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Representation Cost Orders
 
Table Summarizing Representation Cost Orders issued from January 1, 2003 through present
 
Table Summarizing Representation Cost Orders issued March 1998 through December 31, 2002
 
Table Summarizing Attorney Fee Orders issued from January 1, 2003 through present

Statutory Authority ORS 243.676 and ERB Rule OAR 115-35-055 
Regarding Representation Cost Orders 
 
 
General Factors the Board Applies in Representation Cost Orders  
 

NOTE:  This summary of some of the criteria the Board considers when deciding a petition for representation costs is provided for your convenience only.  The statute (ORS 243.676), administrative rule (OAR 115-35-055), and Board Orders remain the controlling authority.
 
 
  • The Board typically awards representation costs reasonably incurred by the prevailing party in an unfair labor practice case.  Costs reasonably incurred are about one-third of the number of hours reasonably required for the litigation multiplied by the reasonable hourly rate for services rendered.
 
  • Average number of hours charged per day of hearing:  45 to 50.
 
  • Average number of hours charged in cases presented on stipulated facts:  16 to 25.
 
  • Average hourly rate in 2005:  $135
 
  • When the prevailing party's representative provides services under a retainer agreement or as an employee of the party (i.e., the representative does not bill the party at an hourly rate), the Board bases its award on the reasonable value of the services rendered.
 
  • The Board will award no more than $3,500 for representation costs except in circumstances where a civil penalty would be appropriate.
 
  • Reimbursement for service fees, photocopying, clerical charges, mileage, postage, and long-distance telephone charges cannot be recovered as representation costs.
 
  • Civil penalties and filing fee reimbursements cannot be recovered as representation costs.  A party must request such recovery in its complaint or answer, and the Board will consider such requests in its final Order.
 
  • The Board generally makes larger-than-average awards (usually 50% of reasonable representation costs rather than the more typical 33%) when Respondent discriminated against employees (ORS 243.672(1)(a)), refused to arbitrate or refused to implement an arbitration award (ORS 243.672(1)(g)).
 
  • The Board generally makes smaller-than-average awards (usually 25% of reasonable representation costs rather than the more typical 33%) in:

    --scope of bargaining disputes under ORS 243.672(1)(e);

    --cases of first impression and cases with “novel” issues; and

    --cases resolved through consent order.
 
  • The Board generally makes smaller-than-average awards (usually 10% of reasonable representation costs rather than the more typical 33%) in duty of fair representation complaints, when Respondent prevails and Complainant relies on personal resources to litigate the claim.
 
  • When both parties prevail on separate charges and both parties petition for representation costs, the Board determines the respective percentages and offsets the results.  (For example, where Respondent prevailed as to 60% and Complainant prevailed as to 40%, Respondent is a 20% prevailing party.)
 
  • When both parties prevail on separate charges but only one party petitions for representation costs, the Board determines the percentage on which the petitioning party prevailed, and it awards representation costs only on that portion of the case.
 
  • The Board issues one representation cost award when it has joined several complaints and issued one order on the merits.
 
  • Intervenor is not considered a "prevailing party" for purposes of representation cost awards.
 
  • A petition for representation costs must specify the services performed during the hours claimed, and it must state how the requested award would be consistent with the purposes and policies of the PECBA.