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EMPLOYMENT RELATIONS BOARD

 

DIVISION 40

DISPUTE RESOLUTION IN PUBLIC EMPLOYMENT

115-040-0000

Mediation

(1) Negotiations concerning a new or reopened collective bargaining agreement.

(a) If the parties have not reached agreement on the terms of a collective bargaining agreement after a 150-calendar-day period of good faith negotiations, either party may notify the Board and request assignment of a mediator. The parties may jointly request assignment of a mediator during the 150-day period. Such notification and request shall be in writing and shall contain a statement as to each issue in dispute and a statement describing when negotiations commenced. Upon receipt of the notification and request, the State Conciliator shall appoint a mediator and notify the parties of the appointment.

(b) The 150-calendar-day period of negotiations begins:

(A) When an exclusive representative is recognized or certified; or

(B) In a successor-agreement negotiation or a contractual reopener negotiation, when the parties meet for the first bargaining session and each party has received the other party's initial proposal.

(c) Any time after 15 days of mediation, either party may declare an impasse. Written notification of an impasse shall be filed in writing with the State Conciliator, and a copy of the notification shall be submitted to the other party on that same day. The mediator may declare an impasse at any time during the mediation process.

(d) Within seven days of a declaration of impasse, each party shall submit to the mediator in writing the final offer of the party, including a cost summary of the offer. Each party's proposed contract language shall be titled "Final Offer." Each party shall submit a copy of the final offer and cost summary to the other party on the same day it is submitted to the mediator. Upon receipt of the final offers and cost summaries, the mediator shall make them public.

(e) A party's cost summary shall be completed using a form approved by the Board. Although a party’s cost summary may include additional information, it must, at a minimum, include a fully completed form approved by the Board.

(2) Mid-contract negotiations (ORS 243.698).

(a) At any time during a 90-day period of expedited negotiations concerning a proposed change in employment relations not covered by a collective bargaining agreement or concerning the renegotiation of contract terms pursuant to ORS 243.702, the parties may jointly request mediation. A written request must be filed with the State Conciliator and signed by a representative of each party. Upon receipt of a joint request, the State Conciliator shall assign a mediator and notify the parties of the assignment.

(b) Mediation of a labor dispute subject to expedited negotiations shall not continue past the 90-day period. The 90-day period of expedited negotiations begins:

(A) When the employer notifies the exclusive representative in writing of anticipated changes that impose a duty to bargain; or

(B) When a party requests in writing renegotiation of contract terms pursuant to ORS 243.702.

Stat. Auth.: ORS 240.086(3) & 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1993, f. 9-30-93, cert. ef. 10-1-93; ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95; ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 1-1999, f. & cert. ef. 1-28-99; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0005

Conciliation Service Fees

(1) When mediation concerns negotiations over the terms of a collective bargaining agreement, the Board will charge a fee for mediation services, subject to ORS 240.610.

(2) When mediation concerns a grievance arising under a collective bargaining agreement, a local public employer and an exclusive representative each will be charged $250 per session.

(3) When mediation concerns a pending unfair labor practice complaint, a local public employer and an exclusive representative each will be charged $250 per mediation session.

(4) Training: Fees for training under ORS 240.610 shall be $2,500 for two-day training programs, $1,500 for one-day refresher training, and $700 for half-day training programs. The fees for facilitations and related travel time shall be $60 per hour.

(5) Billing: For mediation services, parties will be billed when the first mediation session occurs. For training, parties will be billed when the training session occurs, with the employer and exclusive representative sharing equally the costs unless the parties agree otherwise.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 240, 243
Hist.: ERB 1-1995(Temp), f. 6-26-95, cert. ef. 7-1-95; ERB 5-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 1-2007(Temp), f. 6-29-07, cert. ef. 7-1-07 thru 12-27-07; ERB 3-2007, f. 12-17-07, cert. ef. 12-26-07; ERB 1-2011(Temp), f. 6-30-11, cert. ef. 7-1-11 thru 12-28-11; ERB 3-2011, f. 12-28-11, cert. ef. 12-29-11; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0010

Factfinding

Where the parties to a labor dispute jointly petition the Board to appoint a factfinder within 30 days after the mediator makes public their final offers, the State Conciliator shall acknowledge in writing the request, and factfinding shall occur using the process set forth in ORS 243.722.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 1-1982, f. & ef. 1-19-82; ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; ERB 2-1993, f. & cert. ef. 12-15-93; ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95; ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

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).

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1987(Temp), f. & ef. 11-3-87; ERB 1-1988, f. & cert. ef. 4-25-88; ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; ERB 2-1995(Temp), f. 7-17-95, cert. ef. 8-1-95; ERB 4-1995, f. 11-30-95, cert. ef. 12-1-95; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0017

Interest Arbitration Enforcement

Pursuant to ORS 243.752, a party alleging that another party is refusing or failing to comply with an interest arbitration award may seek enforcement of the award by filing an unfair labor practice complaint with the Board charging a violation of 243.672(1)(f) or (2)(c). The Board generally will hold an expedited hearing on the matter, if requested to do so, under the procedures provided by OAR 115-035-0060.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-1983(Temp), f. 9-30-83, ef. 10-15-83; ERB 1-1984, f. & ef. 4-11-84; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0018

Notice of Intent to Strike

The exclusive representative shall send notice of intent to strike to the Board and the employer by certified mail. The notice shall state the reasons for the intent to strike including the unresolved bargaining issues. The Board and the employer must receive the certified notice ten days before the first date of the strike. However, the Board will not declare a strike unlawful when the exclusive representative has entrusted the notice to the postal service for certified mailing at such time that timely delivery could reasonably be expected, provided that both the Board and the employer have actually received written notice of intent to strike at least ten days before the strike begins.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 1-1998, f. & cert. ef. 1-26-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0020

Petition to Declare a Strike Unlawful

When it is alleged in good faith by a public employer that a labor organization representing a group of its employees has declared or authorized a strike by such employees and that such strike is or would be in violation of ORS 243.726 or 243.732, the employer may petition the Board for a declaration that the strike is or would be unlawful. The petition shall contain a detailed statement of the facts on which petitioner bases its request for a declaration of an unlawful strike. A copy of the petition shall be served upon the labor organization that is alleged to have declared or authorized the unlawful strike and proof of service shall be provided to the Board. Upon receipt of such a petition, the Board shall either dismiss the petition or set it for a hearing before the Board. If a hearing is held, it will be conducted like an unfair labor practice proceeding, and the Board will expedite processing of the petition to attempt to issue a decision before the strike begins. Notice of the hearing shall be by personal service or certified mail, and shall be personally served or mailed at least seven days before the date of the hearing, unless the parties, with the approval of the Board, otherwise agree. The Board shall issue its decision within seven days of the close of the hearing on the petition.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1980, f. & ef. 1-9-80; ERB 5-1980, f. 10-14-80, ef. 10-17-80; ERB 2-1998, f. & cert. ef. 1-26-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0030

Panel of Arbitrators and Factfinders

(1) The State Conciliation Service of the Employment Relations Board shall maintain a panel of qualified labor arbitrators and factfinders for referral, upon request, to the parties to a labor dispute. Panel members are expected to conform to the ethical standards and procedures set forth in the code of professional responsibility for arbitrators of labor disputes as approved by the National Academy of Arbitrators.

(2) Persons seeking to be listed on the panel must complete and submit an application form. The form may be obtained from the State Conciliation Service of the Employment Relations Board. Upon receipt of a completed application, including the application fee in subsection (4) of this section, the Chair and the Conciliator will review the completed application in light of the criteria set forth below and decide whether to include an applicant on the panel. Each applicant will be notified in writing of the decision:

(a) General Criteria. Applicants will be accepted on the panel if they:

(A) Are experienced in decision-making roles in the resolution of collective bargaining or labor relations disputes; or

(B) Have extensive experience in relevant positions in collective bargaining; or

(C) Have relevant academic experience at the college or university level; and

(D) Are capable of conducting an orderly hearing, can analyze testimony and exhibits and can prepare clear and concise findings and awards within reasonable time limits, and appear, based on references, to be acceptable to the parties.

(b) Proof of Qualification. The qualifications listed in subsection (2)(a) of this rule, are preferably demonstrated by the submission of actual arbitration awards and/or factfinding reports prepared by the applicant while serving as an impartial arbitrator or factfinder chosen by the parties to disputes. Equivalent experience acquired in training, internship or other development programs, or experience such as that acquired as a hearing officer or judge in labor relations controversies also may be considered.

(c) Advocacy:

(A) An advocate is a person who or a member of a firm/business which represents employers or labor organizations, as an employee, attorney or consultant, in matters related to collective bargaining.

(B) No advocate shall be listed on the panel. A person who becomes an advocate while listed on the panel must notify the Conciliator immediately.

(d) Duration of Listing. A member will be removed from the panel by the Chair and Conciliator whenever the member:

(A) No longer meets the criteria for admission;

(B) Has been repeatedly and flagrantly delinquent in submitting awards;

(C) Has refused to make reasonable and periodic reports to the State Conciliation Service, as required;

(D) Has been the subject of complaints by parties who use the State Conciliation Service Panel and facilities and cause for removal has been shown;

(E) Is determined to be unacceptable to the parties who use the State Conciliation Service Arbitration and Factfinding Panel; or

(F) Fails to pay the annual fee in subsection (4) of this section within 30 days of billing;

(3) Procedures for Cancellation or Suspension of a Listing. The Conciliator, at the direction of the Board Chair, will review the reasons alleged for the cancellation or suspension. Before cancelling or suspending a listing, a panel member will be provided 30 days written notice of the proposed action. The notice will specify the action that is proposed, the reasons for the action, and the results of any review conducted by the Conciliator into this matter. The notice will also provide an opportunity for the panel member to submit a response or information to the Board Chair, or a designated representative, showing why the listing should not be canceled or suspended. The Board Chair's decision shall be in writing and shall be a final decision.

(4) An applicant to the panel of qualified arbitrators and factfinders shall pay an application fee in accordance with ORS 662.445. To remain on the panel, a member shall pay an annual fee in accordance with ORS 662.445.

(5) Nothing contained herein should be construed to limit the right of parties to select jointly any arbitrator or arbitration procedure acceptable to them.

(6)(a) Arbitrators and factfinders selected by the parties pursuant to State Conciliation Service procedures shall promptly notify the Service of their selection.

(b) Arbitrators and factfinders selected pursuant to State Conciliation Service procedures shall promptly provide the State Conciliation Service with copies of decisions or recommendations.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 1-1984, f. & ef. 4-11-84; ERB 1-1991, f. 11-21-91, cert. ef. 12-1-91; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 5-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 5-2007, f. 12-17-07, cert. ef. 1-1-08; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0032

Lists of Arbitrators or Factfinders

(1) When, pursuant to statute (including ORS 342.934(7) and ORS 342.905(10)), or at the request of a party, the State Conciliator submits a list of arbitrators or factfinders to the parties to a dispute, the names on the list shall be drawn at random from the panel described in OAR 115-040-0030. However, the State Conciliator will attempt to comply with a joint request of the parties to restrict the list in any of the following ways:

(a) Only arbitrators who are listed on the labor arbitration panel of the American Arbitration Association;

(b) Only arbitrators who are Oregon residents;

(c) Only arbitrators who are Oregon or Washington residents;

(d) Only arbitrators who charge from the Oregon border; or

(e) Only arbitrators who have issued at least two factfinding recommendations under ORS 243.722 or at least one interest arbitration award under ORS 243.752, if the dispute at issue is to be resolved through interest arbitration.

(2) Parties may jointly request a second list of arbitrators or factfinders. A second list will consist of names drawn at random from the panel without regard to any restrictions requested by the parties.

(3) Financial or Personal Interest of Arbitrator. No person shall serve as an arbitrator in any arbitration proceeding in which the arbitrator has any financial or personal interest in the result of the arbitration, unless the parties, in writing, waive such disqualification;

(4) Disclosure by Arbitrator. Before accepting an appointment, the prospective arbitrator shall disclose any circumstances likely to create a presumption of bias or which he/she believes might disqualify him/her as an impartial arbitrator. Upon receipt of such information, the Board shall immediately disclose it to the parties. 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.

(5) 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.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 2-1989, f. 11-28-89, cert. ef. 12-4-89; ERB 3-1998, f. & cert. ef. 1-26-98; ERB 1-2000, f. & cert. ef. 12-1-00; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0035

Filing of Arbitrator and Factfinder Decisions

All arbitrators and factfinders listed on the State Conciliation Panel pursuant to OAR 115-040-0030 shall provide the State Conciliation Service with one copy of all written decisions or recommendations issued concerning a labor dispute involving public employees, public employers or labor organizations as defined by ORS 243.650.

Stat. Auth.: ORS 240.086(3), 243.766(7)
Stats. Implemented: ORS 243
Hist.: ERB 11-1985, f. 10-29-85, ef. 10-31-85; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0040

Exemption from Disclosure Under ORS 192.410 to 192.505 and Inadmissibility of Mediation Communication Pursuant to OEC Rule 408

(1) Except to the extent that rules of this agency adopted pursuant to Oregon Laws 1997, chapter 670 make mediation communications confidential, any mediation communications that are public records, as defined in ORS 192.410(4), are not confidential unless the substance of such communication is confidential under state or federal law. Mediation communications are exempt from disclosure under the Public Records Law to the extent provided in ORS 192.410 to 192.505.

(2) Nothing in this rule affects any confidentiality created by other law.

(3) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408).

(4) The words and phrases used in this rule have the same meaning as given to them in Oregon Laws 1997, chapter 670, section 11.

Stat. Auth.: ORS 243.766(7), 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0041

Applicability of Mediator Disclosure Rules

(1) OAR 115-040-0041 to 115-040-0044 apply only to mediations:

(a) In which the agency is a party or is mediating a dispute as to which the agency has regulatory authority; and

(b) That:

(A) Are conducted under OAR 115-040-0000, ORS 243.712, OAR 115-075-0000 and ORS 662.425; or

(B) Involve other joint requests for mediation from labor and management.

(2) OAR 115-040-0041 to 115-040-0044 do not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in Oregon Laws 1997, chapter 670, section 7.

(3) Nothing in OAR 115-040-0041 to 115-040-0044 affects any confidentiality created by other law.

(4) The words and phrases used in OAR 115-040-0041 to 115-040-0044 have the same meaning as given to them in Oregon Laws 1997, chapter 670, sections 7 and 11.

Stat. Auth.: ORS 240.086(3) & 243.766(7), OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0042

Mediator May Not Disclose Mediation Communications in Subsequent Proceedings

Except as provided in this rule, a mediator may not disclose or be compelled to disclose mediation communications in mediations described in OAR 115-040-0041(1) and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless all the parties to the mediation and the mediator agree in writing to the disclosure.

(1) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, a mediator may disclose mediation communications to the extent that those communications may be necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(2) A mediator may disclose confidential mediation communication directly related to child abuse or elder abuse if the mediator is a person who has a duty to report child abuse under ORS 419B.010 or elder abuse under 124.050 to 124.095.

(3) A mediator may disclose confidential mediation communications if the mediator reasonably believes that disclosing the communication is necessary to prevent a party from committing a crime that is likely to result in death or bodily injury to any person.

(4) A mediator may disclose a mediation communication if, as a condition of a professional license, the mediator is compelled by law or the rule of a court to disclose a communication related to the conduct of another licensed professional.

(5) When the only parties to the mediation are public bodies, mediation communications and mediation agreements are not confidential except to the extent those communications or agreements are exempt from disclosure under ORS 192.410 to 192.505 and may be disclosed and introduced into evidence in any subsequent proceeding.

(6) When the parties to the mediation include a private party and two or more public bodies, mediation communications are not confidential if the laws, rules or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential and may be disclosed and introduced into evidence in any subsequent proceeding.

(7) When a person acts as the mediator in the mediation and also acts as the hearing officer in a contested case involving some or all of the same matters, the communications in the mediation are not confidential and may be disclosed and introduced into evidence in any subsequent proceeding.

(8) A mediator may disclose mediation communications described in OAR 115-040-0043 and such communications may be introduced into evidence in any subsequent proceeding to the extent provided in that rule.

(9) The terms of any mediation agreement are not confidential, may be disclosed and may be introduced as evidence in any subsequent proceeding.

Stat. Auth.: ORS 243.766(7), 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0043

Mediator May Disclose Certain Mediation Communications

For the purposes of OAR 115-040-0042, a mediator may disclose the following mediation communications and such communications may be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding:

(1) A request for mediation;

(2) Communications from the Conciliation Service establishing the time and place of mediation;

(3) Notification of declaration of impasse submitted to the Board;

(4) Communication from the Conciliation Service establishing the time for filing final offers;

(5) Final offers and cost summaries submitted by the parties to the mediators;

(6) Petitions to initiate factfinding or interest arbitration submitted to the Board; or

(7) Strike notices submitted to the Board.

Stat. Auth.: ORS 243.766(7), 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

115-040-0044

Notice of Disclosure of Mediation Communications

(1) When a mediation is of a type described in OAR 115-040-0041(1), the agency must provide written notice to all parties to the mediation and the mediator informing them of the extent to which mediation communications may be confidential.

(2) The notice required by this rule must be in writing and must include:

(a) An explanation of the agency's role in the mediation, including:

(A) Whether the agency is a party; and

(B) Whether the mediator is an employee, contractor or agent of the agency.

(b) A statement that:

(A) Mediation communications in mediations not described in OAR 115-040-0041(1) are not confidential unless provided otherwise by rules of this agency adopted pursuant to Oregon Laws 1997, chapter 670, section 3, or by other state or federal law; and

(B) The parties to the mediation may agree in writing to less confidentiality and greater disclosure of mediation communications.

(c) At least one of the following:

(A) A copy of OAR 115-040-0040 and 115-040-0041 to 115-040-0044;

(B) A summary of OAR 115-040-0040 and 115-040-0041 to 115-040-0044; or

(C) Citations to the rules affecting the confidentiality of mediation communications and a statement indicating where a copy of these rules can be obtained.

(3) Any notice required by this rule is not confidential and may be disclosed.

Stat. Auth.: ORS 243.766(7), 240.086(3) & OL 1997, Ch. 670
Stats. Implemented: ORS 192.410 - 192.505
Hist.: ERB 5-1998(Temp), f. & cert. ef. 5-1-98 thru 10-27-98; ERB 6-1998, f. & cert. ef. 10-27-98; ERB 9-2016, f. 11-9-16, cert. ef. 2-1-17

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