Elvin v. Oregon Public Employees Union

• Jurisdiction: Oregon
• Parties: , 136 L.R.R.M. (BNA) 2835 James ELVIN, Joyce E. Bedient, Gary F. Burnett, Jack Fulton, David M. Garrick, Roland Giesbrecht, Harold W. Jacobs, Warren C. Johnson, Jr., Loren P. Link, Dennis D. Mattison, Doug Sanford, Gregg L. Spooner, Thomas W. Tesch, Kenneth N. Twidwell, Albert S. Wenzel, James E. Yost, and Paul Berg, Respondents, v. OREGON PUBLIC EMPLOYEES UNION, Petitioner. UP 38-87; CA A50465. *
• Citation: Elvin v. Oregon Public Employees Union, 102 Or.App. 159, 793 P.2d 338 (Or. App. 1990)
• Court: Oregon Court of Appeals
• Decision Date: 08 August 1990

Page 338

793 P.2d 338

102 Or.App. 159, 136 L.R.R.M. (BNA) 2835

James ELVIN, Joyce E. Bedient, Gary F. Burnett, Jack Fulton David M. Garrick, Roland Giesbrecht, Harold W. Jacobs Warren C. Johnson, Jr., Loren P. Link, Dennis D. Mattison Doug Sanford, Gregg L. Spooner, Thomas W. Tesch, Kenneth N Twidwell, Albert S. Wenzel, James E. Yost, and Paul Berg, Respondents, v. OREGON PUBLIC EMPLOYEES UNION, Petitioner.

UP 38-87; CA A50465.

Court of Appeals of Oregon, In Banc ^*.

Argued and Submitted Nov. 27, 1989.

Resubmitted In Banc May 9, 1990.

Decided June 13, 1990.

Reconsideration Denied Aug. 8, 1990.

James S. Coon, Portland, argued the cause for petitioner. With him on the briefs was Imperati, Barnett, Sherwood & Coon, P.C., Portland.

Milton L. Chappell, Springfield, Va., argued the cause for respondents. On the brief were Gary V. Abbott, Hallmark, Keating & Abbott P.C., Portland, John C. Scully and National Right To Work Legal Defense Foundation, Inc., Springfield, Virginia.

Monica A. Smith and Durham, Drummonds, Smith & Wiser, Portland, filed a brief amicus curiae for Oregon Educ. Ass'n.

EDMONDS, Judge.

Oregon Public Employees Union (OPEU) seeks review of an order of the Employment Relations Board (ERB). After finding that OPEU had committed unfair labor practices, ERB ordered OPEU to reimburse the "fair share" payments that respondents had made. OPEU argues that ERB's order is a penalty rather than a remedy, is not necessary to effectuate the purposes of the Public Employees Collective Bargaining Act (PECBA) and, therefore, is beyond the authority of ERB granted to it by ORS 243.676(2)(c). ¹ We disagree and affirm.

Respondents are employees of a bargaining unit that OPEU represents, but are not OPEU members. In their unfair labor practices complaint, respondents charged that OPEU did not follow the procedural safeguards required by the Supreme Court in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), for unions that collect mandatory payments from nonmembers. ERB found that OPEU failed to comply with two of the requirements, relating to an audit of OPEU's expense report and to the placement of disputed funds in escrow, when it determined the amount of respondents' fair share payments. See ORS 243.650(10). As a result, ERB concluded:

"OPEU violated ORS 243.672(2)(a) and (c) by collecting fair share payments without providing all the procedural safeguards prescribed in Hudson.

" * * * * *

"The Complainants were 'harmed' by OPEU's violations in that the OPEU procedure for collecting fair share [sic ] did not afford them all the procedural protections prescribed by Hudson." ²

After finding OPEU guilty of unfair labor practices, ERB discussed the appropriate remedy:

"OPEU's escrow violation (limited escrow not based on an independent verification) gave the union full use of certain funds (difference between the limited escrow amount and a 100 percent escrow of objectors' fees) for a brief period of time (from time of objection until the arbitrator's decision). The financial effect of this violation on the Complainants was nil, however; because the fair share amount deducted from their paychecks would have been the same (under a 100 percent escrow) as the amount actually deducted.

"OPEU's notice violation (failure to use verified figures or provided an explanation of chargeable payments to affiliates) likewise did not have a financial impact on the Complainants because they, in fact, did object to any payments for nonchargeable activities in response to the defective notice.

"A typical monetary 'make-whole' remedy in this case, consequently, would provide no remedy at all to the Complainants. A cease and desist order alone, however, would not effectuate the purposes of PECBA in that OPEU would suffer no loss due to its unlawful conduct because it already has collected all fees possible under the fair share agreement at issue, which expired June 30, 1987.

" * * * * *

"Complainants charged, and proved, that the OPEU procedure for the collection of fair share funds did not conform with the Hudson procedural requirements. Because any fair share assessment against Complainants should have conformed with Hudson, and because of the constitutional nature of the rights violated at that point, we will order OPEU to refund, with nine (9) percent per annum interest, all payments in-lieu-of-dues made to it by the Complainants after October 26, 1986, pursuant to the fair share agreement in the 1985-87 collective bargaining contract between OPEU and the State of Oregon." (Footnotes omitted; emphasis supplied.)

OPEU does not dispute ERB's conclusion that it was guilty of unfair labor practices. It assigns as error that portion of the order that requires it to repay respondents the full amount of their fair share payments. It contends that ERB did not merely provide a remedy for respondents' loss, but, in substance, imposed a civil penalty without the findings required by ORS 243.676(4)(a). ³ The heart of OPEU's argument is that ERB exceeded its authority when it ordered return of the fair share payments despite the fact that the amount of the payment was the equivalent of respondents' fair share.

Respondents argue:

"Charging parties never agreed that the OPEU's computations and agency fees were the correct amount, or fair. Charging parties limited the unfair labor practice to a challenge to the procedures rather than also the amount of the fee, on the well-founded belief that if the OPEU's procedures were unconstitutional, the union would not be entitled to collect anything."

They assert that ERB did not impose a civil penalty, but simply fashioned a remedy to return fair share payments to respondents that OPEU had no right to retain, because the union's collection of the fees was a violation of the First Amendment.

ERB did not purport to order a penalty under ORS 243.676(4). However, that statute does not prevent ERB from exercising other remedies or imposing sanctions to achieve the purpose of PECBA. See ORS 243.766(3); ⁴ ORS 243.672(2)(c). Our function is to construe ORS 243.676(2) so as to carry out the legislature's intent. See ORS 174.010; ORS 174.020; Fifth Avenue Corp. v. Washington Co., 282 Or. 591, 596, 581 P.2d 50 (1978). An agency's interpretation of a general enabling statute is entitled to deference. See Springfield Education Assn. v. School Dist., 290 Or. 217, 228-30, 621 P.2d 547 (1980). When the legislature authorized ERB to "[t]ake such affirmative action * * * as necessary to effectuate the purposes of" PECBA, it must have contemplated that ERB have the authority to deter violations of PECBA and to promote protection of the constitutional rights of those who choose not to participate in a union. ERB's order in this case is consistent with such a broad grant of authority. As respondents point out, ERB simply returned to them that which OPEU could not constitutionally collect. ERB acted within the authority granted to it by the legislature when it sought to deter OPEU or any other union from violating the provisions of PECBA or from not complying with the procedural safeguards of Hudson. ⁵

Affirmed. ⁶

GRABER, Judge Pro Tem., dissenting.

The majority elevates form over substance in holding that the Employment Relations Board (ERB) did not exact a penalty in this case. I would modify the order by deleting paragraph 2 and, accordingly, dissent.

As the majority notes, ERB found that Oregon Public Employees Union (OPEU) violated ORS 243.672(a) and (c), because it did not follow all of the procedural safeguards that the Supreme Court prescribed in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). The Supreme Court devised those procedures to protect the fair share payers' First Amendment rights. The requirements of ORS 243.672(2)(a) and (c) must be interpreted consistently with the requirements of the First Amendment.

ERB also found, however, that respondents suffered no financial harm as a result of OPEU's violations and that "OPEU attempted to comply with the newly-announced Hudson requirements." Respondents asserted that they did suffer financial harm, because OPEU had the use of their fair share payments before having provided the proper procedure for collecting them. ERB replied to that contention by expressly finding that the violations had no financial impact on respondents. None of the parties assigns error to that finding. Respondents also argue that the hearing that resulted in ERB's finding of no financial impact was procedurally improper. ERB ruled against them on that issue, but they did not petition for review. Accordingly, that procedural question is not before us. Because neither the finding of no monetary loss nor the process that led to it is assigned as error, we are bound by that finding.

The majority simply ignores the finding of no financial harm and the implications that flow from it. OPEU contends that ERB did not merely provide a remedy for respondents' loss but, in substance, imposed a civil penalty without the findings required by ORS 243.676(4)(a). A penalty is limited to $1,000 per case and requires ERB to follow procedures that it did not. ORS 243.676(4). The core of OPEU's argument is that ERB ordered restitution even though there is no loss to restore. In my view, ERB's action exceeded its authority under ORS 243.676(2).

After ERB finds that a person has engaged in an unfair labor practice, it shall:

"Take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as necessary to effectuate the purposes of ORS * * * 243.650 to 243.782." ORS 243.676(2)(c).

"We can set ERB's remedy aside only if it has exercised its authority in a manner that does not reasonably effectuate the purposes of PECBA." OSEA v. Lake County School District, 93 Or.App. 481, 486, 763 P.2d 160 (1988); see also Gresham Tchrs. v. Gresham Gr. Sch., 52...