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EMPLOYMENT RELATIONS BOARD

 

DIVISION 70

UNFAIR LABOR PRACTICE CHARGES IN PRIVATE EMPLOYMENT

115-070-0000

Filing an Unfair Labor Practice Charge

(1) Who May File. An injured party may file a charge alleging that a person(s) has engaged in or is engaging in an unfair labor practice. Such charge shall be filed in triplicate with the Board on forms provided by the Board.

(2) Content of Charge. The charge shall contain the following information:

(a) The name and address of the person making the charge;

(b) The name and address of the person(s) against whom the charge is made;

(c) A description of the nature of the business involved;

(d) 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 statements shall include the names of persons committing specific complained of acts and the dates when such acts allegedly occurred; and

(e) The signature of the person filing the charge.

(3) Supporting Data. At the time the charge is filed, the charging party shall submit a written statement setting forth its version of the relevant facts, including names, dates, and places, together with any documentary evidence which may be relevant to the issues raised by the charge.

(4) Service of Charge. Concurrent with the filing of the charge, the filing party shall serve a copy of the charge upon the person against whom the charge is made and certify such service to the Board.

(5) Filing fee. A filing fee of $300 must be paid at the time the charge is filed. Charges that are filed without a filing fee are subject to dismissal for that reason.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 663.175 & 663.180
Hist.: ERB 1-1980, f. & ef. 1-9-80; 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

115-070-0005

Investigation of Charge

A Board agent shall investigate the charge to determine if an issue of fact or law exists which warrants issuance of a complaint.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.180
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-070-0010

Action When Complaint not Issued

If investigation reveals that no issue of fact or law exists which warrants issuance of a complaint, the Board may decline to issue a complaint. Such declination shall be in writing explaining the grounds thereof.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.180
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-070-0015

Petition for Reconsideration

The charging party shall have 14 days from the date of service to file objections to the declination to issue a 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 charging party shall serve a copy of the request upon all parties of record in the case. 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 663.180
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-070-0020

Issuance of Complaint and Notice of Hearing

If it appears to the Board that proceedings on the charge should be instituted, it shall issue a cause to be served on all affected parties a formal complaint in the name of the Board and a notice of hearing before a Board agent at a place therein fixed and at a time not less than 20 days after service of the complaint and notice of hearing. The complaint and notice of hearing shall be served personally or by certified mail.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.180
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-070-0025

Withdrawal of Complaint

Any complaint issued by the Board may be withdrawn by it prior to the hearing.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.185
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-070-0030

Amendment of Complaint

A complaint may be amended by the Board at its discretion at any time before the issuance of an order based thereon.

Stat. Auth.: ORS 243
Stats. Implemented: ORS 663.185
Hist.: ERB 1-1980, f. & ef. 1-9-80

115-070-0035

Answer to the 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 shall state in the answer that he/she 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. 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 shall set forth any affirmative defenses.

(2) Service of Answer. Upon filing an answer, the respondent shall serve a copy upon the charging party or his/her attorney of record. Proof of such service, setting forth the time and manner thereof, shall be filed with the answer.

(3) 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 663.185(2)
Hist.: ERB 1-1980, f. & ef. 1-9-80; 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

115-070-0040

Hearings

Notice of Hearings:

(1) Time and Place of Hearings. The time and place of hearing will be contained in the complaint and notice of hearing.

(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 Board Agent, in considering a request for postponement, shall consider whether such request 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.

(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 240 & ORS 243
Stats. Implemented: ORS 663.185
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 13-1985, f. 10-29-85, ef. 10-31-85

115-070-0045

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 testimony 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 names and addresses 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 interests of all parties present will be known to those at the hearing.

(6) Burden of Proof. The charging party 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 applicable to civil actions shall apply.

(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 240 & ORS 243
Stats. Implemented: ORS 663.185 & ORS 663.190
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 13-1985, f. 10-29-85, ef. 10-31-85

115-070-0050

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 663.185(2) & ORS 663.190
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

115-070-0055

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 and served on the parties not less than five days before the date set for argument. The party filing the written argument shall 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 not less than five days before the date set for oral argument and copies must be served upon parties of record. 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 shall be filed not more than ten days from date of service of the Order and shall state specifically the grounds thereof. The Board may, at its option, 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 663.185 & ORS 663.195
Hist.: ERB 1-1980, f. & ef. 1-9-80

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