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EMPLOYMENT RELATIONS BOARD

 

DIVISION 35

UNFAIR LABOR PRACTICE COMPLAINTS IN PUBLIC EMPLOYMENT

115-035-0000

Filing an Unfair Labor Practice Complaint

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

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

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

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1994, f. 6-23-94, cert. ef. 7-1-94; 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 3-1998, f. & cert. ef. 1-26-98; ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11; ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17

115-035-0005

Investigation of Complaint

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

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 8-1985, f. 10-29-85, ef. 10-31-85; ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17

115-035-0010

Amendment of Complaint

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

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

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

115-035-0015

Withdrawal of Complaint

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

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

115-035-0020

Dismissal of Complaint

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

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

115-035-0030

Service of Notice and Complaint

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

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 10-2016, f. 11-9-16, cert. ef. 2-1-17

115-035-0035

Answer to Complaint

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

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

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

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

115-035-0040

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

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

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

115-035-0055

Representation Costs

(1) General:

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

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

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

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

(C) $3,000 for a case that requires one day of hearing (the hearing need not last a full day).

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

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

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

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

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

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

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

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

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

(2) Representation Costs Order.

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

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

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

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

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

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

115-035-0057

Attorney Fees For Appeals

Pursuant to ORS 243.676(2)(e), the Board shall designate the amount of and award attorney fees to the prevailing party on an appeal of a Board Order, subject to the following:

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

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

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

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

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83; ERB 1-1984, f. & ef. 4-11-84; ERB 8-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1989(Temp), f. 6-15-89 & cert. ef. 6-23-89; ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14; ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17

115-035-0060

Expedited Procedures for Unfair Labor Practice Complaints

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

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

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

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

(c) A statement of the complexity of the issues;

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

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

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

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

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

(b) The date of the proposal; and

(c) Any date that respondent allegedly refused to bargain over the proposal.

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

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

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

(c) Post-hearing briefs will be permitted only if ordered by the Board.

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

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

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

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

(a) Its schedule;

(b) Its workload;

(c) The complexity of the facts and legal issues in the case;

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

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

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

115-035-0070

Consent Orders

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

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

115-035-0075

Civil Penalty; Fee Reimbursement

Any request for civil penalty under ORS 243.676(4) or for reimbursement of a filing fee under ORS 243.672(3) must be included in a party’s complaint or answer. The request must include a statement as to why a civil penalty or filing-fee reimbursement is appropriate, with a clear and concise statement of the facts alleged in support of the statement. A party may move to amend its complaint or answer to request a civil penalty or reimbursement of a filing fee at any time before the evidentiary hearing concludes.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83; ERB 1-1984, f. & ef. 4-11-84; 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 10-2016, f. 11-9-16, cert. ef. 2-1-17

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