Williams v. Amalgamated Transit Union, Div. 757 ( 2024 )

No. 532 July 31, 2024 157
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Melisse WILLIAMS,
Petitioner,
v.
AMALGAMATED TRANSIT UNION, DIVISION 757,
and Oregon Employment Relations Board,
Respondents.
Employment Relations Board
UP03420;
A181122
Argued and submitted June 6, 2024.
Rebekah C. Schultheiss (Millard) argued the cause for
petitioner. Also on the briefs was Freedom Foundation.
Maya Rinta argued the cause for respondent
Amalgamated Transit Union, Division 757. Also on the brief
was Whitney Stark.
Denise G. Fjordbeck waived appearance for respondent
Oregon Employment Relations Board.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
AOYAGI, P. J.
Affirmed.
158 Williams v. Amalgamated Transit Union, Div. 757
AOYAGI, P. J.
Petitioner seeks reversal of the Employment Relations
Board’s award of $3,000 in representation costs to respon-
dent, in connection with the board’s dismissal of petitioner’s
complaint against respondent for unfair labor practices. We
affirm.
The board is statutorily authorized to award rep-
resentation costs to the prevailing party. ORS 243.676(3)(b)
(“Where the board finds that the person named in the com-
plaint has not engaged in or is not engaging in an unfair
labor practice, the board shall: (a) [i]ssue an order dis-
missing the complaint; and (b) [d]esignate the amount and
award representation costs, if any, to the prevailing party.”).
By rule, the board has adopted a schedule to determine the
amount of representation costs to be awarded. OAR 115-035-
0055. Increasing amounts are awarded for a case dismissed
without a hearing ($250), a case presented solely on stipu-
lated facts ($1,000), a case that requires one day of hearing
($3,000), a case that requires more than one day of hear-
ing ($5,000), and a case in which a civil penalty is imposed
(“full amount of reasonable representation costs”). OAR
115-035-0055(1)(b)(A) - (E). The rule contains a variance,
however, that applies when the losing party is also paying
representation costs for their own attorney: “If a non-pre-
vailing party had to rely on personal financial resources to
litigate the matter, the prevailing party shall be awarded
$500 in representation costs, unless the Board determines
that a lesser award is more appropriate.” OAR 115-035-0055
(1)(b)(F). The board interprets “rely[ing] on personal finan-
cial resources to litigate the matter” to refer solely to using
one’s own money to pay attorney fees.
Petitioner argues that OAR 115-035-0055(1)(b)(F)
is unconstitutional as applied to her. Petitioner was repre-
sented by pro bono counsel in the board proceeding. Because
she did not have to pay attorney fees for her own represen-
tation, the board concluded that OAR 115-035-0055(1)(b)(F)
did not apply, and it awarded the usual $3,000 in represen-
tation costs provided by OAR 115-035-0055(1)(b)(C) for a
case that had a one-day hearing. Petitioner argues that the
effect of OAR 115-035-0055(1)(b)(F) is to “punish” her for
Nonprecedential Memo Op: 334 Or App 157 (2024) 159
having pro bono counsel, by requiring her to pay a higher
fee award to the union upon losing her case than a litigant
who could afford to pay for counsel and thereby secure the
benefit of the $500 cap in OAR 115-035-0055(1)(b)(F).
Petitioner does not claim that the alleged punitive
effect of OAR 115-035-0055(1)(b)(F) on litigants represented
by pro bono counsel is intentional. Respondent understands
the rule to be intended to level the playing field by making it
easier for individual claimants to hire counsel, rather than
proceeding pro se, and petitioner acknowledges that any
punitive effect on litigants represented by pro bono coun-
sel is likely unintentional. Nonetheless, petitioner argues,
OAR 115-035-0055(1)(b)(F) has that effect and thus violated
her free-speech rights under the First Amendment to the
United States Constitution; her right to freedom of expres-
sion under Article I, section 8, of the Oregon Constitution;
and the privileges and immunities clause of Article I, sec-
tion 20, of the Oregon Constitution.
We reject petitioner’s First Amendment claim, which
is flawed in a number of respects.1 As a preliminary mat-
ter, we agree with respondent that it is highly problematic
for petitioner that she is making an as-applied challenge to
OAR 115-035-0055(1)(b)(F), not a facial challenge, yet has
created no record of the effect of OAR 115-035-0055(1)(b)(F)
on her personally. If, for example, petitioner has a contract
with her counsel under which counsel agreed to pay any rep-
resentation costs that might be awarded against petitioner,
we do not see how OAR 115-035-0055(1)(b)(F) could violate
the First Amendment as applied to petitioner. Petitioner
has not developed the record necessary for a meaningful
as-applied challenge.
Furthermore, petitioner fails to persuasively explain,
even theoretically, how imposing lesser fee awards on
1
For present purposes, we treat petitioner’s First Amendment claim as pre-
served, because the parties agree that it was raised below, and because doing
so does not affect the disposition. However, petitioner cannot actually establish
preservation as required by ORAP 5.45(4), because the document in which she
raised the First Amendment issue to the board is not included in the “shortened”
agency record transmitted to this court. It is unclear whether it was supposed
to be included; if so, petitioner has not moved to correct the record. Rather than
conclusively resolve the record issue, we assume preservation.
160 Williams v. Amalgamated Transit Union, Div. 757
litigants who must also pay their own attorney fees has a
chilling effect on the speech of litigants represented by pro
bono counsel. The total cost of litigation for an unsuccessful
litigant who must pay both their own attorney fees and up
to $500 for a fee award will very likely be greater than the
total cost of litigation for an unsuccessful litigant who must
pay the full fee award in OAR 115-035-0055(1)(b)(A) - (E)
but no attorney fees of their own because they were unrep-
resented or had pro bono representation. That reality sig-
nificantly undermines petitioner’s argument that OAR 115-
035-0055(1)(b)(F) makes it more expensive to litigate before
the board with pro bono counsel than with paid counsel—
and thus chills the speech of litigants who have pro bono
counsel.2 None of the cases cited by petitioner are analogous.
Finally, it is notable that, even if one assumes that
the fee-reduction provision in OAR 115-035-0055(1)(b)(F)
impermissibly treats litigants with pro bono counsel differ-
ently from litigants with paid counsel, it would not necessar-
ily follow that litigants with pro bono counsel must receive
the benefit of OAR 115-035-0055(1)(b)(F). The board could
repeal OAR 115-035-0055(1)(b)(F), at which point litigation
before the board would be more expensive for litigants with
paid counsel, but it would cost exactly the same as it does
now for litigants with pro bono counsel or no counsel.
For all of those reasons, we reject petitioner’s First
Amendment claim.
We also reject petitioner’s Oregon constitutional
claims. Neither of those claims was adequately preserved,
having been raised in the board proceeding only in a sin-
gle sentence in a footnote—in a document that is not even
2
It bears emphasis that petitioner challenges only the fee-award-reduction
provision in OAR 115-035-0055(1)(b)(F), not the general fee-shifting provisions
in ORS 243.676(3)(b) and OAR 115-035-0055. Although any fee-shifting provi-
sion has the potential to disincentivize litigation, First Amendment challenges to
fee-shifting itself have generally been unsuccessful. See, e.g., Premier Elec. Const.
Co. v. Nat’l Elec. Contractors Ass’n, Inc., 814 F2d 358, 373 (7th Cir 1987) (“[T]he
proposition that the first amendment, or any other part of the Constitution, pro-
hibits or even has anything to say about fee-shifting statutes in litigation seems
too farfetched to require extended analysis. Fee shifting requires the party that
creates the costs to bear them.”) (Footnote omitted.)); see also Clackamas County
Oregon v. Clackamas River Water, 280 Or App 366, 370-71, 382 P3d 598 (2016),
rev den, 360 Or 752 (2017) (quoting same).
Nonprecedential Memo Op: 334 Or App 157 (2024) 161
included in the appellate record. “No matter claimed as
error will be considered on appeal unless the claim of error
was preserved in the lower court * * *, provided that the
appellate court may, in its discretion, consider a plain error.”
ORAP 5.45(1). Preservation rules “apply on judicial review
of decisions of administrative agencies,” including to alleged
constitutional violations. Wahlgren v. DMV, 196 Or App 452,
457, 102 P3d 761 (2004); see also, e.g., Llewellyn v. Board
of Chiropractic Examiners, 318 Or 120, 127, 863 P2d 469(1993) (rejecting an argument because it was not made at
the administrative hearing and, thus, was not preserved).
Petitioner belatedly requests plain-error review in her
reply brief, but even putting aside the timing and summary
nature of that request, the claimed error does not meet the
requirements for plain error. See State v. Vanornum, 354 Or
614, 629, 317 P3d 889 (2013) (an error is “plain” when it is
an error of law, the legal point is obvious and not reasonably
in dispute, and the error is apparent on the record without
having to choose among competing inferences).
Accordingly, we reject petitioner’s constitutional
challenges to the board’s award of $3,000 in representation
costs to respondent.
Affirmed.