# Cox v. Association of Oregon Corrections Employees, Inc.

> District Court, D. Oregon · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10397226

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397226. Public record. Not legal advice.