Or. AFSCME Council 75 v. State

• Citation: 304 Or.App. 794,469 P.3d 812
• Decision Date: 17 June 2020
• Docket Number: A167661
• Parties: OREGON AFSCME COUNCIL 75, Respondent, v. State of Oregon, OREGON JUDICIAL DEPARTMENT - YAMHILL COUNTY, Petitioner.
• Court: Court of Appeals of Oregon

304 Or.App. 794

469 P.3d 812

OREGON AFSCME COUNCIL 75, Respondent,

v.State of Oregon, OREGON JUDICIAL DEPARTMENT - YAMHILL COUNTY, Petitioner.

A167661

Court of Appeals of Oregon.

Argued and submitted March 27, 2019.

June 17, 2020

Leigh A. Salmon, Assistant Attorney General, argued the cause for petitioner. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Jason M. Weyand, Portland, argued the cause for respondent. Also on the brief was Tedesco Law Group.

Before Ortega, Presiding Judge, and Powers, Judge, and Linder, Senior Judge.

LINDER, S. J.

Under the Public Employees Collective Bargaining Act (PECBA), ORS 243.650 to 253.782, public employees have the right to "form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations." ORS 243.662. A public employer, however, is not required to bargain with any labor organization that a group of its employees selects to represent them. Rather, the employer's obligation to bargain with a chosen labor organization arises only if the organization is "certified by the Employment Relations Board or recognized by the public employer," in which case it is the "exclusive" bargaining representative for the group of employees. ORS 243.666(1).

In this case, Oregon AFSCME Council 75 (AFSCME) petitioned the Employment Relations Board (ERB) to certify it as the exclusive representative of a bargaining unit consisting of 27 nonsupervisory employees working in the Yamhill County Circuit Court. With one member dissenting, ERB ordered the certification, concluding that those employees were an "appropriate" bargaining unit for representation separate and apart from the remaining 1,200 or so unrepresented employees of the Oregon Judicial Department (OJD).¹ OJD petitions for review of ERB's order, contending that ERB erred in its appropriate unit determination. For the reasons explained below, we agree and set aside ERB's order.

I. BACKGROUND

After AFSCME filed its petition seeking certification of the proposed bargaining unit, a hearing was held by an administrative law judge, who issued a proposed order that drew objections from both parties. After oral argument on the parties’ cross-objections, ERB issued its final order, which included extensive factual findings. Some of ERB's findings were based on the evidentiary record developed at the hearing and others were based on statutory provisions and OJD rules.

On review, neither party challenges ERB's findings of fact. We therefore base our description of the historical facts on ERB's evidence-based findings, supplemented with facts in the record consistent with ERB's findings. Meltebeke v. Bureau of Labor and Industries , 322 Or. 132, 134, 903 P.2d 351 (1995), abrogated on other grounds by State v. Hickman , 358 Or. 1, 24, 358 P.3d 987 (2015) (unchallenged agency findings of fact are binding on judicial review); Wallace v. State ex rel. PERS , 249 Or. App. 214, 215, 275 P.3d 997, rev. den. , 352 Or. 342, 288 P.3d 276 (2012) (on review, court draws from unchallenged agency factual findings, supplemented by the record). The pertinent statutory scheme and rules, and any relevant legislative history, are appropriate for this court to review and consider independent of ERB's "factual findings" describing that scheme.² Cf. Dept. of Human Services v. J. R. F. , 351 Or. 570, 579, 273 P.3d 87 (2012) (court has independent obligation to interpret statutes correctly, which includes considering relevant context).

A. The Unification of Oregon's Court System

From statehood and into the early 1980s, Oregon's state trial court system (circuit and district courts) was largely funded and administered at the county level; only the Supreme Court, initially, and later the Court of Appeals and Tax Court, were fully state-funded and centrally administered. Although trial court judges were state officials and paid by the state, all other trial court staff were county employees. Their salaries, benefits, work responsibilities, and other terms of their employment were the responsibility of the respective counties in which the state's trial courts were located. 1980 Report of the Oregon Commission on the Judicial Branch at 5-6, 26 (February 1981) (1980 Report).³

That system of locally funded and operated trial courts changed with the enactment of what at the time was commonly termed the "Court Reform Act."⁴ Beginning in 1983, the legislature consolidated Oregon's trial courts, Tax Court, and appellate courts into a single unified court system funded directly by the state and administered centrally on a statewide basis.⁵ Trial court employees ceased to be employees of the individual counties in which they worked and instead became employees of the state. ORS 8.235. Each county's responsibility was primarily limited to maintaining its respective physical courthouse facility, which remained county property. ORS 1.185(1).

A host of concerns prompted that legislative change. Among them was that trial court funding by "36 counties in 36 budgets," even as supplemented by some state funding, led to "levels of support [that were] uneven and often unpredictable." 1980 Report at 5. Also, the trial judges who exercised administrative responsibility at the local level were often selected by their peers for reasons other than their "administrative talents." Id . Regardless of their administrative abilities, those judges had "little control over the county personnel upon whom they [had to] rely to perform judicial duties." Id . And although the Chief Justice had some general administrative and supervisory authority over the court system as a whole, in practice that authority was ineffective. Id . As a result, there was "little administrative cohesion and less administrative accountability in the judicial branch" than in the other branches of government. Id . The legislature distilled those and other concerns that led to the unification of Oregon's court system into a statutory declaration of purpose:

"The Legislative Assembly hereby declares that, as a matter of statewide concern, it is in the best interests of the people of this state that the judicial branch of state government, including the appellate, tax and circuit courts, be funded and operated at the state level. The Legislative Assembly finds that state funding and operation of the judicial branch can provide for best statewide allocation of governmental resources according to the actual needs of the people and of the judicial branch by establishing an accountable, equitably funded and uniformly administered system of justice for all the people of this state."

ORS 1.001.

B. Administrative Structure of the Unified Court System

Central to achieving an accountable, equitably funded, and uniformly administered justice system was "the establishment of clear and direct lines of administrative authority and accountability within the judicial branch, with a strong executive office of Chief Justice." 1980 Report at 5. To that end, the legislature designated the Chief Justice of the Oregon Supreme Court as the "head of the judicial department" with "administrative authority and supervision over the courts of this state[.]" ORS 1.002. The administrative powers and responsibilities that the legislature conferred on the Chief Justice are wide-ranging and extensive. For OJD generally, as well as for the individual state courts, the Chief Justice is charged with, among other responsibilities: determining all policies and procedures for budget and fiscal management; setting staffing levels; assigning or reassigning all court staff; devising all personnel rules and policies, including compensation and benefits; overseeing the acquisition, use and disposition of all property used by the courts; providing for court security, emergency preparedness, and the continuation of court services in emergencies; designing and implementing technological and other business processes for court operations; and overseeing all court services to the public, including prescribing uniform rules of procedures for civil and criminal proceedings. See ORS 1.002 (enumerating general powers of Chief Justice); ORS 1.006 (authority over uniform rules of court procedure); ORS 1.008 (responsibility over personnel, budget, and property management); ORS 1.177 (responsibility for court security, emergency preparedness, and business continuity planning).

The Chief Justice is aided by the State Court Administrator, who is appointed by and serves at the pleasure of the Chief Justice. ORS 8.110(2). The Chief Justice may delegate to the State Court Administrator any of the Chief Justice's administrative powers. ORS 1.002(9) ; ORS 8.125(1). The legislature has specified that, subject to the Chief Justice's direction, the State Court Administrator's responsibilities include, among other aspects of running the state court system: supervising the personnel plan for nonjudicial officers and employees of the court; budget preparation and fiscal accounting; property management; continually surveying administrative methods and business activities of the state courts; making recommendations to the Chief Justice based on those surveys; compiling statistical information and reports on court caseloads, workloads, performance, management, expenses and revenues; and establishing and supervising education programs for judges, other officers, and employees of the state courts pertinent to the performance of their work. ORS 8.125(2). To provide the centralized operational and infrastructure services needed for the state court system, the State Court Administrator oversees a large staff that is divided into several functional divisions and programs, such as Budget and Fiscal Services Division, Enterprise Technology Services Division, Human Resource Services Division, and an internal Audit...