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Representation Cost
SUMMARY OF ERB REPRESENTATION COST AND APPELLATE ATTORNEY FEE ORDERS
MARCH 1998 THROUGH DECEMBER 31, 2002 (1)
 
Case No.
Rep. Cost Cite(2)
Case Name
Date of Cost Order
ORS 243.672
Subsection Claim
Hours
and
Rates
Total RequestOrder
$ / % of Request
Summary of Board Representation Cost Order (3)
UP-74-95

Vilches & Central EA v. Central
SchoolDistrict

10-29-98
(1)(a) termination54.5 $120
$6540 (Related to actual claim)
$1800 28%
(51% of $3500)
Complainant prevailed; 17 PECBR 54 (1996), reconsid 17 PECBR 93 (1997), enforcement petition/motion to stay 17 PECBR 250 (1997), affirmed 155 Or App 92 (1998), compliance order 17 PECBR 792 (1998). Hours reflect time directly connected to case, not time prior to events at issue in complaint. One-day hearing before ALJ. Number hours exceeds average. Hourly rate exceeds "the more typical $110-115." In ORS 243.672(1)(a) cases, "this Board typically issues larger than normal awards ... because such violations impact the core rights the [PECBA] was designed to protect." Not a unanimous decision; Board applied private sector principles. No civil penalty. Average award.
UP-67-96
17 PECBR 643 (1998)

Coos Bay Education Association v. Coos Bay Sch Dist

5-15-98
(1)(a) and (e)61

$115
$6785

(Adjusted
to 20%, or $1357)
$500

37%
Both parties prevailed on portions of the decision on the merits; 17 PECBR 502 (1998), reconsid. 17 PECBR 581 (1998). As a result, "this Board reviews the record to determine the percentage of the case won by each party and then offsets the percentages for purposes of making a cost award." ECBC v. Centennial SchDist, 8 PECBR 8359 (repcost order 1986). Respondent prevailed as to 60%, Complainant as to 40%, so Respondent is a 20% prevailing party. MVBC and Clausing-Lee v. Corvallis SchDist, Case No. UP-69-95 (repcost order 1997).Three-day hearing. Number of hours is "well below the number typically claimed" in similar cases. On the merits, an average award is appropriate. Although Respondent's petition was not filed within 21 days of the final order, it was filed within 21 days of the order on reconsideration and therefore
UP-72-96

Poole&PAT v. Multnomah School District
Attorney fees on appeal

7-30-01
(1)(a) change in classes employer assigned union activist employee to teach74.6$3500

($8570 actual fees)
$950

(27% of $3500)
19 PECBR 284 (2001), on remand from 171 Or App 616 (2000). The Board considered the petition of prevailing party Complainants, filed before the appellate judgment, to be timely under Eugene, Case No. UP-5-97, 18 PECBR 97 (1999). Number of hours claimed was about three times amount in similar appeals; rate was reasonable. While court reversed the Board's initial order dismissing the complaint, for the Board's failure to provide an adequate explanation, the Board stated that the court "specifically rejected Complainants' arguments that this Board applied the wrong legal test * * *." On remand, the Board again dismissed the complaint. The Board concluded that an average fee was appropriate.
UP-77-96

OPEU v. Wallowa County

4-15-98
(1)(a), (e), and (g)145.9

$90
$12,105$1200

10%

(34% of $3500)
17 PECBR 451 (1997), reconsid. 17 PECBR 536 (1998). Respondent petition timely; Complainant petition not timely. ("A pending request for reconsideration does not suspend the 21-day filing period for cost petitions.") About 60% of the case related to issues on which Respondent prevailed. Number hours claimed "is significantly greater than average (45-50 hours)." Hourly rate reasonable and "slightly lower than the more typical $100-115."
UP-4-97

McMinnEA v. McMinnSchD.

4-30-98
(1)(g) contract violation56.6

$115
$5579$1500

27%

(43% of $3500)
17 PECBR 539 (1998). Fact stipulation; hours slightly more than 45-50 hour average for one-day hearing; average award.
UP-5-97

EPEA v. City of Eugene

6-9-99
(1)(e) scope (crim defense costs)44.5

$170
$6095$1225

20%

(35% of $3500)
17 PECBR 299 (1997), aff'd 157 Or App 341 (1998), rev.den. 328 Or 418 (1999). Two-day hearing; fewer hours than average; rate exceeds typical $110 per hour; scope of bargaining case of first impression.
UP-23-97
OPEU v. DAS
and
UP-44-97
DAS v. OPEU

6-1-98
(1)(g) refuse to arb
(2)(e) refuse to sign contract
(2)(b) refuse provide information
51

$120
$6160$1000

16%

(29% of $3500)
17 PECBR 593 (1998). OPEU prevailed. Parties entered a fact stipulation and argued the case directly to the Board. "The number of hours claimed far exceeds the number of hours typically claimed (16-25) in cases submitted on stipulated facts." (When several cases are joined and one order issued, they are treated as a single representation cost case.) Defenses not frivolous; good faith disagreement.
UP-26-97

18 PECBR 184 (1999)

Baughman et al v. Lane County & OrDHR

7-22-99
(1)(a) discrim no hire146

$79
$11,526$2300

20%

(66% of $3500)
17 PECBR 447 (1997), 18 PECBR 42 (1999). Three-day hearing; no Board oral argument; hours somewhat high; AG rate well below average of $107; novel issues--case of first impression; less than average award
UP-29-97

Hood River County LEA v. Hood River County

1-25-99
(1)(e) false information; repudiate tentative agreement; provide information untimely61.58

$110
$6748

adjusted to $6073
$2225

37%

(37% of $3500)
17 PECBR 827 (1998). Two-day hearing before an ALJ. No objections to recommended order, so no appearance before the Board. Respondent prevailed on about 95% of the case, so is a 90% prevailing party. One Board member dissented to majority's holding that Complainant proved Respondent failed to provide information.
UP-33-97

Cascade Bargaining Council v. Bend-LaPine SchDist

7-20-98
(1)(g) refusal to accept arbitration award28.2

$115
$3003$2000

67%
17 PECBR 558 (1998), Member Thomas dissenting, motion to supplement record denied 17 PECBR 609 (1998). Case submitted on stipulated facts and argument to Board. "To effectuate the policy of the [PECBA] in favoring resolution of disputes through grievance arbitration, this Board typically makes a greater-than-average award in such cases."
UP-37-97

Milton-Freewater PolAssn v. City of Milton-Freewater

3-12-98
(1)(c) nonpayment
(1)(e) refusal to bargain
(1)(h) not write contract
39.4

$60
$2364$800

34%
17 PECBR 480 (1998). One-day hearing before ALJ; no post-hearing briefs; no objections to recommended order; no oral argument. Respondent prevailed. Representation costs do not include out-of-pocket, clerical, and filing fee expenses. Amount claimed is reasonable.
UP-42-97

Lincoln County EmpsAssn v. Lincoln County & DistAtty 12-15-98
(1)(a) and (e) authority of employer bargainer; bad faith proposals33

$90
$2970$990

33%
17 PECBR 683 (1998), Member Whalen concurring. Respondents prevailed. One-day hearing before the Board. Case of first impression. County petition timely; DA's petition untimely. "For policy reasons, substantial cost awards typically are not issued when matters of first impression are at issue." Average award appropriate.
UP-43-97

Eugene Police Employees Assn. v. City of Eugene

8-12-99
(1)(e) information duty14.9

$170
$2933$975

33%
17 PECBR 634 (1998), AWOP 159 Or App 425 (1999). Complainant prevailed. One-day hearing before ALJ and post-hearing briefs, but no recommended order, oral argument, or briefing to the Board. Number of hours claimed is "well below the more typical 40 hours per day of hearing," but the hourly rate is "considerably above the average hourly rate of $107." Case involved "unique factual scenario," and Respondent eventually provided all information to Complainant. Average award. Order regarding attorney fees on appeal: Complainant prevailing party; petition and objections timely; $969 requested (5.7 hours is "very low" and $170 per hour is "considerably higher than the average $107 rate"); unique facts and question not previously answered; average award appropriate: $325.
UP-47-97

Roseburg IAFF v. City of Roseburg

7-17-98
(1)(e) change in minimum staffing260.8

$120
$27,876$3500

13%

(100% of $3500)
17 PECBR 611 (1998). Respondent prevailed. Case involved scope of bargaining ("we typically do not issue a greater-than-average cost award in scope-of-bargaining disputes") and was a case of first impression. "Because an average cost award would exceed the $3500 maximum, we will order that amount."
UP-50-97

17 PECBR 751 (1998)

Meadows-West and Mid-Valley BargCouncil v. OrDeptofEd

9-29-98
(1)(g) refusal to arbitrate52.1

$115
60
45
$5758$2800

49%

(80% of $3500)
17 PECBR 664 (1998). Complainant prevailed. 1-day hearing and briefs to ALJ; oral argument and memo to Board; reasonable rate and number of hours. (Board granted Respondent's request for extension of time to file objection to petition.) On the merits, the Board determined that Respondent's refusal to arbitrate (based on arbitrability dispute) was not egregious. "This Board typically makes a greater-than-average cost award in cases involving a refusal to arbitrate or to accept an arbitration award, in order to effectuate the PECBA policies favoring arbitration." OPEU v. Linn County, Case No. UP-19-87, 10 PECBR 190 (repcost order 1987). Somewhat greater-than-average award is appropriate. (Member Thomas dissented, arguing that the case was "not a 'typical' refusal-to-arbitrate case," and proposed "the usual one-third
UP-52-97

Tillamook EdAssn v. Tillamook SchDist

1-14-00
(1)(a) & (c)
discrim in assigning union activist teacher
41.33

$125
$4798$1575

33%

(45% of $3500)
17 PECBR 914 (1999), Member Whalen dissenting. Complaint dismissed; not frivolous or bad faith. Complainant's objections to Respondent's petition were untimely; number of hours slightly less than typical; "hourly rate of $125 . . . is slightly above the average of $115." Average cost award appropriate.
UP-53-97

Eugene Police Employees Assn. v. City of Eugene

9-15-98
(1)(a) City contact with supervisors; (1)(e) information duty39.8

$129
$5032$1700

34%

(49% of $3500)
17 PECBR 675 (1998). Respondent prevailed. One-day hearing before ALJ. Hours claimed and rate reasonable.
UP-55-97

DCSA v. Deschutes County
Attorney fees on appeal

8-21-01
(1)(g) refusal to accept grievance arbitration award86.6

$175
$2205$1000

(45% of $2205)
17 PECBR 845 (1998), remanded 169 Or App 445 (2000), rev den 332 Or 137 (2001); 19 PECBR 321 (2001). Complainants were prevailing parties on appeal. Number of hours devoted to appeal exceeded average, and hourly rate was more than the average of $115. Question before the Board and the court of appeals "was one of first impression involving interpretation of 1995 amendments to ORS 243.706(1)." Board dismissed the complaint; the court of appeals reversed; and, on remand, the Board held that Respondent's refusal to accept grievance arbitration award was unlawful. Average fee award.
UP-55-97

DCSA v. Deschutes County

8-21-01
(1)(g) refusal to accept grievance arbitration award9.4

$175
$3447.50

(Board discussed mix of represent-ation cost and appellate attorney fees in sum sought.)
$375

(23% of 9.4 x $175)
17 PECBR 845 (1998), remanded 169 Or App 445 (2000), rev den 332 Or 137 (2001); 19 PECBR 321 (2001). Brief telephone hearing; ALJ transferred complaint to Board without recommended order; parties filed post-hearing briefs; number of hours billed was below number typically requested in cases processed without recommended order; hourly rate was more than $115 average. "Typically we grant larger than average awards in cases involving refusals to implement arbitration awards," but this was a case of first impression "and we typically issue smaller than average awards in cases of first impression." Average award, adjusted by above considerations, appropriate.
UP-63-97

Teamsters 223 v. City of Gold Hill

4-19-99
(1)(e) refusal to submit contract for ratification (1)(g) refuse. to arbitrate39.5

$120
$4740$2370

50%

(68% of $3500)
17 PECBR 892 (1999). Complainant prevailed. One-day hearing before ALJ. Hours claimed and rate reasonable. "This Board typically makes a greater than average award of costs in cases involving a refusal to arbitrate, in order to effectuate the PECBA policies favoring arbitration. . . . [A] somewhat greater than average award is appropriate."
UP-64-97

AFSCME & Lahr v. OrDHR

11-22-99
(1)(a) & (c) refusal to hire101.5

$79
$7939$1850

23%

(53% of $3500)
18 PECBR 257 (1999), Member Whalen dissenting. One-day hearing. Number of hours claimed "is more than twice the number (40-45) we have said is reasonable for a one-day hearing," but hourly rate is "substantially less than the average rate of $110 an hour." Amount claimed exceeds that of similar cases. ALJ dismissed on merits; majority of the Board dismissed the complaint as untimely. Less than average award.
UP-72-97

AFSCME v. City of Forest Grove

10-7-99
(1)(h) not sign
(1)(e) unilat change
(1)(g) contract violation
51.3

$110
$4793$1600

33%

(46% of $3500)
18 PECBR 157 (1999), Member Thomas concurring and dissenting. Number hours and rate are reasonable; Board held (1)(h) and (g) violated, but concluded there was no (1)(e) violation; average award.
UP-75-97

IAM Woodwrkr v. Roseburg UrbSanAuth

12-15-98
(1)(g) contract violation
(1)(a) retaliation
41.15

billed

$145
$3183

pro rated for claims heard
$100

31%
17 PECBR 757 (1998). Respondent prevailed. Respondent prorated its representation cost request to reflect that, in a settlement of some of the claims, the parties agreed to pay their own representation costs. Mileage, postage, photocopies and telephone calls are not recoverable as representation costs. One-day hearing before ALJ. After noting Complainant's argument that "a representation cost award would unduly burden the bargaining unit," Board said there were "no circumstances that mitigate in favor of a larger or smaller than average cost award."
UP-7-98

AOCE v. OrDOC

6-28-99
(1)(e) information duty21.9

$180
$3942$975

25%

(28% of $3500)
18 PECBR 64 (1999). Complainant prevailed. Number of hours claimed is about "half the 45 hours typically claimed for a one-day hearing with oral argument," while the rate is "considerably more than the average rate of $107 per hour." Case of first impression, in which Board did not order civil penalty or fee reimbursement; Board ordered smaller than average cost award.
UP-23-98

18 PECBR 708 (2000)

AOCE v. OrDept
Correcs & AFSCME

7-19-00
(1)(a), (b), (c), (f) claims regarding employer's recognition of AFSCME in new corrections facility64.60

$79
90
$3500

($5354 charge)
$1750

50%
18 PECBR 564 (2000), Member Thomas concurring in part and dissenting in part. Respondent prevailed. 1-day hearing; briefs; oral argument; hours claimed more than the 40-45 average for like cases; hourly rate "considerably lower" than $115 average; amount requested reasonable; complaint not frivolous: average cost award appropriate. Board dismissed Intervenor's petition for costs, noting that ORS 243.676(3)(b) authorizes costs to prevailing party only when Board determines "the person named in the complaint" has not violated the PECBA. Just as Intervenor is not liable if Complainant prevailed, Intervenor cannot obtain cost award when Respondent prevailed. Filing fee request rejected; if properly requested, it is considered in Board order on merits.
UP-31-98

Cascade UnifEdAssn v. Cascade SchDist

7-13-00
(1)(b) and (e) direct dealing97.5

$60
75
85
115
120
$3500

($8802 charge)
$1900

54%
18 PECBR 590 (2000). Complainant prevailed. 1-day hearing; briefs; oral argument; memos to Board; hours claimed more than twice the 40-45 typically claimed for a 1-day hearing and were "not justified, when measured against cases of similar complexity." Hourly rate for most services below the average $115 claimed, "but not sufficiently below to offset the extra hours claimed." Respondent's violation was not egregious or repetitive; average cost award deemed appropriate. Board did not consider miscellaneous expenses (mileage, copying, postage, phone) as "representation costs," under Joseph Ed Association v. Joseph School District, 16 PECBR 775 (repcost order 1996). Filing fee request rejected; if properly requested, it is considered in Board order on merits.
UP-32-98

Lincoln City PoliceEA v. Lincoln City

11-3-99
(1)(e) refusal to provide information24.7

$150
$3705$1200

32%

(34% of $3500)
18 PECBR 203 (1999), Member Thomas concurring. One-day hearing; number hours claimed is less than average, but rate is above average of $110; violation was not egregious and defense was not frivolous; average cost award appropriate.
UP-36-98

LUBC v. South Lane School District

10-29-02
(1)(h) refusal to sign grievance settlement document; (1)(g) refusal to arbitrate the grievance146.95

$125
120
110
105
85
75
$3500

($15,485 actual fees)
$160018 PECBR 1 (1999), aff'd 169 Or App 280 (2000), reversed 334 Or 157 (2002), order on remand 19 PECBR 936 (2002). Board dismissed complaint; court of appeals affirmed; and supreme court reversed Board and court of appeals. Complainant prevailed on the more significant issue, which the Board considered to be 60% of the case. Respondent prevailed on issue that was not novel, took less analysis than the other issue, and was not appealed: 40% of the case. Offsetting the percentages, as inCentennial School District, 8 PECBR 8359 (1986), the Board concluded that Complainant was a 20% prevailing party. One-day hearing before ALJ. Hourly rates claimed were reasonable, but number of hours exceeded average claimed in cases of similar complexity. "For purposes of our determination of an award, the total costs claimed by Complainant will
UP-45-98

AOCE v. OrDOC

3-13-00
(1)(e) State
not provide timely information in discharge grievance
37.9

$90
$3046$1015

33%
18 PECBR 377 (1999). One-day hearing. Rate and number hours less than average in similar cases. ALJ held employer violated PECBA; Board held no violation. Average award.
UP-46-98

Joseph EA v. Joseph School District

6-11-02
(1)(g) refusal to arbitrate grievances107.4

$115
85
60
$3500

($9499.76 actual fees)
$2500

(73% of $3450, which is 30 hours @$115)
18 PECBR 532, reconsid 18 PECBR 628 (2000), aff'd 180 Or App 461 (2002). Excluding hours devoted to a related circuit court case, the Board identified 30 hours of legal services directly connected with prosecuting the complaint. Under OAR 115-35-055(1)(c), Board excludes clerical expenses and complaint filing fee. Case presented on fact stipulation. As adjusted, number of hours was reasonable; rates were reasonable. Larger than average award appropriate in refusal to arbitrate cases. (Member Thomas not participating.)
UP-55-98

OPEU v. Jefferson County

10-20-99
(1)(a),(e),(f) inaccurate cost summ; distrib'd to barg'g unit; statements about replacement workers29

$90
$3890$1300

33%

(37% of $3500)
18 PECBR 109 (1999), Member Whalen dissenting in part, order on reconsid 18 PECBR 199 (1999). Lead rate of $90 somewhat below and co-counsel rate of $125 somewhat above average rate of $110; case was 1 of 3 that required 2 hearing days; no oral argument to Board. Part of cost summary was inaccurate; only second case with that claim; complaint was not frivolous. Average award.
UP-61-98

OUS v. OPEU

10-31-01
(2)(d) refusal to comply with arbitration award and breach of contract.132.3

$90
$3500

($11,907 actual fees)
$1985

19 PECBR 205, reconsid 19 PECBR 431 (2001), appeal pending. Two days of hearing before an ALJ, plus petition for reconsideration. Number of hours claimed was more than average in cases of similar complexity and duration; rate somewhat below average. On reconsideration, Board dismissed refusal to comply with arbitration award element of complaint but held that OPEU had breached its duty of good faith and fair dealing in using OUS's e-mail system; union's use of employer's e-mail system was matter of first impression. Reduced award considered appropriate.
UP-3-99

Lincoln City
PoliceEA v.
Lincoln City

1-6-00
(1)(a) discipline following the filing of a grievance10.9

$150
$1635$300

18%
18 PECBR 305 (1999) (consent order). Complainant drafted complaint, reviewed City's informal response, prepared for hearing. Number hours reasonable; rate "well above the average ($110)." "This Board encourages parties to voluntarily resolved their disputes" and "[we] typically issue a reduced award in cases involving consent orders. . . ."
UP-7-99

MtHoodCC
FacAssn & Kotulski v. MtHoodCC

9-5-00
(1)(g) refusal to arbitrate grievance92.2

most billed at $95
$3500

($8636 charge)
$1440

41%
18 PECBR 636 (2000), Member Thomas concurring and dissenting. Complainants prevailed. Fact stipulation submitted at hearing--so hearing preparation required--but "[e]ven so, the number of hours claimed is more than twice the number typically claimed for a one-day hearing," but rate claimed is "somewhat less than the average ($115)." Briefs to ALJ; briefs and oral argument to Board. Board generally issues greater than average cost award in refusal to arbitrate cases, because "our precedent establishes a strong presumption of arbitrability." However, ALJ and dissent argued complaint should have been dismissed as untimely. Average award appropriate.
UP-9-99

OPEU v. Jefferson County

10-7-99
(1)(a)&(b) direct dealing and distrib'n of dues form to members------18 PECBR 128 (1999), Member Whalen dissenting in part. Both parties prevailed on one claim; Board stated claims were equivalent; offsetting of percentages resulted in order of no payment of fees.
UP-14-99

State Teachers Assn. and Andrews et al v. Willamette ESD (WESD) and Oregon Department of Education (ODE)

11-4-02
(1)(a) and (c) complaint that:
--ODErefused to provide references for and gave WESD negative information about the 12 Complainants

--WESDrefused to hire the 12 Complainants
ODE: 257
@ $90



______ STA:
410 @
$125
120
115
90
85
75
58
55
ODE: $3500

($34,342 actual fees)
______ STA: $3500

($43,046 actual fees)
$3500 payable by STA to ODE


______ $3500 payable by WESD to STA
19 PECBR 228, denial of motion to stay 19 PECBR 339 (2001), appeal pending. 11 days of hearing before an ALJ.

ODE petition: Board dismissed STA's complaint against ODE. Number hours reasonable, considering length of hearing; rate below average. No factors favored either a larger or smaller than average award. The Board stated that, using its "typical formula," it would conclude that about $11,447 of ODE's $34,341.90 actual fees (33.3%) would be a reasonable amount for an award. Due to the usual $3500 cost maximum, the Board limited the award to that sum.

STA petition: Board held that, after ODE transferred a program to WESD, WESD unlawfully had failed to hire 5 of the 12 Complainants previously employed by ODE. Number of hours and rates reasonable. Board stated that it typically grants
UP-16-99

Jefferson County v. OPEU

5-11-00
(2)(a) coercion re protected activity; (2)(d) viol'n of implem'd final offer26.9

$115
$3093$600

19%
18 PECBR 285 (1999), Member Thomas dissenting; on reconsid, 18 PECBR 421 (2000), Member Thomas dissenting. Respondent prevailed. Case heard with three others in a 2-day hearing; briefs and oral argument to the Board; Board requested additional briefing re one claim; number of hours claimed is less than average in similar cases; reasonable hourly rate. Board held employer had no standing to pursue the section (2)(a) claim and that final offer is not a "contract" under section (2)(d). Question of first impression, so substantial cost award not appropriate. Smaller than average award ruled appropriate.
UP-19-99

OPEU v. Jefferson County

11-3-99
(1)(a) threat; complaint dismissed19.58

$125
$1937$500

26%
18 PECBR 245 (1999), Member Whalen dissenting in part. One of three cases heard by an ALJ in a two-day hearing; extensive briefs. Number hours reasonable, rate reasonable. Case of first impression, so representation cost award not to be substantial. Untimely answer to complaint not a factor in representation cost order. Member Whalen dissented to representation cost order.
UP-20-99

OPEU v. Jefferson County

1-10-00
(1)(a), (b) interference and (e) refusal to bargain19.4

$115

$2231$1500

67%
18 PECBR 310 (1999), Member Whalen concurring. One of three cases heard in two-day expedited hearing. ALJ issued recommended findings of fact, and parties submitted written closing arguments to Board. Hours and rate reasonable, under circumstances. Section (1)(a) & (c) claims proven; Board typically issues greater than average cost awards in (1)(a) cases.
UP-22-99

OPEU v. Jefferson County

10-7-99
(1)(a) no-talk order and specific
responses to public questions
27

$115
$3025$1000

33%
18 PECBR 146 (1999). Number hours & rate reasonable. Board typically awards "greater-than-average" costs in (1)(a) cases; conduct was not egregious, employer thought directives were lawful; decision extended existing case law/first impression, so less-than-average award was appropriate.
UP-26-99

City of Portland v. Portland Police Association

8-7-00
(2)(b) claim that grievance sought to limit City's bargaining rights22.6

$150
$3390$650

19%
18 PECBR 605 (2000). Respondent prevailed. Case submitted on stipulated record and briefs; no argument before the Board; number of hours claimed is reasonable for case submitted on stipulations and briefs; hourly rate is more than the average of $115, which was considered by Board. On merits, Board dismissed the complaint, concluding that Respondent's grievance "was not retaliatory" and Respondent "had a reasonable basis" for filing it. Respondent did not file an answer. Complaint presented issue of first impression; the Board generally does not make substantial awards in such cases.
UP-47-99

AFSCME Local 328 v. OHSU

12-29-00
(1)(e) refusal to provide information48.8

$85
120
$3500

($4383 charge)
$1150

33%
18 PECBR 804 (2000). Complainant prevailed. Submitted to ALJ on stipulated record and briefs. No objections to recommended order; no oral argument to Board. Number of hours claimed is higher than average for cases submitted on fact stipulations; hourly rate claimed for majority of the hours is well below the average. On merits, Board rejected claims for civil penalty and filing fee reimbursement. No novel or complex issues; average award appropriate.
UP-56-99

AFSCME v. Oregon Department of Public Safety Standards and Training

5-6-02
(1)(e) unilateral change in background check procedures155

$130 ($60 for travel time)
$3500

($17,114 actual fees)
$3450

(99% of $3500)
19 PECBR 76, supplemental order 19 PECBR 317, ruling on reconsid 19 PECBR 344, ruling 19 PECBR 473 (2001). Two days of hearing before an ALJ. Number of hours claimed was above average for cases of similar length and complexity. Complainant asserted that additional hours were required to respond to Respondent's motions and time in settlement efforts. "The hourly rate is somewhat higher than the average rate. We find that the claim for hours concerning pre-hearing motions is appropriate." Complainant prevailed, but the Board stated that it had denied Complainant's request for a civil penalty, "in part because the case raised issues of first impression." Respondent appealed, then withdrew its appeal. Board typically awards less than average amount in cases of first impression, "because a significant award in such cases would be contrary
UP-58-99

Portland Fire Fighters' Association v. City of Portland

10-29-02
(1)(g) refusal to arbitrate------18 PECBR 723 (2000), reversed and remanded 181 Or App 85 (2002), order on remand 20 PECBR 464 (2002). Respondent prevailed at the Board level and filed a petition for representation costs; the court of appeals reversed; and the Board issued an order on remand holding that Respondent's refusal to arbitrate a grievance was unlawful. The Board stated that its rules provide that the prevailing party "is the party in whose favor a Board Order is issued." Accordingly, the Board stated that, "[b]ecause Respondent did not ultimately prevail on the complaint, we must dismiss its petition for representation costs." (See also next entry.)
UP-58-99

Portland Fire Fighters' Association v. City of Portland

Attorney fees on appeal

10-29-02
(1)(g) refusal to arbitrate98.1

$135
$100

$3500

($10,291.50 actual fees)
$260018 PECBR 723 (2000), reversed and remanded 181 Or App 85 (2002), order on remand 20 PECBR 464 (2002). Dispute submitted to Board on fact stipulation and written argument; services at court of appeals and in responding to Respondent's petition for review by the supreme court. Number of hours claimed were higher than average for cases of similar complexity; rate reasonable. "The general issue presented by the complaint--whether a party is unlawfully refusing to arbitrate--is one for which we typically award larger than average costs or fees. Given the nature of the court's opinion here, we find that an average award would be appropriate." (See also next entry.)
UP-58-99

Portland Fire Fighters' Association v. City of Portland

Rep'n costs on remand

12-10-02
(1)(g) refusal to arbitrate48.1

$100
$3500$1600

(46% of $3500)
20 PECBR 464 (2002), order on remand. On remand, the record consisted of a fact stipulation, briefs, and oral argument. Number of hours claimed "exceeds the average for cases of similar complexity submitted on stipulated facts" but "the hourly rate is below the average claimed [in similar cases]." For refusal to arbitrate violations, the Board stated that it typically issues larger than average representation cost awards. "Under the circumstances here, however, we find that an average award would be more appropriate."
UP-64-99

Hanna/PAT v. Portland School District

7-9-02
(1)(g) refusal to accept arbitration award124.6

$125
to
$50
$3500

($12,886 actual fees)
$3100Complainant prevailed before Board. 18 PECBR 816 (2000), ruling on motion to stay 19 PECBR 25 (2001), AWOP 178 Or App 634, rev den 334 Or 121 (2002). Number of hours requested (in part due to unusual issues in the hearing process) more than twice the number typically claimed in one-day hearing and adjusted by the Board; hourly rates reasonable. In refusal to implement arbitration award cases, the Board usually orders larger than average award, but it typically issues a smaller than average award when the case presents a question of first impression. Respondent's defenses raised issues not previously considered by the Board; average award.
UP-64-99

Hanna/PAT v. Portland School District

Attorney fees on appeal

7-9-02
(1)(g) refusal to accept arbitration award44.5

$125
to
$58
$3500

($5283 actual fees)
$1760Complainant prevailed on appeal. 18 PECBR 816 (2000), ruling on motion to stay 19 PECBR 25 (2001), AWOP 178 Or App 634, rev den 334 Or 121 (2002). Services at court of appeals and response to Respondent's petition for review by the supreme court. Number of hours claimed and rate reasonable. "[W]e typically grant a larger than average award in cases concerning refusals to implement arbitration awards for policy reasons. However, Respondent's defenses to the complaint concerned issues of first impression for this Board. An appeal of the Order was reasonable." Average award.
UP-66-99

Northern Oregon Regional Corrections Association v. Northern Oregon Regional Corrections Facilities

9-6-00
(1)(a) and (b) interference; (1)(e) refusal to bargain re transfer of employees30

$150
$3500

$865

25%

18 PECBR 660 (2000). Respondent prevailed. Complainant moved to dismiss petition arguing Respondent's affidavit failed "to clearly delineate the amount of time devoted to the listed services." Board concluded that the affidavit "to be only barely sufficient." Had Respondent claimed a higher number of hours, "we would likely have concluded that the affidavit was not sufficient." Submitted to ALJ on stipulated record and written argument; memo and oral argument to Board; number of hours claimed reasonable but hourly rate higher than the $115 average. Although it dismissed the complaint on the merits, the Board said that it had "noted our concern about Respondent's abuse of our election procedures." Because of novel issues, smaller than average award appropriate. Member Thomas, dissenting, stated that Respondent should receive an average award,
UP-70-99

FOPPO v. Washington County

10-31-01
(1)(e) unilateral change in firearms possession policy10.9

$100
$1090$375

(34% of $1090)
19 PECBR 411 (2001). One-day hearing before ALJ. Number of hours "well below the average in similar cases," and the hourly rate "is also below the average charged." The ALJ adopted Complainant's argument that the policy was prohibited for bargaining, but the Board determined that the subject was mandatory for bargaining. The Board stated that the violation was neither egregious nor repetitive. Average cost award appropriate.
AR-2-00

Oregon DAS/OSP v. OSPOA

8-21-00
State Personnel Relations Law (ORS chapter 240) petition to enforce an arbitration award------18 PECBR 711 (2000), reconsid. 18 PECBR 862 (2000), Member Thomas dissenting, appeal pending. Respondent prevailed, on the merits: the Board dismissed the complaint, without hearing, Petitioner's petition to enforce an arbitration award. As to Respondent's petition for representation costs, the Board granted Petitioner's motion to strike the petition, observing that neither Board rules nor the SPRL authorize the Board to order representation costs in SPRL cases.
UP-3-00

AFSCME Local 3940 v. Oregon Department of Corrections


4-22-02
(1)(a) refusal to allow AFSCME representative to accompany witnesses to investigatory interviews.64.6

$120
$60
$6672

($3500 fee limit, except in limited situations)
$3125

(89% of $3500)
19 PECBR 568, reconsid 19 PECBR 608 (2002). Number of hours claimed was "somewhat above the average for similar cases," but the hourly rate was reasonable. The Board stated that, "[i]n cases involving (1)(a) allegations, we typically issue larger than average awards because such violations impact the most basic rights guaranteed by the" PECBA, citingRoseburg, Case No. C-53-84, 8 PECBR 8371 (Rep'n Cost Order 1986). "A larger than average award is warranted here. The right to representation in meetings with potential disciplinary consequences is well established."
UP-5-00

Baker EA v. Baker School District

6-3-02
(1)(e) and (h) claims regarding tentative agreement162.6

$125
$120
$65
$60
$3500

($16,964 actual fees)
$218819 PECBR 712 (2002). Two-day hearing. Board granted Respondent extension of time in which to file objections. Number of hours claimed "considerably exceeds the number typically claimed for a two-day hearing, and we will adjust the claim accordingly." Hourly rate reasonable. Agreeing with Respondent, Board reduced number of hours claimed for elements of the complaint that Complainant withdrew before hearing: "Complainant cannot be said to have prevailed on issues that were not litigated." Because the parties reached agreement and signed a contract, Board did not order any affirmative relief. Average award, after adjusting hours, considered appropriate.
UP-8-00

Eugene Police Employees Association v. City of Eugene

9-6-00
(1)(f) refusal to implement interest arbitration award.17

$175
$2975,plus

$1186 in copy costs
$650

22% of $2975
18 PECBR 673 (2000), Member Thomas dissenting. Complainant prevailed. Complaint presented directly to the Board by stipulated exhibits and written argument; no hearing. On the merits, one Board member dissented. Respondent's actions were not repetitive or egregious, and it cooperated in expediting the litigation. Number of hours claimed is below average for cases submitted on fact stipulation, but hourly rate is "considerably more than the average ($115) claimed." Board rejected request for copying costs, which are expenses that it does not consider in awarding representation costs, underJoseph Ed Association v. Joseph School District, 16 PECBR 775 (repcost order 1996), and AFSCME v. Clatsop County, 16 PECBR 664 (repcost order 1996).
UP-9-00

Eugene Police Employees' Association v. City of Eugene

5-7-02
(1)(e) refusal to bargain over criminal defense reimb'mt proposal21.5
@ $100

56.8
@ $40
$3500$1275

(36% of $3500)
19 PECBR 463 (2001). One-day hearing. Number of hours claimed was more than average for cases of similar complexity; rate less than average. Complainant prevailed, but "[w]e did not find Respondent's arguments to be frivolous or made in bad faith." Average award appropriate.
UP-12-00

Cascade Bargaining Council v. Jefferson County School District

3-12-01
(1)(e) refusal to exchange bargaining proposals in first bargaining session14

$150
$2100$50019 PECBR 12 (2001). Case submitted on stipulated facts and brief ALJ telephone hearing. Number of hours was reasonable. Complainant objected that Respondent's affidavit did not show the exact number of hours for each listed service; Board stated that, "[h]ad the number of hours claimed not been below the average for such a case, that objection might have warranted dismissal of the petition." The Board considered Respondent's petition "minimally sufficient." Hourly rate "considerably higher than average, a factor we will take into account." Case presented Board with first opportunity to interpret statute that establishes beginning of the 150-day bargaining period. Complainant was not frivolous, and no civil penalty awarded. "[S]omewhat smaller than average award is warranted."
UP-14-00

State of Oregon v. Criminal Investig'rs Association

9-6-00
State claimed that Union's demand to go to interest arb (after State withdrew its midterm proposal) was contrary to PECBA15.5

$175
$2973,incl'gmileage and copy costs$450

15% of total sought
18 PECBR 630 (2000). Respondent prevailed (the Board dismissed the complaint, without hearing). Number of hours claimed was reasonable. Complainant objected to the hourly rate, because it was based on a retainer, not on an hourly billing. The Board rejected that argument, noting that it has based awards on "the hourly value claimed for services rendered where a party's counsel does not actually bill an hourly rate." However, the rate was considerably more than the $115 average. The Board rejected Respondent's requests for mileage, copying costs, and reimbursement of filing fees. The Board stated that it awards smaller than average costs when the complaint presents novel questions, as this case did.
UP-17-00

AFSCME Local 2067 and Williams v. City of Salem

3-12-01
(1)(a) and (c) termination95.45

$125
$120
$80
$45
$20
$9498

($3500 fee limit, except in limited situations)
$200019 PECBR 1 (2001). Board denied Respondent's request for reimbursement of its filing fee, citing Joseph School District, 16 PECBR 775 (Rep'n Cost Order 1996). Two-day hearing before ALJ; Complainants did not file objections to the ALJ's recommended order; no oral argument before the Board. "The number of hours claimed is higher than typically claimed in cases of similar complexity, and the hourly rates of $120 and $125 are higher than average." Complaint dismissed but not filed frivolously or to harass Respondent. "We do not award representation costs in excess of the maximum set by our rules unless [as specified in the rules] we conclude that a civil penalty should be awarded." No civil penalty was ordered; average award appropriate.
UP-22-0

AOCE v. Or Dept
Correcs/OCE

1-12-01
(1)(e) claim that discharge was without just cause and a unilateral change49.3

$180
$8874$1890

21%

(54% of $3500)
18 PECBR 847 (2000). Complainant prevailed. 1-day hearing; briefs; no objections to recommended order; no oral argument; number of hours reasonable; hourly rate is "considerably higher than the average ($115) claimed in similar petitions, a factor we consider in making our award." Complaint primarily involved factual dispute; no novel legal issues presented. Complainant asserted that the violation proven could have justified a civil penalty (thereby eliminating the $3500 cap on a representation cost award). The Board disagreed and concluded that an average award was appropriate.
UP-22-00

AOCE v.
DOC/OCE

Compliance proceeding

11-15-01
See above------18 PECBR 847 (2000), compliance order 19 PECBR 437 (2001). This petition addressed Complainant's petition for representation costs incurred in a compliance proceeding; in January 2001, the Board awarded Complainant representation costs as the prevailing party in the processing of the complaint. The Board granted Respondent's objection that Complainant's petition failed to state facts establishing that Complainant was the prevailing party in the compliance proceeding. Petition dismissed.
UP-24-00

OSPOA v. OSP

2-11-02
(1)(e) and (f) complaint alleged unilateral change in administration of merit pay.52.5

$90
$3500

($4725 actual fees)
$160019 PECBR 552 (2001). One-day hearing; objections to recommended order, but no oral argument before Board. Number of hours "slightly above the average in cases of similar length and complexity." Rate claimed "is considerably below the average claimed." Board dismissed complaint but stated it was not frivolous. Average award appropriate. In its petition, Respondent stated simply that the Board dismissed the complaint; Complainant objected that such statement of facts was insufficient. The Board concluded that the "admittedly truncated explanation" was sufficient.
UP-30-00

18 PECBR 940 (2000)

OSPOA v. OSP/DAS

12-29-00
(1)(f) refusal to implement interest arb'n award; (1)(a), (b), and (e) direct dealing.81.1

$175
50
$3500

($12,723 charge)
$1300

37%
18 PECBR 771 (2000), Member Thomas concurring. Complainant prevailed re section (1)(f) claim (75% of the case); Respondent prevailed because the section (1)(a), (b), and (e) claims (25% of the case) were not proven. "Our practice, when only one prevailing party files a representation cost petition, is to adjust that party's request to reflect the percentage of the case in which it prevailed."Lane County v. LCPOA, 15 PECBR 198 (repcost order 1994). Complaint heard directly by Board; number of hours "is nearly twice the average (45) for a one-day hearing, and the hourly rate is considerably above the average ($115)." In addition, the Board stated that some of the hours claimed did not appear to be for "services directly connected with prosecuting" the complaint (OAR 115-35-055(1)(c)(B)). Affidavit presents law clerk hours twice, both at attorney and law clerk rate. Excluded copy
UP-37-00

Laborers Local 320 v. City of Willamina

2-26-01
(1)(g) claim that employer refused to pay insurance premium increase12.1

$160
$2186$50018 PECBR 922 (2000). Telephone hearing; no objections filed to recommended order. Number of hours was less than typically claimed in such cases. Hourly rate higher than the $115 average. Complainant prevailed. "In reviewing the complaint, we find no factors that would warrant either a greater or less than average award."
UP-53-00

19 PECBR 895 (2002)

Lincoln County EA v. Lincoln County School District

7-2-02
--------19 PECBR 656, denial of motion to stay 19 PECBR 691, supplemental order 19 PECBR 804, supplemental order 19 PECBR 848, reconsid dismissed 19 PECBR 895 (2002),appeal pending. Complainant moved to supplement the record and for reconsideration on the merits. The Board stated that Complainant explained that it was not renewing its request for a civil penalty but instead "wants to supplement the record only to show that a civil penalty could have been awarded in this case [due to Respondent's post-Order conduct], even though one was not. The purpose of such a showing would be to avoid the $3,500 cap on representation costs, which applies except 'in cases where civil penalties would be appropriate.' OAR 115-35-055(1)." The Board denied the motions, stating that, "[e]xcept in unusual circumstances, this Board will not issue representation cost
UP-62-00

911 Professional Communications. Employees Association v. City of Salem

9-5-02
(1)(a) discipline and (1)(e) communic'n with bargaining unit members.91

$125
$80
$45
$20
"full award"
[$3500]
($10,428 actual fees)
$208519 PECBR 871 (2002). The Board granted Complainant's motion for an extension of time in which to file objections to Respondent's petition. Complaint included three charges; Board concluded that Respondent prevailed on two of the three, which amounted to approximately 60% of the case. Because Complainant did not file a representation cost petition, the Board did not consider that Complainant was a 40% prevailing party and therefore did not offset the parties' respective percentages. Although it did not apply the offset, the Board cited Lane County, Case No. UP-102-93, 15 PECBR 198 (Rep'n Cost Order 1994) and explained that it "will reduce Respondent's request consistent with the percentage of the case on which it prevailed." (In doing so, the Board reduced the $10,428 amount claimed to $6257.) Two-day hearing;
UP-4-01

AFSCME Council 75 v. Oregon Department of Corrections and AOCE

7-12-02
(1)(b) claim that State recognized AOCE as representative of employees transferred to an AFSCME work unit57.7

$130
$95
$75
$3500

($7195 actual fees)
$200019 PECBR 785 (2002). Stipulated facts. "The number of hours claimed is above the average claimed for cases submitted on a stipulated record, and we will adjust the request accordingly." Hourly rates reasonable. Complainant prevailed. "There are no factors present here that would favor awarding either a greater or lesser than average award."
UP-6-01

Renfrow et al v.
ATU

6-20-02
(2)(a) complaint about ATU's investigation of a grievance87 @ $125 in-house att'y

33.4 @ $135

1 @ $90
$3500

($15,339 actual fees)
$82519 PECBR 751 (2002). Respondent prevailed. After the first ALJ recommended that the complaint be dismissed without hearing, the Board dismissed all but one claim and reassigned it to another ALJ. The parties submitted complaint to the second ALJ on affidavits, exhibits, and written argument. Hourly rates reasonable. Complaint not frivolous. The Board explained that, "[e]ven considering the complicated procedural history, however, the number of hours claimed far exceeds the number claimed in similar cases, and we will adjust the claim accordingly." CitingHouchin, Case No. UP-37-92, 14 PECBR 521 (Rep Cost Order 1993), the Board stated that "[t]ypically, in cases where a complainant is an individual relying on his or her own resources, this Board makes a reduced award of representation costs." Citing Randolph, Case No. UP-15-92, 15
UP-6-01

Renfrow et al v.
ATU

Reconsid of 6-20-02 repcost order, 10-31-02

20 PECBR 61 (2002)

Denial of motions
2-7-03
--------19 PECBR 751 (2002). In a second order regarding Case No. UP-6-01, the Board dismissed Complainants' "motion to rescind" the Board's June 20, 2002 representation cost order. Complainants asked the Board to rescind the representation cost award or, alternatively, "to order Respondent to recant letters sent to members of the class of Complainants concerning the financial responsibility for paying the [$825] costs." The Board denied the motion to rescind, stating that it was in the nature of a motion for reconsideration and untimely. As to the alternative relief requested, the Board stated that such was "beyond our authority at this point." Complainants later filed two motions, which the Board stated were "based on allegations that Respondent has interfered with Complainants' efforts to satisfy the Order." The Board ruled, in February 2003, that Complainants
UP-9-01

AFSCME v. Oregon DOC

12-10-02
(1)(a) refusal to permit employee to have union representative at interview; statement by interviewer97.7

$97
$90
$3500

$1575

(45% of $3500)
20 PECBR 1 (2002). One-day hearing. Hourly rate "well below the average in our cases, but the number of hours is about double the average number claimed for a one-day hearing." The Board stated that Respondent prevailed; Respondent's refusal to allow the employee a representative was not unlawful and an unlawful interviewer statement was not egregious; and there were "no circumstances that would warrant more than an average award."
UP-19-01

Lincoln County EA v. Lincoln County School District

6-20-02
(1)(e) refusal to bargain over Association evaluation proposal45.7

$125
$65
$3500

($5592.50 actual fees)
$940

(27% of $3500)
19 PECBR 475, motion to stay 19 PECBR 520 (2001), order vacated/appeal dismissed (unpublished April 10, 2002). Stipulated facts. Association prevailed; District appealed; Association moved to dismiss petition for judicial review as moot (parties entered a contract without the disputed proposal); court of appeals granted motion, vacated the Board's order, and designated the Association as the prevailing party on appeal. The Board dismissed theDistrict's petition for representation costs, concluding that--because the Board had held that the District violated ORS 243.672(1)(e)--the District was not a prevailing party; there was no Board order in favor of the District. (In addition, the Board ruled that the District's petition was untimely.) The Board granted the Association's petition for representation costs, noting that the number of
UP-19-01

Lincoln County EA v. Lincoln County School District

Attorney fees on appeal

6-20-02
15.7

$125
$90
$1927.50$480

(25% of $1927.50)
19 PECBR 475, motion to stay 19 PECBR 520 (2001), order vacated/appeal dismissed (unpublished April 10, 2002). Hours and rate reasonable. The Board explained: "The Association convinced the court to dismiss the petition for judicial review as moot. However, * * *, this was a scope of bargaining dispute, and given the 1995 amendments to the [PECBA], an appeal was predictable and reasonable. Under the circumstances, the purposes and policies of the PECBA would be best served by issuing a smaller than average attorney fee award."
UP-57-01

SEIU Local 503 v.
City of Hermiston

8-20-02
(1)(g) refusal to arbitrate grievance47

$115
$3500

($5405 actual fees)
$2700

(77% of $3500;
50% of $5405)
19 PECBR 860 (2002). One-day hearing; Respondent did not file answer, participate in the hearing, or file objections to the recommended order. Number of hours "is within the range we consider reasonable for similar cases." Rate reasonable. "This case presented a legal question that has been addressed numerous times in prior Board cases. We concluded here, as we have before, that the defenses raised by Respondent are appropriately presented to the arbitrator." Board states that it "typically makes a larger than average representation cost award where we conclude that a party has unlawfully refused to arbitrate."
UP-3-02

ONA v. OHSU

5-7-02
(1)(a) and (e) complaint based upon OHSU's payment of incentives to employees who crossed a picket line that were not offered in bargaining.81.9 @ $130

9.25 @$60

50.4 @ $115
$3500

$16,998 actual fees)
$3500Interim order 19 PECBR 590, remedy order 19 PECBR 684, clarification of order 19 PECBR 696 (2002). One-day hearing. The Board noted that the number of hours requested "is about three times the average number for one day of hearing, argument, and briefing." Rates reasonable. Complainant argued that the extra hours devoted to the case were justified because the case arose during a strike; the proceedings were expedited; there were numerous discovery disputes; and it was a matter of first impression. CitingEugene, the Board stated that it typically does not issue greater than average cost awards in cases of first impression. Further, the Board stated that "[t]he circumstances under which the case arose and the manner in which it was processed do not alter our view." Complainant prevailed, but the Board denied its request for a civil penalty. "[T]his Board generally
UP-31-02

Lincoln County Deputy Sheriff's Association v. Lincoln County

10-29-02
(1)(e) unilateral change in medical and dental benefit plans.15.5

$175
$2712.50$1450 (53% of $2712)
19 PECBR 911 (2002). Fact stipulation. Number of hours claimed reasonable; rate is "considerably above the average claimed, a factor we will consider in fashioning the award." The Board stated that it considered the District's violations to be flagrant and ordered it to post a notice, in addition to a make whole relief. Larger than average award appropriate.
 
* * * * * * * * * * * * * * * * * * * * * * * * * *
 
STATUTORY AUTHORITY AND ERB RULE REGARDING REPRESENTATION COST ORDERS

ORS 243.676(2)(d) provides: "Where, as a result of the hearing required pursuant to subsection (1)(c) of this section, the board finds that any person named in the complaint has engaged in or is engaging in any unfair labor practice charged in the complaint, the board shall: * * * Designate the amount and award representation costs, if any, to the prevailing party * * *."
 
ORS 243.676(3)(b) provides: "Where the board finds that the person named in the complaint has not engaged in or is not engaging in an unfair labor practice, the board shall: * * * Designate the amount and award representation costs, if any, to the prevailing party."
 
Board Rule 115-35-055 addresses representation costs:
 
(1) General:
 
(a) Pursuant to ORS 243.676(2)(d) and (3)(b), the Board shall award representation costs to the prevailing party in unfair labor practice cases. An award of representation costs shall not exceed $3,500 except such limitation shall not apply in cases where civil penalties would be appropriate;
 
(b) Prevailing party is the party in whose favor a Board Order is issued. Where one charge (or more) in a complaint is upheld while one charge (or more) in a complaint is dismissed, each party may be regarded as a prevailing party and may file a petition for representation costs for the portion of the case upon which it prevailed, provided that:
 
(A) Separate charges in a complaint are based on clearly distinct and independent operative facts; i.e. the charges could have been plead and litigated without material reliance on the allegations of the other(s), and the separate charges concerned the enforcement of rights independent of the other(s); or
 
(B) A complaint presents two or more scope of bargaining questions which are dealt with by the Board in separate conclusions of law.
 
(c) "Representation costs" shall include only the following:
 
(A) The actual amount of fees charged by the representative for services directly connected with prosecuting or defending against the unfair labor practice charge; or
 
(B) Where the prevailing party is not charged a specific fee for the case (because the representative is paid on a retainer basis or is an employee of the party, for example), the reasonable value of the representative's services directly connected with prosecuting or defending against the unfair labor practice charge. "Reasonable value" is equivalent to the fees charged by practitioners of similar skill and experience under paragraph (c)(A) of this section, and thus includes such secretarial and other overhead costs as are customarily included in those fees.
 
(2) Petition for Representation Costs. A prevailing party must file a petition for representation costs within 21 days of the date of the issuance of the Board Order in the case for which costs are requested. A copy of the petition, together with a supporting affidavit, shall be served upon the opposing party at the time the petition is filed and proof of service shall be provided to the Board. The Board will dismiss petitions which do not comply with this rule. The petition shall include:
 
(a) A statement of the facts upon which petitioner relies in claiming that it is the prevailing party;
 
(b) A statement of the amount of the costs requested, supported by an affidavit that describes in detail the actual amount of the fees incurred by petitioner or, where the petitioner was not charged fees, the basis for the amount of costs requested;
 
(c) A statement describing how the amount of the award requested would be consistent with the policies and purposes of the Public Employee Collective Bargaining Act (PECBA).
 
(3) Objections to Petitions for Representation Costs. Opposing parties shall have 21 days from the date of service of such petitions to file written objections. Such objections shall be served on the petitioner at the time the objections are filed and proof of service shall be provided to the Board.
 
(4) Designating the Amount of Representation Costs. The Board shall consider the following factors in designating the amount of representation costs to be awarded:
 
(a) Consistency with the policies and purposes of the PECBA, including but not limited to the following considerations:
 
(A) The issue in the case was one of first impression before the Board; or
 
(B) Respondent was guilty of an aggravated or pervasive unfair labor practice or the repetition of a type of conduct previously found to be unlawful; or
 
(C) A complaint or a defense was frivolous or otherwise without merit; or
 
(D) A party was an individual who, due to the circumstances of the case, had to rely upon his/her personal financial resources.
 
(b) The appropriate charges for the services rendered, based on:
 
(A) The time and labor customarily required in the same or similar cases;
 
(B) Hourly charges customarily made by representatives for rendering similar services;
 
(C) The novelty and difficulty of the issues and the amount of preparation, research or briefing required; and
 
(D) The skill requisite to perform the services properly.
 
(c) Awards in similar cases.
 
(5) Findings and Order. The Board shall make findings and issue an order awarding representation costs pursuant to these rules and based upon the petition and objections filed by the parties. Consistent with subsection (1)(a) and section (4) of this rule, the Board may award all or a portion of the costs requested. The Board will not act on a petition until the appeal period has run or, where an appeal has been filed, during the pendency of the appeal. Filings that do not strictly comply with these rules will be dismissed.

 
Footnotes:
 
1. In preparing this table, the Board has attempted to summarize accurately the noted Board Orders. The Board's decisions on the respective fee petitions are contained in those Board Orders, not this table.
2. The Board generally does not publish its representation cost and attorney fee orders. To request a copy of an unpublished order, contact the us at (503) 378-3807, Ext. "0", by e-mail at "EmpRel.Board@state.or.us", or by writing to the Board at 528 Cottage Street, NE, Suite 400, Salem, Oregon 97301-3807.
3. Citations in this column refer to the Board's decisions regarding the respective unfair labor practice complaints.