OAR 115-040-0015: Binding Interest Arbitration

(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).