Arlington Ed. Assn. v. SCHOOL DIST. NO. 3

• Decision Date: 31 October 2001
• Citation: 177 Or. App. 658,34 P.3d 1197
• Parties: ARLINGTON EDUCATION ASSOCIATION, Respondent, v. ARLINGTON SCHOOL DISTRICT NO. 3, Petitioner.
• Court: Oregon Court of Appeals

34 P.3d 1197

177 Or. App. 658

ARLINGTON EDUCATION ASSOCIATION, Respondent, v. ARLINGTON SCHOOL DISTRICT NO. 3, Petitioner.

UP-65-99; A112641

Court of Appeals of Oregon.

Argued and Submitted September 5, 2001.

Decided October 31, 2001.

Bruce Zagar, Salem, argued the cause for petitioner. With him on the opening brief was Paul A. Goodwin; with him on the reply brief were Paul A. Goodwin and Garrett, Hemann, Robertson, Jennings, Comstock & Trethewy, PC.

Ralph E. Wiser, III, Portland, argued the cause for respondent. With him on the brief were Aruna A. Masih and McKanna Bishop Joffe.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

BREWER, J.

Arlington School District (district) seeks review of an order of the Employment Relations Board (ERB) compelling it to arbitrate a grievance filed by the Arlington Education Association (union) arising from the dismissal of a union member. The district contends that ERB erred in taking official notice of a document that was not submitted in evidence at the hearing on the grievance but that appeared elsewhere in the ERB contested case record. We review for abuse of discretion, ORS 183.450(4), and reverse and remand. ORS 183.482(8)(b)(A).

In September 1999, the union filed an unfair labor practice complaint on behalf of a dismissed district employee, alleging that the district had refused to arbitrate a grievance under the parties' collective bargaining agreement (CBA). During discovery, the union subpoenaed the unredacted minutes of an executive session of the district's Board of Education. On November 15, the district moved to quash the subpoena. The district attached to the motion, as an exhibit, a letter dated September 8, 1999, from the district's attorney to the union. In the letter, the attorney asserted that the redacted portion of the minutes "had nothing to do with" the grievance. The letter also stated that the district was "refusing to process [the employee's grievance,] and that includes refusing to proceed to arbitration." The administrative law judge (ALJ) reviewed the unredacted minutes, determined that they were not relevant, and granted the motion to quash. A different ALJ conducted a contested case hearing on the complaint, and the parties supplemented the hearing with written briefs. At the hearing, the parties' arguments concentrated on the district's obligation to arbitrate under the CBA, and the union did not submit the district's letter into the evidentiary record. The ALJ recommended dismissal of the complaint on the ground that the union had failed to establish that the district had refused to arbitrate.

The union objected to the ALJ's recommended order, arguing that it was undisputed that the district had refused to arbitrate the grievance. The union moved to reopen the evidentiary record to include the letter from the district's attorney. On review, ERB declined to reopen the record but decided, instead, to take official notice of the letter. ERB explained its reasoning in a footnote to its decision:

"[O]ur official case file contains a letter dated September 8, 1999, from the District's counsel to the [union]. This letter was submitted by the District as an exhibit to its motion to quash in this case. In the letter, the District states clearly that it was refusing to arbitrate the * * * grievance.

"The [union] attached this same letter as an appendix to its objections to the ALJ's recommended order and requested us to reopen the record and admit the letter as an exhibit. The District objects to our consideration of the September 8 letter, arguing that it was not introduced as an exhibit at hearing and is not a part of the `record' in this case.

"We disagree that we may not rely on the contents of this letter. We do not condone the [union's] attaching of the letter to its objections. That is not an acceptable method for introducing evidence. This same letter, however, is a part of our official case file and was earlier submitted to this Board by the District as an exhibit. We often have taken notice of the contents of documents in our official files. When we discovered the letter in the file, we informed the parties that we intended to take notice of it and gave them the opportunity to respond. We considered the District's response and were not persuaded that it would be inappropriate to take notice of the letter." 18 PECBR 901, 910-11 n. 6 (2000) (citations omitted).

Relying on the letter, ERB concluded that the district had refused to arbitrate the grievance. ERB further determined that the CBA was susceptible to an interpretation obliging the district to arbitrate, and it ordered the district to arbitrate the grievance.

In a concurring opinion, another ERB member also addressed the letter:

"Contrary to our practice, the [union] offered no good cause for its failure to introduce the document at hearing. The District argues, with some justification, that we would be giving the [union] a windfall if we deny the [union's] request to reopen, yet nonetheless take notice of the same letter from our files.

"On the other hand, if we ignore the document, the District receives a windfall because the complaint would be dismissed on a technical ground that neither party contemplated. The District did not seriously dispute its refusal to arbitrate the grievance at issue here, as can be seen by reviewing the way it litigated this case. * * *

"* * * * *

"* * * [T]he parties approached the issue as whether the District had an obligation to arbitrate, not whether it refused to arbitrate. The letter is material to the issue of refusal. It was submitted to us by counsel for the District, albeit for a different purpose. There is no reason to believe that it is not credible or misstates the District's position. We told the parties we intended to take notice of the letter and gave them an opportunity to respond. The District offered argument about why we should not take notice of the letter but did not rebut the information it contained or challenge its authenticity.

"As to the possibility that our ruling will encourage sloppy litigation habits in the future, I believe our rules and practices are sufficient to address those concerns. * * * Our decision to take notice is always discretionary. The circumstances here were somewhat unusual, and complicated what would otherwise have been a relatively straightforward exercise of discretion. In the interests of resolving the labor relations dispute presented, taking notice of the letter is appropriate." Id. at 919-20 (Stiteler, Chair, concurring) (footnotes omitted; emphasis in original).

One ERB member dissented, asserting that the letter was not subject to official notice. However, the dissent agreed with the majority that the union should not be allowed to reopen the evidentiary record, stating that "[i]t is well-established that we do not accept evidence introduced after the close of the hearing, absent a showing of good cause." Id. at 920 (Thomas, dissenting).

On review, the district makes two assignments of error. First, it asserts that ERB erred in taking official notice of the September 8, 1999, letter to establish that the district had refused to arbitrate the grievance. Because there was no other evidence that it had refused to arbitrate, the district contends that ERB was required to dismiss the complaint. In its second assignment, the district asserts that the grievance was not arbitrable under the CBA. Because, as explained below, the first assignment of error is dispositive, we do not address the second.¹

We review ERB's decision to take official notice for abuse of discretion. See ORS 183.450(4) (providing for agency discretion in taking official notice). An agency abuses its discretion when its action is (1) outside the range of discretion delegated to the agency by law; (2) inconsistent with an agency rule or an officially stated agency position; or (3) otherwise in violation of a constitutional or statutory provision. ORS 183.482(8)(b). Here, the district contends that taking official notice of the letter falls outside the range of discretion delegated to ERB under ORS 183.450(4), which provides that "[t]he hearing officer and agency may take notice of judicially cognizable facts, and may take official notice of general, technical or scientific facts within the specialized knowledge of the hearing officer or agency." The term "judicially cognizable facts" is not defined by statute. However, OEC 201(b) defines the similar term "judicially noticed fact":

"A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

"(1) Generally known within the territorial jurisdiction of the trial court; or

"(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

Because a judicially noticed fact must, of necessity, be judicially cognizable, we conclude that ORS 183.450(4) corresponds to OEC 201(b). See SAIF v. Calder, 157 Or. App. 224, 227, 969 P.2d 1050 (1998) (holding that a court or administrative agency may take judicial notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned).

The union does not contend that ERB was authorized to take official notice of the letter under OEC 201(b)(1). Instead, it asserts that ERB was entitled to take notice under subsection (b)(2). The union reasons that the district's refusal to arbitrate is capable of accurate and ready determination by resort to a source—the letter the district submitted to ERB as part of the official record in the administrative proceeding— whose accuracy at least the district cannot challenge.

Whether a private document submitted by a party into an agency record can constitute a source "whose accuracy cannot reasonably be questioned" presents a question of statutory construction. In interpreting a statute, the court's task is to discern the intent of the...