That Credit Union Blog

by Sara M. Donnersbach, Esq.
 
Have you read the newly enacted Ohio Senate Bill 5, now known as the Collective Bargaining Law? Not many people actually have, due to the fact it’s several hundred pages long. Unfortunately, that leaves most people relying on the newspapers, reporters and politically motivated congress persons to identify what the bill actually provides. It’s time to rely on the facts – good or bad – and just the facts. Realizing that most people do not know it exists, the Legislative Service Commission provides a summary of the bill, which was signed into law, for free and that summary is available online[1]. This article highlights segments of that summary.

The Collective Bargaining Law (CBL) contains many changes to the Public Employee Collective Bargaining rights. It abolishes the rights of state employees[2] to collectively bargain. Ohio law defines collective bargaining[3]:

“To bargain collectively” means to perform the mutual obligation of the public employer, by its representatives, and the representatives of its employees to negotiate in good faith at reasonable times and places with respect to wages, hours, terms, and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement, with the intention of reaching an agreement, or to resolve questions arising under the agreement. “To bargain collectively” includes executing a written contract incorporating the terms of any agreement reached. The obligation to bargain collectively does not mean that either party is compelled to agree to a proposal nor does it require the making of a concession.

The CBL prohibits the State from collectively bargaining with its employees[4] regardless of any continuation, modification or deletion of an existing agreement. Agencies, authorities, commissions, boards of the State, and a State institution of higher education are prohibited along with the state. In conjunction with the above, the Office of Collective Bargaining is, understandably, now abolished.

This prohibition, however, does not apply to persons working pursuant to a contract between a public employer and private employer, and over whom the National Labor Relations Board has declined jurisdiction from those persons eligible for collective bargaining. It also excludes employees of a regional council of government. The CBL authorizes public employees to refuse any representation by an exclusive representative or an employee organization.

State employees cannot collectively bargain for employer paid contributions to any of the five public employee retirement systems[5], or for health care benefits for which the employer is required to pay more than 80% of the cost. However, the public employers are not required to bargain on any subject reserved to the management and direction of the governmental unit, even if the subject affects wages, hours, and terms and conditions of employment. In fact, the CBL limits public employer contributions toward health insurance premiums to 80%. In the interest of continuity, the CBL makes laws pertaining to the provision of health care benefits to public employees, prevail over conflicting collective bargaining agreements (CBA)s.

For those public employers faced with a fiscal emergency[6], the CBL prohibits any CBA, which would interfere with the employer’s need for flexibility to adjust to payroll and staffing levels to ensure core services.  The CBL allows a public employer to set aside any provision in an existing CBA in these circumstances.

Such public employers cannot agree to a provision that would require them to use employee length of service as the only factor in making layoffs, when a reduction in force is necessary. The CBL removes consideration of seniority and of length of service, by themselves, from decisions regarding a reduction in work force of certain public employees. Other factors must be considered in conjunction with seniority and length of service.

The CBL does require merit-based pay for certain employees of the State, its political subdivisions and school districts, and board and commission members. Specifically, the CBL requires that the following persons be paid a wage or salary based upon merit:

• Any employee whose position is included in the job classification plan that the Director of Administrative Services must establish under continuing law for all positions, offices, and employments the salaries of which are paid in whole or in part by the state;
• Any public employee whose wage or salary can be fixed by an appointing authority without reference to the Department of Administrative Services Personnel Law or other parameters, generally;
• Board and commission members;
• Part-time employees;
• Exempt employees;
• Regular full-time employees in positions assigned to classes within the instruction and education administration, except certificated employees on the instructional staff of the State School for the Blind or the State School for the Deaf, whose positions are scheduled to work on the basis of an academic year rather than a full calendar year;
• Correctional Institution Inspection Committee staff, excluding the Director;
• Assistants, stenographers, and clerks that the Attorney General appoints to carry out the Charitable Trust Law, to be fixed by the Attorney General;
• Members of the Development Financing Advisory Council;
• Employees of the Department of Development, Division of Economic Development;
• Members of the Minority Development Financing Advisory Board;
• Seasonal and casual employees in the service of the state, except for elected officials; legislative employees; employees of the Legislative Service Commission; employees who are in the unclassified civil service and exempt from collective bargaining coverage in the office of the Secretary of State, Auditor of State, Treasurer of State, and Attorney General; employees of the courts; employees of the Bureau of Workers’ Compensation whose compensation the Administrator establishes; or employees of an appointing authority authorized by law to fix the compensation of those employees;
• Employees who are paid directly by warrant of the Director of Budget and Management and who are serving in a position that the Director of Administrative Services has determined impracticable to include in the state job classification plan, except for elected officials; legislative employees; employees of the Legislative Service Commission; employees who are in the unclassified civil service and exempt from collective bargaining coverage in the office of the Secretary of State, Auditor of State, Treasurer of State, and Attorney General; employees of the courts; employees of the Bureau of Workers’ Compensation whose compensation the Administrator establishes; or employees of an appointing authority authorized by law to fix the compensation of those employees;
• Teachers employed by a city, exempted village, local, or joint vocational school district;
• The Director of the State Lottery Commission;
• The Executive Director of the Casino Control Commission, salary to be determined by the Casino Control Commission;
• Only the two Self-Insuring Employers Evaluation Board members who are not also members of the Commission;
• The Executive Director of the Accountancy Board;
• Each public utilities commissioner;
• The Consumer’s Counsel;
• Physician specialists in the Department of Mental Health, pay to be fixed by the Director of Mental Health;
  Employees of each county board of developmental disabilities; and
• Employees of the board of trustees of a joint emergency medical services district.

With respect to public schools[7], the CBL prohibits public school districts from entering into a CBA that does specified things, such as establishing a maximum number of students who may be assigned to a classroom or teacher. The CBL requires merit-based pay for most public employees, including teachers and non-teaching school employees and board and commission members, and makes other, related changes, such as generally eliminating statutory salary schedules and steps. While the legislature has chosen to abolish continuing contracts for teachers, it does grandfather in those continuing contracts in existence prior to the effective date of the CBL.

The CBL allows the Board of Education of any school district to govern employee health care benefits in the same way as the governing board of any public institution of higher education. The Boards of Education are required to adopt policies to provide leave with pay for school employees and abolishes statutorily provided leave for those employees. There is no deadline for establishing said policies by the Boards.

Any CBA must comply with all state and local laws or ordinances relative to wages, hours, and terms and conditions of employment, unless such a conflicting provision establishes benefits that are less than provided in the law or ordinance. During any negotiations relative to public schools, the parties are required to consider the financial status[8] of the public employer at the time of any such negotiations, for purposes of determining the ability of the employer to pay for any agreed terms.

If a dispute arises, procedures for resolution have been adjusted. Instead of requiring a final offer of settlement to be presented, where a public employee does not have a right to strike, the public employer is absolved of this conciliation procedure. When a public employer and an exclusive representative are unable to reach an agreement in collective bargaining, they can submit the issues in dispute to any mutually agreed upon settlement procedure, and if 90 days passes without an agreement, the State Employment Relations Board (SERB) must appoint a mediator to assist the parties in the collective bargaining process. The Bill outlines the procedures that will be used in conjunction with existing law, to reach a resolution.

Expressions of views, opinions, and arguments are no longer unfair labor practices and cannot be used as evidence of an unfair labor practice, unless accompanied with a threat. Both the public employer and the SERB must post, in a conspicuous location on a web site maintained by the board and the employer, the terms of the last CBA offered by the employer and the exclusive representative at specific times. For alternative dispute resolution (ADR), the person or group administering the process will only be able to take certain things into consideration. The CBL prohibits a public official or employee from participating on behalf of a public employer in the CBA process with respect to any matter in which the official, employee, or the immediate family of the official or employee has a direct interest in the outcome of the matter.  “Immediate family” is defined as a spouse residing in the person’s household or any dependent child.

The CBL does go into further detail, while this article touches on a few of those items. For a copy of the CBL, as signed into law, please note it can be obtained for free, as a matter of public record[9]. The CBL was signed into law March 31, 2011, and was immediately effective. Notably, both the House and Senate passed the CBL in the day prior.

Sara Donnersbach is a Partner in the Cleveland office where she manages the Governmental Collections, Healthcare Collections, Commercial Utility Collections; and Landlord/Tenant Collections groups. She can be reached at 216.685.1039 or sdonnersbach@weltman.com.

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1. http://www.legislature.state.oh.us/analysis.cfm?ID=129_SB_5&hf=analyses129/s0005-prop-129.htm#_Toc285536667
2. This includes employees of any agency, authority, commission, or board of the state, and of any state institution of higher education.
3. ORC 4117.01 (G).
4. CBL expands the impact on less collective bargaining for members of police and fire departments, by expanding the definition of “supervisor”, potentially making more people supervisors and ineligible to collectively bargain.
5. State Teachers Retirement System, School Employees Retirement System, Ohio Police & Fire Pension Fund, State Highway Patrol Retirement System, and Public Employees Retirement System (the largest).
6. A Fiscal emergency exists if the Governor declares the state to be in a state of fiscal emergency, the Auditor of State declares a public entity or a school district to be in a state of fiscal emergency, or a conservator is appointed for a state university or college.
7. The CBL applies to a public employer that is a school district, educational service center, community school, or STEM school.
8. The financial status cannot be based on the ability of the employer to pay for terms of the agreement on potential future increases in the employer’s income that would only be possible by the employer obtaining funding from an outside source, including the passage of a levy or a bond issue.
9. http://www.legislature.state.oh.us/BillText129/129_SB_5_PS_N.html