Opinion

Nesbitt v. Myers

Court
Oregon Supreme Court
Filed
Mar 25, 2004
Status
Published
Cited by
0 cases
Authority
More cited than 25.8%

The opinion

FILED: March 25, 2004

IN THE SUPREME COURT OF THE STATE OF OREGON

TIM NESBITT,

Petitioner,

v.

HARDY MYERS,

Attorney General,

Respondent.

(SC S51107)

En Banc

Submitted on the record January 21, 2004.

Lynn-Marie Crider, Salem, filed the petition for petitioner.

Judy C. Lucas, Assistant Attorney General, Salem, filed the

answering memorandum for respondent. With her on the answering

memorandum were Hardy Myers, Attorney General, and Mary H.

Williams, Solicitor General.

DE MUNIZ, J.

Ballot title referred to Attorney General for modification.

DE MUNIZ, J.

In this ballot title review proceeding brought under

ORS 250.085(2), petitioner contends that the Attorney General's

certified ballot title for Initiative Petition 117 (2004) does

not comply with the requirements of ORS 250.035(2)(d). If

adopted, Initiative Petition 117 would amend the statutes that

control union elections for public employees in Oregon.

Presently, if unionized public employees wish to change or

terminate their union representation, a significant number of

their membership affirmatively must seek to do so by petitioning

the Employment Relations Board (ERB) to hold an election for that

purpose. Under Initiative Petition 117, that electoral choice

would be placed automatically before public sector union members

in mandatory elections regularly conducted by the State Labor

Commissioner before the expiration of each bargaining unit's

collective bargaining agreement.

We review ballot titles certified by the Attorney

General to determine whether they substantially comply with the

requirements of ORS 250.035(2). See ORS 250.085(5) (so stating).

For the reasons that follow, we conclude that the ballot title at

issue here does not comply substantially with those requirements

and we therefore refer it to the Attorney General for

modification.

Appendix A to this opinion sets out the text of

Initiative Petition 117. For that proposed measure, the Attorney

General certified the following ballot title:

"REQUIRES EMPLOYEE ELECTION TO MAINTAIN

UNION REPRESENTATION BEFORE EXPIRATION OF

EACH PUBLIC SECTOR UNION CONTRACT

"RESULT OF 'YES' VOTE: 'Yes' vote requires state

to conduct election by affected public employees before

expiration of each union contract, requiring a majority

vote to maintain union representation.

"RESULT OF 'NO' VOTE: 'No' vote retains existing

law allowing public employees to retain their chosen

union representation until employees request election

to discontinue or replace current union representation.

"SUMMARY: Under current law, public employees

represented by a union may petition Employment

Relations Board for an election to change or terminate

union representation. Election may be requested before

termination of each collective bargaining agreement but

must be requested by a sufficient percentage of

affected employees. Unless employees request election

and a majority vote for change, union representation

continues past expiration of collective bargaining

agreement. No election may occur within 12 months of

previous election. Proposed measure requires State

Labor Commissioner to conduct an election before the

expiration of every public sector union contract.

Provides no funding. Union representation terminates

unless majority of employees vote to continue

representation; voting employees select union. No

election may occur within 24 months of election

discontinuing union representation. Other provisions."

Petitioner challenges only the summary of the certified

ballot title. He first argues that, unless the summary contains,

as a threshold matter, some statement explaining that election by

a majority of workers is required initially to attain union

representation, voters cannot understand the major effect of the

proposed measure. We disagree. The summary must be worded so

that voters will understand the breadth of a proposed measure's

impact. Sampson v. Roberts , 309 Or 335, 339 , 788 P2d 421 (1990).

In this instance, the text of the proposed measure contains

nothing that would alter current Oregon law regarding the

initiation of union representation. As a result, the type of

statement that petitioner seeks to include in the summary has

little, if any, connection with the proposed measure's impact. Petitioner, however, makes a second argument regarding

the summary's adequacy as it relates to subsection (g) of

Initiative Petition 117. That subsection provides:

"The employees in a bargaining unit in which a

majority of the employees has [ sic ] voted not to be

represented by a union may not be represented by a

union thereafter, unless a majority of the employees

vote in a vote-by-mail, secret ballot election

conducted by the State Labor Commissioner not earlier

than two years after the date of the last election at

which the employees chose not to be represented by a

union. "

(Emphasis added.) The Attorney General's summary, in turn,

states, "No election may occur within 24 months of election

discontinuing union representation ." (Emphasis added.)

Petitioner contends that that portion of the summary is

misleading. Specifically, he argues that the 24-month election

bar does not result solely from elections that discontinue

existing union representation. The text of the proposed

measure's subsection (g), petitioner maintains, establishes a 24-month election bar after any election in which a majority of

unrepresented public employees vote to reject union

representation.

The essence of the Attorney General's response is that

subsection (g), when read in context with the other provisions of

the proposed measure, is limited to elections to discontinue

union representation. We disagree with the Attorney General.

The proposed measure's initial paragraph, labeled

Section 1, and subsections (a) through (f), unambiguously refer

to an election requiring an already-unionized bargaining unit to

vote on the question of continued union representation. Section

1, for example, describes the election in question as one that

"shall be held to determine whether the employees represented

under the agreement wish to continue to be represented by a union

* * *." (Emphasis added.) Subsection (f), in turn, provides

that, if a majority of the participating workers "vote not to be

represented by a union, union representation of that bargaining

unit shall cease " at an appointed time. (Emphasis added.) In

between those two provisions, subsections (a) through (e) spell

out the mechanics of the election in question.

In contrast, subsection (g) is devoid of any reference linking application of that subsection to existing union

representation. The text of that subsection is not ambiguous:

the proposed measure bars a subsequent unionization election for

two years following "the last election at which the employees

chose not to be represented by a union." That phrase, as

petitioner correctly observes, covers two kinds of elections:

initial unionization elections that fail and decertification

elections that successfully remove union representation. The

words of subsection (g) are not limited solely to periods

following decertification elections. As a result, we hold that

the Attorney General's certified ballot title for Initiative

Petition 117 (2004) fails to comply substantially with the

requirements of ORS 250.035(2)(d). (1) We refer the ballot

title to the Attorney General for modification. See ORS

250.085(8) (authorizing that procedure).

Ballot title referred to Attorney General for

modification.

1. Our holding necessarily means that the Attorney

General's statement in the summary regarding the role of the

Labor Commissioner is inaccurate and also must be modified.

Return to previous location .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.