Cox v. Association of Oregon Corrections Employees, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

TRACY COX; MARK COX; YVONNE Civ. No. 6:22-cv-00906-AA

WILLIAMS; and DAVID DAVIES,

OPINION AND ORDER

Plaintiffs,

v.

ASSOCIATION OF OREGON

CORRECTIONS EMPLOYEES, INC.,

et al.,

Defendants.

________________________________________

AIKEN, District Judge:

Plaintiffs are public employees who resigned their union membership and now

allege breach of contract and seek relief under 42 U.S.C. § 1983 for violations of their

First Amendment and Due Process rights. State defendants and defendant

Association of Oregon Corrections Employees, Inc. (“AOCE” or “the union”) each move

to dismiss plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. For the

reasons explained, the Court GRANTS all Defendants’ Motions to Dismiss, ECF Nos.

21 and 22. Plaintiffs’ Complaint is DISMISSED without prejudice.

BACKGROUND

Plaintiffs Tracy Cox, Mark Cox, David Davies, and Yvonne Williams are

employees of defendant Oregon Department of Corrections (“ODOC”). They bring this

action against ODOC; the Department of Administrative Services (“DAS”), Katy

Coba, in their official capacity as director of DAS; and Colette Peters, in their official

capacity as ODOC director (“State defendants”). Plaintiffs also bring claims against

AOCE, the union.

I. Public Employees and Union Membership

Under Oregon law, union membership is voluntary. See, e.g., Dale v.

Kulongoski, 894 P.2d 462, 464 (Or. 1995) (“With respect to compulsory union

membership, there is none.”); see also id. at 465 n.5 (“[N]o law requires anyone to join

the union or pay union dues.”); Wright v. Serv. Emps. Int'l Union Loc. 503, 48 F.4th

1112, 1121 (9th Cir. 2022), cert. denied, 143 S. Ct. 749 (2023) (“Oregon do[es] not

require state employees to join a union.”)

Under the Oregon Public Employees Collective Bargaining Act (“PECBA”), it

is a prohibited practice for a union or a public employer to coerce a public employee

to become a union member. See ORS 243.672(2)(a), ORS 243.662 (making it an unfair

labor practice for a public sector union to interfere with, restrain or coerce any

employee in or because of the exercise of their right to join or not join a union). It is

also an unfair labor practice for a public employer to “[i]nterfere with, restrain or

coerce employees” in or because of the exercise of their right to join or not join a union

or to “[d]iscriminate in regard to hiring, tenure or any terms or condition of

employment for the purpose of encouraging or discouraging membership in an

employee organization.” ORS 243.672(1)(a), (c).

Oregon law allows public employees to voluntarily authorize dues deductions

for their unions. See 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.”).

A union may request the State to make deductions of union dues from a public

employee's pay only if the employee has authorized the deductions. See ORS

243.806(2) (“A public employer shall deduct the dues, fees and any other deduction

authorized by a public employee under this section and remit payment to the

designated organization or entity.”). AOCE and the State have a collective bargaining

agreement (“CBA”), under which the State makes deductions of union dues from

employee wages at the exclusive direction of the union. Compl., ¶¶ 74-75. ODOC

receives instruction from AOCE to add or end dues deductions for employees

represented by AOCE. Once ODOC receives that instruction, it processes the

changes. Pye Decl. ¶ 3.

II. Factual Allegations

Plaintiffs filed their Complaint on June 22, 2022. Plaintiffs’ seven claims arise

from their resignation from union membership. They allege that when they informed

AOCE of their resignations, the AOCE attempted to, or did, require them to sign a

cancellation form that contained terms with which Plaintiffs take issue. Compl., ¶¶

1, 19, 29-30, 41-43, 49-58.

A. Yvonne Williams

Plaintiff Yvonne Williams (Williams) cancelled her membership in AOCE.

Williams alleges AOCE told her she could not resign her membership in AOCE

without signing the Membership Cancellation Form. She alleges signing the form

which states:

By signing this form, I wish to stop all dues paid to the AOCE. I realize

that by doing so I will become a non-member of the AOCE. Once I am a

nonmember, AOCE may charge me a fee for all representation I request

in matters including but not limited to grievances, investigations,

disciplinary hearings, overtime disputes, and reclassifications. I also

will not be afforded any other ancillary benefits the AOCE may provide

including the Legal Defense Fund and the Association attorney.

Williams alleges an unnamed AOCE representative told her she would have to

pay a $500 fee if she wanted to rejoin AOCE and that if she needed legal

representation, she would be charged $500 per hour. Compl., at 4-5.

B. David Davies

Plaintiff David Davies (Davies) cancelled his membership in AOCE without

signing the Membership Cancellation Form. He alleges he was provided the

Membership Cancellation Form, was told “payroll” needed it, and refused to sign it.

After emails between Davies, AOCE, and ODOC payroll, his membership in AOCE

was cancelled. Compl., at 5-7. He alleges “[u]pon information and belief, AOCE will

charge [him] a fee for representation in grievances, investigations, disciplinary

hearings, overtime disputes and reclassifications as long as he remains a non-

member.” Compl., at 7. He also alleges, “[u]pon information and belief, AOCE will

charge [him] a punitive $500 resign-up fee should he try to become a union member

again.” Id.

C. Mark Cox

Plaintiff Mark Cox (M. Cox) cancelled his membership in AOCE. He emailed

AOCE in which he requested, “Please do not take any more money out of my check

for union dues.” He alleges AOCE told him that he must sign the Membership

Cancellation Form for his resignation to be processed. He signed the form and his

membership in AOCE was cancelled. Compl., at 7. He alleges “[u]pon information and

belief, AOCE will charge [him] a fee for representation in grievances, investigations,

disciplinary hearings, overtime disputes and reclassifications as long as he remains

a non-member.” Compl., at 8. He also alleges, “[u]pon information and belief, AOCE

will charge [him] a punitive $500 resign-up fee should he try to become a union

member again.” Id. Cox retired from ODOC effective July 31, 2022. See ECF Nos. 29,

33 (supplemental memoranda).

D. Tracy Cox

Plaintiff Tracy Cox (T. Cox) cancelled her membership in AOCE. On November

10, 2021, she emailed DOC payroll stating: “I would like to place a stop on

withdrawing any further dues from my pay.” Id. She alleges DOC payroll responded

that she needed to sign the Membership Cancellation Form. T. Cox emailed payroll

and to AOCE in which she reiterated she did not authorize union dues deductions

from her wages. AOCE responded with the Membership Cancellation Form. After

several emails between T. Cox and AOCE, T. Cox sent a signed resignation of

membership to AOCE headquarters by certified mail on January 10, 2022. On

January 13, 2022, AOCE emailed T. Cox it had received her resignation and would

process the resignation and stop dues deductions and stated, “you will be charged a

$500 initiation fee should you choose to rejoin AOCE.” Compl., at 8-11, Ex. K. T. Cox

alleges “[u]pon information and belief, AOCE will charge [her] a fee for representation

in grievances, investigations, disciplinary hearings, overtime disputes and

reclassifications as long as she remains a non-member, and a punitive $500 re-

registration fee should she ever rejoin the union.” Compl., at 12. T. Cox retired from

ODOC effective July 31, 2022. See ECF Nos. 29, 33 (supplemental memoranda).

III. Legal Claims

Claims 1-5 are brought under 42 U.S.C. § 1983 against all Defendants. Claims

I – IV allege First Amendment violations arising from Plaintiffs’ union resignations,

AOCE’s terms in its membership cancellation form, and AOCE’s $500 fee for

rejoining. See Compl., ¶¶ 76-85 (Count I, alleging that union’s membership

cancellation terms had a chilling effect on their speech); id. ¶¶ 86-92 (Count II,

claiming violation of freedom of association); id. ¶¶ 93-97 (Count III, Plaintiffs M. Cox

and Williams claiming that the union made them sign membership resignation form,

which violated their rights in forcing agreement to the terms in form); id. ¶¶ 98-104

(Count IV, plaintiff T. Cox claims union dues were deducted without authorization in

violation of the First Amendment).

For the most part, the gist of Plaintiffs’ argument for Claims I-IV is that the

effect of agreeing to the cancellation terms to pay out of pocket for union

representation as nonmembers, or pay a $500 fee to rejoin the union, was punitive;

or in Plaintiffs’ terms, “threatening”—so much so, that the threat of the hourly fee for

representation or the fee to rejoin suppressed their First Amendment right to free

speech and association. Stated a different way, the benefits of membership in AOCE

(here, not paying market rate, out of pocket costs for representation) compelled

Plaintiffs to remain in it, even though they would prefer not to. An argument for

unions, indeed.

Claim V is brought solely by T. Cox and alleges a procedural due process

violation and challenges the constitutionality of ORS 243.806, which sets out

Oregon’s union dues deduction framework for public employees. T. Cox asserts that

the State’s reliance on union representations for dues deductions violates due process

and that ORS 243.806 lacks sufficient procedural safeguards. Compl., ¶¶ 108-112.

Plaintiffs seek several forms of equitable relief against the State Defendants,

including various injunctions and declarations. See id., prayer ¶¶ A-G. They also

demand nominal damages against all Defendants, although the Complaint does not

specify for which claims they seek that relief. Id., prayer ¶ H.

Claim VI is a state law claim brought by T. Cox solely against DAS. T. Cox

alleges a violation of ORS 652.615, a state statute Plaintiffs contend authorizes a

private state law cause of action for violation of ORS 652.610, which sets out wage

and hour protections. Id. ¶¶ 114-120. T. Cox seeks “a return of all wages of which she

has been unlawfully deprived along with all appropriate penalties pursuant to ORS

652.615.” Id., prayer ¶ J.

Claim VII is a breach of contract claim brought solely against AOCE. Plaintiffs

claim that their contract with AOCE required only a written resignation to the union,

and that they had no contractual obligation to resign using the union’s designated

form. Id. ¶¶ 15, 58, 88, 122.

LEGAL STANDARDS

I. Failure to State a Claim – Rule 12(b)(6)

To survive a motion to dismiss under the federal pleading standards, the

complaint must include a short and plain statement of the claim and “contain

sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard . . . asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id.

The court need not accept legal conclusions, unsupported by alleged facts, as

true. Id. Allegations of fact in the complaint must be taken as true and construed in

the light most favorable to the non-moving party. Parks School of Bus., Inc., v.

Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). From the facts alleged, the court also

must draw all reasonable inferences for the nonmoving party. Usher v. City of Los

Angeles, 828 F.2d 556, 561 (9th Cir. 1987). But conclusory allegations, without more,

are not enough to defeat a motion to dismiss for failure to state a claim. McGlinchy v.

Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988).

II. Lack of Subject Matter Jurisdiction – Rule 12(b)(1)

The party mounting a Rule 12(b)(1) challenge to the court's jurisdiction may

do so either on the face of the pleadings or by presenting extrinsic evidence for the

court's consideration. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“Rule

12(b)(1) jurisdictional attacks can be either facial or factual”). “In a facial attack, the

challenger asserts that the allegations contained in a complaint are insufficient on

their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d

1035, 1039 (9th Cir. 2004). In ruling on a Rule 12(b)(1) motion attacking the

complaint on its face, the court accepts the allegations of the complaint as true. By

contrast, in a factual attack, the challenger disputes the truth of the allegations that,

by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at

1039. “With a factual Rule 12(b)(1) attack ... a court may look beyond the complaint

to matters of public record without having to convert the motion into one for summary

judgment. It also need not presume the truthfulness of the plaintiff['s] allegations.”

White, 227 F.3d at 1242 (internal citation omitted).

DISCUSSION

Defendant AOCE and State Defendants move separately to dismiss Plaintiffs’

Complaint. See AOCE’s Motion to Dismiss (“AOCE MTD”), ECF No. 21; State

Defendants’ Motion to Dismiss (“State MTD”), ECF No. 22. AOCE and State

Defendants each challenge Plaintiffs’ standing on various grounds. Because standing

is jurisdiction, the Court addresses that first, then will address remaining claims in

each motion to dismiss.

I. Standing

All Defendants assert that Plaintiffs’ allegations do not present a present, live

controversy and do not show any injury that is either ongoing or likely to recur. All

Defendants assert that Plaintiffs’ allegations that they are harmed by terms the

union is offering with respect to future membership or services are speculative. Union

dues are not currently being deducted from any Plaintiffs’ pay and were not being

deducted from their pay when this lawsuit was filed; dues will not be deducted again

in connection with their employment with ODOC unless they rejoin AOCE and AOCE

instructs ODOC to begin withholding dues from their paychecks. State MTD at 5; Pye

Decl. ¶¶ 4-8. All Defendants maintain that there is no allegation that any Plaintiffs

intend to rejoin the union, as would be needed to establish a redressable injury with

respect to the alleged $500 fee for rejoining the union, and given the circumstances

here, there is no reason to believe that they would rejoin the union. Further, since

filing the Complaint, T. Cox and M. Cox have retired from ODOC. See ECF Nos. 29,

33 (supplemental memoranda).

The court’s jurisdiction extends only to live controversies between adverse

parties where the relief requested, if granted, will have a practical effect. The

Constitution does not allow federal courts to issue advisory opinions. See Culinary

Workers Union, Loc. 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999) (discussing

Article III). A “federal court has no authority ‘to give opinions upon moot questions

or abstract propositions or to declare principles or rules of law which cannot affect

the matter in issue in the case before it.’” Church of Scientology of Cal. v. United

States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).

To satisfy the “case or controversy” requirement, a plaintiff must establish

standing under Article III. Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990,

1000 (9th Cir. 2010). A plaintiff bears the burden of establishing: (1) an injury in fact;

(2) causation; and (3) redressability. Sprint Commc’n Co., L.P. v. APCC Servs., Inc.,

554 U.S. 269, 273-74 (2008). A plaintiff must demonstrate standing for each claim

and for each form of relief sought. Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139

(9th Cir. 2013).

Where, as here, a plaintiff seeks declaratory and injunctive relief, they must

also show a preeminent possibility of future harm and establish that they personally

are realistically threatened by a repetition of the injury. Mont. Shooting Sports Ass’n

v. Holder, 727 F.3d 975, 979 (9th Cir. 2013); Melendres v. Arpaio, 695 F.3d 990, 997

(9th Cir. 2012). “Past wrongs, though insufficient by themselves to grant standing,

are ‘evidence bearing on whether there is a real and immediate threat of repeated

injury.’” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (quoting

City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).

Plaintiffs’ allegations in Claim I – III are that Defendants’ conduct, in

requiring resignation to be made on a Cancellation Form, chills Plaintiffs’ First

Amendment right to free speech and association, as does AOCE’s statement that once

resigned, AOCE will charge a $500 fee to rejoin or require non-members to pay for

union representation.

Plaintiffs’ allegations that they are harmed by the (allegedly) unlawful terms

the union is offering them with respect to future membership or services are

speculative. Plaintiffs allege that the purpose of the Cancellation Form is to “inhibit

employees . . . from ending their union membership.” Compl., ¶¶ 83, 89. Further, that

Defendants “prevented” Plaintiffs “from resigning their membership” unless they

“agreed that AOCE may withdraw fair representation” of Plaintiffs upon resignation.

Id. ¶¶ 94. But all Plaintiffs did end their union membership. Further, there is no

allegation that any Plaintiffs intend to rejoin the union, as would be needed to

establish a redressable injury with respect to the alleged $500 fee for rejoining the

union. Further, that T. Cox and M. Cox have retired from public employment

underscores the lack of live controversy here.

Plaintiffs allege that because AOCE does not represent nonmembers, this

satisfies the requirement of an ongoing injury. Id. ¶¶ 84, 91. But, again, Plaintiffs

exercised their alleged right to resign membership, and now assert hypothetical fears

of future harm based on the harm they inflicted on themselves by becoming

nonmembers. “[Plaintiffs] cannot manufacture standing merely by inflicting harm on

themselves based on their fears of hypothetical future harm that is not certainly

impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013). Accordingly, the

Court finds that Plaintiffs lack standing to bring Claims I – III, which are all based

on Defendants’ alleged “chilling,” “inhibition,” and “prevention” of Plaintiffs’

membership resignation, resulting in the alleged harm of not receiving benefits of

membership. Therefore, Claims I - III against AOCE and State Defendants are

dismissed.

As to Claims IV – VII, the Court determines that Plaintiffs have standing to

bring those claims and will address the allegations on the merits.1

II. Motions to Dismiss

Because AOCE and State Defendants bring motions to dismiss based on

different theories, the Court will address each motion in the order of filing.

1 As will be explained, all Plaintiffs’ Claims against AOCE and State Defendants fail on the

merits or on some other basis. Even if Plaintiffs had standing, their failure to state a claim under Rule

12(b)(6) or for other jurisdictional reasons would lead to dismissal.

A. AOCE Motion to Dismiss

1. Claims IV-V: Constitutional Violations - 42 U.S.C. § 1983

Claim IV is brought by T. Cox only, against all Defendants. Compl., ¶¶ 98 –

104. T. Cox alleges, under § 1983 that AOCE failed to instruct the State to discontinue

dues deductions after she revoked her membership in writing, and that the deduction

of unauthorized dues constituted compelled speech in violation of her First

Amendment rights. Id.

T. Cox also brings Claim V on her own, alleging violation of her Due Process

right under the Fourteenth Amendment when AOCE “deprived her of her property

interest in her lawfully earned wages,” by representing to the State that T. Cox was

a union member, and thereby having union dues deducted without authorization.

Compl., ¶¶ 105 – 113.

AOCE asserts that it is not a state actor and that Plaintiffs’ claims under §

1983 fail. Plaintiffs allege that AOCE is a state actor for purposes of § 1983 because

“AOCE relies on the State of Oregon pursuant to ORS 243.650 et seq.,” and “acts

under color of state law” in exercise of the rights “granted to it by the state’s collective

bargaining laws.” Compl., ¶ 101.

To state a claim under § 1983, a plaintiff must prove that the private actor

“deprived [her] of a right secured by the Constitution,” and “acted under color of state

law.” Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989) (citation omitted).

Courts in the Ninth Circuit use a two-prong inquiry to determine whether a private

actor, such as a union, engaged in state action to qualify as a state actor under § 1983.

Belgau, 975 F.3d at 946; see also Caviness v. Horizon Cmty. Learning Ctr., Inc., 590

F.3d 806, 812 (9th Cir. 2010) (citation omitted) (holding that state action generally

excludes “merely private conduct, no matter how discriminatory or wrongful”). The

private actor must meet (1) the “state policy” requirement, and (2) the “state actor”

requirement. Collins, 878 F.2d at 1151.

i. Prong One: State Policy

Under the state policy prong, courts consider “whether the claimed

constitutional deprivation resulted from ‘the exercise of some right or privilege

created by the State or by a rule of conduct imposed by the [S]tate or by a person for

whom the State is responsible.’” Ohno v. Yasuma, 723 F.3d 984, 994 (9th Cir. 2013)

(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “The state policy

requirement ensures that the alleged deprivation is fairly attributable to a state

policy.” Collins, 878 F.2d at 1151 (citations omitted).

Plaintiffs do not identify, as the basis of their alleged deprivation, the

imposition of a state policy or state created rule. The conduct of which Plaintiffs

complain is private. Plaintiffs allege harm from agreements between AOCE and

Plaintiffs for dues deductions. What Plaintiffs describe is an alleged failure by AOCE,

a private entity, to contact the State and stop dues after a valid revocation of a

voluntary authorization to deduct dues, along with improper coercion of union

membership. If AOCE failed to contact the State to stop dues after a valid revocation,

that would violate Oregon law, not implementation of it. Wright, 503, 48 F.4th at

1121 (explaining that Oregon statutes prohibit mandatory union membership).

Accordingly, Plaintiffs’ allegations conflict with any “right or privilege created

by the State” because it violates existing state law.

ii. Prong Two: State Actor

Under the state actor prong, courts generally employ one of four tests outlined

by the Supreme Court to examine “whether the party charged with the deprivation

could be described in all fairness as a state actor.” Ohno, 723 F.3d at 994 (citing

Lugar, 457 U.S. at 937); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir.

2012) (outlining the four tests). Those tests include the public function test, the joint

action test, the state compulsion test, and the governmental nexus test. Tsao, 698

F.3d at 1140. Any of the four tests are enough to satisfy the state actor requirement.

Id. at 1139–40. The public function test and joint action test “largely subsume the

state compulsion and governmental nexus tests, because they address the degree to

which the state is intertwined with the private actor or action.” Ohno, 723 F.3d at n.

13. To the extent that a union’s deductions are unlawful, “private misuse of a state

statute does not describe conduct that can be attributed to the State.” Collins v.

Womancare, 878 F.2d 1145, 1152 (9th Cir. 1989)

Plaintiffs assert that AOCE meets the “public function” and “joint action” tests,

making it a state actor. Resp. at 20-22. The public function test “treats private actors

as state actors when they perform a task or exercise powers traditionally reserved to

the government.” Ohno, 723 F.3d at 996 (citations omitted). “A joint action between

a state and a private party may be found in two scenarios: the government either (1)

‘affirms, authorizes, encourages, or facilitates unconstitutional conduct through its

involvement with a private party,’ or (2) ‘otherwise has so far insinuated itself into a

position of interdependence with the nongovernmental party,’ that it is ‘recognized as

a joint participant in the challenged activity.” Belgau, 975 F.3d at 947 (citing Ohno,

723 F.3d at 996).

Under circumstances indistinguishable from those here, the Ninth Circuit

determined that a union is not a state actor for purposes of § 1983. Belgau, 975 F.3d

at 947 (state action not found under joint action test, where plaintiffs had entered

into bargained-for agreements with the union without any state direction,

participation, or oversight); Wright 503 48 F.4th at 1124-25 (no state action under

joint action and public function test, where “Oregon state law only authorizes the

State to deduct and remit union dues from authorized union members.”). In Wright,

the Ninth Circuit squarely rejected the plaintiff’s argument that the State's

ministerial role in processing dues deductions rendered the union a state actor. Id. at

1121.

Plaintiffs’ allegations give rise only to an inference that the State occupied no

more than a ministerial role in processing dues. Plaintiffs do not allege that the state

directed AOCE’s allegedly unconstitutional conduct. Noted above, Plaintiffs allege

that Oregon law requires the State to deduct dues from wages and remit them to the

union, Compl., ¶ 78, and that AOCE “relies” on the State’s collective bargaining laws

to be the exclusive representative for public employees, id. ¶ 101. Plaintiffs have

failed to allege facts establishing that AOCE acted to “perform a task or exercise

powers traditionally reserved to the government” or that the State “affirm[ed],

authorize[ed], encourage[ed], or facilitate[ed]” AOCE’s conduct. Ohno, 723 F.3d at

996. To the contrary, Plaintiffs argue that Oregon, as a governing authority, “has

passed legislation that gives AOCE unbridled control over dues deductions.” Resp. at

21. That argument is correct. Accordingly, Plaintiffs’ claims against AOCE under §

1983 are dismissed under Rule 12(b)(6).

Plaintiffs next claim, Claim VI, is against DAS only. Thus, the Court turns to

Claim VII.

2. Claim VII: Breach of Contract

Under Claim VII, all Plaintiffs bring a breach of contract claim against AOCE

only. Compl., ¶¶ 121-124. Plaintiffs allege that AOCE violated the terms of its

membership agreements with Plaintiffs by “forcing Plaintiffs to maintain union

membership and pay union dues after they resigned membership and revoked their

authorization for dues deductions pursuant to the terms of their membership card,

which requires only written resignation and revocation of authorization for dues

deductions.” Id. ¶ 122. Plaintiffs state that AOCE used “unfair threats” to “force

Plaintiffs to agree to terms in the Cancellation Form” and caused Plaintiff Cox to

suffer financial loss through deduction of unauthorized dues. Id. ¶ 123-24.

Defendant AOCE asserts that this claim should be dismissed because all

Plaintiffs’ claims against AOCE must be brought as Unfair Labor Practices (“ULPs”)

and filed with the Oregon Employment Relations Board. MTD at 11. As noted,

Plaintiffs have alleged violation of the duty of fair representation, withholding dues

after the revocation of an authorization for the deductions, and unfair threats to force

Plaintiffs to agree to cancellation terms after they fulfilled their contractual

obligations without additional consideration.

The ERB has exclusive jurisdiction over unfair labor practice claims, but it

does not have exclusive jurisdiction over all claims by employees against their

employers. Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9,

880 F.3d 1097, 1108 (9th Cir. 2018). The “ERB has exclusive jurisdiction to determine

whether an unfair labor practice has been committed.” Ahern v. Or. Pub. Emps.

Union, 329 Or. 428, 988 P.2d 364, 368 n.4 (1999). If resolving the complaint does not

require determining whether an unfair labor practice has occurred, it does not

thereby create a danger of “inconsistent rulings about what acts may constitute an

unfair labor practice.” Id. at 368 (holding that the ERB's exclusive jurisdiction is a

way to prevent inconsistent rulings about which acts constitute unfair labor

practices). The label assigned by a plaintiff is not critical; the court looks to the nature

of the claim. See Ahern v. OPEU, 329 Or. 428, 430 (1999) (“Despite its tort label, the

gravamen of plaintiff’s complaint is that [the union] has committed an unfair labor

practice.”

The Court turns to Oregon law to determine whether Plaintiffs’ claim is one

rooted in labor laws. Pursuant to ORS 243.650(24): “’Unfair labor practice’ means the

commission of an act designated an unfair labor practice in ORS 243.672.” ORS

243.672 (2)(c) states it is an unfair labor practice for a public employee or for a labor

organization to refuse or fail to comply with any provision of ORS 243.650 to 243.809.

ORS 243.806, provides:

(6) A public employee’s authorization for a public employer to make a

deduction under subsections (1) to (4) of this section shall remain in

effect until the public employee revokes the authorization in the manner

provided by the terms of the agreement. If the terms of the agreement

do not specify the manner in which a public employee may revoke the

authorized deduction, a public employee may revoke authorization for

the deduction by delivering an original signed, written statement of

revocation to the headquarters of the labor organization.

***

(10)(a) 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 payment described under

subsections (1) and (2) of this section, the dispute shall be resolved

through an unfair labor practice proceeding under ORS 243.672.

From its text, whether a plaintiff has fulfilled their contractual obligations by

submitting valid revocations is litigated as a ULP under ORS 243.806(10). Further,

a union threatening its members is a ULP under ORS 243.672(2)(a). ORS

243.806(10)(a) provides if a dispute arises between an employee and a union

regarding the validity or revocation of an authorization for dues deductions it shall

be resolved through an unfair labor practice proceeding.

Plaintiffs argue they “do not allege a dispute over the ‘existence, validity or

revocation’ of a dues authorization card,” and claim dues were withheld after valid

revocations. Resp. at 9. But each time AOCE told Plaintiffs they needed to submit an

AOCE membership cancellation form for the revocation to be valid.

Plaintiffs repeatedly assert that AOCE required a cancelation form for their

revocation to be valid: “AOCE told Ms. Williams that she could not resign her

membership in AOCE without signing the Membership Cancellation form.” Resp. at

2. “Later, AOCE sent the Membership Cancellation Form described above to Davies

by email, insisting that he sign it because ‘payroll’ need it before deduction of union

dues would end.” Id. at 3. “AOCE responded that Mr. Cox must sign the membership

cancellation form before his resignation would be processed and before it would

instruct DOC to end deductions of union dues from his wages.” Id. 4. “Ms. Cox first

revoked her authorization for dues deductions to DOC payroll on November 10, 2021.

DOC payroll responded by stating that Ms. Cox had to sign the AOCE cancellation

form.” Id. at 4. “AOCE representative Gary Harkens also informed Ms. Cox that she

had to sign the form.” Id. 6. “AOCE reiterated that if Ms. Cox filled out the form ‘dues

will stop.’” Id. Finally, Plaintiffs allege they submitted valid revocations yet were

threatened by AOCE. They allege AOCE “used unfair threats to force Plaintiffs to

agree to terms in the Membership Cancellation Form after Plaintiffs had fulfilled

their contractual obligations, and without additional consideration.” Complaint ¶

123.

Those allegations of threats are conduct constituting a ULP under ORS

243.672(2)(a) and (2)(c). When claims allege conduct constituting a ULP, the Public

Employee Collective Bargaining Act (PECBA) abolishes independent causes of action

for granting ERB exclusive jurisdiction over those claims. Coleman v. Children’s

Services Div., 694 P.2d 555, 557, 71 Or. App. 687, 691-692 (1984) rev den 701 P.2d

784, 299 Or. 251 (1985). The gravamen of Plaintiffs’ breach of contract claim is that

AOCE committed a ULP. Accordingly, the ERB has exclusive jurisdiction over this

claim. With ERB’s exclusive jurisdiction there would be no supplemental jurisdiction.

Thus, Claim VII is dismissed.

In sum, against AOCE, Plaintiffs lack standing to bring claims I – III. Under

42 U.S.C. § 1983, all claims I-V fail as a matter of law, as AOCE is not a “state actor.”

Where there is no threat of imminent injury. When all the Federal claims against

AOCE fail, what is left is a state law breach of contract claim - an alleged Unfair

Labor Practice (Count VII). There is no supplemental jurisdiction for this final claim.

B. State Defendants’ Motion to Dismiss

As a reminder, the Court determined that Plaintiffs lacked standing to bring

Claims I – III against all Defendants. The Court therefore addresses the remaining

claims, Claims VI, V, VI.

1. Claims IV-V: Violations under 42 U.S.C. § 1983

Along with the jurisdictional arguments noted above in Section I, State

Defendants also move to dismiss Plaintiffs’ § 1983 claims against them under Rule

12(b)(6) for failing to state a claim. State Defendants argue that Plaintiffs failed to

allege facts to show plausibly demonstrate any wrongdoing by State Defendants,

where Plaintiffs cannot show that its deduction of dues, at the union’s request, was

anything but ministerial. State MTD at 14.

Both Claim VI and V stem from Ms. Cox’s allegation that AOCE failed to timely

instruct the State to discontinue dues deductions and failed to compensate her for the

alleged unlawful dues deductions. See id. ¶¶ 99, 110-111.

In Claim IV for “deduction of union dues without authorization” in violation of

the First Amendment, Plaintiffs allege no facts showing how State Defendants

violated Plaintiffs’ rights or caused any harm by such violation. Plaintiffs’ bare

assertions that AOCE “relies on the State of Oregon” and its laws to operate, Compl.,

¶ 101, or that “Defendants’ policies are significantly broader than necessary,” id., ¶

104 are not enough to state a claim for relief.

Likewise, in Claim V for deprivation of property interest in her wages, T. Cox

alleges no facts from which the Court can glean a plausible claim against State

Defendants. Plaintiff claims that “ORS 243.806 is unconstitutional . . . because it

lacks procedural safeguards.” Id. ¶ 108. As explained above, ORS 243.806 sets forth

requirements for authorization of deductions from wages of dues to remit to a labor

unions. Plaintiff T. Cox identifies no text, from any of its ten subsections, that is

unconstitutionally overbroad and only makes conclusory legal assertions. Plaintiff’s

allegation that “Oregon law requires [ODOC] to deduct union dues in accordance with

instructions by AOCE,” id. ¶ 112, is also not enough to allege any wrongdoing by

State Defendants.

To survive a motion to dismiss under the federal pleading standards, Plaintiffs

must include a short and plain statement of the claim and “contain sufficient factual

matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 570. Plaintiffs’ claims against State

Defendants lack facial plausibility, because Plaintiffs have not pled factual content

that allows the Court to draw the reasonable inference that State Defendants are

liable for the misconduct alleged. The Court need not accept legal conclusions,

unsupported by alleged facts, as true. Accordingly Claims IV – V against State

Defendants are dismissed.

2. Claim VI: Unlawful Withholding of Wages – ORS 652.615

In Plaintiffs’ Sixth Claim for Relief, T. Cox brings a claim against DAS for

wrongful withholding of wages under ORS 652.615. Compl., ¶¶ 114-120. T. Cox

alleges that the State deducts union dues from her paycheck; that she withdrew her

dues authorization; DAS deducted the dues anyway; and caused her to suffer loss of

wages. Id.

State Defendants move to dismiss on the grounds that Plaintiff’s claim is

barred by sovereign immunity. State MTD at 13.

The Eleventh Amendment bars all state law claims “brought into federal court

[against nonconsenting states] under pendent jurisdiction.” Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 121 (1984). Although the Ex parte Young, 209 U.S.

123 (1908), exception to the Eleventh Amendment allows a plaintiff to allege

prospective injunctive relief against a state official in his official capacity, it applies

only to enjoin ongoing violations of federal law—not state law. See Pennhurst, 465

U.S. at 106 (the Ex parte Young doctrine is “inapplicable in a suit against state

officials on the basis of state law”); Hale v. State of Ariz., 967 F.2d 1356, 1369 (9th

Cir. 1992), on reh’g, 993 F.2d 1387 (9th Cir. 1993) (“the Eleventh Amendment

deprives federal courts of jurisdiction to order state actors to comply with state law”);

Johnson v. Brown, No. 3:21-CV-1494-SI, 2021 WL 4846060, at *19 (D. Or. Oct. 18,

2021) (“Plaintiffs’ state statutory argument cannot provide a basis for the injunctive

relief Plaintiffs request because Defendants have sovereign immunity from this

Court’s jurisdiction to issue an injunction instructing state officials on how to conform

their conduct to state law.”); Olson v. Allen, 3:18-CV-001208-SB, 2019 WL 1232834,

at *5 (D. Or. Mar. 15, 2019) (dismissing state statutory claims against state agency

and state official on Eleventh Amendment grounds).

Here, State Defendants do not consent to the Court’s jurisdiction. State MTD

at 13. Accordingly, the Court finds that the Eleventh Amendment bars Plaintiff’s

claim. Therefore, T. Cox’s Claim VI is dismissed against DAS.

In resolving the State Defendants’ motion to dismiss, the Court notes that

Defendants raised a host of other meritorious arguments that the Court does not

reach.

CONCLUSION

For the reasons explained, AOCE’s Motion to Dismiss, ECF No. 21, is

GRANTED. State Defendants’ Motion to Dismiss, ECF No. 22, is GRANTED.

Plaintiffs’ Complaint, ECF No. 1, is DISMISSED without prejudice to allow the filing

of state law claims in a competent court. The case DISMISSED and the Clerk is

Directed to Close the case. Judgment shall be entered accordingly.

IT IS SO ORDERED.

Dated this 28th day of March 2024.

________/_s_/A__n_n_ _A_i_k_e_n_______

Ann Aiken

United States District Judge