Oregon Administrative Rules
Chapter 115 - EMPLOYMENT RELATIONS BOARD
Division 35 - UNFAIR LABOR PRACTICE COMPLAINTS IN PUBLIC EMPLOYMENT
Section 115-035-0055 - Representation Costs
Universal Citation: OR Admin Rules 115-035-0055
Current through Register Vol. 63, No. 9, September 1, 2024
(1) General:
(a) Pursuant to ORS
243.676(2)(d) and
(3)(b), the Board shall award representation
costs to the prevailing party in unfair labor practice cases.
(b) "Representation costs" shall be awarded
as follows:
(A) $250 for a case dismissed
without a hearing, providing that the dismissal order contains a conclusion
that the person named in the complaint has not engaged in or is not engaging in
an unfair labor practice.
(B)
$1,000 for a case presented solely on stipulated facts.
(C) $3,000 for a case that requires one day
of hearing (the hearing need not last a full day).
(D) $5,000 for a case that requires more than
one day of hearing (neither hearing day need last a full day).
(E) The full amount of reasonable
representation costs if a civil penalty is awarded.
(F) If a non-prevailing party had to rely on
personal financial resources to litigate the matter, the prevailing party shall
be awarded $500 in representation costs, unless the Board determines that a
lesser award is more appropriate.
(G) The Board will not award representation
costs if the parties notify the Board that they have agreed to waive the
awarding of those costs.
(c) A petition for representation costs needs
to be filed only when a party seeks an award of costs in excess of $5,000 (due
to a civil penalty being awarded).
(d) Prevailing party is the party in whose
favor a Board Order is issued. Where one charge (or more) in a complaint is
upheld while one charge (or more) in a complaint is dismissed, the Board shall
determine which party is the "prevailing party" based on the charge or charges
that the Board determines to be the primary or most significant in the case. If
the Board determines that upheld and dismissed charges are equally significant,
no representation costs will be awarded.
(e) For purposes of this rule, charges are
"separate" only if:
(A) they are based on
clearly distinct and independent operative facts; i.e., the charges could have
been pleaded and litigated without material reliance on the allegations of the
other(s), and the separate charges concerned the enforcement of rights
independent of the other(s); or
(B)
they concern two or more scope of bargaining questions that are dealt with by
the Board in separate conclusions of law.
(2) Representation Costs Order.
(a) The Board will not award representation
costs until the appeal period under ORS
183.482 has run or, if an appeal
has been filed, until the Board receives the appellate judgment.
(b) If the Board orders a civil penalty and a
prevailing party seeks costs in excess of $5,000, the party must file a
petition within 21 days of the date of the issuance of the Board Order that
awarded a civil penalty. That petition shall include a statement of the amount
of costs requested, along with a description of the actual amount of the fees
incurred by the petitioner or, where the petitioner has not charged fees, the
basis for the amount of the costs requested. If a petition is not timely filed
under this subsection, the Board shall award representation costs based on the
scale set forth in section (1) of this rule.
(c) If a petition for representation costs in
excess of $5,000 is filed, an opposing party shall have 21 days from the date
of service of such petition to file written objections.
(d) A party objecting to costs based on
excessive time spent must submit a supporting statement describing the amount
of time spent on the case by the objecting party.
(e) A party objecting to costs based on an
excessive hourly rate must submit a supporting statement identifying the hourly
rate and total costs incurred by the objecting party.
Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 240, 243
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