SEIU Local 503, OPEU v. ST ( 2024 )

310 January 24, 2024 No. 39
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
SEIU LOCAL 503, OPEU,
Respondent,
Cross-Petitioner,
v.
ST,
Petitioner,
Cross-Respondent.
Employment Relations Board
UP02421; A179824
Argued and submitted November 16, 2023.
Rebekah C. Millard argued the cause for petitioner-
cross-respondent. Also on the opening brief was James G.
Abernathy.
Stacey Leyton argued the cause for respondent-cross-
petitioner. Also on the briefs were Zoe Palitz and Altshuler
Berzon, LLP; and Jared Franz.
Before Tookey, Presiding Judge, and Lagesen, Chief
Judge, and Kamins, Judge.
KAMINS, J.
Cite as 330 Or App 310 (2024) 311
312 SEIU Local 503, OPEU v. ST
KAMINS, J.
This petition for judicial review is about whether
the Employment Relations Board (ERB) had authority to
address a public employee’s challenge to a union’s deduction
of about six weeks of union dues from her paycheck after
she resigned her union membership. Petitioner Staci Trees
seeks reversal of an ERB order determining that ERB has
jurisdiction over disputes regarding authorization for union
dues deductions and resolving the dues deduction dispute in
favor of Service Employees International Union Local 503
(the Union). The Union cross-petitions, challenging ERB’s
dismissal of its unfair labor practice (ULP) claim against
petitioner. We review ERB’s order for substantial evidence,
substantial reason, and legal error, ORS 183.482(8), and
affirm.
We draw our summary of the facts from ERB’s find-
ings. In 2009, petitioner signed a union membership card
when she began working for the Oregon Department of
Transportation. Over 11 years later, petitioner sent a letter
to the Union seeking to resign her union membership. At
that time (and per her request), the Union provided her with
a copy of her membership and dues authorization agree-
ment signed in March 2016. The Union notified petitioner
that she had submitted her resignation request outside the
window for terminating dues as stated in the 2016 agree-
ment, meaning that petitioner was required to continue
paying union dues for the next two months. The Union also
explained to petitioner that it would retain her request and
process it during the dues termination window.
Petitioner denied having signed the 2016 agree-
ment and filed a federal lawsuit against the Union alleging
fraud, racketeering, and civil rights violations. In response,
the Union filed a claim with ERB to resolve whether peti-
tioner had indeed signed the 2016 agreement authorizing
dues deductions. The Union also alleged that petitioner had
committed a ULP by refusing to honor her agreement and by
filing preempted state law claims in federal court. Petitioner
challenged ERB’s jurisdiction, first in an informal response
with the Administrative Law Judge (ALJ), then in a motion
to dismiss that was referred to ERB, and finally in a motion
Cite as 330 Or App 310 (2024) 313
filed in federal court. At each juncture, petitioner’s objec-
tions to ERB’s jurisdiction were rejected.
Following a three-day hearing, an ALJ determined
that petitioner had signed the 2016 agreement and was
bound by its terms. ERB affirmed the ALJ’s recommenda-
tion, and both petitioner and the Union seek review of that
order.
Petitioner’s first assignment of error challenges
ERB’s jurisdiction to determine the validity of the 2016
agreement. An administrative agency’s “[j]urisdiction
depends on whether the matter is one that the legislature
has authorized the agency to decide.” Multnomah County
Sheriff’s Office v. Edwards, 361 Or 761, 778, 399 P3d 969
(2017) (internal quotation marks omitted). Relevant to this
petition, the legislature had authorized ERB to resolve dis-
putes “between the public employee and the labor organi-
zation regarding the existence, validity or revocation of an
authorization for the deductions and payment [of dues],” and
has provided that “the dispute shall be resolved through
an unfair labor proceeding under ORS 243.672.” ORS
243.806(10)(a). ERB determined that it had jurisdiction
under ORS 243.806(10)(a) to resolve the question of whether
petitioner had signed the 2016 agreement. We review ERB’s
interpretation of ORS 243.806(10)(a) for legal error. ORS
183.482(8)(a).
Petitioner contends that ERB lacked jurisdiction to
decide whether her union membership agreement was valid
because, in her view, ERB’s jurisdiction is limited to deciding
ULP claims as defined in ORS 243.672. Here, because the
factual dispute regarding the authenticity of the signature
of the union membership agreement did not relate to a ULP
claim, petitioner contends that ERB should have dismissed
the claim. In response, the Union argues that the statute
grants ERB jurisdiction to resolve disputes regarding the
existence of authorizations for deductions of dues and does
not limit that jurisdiction to claims alleging ULPs.
When interpreting statutes, “our task is to discern
the intent of the legislature.” Black v. Coos County, 288
Or App 25, 29, 405 P3d 178 (2017). “Our starting point is the
314 SEIU Local 503, OPEU v. ST
text and context of the statute, because the best evidence of
the legislature’s intent is the text itself.” Id. (internal cita-
tions omitted). We give words of common usage their “plain,
natural, and ordinary meaning.” PGE v. Bureau of Labor
and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).
After examining text and context, we review legislative his-
tory that is useful to our analysis. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009).
We begin with the relevant text of the statute:
“If a dispute arises between the public employee and the
labor organization regarding the existence, validity or
revocation of an authorization for the deductions and pay-
ment [of dues], the dispute shall be resolved through an
unfair labor practice proceeding under ORS 243.672.”
ORS 243.806(10)(a). It does not appear contested that a “dis-
pute” exists as described in ORS 243.806(10)(a)—the Union
asserted that petitioner signed a membership agreement in
March 2016 entitling it to deduct dues for about six weeks
after her resignation from the union while petitioner denies
that she ever signed that agreement. The question then is
whether ORS 243.806(1) requires the assertion of a ULP
claim as defined in ORS 243.672 for ERB to exercise its
jurisdiction.
The plain text of ORS 243.806(10)(a)—“the dis-
pute shall be resolved through an unfair labor proceeding”
(emphases added)—grammatically and logically signifies
that ERB shall resolve dues deduction authorization dis-
putes as ULP proceedings—not that a ULP claim, as defined
in ORS 243.672, must be asserted. ORS 243.806(10)(a). To
avoid that common-sense reading, petitioner argues for a
construction that would require a dispute relating to an
authorization for deduction of dues to be part of a separate
claim for a ULP, as defined in ORS 243.672. That construc-
tion would render ORS 243.806(10)(a) superfluous, as ERB
already has authority to resolve factual disputes that arise
in ULP claims. See State v. Cloutier, 351 Or 68, 98-100, 261
P3d 1234 (2011) (A statutory interpretation “that renders a
statutory provision meaningless should give us pause, both
as a matter of respect for a coordinate branch of government
that took the trouble to enact the provision into law and
Cite as 330 Or App 310 (2024) 315
as a matter of complying with [interpretive principles].”);
Vsetecka v. Safeway Stores, Inc., 337 Or 502, 510, 98 P3d 1116
(2004) (“When, as in this case, a statute contains multiple
provisions, ORS 174.010 directs us to read those provisions,
if possible, in a way that will give effect to all of them.”). The
statute does not state that dues deduction disputes can be
resolved before ERB only in the context of “an unfair labor
practice” claim under ORS 243.672, which would have been
a straightforward way to describe the reading advanced by
petitioner.
Context strengthens our reading. ORS 243.806(1)1
and (2) authorize a public employee and a union to enter
2
into a dues-deduction agreement and require a public
employer to make deductions in accordance with that agree-
ment. Those provisions describe general dues deduction
authorizations and do not refer to ULPs. ORS 243.806(10)
then provides a remedy for resolving disputes arising out of
dues deduction authorizations. The context and plain text of
the statute explicitly provide ERB with authority to resolve
disputes regarding authorization for the deduction of dues
between public employees and a labor organization by way
of an unfair labor proceeding.
Petitioner contends that ORS 243.766 and ORS
243.676(3), together, provide context for the construction
that ERB’s jurisdiction is limited to resolving ULP claims.
ORS 243.766(3) grants ERB jurisdiction to “[c]onduct pro-
ceedings on complaints of unfair labor practices.” And, pur-
suant to ORS 243.676(3)(a), “[w]here the board finds that the
person named in the complaint has not engaged in or is not
engaging in an unfair labor practice, the board shall * * *
[i]ssue an order dismissing the complaint * * *.” Petitioner
1
ORS 243.806(1):
“A public employee may enter into an agreement with a labor organization
that is the exclusive representative to provide authorization for a public
employer to make a deduction from the salary or wages of the public employee,
in the manner described in subsection (4) of this section, to pay dues, fees and
any other assessments or authorized deductions to the labor organization or
its affiliated organizations or entities.”
2
ORS 243.806(2):
“A public employer shall deduct the dues, fees and any other deduction autho-
rized by a public employee under this section and remit payment to the des-
ignated organization or entity.”
316 SEIU Local 503, OPEU v. ST
argues that those statutes limit ERB’s authority to consider
claims that do not involve a ULP. But that construction
overlooks the explicit statement in ORS 243.806(10) that
disputes concerning authorization for dues deductions are
to be resolved through a ULP proceeding. Simply stated,
although it does not itself constitute a ULP claim, a dispute
relating to authorization of union dues deductions is to be
brought to ERB as a ULP proceeding.
The legislative history supports our construction
of the statute. ORS 243.806(10) was added to the Public
Employee Collective Bargaining Act (PECBA) as part of
House Bill (HB) 2016 (2019), an expansive piece of legisla-
tion dealing with labor relations in the wake of the United
States Supreme Court’s decision in Janus v. AFSCME,
Council 31, 585 US __, 138 S Ct 2448, 201 L Ed 2d 924(2018). The bill included multiple amendments to PECBA,
including a comprehensive scheme regarding dues deduc-
tions for public employees, labor organizations, and public
employers. Part of that comprehensive scheme is Section 6
of HB 2016, which is codified at ORS 243.806(10). As ERB
has explained, “The legislative history of ORS 243.806 also
supports a conclusion that the intent of the statute was to
prevent unauthorized dues deductions from public employ-
ees[.]” Alexander v. Amalgamated Transit Union, Div. 757,
UP-022-20, 18-19 (2021).
The proponents of Section 6 of HB 2016 explained
that the purpose of the provision was to “provide[ ] a clear
and efficient dispute resolution process, through [ERB],
for employees and unions to resolve disagreements over
the status of deduction authorizations.” Testimony, House
Committee on Business and Labor, HB 2016, Mar 11, 2019,
https://olis.oregonlegislature.gov/ (statement of Noah Barish)
(accessed Nov 2, 2023). Barish, a labor attorney, explained
to the legislators,
“There’s also a dispute resolution provision in this bill and
that’s a benefit to all parties involved. We see that cur-
rently disputes are being litigated in civil court over deduc-
tion issues and this bill will allow those disputes to be pro-
cessed through [ERB] through [a ULP] proceeding which is
much more prompt and cost-effective.”
Cite as 330 Or App 310 (2024) 317
Audio Recording, House Committee on Business and Labor,
HB 2016, Mar 11, 2019, at 14:04 (comments of Noah Barish),
https://olis.oregonlegislature.gov (accessed Nov 2, 2023). He
also stated, “Overall, there is an intention here to ensure
that an individual employee’s deduction decisions are a
private matter between them and the union.” Id. at 14:32;
see also Audio Recording, Senate Committee on Workforce,
HB 2016, Apr 18, 2019, at 32:00 (comments of Adam Arms),
https://olis.oregonlegislature.gov (accessed Nov 2, 2023)
(describing how the union is now tasked with dues deduction
record keeping and explaining that “Section 6 provides a
clear and efficient dispute resolution process through [ERB]
to deal with disagreements over the status of dues deduc-
tions”). No testimony before either Committee suggests that
ERB’s power to resolve disputes regarding dues deductions
depends on the existence of a statutorily defined ULP.
Petitioner points to testimony that, in her view,
challenges that reading. Jeffrey Chicoine, representing
the Oregon Public Employer Labor Relations Association,
commented,
“[The bill] puts public funds at the risk of recordkeeping
errors of the union. This is a very real concern given poten-
tial liability to the public employers for the full panoply of
damages available in federal civil rights actions, including
attorney fees. For this reason, public employers have been
counseled by both lawyers and auditors to have unions pro-
vide copies of authorizations of requests for withholdings of
wages whether for dues or other purposes.”
Testimony, House Committee on Business and Labor,
HB 2016, Mar 7, 2019, https://olis.oregonlegislature.gov
(accessed Dec 15, 2023). According to petitioner, Chicoine’s
statements express concern that HB 2016 would increase
potential employer liability under state and federal law—
for actions that are, as petitioner interprets Chicoine’s com-
ments, outside ERB’s jurisdiction. However, the comments
identified by petitioner address a different provision of the
statute—specifically, the requirement now contained in
ORS 243.806(7) that, in Chicoine’s words, employers “with-
hold and remit funds without a union showing the employer
the authorization (or read literally) even without the union
318 SEIU Local 503, OPEU v. ST
having such an authorization” and thus have no bearing on
our construction of ORS 243.806(10). Id.
We conclude that the text, context, and legislative
history of ORS 243.806(10) reflect the legislature’s intent
to assign to ERB authority to resolve disputes regarding
an authorization for dues deductions independent of a ULP
claim.
In her second assignment of error, petitioner chal-
lenges ERB’s finding that she signed the 2016 dues agree-
ment. We review ERB’s decisions for substantial evidence.
Oregon AFSCME Council 75 v. OJD - Yamhill County, 304
Or App 794, 818, 469 P3d 812, rev den, 367 Or 75 (2020).
“Substantial evidence to support a finding of fact is evidence
that, viewing the record as a whole, would permit a reason-
able person to make that finding.” Id. (internal quotation
marks omitted); ORS 183.482(8)(c).
Here, substantial evidence supports ERB’s finding
that petitioner signed the 2016 agreement. The Union pre-
sented first-hand witness testimony that petitioner signed
the membership agreement on March 22, 2016, and sup-
ported that testimony with testimony from other Union
witnesses, contemporaneous documentary evidence, and
the opinion of a handwriting expert that ERB found to be
more persuasive than petitioner’s expert. The Union also
presented evidence that it would not have been possible for
petitioner’s signature to have been forged under the factual
circumstances.
Petitioner identifies competing evidence that, in
her view, supports a finding that she did not sign the 2016
agreement. But in light of the breadth of evidence support-
ing ERB’s finding, competing evidence in this case does not
signify an absence of substantial evidence. See Gaylord v.
Driver & Motor Vehicle Services Division, 283 Or App 811,
822, 391 P3d 900 (2017) (“Review for substantial evidence
is review to determine whether a reasonable person could
have made the findings supporting the decision, not whether
a reasonable person could have made different findings.”
(Internal quotation marks omitted.)). Petitioner also argues
that ERB incorrectly assigned the burden of proof, but the
Cite as 330 Or App 310 (2024) 319
record reflects that ERB correctly placed the burden on the
Union to prove by a preponderance of evidence that peti-
tioner signed the 2016 agreement.
Moreover, petitioner’s argument challenging the
reliability of certain witnesses fails, as we are not tasked
with reweighing the evidence or reassessing the credibil-
ity of the witnesses. See Oregon AFSCME Council 75, 304
Or App at 818 (“This court does not weigh the evidence anew
or otherwise judicially interfere with how ERB evaluates,
weighs, and balances competing criteria to reach a deci-
sion.”); Gaylord, 283 Or App at 822 (“A substantial evidence
review does not entail or permit the reviewing tribunal
to reweigh or to assess the credibility of the evidence that
was presented to the factfinding body.” (Internal quotation
marks omitted.)).
Petitioner takes issue with ERB’s exclusion of tes-
timony by other Union-represented employees suggesting
that the Union habitually forges signatures of unwilling
employees. Assuming that the argument was preserved, the
evidence was properly excluded, because it was not relevant
to the question of whether petitioner signed the 2016 agree-
ment, and the evidence related to different bargaining units,
different organizers, and different devices. We conclude that
substantial evidence in the record supports ERB’s finding
that petitioner signed the 2016 agreement authorizing dues
deductions.
Finally, in her third assignment of error, petitioner
argues that ERB’s resolution of the dispute violated her
constitutional right to file a federal suit against the Union.
However, ERB did not address petitioner’s pending federal
claims, and did not preclude petitioner from filing a federal
action. Nor did ERB determine the preclusive effect of its
findings on petitioner’s pending federal claims; as petitioner
acknowledges, the determination of the preclusive effect
of any part of ERB’s decision is a question for the federal
court. See, e.g., Astoria Federal Savings & Loan Association
v. Solimino, 501 US 104, 106, 111 S Ct 2166, 115 L Ed 2d
96 (1991) (determining the preclusive effect of state agency
findings in federal court).
320 SEIU Local 503, OPEU v. ST
In its assignment of error on cross-petition, the
Union contends that ERB erred in dismissing its ULP
claim against petitioner. Under ORS 243.672(2)(c), a pub-
lic employee commits a ULP when the employee “[r]efuse[s]
or fail[s] to comply with any provision of ORS 243.650 to
243.809.” ORS 243.806(6) provides that an “employee’s
authorization for * * * deduction” of union dues “shall remain
in effect until the public employee revokes the authoriza-
tion in the manner provided by the terms of the agreement.”
According to the Union, petitioner “[r]efuse[d] * * * to com-
ply” with the terms of her dues authorization by denying its
existence and seeking a refund of dues. ERB found that the
language of the statute does not preclude employees from
challenging the validity of their authorizations. We find no
error with that conclusion, on this record, and we conclude
that ERB did not err in dismissing the Union’s ULP claim.
Affirmed on petition and on cross-petition.