Opinion
(S.C. S48563)
Argued and submitted on July 31, 2001
Filed: October 4, 2001
On petition to review ballot title.
Margaret S. Olney, of Smith, Gamson, Diamond Olney, argued the cause and filed the petition for petitioner.
David F. Coursen, Assistant Attorney General, Salem, argued the cause for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, RIGGS, and De MUNIZ, Justices.
DE MUNIZ, J.
Ballot title referred to the Attorney General for modification. This decision shall become effective in accordance with ORAP 11.30(10).
Petitioners in this ballot title review proceeding challenge two aspects of the Attorney General's certified ballot title for a proposed initiative measure, which has been denominated by the Secretary of State as Initiative Petition 45 (2002). Petitioners filed timely comments regarding the draft ballot title's caption and summary and, therefore, are entitled to seek review of the certified ballot title. ORS 250.085(2). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035. ORS 250.085(5).
The proposed measure would amend the Oregon Constitution by adding a section that would allow employees to receive union benefits without having to pay for them. The Attorney General certified the following ballot title for the proposed measure:
"AMENDS CONSTITUTION: ALLOWS WORKPLACE EMPLOYEES REPRESENTED BY RECOGNIZED UNION TO REFUSE TO PAY FOR UNION REPRESENTATION `SERVICES'"
"RESULT of `YES' VOTE: `Yes' vote allows individual employee in workplace represented by union to refuse payment for undesired union `services' without modifying union's obligation to represent each employee.
"RESULT OF `NO' VOTE: `No' vote retains current law, rejects allowing union workplace employee to refuse payment for undesired union `services' without modifying union's obligation to represent each employee.
"SUMMARY: Amends constitution. Under current law, when majority of workplace employees select union as collective bargaining representative, that union must fairly represent all workplace employees and may require all employees to contribute to representation costs. Measure allows an individual employee to refuse to pay for representation `services' by identifying unwanted `services' in writing. Measure does not change union's existing obligation to bargain for and represent all covered employees. Measure does not define `service' or provide formula for valuing specific `services'. Measure affects existing contract provisions that require payment for representation; expressly prohibits future contracts from requiring such payment. Measure requires union to notify employees of right to withhold payment to union and prohibits discrimination or harassment of employee for exercising that right. Imposes penalties. Other provisions."
Petitioners challenge both the caption and summary of the ballot title. We reject without further comment petitioners' argument regarding the caption and discuss only petitioners' argument regarding the summary.
Petitioners argue that the phrase in the summary, a "union must fairly represent all workplace employees and may require all employees to contribute to representation costs," misstates current law. See Dale v. Kulongoski, 321 Or. 108, 113, 894 P.2d 462 (1995) (ballot title should not misstate existing law, even by implication). Petitioners maintain, and we agree, that only through a negotiated collective bargaining agreement may a union require cost sharing by employees. Petitioners contend that the Attorney General's phrase incorrectly implies that unions may unilaterally require all employees in the work place to contribute to representation costs. The Attorney General appears to agree that union representation costs may be assessed only as part of a negotiated collective bargaining agreement, but denies that the disputed phrase could create any other impression.
In the public sector, these provisions are known as "fair share" agreements. ORS 243.666. See also Elvin v. OPEU, 313 Or. 165, 832 P.2d 36 (1992). In the private sector, they are generally referred to as "union security" agreements. These agreements are allowed in order to avoid the "free rider" problem. See Patrick Hardin et al. eds., The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, (3rd ed 1992).
We agree with petitioners. The Attorney General's phrase could mislead voters into believing that under current law a union may unilaterally require employees to pay for representation services they do not desire. The Attorney General's summary impliedly misstates current law and therefore does not substantially comply with ORS 250.035(2)(d), which requires a "concise and impartial statement * * * summarizing the state measure and its major effect."
Having concluded that the summary does not comply substantially with ORS 250.035(2)(d), we refer the ballot title to the Attorney General for modification.
Ballot title referred to the Attorney General for modification. This decision shall become effective in accordance with ORAP 11.30(10).