Elvin v. Oregon Public Employees Union

793 P.2d 338, 102 Or. App. 159, 136 L.R.R.M. (BNA) 2835, 1990 Ore. App. LEXIS 578

• Court: Court of Appeals of Oregon
• Decided: June 13, 1990
• Docket: UP 38-87; CA A50465
• Status: Published

Opinions

EDMONDS, J.

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 US 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.

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“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 ofPECBA 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.

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“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 P2d 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 P2d 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

1 ORS 243.676(2) provides, in relevant part:

“Where, as a result of the hearing required pursuant to paragraph (c) of subsection (1) of this section, the board finds that any person named in the complaint has engaged in or is engaging in any unfair labor practice charged in the complaint, the board shall:

“(a) State its findings of fact;

“(b) Issue and cause to be served on such person an order that the person cease and desist from the unfair labor practice;

“(c) 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 240.060, 240.065, 240.080, 240.123, 243.650 to 243.782, 292.055, 341.290, 662.705, 662.715 and 662.785[.]” (Emphasis supplied.)

2 OPEU collected fees for the fiscal year of 1985-1986 from non-union employees. When the claim was made in 1987 by respondents that OPEU had collected more than fair share payments, OPEU unilaterally set up a hearing that would permit respondents to challenge the amount of the fee. Respondents objected to the hearing, in part because the notice of chargeable expenditures sent out by OPEU was not verified by an independent audit, contrary to the requirements of Hudson. ERB would later find that deficiency to be an unfair labor practice. OPEU rejected respondents’ objection and held the hearing without them, characterizing the hearing as an arbitration proceeding. OPEU unilaterally chose the American Arbitration Association to appoint a hearings officer, who then made a determination as to respondents’ fair share obligation.

3 ORS 243.676(4) provides, in relevant part:

“(4) The board may award a civil penalty to any person as a result of an unfair labor practice complaint hearing, in the aggregate amount of up to $1,000 per case, without regard to attorney fees, if:

“(a) The complaint has been affirmed pursuant to subsection (2) of this section and the board finds that the person who has committed, or who is engaging, in an unfair labor practice has done so repetitively, knowing that the action taken was an unfair labor practice and took the action disregarding this knowledge, or that the action constituting the unfair labor practice was egregious[.]”

4 ORS 243.766(3) provides:

“The board shall:

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“Conduct proceedings on complaints of unfair labor practices by employers, employees and labor organizations and take such actions with respect thereto as it deems necessary and proper.” (Emphasis supplied.)

5 Other jurisdictions which have considered similar issues have not reached uniform decisions. See Tierney v. City of Toledo, 824 F2d 1497 (6th Cir 1987); Gibney v. Toledo Bd. of Educ., 40 Ohio St 3d 152, 532 NE 2d 1300 (1988); Lowary v. Lexington Local Bd. of Educ., 854 F2d 131 (6th Cir 1988); Gilpin v. AFSCME, AFL-CIO, 875 F2d 1310 (7th Cir 1989). There is no language in any of these cases that would suggest that ERB acted beyond its statutory authority.

6 OPEU’s other assignment of error does not warrant discussion.