Conroy v. Rosenblum

No. 17 March 24, 2016 807
IN THE SUPREME COURT OF THE
STATE OF OREGON
Heather CONROY;
Margaret (“Maggie”) Neel, an individual elector;
Mike Forest, an individual elector;
Hanna Vaandering; Trent Lutz;
and Richard Schwarz,
Petitioners,
v.
Ellen ROSENBLUM,
Attorney General, State of Oregon,
Respondent.
(SC S063735)
En Banc
On petition to review ballot title filed December 15, 2015;
considered and under advisement February 9, 2016.
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter,
P.C., Portland, filed the petition and reply for petitioner
Heather Conroy.
Nathan R. Rietmann, Salem, filed the petition and reply
for petitioners Margaret (“Maggie”) Neel and Mike Forest.
Aruna A. Masih, Bennett, Hartman, Morris & Kaplan
LLP, Portland, filed the petition and reply for petitioners
Hanna Vaandering, Trent Lutz, and Richard Schwarz.
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.
WALTERS, J.
The ballot title is referred to the Attorney General for
modification.
Case Summary: Petitioners petitioned for review of the Attorney General’s
certified ballot title in Initiative Petition 62. The court held that (1) the certified
caption and the “yes” and “no” result statements fail to inform voters that, under
808 Conroy v. Rosenblum
IP 62, a union would no longer have authority to set its own membership require-
ments and to defray its costs through its dues structure; (2) neither the caption,
the result statements, nor the summary adequately informs voters of the poten-
tial free-rider effect that the measure would create; and (3) the first sentence of
the summary, stating that “[c]urrently, public employees in a bargaining unit
may be represented by a union,” is incorrect. The court agreed with the Attorney
General with respect to petitioners’ challenge to the phrase “limited represen-
tation/bargaining activities” as used in the caption and result statements. The
court held that that phrase is not so unclear or misleading that it violates the
requirements of ORS 250.035.
The ballot title is referred to the Attorney General for modification.
Cite as 358 Or 807 (2016) 809
WALTERS, J.
Petitioners seek review of the Attorney General’s
certified ballot title for Initiative Petition 62 (2016) (IP 62),
arguing that the ballot title does not satisfy the require-
ments of ORS 250.035. We review a certified ballot title to
determine whether it substantially complies with those stat-
utory requirements. See ORS 250.085(5) (stating standard
of review). For the reasons that follow, we refer the ballot
title to the Attorney General for modification.
IP 62 applies to public employees (employees) and
public employee labor organizations (unions). If adopted
by the voters, IP 62 would amend several provisions of
the Oregon Public Employee Collective Bargaining Act
(PECBA). The Attorney General certified the following bal-
lot title for IP 62:
“Public employee union may require dues/fees
only for limited representation/bargaining
activities; authorizes lawsuits
“Result of ‘Yes’ Vote:  ‘Yes’ vote prohibits public
employee union from requiring dues/fees for union activ-
ities unrelated to limited representation/bargaining;
employee may authorize additional payments. Authorizes
lawsuits.
“Result of ‘No’ Vote:  ‘No’ vote retains ability of pub-
lic employee unions to require dues/fees for all union rep-
resentation/bargaining activities, require member dues for
other union activities.
“Summary:  Currently, public employees in a bar-
gaining unit may be represented by a union. Union may
require dues from its members to fund expenditures
related to all bargaining/representation and other union
activities. Collective bargaining agreements can require
represented nonmembers to pay fees, but nonmembers can-
not be required to pay fees for union activities unrelated
to bargaining/representation. Measure prohibits requir-
ing any dues/fees that fund activities other than union
bargaining/representation concerning ‘employment rela-
tions’ (defined). ‘Employment relations’ includes all subjects
on which unions, employers must bargain, but not all sub-
jects on which they are allowed to bargain. Measure permits
810 Conroy v. Rosenblum
union to separately collect itemized payments for other rep-
resentation/bargaining activities, and other union activi-
ties from employee who authorizes additional amounts.
Authorizes enforcement lawsuits. Other provisions.”
Three sets of petitioners challenge the caption,
result statements, and summary of the certified ballot title.
First, petitioners Vaandering, Lutz, and Schwarz assert
that the ballot title fails to adequately describe the changes
that the measure makes to the terms of union member-
ship. Petitioners Neel and Forest challenge the ballot title
on similar grounds. Second, petitioners Vaandering, Lutz,
and Schwarz assert that the ballot title fails to disclose
that IP 62 would permit employees to receive the benefit
of union representation without paying all the costs of that
representation. Petitioner Conroy joins in that challenge,
while petitioners Neel and Forest take the opposing view.
Third, petitioners Neel and Forest object to the ballot title
because, in their view, it wrongly uses the phrase “limited
representation/bargaining activities,” making the cap-
tion confusing, misleading, and inaccurate. Finally, peti-
tioners Neel and Forest contend that the ballot title sum-
mary fails to inform voters of Oregon’s system of exclusive
representation.1
We begin with the first of those challenges and
the requirements for the caption. As we said in Towers v.
Rosenblum, 354 Or 125, 129, 310 P3d 1136 (2013):
“ORS 250.035(2)(a) requires that a ballot title for a pro-
posed state measure contain a caption of not more than 15
words that reasonably identifies the ‘subject matter’ of the
proposed measure. The caption is the ‘headline’ of the bal-
lot title; it ‘provides the context for the reader’s consider-
ation of the other information in the ballot title’ and must
describe the proposed measure’s subject matter accurately.
Greene v. Kulongoski, 322 Or 169, 175, 903 P2d 366 (1995).
For the purposes of this court’s review, the ‘subject matter’
of a ballot title is ‘the “actual major effect” of a measure
or, if the measure has more than one major effect, all such
effects (to the limit of the available words).’ ” Whitsett v.
Kroger, 348 Or 243, 247, 230 P3d 545 (2010).”
1
Petitioners also advance additional objections, which we reject without
discussion.
Cite as 358 Or 807 (2016) 811
And, as we said in Kain/Waller v. Myers, 337 Or 36, 41, 93
P3d 62 (2004):
“To determine the subject matter of a proposed mea-
sure, we first examine its words and the changes, if any,
that the proposed measure would enact in the context of
existing law. We then examine the words of the caption to
determine whether they reasonably identify the proposed
measure’s subject matter. See Phillips v. Myers, 325 Or 221,
225-26, 936 P2d 964 (1997) (illustrating principle).”
Thus, the first step in our analysis is to determine
the changes, if any, that IP 62 would make to PECBA. As
currently written, PECBA does not set the terms and con-
ditions of union membership, nor does it prescribe or limit
the amounts that unions may charge members for repre-
sentation, collective bargaining, or other union activities.
Therefore, a union may charge dues that enable it to defray
the cost of political and ideological activity and bargaining
on permissive as well as mandatory subjects of bargaining.
PECBA does not require all members of a bargaining unit to
join a union, but it nevertheless requires the union to repre-
sent all bargaining unit employees, including nonmembers.
ORS 243.666; Sizemore/Terhune v. Myers, 342 Or 578, 584,
157 P3d 188 (2007). Because nonmembers share in the bene-
fits of union representation, PECBA permits unions to nego-
tiate “fair-share agreements” with public employers. ORS
243.650(10). Fair-share agreements may require nonmem-
bers to make “payment-in-lieu-of-dues.” Id.; ORS 243.672(1)(c);
Novick/Bosak v. Myers, 333 Or 18, 26, 36 P3d 464 (2001).
“Payment-in-lieu-of dues” is “an assessment to defray the
cost for services by the exclusive representative in negotia-
tions and contract administration.” ORS 243.650(18).
Under the First Amendment to the United States
Constitution, payment-in-lieu-of-dues cannot defray union
costs that are not germane to, or supportive of, collective
bargaining and contract enforcement. Teachers v. Hudson,
475 U.S. 292, 305-07, 106 S. Ct. 1066 (1986). Thus, such pay-
ments cannot defray the costs of a union’s political or ideo-
logical activity. Abood v. Detroit Board of Education, 431 U.S.
209, 235, 97 S. Ct. 1782 (1977). Payment-in-lieu-of-dues may,
however, defray expenses beyond those incurred in bargain-
ing on mandatory subjects of bargaining. Compare ORS
812 Conroy v. Rosenblum
243.650(18) (defining “payment-in-lieu-of-dues”) with ORS
243.650(7) (defining “employment relations” and setting out
mandatory and permissive subjects of bargaining).
As noted, petitioners Vaandering, Lutz, and
Schwarz contend that IP 62 makes significant changes to
that statutory scheme. The first challenge that they assert
is that IP 62 changes how unions conduct their internal
affairs and design their dues structures, and that the ballot
title caption must describe those changes. Petitioners Neel
and Forest also contend that one of the major effects of IP 62
is to prohibit unions from “requiring employees to pay dues
as a condition of membership that are used for political,
ideological, and other non-collective bargaining purposes.”
(Emphasis in original.) Petitioners Neel and Forest point
out that, unlike the draft ballot title that previously circu-
lated for public comment, the certified ballot title removes
the word “member” from the caption. That is wrong, those
petitioners assert, because the subject matter of IP 62 is the
“dues” that “members” are required to pay to join a union.
IP 62, they explain, is not a measure about nonmembers.
The Attorney General does not dispute that IP 62
makes changes in the terms of union membership and that
those changes are one of the subjects of IP 62. Instead, she
argues that the certified ballot title adequately captures
that subject by using the word “require” in the phrase “may
require dues/fees only for limited representation/bargaining
activities.”
That argument misapprehends both the caption’s
purpose—to describe the changes that the measure would
make to existing law—and the significance of the changes
that IP 62 would make. Currently, unions set their own
membership terms and dues structures. There are consti-
tutional and statutory limits on amounts that nonmembers
may be required to pay for union activities, but there are
no such limits on the dues that members may be required
to pay. IP 62 would flip that arrangement, and, instead of
imposing limits on payments by nonmembers, would impose
limits on dues paid by union members. IP 62 § 3(2)(a) and
(b); § 5(1). Instead of permitting unions to charge dues to
defray any and all union expenses, the measure would limit
Cite as 358 Or 807 (2016) 813
dues to an amount necessary and reasonable to defray the
costs of bargaining on matters concerning “employment rela-
tions.” IP 62 § (3)(2)(b). The measure would permit a union
to collect additional revenue to defray other expenses only
by obtaining an employee’s affirmative written consent to
make such payments on a form prescribed by statute. IP 62
§ 6(1)(c); § 6(3). The certified caption does not inform voters
that, under IP 62, a union would no longer have authority to
set its own membership requirements and to defray its costs
through its dues structure. The caption’s use of the word
“required” does not describe those changes and, therefore,
does not substantially comply with ORS 250.035.
Petitioners also object to the “yes” and “no” result
statements on that same basis, and the Attorney General
responds that the result statements are sufficient for the
same reasons that the caption is sufficient. For the reasons
stated, we agree with petitioners. IP 62 makes a significant
change in the terms of union membership and the result
statements should address that change.
We turn next to the second challenge asserted by
petitioners Vaandering, Lutz, and Schwarz, a challenge in
which petitioner Conroy joins. Those four petitioners con-
tend that, because the dues limitation in IP 62 precludes
unions from recovering, in dues, the expenses of permissive
bargaining, and because IP 62 does not require employees
to pay those costs, IP 62 has a “free-rider” effect that must
be described in the caption, the result statements, and the
summary. Petitioners reason that, under IP 62, a union
would be precluded from including in its dues structure not
only the costs of its political or ideological activity but also
costs not necessarily or reasonably incurred for the purpose
of representation and collective bargaining on matters con-
cerning “employment relations.” IP 62 § 3(2)(b). The term
“employment relations” is a term that includes certain man-
datory, but not other permissive, subjects of bargaining. ORS
243.650(7). Therefore, petitioners reason, employees would
not be required to pay, as dues, the costs of union bargaining
on permissive subjects and so they would receive the ben-
efit of such bargaining without paying for it. In addition,
petitioners contend, IP 62 would permit union members to
814 Conroy v. Rosenblum
cancel membership and discontinue paying dues at any
time. IP 62 § 3(2)(c). Therefore, they reason, employees who
exercise that right also would obtain benefits that the union
had previously negotiated without being required to pay the
costs of those efforts. Petitioners contend that those “free-
rider” effects must be described.
The Attorney General agrees that IP 62 would limit
dues to amounts necessary to defray the cost of bargaining on
mandatory subjects and that the ballot title must so inform
voters. Accordingly, the certified caption and result state-
ments use the phrase “limited representation/bargaining
activities,” and the summary explains that IP 62 prohibits
requiring any dues that fund “activities other than union
bargaining/representation concerning ‘employment rela-
tions’ (defined)” and that “ ‘[e]mployment relations’ includes
all subjects on which unions, employers must bargain, but
not all subjects on which they are allowed to bargain.” The
Attorney General also acknowledges that the effect of that
limitation is that employees who pay only required base-
line dues may obtain contractual benefits for which unions
bargain without being required to pay the cost of obtain-
ing those benefits. However, the Attorney General contends,
IP 62 would not necessarily have that effect. The Attorney
General argues that a union’s duty to represent bargaining
unit members is co-extensive with the dues limitation and
does not require a union to bargain about permissive sub-
jects. Compare ORS 243.666(1) (making union the exclusive
representative of employees with respect to “employment
relations”) with IP 62 § 3(2)(b) (limiting dues to costs of bar-
gaining on “employment relations”). Therefore, the Attorney
General reasons, a union is not required to engage in bar-
gaining on permissive subjects, and whether employees will
obtain benefits without paying for them is mere speculation.
With respect to the provisions of IP 62 permitting a
union member to discontinue paying dues at any time, the
Attorney General responds, “[I]t appears that collective bar-
gaining agreements could still require nonmember employ-
ees to make payments reflecting all of the work that unions
are legally required to perform for them.” Even if union mem-
bers discontinue dues payments, the Attorney General rea-
sons, they may be required to make payment-in-lieu-of-dues
Cite as 358 Or 807 (2016) 815
that will compensate the union for its legally required work.
IP 62 would not, the Attorney General asserts, excuse a
nonmember from making payments for such work.
Petitioners reply that IP 62 would supplant fair-
share agreements and payment-in-lieu-of-dues by imposing
limits on dues instead. And, even if not, petitioners argue,
the measure would, as explained, still create free-riders.
Neither member employees who pay baseline membership
dues nor nonmember employees who make payment-in-
lieu-of-dues would be required to pay the cost of a union’s
bargaining on permissive subjects. The only employees who
would pay those costs would be those who make voluntary
payments to the union. Others would obtain the benefit of
bargaining on those subjects without paying for it. Thus,
petitioners argue, even if fair-share agreements continue to
be viable, IP 62 would have a free-rider effect.
In reviewing a ballot title, it is not our task to defin-
itively interpret the proposed measure. See ORS 250.085(5)
(providing that this court reviews ballot titles for substan-
tial compliance with the requirements of ORS 250.035).
Rather, our task is to ensure that the ballot title accurately
informs voters about the subject and effect of the measure.
When the legal effect of a measure is unclear, we will not
speculate about it. Pelikan/Tauman v. Myers, 342 Or 383,
389, 153 P3d 117 (2007); see also Wolf v. Myers, 343 Or 494,
500, 173 P3d 812 (2007). Although we acknowledge that the
extent to which IP 62 would permit free-riders is uncer-
tain, we need not speculate to conclude that IP 62 limits the
costs that a union can require employees to pay for union
representation. Under IP 62, if a union were to bargain on
permissive subjects and obtain contractual benefits, those
benefits would be available to all bargaining unit members,
but the union would be prohibited from recovering those
expenses as required dues. An employee who paid only
baseline union dues would obtain those contractual benefits
for free. The same would be true for employees who made
payment-in-lieu-of-dues, if such payments remained via-
ble under the measure, an issue that we do not decide. The
Attorney General may be correct that a union has no duty to
bargain on permissive subjects, but a union also has no duty
to bargain for any particular contractual benefit, whether
816 Conroy v. Rosenblum
the subject is mandatory or permissive. However, when a
union does bargain for a benefit that the union does obtain,
that benefit must be made available to all employees in the
bargaining unit, and a measure that precludes a union from
requiring payment of the costs that the union incurs in bar-
gaining for such a benefit creates a potential free-rider effect
that must be disclosed to voters. See Sizemore/Terhune, 342
Or at 585 (so holding for measure that would permit non-
members to receive representation services without sharing
cost). We agree with petitioners Vaandering, Lutz, Schwarz,
and Conroy that the ballot title for IP 62 must inform voters
that, under that measure, employees need not share in a
union’s total representation costs. We also agree with those
petitioners that neither the caption, the result statements,
nor the summary adequately informs voters of that major
effect and therefore each must be modified.
The next issue for our consideration is the challenge
advanced by petitioners Neal and Forest that the Attorney
General’s use of the phrase “limited representation/
bargaining activities” is unclear. Petitioners argue that the
phrase is not legally defined and is not used in general par-
lance, and that voters will not understand it. The Attorney
General is apparently using that phrase to refer to the fact
that the measure does not permit unions to include the costs
of bargaining for political and ideological purposes and on
permissive subjects in their dues structures. Although the
summary includes a fuller discussion of those concepts and
thereby clarifies the challenged phrase, petitioners contend
that the caption and result statements do not meet statutory
requirements. We understand petitioner’s concerns, but we
also are aware that it is difficult to explain complex concepts
within the word limitations imposed by ORS 250.035(2)(a)
and (b). In this instance, we agree with the Attorney General
that the challenged phrase is not so unclear or misleading
that it violates the requirements of ORS 250.035.
Finally, we consider the challenge of petitioners Neel
and Forest directed to the ballot title summary. Petitioners
note that the first sentence of the summary provides that
“[c]urrently, public employees in a bargaining unit may
be represented by a union.” That is misleading, petition-
ers argue, because, although employees are not required to
Cite as 358 Or 807 (2016) 817
form a union, a union which has been certified or recognized
must represent all employees in the bargaining unit. ORS
243.666. Thus, employees within a bargaining unit must—
not may—be represented by the union. We agree. The chal-
lenged phrase is incorrect, violates ORS 250.035, and must
be modified.
The ballot title is referred to the Attorney General
for modification.