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EMPLOYMENT RELATIONS BOARD

 

TEACHER LAYOFF/RECALL: ARBITRATION

DIVISION 85

ARBITRATION PROCEDURES FOR REDUCTION OR RECALL OF
TEACHER STAFF PURSUANT TO ORS 342.934(7)

115-085-0000

Appeals from a Decision on Reduction in Staff or Recall

An appeal from a decision on reduction in staff or recall shall be by arbitration under the rules provided in this Division or by a procedure mutually agreed upon by the employee representatives and the employer. An appeal under the Board rules is initiated by a written request for arbitration which shall be filed with the Board not later than 60 days from the occurrence which is being appealed. An appeal under a procedure mutually agreed upon by the employee representatives and the employer shall not be governed by the rules provided in this Division except to the extent agreed upon.

Stat. Auth.:
Stats. Implemented: ORS 342.934(7)
Hist.: ERB 14-1985, f. 10-29-85, ef. 10-31-85

115-085-0005

Selection of Arbitrator

(1) Upon written request for initiation of arbitration pursuant to ORS 342.934(7), the Board shall submit to the parties a list of five qualified, disinterested arbitrators. Each party shall alternately strike two names from the list. The order of striking shall be determined by lot. The remaining individual shall be designated the arbitrator.

(2) 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 section and the other party fails to do so, the Board shall appoint the arbitrator only from the names remaining on the list.

Stat. Auth.:
Stats. Implemented: ORS 342.934(7)
Hist.: ERB 14-1985, f. 10-29-85, ef. 10-31-85

115-085-0010

Arbitration Rules and Procedures

(1) 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.

(2) Notice of Appointment and Hearing Issue(s). Upon selection of the arbitrator the parties shall notify the Board and the arbitrator of his/her selection and of the issue(s) which will be before the arbitrator in the hearing.

(3) Disclosure by Arbitrator of Disqualification. Prior to accepting his/her appointment, the prospective arbitrator shall disclose any circumstances likely to create a presumption of bias or which he 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.

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

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

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

(7) Subpoenas. Subpoenas will be issued only by request of the Board not less than five days prior to the date set for the arbitration hearing. Parties should make their request to the Board in the manner provided in OAR 115-010-0055.

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

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

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

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

(12) 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.

(13) 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 have waived his/her right to be present. Parties shall have the right to cross-examine. In making his/her findings of fact and award, the arbitrator shall consider the factors set forth in ORS 342.934(7).

(14) 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. The arbitrator shall not render findings of fact and award 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 award.

(15) Multiple Reductions. At the arbitrator's discretion upon request from either party, appeals from multiple reductions may be considered in a single arbitration.

(16) 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 of 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.

(17) 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 in writing, shall be deemed to have waived his/her right to object.

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

(19) 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 attorney at his last known address; or

(b) By personal service.

(20) Time of Arbitration Findings and Order. No more than 30 days from the date of conclusion of the hearing, the arbitrator shall issue written findings of fact, opinion and award based 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. Service may be personal or by registered or certified mail. The findings, opinion and award shall be based upon factors prescribed in these rules and law.

(21) 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.

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

(23) Arbitrator's Authority. The arbitrator is authorized to reverse the staff reduction decision or the recall decision made by the district only if the district:

(a) Exceeded its jurisdiction;

(b) Failed to follow the procedure applicable to the matter before it;

(c) Made a finding or order not supported by substantial evidence in the whole record; or

(d) Improperly construed the applicable law.

Stat. Auth.: ORS 240 & ORS 243
Stats. Implemented: ORS 342.934(7)
Hist.: ERB 14-1985, f. 10-29-85, ef. 10-31-85

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