71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2847
Senate Bill 830
Sponsored by COMMITTEE ON BUSINESS, LABOR, AND ECONOMIC
DEVELOPMENT
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies method for selecting arbitrator in public employee
collective bargaining. Modifies criteria used by arbitrator to
decide between parties' last best offer packages. Prohibits
enforcement of arbitration award under certain circumstances.
Prohibits parties from agreeing to alternative arbitration
procedure. Eliminates arbitration alternative in cases of teacher
dismissal appeals.
A BILL FOR AN ACT
Relating to public employee collective bargaining; creating new
provisions; and amending ORS 243.706, 243.712, 243.722,
243.746, 243.752, 243.762 and 342.905.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 243.706 is amended to read:
243.706. (1) A public employer may enter into a written
agreement with the exclusive representative of an appropriate
bargaining unit setting forth a grievance procedure culminating
in binding arbitration { - or any other dispute resolution
process agreed to by the parties - } { + if the agreement
requires the arbitrator to be appointed by the State Conciliation
Service from hearing officers working for the Hearing Officer
Panel established by section 3, chapter 849, Oregon Laws
1999 + }. { - As a condition of enforceability, any arbitration
award that - } { + A grievance arbitration award or an unfair
labor practice decision under ORS 243.672 (1)(g) may not be
enforced if it + } orders the reinstatement of a public employee
{ - or otherwise relieves the public employee of responsibility
for misconduct shall comply with public policy requirements as
clearly defined in statutes or judicial decisions - } { + ,
reduces disciplinary penalties or provides any other remedy to a
public employee who commits misconduct, + } including but not
limited to { - policies respecting - } sexual harassment or
sexual misconduct, unjustified and egregious use of physical or
deadly force { - and serious criminal misconduct, related to
work - } { + , conduct that would constitute a misdemeanor or
felony, unlawful use or possession of a controlled substance,
conduct that would subject the public employer to civil liability
or any other misconduct of similar concern to the public
employer + }. In addition, { - with respect to claims that a
grievant should be reinstated or otherwise relieved of
responsibility - } { + the award or decision may not be
enforced if it orders the reinstatement of a public employee or
relieves a public employee of responsibility + } for misconduct
based upon the public employer's alleged previous differential
treatment of employees for the same or similar conduct { + . + }
{ - , the arbitration award must conform to the following
principles: - }
{ - (a) Some misconduct is so egregious that no employee can
reasonably rely on past treatment for similar offenses as a
justification or defense to discharge or other discipline. - }
{ - (b) Public managers have a right to change disciplinary
policies at any time, notwithstanding prior practices, if such
managers give reasonable advance notice to affected employees and
the change does not otherwise violate a collective bargaining
agreement. - }
(2) In addition to subsection (1) of this section, a public
employer may enter into a written agreement with the exclusive
representative of its employees providing that a labor dispute
over conditions and terms of a contract may be resolved through
binding arbitration { + under ORS 243.742 to 243.756 + }.
(3) In an arbitration proceeding under this section, the
arbitrators, or a majority of the arbitrators, may:
(a) Issue subpoenas on their own motion or at the request of a
party to the proceeding to:
(A) Compel the attendance of a witness properly served by
either party; and
(B) Require from either party the production of books, papers
and documents the arbitrators find are relevant to the
proceeding;
(b) Administer oaths or affirmations to witnesses; and
(c) Adjourn a hearing from day to day, or for a longer time,
and from place to place.
(4) The arbitrators shall promptly provide a copy of a subpoena
issued under this section to each party to the arbitration
proceeding.
(5) The arbitrators issuing a subpoena under this section may
rule on objections to the issuance of the subpoena.
(6) If a person fails to comply with a subpoena issued under
this section or if a witness refuses to testify on a matter on
which the witness may be lawfully questioned, the party who
requested the subpoena or seeks the testimony may apply to the
arbitrators for an order authorizing the party to apply to the
circuit court of any county to enforce the subpoena or compel the
testimony. On the application of the attorney of record for the
party or on the application of the arbitrators, or a majority of
the arbitrators, the court may require the person or witness to
show cause why the person or witness should not be punished for
contempt of court to the same extent and purpose as if the
proceedings were pending before the court.
(7) Witnesses appearing pursuant to subpoena, other than
parties or officers or employees of the public employer, shall
receive fees and mileage as prescribed by law for witnesses in
ORS 44.415 (2).
SECTION 2. ORS 243.706, as amended by section 1 of this 2001
Act, is amended to read:
243.706. (1) A public employer may enter into a written
agreement with the exclusive representative of an appropriate
bargaining unit setting forth a grievance procedure culminating
in binding arbitration if the agreement requires the arbitrator
to be appointed by the State Conciliation Service from
{ - hearing officers working for the Hearing Officer Panel
established by section 3, chapter 849, Oregon Laws 1999 - } { +
the list of qualified arbitrators maintained by the State
Conciliation Service. The Employment Relations Board shall adopt
rules providing for a random selection method for appointing
arbitrators under this section + }. A grievance arbitration award
or an unfair labor practice decision under ORS 243.672 (1)(g) may
not be enforced if it orders the reinstatement of a public
employee, reduces disciplinary penalties or provides any other
remedy to a public employee who commits misconduct, including but
not limited to sexual harassment or sexual misconduct,
unjustified and egregious use of physical or deadly force,
conduct that would constitute a misdemeanor or felony, unlawful
use or possession of a controlled substance, conduct that would
subject the public employer to civil liability or any other
misconduct of similar concern to the public employer. In
addition, the award or decision may not be enforced if it orders
the reinstatement of a public employee or relieves a public
employee of responsibility for misconduct based upon the public
employer's alleged previous differential treatment of employees
for the same or similar conduct.
(2) In addition to subsection (1) of this section, a public
employer may enter into a written agreement with the exclusive
representative of its employees providing that a labor dispute
over conditions and terms of a contract may be resolved through
binding arbitration under ORS 243.742 to 243.756.
(3) In an arbitration proceeding under this section, the
arbitrators, or a majority of the arbitrators, may:
(a) Issue subpoenas on their own motion or at the request of a
party to the proceeding to:
(A) Compel the attendance of a witness properly served by
either party; and
(B) Require from either party the production of books, papers
and documents the arbitrators find are relevant to the
proceeding;
(b) Administer oaths or affirmations to witnesses; and
(c) Adjourn a hearing from day to day, or for a longer time,
and from place to place.
(4) The arbitrators shall promptly provide a copy of a subpoena
issued under this section to each party to the arbitration
proceeding.
(5) The arbitrators issuing a subpoena under this section may
rule on objections to the issuance of the subpoena.
(6) If a person fails to comply with a subpoena issued under
this section or if a witness refuses to testify on a matter on
which the witness may be lawfully questioned, the party who
requested the subpoena or seeks the testimony may apply to the
arbitrators for an order authorizing the party to apply to the
circuit court of any county to enforce the subpoena or compel the
testimony. On the application of the attorney of record for the
party or on the application of the arbitrators, or a majority of
the arbitrators, the court may require the person or witness to
show cause why the person or witness should not be punished for
contempt of court to the same extent and purpose as if the
proceedings were pending before the court.
(7) Witnesses appearing pursuant to subpoena, other than
parties or officers or employees of the public employer, shall
receive fees and mileage as prescribed by law for witnesses in
ORS 44.415 (2).
SECTION 3. { + The amendments to ORS 243.706 by section 2 of
this 2001 Act become operative on January 1, 2004. + }
SECTION 4. ORS 243.712 is amended to read:
243.712. (1) If after a 150-calendar-day period of good faith
negotiations over the terms of an agreement or 150 days after
certification or recognition of an exclusive representative, no
agreement has been signed, either or both of the parties may
notify the Employment Relations Board of the status of
negotiations and the need for assignment of a mediator. Any
period of time in which the public employer or labor organization
has been found by the Employment Relations Board to have failed
to bargain in good faith shall not be counted as part of the
150-day period. This provision cannot be invoked by the party
found to have failed to bargain in good faith. The parties may
agree to request a mediator before the end of the 150-day period.
Upon receipt of such notification, the board shall appoint a
mediator and shall notify the parties of the appointment. The 150
days of negotiation shall begin when the parties meet for the
first bargaining session and each party has received the other
party's initial proposal.
(2) The board on the request of one of the parties shall render
assistance to resolve the labor dispute according to the
following schedule:
(a) Mediation shall be provided by the State Conciliation
Service as provided by ORS 662.405 to 662.455. Any time after 15
days of mediation, either party may declare an impasse. The
mediator may declare an impasse at any time during the mediation
process. Notification of an impasse shall be filed in writing
with the board, and copies of the notification shall be submitted
to the parties on the same day the notification is filed with the
board.
(b) Within seven days of the 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. Upon receipt of the
final offers, the mediator shall make public the final offers,
including any proposed contract language and each party's cost
summary dealing with those issues, on which the parties have
failed to reach agreement. Each party's proposed contract
language shall be titled 'Final Offer. '
(c) Within 30 days after the mediator makes public the parties'
final offers, the parties may agree and must jointly petition the
Employment Relations Board to appoint a fact finder. If the
parties jointly petition for fact-finding, a fact finder shall be
appointed and the hearing conducted as provided in ORS 243.722.
(d) If no agreement has been reached 30 days after the mediator
makes public the final offers, or if the parties participated in
fact-finding, 30 days after the receipt of the fact finder's
report, the public employer may implement all or part of its
final offer, and the public employees have the right to strike.
After a collective bargaining agreement has expired, and prior to
agreement on a successor contract, the status quo with respect to
employment relations shall be preserved until completion of
impasse procedures except that no public employer shall be
required to increase contributions for insurance premiums unless
the expiring collective bargaining agreement provides otherwise.
Merit step and longevity step pay increases shall be part of the
status quo unless the expiring collective bargaining agreement
expressly provides otherwise.
(e) Nothing in this section shall be construed to prohibit the
parties at any time from voluntarily agreeing to submit any or
all of the issues in dispute to final and binding arbitration
{ - . The arbitration shall be scheduled and conducted in
accordance with - } { + pursuant to procedures in + } ORS
243.746. The arbitration shall supersede the dispute resolution
procedures set forth in ORS 243.726 { - and 243.746 - } .
SECTION 5. ORS 243.746 is amended to read:
243.746. (1) In carrying out the arbitration procedures
authorized in ORS 243.712 (2)(d), 243.726 (3)(c) and 243.742, the
public employer and the exclusive representative may { + not + }
select their own arbitrator. { + The State Conciliation Service
shall appoint a hearing officer from the Hearing Officer Panel
established by section 3, chapter 849, Oregon Laws 1999, as
arbitrator. + }
{ - (2) Where the parties have not selected their own
arbitrator within five days after notification by the Employment
Relations Board that arbitration is to be initiated, the board
shall submit to the parties a list of seven qualified,
disinterested, unbiased persons. A list of Oregon interest
arbitrations and fact-findings for which each person has issued
an award shall be included. Each party shall alternately strike
three names from the list. The order of striking shall be
determined by lot. The remaining individual shall be designated
the 'arbitrator': - }
{ - (a) When the parties have not designated the arbitrator
and notified the board of their choice within five days after
receipt of the list, the board shall appoint the arbitrator from
the list. However, if one of the parties strikes the names as
prescribed in this subsection and the other party fails to do so,
the board shall appoint the arbitrator only from the names
remaining on the list. - }
{ - (b) The concerns regarding the bias and qualifications of
the person designated by lot or by appointment may be challenged
by a petition filed directly with the board. A hearing shall be
held by the board within 10 days of filing of the petition and
the board shall issue a final and binding decision regarding the
person's neutrality within 10 days of the hearing. - }
{ - (3) - } { + (2) + } The arbitrator shall establish
dates and places of hearings. Upon the request of either party or
the arbitrator, the { + Employment Relations + } Board shall
issue subpoenas. Not less than 14 calendar days prior to the date
of the hearing, each party shall submit to the other party a
written last best offer package on all unresolved mandatory
subjects, and neither party may change the last best offer
package unless pursuant to stipulation of the parties or as
otherwise provided in this subsection. The date set for the
hearing may thereafter be changed only for compelling reasons or
by mutual consent of the parties. If either party provides notice
of a change in its position within 24 hours of the 14-day
deadline, the other party will be allowed an additional 24 hours
to modify its position. The arbitrator may administer oaths and
shall afford all parties full opportunity to examine and
cross-examine all witnesses and to present any evidence pertinent
to the dispute.
{ - (4) - } { + (3) + } Where there is no agreement between
the parties, or where there is an agreement but the parties have
begun negotiations or discussions looking to a new agreement or
amendment of the existing agreement, unresolved mandatory
subjects submitted to the arbitrator in the parties' last best
offer packages shall be decided by the arbitrator. Arbitrators
shall base their findings and opinions on these criteria giving
first priority to { - paragraph - } { + paragraphs + } (a)
{ + and (c) + } of this subsection and secondary priority to
paragraphs (b) { + and (d) + } to (h) of this subsection as
follows:
(a) The interest and welfare of the public. { + The arbitrator
may not consider this factor by reference to paragraphs (b) to
(h) of this subsection, but shall consider this factor by
reference to the last best offer package that would best ensure
the public's enjoyment of the highest quality and quantity of
government services of all types. + }
(b) The reasonable financial ability of the unit of government
to meet the costs of the proposed contract { + throughout the
life of the contract, + } giving due consideration and weight to
the other services, provided by, and other priorities of, the
unit of government as determined by the governing body. A
reasonable operating reserve against future contingencies, which
does not include funds in contemplation of settlement of the
labor dispute, shall not be considered as available toward a
settlement.
(c) The ability of the unit of government to attract and retain
qualified personnel at the wage and benefit levels provided.
(d) The overall compensation presently received by the
employees, including direct wage compensation, vacations,
holidays and other paid excused time, pensions, insurance,
benefits, and all other direct or indirect monetary benefits
received.
(e) Comparison of the overall compensation of other employees
{ + of the same unit of government or other employees + }
performing similar services with the same or { - other - }
{ + similar + } employees in comparable { - communities - }
{ + units of government + }. As used in this paragraph,
'comparable' is limited to { + the same type of unit of
government in + } communities of the same or nearest population
range within Oregon. Notwithstanding the provisions of this
paragraph, the following additional definitions of 'comparable'
apply in the situations described as follows:
(A) For any city with a population of more than 325,000, '
comparable' includes { + , but is not limited to, + } comparison
to out-of-state cities of the same or similar size;
(B) For counties with a population of more than 400,000, '
comparable' includes { + , but is not limited to, + } comparison
to out-of-state counties of the same or similar size; and
(C) For the State of Oregon, 'comparable' includes { + , but is
not limited to, + } comparison to other states.
(f) The CPI-All Cities Index, commonly known as the cost of
living.
(g) The stipulations of the parties.
(h) Such other factors, consistent with paragraphs (a) to (g)
of this subsection { + , + } as are traditionally taken into
consideration in the determination of wages, hours, and other
terms and conditions of employment. However, the arbitrator shall
not use such other factors { - , - } if { + , + } in the
judgment of the arbitrator, the factors in paragraphs (a) to (g)
of this subsection provide sufficient evidence for an award.
{ - (5) - } { + (4) + } Not more than 30 days after the
conclusion of the hearings or such further additional periods to
which the parties may agree, the arbitrator shall select only one
of the last best offer packages submitted by the parties and
shall promulgate written findings along with an opinion and
order. The opinion and order shall be served on the parties and
the board. Service may be personal or by registered or certified
mail. The findings, opinions and order shall be based on the
criteria prescribed in subsection { - (4) - } { + (3) + } of
this section.
{ - (6) - } { + (5) + } The cost of arbitration shall be
borne equally by the parties involved in the dispute.
SECTION 6. ORS 243.746, as amended by section 5 of this 2001
Act, is amended to read:
243.746. (1) In carrying out the arbitration procedures
authorized in ORS 243.712 (2)(d), 243.726 (3)(c) and 243.742, the
public employer and the exclusive representative may not select
their own arbitrator. The State Conciliation Service shall
appoint
{ - a hearing officer from the Hearing Officer Panel
established by section 3, chapter 849, Oregon Laws 1999, as
arbitrator - } { + an arbitrator from the list of qualified
arbitrators maintained by the State Conciliation Service. The
Employment Relations Board shall adopt rules providing for a
random selection method for appointing arbitrators under this
section + }.
(2) The arbitrator shall establish dates and places of
hearings. Upon the request of either party or the arbitrator, the
Employment Relations Board shall issue subpoenas. Not less than
14 calendar days prior to the date of the hearing, each party
shall submit to the other party a written last best offer package
on all unresolved mandatory subjects, and neither party may
change the last best offer package unless pursuant to stipulation
of the parties or as otherwise provided in this subsection. The
date set for the hearing may thereafter be changed only for
compelling reasons or by mutual consent of the parties. If either
party provides notice of a change in its position within 24 hours
of the 14-day deadline, the other party will be allowed an
additional 24 hours to modify its position. The arbitrator may
administer oaths and shall afford all parties full opportunity to
examine and cross-examine all witnesses and to present any
evidence pertinent to the dispute.
(3) Where there is no agreement between the parties, or where
there is an agreement but the parties have begun negotiations or
discussions looking to a new agreement or amendment of the
existing agreement, unresolved mandatory subjects submitted to
the arbitrator in the parties' last best offer packages shall be
decided by the arbitrator. Arbitrators shall base their findings
and opinions on these criteria giving first priority to
paragraphs (a) and (c) of this subsection and secondary priority
to paragraphs (b) and (d) to (h) of this subsection as follows:
(a) The interest and welfare of the public. The arbitrator may
not consider this factor by reference to paragraphs (b) to (h) of
this subsection, but shall consider this factor by reference to
the last best offer package that would best ensure the public's
enjoyment of the highest quality and quantity of government
services of all types.
(b) The reasonable financial ability of the unit of government
to meet the costs of the proposed contract throughout the life of
the contract, giving due consideration and weight to the other
services, provided by, and other priorities of, the unit of
government as determined by the governing body. A reasonable
operating reserve against future contingencies, which does not
include funds in contemplation of settlement of the labor
dispute, shall not be considered as available toward a
settlement.
(c) The ability of the unit of government to attract and retain
qualified personnel at the wage and benefit levels provided.
(d) The overall compensation presently received by the
employees, including direct wage compensation, vacations,
holidays and other paid excused time, pensions, insurance,
benefits, and all other direct or indirect monetary benefits
received.
(e) Comparison of the overall compensation of other employees
of the same unit of government or other employees performing
similar services with the same or similar employees in comparable
units of government. As used in this paragraph, 'comparable' is
limited to the same type of unit of government in communities of
the same or nearest population range within Oregon.
Notwithstanding the provisions of this paragraph, the following
additional definitions of 'comparable' apply in the situations
described as follows:
(A) For any city with a population of more than 325,000, '
comparable' includes, but is not limited to, comparison to
out-of-state cities of the same or similar size;
(B) For counties with a population of more than 400,000, '
comparable' includes, but is not limited to, comparison to
out-of-state counties of the same or similar size; and
(C) For the State of Oregon, 'comparable' includes, but is not
limited to, comparison to other states.
(f) The CPI-All Cities Index, commonly known as the cost of
living.
(g) The stipulations of the parties.
(h) Such other factors, consistent with paragraphs (a) to (g)
of this subsection, as are traditionally taken into consideration
in the determination of wages, hours, and other terms and
conditions of employment. However, the arbitrator shall not use
such other factors if, in the judgment of the arbitrator, the
factors in paragraphs (a) to (g) of this subsection provide
sufficient evidence for an award.
(4) Not more than 30 days after the conclusion of the hearings
or such further additional periods to which the parties may
agree, the arbitrator shall select only one of the last best
offer packages submitted by the parties and shall promulgate
written findings along with an opinion and order. The opinion and
order shall be served on the parties and the board. Service may
be personal or by registered or certified mail. The findings,
opinions and order shall be based on the criteria prescribed in
subsection (3) of this section.
(5) The cost of arbitration shall be borne equally by the
parties involved in the dispute.
SECTION 7. { + The amendments to ORS 243.746 by section 6 of
this 2001 Act become operative on January 1, 2004. + }
SECTION 8. ORS 243.752 is amended to read:
243.752. (1) A { - majority - } decision of the
{ - arbitration panel - } { + arbitrator + }, under ORS
243.706 { + , + } { - and - } 243.726 and 243.736 to 243.746,
if supported by { + findings of fact based on + } competent,
material and substantial evidence on the whole record { - ,
based upon the factors - } { + and by a clear and reasoned
explanation of how its provisions, based on the facts, meet the
criteria + } set forth in ORS 243.746
{ - (4) - } { + (3) + }, shall be final and binding upon the
parties. Refusal or failure to comply with any provision of a
final and binding arbitration award is an unfair labor practice.
Any order issued by the Employment Relations Board pursuant to
this section may be enforced at the instance of either party or
the board in the circuit court for the county in which the
dispute arose.
(2) The { - arbitration panel - } { + arbitrator + } may
award increases retroactively to the first day after the
expiration of the immediately preceding collective bargaining
agreement. At any time the parties, by stipulation, may amend or
modify an award of arbitration.
SECTION 9. ORS 243.762 is amended to read:
243.762. { - Nothing in ORS 240.060, 240.065, 240.080,
240.123, 243.650 to 243.782, 292.055 and 341.290 is intended to
prohibit - } A public employer and the exclusive representative
of its employees
{ - from entering - } { + may not enter + } into a collective
bargaining agreement { - which - } { + that + } provides for
a compulsory arbitration procedure { - which is substantially
equivalent to - } { + other than that set forth in + } ORS
{ + 243.706 and + } 243.742 to 243.756.
SECTION 10. ORS 342.905 is amended to read:
342.905. (1) If the district school board dismisses the teacher
or does not extend the contract of the contract teacher, the
teacher or the teacher's representative may appeal that decision
to the Fair Dismissal Appeals Board established under ORS 342.930
by depositing by certified mail addressed to the Superintendent
of Public Instruction and a copy to the superintendent of the
school district:
(a) In the case of dismissal, within 10 days, as provided in
ORS 174.120, after receipt of notice of the district school
board's decision, notice of appeal with a brief statement giving
the reasons for the appeal.
(b) In the case of a contract non-extension, within 15 days, as
provided in ORS 174.120, after receipt of the written notice of
non-extension of a contract, notice of appeal with a brief
statement giving the reasons for the appeal.
(2) The Attorney General shall assign an assistant, at no cost
to either involved party, to advise the Fair Dismissal Appeals
Board, to be present at the oral argument held by the board, and
to perform those tasks at the request of the board that would
normally require legal training.
(3) Within five days after receipt of the notice of an appeal
of contract non-extension, the district shall serve upon the Fair
Dismissal Appeals Board and the teacher a written statement of
reason for the contract non-extension, which shall include:
(a) A plain and concise statement of the facts relied on to
support the statutory grounds for non-extension of the contract;
(b) The statutory grounds upon which the district believes such
contract non-extension is justified; and
(c) A list of witnesses and documents upon which the district
will rely at hearing.
(4)(a) The Employment Relations Board shall maintain a list of
no fewer than 10 persons who are experienced in public education
and employment relations. The Employment Relations Board shall
give priority consideration for such list to persons jointly
recommended by the Oregon School Boards Association and Oregon
Education Association provided that, if there are insufficient
joint recommendations from those organizations, the Employment
Relations Board may select other persons who the board determines
hold the requisite experience and neutrality to resolve disputes.
(b) Upon the filing of an appeal of a contract dismissal or
non-extension, a hearings officer shall forthwith be mutually
selected by the parties from a list maintained by the Employment
Relations Board.
(c) Alternatively, the teacher and the district superintendent
may agree on an individual who is not on the list to serve as the
hearings officer.
(d) The parties shall mutually share the reasonable costs and
charges of the hearings officer.
(5)(a) At least 10 days prior to the hearing, the teacher shall
provide a list of witnesses and exhibits to the hearings officer
and the school district.
(b) The hearings officer shall hold a contested case hearing
under ORS 183.310 to 183.550 within 30 days of the receipt by the
teacher of notice of dismissal, or within 35 days of the receipt
by the teacher of the statement of reasons in the case of
contract non-extension. The hearings officer shall be empowered
to take all steps reasonably necessary to conduct a hearing,
develop and maintain a record of testimony, documents and other
exhibits, and to make findings of fact that in the hearings
officer's judgment are pertinent to the dispute. The hearings
officer, at the request of the district or teacher, may subpoena
and swear in witnesses and require them to give testimony and to
produce documents and other records relevant to the issues before
the Fair Dismissal Appeals Board. The hearing shall be private
unless the teacher requests a public hearing. At the hearing, the
district and the contract teacher shall have the right to be
present and be heard, to be represented by counsel, to present
evidence and cross-examine adverse witnesses and to offer
evidence that in the hearings officer's judgment is relevant to
the dispute. The hearings officer may take all reasonable steps
to require the parties to conclude the hearing in an expeditious
manner.
(c) The hearings officer shall file proposed findings of fact
in the dispute no later than 30 days after the close of the
hearing and serve the same on the parties and Fair Dismissal
Appeals Board by personal service or certified mail, return
receipt requested.
(d) Within 10 days of receipt of the hearings officer's
proposed findings of fact, either party may file objections to
the proposed findings of fact. However, no new testimony,
documents or exhibits will be accepted by the board. If no such
objections to the findings of fact are filed, the proposed
findings of fact shall be accepted by the Fair Dismissal Appeals
Board, which shall proceed to consider the controversy unless the
parties inform the Fair Dismissal Appeals Board that the dispute
has been resolved.
(6) As soon as possible after the time the notice of appeal is
received by the Superintendent of Public Instruction, the
superintendent shall appoint a panel of three members from the
Fair Dismissal Appeals Board. Insofar as practicable the panel
shall be selected from those members of the board serving in
positions where the average daily membership as determined in ORS
342.930 most nearly coincides with that of the involved district.
One member shall be from the category representing board members;
one member shall be from the category of persons not affiliated
with common or union high school districts; and one member shall
be from the category representing teachers or administrators. If
the appeal is from a contract teacher in a teaching position, the
board shall include the teacher member. If the contract teacher
is in an administrative position, the administrative member shall
sit in place of the teacher member. No panel shall contain a
member who is resident of the district that is bringing the
dismissal or non-extension.
(7) Upon receipt of the hearings officer's proposed findings of
fact and any objection filed by the parties, the Fair Dismissal
Appeals Board panel shall provide the parties with a reasonable
opportunity for oral and written argument. The oral argument
shall be limited to one-half hour for each party. No later than
140 days after filing of the appeal, consistent with due process,
the Fair Dismissal Appeals Board panel shall render its written
decision and serve the same on the parties by personal service or
certified mail, return receipt requested.
(8) When the Fair Dismissal Appeals Board panel has completed
its review, it shall prepare a written report and send it to the
contract teacher, the district superintendent, the district
school board and the Superintendent of Public Instruction. The
Fair Dismissal Appeals Board panel shall determine whether the
facts relied upon to support the statutory grounds cited for
dismissal or non-extension and included in the hearings officer's
findings of fact are true and substantiated. The panel's review
of the evidence shall be de novo. If the panel finds these facts
true and substantiated, it shall then consider whether such
facts, in light of all the circumstances and additional facts
found by the hearings officer that are relevant to the statutory
standards in ORS 342.865 (1), are adequate to justify the
statutory grounds cited. In making such determination, the panel
shall consider all reasonable written rules, policies and
standards of performance adopted by the school district board
unless it finds that such rules, policies and standards have been
so inconsistently applied as to amount to arbitrariness. The
panel shall not reverse the dismissal or non-extension if it
finds the facts relied upon are true and substantiated unless it
determines, in light of all the evidence and for reasons stated
with specificity in its findings and order, that the dismissal or
non-extension was unreasonable, arbitrary or clearly an excessive
remedy. The panel shall prepare the report within 30 days from
the date of the oral arguments.
(9)(a) Subject to subsection (8) of this section, if the Fair
Dismissal Appeals Board panel finds that the facts relied on to
support the recommendation of the district superintendent are
untrue or unsubstantiated, or if true and substantiated, are not
adequate to justify the statutory grounds cited as reason for the
dismissal or non-extension, and so notifies the contract teacher,
the district superintendent, the district school board and the
Superintendent of Public Instruction, the teacher shall be
reinstated and the teacher shall receive such back pay as ordered
by the Fair Dismissal Appeals Board panel for the period between
the effective date of the dismissal or non-extension and the date
of the order reinstating the teacher, or the date when the
district actually reinstates the teacher, whichever is later.
However, nothing in this section requires a school district to
pay the teacher until the reinstatement occurs if the district
has other legal grounds for not reinstating the teacher.
(b) So long as the right of the district board under subsection
(11) of this section and under ORS 183.480 and 183.500 to
judicial review of the action of the Fair Dismissal Appeals Board
remains unexpired, the district school board may withhold the
reinstated teacher from performance of teaching duties, unless
otherwise ordered by the court having jurisdiction of the appeal.
(c) Subject to ORS 342.850 (9), if the Fair Dismissal Appeals
Board panel determines that the procedures described in ORS
342.850 (2)(b)(A) to (D) have not been substantially complied
with, the teacher may be reinstated with back pay as provided in
paragraph (a) of this subsection.
(10) If the Fair Dismissal Appeals Board panel finds the facts
relied on to support the recommendation of the district
superintendent true and substantiated, and that those facts
justify the statutory grounds cited as reason for the dismissal
or non-extension and so notifies the contract teacher, the
district superintendent, the district school board and the
Superintendent of Public Instruction in writing, the dismissal or
non-extension becomes final on the date of the notice.
(11) An appeal from action of the Fair Dismissal Appeals Board
shall be taken in the manner provided in ORS 183.480.
{ - (12)(a) If both the district board and the teacher or
teacher's representative agree, arbitration may be used as an
alternative to a hearing before the Fair Dismissal Appeals Board
to determine if the teacher's dismissal or non-extension of a
contract is in compliance with the standards of ORS 342.805 to
342.910. If the teacher or teacher's representative desires to
use the arbitration procedure, the request for arbitration shall
be included in the request for appeal that is filed with the
Superintendent of Public Instruction under this section. Within
10 days of the time the superintendent of the district is
notified of the teacher's intent to appeal the dismissal or
non-extension of a contract, the superintendent of the district
shall notify the teacher or teacher's representative and the
Superintendent of Public Instruction as to whether the district
has agreed to use the arbitration procedure. If the district
determines not to use the arbitration procedure, the hearing
procedure shall be continued under this section in the same
manner as if no request for arbitration had been made. If the
arbitration procedure is used, the teacher has no further rights
to a hearing before the Fair Dismissal Appeals Board. - }
{ - (b) The procedures for selection of the arbitrator are
those in the applicable collective bargaining agreement. If there
is no provision or agreement or if the agreement does not contain
a procedure for selection, the parties shall request a list of
five arbitrators from the Employment Relations Board and shall
choose an arbitrator by alternative striking of names until one
name is left. The remaining person shall act as the arbitrator.
The Employment Relations Board shall compile a roster of
qualified arbitrators from which the lists are to be taken. - }
{ - (c) In determining whether the district board's dismissal
or non-extension of the teacher should be sustained, the
arbitrator shall use the same reasons, rules and levels of
evidence as are required for the Fair Dismissal Appeals Board
under ORS 342.805 to 342.910. - }
SECTION 11. ORS 243.722 is amended to read:
243.722. (1) In carrying out the fact-finding procedures
authorized in ORS 243.712 (2)(c), the public employer and the
exclusive representative may select their own fact finder.
(2)(a) Where the parties have not selected their own fact
finder within five days after written acknowledgment by the
Employment Relations Board that fact-finding has been jointly
initiated, the board shall submit to the parties a list of seven
qualified, disinterested, unbiased persons. A list of Oregon
fact-finding interest arbitrations for which each person has
issued an award shall be included. Each party shall alternately
strike three names from the list. The order of striking shall be
determined by lot. The remaining individual shall be designated
the 'fact finder. '
(b) When both parties desire a panel of three fact finders
instead of one as provided in this subsection, the board shall
submit to the parties a list of seven qualified, unbiased,
disinterested persons. Each party shall alternately strike two
names from the list. The order of striking shall be determined by
lot. The remaining three persons shall be designated 'fact
finders. '
(c) When the parties have not designated the fact finder and
notified the board of their choice within five days after receipt
of the list, the board shall appoint the fact finder from the
list. However, if one of the parties strikes the names as
prescribed in this subsection and the other party fails to do so,
the board shall appoint the fact finder only from the names
remaining on the list.
(d) The concerns regarding the bias and qualifications of the
person designated by lot or by appointment may be challenged by a
petition filed directly with the board. A hearing shall be held
by the board within 10 days of filing the petition and the board
shall issue a final and binding decision regarding the person's
neutrality within 10 days of the hearing.
(3) The fact finder shall establish dates and places of
hearings. Upon the request of either party or the fact finder,
the board shall issue subpoenas. The fact finder may administer
oaths and shall afford all parties full opportunity to examine
and cross-examine all witnesses and to present any evidence
pertinent to the dispute. Not more than 30 days from the date of
conclusion of the hearings, the fact finder shall make written
findings of fact and recommendations for resolution of the
dispute and shall serve such findings and recommendations upon
the parties and upon the board. Service may be personal or by
registered or certified mail. Not more than five working days
after the findings and recommendations have been sent, the
parties shall notify the board and each other whether or not they
accept the recommendations of the fact finder. If the parties do
not accept them, the board, five days after receiving notice that
one or both of the parties do not accept the findings, shall
publicize the fact finder's findings of facts and
recommendations.
(4) The parties may voluntarily agree at any time during or
after fact-finding to submit any or all of the issues in dispute
to final and binding arbitration, and if such agreement is
reached prior to the publication of the fact finder's findings of
facts and recommendations, the board shall not publicize such
findings and recommendations.
(5) The cost of fact-finding shall be borne equally by the
parties involved in the dispute.
(6) Fact finders shall base their findings and opinions on the
matters prescribed in this subsection in accordance with the
criteria set out in ORS 243.746 { - (4)(a) to (h) - } { +
(3) + }.
SECTION 12. { + (1) The amendments to ORS 243.706, 243.712,
243.722, 243.746, 243.752, 243.762 and 342.905 by sections 1, 4,
5, 8, 9, 10 and 11 of this 2001 Act apply only to agreements
entered into on or after the effective date of this 2001 Act.
(2) The amendments to ORS 243.706 and 243.746 by sections 2 and
6 of this 2001 Act apply only to agreements entered into on or
after January 1, 2004. + }
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