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ADVICE OF RIGHTS TO PARTIES: PRIVATE
  ORS 183.413 ADVICE OF RIGHTS TO PARTIES: PRIVATE SECTOR HEARINGS  

I. Nature & Purpose of Hearing
 
The hearing scheduled in this case is an administrative hearing which will be conducted in accordance with the statutes and Employment Relations Board rules that apply to the type of proceeding: unfair labor practice complaint (ORS 663.185, 663.195, 663.270 and Board Rules 115-10-070, 115-70-040 and 115-70-045), representation (ORS 663.020, 663.025, and Board Rules 115-10-070 and 115-60-040), or deauthorization (ORS 663.035 and Board Rules 115-10-070 and 115-65-000). The Board will base its final decision on the record made at hearing.
 
After the Complainant filed this charge with the Board, an Administrative Law Judge (ALJ) investigated the charge, recommended that the Board issue a complaint and drafted the complaint. A different ALJ will conduct the hearing. Complainants are responsible for providing their own representation at hearing. The Board will not be represented by an attorney in the hearing.
 
Unfair labor practice complaint hearings are adversarial. The purpose of such hearings is to give the parties an opportunity to submit evidence on the issues raised by the complaint and answer.
 
Representation and deauthorization hearings are investigatory. The purpose of such hearings is to enable the Board to obtain evidence on the issues raised by the petition and objections.
 

II. Hearing Process
 
An ALJ, who is an employee of the Board, will conduct the hearing.
 
(1) Prehearing Conference.
 
A prehearing conference will usually be held before the formal hearing. At the conference, the ALJ may mark as exhibits documents which are to be offered, determine the names of the parties' witnesses, seek stipulations on uncontested matters, propose a statement of the issues, and discuss any other preliminary matters with the parties.
 
(2) Subpoenas.
 
A party may subpoena witnesses or documents. The Board will issue subpoenas to a party upon request and a showing of the general relevance and reasonable scope of the evidence sought. If a party is represented by an attorney, that attorney may issue subpoenas for the party. Payment of witness and mileage fees to the person subpoenaed is the responsibility of the party which subpoenaed the witness. Subpoenas must be served within a reasonable time prior to the hearing.
 
(3) Order of Presentation of Evidence.
 
In unfair labor practice hearings, the Complainant (the party which filed the charge) will proceed first. A Respondent (the party against which a complaint is filed) that fails to answer a complaint or fails to deny an allegation will not be allowed to present or rebut evidence as to the facts alleged but may present legal argument. In representation and deauthorization hearings, the ALJ will usually require the employer to present evidence first, because it has ready access to evidence regarding its operations.
 
In all hearings, the party presenting evidence first will have the opportunity to make a brief opening statement of its position. The other party may then make its opening statement or may wait and do so prior to the presentation of its case. The first party may then present evidence. When the first party has finished, the second party may then present evidence in the same manner. After all the evidence has been presented, the parties may make closing statements or submit written arguments, if permitted by the ALJ. There will be no continuance or reopening of the hearing to offer additional evidence unless a party can show that it did not know of the additional evidence at the time of the hearing and that it could not have discovered the evidence with reasonable diligence prior to the hearing or the ALJ determines that other evidence is required.
 
(4) Accommodation for Individuals with Disabilities or Who do not Speak English.
 
The Board requests that the parties direct individuals with disabilities (such as hearing or vision impairments) or who do not speak English, and who have an interest in the hearing, to notify the ALJ of any need for alternate forms of communication or for the assistance of an interpreter.
 
(5) Burdens of Proof and Going Forward with the Evidence.
 
In unfair labor practice hearings, the Complainant has the burden of proving the allegations in the complaint are true. (In other words, Complainant must show that, more likely than not, the allegations in the complaint are true.) The Respondent has the burden of proving any affirmative defenses raised in its answer. In representation and deauthorization hearings, there is no burden of proof. The ALJ may call witnesses and ask questions to ensure that a complete record is made.
 
(6) Types of Evidence Admissible and Objections to Evidence.
 
Parties may present evidence in the form of documents and testimony of witnesses. All witnesses must swear or affirm that their testimony will be truthful. The ALJ may also take official notice of Board files or other facts which are within the Board's expertise. All evidence offered is subject to objection by other parties. Evidence which is irrelevant, immaterial or unduly repetitious will be excluded.
The ALJ will rule on objections to evidence and may receive, reject, or defer ruling on the admissibility of the evidence until the issuance of the proposed order. The objections, rulings, and any exceptions to the rulings are part of the record, and all rulings are subject to revision by the ALJ when issuing a recommended order or by the Board when issuing its a final order.
 
(7) Nature of Decision of ALJ and Board.
 
After the hearing ends, the ALJ will issue a recommended order based on the evidence in the record. This is not a final order. Any party may object to a proposed order by filing written objections within 14 days from the date the recommended order was mailed or personally delivered by the Board to the parties. Whether or not objections are filed, the matter will be referred to the full Board for final decision. The Board generally will provide the parties an opportunity to present oral and written argument on any timely objections before making a final decision. The Board's final decision must be based on the evidence in the record.
 

III. Representation in Hearing
 
Parties are entitled to be represented in these cases. An Oregon corporation may be required to be represented by an attorney; ORS 9.320. Because of the complexity and significance of issues that can arise, parties usually are represented by an attorney or a labor-management consultant. If complex issues are present, parties are encouraged to at least consult with an attorney or labor-management consultant concerning how to prepare for the hearing. If a party chooses not to be represented in the hearing, the party may at any stage of the hearing request postponement or recess for the purpose of obtaining representation or to seek legal advice on matters in issue.
 
The ALJ is an attorney and may assist the parties to understand procedural or evidentiary matters. However, the ALJ cannot give advice, make recommendations, or act as an advocate. The Board will not be represented by an attorney in the hearing or in the oral argument before the Board.
 

IV. Record of the Proceedings
 
The record of the proceedings will include all testimony, evidence, and exhibits presented at the hearing. The hearing will be recorded on audio cassette tapes. A verbatim transcript of the record may be prepared. Copies of the cassettes and the transcript may be obtained for a fee.
 

V. Appeal Rights
 
A party may appeal the final order of the Board by filing a petition for judicial review with the Court of Appeals within 60 days of the date the order was mailed or personally delivered by the Board. The type of case and nature of the order issued by the Board will have a bearing on parties' appellate rights. Parties should review ORS Chapter 183 and consult with an attorney concerning their appellate rights. After an appeal is filed, the Board will provide the record of the hearing to the Court of Appeals.