Petitions for Clarification of Bargaining Unit
Filing Petitions for Clarification of a Bargaining Unit:
For purposes of this rule, a question of representation exists only when the employees who are the subject of such a petition are unrepresented and as a group would constitute an appropriate unit as determined by the Board;
When no question of representation exists, the recognized or certified representative or the public employer may petition for clarification of a bargaining unit, subject to other applicable requirements of this rule.
When no question of representation exists, a group of unrepresented employees may petition under ORS 243.682 (Representation questions)(2)(a) to include the unrepresented employees in an existing bargaining unit without an election, subject to other applicable requirements of this rule. A petition filed under this subsection may also be jointly filed with the recognized or certified representative of the existing bargaining unit.
All petitions shall be filed in writing on a form approved by the Board. The petitioner shall designate one or more of the subsections on the form to indicate the clarification issue(s) that the petitioner intends to raise.
After the filing of objections, if any, the 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 shall determine whether the petition complies with the requirements of the appropriate subsection(s).
If the Board determines that an election would be appropriate to further the policies expressed in ORS 243.662 (Rights of public employees to join labor organizations), the Board may order a self-determination election among the affected employees as a result of a petition filed by a labor organization under this subsection. For example, a self-determination election may be ordered if 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.
When the issue raised by the clarification petition is whether certain positions are or are not included in a bargaining unit under the express terms of a certification description or collective bargaining agreement, a petition may be filed at any time, except that the petitioning party shall be required to exhaust any grievance in process that may resolve the issue.
When the issue raised by the clarification petition is whether certain unrepresented positions should be added to an existing bargaining unit, the petition must be supported by a 30 percent showing of interest among the unrepresented employees sought to be added to the existing unit, unless the petition is filed under subsection (1)(c) of this rule, in which case the petition must be supported by a majority of employees as required by subsection (7)(a) of this rule. If the employees sought to be added to the unit occupy positions that existed and were filled at the time of the most recent certification or recognition agreement, the petition must be filed during the open period provided for in OAR 115-025-0015 (Timeliness of Petitions)(4) and will be subject to the provisions of OAR 115-025-0015 (Timeliness of Petitions)(1) and (3). If the employees sought to be added to the unit occupy positions that were created or were filled after the most recent certification or recognition agreement, the petition may be filed at any time and will not be subject to the provisions of OAR 115-025-0015 (Timeliness of Petitions). Except for unit clarification petitions described in subsections (1)(b) and (7) of this rule, if the Board determines that it would be appropriate to add the unrepresented positions to the existing bargaining unit, the Board shall order a self-determination election in which the unrepresented employees will vote either to be represented within the existing bargaining unit or for no representation. The election shall be conducted by a Board Agent in accordance with the provisions of OAR 115-025-0055 (Notice of Election; Improper Use of Notice) and 115-025-0060 (Election Procedures), to the extent such rules are applicable to a self-determination election. If a majority of the unrepresented employees who vote cast ballots in favor of representation, the existing bargaining unit shall be clarified to include those employees.(5)(a) A clarification petition concerning whether there should be a merger of two or more bargaining units represented by the same labor organization and employed by the same employer must be filed during the open period provided for in OAR 115-025-0015 (Timeliness of Petitions)(4), as that rule applies to the larger (or largest) of the bargaining units.
A petition for clarification through merger must be supported by a showing of interest of a majority of the employees in each unit stating that they wish their unit to be merged with the other unit.
The Board shall order a clarification through merger when it determines that the description of the merged unit, which must include all employees in the existing units, describes an appropriate unit.
When the Board approves a clarification through merger, 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.(6)(a) A clarification petition that concerns a group of employees currently represented within (as a fragment of) another bargaining unit more appropriately belongs in a unit represented by the petitioning labor organization must include signatures of a majority of the employees in the affected group stating that they wish to be represented by the petitioning labor organization as part of that organization’s bargaining unit.
If the Board determines that it would be appropriate to add the positions in question to the petitioning organization’s bargaining unit, the Board shall order a self-determination election in which the employees in question will vote either to be represented within the existing bargaining unit or by the petitioning organization’s bargaining unit.
If a majority of the employees who vote cast ballots in favor of representation by the petitioning organization, the Board shall order the clarification.(7)(a) Unrepresented employees will be added to an existing bargaining unit without an election under ORS 243.682 (Representation questions)(2)(a) and subsection (1)(c) of this rule, if the Board finds that:
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 as the exclusive representative; and
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 in the existing bargaining unit.
Authorizations submitted under this section must be signed by employees within 180 days of the filing of the petition for clarification without an election.