Vaandering v. Rosenblum ( 2016 )

No. 19 April 7, 2016 1
IN THE SUPREME COURT OF THE
STATE OF OREGON
Hanna VAANDERING,
Trent Lutz, Heather Conroy,
and Jill Gibson,
Petitioners,
v.
Ellen F. ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S063820)
En Banc
On petitions to review ballot title filed January 15, 2016;
considered and under advisement February 23, 2016.
Margaret S. Olney, Bennett, Hartman, Morris & Kaplan,
LLP, Portland, filed the petition and reply for petitioners
Vaandering, Lutz, and Conroy.
Jill Gibson, Gibson Law Firm, Portland, filed the petition
and reply for petitioner Gibson.
Shannon T. Reel, Assistant Attorney General, Salem,
filed the answering memorandum for respondent. With her
on the answering memorandum were Ellen F. Rosenblum,
Attorney General, and Paul L. Smith, Deputy Solicitor
General.
KISTLER, J.
Ballot title referred to Attorney General for modification.
Case Summary: Petitioners seek review of the Attorney General’s ballot title
for Initiative Petition 69 (2016), which would change collective bargaining laws
for public employees by establishing two separate frameworks for determining
the terms of employment, based on union membership. Petitioners assert that
the Attorney General’s caption, “yes” and “no” result statements, and summary
do not substantially comply with the legal requirements for ballot titles. Held:
The Attorney General’s caption fails to convey some of the measure’s major
effects because the caption focuses too narrowly on two of those effects, nonunion
employee compensation and public employee unions’ duties of representation. A
similar problem affects the “yes” result statement, which focuses on compensa-
tion for nonunion employees but fails to convey that the measure would establish
2 Vaandering v. Rosenblum
separate frameworks for determining terms of employment for union and non-
union employees. The “no” result statement fails to adequately describe existing
law and public employee unions’ ability to recover their representation costs from
nonunion employees. Finally, the summary fails to convey, among other things,
that employment terms for nonunion employees would be determined based on an
individualized assessment of each nonunion employee’s qualifications and that
different terms of employment for union and nonunion employees would not give
rise to an unfair labor practice.
Ballot title referred to Attorney General for modification.
Cite as 359 Or 1 (2016) 3
KISTLER, J.
Two sets of petitioners seek review of the certified
ballot title for Initiative Petition 69 (2016) (IP 69). See ORS
250.085(2) (specifying requirements for seeking review of
certified ballot titles). We review the ballot title to determine
whether it substantially complies with ORS 250.035(2). See
id. (stating standard of review). For the reasons explained
below, we refer the ballot title to the Attorney General for
modification.
IP 69, if enacted, would alter the rights and obli-
gations that public employers, their employees, and the
unions representing those employees owe each other under
the Public Employee Collective Bargaining Act (PECBA),
ORS 243.650 to ORS 243.782. Before explaining how IP 69
would affect those rights and obligations, we first describe
the current law briefly. Under PECBA, public employ-
ees have the right to form, join, and participate in labor
organizations for purposes of representation and collective
bargaining with their public employer. See ORS 243.662.
If a union is either recognized or certified as the exclusive
representative of the employees within a bargaining unit,
see ORS 243.682 (providing procedures for recognizing or
certifying public employee unions), the employees in the
bargaining unit may but need not join the union. PECBA,
however, imposes a duty on unions to represent all employ-
ees within a bargaining unit without regard to whether the
employees are union members. That duty includes nego-
tiating terms of employment on behalf of all the employ-
ees within the bargaining unit. In the same vein, PECBA
makes it an unfair labor practice for a public employer to
provide different employment terms to union and nonunion
employees to encourage or discourage union membership.
ORS 243.672(1)(c).
To offset the costs of representing employees who
choose not to join a union and who thus do not pay union
dues, PECBA authorizes unions and public employers to
enter into a “fair-share agreement” as part of a collective
bargaining agreement. See ORS 243.650(10) (defining fair-
share agreements). A “fair-share agreement” permits the
deduction of a “payment-in-lieu-of-dues” from the salaries
4 Vaandering v. Rosenblum
of nonunion employees within a bargaining unit “to defray
the cost for services by the [union] in negotiations and con-
tract administration.” See ORS 243.650(18) (defining pay-
ments in lieu of dues). See also Davenport v. Washington
Educ. Ass’n, 551 US 177, 181, 127 S Ct 2372, 168 L Ed 2d
71 (2007) (describing the “fair-share” goal of “prevent[ing]
nonmembers from free-riding on the union’s efforts, sharing
the employment benefits obtained by the union’s collective
bargaining without sharing the costs incurred”).1
IP 69, if enacted, would effect two sets of changes
to that framework. First, it would divide public employees
within a bargaining unit into two groups (union and non-
union employees), and it would provide different means
for determining the employment terms (wages, benefits,
and other employment terms) for each group. Employment
terms for union employees would be based on the collective
bargaining agreement. IP 69 § 3(3). Employment terms
for nonunion employees could not be based on a collective
bargaining agreement but would be based instead on an
assessment of each employee’s “individual education, expe-
rience, training, skills, and performance.” Id. §§ 3(2), 9(4),
(5). Having provided for separate means for determining the
employment terms for union and nonunion employees, IP 69
also provides that “[a] comparison of employment terms for
union employees to the employment terms for [nonunion]
employees, and any effects of such terms, may not form the
basis of an unfair labor practice.” Id. § 9(1)(c).
The second group of changes that IP 69 would
effect concern a union’s obligation to represent union and
nonunion employees within a bargaining unit equally and
nonunion employees’ corresponding obligation to make
“payments in lieu of dues.” IP 69 would provide that a
1
The First Amendment places limits on the extent to which public bodies
can require public employees to participate in a union. See Abood v. Detroit Bd. Of
Educ., 431 US 209, 97 S Ct 1782, 52 L Ed 2d 261 (1977). Abood held that the First
Amendment does not prohibit public bodies from entering into collective bargain-
ing agreements that require nonunion employees to pay their “fair share” of rep-
resentation costs but that it does prohibit them from entering into collective bar-
gaining agreements that require nonunion employees to pay for a union’s political
activities. See Friedrichs v. California Teachers Association, 578 US ___, ___ S Ct
___, ___ L Ed 3d ___ (2016) (per curiam) (affirming by an equally divided court a
Ninth Circuit decision that followed Abood).
Cite as 359 Or 1 (2016) 5
union is “not required to collectively bargain for or to pro-
vide any type of service to public employees who choose
not to join a labor organization and who do not pay for
such services.” IP 69 § 10(1). By using the phrase “not
required,” the measure leaves open the possibility that
a union may engage in collective bargaining that would
benefit employees in the collective bargaining unit who do
not join the union.2
Section (4) of the measure similarly would provide:
“(1)  Compulsory payments to labor organizations by
public employees who choose to not join a labor organiza-
tion shall be prohibited.
“(2)  Public employees who choose to not join or pay a
labor organization may not benefit from labor organization
bargaining, representation, or services without sharing
representation costs.”
Id. § 4. By its terms, subsection (4)(1) would prohibit non-
union employees from paying what PECBA currently
describes as “payment in lieu of dues.” At first blush, sub-
section (4)(2) appears to be a corollary of that proposition.
It prohibits nonunion employees from benefitting from a
union’s efforts on behalf of its members. However, the last
prepositional phrase in subsection (4)(2)—“without sharing
representation costs”—suggests that, if nonunion members
do benefit from “labor organization bargaining, representa-
tion, or services,” they would owe their share of the costs
of procuring those benefits. How those two subsections and
section 10 of IP 69 work together is, at best, ambiguous.
The Attorney General certified the following ballot
title for IP 69:
“Public employer cannot compensate non-union
employee based on union contract; limits union
representation of non-members
2
Sometimes, it might be difficult for a union to negotiate benefits for its
members without also benefitting nonunion employees, even if the union sought
to limit its representation, as IP 69 would permit. Suppose, for example, a collec-
tive bargaining agreement required an employer to install an air filtration sys-
tem to make the workplace healthier. That system presumably would benefit both
union and nonunion employees, even if the union was “not required” to bargain
on the latter group’s behalf.
6 Vaandering v. Rosenblum
“Result of ‘Yes’ Vote:  ‘Yes’ vote prohibits public employer
compensating non-union employee based on union contract;
public employee unions need not represent non-members;
limits charging representation fees to non-members.
“Result of ‘No’ Vote:  ‘No’ vote retains current law:
unions represent all public employees in organized bar-
gaining unit; member, non-member compensation based on
union contract; mandatory non-member fees permissible.
“Summary:  Currently, public employees in a bargain-
ing unit may be represented by a union. Union member-
ship cannot be required as condition of public employment.
Union represents (in negotiations, contract enforcement) all
public employees in bargaining unit. Collective bargaining
agreements can require non-members to share the costs of
the legally-required union representation. Compensation
differences/conduct to encourage/discourage union mem-
bership prohibited. Measure prevents public employer
from establishing non-union employee compensation and
employment terms by union contract, allows compensa-
tion differences. Measure removes requirement that public
employee unions represent non-members; prohibits requir-
ing non-members to pay costs of representation unless they
benefit from representation; union members must renew
membership annually. Measure applies to new, renewed, or
extended contracts entered into after the effective date of
measure. Other provisions.”
Petitioner Gibson challenges the ballot title’s caption,
the “yes” result statement, and the summary. Petitioners
Vaandering, Lutz, and Conroy (collectively Vaandering)
challenge the ballot title’s caption, the “yes” and “no” result
statements, and the summary.
We begin with the caption. ORS 250.035(2)(a) pro-
vides that a ballot title must contain “[a] caption of not more
than 15 words that reasonably identifies the subject matter
of the state measure.” A caption will reasonably identify the
subject matter of a measure if it describes the “actual major
effect” of the measure or, if there is more than one major
effect, all the major effects that can be described within the
word limit. See Lavey v. Kroger, 350 Or 559, 563, 258 P3d
1194 (2011). To identify an “actual major effect,” we consider
the “changes that the proposed measure would enact in the
Cite as 359 Or 1 (2016) 7
context of existing law.” Rasmussen v. Kroger, 350 Or 281,
285, 253 P3d 1031 (2011).
We have recognized that attempting to distill a com-
plicated, multifaceted measure into 15 words is often diffi-
cult, and sometimes impossible. That difficulty may require
a caption that uses more general terms in order to reason-
ably capture the universe of the measure’s major effects.
McCann/Harmon v. Rosenblum, 354 Or 701, 707, 320 P3d
548 (2014) (explaining that, “[a]t times, it may be neces-
sary to describe [the measure’s] effects generally”). Put dif-
ferently, specificity can lead to its own problems, such as a
caption that selects and identifies only some out of multiple
major effects, which in turn may “understate the scope of
the proposed measure’s subject matter.” Greenberg v. Myers,
340 Or 65, 69, 127 P3d 1192 (2006).
Both sets of petitioners raise essentially the same
challenge to the caption, although their specific arguments
differ. At bottom, both sets of petitioners argue that the cap-
tion is too narrow and focuses on only some of the measure’s
major effects, to the exclusion of other major effects. Gibson
views IP 69 as having four major effects.3 In her view, the
caption is “slanted” because it describes what she views as
the negative aspects of the measure without mentioning
what she sees as its positive aspects. Vaandering views IP 69
as having five major effects.4 She argues that the caption is
defective because it focuses on only two of those effects.
We agree that the caption fails to substantially
comply with the requirement that it reasonably identify the
3
Gibson identifies those effects as: (1) prohibiting payments in lieu of dues for
nonunion members; (2) relieving the union of the duty to represent all members
in a bargaining unit; (3) requiring employers to compensate nonunion employee
based on “employee’s individual education, experience, training, skills, and per-
formance”; and (4) prohibiting employers from compensating nonunion employees
based on a collective bargaining agreement.
4
Vaandering identifies those effects as: (1) requiring public employers to pro-
vide different wages, benefits, and other terms of employment for union and non-
union employees; (2) requiring employers to base employment terms for each non-
union employee on individualized criteria rather than the collective bargaining
agreement; (3) weakening PECBA’s anti-discrimination provisions and thereby
allowing employers to encourage or discourage union membership; (4) prohibit-
ing fair share agreements; and (5) prohibiting nonunion employees from “benefit-
ting” from union representation without sharing representation costs.
8 Vaandering v. Rosenblum
measure’s subject matter. The Attorney General’s caption
focuses on two aspects of the measure that, in some ways,
mirror each other: nonunion employees may not be com-
pensated based on a collective bargaining agreement and
unions have no obligation to represent nonunion employees.
However, a caption that mentions only those two aspects of
the measure fails to convey all the measure’s major effects.
IP 69 is not limited to a prohibition against non-
union employees being compensated based on the collec-
tive bargaining agreement and the corollary proposition
that unions would have no obligation to represent nonunion
employees. Rather, IP 69 would establish employment terms
(wages, benefits, and other terms of employment) differ-
ently for union and nonunion employees. The employment
terms for union employees would be based on the collec-
tive bargaining agreement while the employment terms for
nonunion employees would be based on an individualized
assessment of each “employee’s individual education, experi-
ence, training, skills, and performance.” IP 69 § 9(5). Under
IP 69, treating employees differently in terms of wages,
benefits, and conditions of employment because of their
union status would not give rise to an unfair labor practice.
Finally, unions would not be required to represent nonunion
employees, and the measure would prohibit requiring non-
union employees to make payments in lieu of dues.5
In our view, those changes are major effects of the
measure. We recognize that a caption cannot identify all
those effects completely in 15 words. Sometimes, the 15-word
limit will require trade-offs between breadth and detail. See
McCann/Harmon, 354 Or at 707. We think that the cap-
tion could have complied with the statutory requirement by
emphasizing the main effect of the measure (establishing
employment terms differently for union and nonunion pub-
lic employees), while identifying briefly the types of changes
that the measure would effect. For example, the caption
5
As discussed above, in providing that nonunion employees may not receive
benefits from a “labor organization’s bargaining, representation, or services with-
out sharing representation costs,” IP 69 leaves open the possibility that some
benefits may extend to nonunion employees from a union’s representation of its
members, which perhaps could trigger an obligation under IP 69 for nonunion
employees to bear their share of the representation costs of those benefits.
Cite as 359 Or 1 (2016) 9
could have said, “Establishes employment terms differently
for union, nonunion public employees; modifies bargaining,
representation, cost-sharing, anti-discrimination laws.”6 We
leave it to the Attorney General to decide whether another
caption better describes the major effects of IP 69. We agree,
however, that the caption, as presently drafted, conveys only
a few of those effects and must be modified.
We now turn to the “yes” and “no” result state-
ments. Both Gibson and Vaandering challenge the “yes”
result statement. A ballot title must include “[a] simple
and understandable” statement of no more than 25 words
that describes the result if the measure is approved. ORS
250.035(2)(b). A “yes” result statement “should describe the
most significant and immediate effects of the ballot initia-
tive for the general public.” McCann/Harmon, 354 Or at 707
(citation and internal quotation marks omitted).
The Attorney General certified the following “yes”
result statement:
“Result of ‘Yes’ Vote:  ‘Yes’ vote prohibits public employer
compensating non-union employee based on union contract;
public employee unions need not represent non-members;
limits charging representation fees to non-members.”
Both Gibson and Vaandering argue that the “yes” result
statement is underinclusive for the same reasons that the
caption is underinclusive. Vaandering argues that the “yes”
result statement focuses too narrowly on one aspect of the
measure—compensation for nonunion employees—when the
larger effect of the measure, which the “yes” result statement
does not mention, is that the measure authorizes different
employment terms for union and nonunion public employees.
As a corollary to her argument, Vaandering notes that the
measure would eliminate the current prohibition on public
employers’ “[d]iscriminat[ing] in regard to * * * any terms or
condition of employment for the purpose of encouraging or
6
The possible caption set out above is taken largely from one that Vaandering
suggested. While Vaandering had suggested a caption that would say “[r]equires
different employment terms,” the measure technically would not require dif-
ferent employment terms. It would require different methods for determining
employment terms for union and nonunion employees. The suggestion in text
reflects that distinction.
10 Vaandering v. Rosenblum
discouraging membership in an employee organization.” See
ORS 243.672(1)(c).7
Both of Vaandering’s points have merit. An import-
ant result of IP 69 would be to divide employees within a
bargaining unit into two groups—union and nonunion
employees—and establish the terms of employment differ-
ently for each group. A related result would be that provid-
ing different terms of employment to union and nonunion
employees will no longer give rise to an unlawful employ-
ment practice. The “yes” result statement fails to convey
those important results and must be modified.
Gibson faults the “yes” result statement for not men-
tioning that the terms of employment for nonunion employ-
ees would be based on an assessment of each employee’s
“individual education, experience, training, skills, and per-
formance.” IP 69 § 9(5). We agree with Gibson that the “yes”
vote statement does not reflect how the terms of employment
for nonunion employees would be established, but we are not
persuaded that it must explain that point specifically. The
Attorney General reasonably could reserve a more specific
explanation for the summary.
Only Vaandering challenges the “no” result state-
ment. That statement must be “[a] simple and understand-
able” statement of no more than 25 words that describes
the results if the measure is rejected; in other words, the
“no” result statement should describe the status quo. ORS
250.035(2)(c). The certified “no” result statement provides:
“Result of ‘No’ Vote: ‘No’ vote retains current law: unions
represent all public employees in organized bargaining
unit; member, non-member compensation based on union
contract; mandatory non-member fees permissible.”
7
Vaandering also argues that the clause in the “yes” result statement—
that “public employee unions need not represent non-members”—is inaccurate
because many of the conditions over which public unions bargain will affect non-
members equally with members. Given the practicalities of collective bargaining
and employee compensation plans, Vaandering may be correct. However, IP 69
provides that ORS 243.672(2)(a) does “not require a labor organization to rep-
resent, provide services to, or bargain on behalf of [nonunion] employees.” IP 69
§ 9(2)(a). We cannot say that the Attorney General’s statement does not accu-
rately reflect that provision.
Cite as 359 Or 1 (2016) 11
Vaandering argues that the “no” result statement is defi-
cient in three respects. She argues that: (1) it focuses on
compensation, to the exclusion of other terms of employment;
(2) it fails to explain that the fees that unions can recover
from nonmembers are limited to representation costs that
the union is legally obligated to provide; and (3) it fails to
explain that it is currently unlawful to provide different
employment terms based on union membership.
We agree with each of Vaandering’s points. The
measure is not limited to compensation but affects all
terms of employment. Additionally, the phrase “mandatory
non-member fees permissible” fails to state that only certain
types of fees may be collected from nonunion employees. See
ORS 243.650(18) (defining “payment-in-lieu-of-dues” as “an
assessment to defray the cost for services by the exclusive
representative in negotiations and contract administration
of [nonunion employees]”). Finally, an important aspect of
the current law is that it prohibits public employers from
“[d]iscriminat[ing] in regard to * * * any terms or condi-
tions of employment for the purpose of encouraging or dis-
couraging membership in an employee organization.” ORS
243.672(1)(c). Because IP 69 authorizes different treatment
of union and nonunion employees in setting the terms of
employment, it is important, in describing the current law,
to identify the aspect of the law that would remain in effect
if the measure is rejected.
Finally, we turn to the summary. ORS 250.035(2)(d)
requires that the ballot title contain “[a] concise and impar-
tial statement of not more than 125 words summarizing
the state measure and its major effect.” Gibson argues that
the summary fails to mention that, under IP 69, the terms
of employment for nonunion employees must be based on
each employee’s “individual education, experience, train-
ing, skills, and performance.” IP 69 §9(5). We agree that
the summary should mention that IP 69 would require pub-
lic employers to undertake an individualized assessment
of each nonunion employee’s qualifications in setting that
employee’s terms of employment.
Vaandering also challenges the summary, argu-
ing that it fails to comply with ORS 250.035(2)(d) in five
12 Vaandering v. Rosenblum
respects. First, Vaandering argues that the summary’s first
sentence is inaccurate when it states that “[c]urrently, pub-
lic employees in a bargaining unit may be represented by a
union.” Vaandering contends that a public employee cannot
be “in a bargaining unit” unless the union has been rec-
ognized or certified as the employees’ exclusive representa-
tive. Once a union has been recognized or certified as the
employees’ exclusive representative, all the employees in the
bargaining unit will be represented by the union. See ORS
243.682. Presumably, the Attorney General intended to con-
vey the idea that not every employee within a recognized
bargaining unit must become a union member. However, we
agree with Vaandering that it is inaccurate to imply that,
under PECBA, a union need not represent all the employees
within a recognized or certified bargaining unit. See Conroy
v. Rosenblum, 358 Or 807, 816-17, ___ P3d ___ (2016) (rec-
ognizing that union must represent all employees in a bar-
gaining unit).
Second, Vaandering urges that the summary’s
description of current anti-discrimination provisions is too
narrow. The summary states: “Compensation differences/
conduct to encourage/discourage union membership pro-
hibited.” Vaandering argues that current law prohibits
treating union and nonunion employees differently based
on their union membership, without regard to whether the
different treatment is intended to encourage or discourage
union membership. In support of her argument, Vaandering
cites ORS 243.672(1)(a) and (c), and a Court of Appeals deci-
sion interpreting ORS 243.672(1)(a) and (e). See Wy’East
Education Assoc. v. Oregon Trail School, 244 Or App 194,
207-10, 260 P3d 626 (2011).8
Vaandering’s argument assumes that providing dif-
ferent terms of employment to union and nonunion members
would be an unfair labor practice under ORS 243.672(1)(a),
and that the Court of Appeals’ analysis in Wy’East is correct.
8
ORS 243.672(1)(a) makes it an unfair labor practice for a public employer
to “[i]nterfere with, restrain or coerce employees in or because of the exercise of
rights guaranteed in ORS 243.662.” ORS 243.672(1)(c) makes it an unfair labor
practice for a public employer to “[d]iscriminate in regard to * * * any terms or
condition of employment for the purpose of encouraging or discouraging [union]
membership.”
Cite as 359 Or 1 (2016) 13
We express no opinion on whether Vaandering’s argument
under ORS 243.672(1)(a) is correct. However, for us to
resolve the issue that she raises, we would have to decide
the relationship between the specific unfair labor practice
set out in ORS 243.672(1)(c) and the more general unfair
labor practice set out in ORS 243.672(1)(a). We also would
have to decide whether the Court of Appeals’ decision inter-
preting ORS 643.672(1)(a) is correct. With the issue in that
posture, we cannot say that the Attorney General did not
substantially comply with her obligation to summarize the
measure and its major effect by focusing only on the more
specific unfair labor practice described in ORS 243.672(1)(c).
Cf. McCann v. Rosenblum, 355 Or 256, 262, 323 P3d 955
(2014) (explaining that “a ballot title challenge ordinarily
is not the appropriate forum for deciding legal issues that
require interpretation of a proposed measure”).
Third, Vaandering argues that, as with the caption
and “yes” result statement, the summary’s focus on “com-
pensation” is too narrow and potentially misleading. We
agree that the effects of the measure are not limited to com-
pensation but extend to other terms of employment.
Fourth, Vaandering contends that the summary
inaccurately describes a union’s duty of representation
under IP 69 and its ability to collect fair-share fees. The
summary provides: “Measure removes requirement that
public employee unions represent non-members; prohib-
its requiring non-members to pay costs of representation
unless they benefit from representation.” As we understand
Vaandering’s argument, she contends that the measure
is ambiguous and that the summary goes too far, at this
stage of the process, in attempting to resolve that ambigu-
ity. She notes that the measure expressly prohibits public
sector unions from collecting any money from nonmembers,
and it prohibits nonmembers from “benefit[ting]” from labor
representation “without sharing representation costs.” See
IP 69 § 4. In her view, it is unclear how unions can recover
representation costs from nonmembers if they may not col-
lect those costs. Alternatively and perhaps additionally,
she contends that it is unclear what IP 69 means in using
the term “benefit.” She argues that, given that ambiguity,
14 Vaandering v. Rosenblum
the summary should not imply that unions can “requir[e]
non-members to pay costs of representation [if] they benefit
from representation.”
We explained in Wolf v. Myers, 343 Or 494, 501, 173
P3d 812 (2007), that “the preparation of a ballot title neces-
sarily requires some level of interpretation of the measure.”
However, we were also careful to explain that,
“[w]hen confronted with the narrower problem of the
meaning of a specific provision in a proposed measure that
is subject to two or more plausible interpretations, we ordi-
narily have declined to choose (or to permit the Attorney
General to choose) one of those interpretations for purposes
of the ballot title.”
Id. at 501. In this case, the relationship between subsections
(4)(1) and (4)(2) is, at best, ambiguous. However, we think
the Attorney General’s summary substantially complies
with the requirement that it capture that ambiguity.
As noted, the summary states that the measure
“prohibits requiring non-members to pay costs of represen-
tation unless they benefit from representation.” By stating
the dependent “unless” clause as an exception to the prohi-
bition on requiring nonmembers to pay representation costs,
the summary does not express an opinion on how a union
could collect fees from nonunion members if they benefit
from representation. At the same time, the summary cap-
tures the suggestion in the measure that the prohibition on
recovering fees from nonunion employees may not apply if a
union’s representation benefits those employees. That aspect
of the summary substantially complies with the Attorney
General’s obligation to describe the measure accurately.9
Finally, we agree with Vaandering that the sum-
mary should mention a significant effect of the measure,
which is that differences in terms of employment for union
9
The Attorney General could have chosen to highlight the tension between
those two aspects of IP 69 by juxtaposing them. She could have said, for example:
“Prohibits requiring compulsory payments by nonmembers; nonmembers may
not benefit from representation without sharing costs.” We cannot say, however,
that that part of the summary, as currently written, fails to substantially comply
with the Attorney General’s statutory obligation to summarize the measure.
Cite as 359 Or 1 (2016) 15
and nonunion employees will not give rise to a unlawful
labor practice.
For the reasons stated above, the caption, the “yes”
and “no” vote result statements, and the summary should be
modified.
Ballot title referred to Attorney General for
modification.