Nesbitt v. Myers

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.