Current through Register Vol. 63, No. 9, September 1, 2024
(1) Applicability of Rule. This rule shall
apply in all cases in which the Board initiates arbitration of a labor dispute
relating to negotiations over employment relations.
(2) Court-Ordered Arbitration. When
arbitration is ordered by a circuit court pursuant to ORS
243.726(3)(c),
the affected employer or labor organization, or both jointly, shall notify the
Board of the court order within five days of the date that the order was
issued. Such notification must be accompanied by a copy of the court order. The
Board will initiate arbitration within five days of its receipt of the
notification.
(3) Voluntary
Arbitration. When an employer and a labor organization, pursuant to ORS
243.706(2) or
243.712(2)(e),
agree to submit any or all of the issues in a negotiations labor dispute to
arbitration, either party or both may request the Board to initiate
arbitration. Such a request must be accompanied by a copy of the agreement to
arbitrate. The Board will initiate arbitration within five days of its receipt
of the request.
(4) Arbitration
Where Strike is Prohibited. When a negotiations labor dispute exists between an
employer and a labor organization that represents a bargaining unit that
includes employees prohibited from striking by ORS
243.736 or ORS
243.738, the Board shall
initiate arbitration pursuant to ORS
243.746(2) or,
where applicable, ORS
243.698.
(5) A labor organization that represents a
bargaining unit which it contends includes strike-prohibited employees must
file notice of such contention with the Board and the employer at least 180
days before the expiration of the contract covering such bargaining unit,
unless such notice was previously filed and there has been no substantial
change in the composition of the unit since that filing, or within 30 days
after the labor organization demands bargaining for an initial contract. If the
labor organization fails to file such notice and subsequently requests the
Board to initiate arbitration, the Board shall notify the employer of the
request and the employer shall have ten days to file objections on the basis
that the unit does not include strike-prohibited employees or that the unit
should be redesignated because it also includes strike-permitted employees. The
Board shall resolve such objections prior to the initiation of
arbitration.
(6) Selection of
Arbitrator:
(a) Arbitrator selection shall be
pursuant to ORS 243.746(1) and
(2), as supplemented by this subsection.
(b) 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.
(c) Notice of
Appointment. Upon selection of the arbitrator the parties shall notify the
Board and the arbitrator of his/her selection.
(d) Disclosure by Arbitrator. Before
accepting an appointment, the prospective arbitrator shall disclose to the
parties and the Board any circumstances likely to create a presumption of bias.
If the prospective arbitrator believes that there is any other potentially
disqualifying information, that information also shall be disclosed. 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.
(e)
Challenges Relating to Bias or Qualifications of Arbitrator:
(A) A party may challenge a selected or
appointed arbitrator by charging that the arbitrator is biased or not
qualified.
(B) A petition raising
such a challenge must be filed with the Board within 15 days of the selection
or appointment of the arbitrator. The petition must include a statement of
facts on which the challenge is based. The other party to the underlying labor
dispute will be asked to respond to the petition.
(C) The Board will hold a hearing on the
petition within 10 days of the date of filing. The hearing will be conducted
according to the provisions of OAR 115, Division 010 to the extent that they
are applicable and practicable in light of the statutory time lines.
(D) The Board will issue a final and binding
decision regarding the arbitrator's neutrality or qualifications within 10 days
of the hearing.
(f)
Vacancies. If any arbitrator should resign, die, withdraw, refuse or be unable
to, or be disqualified to perform the duties of his/her appointment, the Board
shall, upon satisfactory proof, declare the appointment vacant. Vacancies shall
be filled in the same manner as that governing the original appointment, and
the matter shall be reheard by the new arbitrator, unless the parties mutually
agree to a different procedure.
(7) Arbitration Rules and Procedures.
(a) Time and Place of Hearing. The
arbitrator, with the agreement of the parties, shall fix the time and place for
each hearing. However, in circumstances where final offer packages are
submitted to the mediator, the arbitration hearing must be at least 30 days
after that submission.
(b)
Representation by Counsel. Any party may be represented by counsel or by other
authorized representative.
(c) Last
Best Offers. Last best offers shall be submitted consistent with ORS
243.746(3) and
(4).
(d) Subpoenas. Subpoenas may be issued by the
arbitrator.
(e) Attendance at
Hearings. The arbitration hearing shall be open to the public unless otherwise
mutually agreed to by the parties.
(f) Adjournments. If all parties agree, the
arbitrator shall adjourn the hearing. Additionally, the arbitrator may adjourn
the hearing:
(A) on the arbitrator's own
motion; or
(B) at the request of a
party, if good cause is shown.
(g) Oaths. In the discretion of the
arbitrator, all witnesses who testify at the hearing may be sworn or make an
affirmance.
(h) Order of
Proceedings. The order of presentation at the hearing shall be as mutually
agreed between the parties or as determined by the arbitrator.
(i) Exhibits. Each exhibit introduced by a
party shall be filed with the arbitrator and a copy shall be provided to the
other party. The arbitrator shall retain exhibits filed by the parties, unless
the parties otherwise agree or the arbitrator otherwise permits.
(j) 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 has waived the right to
be present. Parties shall have the right to cross-examine.
(k) 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. Findings of
fact and order shall not be made solely on the default of a party. The
arbitrator shall require the other party to submit such evidence as required
for the making of findings of fact and issuing an order.
(l) Closing of Hearing(s).
(A) The arbitrator shall declare the hearing
closed after the parties have completed presenting their cases.
(B) If the arbitrator allows the filing of
post-hearing briefs or 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.
(m) 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 a written objection, shall be deemed to have waived the right to
object.
(n) Waiver of Oral Hearing.
The parties may provide, by written agreement, for the waiver of oral
hearing.
(o) The parties shall
cause to be made a record of all testimony, by recording or other method. The
arbitrator shall resolve any dispute over the type of record to be made. The
arbitrator or one of the parties, as agreed by the parties or directed by the
arbitrator, shall maintain custody of such record, along with all other
evidence produced by the parties, for at least 180 days after the arbitration
decision was issued. However, when the hearing is recorded by a court reporter,
but the parties agree not to have the reporter's notes transcribed, those notes
may remain in the custody of the reporter.
(8) Time of Arbitration Findings and Order.
The arbitration order shall be issued consistent with ORS
243.746(4), (5) and
(6).
Stat. Auth.: ORS
240.086(3),
243.766(7)
Stats. Implemented: ORS
243
