Current through Register Vol. 63, No. 9, September 1, 2024
(1) A unit clarification petition may be
filed to determine whether there should be certain changes to an existing
bargaining unit or its exclusive representative, or to resolve certain
questions about an existing bargaining unit. Specifically, a unit clarification
petition may be filed to determine the following types of questions:
(a) whether certain unrepresented employees
should be added to an existing bargaining unit (the petitioner can request
either a card check or an election process);
(b) whether certain employees are "public
employees," "supervisory employees," "managerial employees," or "confidential
employees," as those terms are defined by the Public Employee Collective
Bargaining Act;
(c) whether certain
employees should be included or excluded from a bargaining unit based on the
contract recognition clause included in the parties' collective bargaining
agreement;
(d) whether a certain
group of employees should be transferred from their existing bargaining unit to
a different, currently represented bargaining unit;
(e) whether an existing bargaining unit
should be redesignated because it includes certain employee(s) who should not
be included in the bargaining unit based on the statutory standard for an
appropriate bargaining unit;
(f)
whether multiple bargaining units represented by the same bargaining
representative should be merged into a single bargaining unit;
(g) whether the certification or recognition
of a bargaining representative should be amended, such as when there is a
change in the labor organization's affiliation, or a change to the name of the
labor organization or the public employer; or
(h) whether a current certification should be
revoked.
(2) All unit
clarification petitions must be completed on a form provided by the Board. Each
type of unit clarification has its own filing requirements (e.g., the rules
regarding the showing of interest, when the petition may be filed, type of
unit, and who may file), as set forth below.
(3) Unit Clarification Petition to Add
Unrepresented Employees to Existing Bargaining Unit (by Card Check or
Election):
(a) A labor organization may file a
unit clarification petition to add unrepresented employees to an existing
bargaining unit. The petitioner may request that the Board determine whether
the majority of employees in the petitioned-for group desire to be added to the
bargaining unit by conducting a card check or an election.
(b) The petitioned-for group must not include
employees who are represented by another labor organization at the time the
petition is filed.
(c) If the
petitioned-for group includes employees who occupy positions that existed and
were filled at the time of the most recent certification or recognition
agreement, the contract bar applies and the petition must be filed in the open
period. The petition also will be subject to the election and certification
bars.
(d) If the employees in the
petitioned-for group occupy positions that were created or were filled since
the most recent certification or recognition agreement, the petition may be
filed at any time.
(e) If any
objections to a petition to add employees to a bargaining unit are received,
the designated Board Agent may determine the issues raised by the petition. If
the Board Agent determines that the issue raised is different from that
designated on the form, the Board Agent will determine whether the petition
complies with the requirements of the appropriate subsection(s) for adding
unrepresented employees to a bargaining unit.
(4) Adding by Card Check:
(a) A labor organization may file a unit
clarification petition to add a group of unrepresented employees to an existing
unit by card check. The petition requires a showing of interest from more than
fifty percent (50%) of the employees in the group to be added to the existing
bargaining unit. The showing of interest document must comply with OAR
115-025-0021(4) (showing of interest requirements for card check), including by
indicating that the signer understands that the document may be used to obtain
certification without an election.
(b) Unrepresented employees will be added to
an existing bargaining unit by card check under ORS
243.682(2)(a)
and this rule, if the Board finds that:
(A) a
majority of employees in the group of employees seeking to be included in the
existing bargaining unit have signed authorizations designating the labor
organization specified in the petition; and
(B) no other labor organization is certified
or recognized as the exclusive representative of any of the employees in the
group of unrepresented employees seeking to be included.
(5) Adding by Election:
(a) A labor organization may file a unit
clarification petition to add a group of unrepresented employees to an existing
bargaining unit by election. The petition requires a showing of interest from
at least thirty percent (30%) of employees in the group to be added to the
existing bargaining unit. The showing of interest document must comply with OAR
115-025-0021 (showing of interest requirements).
(b) If the Board determines the petition
requirements have been met, the Board will order an election in which the
unrepresented employees will vote either to be represented within the existing
bargaining unit or for no representation.
(6) Unit Clarification Petition to Determine
Public Employee Status:
(a) A labor
organization or public employer may file a unit clarification petition to
determine whether an employee is a "public employee" entitled to representation
under the Public Employee Collective Bargaining Act, or a "supervisory,"
"confidential," or "managerial" employee ineligible for representation under
the Public Employee Collective Bargaining Act.
(b) No showing of interest is required for
this type of petition.
(c) The
petition may be filed at any time, except the contract bar applies if the title
of a position sought to be excluded is expressly included within the unit
description in the certification or recognition agreement.
(d) The Board may determine that an election
is appropriate to further the policies expressed in ORS
243.662,
and order a self-determination election among the affected employees described
in a petition filed by a labor organization. For example, a self-determination
election may be ordered when the affected employees, as a class, were excluded
from voting when the bargaining unit was certified and subsequently were
treated as being excluded from the unit.
(7) Unit Clarification Petition to Include
Employees in Existing Unit Based on Certification or Contract Language. A labor
organization or a public employer may file a unit clarification petition to
determine whether certain employees are or are not included in a bargaining
unit under the express terms of a unit description in a certification or
collective bargaining agreement. No showing of interest is required, and the
petition may be filed at any time. However, if a grievance is being processed
that may resolve the issue, the petitioner will be required to exhaust the
grievance in process.
(8) Unit
Clarification Petition to Transfer Represented Employees into a More
Appropriate Bargaining Unit:
(a) A labor
organization may file a unit clarification petition to determine whether a
group of employees currently represented within (as a fragment of) another
bargaining unit more appropriately belongs in a unit represented by the labor
organization petitioning for clarification.
(b) The petition requires a showing of
interest from more than fifty percent (50%) of the employees in the group
described in the petition. The showing of interest document must comply with
OAR 115-025-0021 (showing of interest requirements), including by indicating
that the signer desires to be included in the bargaining unit represented by
the petitioning labor organization.
(c) The contract bar applies, based on the
term of the petitioner's collective bargaining agreement.
(d) If the Board determines that it would be
appropriate to transfer the employees to the petitioner's bargaining unit, the
Board will order a self-determination election among the employees described in
the petition. The employees will vote either to continue to be represented
within the current bargaining unit or to transfer and be represented within the
petitioner's bargaining unit.
(9) Unit Clarification Petition to
Redesignate (Remove Employees from) Existing Bargaining Unit. A public employer
may file a unit clarification petition to determine if a bargaining unit should
be redesignated because it includes an employee or employees who should not be
included in the unit according to the criteria in ORS
243.682(1)(a).
No showing of interest is required. The election, contract and certification
bars apply. If a contract is in effect, a petition for a redesignation must be
filed not less than one hundred fifty (150) days nor more than one hundred
eighty (180) days before the end of the contract. If a collective bargaining
agreement with a term of more than three years is in effect, a petition for
redesignation may also be filed any time after three years from the effective
date of the contract. However, if a new contract is negotiated during the
fourth year of the contract and before the filing of a petition for
redesignation, the new contract will serve as a contract bar. An order
redesignating a unit where a contract exists will be effective upon expiration
of the contract.
(10) Unit
Clarification Petition to Merge Existing Bargaining Units:
(a) A labor organization may file a unit
clarification petition to determine whether to merge two or more bargaining
units represented by the same labor organization and employed by the same
employer.
(b) The Board will order
the clarification if it determines that the merged unit includes all employees
in the existing units and is an appropriate unit.
(c) The petition requires a showing of
interest from more than fifty percent (50%) of the employees in each unit. The
showing of interest document must comply with OAR 115-025-0021 (showing of
interest requirements), including by indicating that the signer desires their
bargaining unit to be merged with the other unit(s).
(d) The election, certification and contract
bars apply. The petition must be filed during the open period provided for in
OAR 115-025-0015, as that rule applies to the larger (or largest) of the
bargaining units.
(e) When the
Board approves a merger of bargaining units, and the employees in the smaller
unit are covered by a collective bargaining agreement, the employment
conditions for the employees in the smaller unit will remain governed by their
collective bargaining agreement until that agreement expires. Before the
expiration of that agreement, the parties are obligated to begin negotiations
for inclusion of the smaller unit employees under the larger-unit
agreement.
(11) Unit
Clarification Petition to Amend or Modify Existing Certification or
Recognition:
(a) A labor organization or
public employer may file a unit clarification petition to amend a certification
or employer recognition. The petition may be filed at any time so long as there
is no other pending petition that raises a valid question of representation.
Such a petition may be appropriate to reflect a change in name or affiliation
of the exclusive representative or a change in name of the employer.
(b) If the petition is filed because of an
affiliation or change in affiliation, the petitioner will be required to prove
that petitioner's affiliation procedure was conducted in accordance with at
least minimal due process to show that no question of representation exists.
(12) Unit Clarification
Petition to Revoke Certification or Recognition:
(a) A labor organization or public employer
may file a unit clarification petition to revoke a Board certification or
employer recognition of an exclusive representative that disclaims interest or
is defunct. No showing of interest is required. The petition may be filed at
any time when no collective bargaining agreement is in effect.
(b) The Board will order revocation only if:
(A) No collective bargaining agreement is in
effect; and
(B) The labor
organization disclaims further interest in representing the bargaining unit or
the labor organization is defunct.
Statutory/Other Authority: ORS
240.086(3)
& 243.766(7)
Statutes/Other Implemented: ORS
243
