STATE PERSONNEL RELATIONS ARBITRATION AWARDS

Or. Admin. R. 115-050-0001 Petition for Enforcement

(1) A petition for enforcement of an arbitration award under ORS 240.086(2):

(a) May be filed only after at least 14 days have elapsed since the date of the award;

(b) Need not be filed if the other party has filed timely exceptions to the award under OAR 115-050-0010; and

(2) The opposing party shall file its response to the petition within 14 days of the date that the petition was filed.

History

Statutory/Other Authority: 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 7-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 10-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82

Or. Admin. R. 115-050-0010 Written Exceptions

(1) A written exception to an arbitration award, pursuant to ORS 240.086(2), must:

(a) be filed with the Board within 14 days of the date of the award;

(b) specify which paragraph(s) of ORS 240.086(2) is (are) claimed as the basis for the exception, with a clear and concise statement of the facts on which the exception is based; and

(2) Any response to the exceptions must be filed within 14 days of the date that the exceptions are filed.

History

Statutory/Other Authority: 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240.086(2)
ERB 7-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 10-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82

Or. Admin. R. 115-050-0020 Answers to Petitions

Submissions under OAR 115-050-0001 and OAR 115-050-0010 must comply with all other relevant rules regarding filings with the Board.

History

Statutory/Other Authority: ORS 240.086(3) & ORS 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 7-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 10-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82

Or. Admin. R. 115-050-0030 Hearings on Petitions

(1) If a submission under OAR 115-050-0001 or OAR 115-050-0010 raises an issue of fact or law that warrants a hearing, the Board or Board Agent shall conduct a hearing in accordance with OAR 115-045-0025 and OAR 115-045-0030 (where applicable).

(2) A party that is excepting to an arbitration award or asserting that the award should not be enforced has the burden of proof and the burden of going forward with the evidence.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240
ERB 7-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 10-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1982, f. & ef. 1-19-82

Division 60 PRIVATE EMPLOYEE REPRESENTATION

Or. Admin. R. 115-060-0000 Representation Petitions

(1) Who may file:

(a) A petition for certification of a private employee representative may be filed by an employee, group of employees, or any individual or labor organization acting in their behalf, alleging that a substantial number of employees wish to be represented for collective bargaining and that the employer declined to recognize their representative;

(b) Petitions for certification of private employee representative may be filed by a private employer alleging that one or more individuals or labor organizations have presented to it a request to be recognized or continue to be recognized as exclusive representative and that the employer has a good faith doubt as to the continued majority status of the incumbent labor organization based on reasonable objective standards;

(c) A petition for decertification may be filed by an employee or group of employees, alleging that a substantial number of employees no longer want the certified or recognized individual or labor organization to represent them.

(2) Petitions shall be filed in writing with the Board on a form provided by the Board. The Board Agent shall serve a copy of the petition upon the parties disclosed therein.

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.025
ERB 12-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0005 Petitions for Clarification or Amendment of Bargaining Unit

(1) Petitions for clarification or amendment of certification may be filed by the recognized or certified representative or by the private employer when no question of representation exists. The petition must be submitted in writing on a form approved by the Board. The petitioner shall designate one or more of the following subsections on the form to indicate the clarification issue(s) the petitioner intends to raise. After the filing of objections, if any, the Board Agent may determine the issue raised by the petition. If the Board Agent determines that the issue raised is different than that designated on the form, the Board Agent shall determine whether the petition complies with the requirements of the appropriate subsection(s).

(2) When the issue raised by the clarification petition is one of employee status under ORS 663.005(3), the petition may be filed at any time; except that where a position sought to be excluded is expressly by title included within the unit description, a petition may be filed only during the open period provided for in OAR 115-060-0015(4). The Board may order a self-determination election among the affected employees as a result of a petition filed by a labor organization under this subsection of this rule, if the Board determines that an election would be appropriate to further the policies expressed in ORS Chapter 663.

(3) When the issue raised by the clarification petition is whether certain positions are or are not included in a bargaining unit under the express terms of a certification description or collective bargaining agreement, a petition may be filed at any time; except that the petitioning party shall be required to exhaust any grievance in process that may resolve the issue before such a petition shall be deemed timely by the Board.

(4) When the issue raised by the clarification petition is whether certain unrepresented positions should be added to an existing bargaining unit, the petition must be supported by a 30 percent showing of interest among the unrepresented employees sought to be added to the existing unit. If the employees sought to be added to the unit occupy positions that existed and were filled at the time of the most recent certification or recognition agreement, the petition must be filed during the open period provided for in OAR 115-060-0015(4) and will be subject to the provisions of 115-060-0015(1) and (3). If the employees sought to be added to the unit occupy positions that were created or were filled after the most recent certification or recognition agreement, the petition may be filed at any time and will not be subject to the provisions of 115-060-0015. If the Board determines that it would be appropriate to add the unrepresented positions to the existing bargaining unit, the Board shall order a self-determination election in which the unrepresented employees will vote either to be represented within the existing bargaining unit or for no representation. The election shall be conducted by a Board Agent in accordance with the provisions of 115-060-0050 and 115-060-0055, to the extent such rules are applicable to a self-determination election. If a majority of the unrepresented employees who vote cast ballots in favor of representation, the existing bargaining unit shall be clarified to include the positions of the unrepresented employees.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.020
ERB 2-1998, f. & cert. ef. 1-26-98
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0010 Contents of Petition

(1) Certification of Private Employee Representative Filed by an Employee/Group of Employees/Individual/Labor Organization. A petition for certification of private employee representative filed by an employee/group of employees/individual/labor organization, shall contain the following:

(a) Name, address, telephone number of the private employer, as well as the name of a multi-employer association, if such organization is involved in the unit requested;

(b) The address(es) of the establishment involved;

(d) A description of the bargaining unit claimed to be appropriate for the purpose of exclusive representation by the petitioner. Such description shall indicate the general classifications of employees sought to be included and those sought to be excluded and the approximate number of employees in the unit claimed to be appropriate;

(e) Name, address and telephone number of the recognized or certified exclusive representative, if any, and the date of prior certification or recognition and the expiration date of any applicable contract, if known to the petitioner;

(f) Names, address(es) and telephone numbers of any other interested labor organizations, if known to the petitioner;

(g) Whether a strike or picketing is in progress at the establishment involved, and, if so, the approximate number of employees participating, and the date such strike or picketing commenced;

(h) A statement as to whether a valid election has been held within the alleged unit or at the establishment within the preceding 12 months;

(i) Any other relevant facts;

(j) Name and affiliation, if any, of the petitioner and its address and telephone number;

(k) The signature of the petitioner’s representative, including his title and telephone number;

(l) A petition shall be accompanied by a showing of interest of not less than 30% of the employees in the unit alleged to be appropriate. “Showing of interest” means the evidence of support a petitioner must show in a bargaining unit or proposed bargaining unit before its petition will be acted upon. The showing may be made by authorization cards or petitions which must include a statement of a desire by affected employees to be represented by the petitioner for the purposes of collective bargaining and which must be signed and dated by employees in the unit during the 90 days preceding the filing of the petition; by dues records or payroll deduction records showing the employees to be current members of a petitioning organization; or, by an existing or the most recently expired bargaining agreement in the unit, to which the petitioning organization was a party;

(m) If a petition was filed with the National Labor Relations Board, state what action, if any, was taken.

(2) Certification of Private Employee Representative Filed by Private Employer.

(a) A petition filed by a private employer shall state that a request for representation or continued representation has been made by one or more labor organizations and that the private employer has a good faith doubt concerning the majority representative of its employees;

(b) A petition shall contain all of the information set forth in section (1) of this rule, except subsections (j) and (l) thereof.

(3) Decertification of Private Employee Representative Filed by an Employee/Group of Employees/Individual/Labor Organization.

(a) A petition for decertification shall contain the following:

(A) A statement that the individual or labor organization currently certified or recognized by the private employer no longer represents a majority of the employees in the bargaining unit in which it is currently certified or recognized;

(B) A petition shall contain the information set forth in section (1) of this rule; and

(C) A petition shall be accompanied by a showing of interest of not less than 30 percent of the employees in the unit alleged to be appropriate.

(b) “Showing of interest” means the evidence of support a petitioner must show in a bargaining unit or proposed bargaining unit before its petition will be acted upon. The showing may be made by authorization cards or petitions which must be signed and dated by employees in the unit during the 90 days preceding the filing of the petition; by dues records or payroll deduction records showing the employees to be current members of the petitioning organization; or, by an existing or the most recently expired bargaining agreement in the unit, to which the petitioning organization was party.

(4) Clarification of Unit or Amendment of Certification Filed by the Recognized Individual/Labor Organization/Private Employer. A petition shall, in addition to setting forth the information required by section (1) of this rule, except subsections (d) and (l) thereof, further contain the following:

(a) A description of the present bargaining unit and the date of the certification or recognition;

(b) Proposed clarification or amendment of the unit; and

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.025
ERB 12-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0015 Timeliness of Petitions

(1) Election Bar. No election may be held for a bargaining unit or a subdivision of one in which a valid election has been held during the preceding 12-month period.

(2) Contract Bar. No representation election shall be conducted during the term of any lawful collective bargaining agreement between an employer and a labor organization. However, an agreement with a term of more than three years shall be a bar for only the first three years of its term.

(3) Certification Bar. The certification of an exclusive bargaining representative will serve as a bar to an election for a period of one year from the date of certification unless:

(a) The certified labor organization has dissolved or has become defunct; or

(b) A schism developed in the certified labor organization so that it cannot effectively represent bargaining unit members; or

(d) Other changed circumstances warrant waiver of the certification bar.

(4) Open Period for Filing. A petition for an election where a contract exists must be filed not more than 90 days and not less than 60 days before the end of the contract period. If a contract is for more than three years, a petition for election may be filed not more than 90 days and not less than 60 days before the end of the expiration of the first three ears of the contract or any time after three years from the effective date of the contract. However, if a new contract is negotiated after the third year of the contract, and prior to the filing of a petition for an election, the new contract shall serve as a contract bar.

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.025
ERB 12-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0020 Validity of Showing of Interest

The showing of interest submitted pursuant to OAR 115-060-0010(1) and (3) shall not be furnished to any of the parties. The Board or its agents shall determine the adequacy of the showing of interest and such decision shall not be subject to collateral attack.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.025
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0025 Withdrawal or Dismissal of Petition

(1) Withdrawal of Petition. A petitioner may withdraw its petition with the approval of the Board or its agent. If a petition is withdrawn after the Recommended Order is issued, the withdrawal will be granted with prejudice and the petitioner may not submit a new petition for the bargaining unit for a period of six months from the date the withdrawal was approved.

(2) Dismissal of Petition. If the Board Determines after an investigation that the petition has not been timely or properly filed, that no valid question concerning the representation of employees exists in an appropriate unit, or that the petition should not be processed for other reasons, it may request the party filing such a petition to withdraw the petition without prejudice or, in the absence of such withdrawal, it may dismiss the petition. Such action may be taken by the Board at any time prior to the closing of the case. A petitioner may, within 14 days of the date of service of the dismissal, request reconsideration of such action by the Board. This request shall contain a complete statement setting forth the facts and reasons upon which the request is based. On its own motion, the Board may or may not hear oral argument on a request for reconsideration. The Board may affirm the dismissal, or set the dismissal aside and remand the matter for hearing.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.025
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0028 Posting Notice of Petition

Upon receipt of a petition under OAR 115-060-0000, a Board Agent will cause a notice of the petition to be posted in the work areas granting maximum access to the employees in the existing or proposed unit. Copies of the notice shall be served on the private employer and any known exclusive representative. The notice shall set forth:

(1) The name of the petitioning organization or employer;

(2) A description of the unit involved; and

(3) A statement that parties and interested persons will have 14 days from the date of the notice to file:

(a) Objections to the appropriateness of the proposed unit;

(b) Objections to the positions to be included or excluded;

(d) Petition to intervene as provided in OAR 115-060-0030.

(4) Interested persons may notify the Board Agent of their objections. Upon good cause shown, the Board Agent may call an interested person as a witness.

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.025
ERB 12-1985, f. 10-29-85, ef. 10-31-85

Or. Admin. R. 115-060-0030 Intervention

(1) An employee, a group of employees or an individual or labor organization acting in their behalf may intervene as a candidate for representation of the bargaining unit if it files a motion to intervene and supports its motion with a showing of interest of ten percent of the employees in the bargaining unit. A labor organization may intervene for the purpose of representing a bargaining unit of employees different than that sought by the petitioner, but including some of the employees in the bargaining unit proposed by the petitioner. In such case, it must file a motion supported by a showing of interest of 30% percent of the employees in its proposed unit.

(2) A labor organization currently certified or recognized as the exclusive representative of all or a major portion of the employees in the requested bargaining unit will be included as a party in interest in any hearing on the petition and included on the ballot in any resulting election unless it files a disclaimer pursuant to OAR 115-060-0055(3).

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.025
ERB 12-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0035 Consent Election Agreement

The parties may waive a hearing and enter into a consent election agreement. Such agreement shall include a description of the bargaining unit, time and place of the election and the payroll period to be used in determining the employees eligible to vote. The bargaining unit set out in the consent agreement shall be deemed an appropriate bargaining unit when the consent agreement is approved by the Board or its agent. The parties may agree to a mail ballot election with the approval of the Board or its agent.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.025
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0040 Hearing on Petitions; Notice; Conduct and Evidence

When a valid petition has been filed and the parties, including timely objectors or intervenors, after a reasonable time, are unable to settle the issues raised by the petition in a manner approved by a Board agent, the matter shall be set for hearing. Ten days’ written notice of hearing shall be given to all parties. The notice shall include, but need not be limited to:

(1) Notice:

(a) A statement of the time, place and nature of the hearing;

(b) A description of any proposed bargaining unit(s) which may be involved;

(d) A statement of the legal authority and jurisdiction under which the hearing is being held.

(2) Notice not Part of Record. The contents of the notice shall not be a part of the hearing record, and any party wishing to rely upon these as exhibits shall make an appropriate submission at the hearing.

(3) Conduct and Evidence. Hearings under this section are considered investigatory. There is no burden of proof. Their purpose is to develop a full factual record to be considered by the Board. The rules of evidence for hearings conducted under this section shall be:

(a) Evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible;

(b) Irrelevant, immaterial or unduly repetitious evidence shall be excluded;

(c) All offered evidence, not objected to, may be received by the Board agent subject to the Board agent’s discretion to exclude irrelevant, immaterial or unduly repetitious matter;

(d) Evidence objected to may be received by the Board agent who will rule on its admissibility or exclusion when he/she issues a Recommended Order;

(e) The Board agent shall determine the order of going forward with the evidence; and

(f) See procedures set out in OAR 115-010-0035 through 115-010-0105.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.025
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0045 Appropriate Bargaining Unit(s)

(1) A bargaining unit may consist of all employees of the employer, craft unit, plant unit, or subdivision thereof, if found to be appropriate by the Board. See ORS 663.020(1)(a), (b) and (c) for statutory exceptions.

(2) In considering whether a bargaining unit is appropriate, the Board shall consider such factors as community of interest (e.g., similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders, common supervisor, etc.), wages, hours and other working conditions of the employees involved the history of collective bargaining and the desires of the employees. The Board may determine a unit to be an appropriate unit although some other unit might also be appropriate.

(3) Bargaining unit(s) shall not include statutory exclusions as defined in ORS 663.005(3)(a) through (i).

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.020
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0050 Notice of Election; Improper Use of Notices

(1) Notices of election shall be furnished by a Board agent to the private employer for suitable posting. Such notices shall set forth the details and procedures for the election, the appropriate unit, the employee eligibility period, and date(s), hour(s) and place(s) of the election and shall contain a sample ballot. The private employer shall promptly post notices in areas giving maximum access to affected employees.

(2) The reproduction of any document purporting to be a copy of the Board’s official ballot, other than one completely unaltered in form and content and clearly marked “sample” on its face, which suggests either directly or indirectly to employees that the Board endorses a particular choice, may constitute grounds for setting aside an election upon objections properly filed or upon motion of the Board.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.030
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-060-0055 Election Procedures

(1) Eligibility to Vote. Private employees eligible to vote in an election will be those employed on the date of the election and who were employed on a payroll date agreed upon by the parties or on a date specified by the Board. The Board may, at its discretion, include as eligible voters seasonal employees, employees on layoff, or other employees who have reasonable expectations of continued employment.

(2) List of Eligible Voters. The private employer shall submit an alphabetical list of eligible voters, their names, addresses and job classifications to each labor organization which will appear on the ballot and to the Board at least ten days before the date of the on-site election or ten days before the date set for the Board to mail out ballots in a mail ballot election unless otherwise expressly agreed by the parties.

(3) Disclaimer. A labor organization may request in writing to have its name removed from the ballot disclaiming any representation interest for the employees in the unit. Such disclaimer must be filed not less than ten days before the date of the election. When a disclaimer is filed and accepted after a consent agreement for an election is signed or after an election is ordered, the Board will not entertain a petition filed by the disclaiming organization for the bargaining unit for a period of six months from acceptance of the disclaimer.

(4) Voting. Voting shall be by secret ballot with an opportunity to vote for any one of the candidates on the ballot or for no representation. The election shall be conducted on site or it may be conducted by mail. For purposes of scheduling an election by mail, the date on which ballots are to be returned shall be the date of the election. The choice on the ballot receiving the majority of valid votes cast shall be adjudged the winner. If there are only two choices on the ballot in an initial election or runoff election and the balloting results in a tie vote, the Board Agent shall certify that no representative has been chosen. These provisions apply to all representation elections.

(5) Runoff Election. In any representation election where there are more than two choices on the ballot and none of the choices receive a majority of the valid votes cast, a runoff election shall be conducted. The ballot in a runoff election shall contain the two choices on the original ballot that received the largest number of votes. Employees eligible to vote in the original election and who are still employees on the date of the runoff election shall be eligible to vote.

(6) Observers. Any party may be represented at the polling place(s) by observers of its own selection except that employer observers cannot be supervisors of employees involved in the election. Labor organization observers must be eligible voters. The number and the function of the observers shall be determined by the Board Agent conducting the election.

(7) Challenged Ballots. Any party or the Board Agent may challenge, for good cause, the eligibility of any person to participate in the election. The ballots of such challenged persons shall be impounded.

(8) Tally of Ballots. Upon the conclusion of the ballot count, the Board Agent shall furnish the parties a tally of ballots in person or by mail. The tally shall be deemed furnished on the day of the ballot count.

(9) Objections to Conduct of Election or Conduct Affecting the Results of the Election. Within ten days after the tally of ballots has been furnished, any party of record may file with the Board an original and one copy of objections to the conduct of the election or conduct affecting the results of the election, which shall contain a clear and concise statement of the reasons therefor. Such filings must be timely whether or not the challenged ballots are sufficient in number to affect the results of the election. Failure to comply with this subsection shall be grounds for dismissal of the objections. Copies of such objections shall be served simultaneously on the other parties by the party filing them, and a statement of service shall be provided to the Board.

(10) Certification of Representative or Results of Election. If no objections are filed within ten days; and, if the challenged ballots are insufficient in number to affect the results of the election, the Board Agent shall forthwith issue to the parties a certification of the results of the election, including certification of representative, where appropriate.

(11) Resolution of Objections and Challenged Ballots. When timely objections are filed or where the challenged ballots are sufficient in number to affect the results of the election, the Board Agent shall conduct an investigation and shall, when appropriate, issue a notice of hearing designating a Board Agent to hear the matters alleged and to issue a report and recommendations. The objecting or challenging party shall bear the burden of proof and of going forward in the hearing. If the Board Agent exercised a challenge because the voter’s name was not on the list of eligible voters, the party seeking to have the vote counted shall have the burden of proof and the burden of going forward. The findings and recommendations shall be brought before the Board in the manner provided in these rules for all other Board Agent findings and recommendations.

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.030
ERB 12-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Division 65 PRIVATE EMPLOYEE DEAUTHORIZATION OF UNION SECURITY AGREEMENT

Or. Admin. R. 115-065-0000 Deauthorization

(1) Petition:

(a) A petition to rescind the provision in the bargaining agreement between a private employer and a labor organization requiring as a condition of employment membership in such labor organization may be filed by an employee or group of employees. The petition must be accompanied by a statement signed by 40 percent or more of the employees in the bargaining unit stating that they desire to rescind the union security agreement;

(b) Such petition shall be filed in writing with the Board on a form provided by the Board and shall be filed with the Board;

(c) Upon receipt of the petition, the Board or its agent shall serve a copy thereof upon the parties disclosed in the petition.

(2) Contents of Petition: The petition shall contain:

(a) A statement that 40 percent or more of the employees in a bargaining unit desire to rescind the union security provisions between their employer and the labor organization;

(b) The name, address and telephone number of the establishment;

(d) The general nature of the employer’s business;

(e) A description of the bargaining unit involved;

(f) The name, address and telephone number of the labor organization representing the employees;

(g) The number of employees in the bargaining unit;

(h) The date of execution and expiration of the bargaining agreement in effect covering the unit involved. If possible, include a copy of the agreement with the petition;

(i) The name and address of the person designated to accept service of documents for petitioners;

(j) Any other relevant facts;

(k) Signed by petitioner(s) with his/her address and telephone number; and

(l) If filed with the National Labor Relations Board, what action, if any, was taken.

(3) Election:

(a) Directed Election. After investigating the petition and upon an appropriate showing that 40 percent or more of the employees in the bargaining unit desire to rescind the union security provision, the Board shall direct a secret ballot election;

(b) Election Notices. Notices of election shall be furnished by the Board agent to the employer for posting. Such notices shall set forth the details and procedures for the election, a definition of eligible voters and the date(s), hour(s) and place(s) of the election and shall contain a sample ballot;

(c) Eligibility to Vote. Employees eligible to vote in an election will be bargaining unit members employed on the date of the election and who were employed on a payroll date specified by the Board;

(d) List of Eligible Voters. The public employer shall submit an alphabetical list of eligible voters, their names, addresses and job classifications to the labor organization and to this Board at least ten days before the election;

(e) Dismissal of Petition. In the event of dismissal of the petition for deauthorization, the petitioner may, within 14 days from date of service of the dismissal, request reconsideration of such action by the Board. This request shall contain a complete statement setting forth the facts and reasons upon which the request is based;

(f) Election Procedures. To the extent not inconsistent herewith, election procedures provided in these rules for representation elections in private employment shall be applicable. However, nothing in these rules shall be construed to afford the parties either a pre-election objection period or a pre-election hearing as a matter of right. The Board, in its discretion, may set such a hearing if its investigation reveals that a hearing is necessary under the circumstances of the case;

(g) Certification of Results of Election. If no objections are filed within the time set forth above and if the challenged ballots are insufficient in number to affect the results of the election, the Board or its agent shall certify the results of the election to the parties. If a majority of the votes cast in the election do not favor the fair share agreement, the Board shall certify deauthorization. If a majority of the votes cast favor continuation of the fair share agreement, the Board shall so certify;

(h) Election Bar. No election shall be conducted pursuant to this section in a bargaining unit or a subdivision within which, in the preceding 12 months, a valid election has been held.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.035
ERB 3-1998, f. & cert. ef. 1-26-98
ERB 1-1980, f. & ef. 1-9-80

Division 70 UNFAIR LABOR PRACTICE CHARGES IN PRIVATE EMPLOYMENT

Or. Admin. R. 115-070-0000 Filing an Unfair Labor Practice Charge

(1) Who May File. An injured party may file a charge alleging that a person(s) has engaged in or is engaging in an unfair labor practice. Such charge shall be filed in triplicate with the Board on forms provided by the Board.

(2) Content of Charge. The charge shall contain the following information:

(a) The name and address of the person making the charge;

(b) The name and address of the person(s) against whom the charge is made;

(d) A clear and concise statement of the facts constituting each alleged violation followed by the specific section and subsection of the law allegedly violated. Such statements shall include the names of persons committing specific complained of acts and the dates when such acts allegedly occurred; and

(e) The signature of the person filing the charge.

(3) Supporting Data. At the time the charge is filed, the charging party shall submit a written statement setting forth its version of the relevant facts, including names, dates, and places, together with any documentary evidence which may be relevant to the issues raised by the charge.

(4) Service of Charge. Concurrent with the filing of the charge, the filing party shall serve a copy of the charge upon the person against whom the charge is made and certify such service to the Board.

(5) Filing fee. A filing fee of $300 must be paid at the time the charge is filed. Charges that are filed without a filing fee are subject to dismissal for that reason.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 663.175 & 663.180
ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11
ERB 3-2007, f. 12-17-07, cert. ef. 12-26-07
ERB 1-2007(Temp), f. 6-29-07, cert. ef. 7-1-07 thru 12-27-07
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0005 Investigation of Charge

A Board agent shall investigate the charge to determine if an issue of fact or law exists which warrants issuance of a complaint.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.180
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0010 Action When Complaint Not Issued

If investigation reveals that no issue of fact or law exists which warrants issuance of a complaint, the Board may decline to issue a complaint. Such declination shall be in writing explaining the grounds thereof.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.180
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0015 Petition for Reconsideration

The charging party shall have 14 days from the date of service to file objections to the declination to issue a complaint and request reconsideration by the Board. This request shall contain a complete statement setting forth the facts and reasons upon which the request for reconsideration is based. The charging party shall serve a copy of the request upon all parties of record in the case. The Board, at its discretion, may grant reconsideration. In reviewing a petition for reconsideration, the Board may set the issue for oral argument.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.180
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0020 Issuance of Complaint and Notice of Hearing

If it appears to the Board that proceedings on the charge should be instituted, it shall issue a cause to be served on all affected parties a formal complaint in the name of the Board and a notice of hearing before a Board agent at a place therein fixed and at a time not less than 20 days after service of the complaint and notice of hearing. The complaint and notice of hearing shall be served personally or by certified mail.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.180
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0025 Withdrawal of Complaint

Any complaint issued by the Board may be withdrawn by it prior to the hearing.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.185
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0030 Amendment of Complaint

A complaint may be amended by the Board at its discretion at any time before the issuance of an order based thereon.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.185
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0035 Answer to the Complaint

(1) Answer. The respondent shall have 14 days from date of service of the complaint in which to file an answer. All allegations in the complaint not denied by the answer, unless the respondent shall state in the answer that he/she is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The answer will be deemed sufficient if it generally denies all allegations of the complaint. Respondent shall specifically admit by way of answer any undisputed allegations and shall set forth any affirmative defenses.

(2) Service of Answer. Upon filing an answer, the respondent shall serve a copy upon the charging party or his/her attorney of record. Proof of such service, setting forth the time and manner thereof, shall be filed with the answer.

(3) Filing Fee. A filing fee of $300 must be paid by the respondent when the answer is filed. The answer will not be considered to be filed until the fee is paid.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 663.185(2)
ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11
ERB 3-2007, f. 12-17-07, cert. ef. 12-26-07
ERB 1-2007(Temp), f. 6-29-07, cert. ef. 7-1-07 thru 12-27-07
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0040 Hearings

Notice of Hearings:

(1) Time and Place of Hearings. The time and place of hearing will be contained in the complaint and notice of hearing.

(2) Postponements. Any party who desires a postponement shall promptly, upon receipt of notice of the hearing, make written request of the Board Agent for such postponement, stating the reason therefor in detail. The Board Agent, in considering a request for postponement, shall consider whether such request was promptly made. For good cause shown, the Board Agent may grant such postponement and may, at any time, order a postponement upon his/her own motion.

(3) Consolidation or Severance of Cases. The Board Agent on motion of a party or on the Board Agent’s own motion may consolidate or sever cases or charges for purposes of hearing and/or issuance of a recommended order.

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.185
ERB 13-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0045 Conduct of Hearings

(1) General Procedure:

(a) The Board Agent will open the hearing with a brief introduction of parties and issues;

(b) Parties may make opening statements;

(c) Parties may present evidence in support of their respective positions. Cross-examination of witnesses will be allowed opposing party(ies);

(d) Parties may make closing arguments.

(2) Conference During Hearings. In any proceedings, the Board Agent may, in his/her discretion, call the parties together for a conference prior to the taking of testimony or may recess the hearing for such conference to resolve evidentiary or procedural matters. The results of such conference shall be summarized on the record.

(3) Stipulation as to Facts. The parties to any proceeding or investigation may, by stipulation, and subject to approval by the Board or its agent, agree upon the facts or any portion thereof involved in the controversy. Such stipulation shall be binding upon the parties thereto and may be used as evidence in the case.

(4) Continuances. If it appears, on the motion of a party, that further testimony or argument should be received, the Board Agent may, in his/her discretion, continue the hearing. The date of such continued hearing may be fixed at the time of hearing or by later written notice to the parties.

(5) Appearances. Parties shall enter appearances at the beginning of the hearing and give their names and addresses in writing to the Board Agent conducting the hearing who will include the same in the record. The Board Agent may, in addition, require appearances to be stated orally so that the identity and interests of all parties present will be known to those at the hearing.

(6) Burden of Proof. The charging party shall have the burden of proof and shall also have the burden of going forward with the evidence. Respondent shall have the burden of proving affirmative defenses. Opportunity shall be afforded to all parties of record participating to examine each witness and to state objections to evidence offered.

(7) Rules of Evidence. The rules of evidence applicable to civil actions shall apply.

(8) Conduct at Hearing. All parties to hearings, their counsel, and spectators shall conduct themselves in a respectful manner. Demonstrations of any kind will not be permitted. Failure to comply with the Board Agent’s effort to maintain order are grounds for removal from the hearing.

(9) Rights of Party not Answering or Failing to Specifically Deny an Allegation. A party that fails to answer a complaint or fails to deny an allegation will not be allowed to present or rebut evidence as to the facts alleged. However, the party may present legal argument.

(10) Post-Hearing Briefs. When post-hearing briefs are permitted by a Board Agent, they must be filed within 14 days from the conclusion of the hearing. Extension of time for filing will be permitted only upon good cause shown.

History

Statutory/Other Authority: ORS 240 & 243
Statutes/Other Implemented: ORS 663.185 & 663.190
ERB 13-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0050 Motions; Intervention

(1) Motions. All motions, including motions for intervention, shall be typewritten or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. Written motions shall be filed with the Board agent, together with proof of service of a copy thereof upon the other parties.

(2) Motions to Intervene. Any person desiring to intervene in any proceeding shall make a motion for intervention no later than seven days before the date set for hearing, stating the grounds upon which such person claims to have an interest in the proceeding. The Board Agent may permit intervention to such extent and upon such terms as he/she may deem proper.

(3) Filing Fee. A filing fee of $300 must be paid by the intervenor when the motion for intervention is filed. The motion will not be considered to be filed until the fee is paid.

History

Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 663.185(2) & ORS 663.190
ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11
ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11
ERB 1-1980, f. & ef. 1-9-80

Or. Admin. R. 115-070-0055 Post-Hearing Procedures

(1) Recommended Order. The Board agent shall prepare and serve on the parties a Recommended Order consisting of Rulings on Motions and Evidentiary Matters, Findings of Fact, Conclusions of Law and a Recommended Order.

(2) Objections to Recommended Order. The parties shall have 14 days from date of service of the Recommended Order to file specific written objections with the Board. (See also OAR 115-010-0090.)

(3) Board Review:

(a) Oral or Written Argument. If objections are filed to the Recommended Order, parties will be given an opportunity to present oral argument to the Board. If a party desires to submit written argument in lieu of oral argument, it must be filed with the Board and served on the parties not less than five days before the date set for argument. The party filing the written argument shall provide proof of service to the Board;

(b) Memorandum in Aid of Oral Argument. If parties wish to submit written memorandum in aid of oral argument in addition to argument, it must be filed with the Board not less than five days before the date set for oral argument and copies must be served upon parties of record. Parties shall provide the Board with proof of service;

(c) Review of Record. Review by the Board of a Board agent’s Proposed Rulings on Motions and Evidentiary Matters, Findings of Fact, Conclusions of Law and a Recommended Order shall be confined to the record. The Order of the Board shall be in writing and shall be sent to the parties.

(4) Petitions for Reconsideration or Rehearing. Petitions for reconsideration or rehearing shall be filed not more than ten days from date of service of the Order and shall state specifically the grounds thereof. The Board may, at its option, set such petitions for oral argument.

(5) Service of Documents. All documents shall be served upon named parties unless there is a representative of record, in which case documents may be served on the representative.

History

Statutory/Other Authority: ORS 243
Statutes/Other Implemented: ORS 663.185 & 663.195
ERB 1-1980, f. & ef. 1-9-80