Oregon Advisory Opinions February 02, 1962: OAG 62-17 (February 2, 1962)

Oregon Attorney General Opinions

1962.

OAG 62-17.

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368

You have asked for an opinion on the following questions:

"1. Whether in view of the provisions of Section 5 (2) of the [State Labor-Management Relations] Act that the Board 'Shall direct the conciliator to conduct an election by secret ballot marked at the place of election,' the Board may properly provide under its 'Rules of Practice and Procedure, Section 5.12, that:

All elections shall be by secret ballot (either by mail or at a place or time set by the Conciliator).'

"2. Whether the Board, at the request of the conciliator, may direct that elections shall be by mail.

"3. Whether, if the parties stipulate that an election under the Act shall be held by mail, such a stipulation may be approved by the Board and whether, if so, such an election would be a valid election."

The language in § 5 (2), chapter 690, Oregon Laws 1961, providing that the board "shall direct the conciliator to conduct an election by secret ballot marked at the place of election " appears to be plain and unambiguous. (Emphasis supplied) "Place," when used in this context, clearly means one specific geographical location. It would be absurd to imagine that "place" meant, for instance, the living room of every employe eligible to vote in an election. Yet this would be the end result if that language were construed to allow for a mail ballot. See Opinions of the Attorney General, 1944-1946, p. 12; 1958-1960, p. 131.

In Feero v. Housley, (1955) 205 Or. 404, 415, 288 P. (2d) 1052, the court stated:

"In our opinion, the language used in the statute is perfectly plain, understandable, and wholly unambiguous. Being such, the legislative intent must be and is gathered therefrom. It is presumed that the legislature meant precisely what its words imply. Such being the case, we are not permitted to resort to rules of statutory construction in interpreting the statute. [citing cases]"

It is therefore my opinion that the board may not provide for a mail ballot election in its rules of practice and procedure. It necessarily follows, in answer to your second question, that the board cannot direct the conciliator to conduct an election by mail.

Finally, you have inquired as to the validity of a mail ballot election where the parties have stipulated an agreement to that effect. The answer to this question depends upon whether the legislation under consideration is mandatory or merely directory. Courts have held that statutes regulating the manner of marking ballots are mandatory because of the potentialities for fraud resulting from a directory construction. Taylor v. Bleakley, (1895) 55 Kan. 1, 39 P. 1045; Higgins v. Gray, (1929) 54 S. Dak. 488, 223 N.W. 711. See also 3 Sutherland, Statutory Construction, 3d ed., § 5820, pp. 113-114, where the author states:

"Provisions of statutes governing the conduct of elections which have the purpose of securing a complete and enlightened vote or preventing fraud, where failure to comply is capable of influencing the outcome of the election, are mandatory. * * *"

A stipulation by the parties providing for an election by mail ballot could conceivably meet the above objections which, among other things, would be capable of affecting the outcome of an election under the State Labor-Management Relations Act. If an election by mail had been desirable the legislature could have so provided in express language. Parties cannot enlarge the powers set forth in the statute by consent. Schneider v. Manion, (1950) 217 La. 118, 46 So. (2d) 58; 83 C.J.S., Stipulations, § 10.

Having decided that this provision is mandatory in nature it is thus my opinion, in answer to your last question, that the clear language of the statute may not be abrogated by stipulation.