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EMPLOYMENT RELATIONS BOARD

 

DIVISION 60

PRIVATE EMPLOYEE REPRESENTATION

 

115-060-0000

Representation Petitions

(1) Who may file:

(a) A petition for certification of a private employee representative may be filed by an employee, group of employees, or any individual or labor organization acting in their behalf, alleging that a substantial number of employees wish to be represented for collective bargaining and that the employer declined to recognize their representative;

(b) Petitions for certification of private employee representative may be filed by a private employer alleging that one or more individuals or labor organizations have presented to it a request to be recognized or continue to be recognized as exclusive representative and that the employer has a good faith doubt as to the continued majority status of the incumbent labor organization based on reasonable objective standards;

(c) A petition for decertification may be filed by an employee or group of employees, alleging that a substantial number of employees no longer want the certified or recognized individual or labor organization to represent them.

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

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 12-1985, f. 10-29-85, ef. 10-31-85

115-060-0005

Petitions for Clarification or Amendment of Bargaining Unit

(1) Petitions for clarification or amendment of certification may be filed by the recognized or certified representative or by the private employer when no question of representation exists. The petition must be submitted in writing on a form approved by the Board. The petitioner shall designate one or more of the following subsections on the form to indicate the clarification issue(s) the petitioner intends to raise. After the filing of objections, if any, the Board Agent may determine the issue raised by the petition. If the Board Agent determines that the issue raised is different than that designated on the form, the Board Agent shall determine whether the petition complies with the requirements of the appropriate subsection(s).

(2) When the issue raised by the clarification petition is one of employee status under ORS 663.005(3), the petition may be filed at any time; except that where a position sought to be excluded is expressly by title included within the unit description, a petition may be filed only during the open period provided for in OAR 115-060-0015(4). The Board may order a self-determination election among the affected employees as a result of a petition filed by a labor organization under this subsection of this rule, if the Board determines that an election would be appropriate to further the policies expressed in ORS Chapter 663.

(3) When the issue raised by the clarification petition is whether certain positions are or are not included in a bargaining unit under the express terms of a certification description or collective bargaining agreement, a petition may be filed at any time; except that the petitioning party shall be required to exhaust any grievance in process that may resolve the issue before such a petition shall be deemed timely by the Board.

(4) When the issue raised by the clarification petition is whether certain unrepresented positions should be added to an existing bargaining unit, the petition must be supported by a 30 percent showing of interest among the unrepresented employees sought to be added to the existing unit. If the employees sought to be added to the unit occupy positions that existed and were filled at the time of the most recent certification or recognition agreement, the petition must be filed during the open period provided for in OAR 115-060-0015(4) and will be subject to the provisions of OAR 115-060-0015(1) and (3). If the employees sought to be added to the unit occupy positions that were created or were filled after the most recent certification or recognition agreement, the petition may be filed at any time and will not be subject to the provisions of OAR 115-060-0015. If the Board determines that it would be appropriate to add the unrepresented positions to the existing bargaining unit, the Board shall order a self-determination election in which the unrepresented employees will vote either to be represented within the existing bargaining unit or for no representation. The election shall be conducted by a Board Agent in accordance with the provisions of OAR 115-060-0050 and 115-060-0055, to the extent such rules are applicable to a self-determination election. If a majority of the unrepresented employees who vote cast ballots in favor of representation, the existing bargaining unit shall be clarified to include the positions of the unrepresented employees.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.020
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 2-1998, f. & cert. ef. 1-26-98

115-060-0010

Contents of Petition

(1) Certification of Private Employee Representative Filed by an Employee/Group of Employees/Individual/Labor Organization. A petition for certification of private employee representative filed by an employee/group of employees/individual/labor organization, shall contain the following:

(a) Name, address, telephone number of the private employer, as well as the name of a multi-employer association, if such organization is involved in the unit requested;

(b) The address(es) of the establishment involved;

(c) The general nature of the employer's business;

(d) A description of the bargaining unit claimed to be appropriate for the purpose of exclusive representation by the petitioner. Such description shall indicate the general classifications of employees sought to be included and those sought to be excluded and the approximate number of employees in the unit claimed to be appropriate;

(e) Name, address and telephone number of the recognized or certified exclusive representative, if any, and the date of prior certification or recognition and the expiration date of any applicable contract, if known to the petitioner;

(f) Names, address(es) and telephone numbers of any other interested labor organizations, if known to the petitioner;

(g) Whether a strike or picketing is in progress at the establishment involved, and, if so, the approximate number of employees participating, and the date such strike or picketing commenced;

(h) A statement as to whether a valid election has been held within the alleged unit or at the establishment within the preceding 12 months;

(i) Any other relevant facts;

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

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

(l) A petition shall be accompanied by a showing of interest of not less than 30% of the employees in the unit alleged to be appropriate. "Showing of interest" means the evidence of support a petitioner must show in a bargaining unit or proposed bargaining unit before its petition will be acted upon. The showing may be made by authorization cards or petitions which must include a statement of a desire by affected employees to be represented by the petitioner for the purposes of collective bargaining and which must be signed and dated by employees in the unit during the 90 days preceding the filing of the petition; by dues records or payroll deduction records showing the employees to be current members of a petitioning organization; or, by an existing or the most recently expired bargaining agreement in the unit, to which the petitioning organization was a party;

(m) If a petition was filed with the National Labor Relations Board, state what action, if any, was taken.

(2) Certification of Private Employee Representative Filed by Private Employer.

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

(b) A petition shall contain all of the information set forth in section (1) of this rule, except subsections (j) and (l) thereof.

(3) Decertification of Private Employee Representative Filed by an Employee/Group of Employees/Individual/Labor Organization.

(a) A petition for decertification shall contain the following:

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

(B) A petition shall contain the information set forth in section (1) of this rule; and

(C) A petition shall be accompanied by a showing of interest of not less than 30 percent of the employees in the unit alleged to be appropriate.

(b) "Showing of interest" means the evidence of support a petitioner must show in a bargaining unit or proposed bargaining unit before its petition will be acted upon. The showing may be made by authorization cards or petitions which must be signed and dated by employees in the unit during the 90 days preceding the filing of the petition; by dues records or payroll deduction records showing the employees to be current members of the petitioning organization; or, by an existing or the most recently expired bargaining agreement in the unit, to which the petitioning organization was party.

(4) Clarification of Unit or Amendment of Certification Filed by the Recognized Individual/Labor Organization/Private Employer. A petition shall, in addition to setting forth the information required by section (1) of this rule, except subsections (d) and (l) thereof, further contain the following:

(a) A description of the present bargaining unit and the date of the certification or recognition;

(b) Proposed clarification or amendment of the unit; and

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

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 12-1985, f. 10-29-85, ef. 10-31-85

115-060-0015

Timeliness of Petitions

(1) Election Bar. No election may be held for a bargaining unit or a subdivision of one in which a valid election has been held during the preceding 12-month period.

(2) Contract Bar. No representation election shall be conducted during the term of any lawful collective bargaining agreement between an employer and a labor organization. However, an agreement with a term of more than three years shall be a bar for only the first three years of its term.

(3) Certification Bar. The certification of an exclusive bargaining representative will serve as a bar to an election for a period of one year from the date of certification unless:

(a) The certified labor organization has dissolved or has become defunct; or

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

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

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

(4) Open Period for Filing. A petition for an election where a contract exists must be filed not more than 90 days and not less than 60 days before the end of the contract period. If a contract is for more than three years, a petition for election may be filed not more than 90 days and not less than 60 days before the end of the expiration of the first three ears of the contract or any time after three years from the effective date of the contract. However, if a new contract is negotiated after the third year of the contract, and prior to the filing of a petition for an election, the new contract shall serve as a contract bar.

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 12-1985, f. 10-29-85, ef. 10-31-85

115-060-0020

Validity of Showing of Interest

The showing of interest submitted pursuant to OAR 115-060-0010(1) and (3) shall not be furnished to any of the parties. The Board or its agents shall determine the adequacy of the showing of interest and such decision shall not be subject to collateral attack.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-060-0025

Withdrawal or Dismissal of Petition

(1) Withdrawal of Petition. A petitioner may withdraw its petition with the approval of the Board or its agent. If a petition is withdrawn after the Recommended Order is issued, the withdrawal will be granted with prejudice and the petitioner may not submit a new petition for the bargaining unit for a period of six months from the date the withdrawal was approved.

(2) Dismissal of Petition. If the Board Determines after an investigation that the petition has not been timely or properly filed, that no valid question concerning the representation of employees exists in an appropriate unit, or that the petition should not be processed for other reasons, it may request the party filing such a petition to withdraw the petition without prejudice or, in the absence of such withdrawal, it may dismiss the petition. Such action may be taken by the Board at any time prior to the closing of the case. A petitioner may, within 14 days of the date of service of the dismissal, request reconsideration of such action by the Board. This request shall contain a complete statement setting forth the facts and reasons upon which the request is based. On its own motion, the Board may or may not hear oral argument on a request for reconsideration. The Board may affirm the dismissal, or set the dismissal aside and remand the matter for hearing.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-060-0028

Posting Notice of Petition

Upon receipt of a petition under OAR 115-060-0000, a Board Agent will cause a notice of the petition to be posted in the work areas granting maximum access to the employees in the existing or proposed unit. Copies of the notice shall be served on the private employer and any known exclusive representative. The notice shall set forth:

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

(2) A description of the unit involved; and

(3) A statement that parties and interested persons will have 14 days from the date of the notice to file:

(a) Objections to the appropriateness of the proposed unit;

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

(c) Any other objections to the petition;

(d) Petition to intervene as provided in OAR 115-060-0030.

(4) Interested persons may notify the Board Agent of their objections. Upon good cause shown, the Board Agent may call an interested person as a witness.

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 12-1985, f. 10-29-85, ef. 10-31-85

115-060-0030

Intervention

(1) An employee, a group of employees or an individual or labor organization acting in their behalf may intervene as a candidate for representation of the bargaining unit if it files a motion to intervene and supports its motion with a showing of interest of ten percent of the employees in the bargaining unit. A labor organization may intervene for the purpose of representing a bargaining unit of employees different than that sought by the petitioner, but including some of the employees in the bargaining unit proposed by the petitioner. In such case, it must file a motion supported by a showing of interest of 30% percent of the employees in its proposed unit.

(2) A labor organization currently certified or recognized as the exclusive representative of all or a major portion of the employees in the requested bargaining unit will be included as a party in interest in any hearing on the petition and included on the ballot in any resulting election unless it files a disclaimer pursuant to OAR 115-060-0055(3).

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 12-1985, f. 10-29-85, ef. 10-31-85

115-060-0035

Consent Election Agreement

The parties may waive a hearing and enter into a consent election agreement. Such agreement shall include a description of the bargaining unit, time and place of the election and the payroll period to be used in determining the employees eligible to vote. The bargaining unit set out in the consent agreement shall be deemed an appropriate bargaining unit when the consent agreement is approved by the Board or its agent. The parties may agree to a mail ballot election with the approval of the Board or its agent.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-060-0040

Hearing on Petitions; Notice; Conduct and Evidence

When a valid petition has been filed and the parties, including timely objectors or intervenors, after a reasonable time, are unable to settle the issues raised by the petition in a manner approved by a Board agent, the matter shall be set for hearing. Ten days' written notice of hearing shall be given to all parties. The notice shall include, but need not be limited to:

(1) Notice:

(a) A statement of the time, place and nature of the hearing;

(b) A description of any proposed bargaining unit(s) which may be involved;

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

(d) A statement of the legal authority and jurisdiction under which the hearing is being held.

(2) Notice not Part of Record. The contents of the notice shall not be a part of the hearing record, and any party wishing to rely upon these as exhibits shall make an appropriate submission at the hearing.

(3) Conduct and Evidence. Hearings under this section are considered investigatory. There is no burden of proof. Their purpose is to develop a full factual record to be considered by the Board. The rules of evidence for hearings conducted under this section shall be:

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

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

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

(d) Evidence objected to may be received by the Board agent who will rule on its admissibility or exclusion when he/she issues a Recommended Order;

(e) The Board agent shall determine the order of going forward with the evidence; and

(f) See procedures set out in OAR 115-010-0035 through 115-010-0105.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.025
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-060-0045

Appropriate Bargaining Unit(s)

(1) A bargaining unit may consist of all employees of the employer, craft unit, plant unit, or subdivision thereof, if found to be appropriate by the Board. See ORS 663.020(1)(a), (b) and (c) for statutory exceptions.

(2) In considering whether a bargaining unit is appropriate, the Board shall consider such factors as community of interest (e.g., similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders, common supervisor, etc.), wages, hours and other working conditions of the employees involved the history of collective bargaining and the desires of the employees. The Board may determine a unit to be an appropriate unit although some other unit might also be appropriate.

(3) Bargaining unit(s) shall not include statutory exclusions as defined in ORS 663.005(3)(a) through (i).

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.020
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-060-0050

Notice of Election; Improper Use of Notices

(1) Notices of election shall be furnished by a Board agent to the private employer for suitable posting. Such notices shall set forth the details and procedures for the election, the appropriate unit, the employee eligibility period, and date(s), hour(s) and place(s) of the election and shall contain a sample ballot. The private employer shall promptly post notices in areas giving maximum access to affected employees.

(2) The reproduction of any document purporting to be a copy of the Board's official ballot, other than one completely unaltered in form and content and clearly marked "sample" on its face, which suggests either directly or indirectly to employees that the Board endorses a particular choice, may constitute grounds for setting aside an election upon objections properly filed or upon motion of the Board.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.030
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-060-0055

Election Procedures

(1) Eligibility to Vote. Private employees eligible to vote in an election will be those employed on the date of the election and who were employed on a payroll date agreed upon by the parties or on a date specified by the Board. The Board may, at its discretion, include as eligible voters seasonal employees, employees on layoff, or other employees who have reasonable expectations of continued employment.

(2) List of Eligible Voters. The private employer shall submit an alphabetical list of eligible voters, their names, addresses and job classifications to each labor organization which will appear on the ballot and to the Board at least ten days before the date of the on-site election or ten days before the date set for the Board to mail out ballots in a mail ballot election unless otherwise expressly agreed by the parties.

(3) Disclaimer. A labor organization may request in writing to have its name removed from the ballot disclaiming any representation interest for the employees in the unit. Such disclaimer must be filed not less than ten days before the date of the election. When a disclaimer is filed and accepted after a consent agreement for an election is signed or after an election is ordered, the Board will not entertain a petition filed by the disclaiming organization for the bargaining unit for a period of six months from acceptance of the disclaimer.

(4) Voting. Voting shall be by secret ballot with an opportunity to vote for any one of the candidates on the ballot or for no representation. The election shall be conducted on site or it may be conducted by mail. For purposes of scheduling an election by mail, the date on which ballots are to be returned shall be the date of the election. The choice on the ballot receiving the majority of valid votes cast shall be adjudged the winner. If there are only two choices on the ballot in an initial election or runoff election and the balloting results in a tie vote, the Board Agent shall certify that no representative has been chosen. These provisions apply to all representation elections.

(5) Runoff Election. In any representation election where there are more than two choices on the ballot and none of the choices receive a majority of the valid votes cast, a runoff election shall be conducted. The ballot in a runoff election shall contain the two choices on the original ballot that received the largest number of votes. Employees eligible to vote in the original election and who are still employees on the date of the runoff election shall be eligible to vote.

(6) Observers. Any party may be represented at the polling place(s) by observers of its own selection except that employer observers cannot be supervisors of employees involved in the election. Labor organization observers must be eligible voters. The number and the function of the observers shall be determined by the Board Agent conducting the election.

(7) Challenged Ballots. Any party or the Board Agent may challenge, for good cause, the eligibility of any person to participate in the election. The ballots of such challenged persons shall be impounded.

(8) Tally of Ballots. Upon the conclusion of the ballot count, the Board Agent shall furnish the parties a tally of ballots in person or by mail. The tally shall be deemed furnished on the day of the ballot count.

(9) Objections to Conduct of Election or Conduct Affecting the Results of the Election. Within ten days after the tally of ballots has been furnished, any party of record may file with the Board an original and one copy of objections to the conduct of the election or conduct affecting the results of the election, which shall contain a clear and concise statement of the reasons therefor. Such filings must be timely whether or not the challenged ballots are sufficient in number to affect the results of the election. Failure to comply with this subsection shall be grounds for dismissal of the objections. Copies of such objections shall be served simultaneously on the other parties by the party filing them, and a statement of service shall be provided to the Board.

(10) Certification of Representative or Results of Election. If no objections are filed within ten days; and, if the challenged ballots are insufficient in number to affect the results of the election, the Board Agent shall forthwith issue to the parties a certification of the results of the election, including certification of representative, where appropriate.

(11) Resolution of Objections and Challenged Ballots. When timely objections are filed or where the challenged ballots are sufficient in number to affect the results of the election, the Board Agent shall conduct an investigation and shall, when appropriate, issue a notice of hearing designating a Board Agent to hear the matters alleged and to issue a report and recommendations. The objecting or challenging party shall bear the burden of proof and of going forward in the hearing. If the Board Agent exercised a challenge because the voter's name was not on the list of eligible voters, the party seeking to have the vote counted shall have the burden of proof and the burden of going forward. The findings and recommendations shall be brought before the Board in the manner provided in these rules for all other Board Agent findings and recommendations.

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 663.030
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 12-1985, f. 10-29-85, ef. 10-31-85

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