Oregon State Employes Ass'n v. Personnel Division , 36 Or. App. 353 ( 1978 )

SCHWAB, C. J.

The Oregon State Employes Association (OSEA) initiated this proceeding before the Employment Relations Board (ERB) seeking a determination that various hiring and promotion practices of the Personnel Division were contrary to the Merit System Law, ORS ch 240. In support of ERB’s jurisdiction, OSEA relied upon ORS 240.086(2), which authorizes ERB to review

"* * * any personnel action that is alleged by an affected party, or an organization certified by the rules of the board as representing an affected party, to be arbitrary or contrary to law or rule, or taken for political reason, and set aside such action if it finds these allegations to be correct * *

ERB dismissed OSEA’s petition, holding it lacked jurisdiction under ORS 240.086(2) because OSEA was not challenging an identifiable "personnel action” and was not representing an identified "affected party.” OSEA appeals. We affirm.

We do not reach the question of whether OSEA was challenging a "personnel action” within the meaning of the statute because we find the "affected party” aspect of the case dispositive.

OSEA has not, at any stage of these proceedings, identified any "affected party” that it represents. It contends that its thousands of members are generally affected by the practices it challenges, and that this is sufficient to invoke ERB jurisdiction under ORS 240.086(2).

On the contrary, we interpret ORS 240.086(2) as contemplating the litigation and determination of specific rights and duties. An invalid "personnel action” challenged by "an affected party” can be "set aside.” Logically, nothing can be "set aside” except as to specific, identified individuals. Thus, unless an affected party is identified, ERB will be powerless to fashion any remedy. We agree with ERB’s conclusion that it would be pointless to proceed to a decision on the merits when no remedy could be granted if the decision were in OSEA’s favor.¹

The statutory grant of standing to "an organization * * * representing an affected individual” does not change the result. That only means that organizational standing must be derived from the standing of the person represented. In other words, an organization can only represent an affected party who would have been entitled to seek review in his own rights. The affected party must, to repeat, be identified so that ERB will be able to grant the statutory remedy of setting aside the challenged personnel action.

Affirmed.

1 If OSEA only seeks a declaratory ruling, it has the option of petitioning ERB under ORS 183.410:

"* * * [A]ny agency may in its discretion issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it * * *.”