George-Buckley v. Medford School Dist. 549C ( 2022 )

821
Argued and submitted February 1, affirmed April 6, 2022
Maureen GEORGE-BUCKLEY,
Plaintiff-Appellant,
v.
MEDFORD SCHOOL DISTRICT 549C,
Defendant-Respondent.
Jackson County Circuit Court
19CV14375; A174520
509 P3d 738
Plaintiff brought this action in circuit court alleging contract and quasi-
contract claims. The trial court dismissed her claims and granted summary judg-
ment to defendant after it concluded that the claims were subject to the exclu-
sive jurisdiction of the Employment Relations Board (ERB). On appeal, plaintiff
argues that the trial court erred, because defendant’s jurisdictional argument
was first raised in a reply memo and because, in her view, her common-law claims
are not subject to ERB jurisdiction. Held: The Court of Appeals concluded that
the trial court did not err in considering defendant’s jurisdictional challenge, nor
in concluding that ERB had exclusive jurisdiction over plaintiff’s claims. The
court determined that, where an element of tort alleges an unfair labor practice
(ULP), the Public Employees Collective Bargaining Act (PECBA) vests exclusive
jurisdiction with ERB. The court determined that plaintiff’s claims amounted to
allegations of a ULP based on a breach of the Collective Bargaining Agreement
(CBA) between plaintiff’s union and defendant. Because PECBA vests exclusive
jurisdiction over such claims to ERB, the court concluded that the trial court
did not err when it dismissed the claims and granted summary judgment to
defendant.
Affirmed.
Benjamin M. Bloom, Judge.
Thomas Dimitre argued the cause for appellant. Also on
the briefs was Thomas Dimitre Attorney at Law LLC.
Lucas Reese argued the cause for respondent. Also on
the brief were Shayna M. Rogers and Garrett Hemann
Robertson PC.
Before Shorr, Presiding Judge, and Mooney, Judge, and
DeVore, Senior Judge.
DeVORE, S. J.
Affirmed.
822 George-Buckley v. Medford School Dist. 549C
DeVORE, S. J.
Plaintiff George-Buckley is an educational assis-
tant who served in the role of a teacher for 12 years with
the defendant Medford School District 549C (district). She
brought this action in circuit court alleging contract and
quasi-contract claims. She appeals from a judgment dis-
missing her claims after the trial court granted defen-
dant’s motion for summary judgment. The trial court con-
cluded that it lacked jurisdiction, because the Employment
Relations Board (ERB) had exclusive jurisdiction of the
claims. Plaintiff argues that the trial court erred, because
the district’s jurisdictional argument was first raised in
a reply memo and because, in her view, her common-law
claims are not subject to ERB jurisdiction. We conclude that
the trial court did not err and, therefore, affirm.
FACTS
Because the issue arises on summary judgment,
we state the facts in the light most favorable to plaintiff
as the nonmoving party. ORCP 47 C; Hoag Living Trust v.
Hoag, 292 Or App 34, 39, 424 P3d 731 (2018). As it hap-
pens, the dispositive facts concerning ERB’s jurisdiction are
undisputed.
In November 1999, the district hired plaintiff for a
position described as an “educational assistant—computer
lab” at “Range 12, Step 1.” Her individual contract is entitled
“Notice of Initial Hiring Conditions,” and it provides that
the conditions of employment “are subject to [the] Collective
Bargaining Agreements and/or future modifications
between [the district] and the Oregon School Employees
Association, Chapter #15.” She acknowledged receipt of the
Classified Employees Handbook, which was incorporated
into her contract. The initial job description summarized
her responsibilities as “[u]nder supervision, performs a wide
variety of duties assisting a teacher in a high school com-
puter lab instructional setting.” Another early job descrip-
tion announced that the position “[a]ssists teachers in the
computer lab by performing clerical and paraprofessional
duties including working with groups of students with com-
puter lab and testing needs.” The position required high
school graduation or the equivalent. Plaintiff has done some
Cite as 318 Or App 821 (2022) 823
college studies, but she did not have a college degree or a
teaching license. A few weeks after she was hired, a joint
Labor Management Team approved reclassification of her
position so as to provide an improved salary in Range 13. In
deposition testimony, plaintiff acknowledged that compen-
sation and the classification of jobs is a scheme “governed
by the collective bargaining agreement that is negotiated
between the classified [employees] union and the school
district.”
For the first five or six years, plaintiff worked within
her role as an educational assistant. Teachers would bring
students into her computer lab and stay with them. In school
year 2006-07, the district gave plaintiff a few computer-
skills classes to teach on her own, which “morphed into
giving [her] more classes,” resulting in a full day teacher’s
schedule. The district showed plaintiff as a teacher in its
class schedule although the coursework required a certi-
fied teacher.1 In her deposition testimony, plaintiff acknowl-
edged that no one from the district led her to believe that
she “would be paid more than what had been communicated
under the collective bargaining agreement.” She continued
in the enlarged role for the next twelve years from school
years 2006-07 through 2017-18.
In February 2017, plaintiff made a request to the
Position Review Committee for a review of her job classifi-
cation. An OSEA field representative helped her in making
the request. The process allows an employee who believed
their duties had changed to seek a remedy such as reclas-
sification, if they believed that their current job description
was no longer accurate. After information is gathered, the
process provides that the committee will make a recommen-
dation, and, if necessary, the joint Labor Management Team
will make a final decision. In her deposition, plaintiff agreed
that a reclassification review is a process provided by the
collective bargaining agreement (CBA).
1
See generally ORS 342.125 (teaching licenses); ORS 342.121 (licensing
by Teacher Standards and Practices Commission [(TSPC)]); ORS 342.138(1) (a
teaching license qualifies person to teach); OAR 584-200-0020(1), (2) (“An edu-
cator must hold a license or registration issued by the [TSPC] if she or he is
(a) employed by an Oregon public school; and (b) compensated for their services
from public funds.”).
824 George-Buckley v. Medford School Dist. 549C
The committee found that plaintiff was performing
duties outside her job description. The committee’s response,
however, was not to reclassify plaintiff’s position with her
continuing to serve enlarged duties, but rather, to maintain
her employment as an educational assistant with appro-
priate duties. The district hired a certified teacher for the
computer-skills classes for the following school year 2018-19.
Plaintiff did not challenge the committee’s decision by seek-
ing review before the joint Labor Management Team—the
body that had previously approved her reclassification.
PROCEEDINGS
In April 2019, plaintiff filed this action in the cir-
cuit court, alleging four contract or quasi-contract claims.
Common to all the claims, she alleged that, beginning in
school year 2006-07 and continuing through school year
2017-18, she “assum[ed] the duties of a teacher * * * though
she was improperly classified as an Educational Assistant.”
She alleged that, although the position of an educational
assistant is to assist teachers, “she was the only teacher for
the computer classes.”
As her first claim, she alleged a breach of contract
and that she was not paid as a teacher, although she per-
formed the duties of a teacher. As her second claim, she
alleged “promissory estoppel” and that the district had her
work as a teacher but refused to pay an appropriate wage
for that work. As her third claim, she alleged unjust enrich-
ment, that she worked as a teacher but was only paid as
an educational assistant. As her fourth claim, she alleged
breach of a duty of good faith and fair dealing, that she had
a reasonable expectation that she would be paid for doing
teaching work, but that the district did not pay commensu-
rate with her work as a teacher. On all claims, she sought
economic damages of $62,776 for the lost value of her work
and noneconomic damages of $50,000, including for emo-
tional distress.
The district filed an answer and later responded
with a motion for summary judgment. In its opening para-
graph of the motion, the district argued:
“The exclusive remedy for Plaintiff’s grievance that she
performed duties beyond her assignment as an educational
Cite as 318 Or App 821 (2022) 825
assistant is under her Collective Bargaining Agreement,
which has already been pursued and resolved through the
administrative process.”
As for the merits of the first claim, the district argued that
there was no express or implied contract to be paid anything
beyond what was specified in plaintiff’s written individual
contract and the collective bargaining agreement. The dis-
trict argued similarly with regard to the claims of promis-
sory estoppel, unjust enrichment, and a breach of a duty of
good faith and fair dealing. In its reply memorandum, the
district put a finer point on its initial argument, contending:
“Plaintiff’s Response * * * confirms the only contract at
issue in this case is the Collective Bargaining Agreement
(‘CBA’) between the District and its classified employees.
Oregon law is clear that any purported breach of the CBA
is subject to the exclusive jurisdiction of the Employment
Relations Board (‘ERB’). Therefore, this Court lacks
jurisdiction to address the pending contract and quasi-
contractual claims and the District’s Motion for Summary
Judgment must be granted as a matter of law.”
The district developed that argument, citing as support case
law involving common-law claims that included a question
committed to the exclusive jurisdiction of ERB.
At the hearing on the district’s motion, the par-
ties’ arguments centered on the legal issue of whether ERB
had exclusive jurisdiction over plaintiff’s claims. The dis-
trict argued that it did, because plaintiff’s claims involved
an unfair labor dispute. Plaintiff argued that it did not,
because, she asserted, her claims were simply common-law
claims. After taking the matter under advisement, the trial
court concluded, “These claims are subject to the exclusive
jurisdiction of the Employ[ment] Relations Board.”2
Plaintiff appealed the dismissal of her claims. In
her first assignment of error, she argues that the trial court
erred in entertaining defendant’s jurisdictional challenge,
because it was asserted for the first time in a reply memoran-
dum. In her second and third assignments, she argues that
2
In the alternative, the court concluded, as to the merits of the claims, that
there was no material dispute of fact upon which plaintiff could recover on the
several claims other than, potentially, unjust enrichment.
826 George-Buckley v. Medford School Dist. 549C
the trial court erred in determining that ERB had exclu-
sive jurisdiction of her claims. In her fourth, fifth, and sixth
assignments, she argues that the trial court erred when rul-
ing, in the alternative, against her claims on their merits.3
The district cross-assigns as error the trial court’s ruling, in
the alternative, that it would not have dismissed the unjust
enrichment claim on its merits. For the reasons that follow,
we conclude that the trial court did not err in considering
the district’s jurisdictional challenge, nor in concluding that
ERB has exclusive jurisdiction of plaintiff’s claims. We do
not need to reach the other assignments of error.
PROCEDURAL OBJECTION
In support of her first assignment, plaintiff argues
that the district did not present its jurisdictional issue in
its opening arguments on its motion and that a new issue
cannot be raised for the first time in a reply memorandum
on summary judgment. Although that argument might not
be wrong in other circumstances, plaintiff’s arguments do
not preclude the trial court’s consideration of the district’s
jurisdictional issue here.
In the opening paragraph of its motion, the district
argued that the “exclusive remedy” for plaintiff’s complaint
“that she performed duties beyond her assignment as an
educational assistant” was under her union’s labor agree-
ment and that the dispute was a matter that had already
been resolved. The district’s opening argument about an
exclusive remedy, however, did not necessarily assert that
ERB had exclusive jurisdiction. (The initial argument might
have implied issue or claim preclusion rather than exclu-
sive jurisdiction.) The district made the point plain only in
its reply memorandum, arguing there that the trial court
lacked jurisdiction.
Plaintiff’s procedural objection relies on two cases.
In Two Two v. Fujitec America, Inc., 355 Or 319, 325, 325
P3d 707 (2014), the problem was that the defendant, who
had moved for summary judgment, had not raised the
3
As noted, the trial court did not rule against plaintiff’s unjust enrichment
claim on its merits.
Cite as 318 Or App 821 (2022) 827
factual issue of causation until their reply memorandum.
The Supreme Court observed:
“Parties seeking summary judgment must raise by motion
the issues on which they contend they are entitled to pre-
vail as a matter of law. Parties opposing summary judg-
ment have the burden of producing evidence that creates a
material issue of fact as to those issues, but only as to those
issues.”
Id. at 326. The explanation comes from ORCP 47 C, which
provides that the party opposing summary judgment need
only respond with contrary evidence to create a dispute of
fact, so as to prevent summary judgment, with regard to
those issues that the moving parties first raised. Id. at 325.
The same principle was followed in Eklof v. Steward, 360
Or 717, 729-35, 385 P3d 1074 (2016), where the court deter-
mined that a post-conviction court erred in granting sum-
mary judgment to the state where the motion had presented
only a pleading issue and had not required the petitioner to
come forward with contrary facts to create a genuine issue
of material fact.
In this case, unlike in Two Two or Eklof, the argu-
ment made by the district did not raise a factual issue that
plaintiff could have controverted by coming forward with
contrary evidence. Instead, it was purely a legal issue—and
one of a special nature—a jurisdictional issue. We have
observed, “subject matter jurisdiction is never waived and
can be raised by any party or by the court sua sponte at
any stage of the proceedings.” Weatherspoon v. Allstate Ins.
Co., 193 Or App 330, 333, 89 P3d 1277 (2004) (considering
procedural challenge to award of attorney fees). Generally,
“Oregon courts have subject matter jurisdiction over dis-
putes if the constitution, a statute, or the common law
tells them to do something about the specific kind of dis-
pute presented.” Mount Hood Community College v. Federal
Ins. Co., 199 Or App 146, 152, 111 P3d 752 (2005) (citing
School Dist. No. 1, Mult. Co. v. Nilsen, 262 Or 559, 566, 499
P2d 1309 (1972)). Yet, there may be situations in which the
legislature has “divest[ed] courts of subject matter juris-
diction.” Id. (considering the effect of contractor licensing
requirements).
828 George-Buckley v. Medford School Dist. 549C
In this situation, the Public Employees Collective
Bargaining Act (PECBA) does just that when vesting exclu-
sive jurisdiction with ERB. See, e.g., Ahern v. OPEU, 329 Or
428, 431, 988 P2d 364 (1999) (ERB has exclusive jurisdic-
tion where element of tort alleges a ULP); see also Tracy v.
Lane County, 305 Or 378, 380, 752 P2d 300 (1988) (ERB has
exclusive jurisdiction to determine sufficiency of arbitration
award). Accordingly, the trial court did not err in consider-
ing the district’s jurisdictional issue, even if raised in a reply
memorandum. Although not made clear until then, plaintiff
did not ask for more time to address the issue; and the par-
ties had a full opportunity to debate the issue at the hearing
on the motion.
EXCLUSIVE JURISDICTION
That determination brings us to plaintiff’s second
and third assignments challenging the court’s conclusion
that it lacked jurisdiction. When deciding whether a court
has subject matter jurisdiction over a claim, we review for
legal error. Black v. Coos County, 288 Or App 25, 29, 405 P3d
178 (2017). To decide whether plaintiff’s claims are within
the exclusive jurisdiction of ERB, we consider the terms of
the PECBA, ORS 243.650 to 243.782. We also consider the
case law that has construed the Act. See State v. McAnulty,
356 Or 432, 441, 338 P3d 653 (2014) (regarding prior con-
struction of the statutes at issue); State v. Cloutier, 351 Or
68, 100, 261 P3d 1234 (2011) (prior construction of statute or
predecessors).
PECBA is a comprehensive regulatory scheme for
resolving labor disputes in the public sector. Ahern, 329
Or at 434. It is addressed to both individual and collective
rights related to collective bargaining. Black, 288 Or App
at 30. At the center of that statutory scheme, ERB is autho-
rized to investigate, hear, and resolve claims of unfair labor
practices (ULPs), whether committed by public employers,
individuals, or labor organizations. Id. Among the potential
unlawful practices is a breach of contract—the allegation
presented in this case. In relevant part, ORS 243.672(1)
provides:
“It is an unfair labor practice for a public employer or its
designated representative to do any of the following:
Cite as 318 Or App 821 (2022) 829
“* * * * *
“(g) Violate the provisions of any written contract with
respect to employment relations[.]”
In such situations, ERB has “exclusive jurisdiction to deter-
mine whether an unfair labor practice has been committed.”
Ahern, 329 Or at 434.
Plaintiff suggests that the task of discerning when
a claim is not subject to ERB’s exclusive jurisdiction is as
easy as identifying a claim as a common-law claim. In her
view, Oregon’s case law indicates that common-law claims
are not subject to ERB jurisdiction. We consider the leading
cases in turn.
Plaintiff’s primary authority, Shockey v. City of
Portland, 313 Or 414, 417, 837 P2d 505 (1992), cert den,
507 US 1017 (1993), was an employee’s action against his
employer and others for the common-law tort of wrongful
discharge and a civil rights or free-speech violation under
42 USC section 1983. The court assumed without deciding
that wrongful discharge would violate the “just cause” pro-
vision of the collective bargaining agreement as a breach of
contract under ORS 243.672(1)(g). Id. at 419. The court per-
ceived no reason to say that the claim for wrongful discharge
offended PECBA. Id. at 421. Recognizing that the tort pro-
vided additional remedies (i.e., noneconomic damages), the
court concluded that the circuit court had subject matter
jurisdiction over the common-law wrongful discharge claim.
Id. at 422.4
If case law had stopped with the Shockey decision,
plaintiff’s simple rule—excluding common-law claims from
ERB jurisdiction—might well be plausible. However, plain-
tiff ignores Ahern, a more recent decision. Ahern returned
to the question of ERB jurisdiction when “an element” of
a common-law claim involves conduct that constitutes an
unresolved or undecided ULP. 329 Or at 433. The plain-
tiff was a county commissioner who owned a market. Id. at
431. County employees went on strike against the county.
4
The court rejected the civil rights claim on its merits, concluding that there
was no matter of “public concern” in a safety rule against employees having
beards. Id. at 430-31.
830 George-Buckley v. Medford School Dist. 549C
Id. In an informational effort, union members picketed and
distributed leaflets at the plaintiff’s store. Id. The plaintiff
filed an action alleging a tort claim for intentional interfer-
ence with economic relations. Id. As the required element
of wrongful means or motive, the plaintiff alleged that the
picketing constituted a ULP in violation of what is now ORS
243.672(4) (i.e., a secondary boycott). He sought damages
and a preliminary and permanent injunction. Id. at 432.
The trial court granted the preliminary injunction, and the
union appealed. Id.The Supreme Court ordered the parties to show
cause why the case should not be dismissed on the ground
that the trial court lacked jurisdiction to determine an ele-
ment of the tort claim that posed a question of a ULP. Id. The
plaintiff responded that his claim was merely a common-law
tort claim, which was not a matter subject to ORS 643.120
or PECBA. Id. at 430. He argued that the case was just a
tort action between two private parties, in which he sought
damages for the union’s tortious actions. Id. at 432-33. The
court observed that
“[d]espite its tort label, the gravamen of plaintiff’s com-
plaint is that OPEU has committed an unfair labor prac-
tice. In determining whether it has authority to decide a
matter, a court must consider the nature of the matter, not
the label that a party has placed on it.”
Id. at 436. Coincidentally, the court cited Shockey in making
that statement. See 313 Or at 418-19 (concerning method-
ology for determining whether statutory scheme abrogates
a common-law remedy). The court indicated that it had no
doubt that the legislature intended ERB to have exclusive
jurisdiction to determine whether an unfair labor practice
had been committed. Ahern, 329 Or at 434-35. The court
explained:
“Permitting the trial court to determine, in the course
of a tort proceeding, whether an unfair labor practice
has occurred would create the danger of inconsistent
rulings * * *. We hold that the trial court lacks jurisdic-
tion to adjudicate, in the proceeding before it, whether
OPEU has committed an unfair labor practice under ORS
243.672(2)(g).”
Cite as 318 Or App 821 (2022) 831
Id. at 436. The court vacated the injunction and remanded
the case—presumably for the dismissal contemplated by the
show cause order. Id. at 437.5
Plaintiff prefers our more recent decision in Black,
arguing that it supports her view that a common-law claim—
particularly one that does not expressly allege a ULP as an
element of a claim—is not within ERB’s exclusive jurisdic-
tion. Plaintiff, however, reads Black, too broadly.
In that case, the plaintiffs were dispatchers or tele-
communication specialists in the county sheriff’s office who
had been mistakenly grouped as “police and fire” employ-
ees for purposes of the state’s Public Employee Retirement
System (PERS). Black, 288 Or App at 27. They alleged that,
while considered to be in that category, they had made addi-
tional personal contributions as permitted for that group.
Id. After a correction was made to their PERS category, they
brought claims against the county for negligent misrepre-
sentation and unjust enrichment, asserting that their mis-
taken, personal contributions had not been returned and
that, essentially as consequential damages, they had lost
other, personal money in reliance on the promise of better
benefits as future “police and fire” retirees. Id. at 28. The
trial court dismissed the claims as subject to ERB’s exclu-
sive jurisdiction on the ground that the claims involved a
matter of “monetary benefits alleged to be payable from” the
county. Id. at 28-29 (emphasis in original).
On appeal, we observed that the plaintiffs did not
sue PERS, nor seek a change in their retirement category;
they did not allege any breach of their collective bargain-
ing agreement; they did not allege any ULP or violation
of PECBA; and they did not seek pay or benefits from the
county. Id. at 28, 33. We rejected the county’s argument
5
In Tracy, 305 Or 378, the court determined that ERB had exclusive jurisdic-
tion to determine whether the refusal of a public employer to comply with an arbi-
tration award was an unfair labor practice. In making that decision, ERB could
decide whether the award was supported by substantial evidence. Id. at 380-81;
ORS 243.752(1). Further, ORS 243.752(1) provided that ERB’s order upholding
the award should be enforced in circuit court. 305 Or at 380-81. Therefore, the
disposition in that unique circumstance was not to dismiss but to remand the
plaintiff’s claims to the circuit court to abate them until ERB issued an order to
be enforced. Id. at 382-83.
832 George-Buckley v. Medford School Dist. 549C
that the claims implicated ORS 243.672(1)(f), which involve
a ULP under a catch-all provision for a violation of other
terms of PECBA. Id. at 32. No particular violation had
been identified. We also rejected the county’s argument
that the claims involved a breach of contract under ORS
243.672(1)(g). Nothing implicated a collective bargaining
agreement. Id. at 33-34. Finally, we rejected the county’s
loose or ungrounded reference to definitions of “employment
relations” or “labor disputes” in ORS 243.650(12) and ORS
243.650(7)(a) (respectively). Id. We recognized that the plain-
tiffs’ claims “have nothing to do with collective bargaining
or any individual, collective, or employer rights governed by
PECBA.” Id. at 34.
In the part of our opinion most relevant to plain-
tiff’s argument here, Black distinguished Ahern, explaining
that
“[plaintiffs’] complaints do not indirectly allege any ULP;
and nothing alleged in the common-law claims depends, as
a predicate, upon any determination of the sort to be made
by ERB.”
Id. at 35. We concluded that
“plaintiffs’ claims raised no issues relating to individual or
collective rights of collective bargaining within the scope
of PECBA’s general policy terms. Plaintiffs’ claims raised
no issues that ERB could review as ULPs or an employer’s
violation of PECBA.”
Id. at 36. We reversed and remanded for the tort claims to
proceed. Id. We did so only because the tort claims of those
plaintiffs had not raised any issues subject to ERB jurisdic-
tion. Id. We did not do so, as plaintiff here perceives, because
all common-law claims are categorically beyond ERB’s
exclusive jurisdiction.
Turning back to this case, we appreciate that,
unlike the plaintiff in Ahern, plaintiff here did not plead
as an element of her claims an explicit reference to a ULP
under PECBA; and we appreciate that, like the plaintiffs
in Black, she has pleaded common-law claims. However, we
take from Ahern that, “[d]espite its tort label, the grava-
men of plaintiff’s complaint” is determinative; “a court must
Cite as 318 Or App 821 (2022) 833
consider the nature of the matter, not the label a party has
placed on it.” 329 Or at 436. Also, it is enough that “an ele-
ment” of a common-law claim poses an issue that must be
resolved by ERB. See id. at 433 (the jurisdictional question
presented is whether “an element of [plaintiff’s] claim” is a
ULP).
In this case, the common allegations of plaintiff’s
complaint are that she was given the duties of a teacher
although “she was improperly classified as an Educational
Assistant.” Her individual contract—the Notice of Initial
Hiring Conditions—was expressly subject to the collec-
tive bargaining agreement governing classified employees
within the Oregon School Employees Association, Chapter
15. Plaintiff acknowledged that compensation and the clas-
sification of jobs is a scheme “governed by the collective bar-
gaining agreement that is negotiated between the classified
[employees] union and the school district.” Consistent with
her acknowledgement, the record reflects that the CBA pro-
vides a process involving the Position Review Committee
and the joint Labor Management Team for the purpose of
reviewing situations in which an employee’s duties no lon-
ger conform to her job description. There is no dispute that
plaintiff pursued that remedy, although the results were not
what she hoped. Plaintiff was not given a reclassification and
rewritten job description; she was relieved of extra respon-
sibility; and the teaching duties were reassigned. Those cir-
cumstances reflect that the duties wrongfully imposed on
plaintiff were a problem that was addressed, although not
to plaintiff’s satisfaction, by a process provided by plaintiff’s
labor organization and the school district.
After incorporating the common allegations of her
complaint into her specific allegations, plaintiff pleaded
four specific claims: breach of contract, promissory estoppel,
unjust enrichment, and breach of a duty of good faith and
fair dealing. Unlike in Ahern, those claims do not involve a
mere element that happens to be a ULP; rather, the claims
in their entirety allege a ULP. The claims all presuppose
the problem of imposing work different than that properly
demanded of an educational assistant. Therefore, the grava-
men of plaintiff’s claims is a breach of the CBA—regardless
834 George-Buckley v. Medford School Dist. 549C
how the claims may be pleaded or recharacterized. See
Ahern, 329 Or at 436 (It is “the nature of the matter, not the
label that a party has placed on it.”).
Plaintiff expressed that point best in her deposition
testimony. She was asked, and she answered:
“Q: * * * I’m not asking you for you to give a legal
statement, but I am asking to the best of your knowledge
and understanding which contract you believe has been
breached. And I’ll start by asking: To the best of your
knowledge and understanding, do you believe the collective
bargaining agreement between your bargaining unit and
the school district has been breached?
“* * * * *
“A: I believe the breach is not between the union and
the school district, but between my job description and my
job duties that I was given for the 12 years that I was a
teacher.
“Q: So the contract you are asserting has been
breached is the job description that the school district pro-
vided you for the educational assistant in the computer lab
position?
“A: Yes, to my knowledge.”
Put in other words, the contract alleged to be breached is
plaintiff’s individual contract to perform the limited duties
of a position described as an educational assistant; and that
contract is a part of the compensation and classification
scheme of the CBA between the district and the local OSEA
chapter.
As noted at the outset, an employer’s breach of a CBA
is a ULP under ORS 243.672(1)(g). If plaintiff believed that
the district breached its agreement with her by imposing
work beyond her job description, she could have pursued her
reclassification request before the joint Labor-Management
Team. Or, if that process failed her, she could have filed a
charge with ERB asserting the breach-of-contract form of a
ULP. See Ahern, 329 Or at 436.
Because the gravamen of plaintiff’s complaint is
a breach of the CBA that would constitute a ULP under
PECBA, it is an issue within the exclusive jurisdiction of
Cite as 318 Or App 821 (2022) 835
ERB. See id. at 436-37 (element of claim was a ULP issue).
The alternative—to have proceeded in circuit court on the
same issue—would have posed a risk of inconsistent results
that, when adopting PECBA, the legislature did not intend.
See Tracy, 305 Or at 382 (explaining justification for exclu-
sive jurisdiction). Like the trial court, we agree that this
dispute was a matter within ERB’s exclusive jurisdiction.
CONCLUSION
The trial court did not err in determining that it
lacked jurisdiction to entertain plaintiff’s complaint.
Affirmed.