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EMPLOYMENT RELATIONS BOARD

 

DIVISION 25

PUBLIC EMPLOYEE REPRESENTATION

115-025-0000

Representation Petitions

(1) Who may file:

(a) A petition for an election to certify a public employee representative may be filed by any labor organization claiming to represent 30 percent of the public employees in an alleged appropriate bargaining unit. A petition for certification also may be filed by any 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 in the bargaining unit and that they want the petitioning labor organization to represent them;

(b) A petition for an election to certify a public employee representative may be filed by a public employer alleging that one or more labor organizations have presented to it a request to be recognized or continue to be recognized as employee 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 under ORS 243.682(2)(a) to certify a public employee representative without an election may be filed by an employee, group of employees or a labor organization claiming that a majority of employees in an appropriate unit wish to be represented by a labor organization and that no other labor organization is certified or recognized as the exclusive representative of any employee in the proposed unit;

(d) A petition for decertification may be filed by 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;

(e) A petition for redesignation of a bargaining unit represented by a recognized or certified exclusive representative may be filed by a public employer contending that the existing bargaining unit includes an employee or employees who should not be included in such bargaining unit under the criteria set forth in ORS 243.682(1)(a). 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. A petition for a redesignation where a contract exists must be filed not more than 180 days and not less than 150 days before the end of the contract period. If a contract is for more than three years, a petition may be filed not more than 180 days and not less than 150 days before the end of the expiration of the first three years of the contract or anytime 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 prior to 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.

(2) Petitions shall be filed in writing with the Board on a form approved by the Board. The Board Agent shall serve a copy of the petition upon the parties disclosed therein.

Stat. Auth.: ORS 240 & 243
Stats. Implemented: ORS 243.682
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

115-025-0005

Petitions for Clarification of Bargaining Unit

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

(a) Other than petitions filed under subsection (b) of this section, petitions for clarification of a bargaining unit may be filed by the recognized or certified representative or by the public employer when no question of representation exists, subject to other applicable requirements of this rule.

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

(c) 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. All petitions shall be filed 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 issues 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 public employee status under ORS 243.650(6), (16), or (23), 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 115-025-0015(4).

(a) 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 policy expressed in ORS 243.662; for example, where 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)(b) 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 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, unless the petition is filed pursuant to subsection (1)(b) 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 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 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 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) When the issue raised by the clarification petition is whether two or more bargaining units of the same employer’s employees which are represented by the same labor organization should be merged, the petition 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. A petition for clarification through merger must be supported by petitions (or cards) signed by more than 50 percent of the employees in each unit certifying that they wish their unit to be merged with the other unit. 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, prior to which the parties are obligated to begin negotiations for inclusion of the smaller unit employees under the larger unit agreement. 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.

(6) When the issue raised by the clarification petition is whether a group of employees who are represented within (as a fragment of) another bargaining unit more appropriately belongs in a unit represented by the petitioning labor organization, the petition must be supported by a petition (or cards) signed by more than 50 percent of the employees in the affected group certifying that they wish to be represented by the petitioning labor organization as part of that organization's bargaining unit. 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. 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. The election shall be conducted by a Board Agent in accordance with the provisions of 115-025-0055 and 115-025-0060, to the extent such rules are applicable to a self-determination election. 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) Adding Unrepresented Employees by Clarification Petition:

(a) When the issue raised by the clarification petition is whether to add a group of unrepresented employees to an existing bargaining unit under ORS 243.682(2)(a) and subsection (1)(b) of this rule, the unrepresented employees will be added to the existing unit without an election if the Board finds that a majority of employees in the group of employees seeking to be included in the existing bargaining unit have signed authorization cards designating the labor organization specified in the petition as the exclusive representative, and 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. Authorization cards submitted under this subsection must be signed by employees within 180 days of the filing of the petition for clarification without an election.

(b) 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, 243.766(2) & 243.766(7)
Stats. Implemented: ORS 243.682
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

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. Such a petition shall be filed in writing with the Board on a form provided by the Board. Amendment 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 & 243
Stats. Implemented: ORS 243.682
Hist.: ERB 1-1982, f. & ef. 1-19-82; ERB 6-1985, f. 10-29-85, ef. 10-31-85

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 upon a showing that:

(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 243
Stats. Implemented: ORS 243.682
Hist.: ERB 1-1988, f. & cert. ef. 4-25-88

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, when filed by a labor organization, contain the following:

(a) Name, address, telephone number of the public employer and the employer representative to contact, including his/her title, if known;

(b) 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;

(c) 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;

(d) Names, addresses, and telephone numbers of any other interested labor organizations, if known to the petitioner;

(e) Any other relevant facts;

(f) Name and affiliation, if any, of the petitioner and its address and telephone number;

(g) The signature of the petitioner's representative, including his/her title and telephone number; and

(h) 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. "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 original authorization cards or petitions which must include a statement of a desire by affected employees to be represented by the petitioner for 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 applicable to the bargaining unit, to which the petitioning organization was a party.

(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 include all of the information set forth in section (1) of this rule, except subsections (1)(f) and (h) of this rule.

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

(a) A statement that the labor organization certified by the Board or recognized by the public employer no longer represents a majority of the employees in the bargaining unit in which it is currently recognized or certified;

(b) The petition also shall contain the information set forth in section (1) of this rule; and

(c) The petition shall be accompanied by a showing of interest of not less than 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. (See subsection (1)(h) of this rule for definition of “showing of interest”.)

(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, in addition to the information required by section (1) of this rule, except subsections (1)(b) and (h) of this rule, 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

(c) A statement by petitioner setting forth specific reasons as to why clarification or amendment is requested.

(5) 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 contain the following:

(a) The name, address, telephone number and affiliation, if any, of the labor organization for which certification is sought;

(b) A statement that the petitioner seeks certification without an election based on the Board's card check procedures;

(c) The name, address and telephone number of the public employer and the employer representative to contact, including his/her title, if known;

(d) A description of the bargaining unit claimed to be appropriate for the purpose of exclusive representation by the labor organization named in the petition. The bargaining unit description shall indicate the general classifications or job titles of employees to be included and those to be excluded and the approximate number of employees in the unit claimed to be appropriate;

(e) A statement that no other labor organization is currently certified or recognized as the exclusive bargaining representative of any employee in the proposed unit;

(f) Any other relevant facts;

(g) The name, mailing address, telephone number and signature of the petitioner(s) or petitioner's representative; and

(h) A petition shall be accompanied by signed authorization cards, arranged alphabetically, from a majority of the employees in the proposed unit designating the labor organization named in the petition as the exclusive bargaining representative. Authorizations which 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)(b), (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 243
Stats. Implemented: ORS 243.682
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

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. The existence in an appropriate bargaining unit of a written collective bargaining agreement with a term of up to three years' duration shall be a bar to any election involving employees covered by the contract for its entire term. A contract with a term of more than three years shall be a bar for only the first three years of its term. 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 a bar. The Board shall rule that a contract will not be given the effect of barring an election if it finds that unusual circumstances exist under which the contract is no longer a stabilizing influence and 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 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 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 an election may be filed not more than 90 and not less than 60 days before the end of the expiration of the first three years of the contract or anytime 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 prior to the filing of a petition for election the new contract shall serve as a contract bar.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.682
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

115-025-0020

Validity of Showing of Interest

The authorization cards or 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 petition signatures that are deemed invalid. The authorization cards, showing of interest cards or petition shall be destroyed when the file is closed. The Board or its agents shall determine the adequacy of the authorization cards or showing of interest and such decision shall not be subject to collateral attack.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.682
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

115-025-0023

Amendments to Petitions

(1) The board agent may require amendments to correct representation petitions filed under OAR 115-025-0000 or clarification petitions filed under OAR 115-025-0005 where the petitions are timely but are lacking in specificity or detail due to a failure to fully comply with OAR 115-025-0010(1) or (5), or because of inadvertent omissions from requested information blocks on the Board petition forms. A petition may be dismissed if petitioner fails to amend the petition within ten days of such board agent request without good cause.

(2) A petitioner may amend a petition under OAR 115-025-0000 or 115-025-0005 at any time before it is served on respondents. Once the petition is duly served, amendments may only be made with approval of the board agent.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.682
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

115-025-0025

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, after a Consent Election Agreement is executed by the parties or after a representation election is requested under OAR 115-025-0070 in response to a petition seeking certification without an election, 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.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.682
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

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 served on 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.

(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;

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

(d) Interested persons may notify the Board Agent of their specific objections. Such objections must also be served on the petitioner. Upon good cause shown, the Board Agent may call an interested person as a witness.

(2) 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 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 served on the public employer. Copies of the notice of a petition for unit clarification without an election will also be served on 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 which 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;

(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 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;

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

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

(e) Interested persons may notify the Board Agent of their specific objections. Such objections must also be served on the petitioner. Upon good cause shown, the Board Agent may call an interested person as a witness.

Stat. Auth.: ORS 183, 240 & 243
Stats. Implemented: ORS 183.410, 240.086(3), 243.766(7) & 663.320
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

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 and be 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 115-025-0060(3).

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.682 & 243.686
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

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 243
Stats. Implemented: ORS 243.682 & 243.686
Hist.: ERB 1-1988, f. & cert. ef. 4-25-88

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 243
Stats. Implemented: ORS 243.686(7)
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-025-0045

Hearing on Petitions; Notice; Conduct and Evidence

When a valid petition has been filed and objections or intervening petitions have been timely filed, the hearing generally will be held no later than 21 days after the objection period ends. Ten days' written notice of hearing shall be given to all parties. The hearing 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;

(c) The name of the public employer, labor organization, objectors and intervenors, if any; and

(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 for the purpose of developing 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 unreliable, 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; and

(e) The Board Agent shall determine the order of going forward with the evidence.

(4) If objections are filed to the Board Agent's recommended order, oral argument before the Board on such objections generally will be held not later than 21 days after the objections are received.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.682(2)
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

115-025-0050

Appropriate Bargaining Unit(s)

(1) 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) 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. However, the Board may not certify as appropriate, in any school district with 50 or more public employees, a bargaining unit that includes both academically licensed and unlicensed or nonacademically licensed employees. Academically licensed units may include but are not limited to teachers, nurses, counselors, therapists, psychologists, child development specialists and similar positions.

(3) Bargaining unit(s) shall not include elected officials, persons appointed to serve on boards and commissions, incarcerated persons working under Section 41, Article I of the Oregon Constitution, or managerial, confidential or supervisory employees. However, 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 & 243
Stats. Implemented: ORS 243.682(1)
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

115-025-0055

Notice of Election; Improper Use of Notice

Notices of election shall be furnished by a Board agent to the public 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 public employer shall promptly post notices in areas given maximum access to affected employees. 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.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.686
Hist.: ERB 1-1980, f. & ef. 1-9-80

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 upon 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 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 unless otherwise expressly agreed by the parties. 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 not less than ten days before the date of the election in an on-site election or not less than 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. 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 may be conducted on site or by mail. In a mail ballot election, a ballot that is not delivered through the U.S. mail or in person by the voter is void. 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 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. 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 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 prior to 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 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 a tally of ballots in person or by mail. The tally shall be deemed furnished to the parties on the date 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 filing must be timely whether or not the challenged ballots are sufficient in number to affect the results of the election. Failure to file timely objections 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 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. 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. The dispute will be processed in the manner set forth in OAR 115-035-0060(4). 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.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.686
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

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 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 115-025-0030(2).

(2) Authorization Cards.

(a) An authorization card submitted in support of a petition for certification or unit clarification without an election 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 on the card may be used to obtain certification of the named labor organization as the exclusive bargaining representative without an election.

(b) An employee authorization card must be signed and dated within the 180-day period before the petition was filed.

(c) Authorization cards shall be submitted in alphabetical order.

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

(3) Eligible Employees. For the purpose of determining the adequacy of the authorization cards, 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(2) that a petition has been filed seeking a certification or clarification without an election, it will 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 of a name on 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 a copy of the list under subsection (4) of this rule.

(b) The Board Agent shall determine whether a majority of employees on the list supplied by the employer has signed valid authorization cards. 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 card 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(2). Hearings on such objections shall be conducted under 115-025-0045.

(8) Certification. If it is determined in a petition seeking certification without an election that a majority of an appropriate unit has signed valid authorization cards 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. 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 cards 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 seeking to be included in the existing bargaining unit, the Board shall add that unrepresented 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 243.766(7)
Stats. Implemented: ORS 243.682
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

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 an election, including objections to the scope of the appropriate bargaining unit, shall be expedited and resolved under the procedures of OAR 115-025-0045. If an election is requested under 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 243.766(7)
Stats. Implemented: ORS 243.682
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

115-025-0075

Petition for Representation or Unit Clarification Election

(1) Petition for Election. 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 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. After a petition for unit clarification without an election has been filed under 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 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.

(2) 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 to the effect 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. The showing of interest shall be submitted in alphabetical order.

(3) Notice and Election. 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. The Board Agent shall require the employer to post notice of the election under OAR 115-025-0055 at least 14 days before the election. The election may be conducted on site or by mail. 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 US mail. Ballots not so delivered by the date of the election shall be void. The election shall be completed within 45 days from the date of the petition requesting an election.

(4) Procedures. 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. The election shall follow the procedures in OAR 115-025-0060(4) and (7)–(12).

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.682
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

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 served by a Board Agent on parties disclosed in the petition:

(a) Time for Filing. A petition for certification may be filed at any time after the final action, by the state board of education or by a boundary board, necessary to effect a merger and before 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;

(D) A statement of when final action was taken by the State Board of Education or boundary board necessary to effect a merger and when the merger is effective.

(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 OAR chapter 115, division 025. The notice shall remain posted for at least ten regular school days;

(d) Objections by Surviving District. The surviving school district, within 14 days of the date the notice is posted, 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 showing of interest cards or petitions, as provided for in OAR 115-025-0010(1)(h), 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 or 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)
Stats. Implemented: ORS 243.682 & 330.003
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

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