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Black v. Coos County

Court of Appeals of Oregon

September 27, 2017

Cynde Ann BLACK, Plaintiff-Appellant,
v.
COOS COUNTY, an Oregon municipal corporation, Defendant-Respondent. Joanne BECK, Plaintiff-Appellant,
v.
COOS COUNTY, an Oregon municipal corporation, Defendant-Respondent. Carmen Ann RAKOSI, Plaintiff-Appellant,
v.
COOS COUNTY, an Oregon municipal corporation, Defendant-Respondent. Desiree Dawn McLAUGHLIN-GARCIA, aka Desiree Dawn Garcia, aka Desiree Dawn McLaughlin, Plaintiff-Appellant,
v.
COOS COUNTY, an Oregon municipal corporation, Defendant-Respondent. Theresa Lynn THAXTON, Plaintiff-Appellant,
v.
COOS COUNTY, an Oregon municipal corporation, Defendant-Respondent.

          Argued and submitted June 2, 2017.

         Coos County Circuit Court 15CV0660, 15CV0661, 15CV0663, 15CV0662, 15CV0664; Martin E. Stone, Judge.

          Michael R. Stebbins argued the cause for appellants. With him on the briefs was Stebbins & Coffey.

          Alicia M. Wilson argued the cause for respondent. With her on the brief were Tracy M. McGovern and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Edmonds, Senior Judge.

         Case Summary: Plaintiffs appeal from a judgment dismissing their claims for negligent misrepresentation and unjust enrichment against Coos County, their employer, for lack of subject matter jurisdiction. In a consolidated proceeding, the trial court dismissed plaintiffs' complaints because the court considered the claims to involve a "reduction of monetary benefits" that was subject to the exclusive jurisdiction of the Employment Relations Board (ERB) under the Public Employee Collective Bargaining Act (PECBA). Held: The trial court erred in dismissing plaintiffs' complaints because the claims did not raise a question to be decided by ERB. Plaintiffs' claims had nothing to do with collective bargaining or any individual, collective, or employer rights governed by PECBA. Instead, plaintiffs' claims sought damages under the common law for negligent misrepresentation and unjust enrichment.

         [288 Or. 26]

          DeVORE, P. J.

         Plaintiffs appeal from a judgment dismissing their tort and contract claims for lack of subject matter jurisdiction. Plaintiffs brought claims for negligent misrepresentation and unjust enrichment against Coos County, their employer, for damages they alleged that they suffered when the county mistakenly identified them as within the "police and fire" classification of the Public Employees Retirement System (PERS). In a consolidated proceeding, the trial court dismissed plaintiffs' complaints because the court considered the claims to involve a "reduction of monetary benefits" that was subject to the exclusive jurisdiction of the Employment Relations Board (ERB) under the Public Employee Collective Bargaining Act (PECBA), ORS 243.650 to 243.782. We conclude that, because the claims did not raise a question to be decided by ERB, the claims remain within the court's jurisdiction. We reverse and remand.

         Because the trial court dismissed on the pleadings alone, we assume the facts as plaintiffs allege in their complaints. See Vuylsteke v. Broan. 172 Or.App. 74, 79, 17 P.3d 74 (2001) (involving personal jurisdiction). Plaintiffs are or were emergency dispatchers or telecommunication specialists in the county sheriffs office. From the time of their initial employment, the county had identified plaintiffs as within the category of "police and fire" employees for purposes of the state program involving retirement of public employees. That PERS classification would have entitled plaintiffs to earlier retirement and more favorable benefits. It also allowed them to add personal "police and fire unit" contributions. Sometime later, the sheriff asked PERS about placing all of the office employees in the police and fire classification. In response, PERS wrote, in September 2000, that not all sheriff's employees could be classified within the police and fire category; only those whose duties are the regular duties of police or corrections officers could qualify for that classification; and to misidentify employees as police or corrections officers would violate Oregon law. Despite that information, the county continued to represent to plaintiffs that they were within the PERS "police and fire" category. Plaintiffs continued to make individual "police and [288 Or. 27] fire unit" contributions. Nearly 13 years later, in June 2013, the county notified plaintiffs that they were misidentified and were not actually "police and fire" employees within the state retirement system.

         In their claims for negligent misrepresentation, plaintiffs alleged that the county was negligent in identifying plaintiffs as "police and fire" employees and in failing to disclose to them the September 2000 letter about their correct classification. Plaintiffs alleged that, in reliance on their mistaken identification as "police and fire" employees, they each "made other plans and economic decisions resulting in economic damages in individual amounts ranging from $50, 000 to $250, 000." In their claims for unjust enrichment, plaintiffs alleged that the county was unjustly enriched when the county received refunds from PERS, representing the "police and fire unit" contributions that plaintiffs and the county had made. In their complaints, plaintiffs did not seek relief as against PERS or the county so as to change their classification within PERS or to be deemed "police and fire" employees. Plaintiffs did not allege any breach of any collective bargaining agreement. They did not allege any unfair labor practice, nor cite any provision of PECBA.

         The county filed a motion to dismiss the complaints under ORCP 21 A for a variety of reasons.[1] Among them, the county asserted that plaintiffs' claims involved a labor dispute within the meaning of PECBA and that, as a consequence, they are claims over which ERB should have exclusive jurisdiction. In its letter opinion, the court agreed. The court characterized the complaints as "claims for monetary benefits alleged to be payable from defendant." (Emphasis added.) The court reasoned that a claim for monetary [288 Or. 28] benefits was within the definition of a "labor dispute" involving "employment relations" under PECBA. ORS 243.650 (7)(a), (12). The trial court noted that ERB had exclusive jurisdiction to consider unfair labor practices for breach of a collective bargaining agreement under ORS 243.672(1)(g) or for any other violation of PECBA under ORS 243.672 (1)(f). The court concluded that, "[b]ecause the alleged conduct in these five cases relates to reduction of monetary benefits, it is ERB that has jurisdiction of the labor dispute and only ERB can determine whether an unfair labor practice has been committed." At the county's urging, the court rejected plaintiffs' attempt to style their claims as matters of negligent misrepresentation or unjust enrichment, citing a Supreme Court case that had rejected an attempt to plead a tort that was based on an alleged unfair labor practice, Ahern v. OPEU. 329 Or. 428, 988 P.2d 364 (1999). The trial court granted defendant's motion to dismiss for want of subject matter jurisdiction.

         We review for legal error when deciding whether a court has subject matter jurisdiction over a claim. Merten v. Portland General Electric Co.. 234 Or.App. 407, 413, 228 P.3d 623, rev den, 348 Or. 669 (2010). To decide whether these claims are within the exclusive jurisdiction of ERB, we consider the terms of Oregon's statutes governing the collective bargaining of public employees and employers, ORS 243.650 to 243.782. When interpreting those statutes, our task is to discern the intent of the legislature. Our starting point is the text and context of a statute, because the "best evidence of the legislature's intent" is the text itself. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993); State v. Gaines. 346 Or. 160, 171, 206 P.3d 1042 (2009).

         An important indication of the scope of PECBA begins with the statute's policy statement. In material part, ORS 243.656 provides:

"The Legislative Assembly finds and declares ...

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