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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 alleging that a person(s) has engaged in or is engaging in an unfair labor practice as defined in ORS 243.672. An original and three copies of complaint shall be filed with the Board on forms approved by the Board.

(2) Contents of Complaint. The complaint shall contain the following information:

(a) The name and address of the person(s) making the complaint (referred to in these rules as complainant);

(b) The name and address of the person(s) against whom the complaint is made (referred to in these rules as respondent);

(c) A clear and concise statement of the facts constituting each alleged violation, followed by the specific section and subsection of the law allegedly violated. Such statement shall include relevant individuals (by name or initials), places, and dates; and followed by the specific section and subsection the law allegedly violated;

(d) The signature of the person filing the complaint.

(3) 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.

(4) 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 243.672(3)
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

115-035-0005

Investigation of Complaint

A Board Agent shall investigate the complaint to determine if an issue of fact or law exists which warrants a hearing. Information submitted by a party as part of the investigatory process is confidential and will not be furnished under any circumstances to other parties except with the permission of the submitting party.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(1)(b)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 8-1985, f. 10-29-85, ef. 10-31-85

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 which warrants a hearing, it shall be dismissed.

(2) Upon Request of Complainant. Complainant may amend the complaint on its own motion at any time before service of the complaint. Thereafter, amendments to the complaint may be made only with the approval of the Board Agent. If amendment is allowed, respondent shall be given a reasonable period of time to amend its answer.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-035-0015

Withdrawal of Complaint

Complainant may not withdraw a complaint after issuance of a recommended order without a showing of good cause unless the respondent agrees with the withdrawal.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 3-1995, f. 11-30-95, cert. ef. 12-1-95

115-035-0020

Dismissal of Complaint

If investigation reveals that no issue of fact or law exists which warrants a hearing, the Board may dismiss the complaint. Notice of such dismissal shall be served on the parties personally or by mail.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(1)(b)
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-035-0025

Petition for Reconsideration of Dismissal

The complainant shall have 14 days from the date of service to file objections to the dismissal of the complaint and request reconsideration by the Board. This request shall contain a complete statement setting forth the facts and reasons upon which the request for reconsideration is based. The complainant shall serve a copy of the request upon all parties of record in the case and furnish the Board with proof of service. The Board, at its discretion, may grant reconsideration. In reviewing a petition for reconsideration, the Board may set the issue for oral argument.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(1)(b)
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-035-0030

Service of Notice and Complaint

If a question of fact or law exists which warrants a hearing, the Board shall serve a notice of hearing and (if not provided previously) a copy of the complaint upon the party against which the complaint is made, either personally or by registered or certified mail.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.676(1)(c)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91

115-035-0035

Answer to Complaint

(1) Answer. The respondent shall have 14 days from date of service of the complaint in which to file an answer. All allegations in the complaint not denied by the answer, unless the respondent 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 shall specifically admit by way of answer any undisputed allegations and 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) Service of Answer. Upon filing an answer, the respondent shall serve a copy upon the complainant or its representative of record. Proof of such service, setting forth the time and manner thereof, shall be filed with the answer.

(4) 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.

(5) Failure to File. If the respondent fails to file a timely answer, absent a showing of good cause, it will not be allowed to present evidence at the hearing as to the facts alleged. Respondent will be restricted to making legal arguments.

(6) Filing Fee. A filing fee of $300 must be paid by the respondent when the answer is filed. The answer will not be considered to be filed until the fee is paid.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243.672(3) & 243.676
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

115-035-0040

Notice of Hearings

(1) Time and Place of Hearings. The time and place of hearing will be set by the Board Agent and notice thereof served personally or by registered or certified mail upon all parties of record at least ten days in advance of the hearing date. The hearing will be set no later than 20 days from the date of service of the complaint or amended complaint unless both parties agree to extend the hearing to a date certain with Board Agent approval.

(2) Postponements. Any party who desires a postponement shall, promptly upon receipt of notice of the hearing, make written request of the Board Agent for such postponement, stating the reason therefor in detail. The written request should state whether the other party agrees, objects or has no objection to a postponement. The Board Agent, in considering a request for postponement, shall consider whether such request was mutually agreeable to the parties and was promptly made. For good cause shown, the Board Agent may grant such postponement and may, at any time, order a postponement upon his/her own motion. In no event will the hearing be postponed beyond 20 days from date of service of the complaint or amended complaint unless both parties agree to extend the hearing to a date certain with Board Agent approval.

(3) Consolidation or Severance of Cases. The Board Agent on motion of a party or on the Board Agent's own motion may consolidate or sever cases or charges for purposes of hearing and/or issuance of a Recommended Order.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(1)(c)
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

115-035-0042

Conduct of Hearings

(1) General Procedure:

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

(b) Parties may make opening statements.

(c) Parties may present evidence in support of their respective positions. Cross-examination of witnesses will be allowed opposing party(ies).

(d) Parties may make closing arguments.

(2) Conference During Hearings. In any proceedings, the Board Agent may, in his/her discretion, call the parties together for a conference prior to the taking of testimony or may recess the hearing for such conference to resolve evidentiary or procedural matters. The results of such conference shall be summarized on the record.

(3) Stipulation as to Facts. The parties to any proceeding or investigation may, by stipulation and subject to approval by the Board or its Agent, agree upon the facts or any portion thereof involved in the controversy. Such stipulation shall be binding upon the parties thereto and may be used as evidence in the case.

(4) Continuances. If it appears, on the motion of a party, that further evidence or argument should be received, the Board Agent may, in his/her discretion, continue the hearing. The date of such continued hearing may be fixed at the time of hearing or by later written notice to the parties.

(5) Appearances. Parties shall enter appearances at the beginning of the hearing and give their name and address in writing to the Board Agent conducting the hearing who will include the same in the record. The Board Agent may, in addition, require appearances to be stated orally so that the identity and interest of all parties present will be known to those at the hearing.

(6) Burden of Proof. The complainant shall have the burden of proof and shall also have the burden of going forward with the evidence. Respondent shall have the burden of proving affirmative defenses. Opportunity shall be afforded to all parties of record participating to examine each witness and to state objections to evidence offered.

(7) Rules of Evidence. The rules of evidence shall be:

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

(b) Irrelevant, immaterial or unduly repetitious evidence shall be excluded;

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

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

(8) Conduct at Hearing. All parties to hearings, their counsel, and spectators shall conduct themselves in a respectful manner. Demonstrations of any kind will not be permitted. Failure to comply with the Board Agent's effort to maintain order are grounds for removal from the hearing.

(9) Rights of Party not Answering or Failing to Specifically Deny an Allegation. A party that fails to answer a complaint or fails to deny an allegation will not be allowed to present or rebut evidence as to the facts alleged. However, the party may present legal argument.

(10) Post-Hearing Briefs. When post-hearing briefs are permitted by a Board Agent, they must be filed within 14 days from the conclusion of the hearing. Extension of time for filing will be permitted only upon good cause shown.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(1)(c)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 8-1985, f. 10-29-85, ef. 10-31-85

115-035-0045

Motions; Intervention

(1) Motions. All motions, including motions for intervention, shall be typewritten or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. Written motions shall be filed with the Board agent, together with proof of service of a copy thereof upon the other parties.

(2) Motions to Intervene. Any person desiring to intervene in any proceeding shall make a motion for intervention no later than seven days before the date set for hearing, stating the grounds upon which such person claims to have an interest in the proceeding. The Board agent may permit intervention to such extent and upon such terms as he/she may deem proper.

(3) Filing Fee. A filing fee of $300 must be paid by the intervenor when the motion for intervention is filed. The motion will not be considered to be filed until the fee is paid.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243.676(1)(c) & 243.672(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80; 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

115-035-0050

Post-Hearing Procedures

(1) Recommended Order. The Board agent shall prepare and serve on the parties a Recommended Order consisting of Rulings on Motions and Evidentiary Matters, Findings of Fact, Conclusions of Law and a Recommended Order.

(2) Objections to Recommended Order. The parties shall have 14 days from date of service of the Recommended Order to file specific written objections with the Board. (See also OAR 115-010-0090.)

(3) Board Review.

(a) Oral or Written Argument. If objections are filed to the Recommended Order, parties will be given an opportunity to present oral argument to the Board. If a party desires to submit written argument in lieu of oral argument, it must be filed with the Board not less than five days before the date set for argument and the party filing the written argument shall serve a copy on all parties of record in the case and provide proof of service to the Board;

(b) Memorandum in Aid of Oral Argument. If parties wish to submit written memorandum in aid of oral argument in addition to argument, it must be filed with the Board and served on the parties not less than five days before the date set for oral argument. Parties shall provide the Board with proof of service;

(c) Review of Record. Review by the Board of a Board agent's Proposed Rulings on Motions and Evidentiary Matters, Findings of Fact, Conclusions of Law and a Recommended Order shall be confined to the record. The Order of the Board shall be in writing and shall be sent to the parties.

(4) Petitions for Reconsideration or Rehearing. Petitions for reconsideration or rehearing may be filed but not later than 14 days from date of service of the Order. Petitions shall state specifically the grounds for reconsideration or rehearing. The Board may, at its discretion, set such petitions for oral argument.

(5) Service of Documents. All documents shall be served upon named parties unless there is a representative of record, in which case documents may be served on the representative.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(2) & ORS 243.676(3)
Hist.: ERB 1-1980, f. & ef. 1-9-80

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. An award of representation costs shall not exceed $5,000 except such limitation shall not apply in cases where civil penalties would be appropriate;

(b) 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, each party may be regarded as a prevailing party and may file a petition for representation costs for the portion of the case upon which it prevailed, provided that:

(A) Separate charges in a complaint are based on clearly distinct and independent operative facts; i.e. the charges could have been plead 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) A complaint presents two or more scope of bargaining questions which are dealt with by the Board in separate conclusions of law.

(c) "Representation costs" shall include only the following:

(A) The actual amount of fees charged by the representative for services directly connected with prosecuting or defending against the unfair labor practice charge; or

(B) Where the prevailing party is not charged a specific fee for the case (because the representative is paid on a retainer basis or is an employee of the party, for example), the reasonable value of the representative's services directly connected with prosecuting or defending against the unfair labor practice charge. "Reasonable value" is equivalent to the fees charged by practitioners of similar skill and experience under paragraph (c)(A) of this section, and thus includes such secretarial and other overhead costs as are customarily included in those fees.

(2) Petition for Representation Costs. A prevailing party must file a petition for representation costs within 21 days of the date of the issuance of the Board Order in the case for which costs are requested. A copy of the petition, together with a supporting affidavit, shall be served upon the opposing party at the time the petition is filed and proof of service shall be provided to the Board. The Board will dismiss petitions which do not comply with this rule. The petition shall include:

(a) A statement of the facts upon which petitioner relies in claiming that it is the prevailing party; and

(b) A statement of the amount of the costs requested, supported by an affidavit that describes in detail the actual amount of the fees incurred by petitioner or, where the petitioner was not charged fees, the basis for the amount of costs requested;

(3) Objections to Petitions for Representation Costs.

(a) Opposing parties shall have 21 days from the date of service of such petitions to file written objections. Such objections shall be served on the petitioner at the time the objections are filed and proof of service shall be provided to the Board.

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

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

(4) Designating the Amount of Representation Costs. The Board shall consider the following factors in designating the amount of representation costs to be awarded:

(a) Consistency with the policies and purposes of the PECBA, including but not limited to the following considerations:

(A) The issue in the case was one of first impression before the Board; or

(B) Respondent was guilty of an aggravated or pervasive unfair labor practice or the repetition of a type of conduct previously found to be unlawful; or

(C) A complaint or a defense was frivolous or otherwise without merit; or

(D) A party was an individual who, due to the circumstances of the case, had to rely upon his/her personal financial resources.

(b) The appropriate charges for the services rendered, based on:

(A) The time and labor customarily required in the same or similar cases;

(B) Hourly charges customarily made by representatives for rendering similar services;

(C) The novelty and difficulty of the issues and the amount of preparation, research or briefing required; and

(D) The skill requisite to perform the services properly.

(c) Awards in similar cases.

(5) Findings and Order. The Board shall make findings and issue an order awarding representation costs pursuant to these rules and based upon the petition and objections filed by the parties. Consistent with subsection (1)(a) and section (4) of this rule, the Board may award all or a portion of the costs requested. The Board will not act on a petition until the appeal period has run or, where an appeal has been filed, during the pendency of the appeal. Filings that do not strictly comply with these rules will be dismissed.

Stat. Auth.: ORS 240 & 243
Stats. Implemented: ORS 243.676(2)(d) & 243.676(3)(b)
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

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. In all other respects, petitions for attorney fees and objections to such petitions shall be filed in accordance with OAR 115-035-0055(2) and (3).

(2) 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.

(3) The Board shall consider the factors listed in OAR 115-035-0055(4) in designating the amount of attorney fees to be awarded. Additionally, the Board may consider whether a remand of a case did or did not result in a significant modification of the original Board Order. The Board shall issue attorney fee awards in accordance with OAR 115-035-0055(5). An award of attorney fees on appeal shall not exceed $5,000 except such limitation shall not apply in cases where civil penalties would have been appropriate as a remedy in the Board proceeding.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676(2)(e)
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

115-035-0060

Expedited Procedures for Unfair Labor Practice Complaints Pertaining to Scope of Collective Bargaining Negotiations

(1) Purpose of Procedures:

(a) This procedure is designed to reduce the time required for a determination of whether a contract proposal is a mandatory, permissive or prohibited subject of bargaining;

(b) When expedited consideration is granted in accordance with this rule, a Board order generally shall be issued within 45 days of the date on which the expedited complaint is filed.

(2) Eligibility for Expedited Consideration Within Board Discretion:

(a) Upon request of a complainant, expedited consideration may be given only to complaints which are limited to allegations that respondent has unlawfully refused, under ORS 243.672(1)(e) or (2)(b), to bargain over a mandatory subject(s) of bargaining or has unlawfully pursued a permissive subject of bargaining. Further, the filing of such a limited complaint shall not as a matter of right entitle complainant to expedited consideration. The decision to consider a complaint under this procedure is solely within the discretion of the Board. The Board's decision will be made on the basis of its schedule and work load, its investigation of the charge and its estimation of the relative importance to the parties and to the public of a more rapid decision on the question presented;

(b) Any complaint which alleges matters in addition to allegations that respondent has unlawfully refused, under ORS 243.672(1)(e) or (2)(b), to bargain over a mandatory subject(s) of bargaining will not be eligible for expedited consideration. In the event the Board determines that a complaint merits expedited consideration under this section, only scope of bargaining matters presented therein will be considered; the same or substantially similar allegations contained in other complaints filed by the same complainant against the same respondent will be stricken by the Board or its agents.

(3) Filing of Complaints. Expedited complaints filed under this section shall be filed in accordance with Board OAR 115-035-0000, but in addition they must be accompanied by the following:

(a) An affidavit setting forth the:

(A) Precise language of the last bargaining proposal on a subject(s) in dispute;

(B) Date(s) when the proposal(s) was made; and

(C) Date(s) when the respondent allegedly refused to bargain over the proposal(s).

(b) A specific statement of any legal authority in support of complainant's contention that respondent has unlawfully refused to bargain over the proposal(s).

(4) Processing Complaints. 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 which warrants a hearing, the complaint will be served on the respondent and the notice of hearing served on both 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 on request of the Board;

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

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676
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

115-035-0065

Expedited Consideration of Complaints Alleging that an Unfair Labor Practice Has Been Committed During or Arising Out of the Collective Bargaining Procedures Set Forth in ORS 243.712 and 243.722

(1) Whenever a complaint is filed alleging that an unfair labor practice has been committed during or arising out of the collective bargaining procedures set forth in ORS 243.712 and 243.722, that complaint shall be processed in accordance with OAR 115-035-0060(4) and this Division of the Board's rules where applicable, except that.

(2) The hearing on the complaint may be conducted by the Board, rather than its agent; and, if so, there will be no Recommended Order or post-hearing procedures in connection therewith; rather, the Board will issue final Rulings on Motions and Evidentiary Matters, Findings of Fact, Conclusions of Law and an Order, generally within 45 days of the date on which the expedited complaint is filed.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676 & ORS 243.726(5)
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 4-1998, f. & cert. ef. 1-26-98

115-035-0068

Expedited Procedures for Other Unfair Labor Practice Complaints

(1) Purpose of Procedure. This procedure is designed to reduce the time required for the processing of complaints which meet the standards set out below and which do not come within OAR 115-035-0060 and 115-035-0065. When expedited consideration is granted in accordance with this rule, a Board Order generally shall be issued within 45 days of the date on which the expedited complaint is filed.

(2) Eligibility for Expedited Consideration Within Board Discretion. The decision to expedite a complaint under this rule is solely within the discretion of the Board. The Board's decision will be made on the basis of its schedule and work load, its investigation of the charge and its estimation of the complexity of the facts and legal issues in the case, the necessity for prompt action and the possibility of immediate and irreparable injury, loss or damage to the complainant, or person(s) on whose behalf the complaint has been filed, if the complaint is not processed on an expedited basis.

(3) Filing of Complaints. Expedited complaints filed under this section shall be filed in accordance with Board OAR 115-035-0000, but in addition they must be accompanied by the following:

(a) An affidavit setting forth the:

(A) Complainant's estimation of the length of the hearing and complexity of the issues;

(B) Specific harm, injury or loss anticipated if the complaint is not expedited; and

(C) Specific reason the harm, injury or loss is irreparable.

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

(4) Processing Complaints. Expedited complaints under this section shall be processed in accordance with OAR 115-035-0060(4) and this Division of the Board's rules where applicable.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676
Hist.: ERB 8-1985, f. 10-29-85, ef. 10-31-85

115-035-0070

Consent Orders

If the parties to a contested case settle all factual, legal and remedial issues prior to the issuance of a final order, such settlement agreement may be submitted to the Board in the form of a consent order. The consent order must contain a statement of the case and a recitation of the complete agreement of the parties. Upon approval by the Board, the consent order shall be issued. In the event the parties do not submit an agreement regarding representation costs, the Board will consider timely representation cost petitions submitted under OAR 115-035-0055.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.676
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

115-035-0075

Civil Penalty; Fee Reimbursement

(1) The Board may award a civil penalty of up to $1,000 to a prevailing party in an unfair labor practice case when as a result of a hearing:

(a) The Board finds that the party committing an unfair labor practice did so repetitively, knowing that the action taken was an unfair labor practice and took such action disregarding that knowledge; or that the action constituting an unfair practice was egregious; or

(b) The Board dismisses a complaint and finds that the complaint was frivolously filed or was filed with the intent to harass the prevailing party.

(2) Pleadings. Any request for a civil penalty must be included in a party's complaint or answer. The request must include a statement as to why a civil penalty is appropriate in the case under these rules, 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 at any time prior to the conclusion of the evidentiary hearing.

(3) Filing fee reimbursement. The Board may order filing fee reimbursement to the prevailing party in any case in which the complaint or answer is found to have been frivolous or filed in bad faith. A request for filing fee reimbursement must comply with the procedure established in section (2) of this rule.

Stat. Auth.: ORS 243.766(7) & ORS 240.086(3)
Stats. Implemented: ORS 243.672(3) & ORS 243.676(4)
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

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