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

 

DIVISION 25

PUBLIC EMPLOYEE REPRESENTATION

115-025-0000

Who May File Representation Petitions

(1) A labor organization claiming to represent at least 30 percent of the public employees in an appropriate bargaining unit may petition for an election to be certified as a public employee representative.

(2) A labor organization claiming that 30 percent of the employees in a bargaining unit assert that the designated exclusive representative is no longer the representative of the majority of the employees may petition for an election to be certified as the public representative, so long as the petition also claims that at least 30 percent of employees in the bargaining unit want the petitioning labor organization to represent them.

(3) A public employer may 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.

(4) An employee, group of employees, or a labor organization claiming that a majority of employees in an appropriate bargaining unit wish to be represented by a labor organization may petition to certify a public employee representative without an election, so long as no other labor organization is certified or recognized as the exclusive representative of any employee in the proposed unit.

(5) A public employee or group of public employees alleging that 30 percent of the employees in a bargaining unit assert that the designated exclusive representative is no longer the representative of the majority of the employees in the unit may petition for decertification of that representative.

(6) A public employer alleging that an existing bargaining unit includes an employee or employees who should not be included in the unit under the criteria set forth in ORS 243.682(1)(a) may petition for redesignation of the bargaining unit. The timeliness requirements of OAR 115-025-0015 shall serve as a bar to petitions under this subsection even if an election is not held. If a contract is in effect, a petition for a redesignation must be filed from 150 days through 180 days before the end of the contract. If a contract is for more than three years, a petition 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 election, the new contract shall serve as a contract bar. An order redesignating a unit where a contract exists shall be effective upon expiration of the contract.

(7) All representation petitions shall be filed in writing with the Board on a form approved by the Board. The Board or Board Agent shall send a copy of the petition to the parties named in the petition.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1981(Temp), f. 8-6-81, ef. 8-10-81; ERB 1-1982, f. & ef. 1-19-82; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0005

Petitions for Clarification of Bargaining Unit

(1) Filing Petitions for Clarification of a Bargaining Unit:

(a) For purposes of this rule, a question of representation exists only when the employees who are the subject of such a petition are unrepresented and as a group would constitute an appropriate unit as determined by the Board;

(b) When no question of representation exists, the recognized or certified representative or the public employer may petition for clarification of a bargaining unit, subject to other applicable requirements of this rule.

(c) When no question of representation exists, a group of unrepresented employees may petition under ORS 243.682(2)(a) to include the unrepresented employees in an existing bargaining unit without an election, subject to other applicable requirements of this rule. A petition filed under this subsection may also be jointly filed with the recognized or certified representative of the existing bargaining unit.

(d) All petitions shall be filed in writing on a form approved by the Board. The petitioner shall designate one or more of the subsections on the form to indicate the clarification issue(s) that the petitioner intends to raise.

(e) After the filing of objections, if any, the 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 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 public employee status under ORS 243.650(6), (16), or (23), the petition may be filed at any time, except that a petition may be filed only during the open period provided for in OAR 115-025-0015(4) if a position sought to be excluded is expressly by title included within the unit description.

(a) If the Board determines that an election would be appropriate to further the policies expressed in ORS 243.662, 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. For example, a self-determination election may be ordered if 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.

(b) A petition filed by a group of unrepresented employees under ORS 243.682(2)(a) and subsection (1)(c) of this rule will be processed in accordance with subsection (7) of this rule and OAR 115-025-0065.

(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.

(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, unless the petition is filed under subsection (1)(c) of this rule, in which case the petition must be supported by a majority of employees as required by subsection (7)(a) of this rule. 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 115-025-0015(4) and will be subject to the provisions of OAR 115-025-0015(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 OAR 115-025-0015. Except for unit clarification petitions described in subsections (1)(b) and (7) of this rule, 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 OAR 115-025-0055 and 115-025-0060, 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 those employees.

(5)(a) A clarification petition concerning whether there should be a merger of two or more bargaining units represented by the same labor organization and employed by the same employer must be filed during the open period provided for in OAR 115-025-0015(4), as that rule applies to the larger (or largest) of the bargaining units.

(b) A petition for clarification through merger must be supported by a showing of interest of a majority of the employees in each unit stating that they wish their unit to be merged with the other unit.

(c) The Board shall order a clarification through merger when it determines that the description of the merged unit, which must include all employees in the existing units, describes an appropriate unit.

(d) When the Board approves a clarification through merger, 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.

(6)(a) A clarification petition that concerns a group of employees currently represented within (as a fragment of) another bargaining unit more appropriately belongs in a unit represented by the petitioning labor organization must include signatures of a majority of the employees in the affected group stating that they wish to be represented by the petitioning labor organization as part of that organization's bargaining unit.

(b) The petition must be filed during the open period provided for in OAR 115-025-0015(4), as that rule applies to the petitioning organization's bargaining unit.

(c) If the Board determines that it would be appropriate to add the positions in question to the petitioning organization's bargaining unit, the Board shall order a self-determination election in which the employees in question will vote either to be represented within the existing bargaining unit or by the petitioning organization's bargaining unit.

(d) The election shall be conducted by a Board Agent in accordance with the provisions of OAR 115-025-0055 and OAR 115-025-0060, to the extent that such rules are applicable to a self-determination election.

(e) If a majority of the employees who vote cast ballots in favor of representation by the petitioning organization, the Board shall order the clarification.

(7)(a) Unrepresented employees will be added to an existing bargaining unit without an election under ORS 243.682(2)(a) and subsection (1)(c) of 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 as the exclusive representative; 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 in the existing bargaining unit.

(b) Authorizations submitted under this section must be signed by employees within 180 days of the filing of the petition for clarification without an election.

(c) Notwithstanding subsection (a) of this section, one or more of the unrepresented employees to be included in the existing bargaining unit may file a petition with the Board requesting that an election take place, as set forth in OAR 115-025-0075. In order for the petition for election to be granted, the petition must be accompanied by a showing of interest from at least 30 percent of the unrepresented employees to be included in the existing bargaining unit.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1988, f. & cert. ef. 4-25-88; ERB 1-1990, f. 7-19-90, cert. ef. 8-1-90; ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95; ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 4-1998, f. & cert. ef. 1-26-98; ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14; ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0008

Petitions for Amendment of Certification or Recognition

A petition for amendment of certification or recognition may be filed when no question of representation exists. The petition shall be filed in writing with the Board on a form provided by the Board. 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. To show that no question of representation exists, the petitioner will be required to prove that the affiliation election was conducted in accordance with at least minimal due process.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1982, f. & ef. 1-19-82; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0009

Petitions to Revoke Certification or Recognition

A petition to revoke an existing Board certification or employer recognition of an exclusive representative may be filed at any time by an employer or exclusive representative. The Board will order revocation only if:

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

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

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1988, f. & cert. ef. 4-25-88; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0010

Contents of Petitions

(1) Certification of Public Employee Representative Filed by a Labor Organization Under ORS 243.682(1). A petition for an election to certify a public employee representative shall be completed on a form provided by the Board and shall be accompanied by a showing of interest of at least 30 percent of the employees in the alleged appropriate unit.

(2) Certification of Public Employee Representative Filed by a Public Employer:

(a) A petition filed by a public employer shall state that a request for representation or continued representation has been made by one or more labor organizations and that the public employer has a good faith doubt concerning the majority representative of its employees.

(b) A petition shall be completed on a form provided by the Board.

(3) Decertification of Public Employee Representative Filed by an Employee or a Group of Employees. A petition for decertification of a public employee representative shall be:

(a) completed on a form provided by the Board; and

(b) accompanied by a showing of interest from at least 30 percent of the employees in the unit in which an employee representative has been recognized or certified. The showing of interest shall indicate that the employees no longer desire to be represented for purposes of collective bargaining by the recognized or certified representative.

(4) Clarification of Unit or Amendment of Certification Filed by the Recognized or Certified Representative or by the Public Employer. A unit clarification or amendment of certification petition filed by the recognized or certified representative of a public employer or filed by a public employer shall be completed on a form provided by the Board.

(5)(a) Certification of Public Employee Representative Without an Election. An employee, a group of employees, or a labor organization may file a petition under ORS 243.682(2) to certify a public employee representative without a representation election. The petition shall be completed on a form provided by the Board.

(b) A petition shall be accompanied by a showing of interest from a majority of the employees in the proposed unit designating the labor organization named in the petition as the exclusive bargaining representative. If authorization cards are used for the showing of interest, they shall be arranged alphabetically. Authorizations that do not substantially comply with OAR 115-025-0065(2) shall not be counted.

(6) Unit Clarification Without an Election, A petition filed under ORS 243.682(2)(a) and OAR 115-025-0005(1)(c), (2), or (4) to add a group of unrepresented employees to an existing bargaining unit must be submitted on a form approved by the Board.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14; ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0015

Timeliness of Petitions

(1) Election Bar. No election may be held, and no petition for certification without an election may be filed, for a bargaining unit or a subdivision of one in which a valid election has been held or a petition for certification without an election has been filed during the preceding 12-month period. 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.

(2) Contract Bar.

(a) 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.

(b) For employees covered by a collective bargaining agreement with a term of more than three years, no representation election involving those employees shall be held during the first three years of its term.

(c) A contract renewed either by new agreement or as the result of an automatic renewal provision shall have 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 shall not operate as an election bar.

(d) Notwithstanding subsections (2)(a), (b), and (c) of this rule, an existing collective bargaining agreement will not bar a representation election if:

(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) 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;

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

(c) The size of the bargaining unit has fluctuated radically within a short period of time; or

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

(4) Open Period for Filing.

(a) If a collective bargaining agreement with a term of up to three years is in effect, a petition for an election must be filed from 60 through 90 days before the end of the contract period. For the open period for unit clarification petitions, see OAR 115-025-0005(4).

(b) If a collective bargaining agreement with a term of more than three years is in effect, a petition for an election may be filed from 60 to 90 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 negotiated during the fourth year of the contract and before the filing of a petition for election, the new contract shall serve as a contract bar.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, 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 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0020

Validity of Showing of Interest

(1) The showing of interest submitted under Division 25 of these rules shall not be furnished to any of the parties, except that the petitioner may examine cards or petitions when signatures are deemed invalid.

(2) The showing of interest shall be destroyed when the file is closed.

(3) The Board or Board Agent shall determine the adequacy of the showing of interest. That determination is an administrative matter not subject to attack.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0023

Amendments to Petitions

(1) 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 days of such a Board Agent request, unless the petitioner can establish that it had good cause for failing to do so.

(2) A petitioner may amend a petition under OAR 115-025-0000 or 115-025-0005 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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1988, f. & cert. ef. 4-25-88; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0025

Withdrawal or Dismissal of Petition

(1) Withdrawal of Petition.

(a) A petitioner may withdraw a petition filed under Division 25 of these rules with the approval of the Board or 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 115-025-0075, 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 that the withdrawal was approved. Any subsequent petition will also be subject to any applicable bars and window periods.

(2) Dismissal of Petition.

(a) The Board may request that a party withdraw a 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

(C) The petition should not be processed for other reasons.

(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 14 days of the date of service of a Board dismissal of a petition, a petitioner may request reconsideration. This request shall contain a complete statement setting forth the facts and reasons for the request. 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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 1-2008, f. 3-12-08, cert. ef. 3-17-08; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0030

Posting Notice of Petition

(1) Upon receipt of a petition under OAR 115-025-0010(1), (2), (3) or (4), a Board Agent will cause a notice of the petition to be posted in the work areas granting maximum access to employees in the existing or proposed unit. Copies of the notice shall be sent to the public employer and any known exclusive representative. The notice shall set forth:

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

(b) A description of the unit involved; and

(c) 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;

(C) Objections to the petitioner's designation of the issue(s) in cases filed under OAR 115-025-0005; and

(D) Petitions to intervene as provided in OAR 115-025-0035.

(2) An affected employee or a party, including an intervenor, may file an objection regarding a petition filed under section (1) of this rule.

(3) Upon receipt of a petition for certification without an election under OAR 115-025-0010(5), or a petition for unit clarification without an election under OAR 115-025-0010(6), a Board Agent will cause a notice of the petition to be posted in the work areas granting maximum access to employees in the proposed bargaining unit. Copies of the notice shall be sent to the public employer. Copies of the notice of a petition for unit clarification without an election will also be sent to the recognized or certified representative of the existing bargaining unit if that representative did not jointly file the petition with the group of unrepresented employees. The notice shall set forth:

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

(b) The name of the labor organization that seeks certification, or, in the case of a unit clarification petition, the name of the 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 there are 14 days from the date of the notice to file:

(A) Objections to the appropriateness of the unit;

(B) Objections that a labor organization is currently certified or recognized as the exclusive representative of one or more employees in the proposed unit, or, in the case of a unit clarification petition, that another labor organization is certified or certified or recognized as the exclusive representative of any of the employees in the group of unrepresented employees seeking to be included in the bargaining unit;

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

(D) A request for an election pursuant to ORS 243.682(3).

(4) An affected employee or a party, including an intervenor, may file an objection regarding a petition filed under section (3) of this rule.

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

Stats. Implemented: ORS 243

Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1988, f. & cert. ef. 4-25-88; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 1-2008, f. 3-12-08, cert. ef. 3-17-08; ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14; ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0035

Intervention

(1) Except in petitions for certification without an election under OAR 115-025-0010(5), a labor organization may intervene as a candidate for representative of a bargaining unit if it files a representation petition within 14 days from the date of a notice of petition and supports its petition with a showing of interest of ten percent of the employees in the unit. A labor organization may intervene for the purpose of representing a bargaining unit of employees different from 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 petition for representation within 14 days from the date of the notice of petition with 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 will be included on the ballot in any resulting election, unless it files a disclaimer pursuant to OAR 115-025-0060(3).

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0037

Filing Objections/Interventions

Concurrently with the filing of any intervention or objections to any petitions under Division 25 of these rules, the intervening or objecting party shall serve a copy of such intervention/objections upon all known interested parties and petitioner, and provide the Board with proof of such service.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1988, f. & cert. ef. 4-25-88; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0040

Consent Election Agreements

The parties may waive a hearing and enter into a consent election agreement after 14 days from the date of the notice of petition. Such agreement shall include a description of the 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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0045

Notice of Hearings, Conduct of Hearings, and Post-Hearing Procedures

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

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 2-1998, f. & cert. ef. 1-26-98; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0050

Appropriate Bargaining Unit(s)

(1) Subject to ORS 243.650(1), (19) and ORS 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.

(2) Questions concerning public employee status shall not be decided in proceedings to determine the appropriate bargaining unit for a representation election, unless the results of such an election cannot be certified without the resolution of such questions.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 3-1981(Temp), f. 10-5-81, ef. 10-9-81; ERB 1-1982, f. & ef. 1-19-82; ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95; ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0055

Notice of Election; Improper Use of Notice

(1) Notices of election shall be furnished by a Board Agent to the public employer for suitable posting.

(2) 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. Notices shall also contain a sample ballot.

(3) The public employer shall promptly post notices in areas to give maximum access to affected employees.

(4) 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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0060

Election Procedures

(1) Eligibility to Vote. Public employees eligible to vote in an election will be those employed on the date of the election who were employed on a payroll date agreed to by the parties or on a date specified by the Board. The Board may include as eligible voters other employees who have reasonable expectations of continued employment, including, but not limited to, seasonal employees or employees on layoff.

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

(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 at least ten days before the date of the election in an on-site election or at least ten days before the date ballots are mailed in a mail-ballot 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 representation petition filed by the disclaiming organization for the bargaining unit for a period of six months from acceptance of the disclaimer.

(4) Voting.

(a) Voting shall be by secret ballot with an opportunity to vote for any one of the candidates on the ballot or for no representation.

(b) Elections shall be conducted by mail-ballot, unless a mail-ballot election would not fulfill the policy statements in ORS 243.656. In a mail-ballot election, a ballot that is not delivered through the U.S. mail or in person by the voter is void.

(c) For purposes of scheduling an election by mail, the date on which ballots are to be returned shall be the date of the election;

(d) The choice on the ballot receiving the majority of valid votes cast shall be declared 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.

(e) 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 receives 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. To be eligible to vote in the runoff election, an employee must have been eligible to vote in the original election and still be employed on the date of the runoff election.

(6) Observers. At on-site elections, any party may be represented at the polling place(s) by observers of its own selection, except that employer observers cannot be supervisors employed by the employers. 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. Challenges submitted before the tally must be in writing, supported by a statement describing the challenge, and provided to the other parties to the election. At the tally, challenges may be made orally. The ballots of challenged persons shall be impounded.

(8) Tally of Ballots. The Board shall notify the parties of the date of the ballot count and advise the parties that they are entitled to have a representative present at the count. Upon the conclusion of the ballot count, the Board Agent shall furnish the parties with a tally of ballots on that same date.

(9) Objections to Conduct of Election or Conduct Affecting the Results of the Election.

(a) Objections to the conduct of the election or conduct affecting the results of the election must be filed, within ten days after the tally of ballots has been furnished.

(b) Objections may be filed by any party of record.

(c) Objections must contain a clear and concise statement of the reasons for the objections.

(d) Objections that are not timely filed shall be dismissed.

(10) Certification of Representative or Results of Election. If no objections are filed within ten days and any challenged ballots are insufficient in number to affect the results of the election, the Board Agent shall 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.

(a) 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.

(b) The dispute will be processed in the manner set forth in OAR 115-035-0060(5).

(c) The objecting or challenging party shall bear the burden of proof and of going forward in the hearing.

(d) 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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 6-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 4-1998, f. & cert. ef. 1-26-98; ERB 1-2010(Temp), f. & cert. ef. 4-13-10 thru 10-10-10; ERB 2-2010, f. 9-23-10, cert. ef. 10-1-10; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0065

Certification or Unit Clarification Without Election

(1) Upon receipt of a petition under OAR 115-025-0010(5) for certification without an election or under OAR 115-025-0010(6) for unit clarification without an election, a Board Agent shall commence an investigation and shall cause a notice of the petition to be posted as described in OAR 115-025-0030(1).

(2) Authorization Documents.

(a) An authorization document is a type of showing of interest that is submitted in support of a petition for certification or unit clarification without an election. An authorization document must, at a minimum, contain the following:

(A) The employee’s name, typed or legibly printed;

(B) The employee’s signature;

(C) The date of 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; and

(E) A statement that the employee understands that the employee’s signature may be used to obtain certification of the named labor organization as the exclusive bargaining representative without an election.

(b) An authorization under subsection (a) must be signed and dated within the 180-day period before the petition is filed.

(c) Authorization cards shall be used as the showing of interest if the proposed bargaining unit involves more than 100 employees. If authorization cards are used as a showing of interest, they shall be submitted in alphabetical order.

(d) An authorization that does not comply with this section shall be deemed invalid.

(3) Eligible Employees. For the purpose of determining the adequacy of the showing of interest, public employees who were employed on the filing date of the petition for certification or clarification without an election are included in the proposed 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.

(4) List of Eligible Employees. Within 7 days after a public employer receives notice under OAR 115-025-0030(3) that a petition has been filed seeking a certification or clarification without an election, the public employer shall submit to the Board an alphabetical list of employees in the proposed bargaining unit, including their names, addresses and job classifications. The Board will provide a copy of the list to the labor organization named in the petition.

(5) Challenges to the List of Eligible Employees.

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

(b) The Board Agent shall determine whether a majority of employees on the list supplied by the employer have signed valid authorizations. The Board Agent shall 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 shall be dismissed.

(B) If the number of challenges is sufficient to potentially affect the result, the Board Agent shall investigate and, when appropriate, issue a notice of hearing on the challenges. The hearing will be conducted as set forth in OAR 115-025-0045. The challenging party shall bear the burden of proof.

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

(7) Objections. Objections to a petition for certification without an election must be filed within 14 days of the date of the notice posted pursuant to OAR 115-025-0030(3). Hearings on such objections shall be conducted under OAR 115-010-0040 through 0110, unless the context requires otherwise.

(8) Certification.

(a) If it is determined in a petition seeking certification without an election 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 shall 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 115-025-0075.

(b) If it is determined in a petition for unit clarification without an election that a majority of an unrepresented group of employees has signed valid authorization documents to be included in an existing bargaining unit, that the proposed petitioned-for unit is appropriate, and that no other labor organization is certified or recognized as the exclusive representative of any of the employees in the group of unrepresented employees, then the Board shall add the group to the designated existing bargaining unit without an election, unless a timely petition for election is filed under OAR 115-025-0075.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 1-2008, f. 3-12-08, cert. ef. 3-17-08; ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14; ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0070

Objections to Petition for Certification Without Election or Petition for Unit Clarification Without Election

Objections to a petition for certification or unit clarification without election, including objections to the scope of the appropriate bargaining unit, shall be expedited and resolved under the procedures of OAR 115-0010-0040 through 0110, unless the context requires otherwise. If an election is requested under OAR 115-025-0075, the resolution may occur after the election. The Board may delay counting the ballots until all objections are resolved.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14; ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

115-025-0075

Election Petition in Response to Petition for Representation or Unit Clarification Without an Election

(1) After a petition for certification without an election has been filed under OAR 115-025-0010(5), an employee or group of employees in the proposed bargaining unit may petition the Board for a representation election. The petition for an election must be filed within 14 days from the date of the notice posted under OAR 115-025-0030(2), and it must be accompanied by a showing of interest from at least 30 percent of the employees in the bargaining unit designated in the petition for certification without an election.

(2) After a petition for unit clarification without an election has been filed under OAR 115-025-0010(6), one or more of the unrepresented employees may petition the Board for a unit clarification election. The petition for an election must be filed within 14 days from the notice posted under OAR 115-025-0030(2), and it must be accompanied by a showing of interest from at least 30 percent of the unrepresented employees to be added to the existing bargaining unit.

(3) Showing of Interest. For purposes of this section, a 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.

(4) Notice and Election.

(a) If the Board determines that the petition for election is accompanied by a sufficient showing of interest, the Board shall conduct an election by secret ballot.

(b) The Board Agent shall require the employer to post a notice of the election under OAR 115-025-0055 at least 14 days before the election.

(c) In an election by mail, the date of the election shall be the date on which the ballots are to be returned to the Board. Ballots must be delivered to the Board in person by the voter or by U.S. mail. Ballots not so delivered by the date of the election shall be void.

(d) The election shall be completed within 45 days from the date of the petition requesting an election.

(5) Procedures.

(a) The election shall follow the procedures in OAR 115-025-0060(4) and (7)-(11).

(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.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-2007(Temp), f. 7-20-07, cert. ef. 7-23-07 thru 1-15-08; ERB 4-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 1-2014(Temp), f. & cert. ef. 3-14-14 thru 9-10-14; ERB 3-2014, f. 8-25-14, cert. ef. 9-10-14; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

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 regular school days.

(d) Objections by Surviving District. Within 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 30 percent 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 30 percent of the employees must be supported by a showing of interest, as provided for in OAR 115-010-0010(21) and 115-025-0010(1), by collective bargaining agreements or certifications showing current representation by the labor organization of at least 30 percent 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 025, except that a labor organization's petition to intervene as a candidate under OAR 115-025-0035(1) may be supported by a ten percent showing of interest, by a showing that it currently represents at least ten percent of the employees who will be in the proposed bargaining unit or by a combination of the two showings equaling ten percent 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).

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1992, f. & cert. ef. 6-15-92; ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17

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