Employment Relations Board
Chapter 115
Division 35
UNFAIR LABOR PRACTICE COMPLAINTS IN PUBLIC EMPLOYMENT
115-035-0055
Representation Costs
(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.
Statutory/Other Authority: ORS 240.086(3) & 243.766(7)
Statutes/Other Implemented: ORS 240 & 243
History:
ERB 10-2016, f. 11-9-16, cert. ef. 2-1-17
ERB 2-2014, f. 8-20-14, cert. ef. 9-3-14
ERB 8-1985, f. 10-29-85, ef. 10-31-85
ERB 1-1984, f. & ef. 4-11-84
ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83
ERB 1-1982, f. & ef. 1-19-82
ERB 4-1980, f. 8-15-80, ef. 8-18-80