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The Oregon Administrative Rules contain OARs filed through November 15, 2016
 
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EMPLOYMENT RELATIONS BOARD

 

DIVISION 10

GENERAL/POLICY AND DEFINITIONS

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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

115-010-0005

Statutory Authority for Rules

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

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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 received by the Board. A document received after 5 p.m. is considered to be filed on the following business day.

(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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 4-1985, f. 10-29-85, ef. 10-31-85; ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 2-2011(Temp), f. 8-25-11, cert. ef. 9-1-11 thru 12-31-11; ERB 4-2011, f. 12-28-11, cert. ef. 12-29-11; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 192.610 - 192.690, 240.080
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

115-010-0025

Record of Public Meetings

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

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240, 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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;

(c) $15 for a copy of the first compact disk (CD) recording of a hearing and $10 for each subsequent CD;

(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.

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

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, facsimile (fax) or in person. The Board shall post on its website the street address for personal delivery, the mailing address for filing by mail, the telephone number for filing by fax, and the email address (or other method) to be used for electronic filing.

(b) A complaint or answer will not be considered filed until the filing fees required by ORS 243.672(3) have been paid.

(c) The Board will charge $25 for each facsimile filing.

(d) Documents received after 5 p.m. shall be deemed filed with the Board the next business day.

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

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)

Stats. Implemented: ORS 240 & 243

Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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 by an electronic device, such as telephone, video, and Internet devices.

(2) A party seeking to have a hearing or to offer evidence by an electronic device shall make the request at least ten days before the scheduled hearing date. Less notice may be allowed, if the Board or Board Agent determines that there is good cause for the late notice.

(3) In determining whether to grant a request that all or part of a hearing be conducted by an electronic device, the Board or Board Agent shall consider the circumstances of the particular case including:

(a) The amount of notice given;

(b) The availability of equipment;

(c) The length of hearing;

(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.

(4) The Board may conduct oral argument, under OAR 115-010-0095, or conduct other business through hearings held by an electronic device.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1982, f. & ef. 1-19-82; ERB 2-1993, f. & cert. ef. 12-15-93; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240, 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

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

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1994, f. 6-23-94, cert. ef. 7-1-94; ERB 2-1998, f. & cert. ef. 1-26-98; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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;

(c) Formulating and simplifying issues;

(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; and

(h) 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) Each party shall provide a witness list to the other parties and the Board Agent. Each party shall also provide an exhibit list and exhibits to any other party. These documents must be received no later than seven days before the scheduled hearing, unless the Board Agent directs otherwise.

(4) 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 argument regarding such matter at the hearing unless good cause is shown.

(5) 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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 2-1993, f. & cert. ef. 12-15-93; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

(c) Parties may make opening statements.

(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 as to Facts. The parties to any proceeding or investigation may, by stipulation and subject to approval by the Board or Board Agent, agree on any fact. A stipulation shall be binding on the parties and 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. Their purpose is to develop a full factual record. There is no burden of proof. 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) Exhibits:

(a) A party intending to offer exhibits shall, where practicable, have them marked for identification and presented to any opposing party and the Board or Board Agent in a prehearing conference with the Board or Board Agent before the opening of any hearing.

(b) A party offering an exhibit shall provide two copies to the Board or Board Agent and a copy to any opposing party before seeking its admission into evidence. A failure to comply with this subparagraph shall result in the exhibit not being admitted, unless good cause is shown.

(c) A party seeking to offer an 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.

(d) 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.

(e) 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 the opposing party no less than 14 days before the first day of hearing.

(7) 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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 4-1980, f. 8-15-80, ef. 8-18-80; ERB 4-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1988, f. & cert. 4-25-88; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 2-1998, f. & cert. ef. 1-26-98; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

115-010-0075

Conduct at Hearing

All parties to hearings, their counsel, and spectators shall conduct themselves in a respectful manner. Failure to comply with the Board Agent's effort to retain order is grounds for removal from the hearing.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

115-010-0077

Briefs

(1) Briefs must be captioned with the Board case title and number, and must be typewritten or printed with double spacing on letter-sized paper.

(2) Briefs must substantially comply with the following format:

(a) Brief statement of pertinent facts;

(b) Statement and discussion of disputed issues supported by available precedent; and

(c) Concise summary of reasons for granting requested relief.

(3) Briefs shall not exceed 30 pages, unless expressly permitted by the Board or Board Agent.

(4) Once the Board Agent establishes a brief filing date, parties must ask the Board Agent for an extension of time. Parties must provide the Board Agent with any other party’s position to the extension request. An opposed extension request will be granted only for good cause.

(5) The Board or Board Agent may disregard any brief (or portion of a brief) that fails to comply with this rule.

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

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 4-1980, f. 8-15-80, ef. 8-18-80; ERB 4-1985, f. 10-29-85, ef. 10-31-85; ERB 2-1998, f. & cert. ef. 1-26-98; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 4-1985, f. 10-29-85, ef. 10-31-85; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

115-010-0100

Petitions for Reconsideration or Rehearing

(1) A party has 14 days from the date of service of a Board order to petition for reconsideration or rehearing. Any petition for reconsideration or rehearing must specifically state the ground(s) for the petition.

(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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 2-1998, f. & cert. ef. 1-26-98; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240 & 243
Hist.: ERB 4-1980, f. 8-15-80, ef. 8-18-80; ERB 1-2016, f. 11-9-16, cert. ef. 2-1-17

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