Employment Relations Board
Chapter 115
Division 25
PUBLIC EMPLOYEE REPRESENTATION
115-025-0050
Unit Clarification Petitions
(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
History:
ERB 1-2021, amend filed 01/07/2021, effective 01/07/2021
ERB 13-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95
ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95
ERB 1-1982, f. & ef. 1-19-82
ERB 3-1981(Temp), f. 10-5-81, ef. 10-9-81
ERB 1-1980, f. & ef. 1-9-80