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EMPLOYMENT RELATIONS BOARD

 

DIVISION 40

DISPUTE RESOLUTION IN PUBLIC EMPLOYMENT

115-040-0000

Mediation

(1) Negotiations concerning a new or reopened collective bargaining agreement.

(a) After a 150-calendar-day period of good faith negotiations, or earlier if the parties so agree, either or both parties to a labor dispute may notify the Board of their failure to reach agreement over the terms of a collective bargaining agreement and may request assignment of a mediator. Such notification and request shall be in writing and shall contain a statement as to each issue in dispute and a statement describing when negotiations commenced. Upon receipt of the notification and request, the State Conciliator shall appoint a mediator and notify the parties of the appointment.

(b) The 150-calendar-day period of negotiations begins:

(A) When an exclusive representative is recognized or certified; or

(B) Where the parties are negotiating over the terms of a successor agreement or pursuant to a contractual reopener provision, when the parties meet for the first bargaining session and each party has received the other party's initial proposal.

(c) Any time after 15 days of mediation, either party may declare an impasse. The mediator may declare an impasse at any time during the mediation process. Notification of an impasse shall be filed in writing with the State Conciliator, and copies of the notification shall be submitted to the parties on the same day the notification is filed with the State Conciliator.

(d) Within seven days of the declaration of impasse, each party shall submit to the mediator in writing the final offer of the party, including a cost summary of the offer. Each party's proposed contract language shall be titled "Final Offer." Each party shall submit a copy of the final offer and cost summary to the other party on the same day it is submitted to the mediator. Upon receipt of the final offers and cost summaries, the mediator shall make them public.

(e) A party's cost summary shall separately list each disputed contract proposal in its final offer that is reasonably anticipated to impact the public employer's budget. For the first year of the proposed contract, the cost summary shall show the estimated cost difference between each of the party's proposals and the employer's current budget in the area(s) affected by the proposals. For subsequent proposed contract years, the cost summary shall show the estimated increase in costs that would be incurred by the employer for each such proposal over the costs projected for the prior year of the proposed contract. The cost summary also must show the estimated total cost differences for all disputed proposals. The cost summary must include an explanation of how the estimated costs for each proposal were calculated.

(2) Mid-contract negotiations.

(a) At any time during a 90-day period of expedited negotiations concerning a proposed change in employment relations not covered by a collective bargaining agreement or concerning the renegotiation of contract terms pursuant to ORS 243.702, the parties may jointly request mediation. A joint request must be filed in writing with the State Conciliator and signed by a representative of each party. Upon receipt of a joint request, the State Conciliator shall assign a mediator and notify the parties of the assignment.

(b) Mediation of a labor dispute subject to expedited negotiations shall not continue past the 90-day period. The 90-day period of expedited negotiations begins:

(A) When the employer notifies the exclusive representative in writing of anticipated changes that impose a duty to bargain; or

(B) When a party requests in writing renegotiation of contract terms pursuant to ORS 243.702.

(3) At the request of the Governor, the Board shall instruct the State Conciliator to investigate any existing or imminent labor dispute in the public sector and provide the Governor with a report of the findings.

Stat. Auth.: ORS 240.086(3) & ORS 243.766(7)
Stats. Implemented: ORS 243.712 & ORS 243.650 – ORS 243.782
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1993, f. 9-30-93, cert. ef. 10-1-93; 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 1-1999, f. & cert. ef. 1-28-99; ERB 1-2000, f. & cert. ef. 12-1-00

115-040-0005

Conciliation Service Fees

(1) Interest Mediation: When mediation concerns negotiations over the terms of a collective bargaining agreement, the board will charge a fee for mediation services. The local public employer and the exclusive representative shall each pay one-half of the amount of the fee to the board. The fee charged by the board may not exceed:

(a) $1,000 for the first two mediation sessions ($500 per party);

(b) $500 for the third mediation session ($250 per party);

(c) $750 for the fourth mediation session ($375 per party); and

(d) $1,000 for each additional mediation session ($500 per party).

(2) Grievance Mediation: When mediation concerns a grievance arising under a collective bargaining agreement, a local public employer and an exclusive representative each will be charged $250.

(3) Unfair Labor Practice Mediation: When mediation concerns a pending unfair labor practice complaint, a local public employer and an exclusive representative each will be charged $250.

(4) Interest-Based Training: The Conciliation Service shall offer training in interest-based bargaining, labor/management cooperation, problem solving and similar programs specifically designed for particular local public employer/exclusive representative needs. Fees for such training shall be $2,500 for two-day training programs, $1,500 for one-day refresher training, and $700 for half-day training programs. The fees for facilitations and related travel time shall be $60 per hour.

(5) Billing: For mediation services, parties will be billed when the first mediation session occurs. For training, parties will be billed when the training session occurs, with the employer and exclusive representative sharing equally the costs unless the parties agree otherwise.

(6) Definitions: "Local public employer" means any political subdivision in this state, including a city, county, community college, school district, special district, mass transit district, metropolitan service district, public service corporation or municipal corporation and a public and quasi-public corporation. "Exclusive representative" has the meaning given that term in ORS 243.650(8).

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 240.610(2)
Hist.: ERB 1-1995(Temp), f. 6-26-95, cert. ef. 7-1-95; ERB 5-1995, f. 11-30-95, cert. ef. 12-1-95; 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

115-040-0010

Factfinding

Where the parties to a labor dispute jointly petition the Board to appoint a factfinder within 30 days after the mediator makes public their final offers, the State Conciliator shall acknowledge in writing the request and factfinding shall occur under the following conditions:

(1) Selection of Factfinder(s):

(a) The parties shall have five days after receipt of the State Conciliator's written acknowledgment in which to mutually select their own factfinder(s). If they fail to do so, the Board will submit to them a list of seven qualified factfinders along with a list of Oregon factfindings or interest arbitrations for which each person has issued an award. From the list, each party shall alternately strike three names, with the order of striking being determined by lot. The remaining individual shall be the factfinder;

(b) When both parties desire a panel of three factfinders, they shall so notify the Board and the Board will then submit a list of seven factfinders. From that list each party shall alternately strike two names, with the order of striking being determined by lot. The remaining three persons shall be the factfinders;

(c) The parties shall advise the Board of their choice within five days after receipt of the list. If they fail to do so, the Board shall appoint the factfinder(s) from the list. If, however, one of the parties strikes the names as provided above and the other party fails to do so, the Board shall appoint the factfinder(s) only from the names remaining on the list;

(d) If the factfinder(s) selected or appointed is unable to accept appointment, the parties shall notify the Board and the Board shall then submit another list of names.

(2) Financial or Personal Interest of Factfinder. No person shall serve as a factfinder in any factfinding in which he/she has any financial or personal interest in the result of the factfinding, unless the parties, in writing, waive such disqualification.

(3) Notice of appointment. Upon selection of the factfinder, the parties shall notify the Board and the factfinder of the selection.

(4) Disclosure by Factfinder. Prior to accepting appointment, the prospective factfinder shall disclose any circumstances likely to create an appearance of bias or which otherwise could disqualify the factfinder from serving. Upon receipt of such information, the Board shall immediately disclose it to the parties. If either party then declines to accept the factfinder, the vacancy thus created shall be filled in the same manner as that governing the making of the original appointment.

(5) Vacancies. If any factfinder should resign, die, withdraw, refuse or be unable to, or be disqualified to fulfill the duties of factfinder, the Board shall, upon satisfactory proof, declare the appointment vacant. Vacancies shall be filled in the same manner as that governing the original appointment, and the matter shall be reheard by the new factfinder, unless the parties mutually agree to a different procedure.

(6) Time and Place of Hearing. The factfinder shall fix the time and place for each hearing.

(7) Representation by Counsel. Any party may be represented by counsel or by other authorized representative.

(8) List of Issues. Each party shall submit a written list of the issues, including proposed contract language, if any, dealing with those issues, on which the parties have failed to reach agreement to the factfinder and to the other party at least seven days before the date of the factfinding hearing. If a party fails to timely provide such a list of issues to the other party, the factfinder may set over the hearing if the factfinder determines that such failure resulted in substantial prejudice to a party.

(9) Subpoenas. Subpoenas may be issued by the factfinder or in the manner provided in OAR 115-010-0055.

(10) Attendance at Hearings. The factfinding hearing shall be open to the public unless otherwise mutually agreed to by the parties.

(11) Adjournments. The factfinder, for good cause shown, may adjourn the hearing upon the request of a party or upon the factfinder's own initiative, and shall adjourn when all parties agree thereto.

(12) Oaths. In the discretion of the factfinder, all witnesses who testify at the hearing may be sworn or make an affirmance.

(13) Order of Proceedings. The order of presentation at the hearing shall be as mutually agreed between the parties or as determined by the factfinder.

(14) Exhibits. Each exhibit introduced by a party shall be filed with the factfinder and a copy shall be provided to the other party. The exhibits filed with the factfinder shall be retained by the factfinder unless the parties otherwise agree.

(15) Evidence. The parties may offer such evidence as they desire and shall produce such additional evidence as the factfinder may deem necessary to an understanding and determination of the dispute. The factfinder shall be the judge of the relevancy and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the parties except where any of the parties is absent in default or has waived the right to be present. Parties shall have the right to cross-examine. In making findings of fact and recommendations, the factfinder shall base them on the criteria set out in ORS 243.746(4)(a)-(h).

(16) Factfinding in the Absence of a Party. The factfinder may proceed in the absence of any party, who, after due notice, fails to be present or fails to obtain a continuance or recess. Findings of fact and recommendations shall not be made solely on the default of a party. The factfinder shall require the other party to submit such evidence as required for the making of findings of fact and recommendations.

(17) Closing of Hearing(s). The factfinder shall declare the hearing closed after the parties have completed presenting their cases. If the factfinder allows the filing of post-hearing briefs or other documents, the hearing shall be deemed closed as of the final date set by the factfinder for the filing of such briefs or other documents.

(18) Reopening of Hearings. The hearing may be reopened by the factfinder at any time before the findings of fact and recommendations are made, except if the reopening of the hearing would prevent the issuance of the factfinding report within the time provided by law. Both parties must agree upon an extension of such time limit.

(19) Waiver of Rules. Any party who proceeds with factfinding with knowledge that any provision or requirement of these rules has not been complied with, and who fails to object thereto in writing, shall be deemed to have waived the right to object.

(20) Waiver of Oral Hearing. The parties may provide, by written agreement, for the waiver of oral hearings.

(21) Serving of Notices. Any papers, notices or process necessary or proper for the initiation or continuation of factfinding under these rules may be served upon a party:

(a) By mail addressed to such party or its representative at their last known address; or

(b) By personal service.

(22) Time of Findings of Fact and Recommendations. Not more than 30 days from the date of conclusion of the hearing, the factfinder shall make written findings of fact and recommendations for resolution of the dispute and shall serve such findings and recommendations upon the parties and upon the Board. Service may be personal or by registered or certified mail. The factfinder shall make every effort to notify the parties, at least five days prior to the date of service, of the date upon which service is expected to be made.

(23) Form of Findings of Fact and Recommendations. The findings of fact and recommendations shall be in writing and shall be signed either by the factfinder or by a concurring majority, if there be more than one factfinder.

(24) Expenses. The expenses of witnesses for either side shall be paid by the party producing such witnesses. Expenses of the factfinding, including fees, required travel and other expenses of the factfinder and the expenses of any witnesses or the cost of any proofs produced at the direct request of the factfinder, shall be borne equally by the parties.

(25) Interpretation and Application of Rules. The factfinder shall interpret and apply the foregoing rules which relate to the factfinder's authority and responsibilities. When there is more than one factfinder and a difference arises among them concerning the meaning or application of any such rules, it shall be decided by majority vote.

(26) Parties' Responsibility After Factfinding. Not more than five working days after the findings and recommendations have been sent, the parties shall notify the Board and each other whether or not they accept the recommendations of the factfinder.

(27) Challenges Relating to Bias or Qualifications of Factfinder: A party may challenge a selected or appointed factfinder by charging that the factfinder is biased or not qualified. A petition raising such a challenge must be filed with the Board within 15 days of the selection or appointment of the factfinder. The petition must include a statement of facts upon which the challenge is based. The other party to the underlying labor dispute will be asked to respond to the petition. The Board will hold a hearing on the petition within 10 days of the date of filing. The hearing will be conducted according to the provisions of OAR 115, Division 010 to the extent that they are applicable and practicable in light of the statutory time lines. The Board will issue a final and binding decision regarding the factfinder's neutrality or qualifications within 10 days of the hearing.

Stat. Auth.: ORS 240 & ORS 243.766(7)
Stats. Implemented: ORS 243.712(2)(b), ORS 243.712(2)(c), ORS 243.712(2)(e) & ORS 243.722
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; ERB 2-1993, f. & cert. ef. 12-15-93; 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 1-2000, f. & cert. ef. 12-1-00

115-040-0015

Binding Interest Arbitration

(1) Applicability of Rule. This rule shall apply in all cases concerning which the Board initiates arbitration of a labor dispute relating to negotiations over employment relations.

(2) Court-Ordered Arbitration. When arbitration is ordered by a circuit court pursuant to ORS 243.726(3)(c), the affected employer or labor organization, or both jointly, shall notify the Board of the court order within five days of the date the order was issued. Such notification must be accompanied by a copy of the court order. The Board will initiate arbitration within five days of its receipt of the notification.

(3) Voluntary Arbitration. When an employer and a labor organization, pursuant to ORS 243.706(2) or 243.712(2)(e), agree to submit any or all of the issues in a negotiations labor dispute to arbitration, either party or both may request the Board to initiate arbitration. Such a request must be accompanied by a copy of the agreement to arbitrate. The Board will initiate arbitration within five days of its receipt of the request.

(4) Arbitration Where Strike is Prohibited. When a negotiations labor dispute exists between an employer and a labor organization that represents a bargaining unit that includes employees prohibited from striking by ORS 243.736, the Board shall initiate arbitration when:

(a) The parties have included with their final offers to the mediator a petition to initiate arbitration or, where the labor dispute is subject to expedited negotiations, the 90-day period has expired and a party requests that the Board initiate arbitration. The Board shall notify the parties that arbitration has been initiated;

(b) The labor organization has complied with the notice requirement of section (5) of this rule.

(5) A labor organization that represents a bargaining unit which it contends includes strike-prohibited employees must file notice of such contention with the Board and the employer at least 180 days prior to the expiration of the contract covering such bargaining unit, unless such notice was previously filed and there has been no substantial change in the composition of the unit since that filing, or within 30 days after the labor organization demands bargaining for an initial contract. If the labor organization fails to file such notice and subsequently requests the Board to initiate arbitration, the Board shall notify the employer of the request and the employer shall have ten days to file objections on the basis that the unit does not include strike-prohibited employees or that the unit should be redesignated because it also includes strike-permitted employees. The Board shall resolve such objections prior to the initiation of arbitration.

(6) Selection of Arbitrator:

(a) When the parties are notified by the Board that arbitration is to be initiated they shall have five days after receipt of such notice to mutually select an arbitrator. Where the parties have not selected their own arbitrator within five days after notification by the Board that arbitration is to be initiated, the Board shall submit to the parties a list of seven qualified, disinterested, unbiased persons, including a list of Oregon interest arbitrations and factfindings for which each person has issued an award. Each party shall alternately strike three names from the list. The order of striking shall be determined by lot. The remaining individual shall be designated the arbitrator;

(b) When the parties have not designated the arbitrator and notified the Board of their choice within five days after receipt of the list, the Board shall appoint the arbitrator from the list. However, if one of the parties strikes the names as prescribed in this subsection and the other party fails to do so, the Board shall appoint the arbitrator only from the names remaining on the list.

(7) Arbitration Rules and Procedures:

(a) Financial or Personal Interest of Arbitrator. No person shall serve as an arbitrator in any arbitration proceeding in which he/she has any financial or personal interest in the result of the arbitration, unless the parties, in writing, waive such disqualification;

(b) Notice of Appointment. Upon selection of the arbitrator the parties shall notify the Board and the arbitrator of his/her selection;

(c) Disclosure by Arbitrator. Prior to accepting his/her appointment, the prospective arbitrator shall disclose any circumstances likely to create a presumption of bias or which he/she believes might disqualify him/her as an impartial arbitrator. Upon receipt of such information, the Board shall immediately disclose it to the parties. If either party declines to waive the presumptive disqualifications, the vacancy thus created shall be filled in the same manner as that governing the making of the original appointment;

(d) Vacancies. If any arbitrator should resign, die, withdraw, refuse or be unable to, or be disqualified to perform the duties of his/her appointment, the Board shall, upon satisfactory proof, declare the appointment vacant. Vacancies shall be filled in the same manner as that governing the original appointment, and the matter shall be reheard by the new arbitrator, unless the parties mutually agree to a different procedure;

(e) Time and Place of Hearing. The arbitrator, with the agreement of the parties, shall fix the time and place for each hearing, but the hearing may not be earlier than 30 days following the submission of the final offer packages to the mediator where such packages are submitted;

(f) Representation by Counsel. Any party may be represented by counsel or by other authorized representative;

(g) Last Best Offers. Each party shall submit to the other party a written last best offer package on all unresolved mandatory subjects not less than 14 days prior to the date of hearing. Neither party may change its last best offer package unless pursuant to stipulation of the parties; except that if a party provides notice of a change in its position within 24 hours of the 14-day deadline, the other party will be allowed an additional 24 hours to modify its position;

(h) Subpoenas. Subpoenas may be issued by the arbitrator or in the manner provided in OAR 115-010-0055;

(i) Attendance at Hearings. The arbitration hearing shall be open to the public unless otherwise mutually agreed to by the parties;

(j) Adjournments. The arbitrator, for good cause shown, may adjourn the hearing upon the request of a party or upon his own initiative, and shall adjourn when all parties agree thereto;

(k) Oaths. In the discretion of the arbitrator, all witnesses who testify at the hearing may be sworn or make an affirmance;

(l) Order of Proceedings. The order of presentation at the hearing shall be as mutually agreed between the parties or as determined by the arbitrator;

(m) Exhibits. Each exhibit introduced by a party shall be filed with the arbitrator and a copy shall be provided to the other party. The exhibits filed with the arbitrator shall be retained by him unless the parties otherwise agree, or unless the arbitrator otherwise permits;

(n) Evidence. The parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. The arbitrator shall be the judge of the relevancy and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the parties except where any of the parties is absent in default or has waived his/her right to be present. Parties shall have the right to cross-examine;

(o) Arbitration in the Absence of a Party. The arbitrator may proceed in the absence of any party, who, after due notice, fails to be present or fails to obtain a continuance or recess. Findings of fact and order shall not be made solely on the default of a party. The arbitrator shall require the other party to submit such evidence as he/she may require for the making of findings of fact and order;

(p) Closing of Hearing(s):

(A) The arbitrator shall declare the hearing closed after the parties have completed presenting their testimony and/or exhibits;

(B) If the arbitrator allows the filing of post-hearing briefs or other documents, the hearing shall be deemed closed as of the final date set by the arbitrator for the filing of such briefs or other documents.

(q) Waiver of Rules. Any party who proceeds with arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state his/her objection thereto in writing, shall be deemed to have waived his/her right to object;

(r) Waiver of Oral Hearing. The parties may provide, by written agreement, for the waiver of oral hearing;

(s) Serving of Notices. Any papers, notices or process necessary or proper for the initiation or continuation of arbitration under these rules may be served upon a party:

(A) By mail addressed to such party or his/her attorney at his/her last known address; or

(B) By personal service.

(t) Time of Arbitration Findings and Order. Not more than 30 days from the date of conclusion of the hearing, the arbitrator shall make written findings of fact and promulgate a written opinion and order upon the issues presented to him/her and upon the record made before him/her and shall serve such findings, opinion and order upon the parties and the Board. Services may be personal or by registered or certified mail. The arbitrator shall select only one of the last best offer packages submitted by the parties;

(u) Expenses. The expenses of witnesses for either side shall be paid by the party producing such witnesses. Expenses of arbitration, including fees, required travel and other expenses of the arbitrator and the expenses of any witnesses or the cost of any proofs produced at the direct request of the arbitrator, shall be borne equally by the parties;

(v) Interpretation and Application of Rules. The arbitrator shall interpret and apply these rules insofar as they relate to his/her powers and duties;

(w) Reopening of Hearing. The hearing may be reopened by the arbitrator on his/her own motion, or on the motion of either party for good cause shown, at any time before the arbitration findings and order are made, but, if the reopening of the hearing would prevent the making of the findings of fact and arbitration order within the specific time provided by law, the matter may not be reopened, unless both parties agree upon an extension of such time limit.

(8) Criteria. The arbitrator shall base his/her findings, opinions and order upon the following criteria, giving first priority to subsection (a) and secondary priority to subsections (b) to (h):

(a) The interest and welfare of the public.

(b) The reasonable financial ability of the unit of government to meet the costs of the proposed contract giving due consideration and weight to the other services, provided by, and other priorities of, the unit of government as determined by the governing body. A reasonable operating reserve against future contingencies, which does not include funds in contemplation of settlement of the labor dispute, shall not be considered as available toward a settlement.

(c) The ability of the unit of government to attract and retain qualified personnel at the wage and benefit levels provided.

(d) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays and other paid excused time, pensions, insurance, benefits, and all other direct or indirect monetary benefits received.

(e) Comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities. As used in this subsection, "comparable" is limited to communities of the same or nearest population range within Oregon. Notwithstanding the provisions of this subsection, the following additional definitions of "comparable" apply in the situations described as follows:

(A) For any city with a population of more than 325,000, "comparable" includes comparison to out-of-state cities of the same or similar size;

(B) For counties with a population of more than 400,000, "comparable" includes comparison to out-of-state counties of the same or similar size; and

(C) For the State of Oregon, "comparable" includes comparison to other states.

(f) The CPI-All Cities Index, commonly known as the cost of living.

(g) The stipulations of the parties.

(h) Such other factors, consistent with subsections (a) to (g) of this section as are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. However, the arbitrator shall not use such other factors, if in the judgment of the arbitrator, the factors in subsections (a) to (g) of this section provide sufficient evidence for an award.

(9) Employment Conditions Pending Arbitration. During the pendency of arbitration proceedings that occur after the expiration of a previous collective bargaining agreement, all wages and benefits shall remain frozen at the level last in effect before the agreement expired, except that no public employer shall be required to increase contributions for insurance premiums unless the expiring collective bargaining agreement provides otherwise. Merit step and longevity step pay increases shall be part of the status quo unless the expiring collective bargaining agreement expressly provides otherwise.

(10) Arbitration Decision Final and Binding; Record of Hearing. The Arbitration decision shall be final and binding upon the parties if based on the factors set forth in section (8) of this rule and if supported by competent, material and substantial evidence on the whole record of the arbitration hearing. The parties shall cause to be made a record of all testimony, by tape recording or other method. The arbitrator shall resolve any dispute over the type of record to be made. The arbitrator or one of the parties, as agreed by the parties or directed by the arbitrator, shall maintain custody of such record, along with all other evidence produced by the parties, for at least 180 days after the date of the arbitration decision. However, when the hearing is recorded by a court reporter but the parties agree not to have the reporter's notes transcribed, those notes may remain in the custody of the reporter.

(11) Challenges Relating to Bias or Qualifications of Arbitrator: A party may challenge a selected or appointed arbitrator by charging that the arbitrator is biased or not qualified. A petition raising such a challenge must be filed with the Board within 15 days of the selection or appointment of the arbitrator. The petition must include a statement of facts upon which the challenge is based. The other party to the underlying labor dispute will be asked to respond to the petition. The Board will hold a hearing on the petition within 10 days of the date of filing. The hearing will be conducted according to the provisions of OAR 115, Division 010 to the extent that they are applicable and practicable in light of the statutory time lines. The Board will issue a final and binding decision regarding the arbitrator's neutrality or qualifications within 10 days of the hearing.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.706(2), ORS 243.742 & ORS 243.746
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1987(Temp), f. & ef. 11-3-87; ERB 1-1988, f. & cert. ef. 4-25-88; ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; 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 1-2000, f. & cert. ef. 12-1-00

115-040-0017

Interest Arbitration Enforcement

Pursuant to ORS 243.752, a party alleging that another party is refusing or failing to comply with an interest arbitration award may seek enforcement of the award by filing an unfair labor practice complaint with the Board charging a violation of 243.672(1)(f) or (2)(c). The Board generally will hold an expedited hearing on the matter, if requested to do so, under the procedures provided by OAR 115-035-0065.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.752
Hist.: ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83; ERB 1-1984, f. & ef. 4-11-84

115-040-0018

Notice of Intent to Strike

The exclusive representative shall send notice of intent to strike to the Board and the employer by certified mail. The notice shall state the reasons for the intent to strike including the unresolved bargaining issues. The Board and the employer must receive the certified notice ten days prior to the first date of the strike. However, the Board will not declare a strike unlawful when the exclusive representative has entrusted the notice to the postal service for certified mailing at such time that timely delivery could reasonably be expected, provided that both the Board and the employer have actually received written notice of intent to strike at least ten days before the strike begins.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.726(2)(c)
Hist.: ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1998, f. & cert. ef. 1-26-98

115-040-0020

Petition to Declare a Strike Unlawful

When it is alleged in good faith by a public employer that a labor organization representing a group of its employees has declared or authorized a strike by such employees and that such strike is or would be in violation of ORS 243.726 or 243.732, the employer may petition the Board for a declaration that the strike is or would be unlawful. The petition shall contain a detailed statement of the facts upon which petitioner bases its request for a declaration of an unlawful strike. A copy of the petition shall be served upon the labor organization which is alleged to have declared or authorized the unlawful strike and proof of service shall be provided to the Board. Upon receipt of such a petition, the Board shall either dismiss the petition or set it for a hearing before the Board. If a hearing is set, the Board will expedite processing of the petition to attempt to issue a decision prior to the beginning of the strike. The procedure for the hearing shall be that set out in OAR 115-035-0042. Notice of the hearing shall be by personal service or certified mail, and shall be personally served or mailed at least seven days prior to the date of the hearing, unless the parties, with the approval of the Board, otherwise agree. The Board shall issue its decision within seven days of the close of the hearing on the petition.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.726(4)
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 5-1980, f. 10-14-80, ef. 10-17-80; ERB 2-1998, f. & cert. ef. 1-26-98

115-040-0030

Panel of Arbitrators and Factfinders

(1) The State Conciliation Service of the Employment Relations Board shall maintain a panel of qualified labor arbitrators and factfinders for referral, upon request, to the parties to a labor dispute. Panel members are expected to conform to the ethical standards and procedures set forth in the code of professional responsibility for arbitrators of labor disputes as approved by the National Academy of Arbitrators.

(2) Persons seeking to be listed on the panel must complete and submit an application form. The form may be obtained from the State Conciliation Service of the Employment Relations Board. Upon receipt of a completed application, including the application fee in subsection (4) of this section, the Chair and the Conciliator will review the completed application in light of the criteria set forth below and decide whether to include an applicant on the panel. Each applicant will be notified in writing of the decision:

(a) General Criteria. Applicants will be accepted on the panel if they:

(A) Are experienced in decision-making roles in the resolution of collective bargaining or labor relations disputes; or

(B) Have extensive experience in relevant positions in collective bargaining; or

(C) Have relevant academic experience at the college or university level; and

(D) Are capable of conducting an orderly hearing, can analyze testimony and exhibits and can prepare clear and concise findings and awards within reasonable time limits, and appear, based on references, to be acceptable to the parties.

(b) Proof of Qualification. The qualifications listed in subsection (2)(a) of this rule, are preferably demonstrated by the submission of actual arbitration awards and/or factfinding reports prepared by the applicant while serving as an impartial arbitrator or factfinder chosen by the parties to disputes. Equivalent experience acquired in training, internship or other development programs, or experience such as that acquired as a hearing officer or judge in labor relations controversies also may be considered.

(c) Advocacy:

(A) An advocate is a person who or a member of a firm/business which represents employers or labor organizations, as an employee, attorney or consultant, in matters related to collective bargaining;

(B) No advocate shall be listed on the panel. A person who becomes an advocate while listed on the panel must notify the Conciliator immediately.

(d) Duration of Listing. A member will be removed from the panel by the Chair and Conciliator whenever the member:

(A) No longer meets the criteria for admission;

(B) Has been repeatedly and flagrantly delinquent in submitting awards;

(C) Has refused to make reasonable and periodic reports to the State Conciliation Service, as required;

(D) Has been the subject of complaints by parties who use the State Conciliation Service Panel and facilities and cause for removal has been shown;

(E) Is determined to be unacceptable to the parties who use the State Conciliation Service Arbitration and Factfinding Panel. The determination of unacceptability may be based on the State Conciliation Service records showing the number of times the arbitrator/factfinder's name has been proposed to the parties and the number of times it has been selected; or

(F) Fails to pay the annual fee in subsection (4) of this section within 90 days of billing;

(3) Procedures for Cancellation or Suspension of a Listing. The Conciliator, at the direction of the Board Chair, will review the reasons alleged for the cancellation or suspension. Prior to a cancellation or suspension of a listing, a panel member will be provided 30 days written notice of the proposed action. The notice will specify the action that is proposed, the reasons for the action, and the results of any review conducted by the Conciliator into this matter. The notice will also provide an opportunity for the panel member to submit a response or information to the Board Chair, or a designated representative, showing why the listing should not be canceled or suspended. The Board Chair's decision shall be in writing and shall be a final decision.

(4) An applicant to the panel of qualified arbitrators and factfinders shall pay a $50 application fee. A member of the panel shall pay an annual fee of $100 to remain on the panel.

(5) Nothing contained herein should be construed to limit the right of parties to select jointly any arbitrator or arbitration procedure acceptable to them.

(6)(a) Arbitrators and factfinders selected by the parties pursuant to State Conciliation Service procedures shall promptly notify the Service of their selection;

(b) Arbitrators and factfinders selected pursuant to State Conciliation Service procedures shall promptly provide the State Conciliation Service with copies of decisions or recommendations.

Stat. Auth.: ORS 243.766(7)
Stats. Implemented: ORS 243.722(2) & 243.746(2)
Hist.: ERB 1-1984, f. & ef. 4-11-84; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 5-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 5-2007, f. 12-17-07, cert. ef. 1-1-08

115-040-0032

Lists of Arbitrators or Factfinders

(1) When, pursuant to statute or at the request of a party, the State Conciliator submits a list of arbitrators or factfinders to the parties to a dispute, the names on the list shall be drawn at random from the panel described in OAR 115-040-0030. However, the State Conciliator will attempt to comply with a joint request of the parties to restrict the list in any of the following ways:

(a) Only arbitrators who are listed on the labor arbitration panel of the American Arbitration Association;

(b) Only arbitrators whose resumes filed with the State Conciliator show that they are engaged exclusively or primarily in the practice of arbitration or mediation;

(c) Only arbitrators who reside in Oregon;

(d) Only arbitrators who reside in Oregon or Washington;

(e) Only arbitrators who have issued at least two factfinding recommendations under ORS 243.722 or at least one interest arbitration award under ORS 243.752, if the dispute at issue is to be resolved through interest arbitration.

(2) Parties may jointly request a second list of arbitrators or factfinders. A second list will consist of names drawn at random from the panel without regard to any restrictions requested by the parties.

(3) Financial or Personal Interest of Arbitrator. No person shall serve as an arbitrator in any arbitration proceeding in which he/she has any financial or personal interest in the result of the arbitration, unless the parties, in writing, waive such disqualification;

(4) Disclosure by Arbitrator. Prior to accepting his/her appointment, the prospective arbitrator shall disclose any circumstances likely to create a presumption of bias or which he/she believes might disqualify him/her as an impartial arbitrator. Upon receipt of such information, the Board shall immediately disclose it to the parties. If either party declines to waive the presumptive disqualifications, the vacancy thus created shall be filled in the same manner as that governing the making of the original appointment;

(5) Vacancies. If any arbitrator should resign, die, withdraw, refuse or be unable to, or be disqualified to perform the duties of his/her appointment, the Board shall, upon satisfactory proof, declare the appointment vacant. Vacancies shall be filled in the same manner as that governing the original appointment, and the matter shall be reheard by the new arbitrator, unless the parties mutually agree to a different procedure.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.722(2) & ORS 243.746(2)
Hist.: ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2000, f. & cert. ef. 12-1-00

115-040-0033

Arbitration Subpoenas

(1) In an arbitration proceeding under ORS 243.706, the arbitrators, or a majority of the arbitrators, may:

(a) Issue subpoenas on their own motion or at the request of a party to the proceeding to:

(A) Compel the attendance of a witness properly served by either party; and

(B) Require from either party the production of books, papers and documents the arbitrators find are relevant to the proceeding;

(b) Administer oaths or affirmations to witnesses; and

(c) Adjourn a hearing from day to day, or for a longer time, and from place to place.

(2) The arbitrators shall promptly provide a copy of a subpoena issued under this section to each party to the arbitration proceeding.

(3) The arbitrators issuing a subpoena under this section may rule on objections to the issuance of the subpoena.

(4) If a person fails to comply with a subpoena issued under this section or if a witness refuses to testify on a matter on which the witness may be lawfully questioned, the party who requested the subpoena or seeks the testimony may apply to the arbitrators for an order authorizing the party to apply to the circuit court of any county to enforce the subpoena or compel the testimony. On the application of the attorney of record for the party or on the application of the arbitrators, or a majority of the arbitrators, the court may require the person or witness to show cause why the person or witness should not be punished for contempt of court to the same extent and purpose as if the proceedings were pending before the court.

(5) Witnesses appearing pursuant to subpoena, other than parties or officers or employees of the public employer, shall receive fees and mileage as prescribed by law for witnesses in ORS 44.415(2)

Stat. Auth.: ORS 243.766(7), 240.086(3)
Stats. Implemented: ORS 243.706
Hist.: ERB 1-2000, f. & cert. ef. 12-1-00

115-040-0035

Filing of Arbitrator and Factfinder Decisions

All arbitrators and factfinders listed on the State Conciliation Panel pursuant to OAR 115-040-0030 shall provide the State Conciliation Service with one copy of all written decisions or recommendations issued concerning a labor dispute involving public employees, public employers or labor organizations as defined by ORS 243.650.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 243.722(2) & ORS 243.746(2)
Hist.: ERB 11-1985, f. 10-29-85, ef. 10-31-85

115-040-0040

Exemption from Disclosure Under ORS 192.410 to 192.505 and Inadmissibility of Mediation Communication Pursuant to OEC Rule 408

(1) Except to the extent that rules of this agency adopted pursuant to Oregon Laws 1997, chapter 670 make mediation communications confidential, any mediation communications that are public records, as defined in ORS 192.410(4), are not confidential unless the substance of such communication is confidential under state or federal law. Mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.

(2) Nothing in this rule affects any confidentiality created by other law.

(3) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408).

(4) The words and phrases used in this rule have the same meaning as given to them in Oregon Laws 1997, chapter 670, section 11.

Stat. Auth.: ORS 243.766(7), ORS 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - ORS 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98

115-040-0041

Applicability of Mediator Disclosure Rules

(1) OAR 115-040-0041 to 115-040-0044 apply only to mediations in which:

(a) The agency is a party or is mediating a dispute as to which the agency has regulatory authority; and

(b) That are:

(A) Conducted under OAR 115-040-0000, ORS 243.712, OAR 115-075-0000 and ORS 662.425; or

(B) Involves other joint requests for mediation from labor and management.

(2) OAR 115-040-0041 to 115-040-0044 do not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in Oregon Laws 1997, chapter 670, section 7.

(3) Nothing in OAR 115-040-0041 to 115-040-0044 affects any confidentiality created by other law.

(4) The words and phrases used in OAR 115-040-0041 to 115-040-0044 have the same meaning as given to them in Oregon Laws 1997, chapter 670, sections 7 and 11.

Stat. Auth.: ORS 243.766(7), ORS 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - ORS 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98

115-040-0042

Mediator May Not Disclose Mediation Communications in Subsequent Proceedings

Except as provided in this rule, a mediator may not disclose or be compelled to disclose mediation communications in mediations described in OAR 115-040-0041(1) and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless all the parties to the mediation and the mediator agree in writing to the disclosure.

(1) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, a mediator may disclose mediation communications to the extent that those communications may be necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(2) A mediator may disclose confidential mediation communication directly related to child abuse or elder abuse if the mediator is a person who has a duty to report child abuse under ORS 419B.010 or elder abuse under 124.050 to 124.095.

(3) A mediator may disclose confidential mediation communications if the mediator reasonably believes that disclosing the communication is necessary to prevent a party from committing a crime that is likely to result in death or bodily injury to any person.

(4) A mediator may disclose a mediation communication if, as a condition of a professional license, the mediator is compelled by law or the rule of a court to disclose a communication related to the conduct of another licensed professional.

(5) When the only parties to the mediation are public bodies, mediation communications and mediation agreements are not confidential except to the extent those communications or agreements are exempt from disclosure under ORS 192.410 to 192.505 and may be disclosed and introduced into evidence in any subsequent proceeding.

(6) When the parties to the mediation include a private party and two or more public bodies, mediation communications are not confidential if the laws, rules or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential and may be disclosed and introduced into evidence in any subsequent proceeding.

(7) When a person acts as the mediator in the mediation and also acts as the hearing officer in a contested case involving some or all of the same matters, the communications in the mediation are not confidential and may be disclosed and introduced into evidence in any subsequent proceeding.

(8) A mediator may disclose mediation communications described in OAR 115-040-0043 and such communications may be introduced into evidence in any subsequent proceeding to the extent provided in that rule.

(9) The terms of any mediation agreement are not confidential, may be disclosed and may be introduced as evidence in any subsequent proceeding.

Stat. Auth.: ORS 243.766(7), ORS 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - ORS 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98

115-040-0043

Mediator May Disclose Certain Mediation Communications

For the purposes of OAR 115-040-0042, a mediator may disclose the following mediation communications and such communications may be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding:

(1) A request for mediation;

(2) Communications from the Conciliation Service establishing the time and place of mediation;

(3) Notification of declaration of impasse submitted to the Board;

(4) Communication from the Conciliation Service establishing the time for filing final offers;

(5) Final offers and cost summaries submitted by the parties to the mediators;

(6) Petitions to initiate factfinding or interest arbitration submitted to the Board;

(7) Strike notices submitted to the Board.

Stat. Auth.: ORS 243.766(7), ORS 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - ORS 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98

115-040-0044

Notice of Disclosure of Mediation Communications

(1) When a mediation is of a type described in OAR 115-040-0041(1), the agency must provide written notice to all parties to the mediation and the mediator informing them of the extent to which mediation communications may be confidential.

(2) The notice required by this rule must be in writing and must include:

(a) An explanation of the agency's role in the mediation, including:

(A) Whether the agency is a party; and

(B) Whether the mediator is an employee, contractor or agent of the agency.

(b) A statement that:

(A) Mediation communications in mediations not described in OAR 115-040-0041(1) are not confidential unless provided otherwise by rules of this agency adopted pursuant to Oregon Laws 1997, chapter 670, section 3, or by other state or federal law; and

(B) The parties to the mediation may agree in writing to less confidentiality and greater disclosure of mediation communications.

(c) At least one of the following:

(A) A copy of OAR 115-040-0040 and OAR 115-040-0041 to 115-040-0044;

(B) A summary of OAR 115-040-0040 and OAR 115-040-0041 to 115-040-0044; or

(C) Citations to the rules affecting the confidentiality of mediation communications and a statement indicating where a copy of these rules can be obtained.

(3) Any notice required by this rule is not confidential and may be disclosed.

Stat. Auth.: ORS 243.766(7), ORS 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - ORS 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98

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