I N I T I A T I V E P E T I T I O N

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1 OFFICE OF THE SECRETARY OF STATE DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE ELECTIONS DIVISION STEPHEN N. TROUT DIRECTOR 255 CAPITOL STREET NE, SUITE 501 SALEM, OREGON (503) TO: FROM: I N I T I A T I V E P E T I T I O N All Interested Parties Lydia Plukchi, Compliance Specialist DATE: December 1, 2017 SUBJECT: Initiative Petition Certified Ballot Title The Elections Division received a certified ballot title from the Attorney General on December 1, 2017, for Initiative Petition , proposed for the November 6, 2018, General Election. Caption Establishes employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, anti-discrimination laws Chief Petitioners Glenn J. Schworak 1260 Woodacre Dr. SE Salem, OR James E. Mitchell 1985 Engel Ct. NW Salem, OR Appeal Period Any registered voter, who submitted timely written comments on the draft ballot title and is dissatisfied with the certified ballot title issued by the Attorney General, may petition the Oregon Supreme Court to review the ballot title. If a registered voter petitions the Supreme Court to review the ballot title, the voter must notify the Elections Division by completing and filing form SEL 324 Notice of Ballot Title Challenge. If this notice is not timely filed, the petition to the Supreme Court may be dismissed. Appeal Due December 15, 2017 How to Submit Appeal Refer to Oregon Rules of Appellate Procedure, Rule or contact the Oregon Supreme Court for more information at Notice Due How to Submit Notice Where to Submit Notice 1 st business day after Scan and irrlistnotifier.sos@state.or.us appeal filed with Fax Supreme Court, 5 pm Mail 255 Capitol St NE Ste 501, Salem OR More information, including the certified ballot title and the Secretary of State's determination that the proposed initiative petition is in compliance with the procedural requirements established in the Oregon Constitution for initiative petitions, is contained in the IRR Database available at

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3 ELLEN F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy Attorney General DEPARTMENT OF JUSTICE APPELLATE DIVISION December 1, 2017 Stephen N. Trout Director, Elections Division Office of the Secretary of State 255 Capitol St. NE, Ste. 501 Salem, OR Re: Proposed Initiative Petition Establishes Employment Terms Differently for Union, Nonunion Public Employees; Modifies Bargaining, Representation, Cost-Sharing, Anti- Discrimination Laws. DOJ File #BT-34-17; Elections Division # Dear Mr. Trout: We have received the comments submitted in response to the draft ballot title for prospective Initiative Petition #34 (2018). Comments were submitted by Hon. Secretary Dennis Richardson, on his own behalf; by Ms. Jill Gibson, on behalf of chief petitioners Mr. Glenn Schworak and Mr. James Mitchell; by Ms. Margaret Olney on behalf of Ms. Melissa Unger, and by Mr. Richard Schwarz, on his own behalf. This letter summarizes the comments we received, our responses to those comments, and the reasons we did not make changes to the ballot title in light of the submitted comments. ORAP 11.30(6) requires this letter to be included in the record in the event that the Oregon Supreme Court reviews the ballot title. We also enclose a copy of the certified ballot title. Secretary Richardson notes that, [s]ince the Oregon Supreme Court approved this ballot title for the similar IP 69 in 2016, it is appropriate to reuse the same ballot title for IP 34. We appreciate that Oregon s chief elections officer took the time to review and comment on our draft. Chief Petitioners Mr. Schworak and Mr. Mitchell also note that the Oregon Supreme Court certified an identical ballot title for IP 69, and write that the same ballot title should be certified for IP 34. A. Procedural constitutional requirements Mr. Schwarz asserts that the proposed measure fails to adhere to all applicable procedural constitutional requirements. Those issues are beyond the scope of the ballot title drafting 1162 Court Street NE, Salem, OR Telephone: (503) Fax: (503) TTY: (800)

4 Page 2 process. See OAR (providing for separate review process by Secretary of State to determine whether measure complies with constitutional procedural requirements for proposed initiative measures). Accordingly, we do not address those issues here. B. The Caption The ballot title must include [a] caption of not more than 15 words that reasonably identifies the subject matter of the state measure. ORS (2)(a). The subject matter 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). Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011). To identify the actual major effect of a measure, the Attorney General must consider the changes that the proposed measure would enact in the context of existing law. Rasmussen v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). The draft caption provides: Establishes employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, anti-discrimination laws Mr. Schwarz objects that the draft caption is deficient because it fails to correctly identify that IP 34 prohibits fair share; limits collective bargaining rights to labor organization members only; segregates non-member public employees into new independent public employee status without collective bargaining rights; [and] requires different, non-comparable wages, benefits and terms and conditions for independent employees. However, the Oregon Supreme Court has already addressed the major effects of IP 34 and how to address them in the caption when it reviewed IP 69 (2016) which is identical to IP 34 in Vaandering v. Rosenblum, 359 Or 1, 371 P3d 1194 (2016). There, the court noted that the major effects of IP 69 included a prohibition against nonunion employees being compensated based on the collective bargaining agreement and the corollary proposition that unions would have no obligation to represent nonunion employees, the establishment of different employment terms for union and nonunion members, provided that such differences based on union status would not give rise to an unfair labor practice, provided that unions would not be required to represent nonunion employees, and provided that the measure would prohibit requiring nonunion employees to make payments in lieu of dues. Vaandering, 359 Or at 8. The court noted that a 15-word caption could not identify all of those effects, but concluded that the caption could have complied with ORS (2)(a) by emphasizing the main effect of the measure (establishing employment terms differently for union and nonunion public employees), while identifying briefly the types of changes the measure would effect. Id. The court then suggested the above caption, which the Attorney General adopted, and the court certified. Consistent with that opinion, the Attorney General declines to modify the draft caption. We therefore certify the following caption: Establishes employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, anti-discrimination laws

5 Page 3 C. The Yes Vote Result Statement We next consider the draft yes vote result statement. A ballot title must include [a] simple and understandable statement of not more than 25 words that describes the result if the state measure is approved. ORS (2)(b). The yes vote result statement should identify the most significant and immediate effects of the measure. Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004). The draft yes vote result statement provides: Result of Yes Vote: Yes vote requires public employer to establish employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, and anti-discrimination laws. Mr. Schwarz writes that modifies * * * cost-sharing is incorrect because cost-sharing is prohibited, not simply modified. He also contends that modifies bargaining, representation vastly understates the result of a yes vote because collective bargaining and representation are strictly limited, not simply modified. With respect, the phrase, in context, sufficiently identifies the result if the measure is approved. That is, the yes vote result statement notifies voters of an important result of IP 34, which is to divide employees within a bargaining unit into two groups, union and nonunion, and establishes the terms of employment differently for each group. Further, the phrase modifies bargaining, representation, cost-sharing, and anti-discrimination laws notifies voters that the measure changes how such differing treatment will be regarded by employment laws. Furthermore, as noted above, the Oregon Supreme Court certified an identical yes result statement for IP 69 (2016), and we conclude that the same statement is appropriate here. We therefore certify the following yes vote result statement: Result of Yes Vote: Yes vote requires public employer to establish employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, and anti-discrimination laws. D. The No Vote Result Statement We next consider the draft no vote result statement. A ballot title must include [a] simple and understandable statement of not more than 25 words that describes the result if the state measure is rejected. ORS (2)(c). The no vote result statement should address[] the substance of current law on the subject matter of the proposed measure and summarize [ ] the current law accurately. McCann v. Rosenblum, 354 Or 701, 707, 320 P3d 548 (2014) (quoting Novick/Crew, 337 Or at 577) (emphasis added in Novick/Crew). The draft no vote result statement provides:

6 Page 4 Result of No Vote: No vote retains law requiring identical employment terms for union, nonunion public employees, requiring unions represent nonmembers, allowing mandatory nonmember fees covering bargaining/representation costs. Ms. Unger writes that, though it meets the statutory requirements, the draft no vote result statement would be clearer if it used the phrase prohibits different employment terms based on union membership. That is so, she writes, because union and nonunion public employees may have different employment terms for reasons unrelated to union status, such as job classification. She also writes that the phrase allow[s] mandatory nonmember fees covering bargaining/representation costs obscures the fact that these fees are a creature of contract, and they are intended to cover representation costs that the union is obligated to provide. Mr. Schwarz objects that the no vote result statement is misleading because current law does not require identical employment terms, though he notes that a public employer must take care, though, when jobs are identical with the one covered and the other not covered by a collective bargaining agreement in the case of protected classes of employees. We agree that the first clause of the draft no vote result statement should be modified to make it clearer what current law provides. However, we decline to modify the third clause, because allowing mandatory nonmember fees covering bargaining/representation costs adequately notifies voters that current law allows public unions to collect fees from nonunion employees for representation costs the union is obligated to provide. Moreover, the immediately preceding phrase, requiring unions to represent nonmembers, makes it clear that the mandatory nonmember fees are fees for representation that the union is required to provide. Finally, an accurate description of the type of contract Ms. Unger refers to, that is, a contract between the union and the employer, rather than the union and non-members, would take too many words to fit into the 25 word limit. We therefore certify the following no vote result statement: Result of No Vote: No vote retains law prohibiting different employment terms based on union membership status, requiring unions represent nonmembers, allowing mandatory nonmember fees covering bargaining/representation costs. E. The Summary We next consider the draft summary. A ballot title must include [a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect. ORS (2)(d). The purpose of a ballot title s summary is to give voters enough information to understand what will happen if the initiative is adopted. McCann, 354 Or at 708. The draft summary provides: Summary: Currently, recognized/certified public employee unions must represent (in negotiations, contract enforcement) all public employees in a bargaining unit. Union membership cannot be required as condition of public employment, but collective bargaining agreements can require nonmembers to share costs of legally-

7 Page 5 required union representation. Employment term differences/conduct to encourage/ discourage union membership prohibited. Measure prohibits public employer from setting nonmember s employment terms by union contract; must individually assess nonmember s qualifications in setting terms. Measure provides that differences in member/nonmember employment terms are not unlawful labor practice. Prohibits requiring compulsory payments by nonmembers; nonmembers may not benefit from representation without sharing costs; union members must renew membership annually. Measure applies to new/renewed/extended contracts entered into after effective date of measure. Other provisions. Mr. Schwarz writes that the draft summary correctly explains current law. However, he writes that the term compulsory payments is a prejudicial expression that obscures the change in law, which, he argues, is a prohibition on fair share and its inclusion in negotiated agreements. We disagree that the term compulsory is prejudicial, because it is an accurate description of the fees that nonunion members must pay for bargaining and representation costs. Mr. Schwarz also writes that the phrase, nonmembers may not benefit from representation without sharing costs is an inaccurate non sequitur because the measure excludes nonunion members from collective bargaining representation and collective bargaining agreements. But that phrase accurately captures 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. Vaandering, 359 Or at 14 n 9 (suggesting phrase Prohibits requiring compulsory payments by nonmembers; nonmembers may not benefit from representation without sharing costs. ) We therefore certify the following summary: Summary: Currently, recognized/certified public employee unions must represent (in negotiations, contract enforcement) all public employees in a bargaining unit. Union membership cannot be required as condition of public employment, but collective bargaining agreements can require nonmembers to share costs of legally-required union representation. Employment term differences/conduct to encourage/ discourage union membership prohibited. Measure prohibits public employer from setting nonmember s employment terms by union contract; must individually assess nonmember s qualifications in setting terms. Measure provides that differences in member/nonmember employment terms are not unlawful labor practice. Prohibits requiring compulsory payments by nonmembers; nonmembers may not benefit from representation without sharing costs; union members must renew membership annually. Measure applies to new/renewed/extended contracts entered into after effective date of measure. Other provisions.

8 Page 6 F. Conclusion We respectfully decline all suggested changes to the draft ballot title, and we certify the attached ballot title. Sincerely, /s/ Shannon T. Reel Shannon T. Reel Assistant Attorney General shannon.t.reel@doj.state.or.us Enclosure Dennis Richardson 900 Court Street NE, #136 Salem, OR Richard Schwarz 3411 NW Vaughn St. Portland, OR Jill Gibson 121 SW Morrison St. Portland, OR Glenn Schworak 1260 Woodacre Dr. SE Salem, OR Margaret Olney 210 SW Morrison Suite 500 Portland, OR James E. Mitchell 1985 Engel Ct. NW Salem, OR 97304

9 Certified by Attorney General on December 1, /s/ Shannon Reel Assistant Attorney General BALLOT TITLE Establishes employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, anti-discrimination laws Result of Yes Vote: Yes vote requires public employer to establish employment terms differently for union, nonunion public employees; modifies bargaining, representation, cost-sharing, and anti-discrimination laws. Result of No Vote: No vote retains law prohibiting different employment terms based on union membership status, requiring unions represent nonmembers, allowing mandatory nonmember fees covering bargaining/representation costs. Summary: Currently, recognized/certified public employee unions must represent (in negotiations, contract enforcement) all public employees in a bargaining unit. Union membership cannot be required as condition of public employment, but collective bargaining agreements can require nonmembers to share costs of legallyrequired union representation. Employment term differences/conduct to encourage/ discourage union membership prohibited. Measure prohibits public employer from setting nonmember s employment terms by union contract; must individually assess nonmember s qualifications in setting terms. Measure provides that differences in member/nonmember employment terms are not unlawful labor practice. Prohibits requiring compulsory payments by nonmembers; nonmembers may not benefit from representation without sharing costs; union members must renew membership annually. Measure applies to new/renewed/extended contracts entered into after effective date of measure. Other provisions.