
Filed:  October 4, 2001
IN THE SUPREME COURT OF THE STATE OF OREGON
TRICIA BOSAK
and JAMES SAGER,
	Petitioners,
	v.
HARDY MYERS,
Attorney General, State of Oregon,
	Respondent.
(SC S48563)
	On petition to review ballot title.
	Argued and submitted July 31, 2001.
	Margaret S. Olney, of Smith, Gamson, Diamond & Olney, argued
the cause and filed the petition for petitioners.
	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. 
	*Balmer, J., did not participate in the consideration or
decision of this case.





		DE MUNIZ, J.

		Petitioners in this ballot title review proceeding
challenge two aspects of the Attorney General's certified ballot
title for a proposed initiative measure, which the Secretary of
State denominated as Initiative Petition 45 (2002).  We review
the Attorney General's certified ballot title to determine
whether it substantially complies with the requirements of ORS
250.035.  See ORS 250.085(5) (setting out standard of review).
		The proposed measure would amend the Oregon
Constitution to allow an employee to refuse to pay for union
services that the employee does not wish to receive.  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 the caption and the summary of
the certified ballot title.  Petitioners' argument regarding the
caption is not well taken.  We turn to petitioners' argument
regarding the summary.
		Petitioners argue that the clause in the summary
stating that 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 P2d 462 (1995) (ballot title
should not misstate existing law, even by implication). 
Petitioners maintain, and we agree, that a union may require cost
sharing by employees only through a negotiated collective
bargaining agreement. (1)  Petitioners contend that the Attorney
General's wording incorrectly implies that unions unilaterally
may require all employees in the workplace to contribute to
representation costs.  The Attorney General appears to agree that
union representation costs may be assessed against employees who
are not union members only as part of a negotiated collective
bargaining agreement, but denies that the disputed clause could
create any other impression.
		We agree with petitioners.  The Attorney General's
clause likely will mislead voters into believing that, under
current law, a union unilaterally may require employees to pay
for representation services that they do not desire.  Because the
Attorney General's summary impliedly misstates current law, it
does not comply substantially with ORS 250.035(2)(d) (requiring 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. 




1. 	Unions and employers operating in the private sector
negotiate various forms of union security agreements.  See
Patrick Hardin et al., eds., The Developing Labor Law:  The
Board, the Courts, and the National Labor Relations Act (3rd ed
1992).  In Oregon's public sector, ORS 243.666 authorizes the
negotiation of "fair share" agreements, as defined in ORS
243.650(10), to address union security.  See Elvin v. OPEU, 313
Or 165, 170, 832 P2d 36 (1992) (discussing "fair share"
agreements).  Union and employers negotiate union security
agreements to avoid the "free rider" problem.  See Dale v.
Kulongoski, 321 Or 108, 111-12, 894 P2d 462 (1995) (discussing
"free rider" issue).
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