AFSCME Council 75, Local 2503 v. Hood River Cnty., Case No. UP-005-20

• Decision Date: 24 May 2021
• Docket Number: Case No. UP-005-20
• Parties: AFSCME COUNCIL 75, LOCAL 2503, Complainant, v. HOOD RIVER COUNTY (PUBLIC WORKS), Respondent.
• Court: Oregon Employee Relations Board

AFSCME COUNCIL 75, LOCAL 2503, Complainant, v. HOOD RIVER COUNTY (PUBLIC WORKS), Respondent.

Case No. UP-005-20

EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON

May 24, 2021

(UNFAIR LABOR PRACTICE)

RULING ON MOTION TO STAY

In an order dated February 11, 2021, this Board concluded that Hood River County (Public Works) (County) violated ORS 243.672(1)(g) when it terminated CV without just cause in violation of the parties' collective bargaining agreement. This Board ordered the County to (1) cease and desist from violating ORS 243.672(1)(g); (2) rescind CV's termination and remove any mention of the termination from CV's personnel file and other employment records; and (3) make CV whole for losses that he suffered as a result of the improper termination.

On March 2, 2021, the County filed a petition for judicial review. On April 26, 2021, the County filed a motion and supporting affidavit to stay the order pending appeal. On May 10, 2021, AFSCME Council 75, Local 2503, filed an opposition to the motion to stay. For the following reasons, we deny the County's motion.

ORS 183.482(3) sets forth the requirements for a party to obtain a stay of an agency order pending judicial review. It states, in relevant part:

"(a) The filing of the petition shall not stay enforcement of the agency order, but the agency may do so upon a showing of:

"(A) Irreparable injury to the petitioner; and

"(B) A colorable claim of error in the order.

"(b) When a petitioner makes the showing required by paragraph (a) of this subsection, the agency shall grant the stay unless the agency determines that substantial public harm will result if the order is stayed. If the agency denies the stay, the denial shall be in writing and shall specifically state the substantial public harm that would result from the granting of the stay."

Because it is dispositive, we begin with whether the County made a sufficient showing of irreparable injury. The term "irreparable injury" is not defined in statute, but the court has held that an injury is irreparable if the party cannot receive reasonable or complete redress in a court of law. Arlington Sch. Dist. No. 3 v. Arlington Educ. Ass'n, 184 Or App 97, 101-02, 55 P3d 546 (2002) (citing Winslow v. Fleischner, et al., 110 Or 554, 563, 223 P2d 922 (1924)); accord Bergerson v. Salem-Keizer Sch. Dist., 185 Or App 679, 660, 60 P3d 1126 (2003). The determination of whether "an injury is irreparable depends not upon the magnitude of the injury, but upon the completeness of a remedy in law." Arlington Educ. Ass'n, 184 Or App at 102. Moreover, a "showing" of irreparable injury requires "proof" in the form of "evidence that satisfies a burden of production or persuasion placed upon the proponent of a fact"; "[p]roof must not leave the existence of the fact at issue to speculation." Id. "Therefore, as pertinent here, a 'showing' must at least demonstrate that irreparable injury probably would result if a stay is denied." Id. (emphasis in original); see also Portland Fire Fighters' Association, Local 43, IAFF v. City of Portland, Case No. UP-13-10 at 2, 24 PECBR 809, 810 (2012) (Ruling on Motion to Stay) ("[S]peculative claims or allegations of possible harm are not sufficient to make a showing of irreparable injury." (citing Central Education Association and Vilches v. Central School District 13J, Case No. UP-74-95 at 3, 17 PECBR 250, 252 (1997) (Ruling on Petition for Enforcement and Motion to Stay))).

Here, the County argues that paying the make-whole remedy to CV constitutes an irreparable injury.¹ In addition, the County contends that two pending legal proceedings related to CV further support its claim that the make-whole remedy constitutes an irreparable injury given the unusual facts in this case. First, the County points to a pending appeal of the dismissal of criminal charges against CV. The County terminated CV when he was indicted for allegedly stealing funds from County parks. Hood River County Circuit Court eventually dismissed those charges with prejudice, and the State of Oregon has appealed that dismissal. The County contends that it will be irreparably injured if it is required to pay CV the make-whole remedy because, if the court of appeals reverses the dismissal of the criminal charges, a guilty verdict or settlement may ultimately result. If that were to occur, the County posits that it would not be able to obtain restitution of the make-whole amount because "CV most likely would have spent it all before a Court of Appeals decision would have ordered a criminal trial." Second, the County relies on a civil action it has filed against CV seeking repayment of the funds allegedly stolen by CV. The County argues that if the Board's order is not stayed pending appeal, the County will lose the opportunity to attach the make-whole funds, and that loss is an irreparable injury.

We first consider the County's core argument that it will suffer irreparable injury because it will probably not be able to recover the estimated $218,000 in back pay, benefits, and contributions to the Public Employees Retirement System if the appeal results in a reversal of this Board's order. We have consistently rejected this argument in prior cases, holding that paying "make-whole" relief pending an appeal does not constitute irreparable injury within the meaning of ORS 183.482(3)(a)(A). See, e.g., State Teachers Education Association/OEA/NEA and Andrews, et al. v. Willamette Education Service District and State of Oregon, Department ofEducation, Case No. UP-14-99 at 3, 19 PECBR 339, 341 (2001) (Ruling on Motion to Stay Order); Oregon AFSCME Council 75, Local 1329 v. Crook County Road Department, Case No. UP-045-10 at 3, 25 PECBR 435, 437 (2013) (Ruling on Motion to Stay). We explained our reasoning for this conclusion is an unpublished, but often cited, ruling in Payne v. Department of Commerce, Building Codes Division, Case No. 1294 (1982) (unpublished ruling). There, we stated:

"We are not convinced that the payment of back wages under the circumstances of this case constitutes an 'irreparable injury.' If Respondents ultimately prevail in this case it may or may not be necessary to expend time and money in an effort to recover the back pay. Balanced against the possibility that Appellant would be wrongfully deprived of a significant amount of back pay during a lengthy appeal process, we do not view Respondent's speculation about possible difficulties in recovering the funds to be a sufficient showing of irreparable injury."

That reasoning applies equally here. The County's affidavit in support of its motion does not demonstrate any facts indicating that the County would be unable to receive reasonable or complete redress in a court of law if it prevails on appeal. Its contention that it will probably be unable to collect the funds is purely speculative. See Bergerson, 185 Or App at 665 (no irreparable injury where the "record does not show that it is probable that the district would be unable to enforce a judgment for restitution" of payments made to the terminated employee). Moreover, the mere fact that the County would be without use of the make-whole funds during the pendency of the appeal is also insufficient to demonstrate irreparable harm. See id. (no irreparable injury where, even though employer would be "without the use of those funds during the pendency of review, there is no evidence that a judgment of restitution, together with prejudgment interest, would not adequately compensate the [employer] for that loss").

The County argues that our cases holding that a make-whole remedy does not constitute irreparable injury are distinguishable because, here, there are "unresolved charges of theft and secreting County funds." We are not persuaded. We understand the County to be arguing that it would be unfair to the taxpayers to require the County to pay a substantial back pay amount to an employee who engaged in wrongdoing. There is, however, no proof in this case of that alleged wrongdoing. At hearing, the County established only that it terminated CV because he was charged, indicted, and incarcerated for allegedly stealing funds from County-owned camping sites. The County stipulated that it did not conduct an investigation into whether CV actually stole any funds, and it offered no evidence that he did so. We see no reason why our well-established precedent should not apply here. If we stay the order and if the court of appeals affirms the order, CV will have been wrongfully deprived of a significant amount of back pay during the pendency of the appeal.²

We are also unpersuaded by the County's argument that other pending legal...