Pratka v. Laborers Int. Union of North America ( 2024 )

No. 530 July 31, 2024 147
This is a nonprecedential memorandum opinion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
Scott PRATKA,
Petitioner,
v.
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA,
LOCAL 483,
Respondent.
Employment Relations Board
FR00121
A179523
Argued and submitted June 6, 2024.
Rebekah Schultheiss (Millard) argued the cause for peti-
tioner. Also on the briefs was Freedom Foundation.
Margaret S. Olney argued the case for respondent. Also
on the brief was Bennett Hartman, LLP.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
AOYAGI, P. J.
Affirmed.
148 Pratka v. Laborers Int. Union of North America
AOYAGI, P. J.
Petitioner seeks reversal of the Employment
Relations Board’s award of $3,000 in representation costs
to respondent, 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 dismissing the
complaint; and (b) [d]esignate the amount and award repre-
sentation costs, if any, to the prevailing party.”). By rule, the
board has adopted a schedule to determine the amount of repre-
sentation costs to be awarded. OAR 115-035-0055. Increasing
amounts are awarded for a case dismissed without a hear-
ing ($250), a case presented solely on stipulated facts ($1,000),
a case that requires one day of hearing ($3,000), a case that
requires more than one day of hearing ($5,000), and a case
in which a civil penalty is imposed (“full amount of reason-
able 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-prevailing 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 financial 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 him. Petitioner was repre-
sented by pro bono counsel in the board proceeding. Because
he did not have to pay attorney fees for his own representa-
tion, the board concluded that OAR 115-035-0055(1)(b)(F)
did not apply, and it awarded the usual $3,000 in repre-
sentation costs provided by OAR 115-035-0055(1)(b)(C) for
a case that required a one-day hearing. Petitioner argues
that the effect of OAR 115-035-0055(1)(b)(F) is to “punish”
him for having pro bono counsel, by requiring him to pay a
Nonprecedential Memo Op: 334 Or App 147 (2024) 149
higher fee award to the union upon losing his case than a
litigant who could afford to pay counsel and thereby secure
the benefit of the $500 cap in OAR 115-035-0055(1)(b)(F).
Petitioner argues that OAR 115-035-0055(1)(b)(F) violated
his free-speech rights under the First Amendment to the
United States Constitution; his 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.
All of petitioner’s constitutional arguments are
unpreserved, having been raised for the first time on appeal.
“No matter claimed as error will be considered on appeal
unless the claim of error was preserved in the lower court
and is assigned as error in the opening brief in accordance
with this rule, provided that the appellate court may, in its
discretion, consider a plain error.” ORAP 5.45(1). Contrary
to the assertions in petitioner’s opening brief, petitioner’s
claims of error are subject to the usual rules of preserva-
tion. Wahlgren v. DMV, 196 Or App 452, 457-58, 102 P3d 761
(2004) (holding that the preservation rules “apply on judicial
review of decisions of administrative agencies” and apply to
alleged constitutional violations); see also, e.g., Llewellyn v.
Board of Chiropractic Examiners, 318 Or 120, 127, 863 P2d
469 (1993) (declining to address a federal constitutional
issue that was not raised in the administrative hearing and,
thus, was not preserved).
Petitioner belatedly requests plain-error review in
his reply brief. 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). In particu-
lar, it is far from “obvious” that OAR 115-035-0055(1)(b)(F)
violates the First Amendment, Article I, section 8, or
Article I, section 20.1 Because any error is not “plain,” we
cannot consider petitioner’s unpreserved arguments.
1
As our case law demonstrates, novel constitutional arguments are partic-
ularly ill suited to plain-error review. See, e.g., State v. Powell, 322 Or App 37,
44, 518 P3d 949 (2022), rev den, 370 Or 740 (2023) (concluding that the alleged
150 Pratka v. Laborers Int. Union of North America
Affirmed.
error was not “plain,” where we were “not satisfied that any constitutional right
to continuity of counsel is well enough established to be obvious and not open
to reasonable dispute”); State v. William, 199 Or App 191, 198, 110 P3d 1114,
rev den, 339 Or 406 (2005) (declining to address an unpreserved claim of federal
constitutional error, because the issue raised was “far from plain”).