pro tempore, dissenting.
The majority elevates form over substance in holding that the Employment Relations Board (ERB) did not exact a penalty in this case. I would modify the order by deleting paragraph 2 and, accordingly, dissent.
As the majority notes, ERB found that Oregon Public Employees Union (OPEU) violated ORS 243.672(a) and (c), *165because it did not follow all of the procedural safeguards that the Supreme Court prescribed in Chicago Teachers Union v. Hudson, 475 US 292, 106 S Ct 1066, 89 L Ed 2d 232 (1986). The Supreme Court devised those procedures to protect the fair share payers’ First Amendment rights. The requirements of ORS 243.672(2) (a) and (c) must be interpreted consistently with the requirements of the First Amendment.
ERB also found, however, that respondents suffered no financial harm as a result of QPEU’s violations and that “OPEU attempted to comply with the newly-announced Hudson requirements.” Respondents asserted that they did suffer financial harm, because OPEU had the use of their fair share payments before having provided the proper procedure for collecting them. ERB replied to that contention by expressly finding that the violations had no financial impact on respondents. None of the parties assigns error to that finding. Respondents also argue that the hearing that resulted in ERB’s finding of no financial impact was procedurally improper. ERB ruled against them on that issue, but they did not petition for review. Accordingly, that procedural question is not before us. Because neither the finding of no monetary loss nor the process that led to it is assigned as error, we are bound by that finding.
The majority simply ignores the finding of no financial harm and the implications that flow from it. OPEU contends that ERB did not merely provide a remedy for respondents’ loss but, in substance, imposed a civil penalty without the findings required by ORS 243.676(4)(a). A penalty is limited to $1,000 per case and requires ERB to follow procedures that it did not. ORS 243.676(4). The core of OPEU’s argument is that ERB ordered restitution even though there is no loss to restore. In my view, ERB’s action exceeded its authority under ORS 243.676(2).
After ERB finds that a person has engaged in an unfair labor practice, it shall:
“Take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as necessary to effectuate the purposes of ORS * * * 243.650 to 243.782.” ORS 243.676(2(c).
“We can set ERB’s remedy aside only if it has exercised its authority in a manner that does not reasonably effectuate the *166purposes of PECBA.” OSEA v. Lake County School District, 93 Or App 481, 486, 763 P2d 160 (1988); see also Gresham Tchrs. v. Gresham Gr. Sch., 52 Or App 881, 893-95, 630 P2d 1304 (1981). Nevertheless, ERB must act within the bounds of those purposes, which are to provide a remedy for the unfair labor practice. ERB may not act under ORS 243.676(2) (c) to punish a wrongdoer. Its only authority to take punitive action is under the provisions of ORS 243.676(4), which ERB specifically did not invoke in this case.
Because ERB found that OPEU’s unfair labor practices had no financial impact on respondents, a money award could not be remedial. The only purpose of the order is to penalize OPEU, as indicated by ERB’s reasoning that OPEU would otherwise “suffer no loss due to its unlawful conduct.” The majority underscores the punitive purpose of the award when it writes that the order is meant to deter statutory violations. 102 Or App 164. ERB’s punitive purpose, and the lack of any financial harm to make whole, makes the order a penalty. See Bowles v. Barde Steel Co., 177 Or 421, 428, 164 P2d 692 (1945). Therefore, ERB’s order that OPEU refund the fair share fees exceeded its authority under. ORS 243.676(2) (c).
The majority also relies on ORS 243.766(3). 102 Or App 164. That statute directs ERB to “[c]onduct proceedings on complaints of unfair labor practices by employers, employees and labor organizations and take such actions with respect thereto as it deems necessary and proper.” The grant of authority is general. It does not override the more specific provisions of ORS 243.676(2), which governs in detail what ERB may do when it finds that a party has committed an unfair labor practice. To the extent that the general statute, ORS 243.766(3), would permit what the more specific statute, ORS 243.676(2), does not, the specific one controls and limits ERB’s authority. See State v. Dick, 91 Or App 294, 298, 754 P2d 628, rev den 306 Or 528 (1988).
Having determined that ERB’s order exceeded its statutory authority, I would next consider whether the order was constitutionally required nonetheless. ERB relied on Tupper v. Fairview Hospital, 276 Or 657, 556 P2d 1340 (1976), to support its order. In that case, the hospital had terminated Tupper’s employment. The Supreme Court concluded that *167Tupper had not received the procedural safeguards to which he was entitled before the dismissal. 276 Or at 665. In discussing the proper remedy, the court said:
“Because his dismissal was invalid, we conclude that Tupper is entitled to an award of back wages and other benefits and that he should continue to receive these amounts until he has been properly terminated.5
The court held only that the agency had authority to provide a remedy to make the plaintiff whole for what he had actually lost as a result of the unconstitutional action. It did not authorize an award that had no remedial purpose.
Courts that have addressed whether to order a refund of fees collected in violation of the requirements express in Chicago Teacher Union v. Hudson, supra, have reached different results. In Gilpin v. AFSCME, AFL-CIO, 875 F2d 1310 (7th Cir 1989), an arbitrator found that the union had undercharged the plaintiffs for 1985 and ordered the union to refund the amount of a slight overcharge for 1986. 875 F2d at 1313-14. The court concluded that restitution of all of the fees collected for that period would have been improper, because the union had placed the excess in escrow, and thus had derived no benefit from the money, and because the “fees did not exceed the union’s bone fide expenses on behalf of the plaintiffs and the other nonunion employees.” 875 F2d at 1314. It held that the plaintiffs were seeking, not restitution, but punitive damages, and that they had not satisfied the standards for such an award. 875 F2d at 1315-16. ERB’s order in this case is similar to what the plaintiffs sought in Gilpin. I agree with the Seventh Circuit Court of Appeals that the First Amendment *168does not require a “restitution” order that ERB’s own opinion shows is a penalty rather than a remedy.1
ERB had the option to proceed under the civil penalty statute if it believed that a remedial order was insufficient to punish OPEU and to deter others. It did not select that option, and we should hold it to its choice.
I dissent.
Warren, J., joins in this dissent.“5 The Court of Appeals seems to have concluded that PERB lacked the necessary authority to order an award of back wages upon a finding that the termination was procedurally invalid. Although there is apparently nothing in the authorizing statute which gives PERB the authority to issue such an order on its own, see ORS 240.560, the constitutional nature of the deprivation involved is enough to require this court to direct that such an award be made.” 276 Or at 665. (Emphasis ERB’s.)
I do not find the reasoning of post-Hudson decisions in which courts have approved a full refund of fees persuasive. See e.g., Lowary v. Lexington Local Bd. of Educ., 854 F2d 131, 134-35 (6th Cir 1988); Gibney v. Toledo Bd. of Edn., 40 Ohio St 3d 152, 157-58, 532 NE2d 1300 (1988). In Gillespie v. Willard City Bd. of Educ., 700 F Supp 898, 902 (ND Ohio 1987), the court ordered all fees returned, but it noted that, once a constitutional procedure for the collection of the proper amount of dues was established, “defendants will be entitled to the amount of 1986-197 dues which would have been paid to support collective bargaining and contract administration.” The effect of its decision, thus, was that the union would ultimately receive the payments to which it was entitled under Hudson.