2015 ORS 243.722¹
Fact-finding procedure
  • costs
  • basis for findings and opinions
  • effect of subsequent arbitration decision

(1) In carrying out the fact-finding procedures authorized in ORS 243.712 (Mediation upon failure to agree after 150-day period) (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 (Selection of arbitrator) (4)(a) to (h). [1973 c.536 §14; 1995 c.286 §7]

See also annota­tions under ORS 342.470 in permanent edi­tion.

Notes of Decisions

Where one party did not participate in collective bargaining process, this sec­tion permitted the opposite party to initiate arbitra­tion pro­ce­dures before fact finding was completed whether or not nonparticipating party concurred. La Grande Police Assoc. v. Hamilton, 56 Or App 133, 641 P2d 1132 (1982)

Atty. Gen. Opinions

Liability of district for costs when mediator or factfinder is appointed by superintendent, (1971) Vol 35, p 961

Law Review Cita­tions

28 WLR 259 (1992)

See also annota­tions under ORS 243.711 to 243.760 in permanent edi­tion.

Notes of Decisions

Savings clause in chapter 536, Oregon Laws 1973, did not prevent applica­tion of expanded bargaining rights to collective bargaining agree­ment then in force. Redmond Sch. Dist. No. 2J v. Pub. Employe Rela­tions Bd., 19 Or App 212, 527 P2d 143 (1974)

The board had authority to review, sec­tion by sec­tion, a city ordinance governing labor rela­tions between the city and its employes and to hold invalid those pro­vi­sions purporting to govern matters of predominantly state-wide concern and which were in conflict with the 1973 Act. City of Beaverton v. Intl. Assn. of Fire Fighters, 20 Or App 293, 531 P2d 730 (1975), Sup Ct review denied

Board order, defining appropriate bargaining unit and ordering representa­tion elec­tion, was interlocutory in nature and was not "final order" subject to judicial review within meaning of ORS 183.480 (Judicial review of agency orders). City of Hermiston v. Employ­ment Rela­tions Board, 280 Or 291, 570 P2d 663 (1977)

Employ­ment Rela­tions Board's policy of adhering to arbitra­tion decisions in sub­se­quent related pro­ceed­ings advances legislative purpose, and is proper exercise of authority to administer this act. Siegel v. Gresham Grade Teachers Associa­tion, 32 Or App 541, 574 P2d 692 (1978)

Public Employes' Collective Bargaining Law did not bar state agency from using state time and funds to campaign against labor organiza­tion in representa­tion elec­tion. OSEA v. Depart­ment of Commerce, 34 Or App 727, 579 P2d 872 (1978)

Juvenile counselor appointed pursuant to [former] ORS 419.604 did not acquire collective bargaining rights granted by these sec­tions where there was no showing that juvenile court judge had expressly authorized employer representatives to bargain on counselor's behalf concerning terms and condi­tions of his employ­ment. Schmidt v. Jackson County Juv. Dept., 49 Or App 349, 619 P2d 1307 (1980)

Employ­ment Rela­tions Board employed scope of review contrary to Public Employe Rela­tions Act when it reviewed merits of arbitra­tion award rather than only its repugnancy to Public Employe Rela­tions Act. Willamina Ed. Assoc. v. Willamina Sch. Dist. 30J, 50 Or App 195, 623 P2d 658 (1981)

Since Public Employe Collective Bargaining Act is general law addressed primarily to substantive social, economic and other regulatory objectives of this state which do not affect freedom of local community to choose its own po­lit­i­cal form, it does not mandate structural and organiza­tional arrange­ments of local govern­ments contrary to Oregon Constitu­tion, Article XI, sec­tion 2. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

State's decision to enact Public Employe Collective Bargaining Act supersedes city's power to allow its voters to arbitrate unresolved labor disputes and grant of power by Oregon Constitu­tion, Article IV, sec­tion 1 to legislate by popular vote does not affect state's power in this area. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

Arbitrator's failure to conclude that school district violated collective bargaining agree­ment by violating statutory require­ments incorporated into agree­ment was not sufficiently egregious to be reversible as being "repugnant" to act. Eugene Educ. Assoc. v. Eugene School Dist 4J, 58 Or App 140, 648 P2d 60 (1982)

Employ­ment Rela­tions Board formula­tion of test for review of arbitra­tion awards in en­force­­ment pro­ceed­ings which would permit en­force­­ment of arbitrator's award unless (1) parties did not, in a written contract, agree to accept such an award as final and binding or (2) en­force­­ment of the award would be contrary to public policy, was consistent with policies of Public Employe Collective Bargaining Act. Willamina Sch. Dist. 30J v. Willamina Ed. Assn., 60 Or App 629, 655 P2d 189 (1982)

Public Employe Collective Bargaining Act require­ment that juvenile court judge bargain in good faith with representatives of juvenile counselors and refrain from es­tab­lishing terms and condi­tions of counselors' employ­ment in viola­tion of applicable contractual pro­vi­sions did not constitute an undue burden or in­ter­fer­ence with his judicial func­tions under [former] ORS 419.604 or the separa­tion of powers pro­vi­sion contained in Article III, sec­tion 1 of the Oregon Constitu­tion. Circuit Court v. AFSCME, 61 Or App 311, 657 P2d 1237 (1983), aff'd 295 Or 542, 669 P2d 314 (1983)

Public Employe Collective Bargaining Act applies to the Judicial Depart­ment and is not inconsistent with ORS 1.002 (Supreme Court) or 1.008 (Personnel plan, fiscal plan and property plan). Lent v. ERB, 63 Or App 400, 664 P2d 1110 (1983), Sup Ct review denied

Employ­ment Rela­tions Board did not exceed statutory authority under Public Employes Collective Bargaining Act in designating appropriate bargaining unit which consists of police dispatchers who are employes who can strike and police of­fi­cers who are forbidden from striking. City of Canby v. Canby Police Associa­tion, 68 Or App 317, 680 P2d 1033 (1984), Sup Ct review denied

Statutory purpose to provide uniform basis for employe organizing and bargaining would be subverted by holding that statute authorizing county civil service system supersedes collective bargaining re­quired by this Act. AFSCME v. Clackamas County, 69 Or App 488, 687 P2d 1102 (1984)

Board had authority to order restitu­tion where union collected "fair share" pay­ments from nonunion public employees without complying with safeguards instituted to protect employees' rights of free speech and associa­tion. Elvin v. OPEU, 313 Or 165, 832 P2d 36 (1992)

Atty. Gen. Opinions

School law on media­tion as an exclusive pro­ce­dure, (1971) Vol 35, p 961; seniority as a related economic issue, (1972) Vol 35, p 1134; legality of binding arbitra­tion in public employ­ment collective bargaining, (1972) Vol 36, p 18; validity of collective bargaining agree­ments between county intermediate educa­tion district and local educa­tion associa­tion on transfer of sick leave, (1975) Vol 37, p 328; authority of teachers to strike during contract year in absence of collective bargaining agree­ments, and to engage in picketing, (1975) Vol 37, p 732

Law Review Cita­tions

51 OLR 7-69 (1971); 54 OLR 337-371 (1975); 56 OLR 457 (1977); 21 WLR 454 (1985); 70 OLR 969 (1991); 28 WLR 259 (1992); 32 WLR 69, 707 (1996)

Chapter 243

Notes of Decisions

Effect of Public Employe Rela­tions Act is to modify authority of Personnel Division so that, while division retains responsibility for es­tab­lishing general job salary grades and classifica­tions, specific salary within each range which is paid to employe in public employe bargaining unit is subject to negotia­tion or arbitra­tion under terms of this chapter. AFSCME v. Executive Dept., 52 Or App 457, 628 P2d 1228 (1981), Sup Ct review denied

Provision of collective bargaining agree­ment giving present employes lateral transfer rights was valid under ORS 240.321 (Collective bargaining) and fact that its imple­menta­tion resulted in male succeeding female employe did not violate state af­firm­a­tive ac­tion statutes. State Executive Dept. v. OPEU, 91 Or App 124, 754 P2d 582 (1988)

Atty. Gen. Opinions

State agencies paying carpooling employes' parking fees, (1974) Vol 36, p 1015

Law Review Cita­tions

51 OLR 23, 44 (1971)


1 Legislative Counsel Committee, CHAPTER 243—Public Employee Rights and Benefits, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors243.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 243, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano243.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.