Oregon Ballot Measure Would Require Discrimination Against Unions

The New Wave of Anti-Worker Attacks

Anil S. Karia

Attacks on working people and their right to collectively bargain over wages, hours, and working conditions are now commonplace across the country. Oregon, my home state with a history of strong collective bargaining rights, is the latest in the national parade of undermining the middle class.

The favorite mode of attack in Oregon over the past few years has been a series of anti-worker initiative petitions (IPs) designed to make it hard for workers to vote for and keep a union in their workplace. Like most “right to work” efforts, these IPs have attempted to foist “free riders” onto unions. “Free riders” gain all the benefits of a union’s efforts in negotiating fair wages, hours and working conditions without paying their fair share towards the union’s efforts. Time and again, these “right to work” efforts have failed in Oregon, with voters disapproving of the idea that a person could gain something for nothing. Our Attorney General and Supreme Court have pulled back the curtain on these destructive ballot measures by accurately writing ballot titles for the IPs. For example, one ballot title described an anti-worker initiative like this: “Non-union public employees may benefit from union bargaining without sharing representation costs; modifies representation obligations.”

In response to repeated failures at the ballot box, anti-worker groups have changed course. Now, instead of creating “free riders,” anti-worker groups have turned their attention to creating different classes of public employees in Oregon. In other words, they are attempting to write explicit discrimination into Oregon’s collective bargaining laws.

IP 69 (2016), which its backers cynically call “The Public Employee Choice Act,” mandates discrimination. The first class of “union” employees retain their right to collectively bargain over wages, hours, and working conditions, with some subtle but important caveats such as a requirement that each union employee vote annually to maintain their union employee status. For the second class of “independent employees,” employers would determine wages and benefits for each “independent employee” with an ad hoc analysis of his or her “individual education, experience, training skills, and performance,” without relying on what the “union employees” have negotiated in their collective bargaining agreements.

IP 69 mandates an absurd workplace in which public employers are required to discriminate between union and non-union employees. IP 69 demands that an employer pay an independent employee differently than a union employee solely because of the individual’s choice not to join a union. In contrast, under Oregon’s current fair share system, any employee may choose to be a non-union member. That choice carries with it the simple requirement that that employee pay his or her fair share to the union for the benefit of the union’s bargain for wages, hours, and working conditions that he or she receives.  In other words, current law provides for equality; the new law for a discriminatory class system.

On top of that, IP 69 appears to trample all over the First Amendment’s protections over free association. Imagine a State law that requires public employers to discriminate between employees based on their union membership. That unconstitutional world would be the byproduct of IP 69. Public employers in Oregon should be just as worried about this unsavory world of institutionalized discrimination based on union association.

As with all IPs in Oregon, our Attorney General and eventually our State Supreme Court will have to fashion a ballot title to accurately describes IP 69. Let’s hope they call IP 69 what it is—a fundamental change to public employee collective bargaining that attempts to enshrine unconstitutional discrimination into the public workplace.

 

– Anil Karia is a partner with the Tedesco law Group in Portland, Oregon. He specializes in representing public safety labor organizations.