dissenting.
I very much doubt that this court has jurisdiction over this appeal at this time. There is a general policy precluding appeals "until the controversy is completely and finally settled.” Moran v. Lewis, 274 Or 631, 634, 547 P2d 627 (1976). This controversy is far from settled.
This case was begun by the Employes Association as a proceeding to certify a bargaining unit under ORS 243.682. It was handled by the Employment Relations Board as a proceeding under ORS 243.682. As explained in Klamath Co. v. Laborers Inter. Union, 21 Or App 281, 534 P2d 1169 (1975), the certification of a bargaining unit and then a bargaining representative can be a protracted process. This case is at the very beginning of that process. It is here as an appeal from the Board’s denial of the Council of Governments’ motion to dismiss for lack of jurisdiction. A court’s denial of such a motion would clearly not be immediately appealable. Moran v. Lewis, supra. I find no basis for a different result when an administrative agency denies such a motion.
Although it started as a certification proceeding, the majority now converts this case into something no party even hinted it was — until supplemental briefs were filed in this court: a declaratory proceeding under ORS 183.410. To uphold this court’s jurisdiction, such a metamorphosis probably is essential.1 But assuming *128I am correct that jurisdiction would not otherwise exist, pretending this proceeding arose under ORS 183.410 because the parties in supplemental appellate briefs stipulate that we can engage in such a fiction seems to flatly violate the elementary rule that jurisdiction cannot be created by stipulation.2
The majority is concerned that, unless our jurisdiction is now upheld, this case will "return with the same question on a second appeal to this court”; instead, the majority is willing "to expedite resolution of the present dispute between the parties.” 26 Or App at-. This reasoning is unpersuasive. Applied literally, it means we should never dismiss an interlocutory appeal as premature. Moreover, it disregards the basis of our decision in Klamath Co. v. Laborers Inter. Union, supra: many contingencies could occur in the *129future which would moot the present dispute and negate the possibility of a subsequent appeal.3
Assuming for the sake of discussion that this court has jurisdiction over this appeal at this time, I dissent from the majority’s holding that the Lane Council of Governments is not a political subdivision of the state of Oregon.
A growing number of contemporary problems transcend political boundaries, be they city, county, state or national. One legislative response to certain problems in this state, such as pollution and land-use planning, has been to create or authorize the creation of regional associations of local governments. These regional associations, such as the Lane Council of Governments, perform governmental functions on behalf of their members. See ORS 190.010 and 190.030(1).
It may have been that in an earlier and simpler day the term “political subdivision” was limited to municipalities and counties. But I submit that we close our eyes to contemporary reality if we regard the more recently developed regional associations of local governments as anything other than political subdivisions of the state.
Any other interpretation potentially leaves the Council of Governments’ employes in a collective-bargaining limbo. The National Labor Relations Act, 29 USC § 151 et seq (1973), does not cover employes of a "political subdivision.” 29 USC § 152(2) (1973). As I understand the United States Supreme Court’s interpretation, the Council of Governments’ employes could not organize and bargain collectively under the federal statute. NLRB v. Natural Gas Utility District, 402 US 600, 91 S Ct 1746, 29 L Ed 2d 206 (1971). In other words, the same group of employes that the majority now tells cannot organize under a state sta*130tute because they do not work for a political subdivision would be told that they cannot organize under a federal statute because they do work for a political subdivision.4 1 cannot believe the legislature intended such a result. I would hold that what is excluded from NLRA coverage as a political subdivision must have been intended by the Oregon legislature to be a political subdivision as that term is used in ORS 243.650(18).
For the foregoing reasons I respectfully dissent.
The controlling staute on the question of whether a motion to dismiss at the outset of certification proceeding can be immediately appealed is ORS 183.480:
"(1) Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order * * *.
*128"(2) Judicial review of final orders of agencies shall be solely as provided by ORS 183.482, 183.484, 183.490, 183.495 and 183.500.
"(3) Except as provided in ORS 183.400, no action or suit shall be maintained as to the validity of any agency order except a final order as provided in this section and ORS 183.490 and 183.500 or except upon showing that the agency is proceeding without probable cause, or that the party will suffer substantial and irreparable harm if interlocutory relief is not granted.
We previously interpreted an earlier version of this statute (the same in substance) to mean: (1) final orders are appealable; and (2) other orders are appealable upon a showing that the party will suffer substantial and irreparable harm if interlocutory relief is not granted. Aplanalp v. Board of Optometry, 21 Or App 501, 535 P2d 573 (1975).
1 would hold that denial of the motion to dismiss was an order, i.e., agency action that denied the claimed right of not being subject to Board jurisdiction. See, ORS 183.310(4). I would also hold that denial of a motion to dismiss is not a final order. See, Aplanalp.
This raises the question of whether the Council of Governments can show the likelihood of substantial and irreparable injury necessary to bring this interlocutory appeal. Here, the Council of Governments’ only claimed injury is being subject to further proceedings before the Board. Under Klamath Co. v. Laborers Inter. Union, 21 Or App 281, 534 P2d 1169 (1975), this is insufficient.
Cummings Constr. v. School Dist. No. 9, 242 Or 106, 408 P2d 80 (1965); Logsdon v. State and Dell, 234 Or 66, 380 P2d 111 (1963); Harris v. Harris, 192 Or 361, 232 P2d 818 (1951).
For example, the Council of Governments might not be certified as an appropriate bargaining unit, or the Employes Association might lose an election to select a bargaining representative. See generally, Klamath Co. v. Laborers Inter. Union, supra, n 1.
This anomaly is further compounded by OES 663.005(4)(b) which excludes from the coverage of Oregon’s private-sector labor statute the "state, or any county, city or political subdivision or agency thereof.”