By: Mark Volcheck, OPBA Attorney
While Senate Bill 5 is the first major legislative attack on public sector unions since Ohio’s collective bargaining law was adopted by the General Assembly and signed by Democratic Governor Richard Celeste in 1983, it is not the first attempt by labor’s foes to quash the law’s protections. Upon the law’s effectuation in 1984, the battle lines were in the courts and all eyes were focused on the City of Rocky River’s constitutional challenge to the law’s conciliation provision. The story of such challenge is eye-opening as it shows the narrow margin upon which over a quarter century of labor peace was confirmed for municipal safety forces.
In 1984, the City of Rocky River and the Rocky River Firefighters’ Union went to fact-finding for the first time under the new collective bargaining law. The fact-finder found for the City on every issue except wages. The City rejected the report and the parties proceeded to conciliation. Under Ohio’s collective bargaining law, conciliation is the last step of the negotiation process for safety forces whereby a conciliator chooses among either side’s final offer on each outstanding issue on an issue by issue basis. The conciliator’s decision represents a binding mandate to the parties to implement the award. The conciliator in this matter also ruled in favor of the Union on the issue of wages.
Prior to conciliation, the City filed a declaratory judgment action in the Cuyahoga County Court of Common Pleas alleging that the conciliation process violated the City’s “home-rule” powers and otherwise was an unlawful delegation of municipal legislative power. The Court of Common Pleas rejected the City’s claims for declaratory judgment and upheld conciliation. This decision was affirmed by the Eighth District Court of Appeals. The case then proceeded to the Ohio Supreme Court. It is there where things got interesting.
On November 2, 1988, the Ohio Supreme Court reversed the Eighth District. In a decision popularly known as Rocky I, the Court held that the law’s conciliation provision “is unconstitutional to the extent that it violates a municipality’s right to exercise its powers of local self-government under Sections 3 and 7, Article XVIII of the Ohio Constitution, because it interferes with the municipality’s power to determine municipal safety employee compensation.” Further, it held conciliation to be “unconstitutional to the extent that it unlawfully delegates municipal legislative authority by mandating binding arbitration for collective bargaining disputes over municipal safety employee benefits and wages.” Accordingly, the City prevailed. The decision was by a vote of four to three.
Following the Ohio Supreme Court’s decision, a number of motions for rehearing and/or clarification were filed. On December 22, 1988, the Court denied such motions by the same four to three vote. By such denials, the Court’s decision in Rocky I was preserved. Such decision is known as Rocky II. Beginning January 2, 1989, Justice Alice Robie Resnick, formerly the Presiding Judge on the Sixth District Court of Appeals, began her first term on the Ohio Supreme Court after having been elected in 1988. She took the place of Justice Ralph Locher, a former Cleveland mayor who had sided with the majority in Rocky I and Rocky II. On January 3, 1989, a motion for reconsideration was filed by the Union. A grant of such motion would permit the Supreme Court to reconsider its prior rulings. In a decision known as Rocky III, the Supreme Court voted four to three to grant the motion for reconsideration and the case was resubmitted. Justice Resnick was the deciding vote as she sided with the three other Justices who had been in the minority for Rocky I and Rocky II.
On May 10, 1989, by the same four to three vote as Rocky III, the Court upheld the constitutionality of conciliation. In a decision known as Rocky IV, the Court rejected the City’s argument that conciliation was an unconstitutional delegation of municipal legislative authority. It found that the conciliation process provides practical and intelligible standards and principles for the conciliator’s decisions that are subject to judicial review under Chapter 2711 of the Revised Code. Therefore, the Court reasoned, such clearly meets the accepted legal threshold for such statutory process.
The Court also rejected the City’s home-rule argument. Specifically, the Court held that the plain and express language of Section 34, Article II of the Ohio Constitution establishes the primacy of the collective bargaining law relative to any other alleged constitutional authority. Section 34, Article II of the Ohio Constitution states: “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.” The City’s claim to invalidate the law upon Sections 3 and 7 of Article XVIII fails by the clear and unambiguous language of the Ohio Constitution expressing the primacy of laws passed under Section 34, Article II. Thus, the Ohio Supreme Court rescued conciliation for municipal safety forces from its prior decision.
Conciliation is among the most prized components of the collective bargaining law for safety forces. It guarantees that either party’s position on any negotiable item in dispute will ultimately be determined by a neutral and fair third party arbitrator upon sound and accepted standards for judgment. Of course, Senate Bill 5 eliminates this process for all safety forces and surrenders such judgment and authority to the legislative body of the employer. In a bill plagued with countless problems, that provision alone makes a sham of the entire negotiation process. So, don’t forget to vote on November 8. As history makes abundantly clear, every vote counts.
The SERB Wage Increase Breakdown
by: Jeff Perry
The economic news we are hearing as of late has been much better than what we were hearing during 2009. However, the various branches of the government tend to lag behind the private sector in general. The lag in revenue tends to vary between ten to twenty (10 – 20) months.
The State Employment Relations Board (SERB) has released the annual wage settlement report for 2010. Keep in mind the economic mess really hit the bottom in the private sector around the last quarter of the year in 2009. If we were looking back to that date, the news was bleak as many feared the recession would probably get even worse. Of course, it didn’t. Unfortunately, it hasn’t gotten much better outside of the corporations and the ultra rich.
The State wide average increase in wages for 2010 was 1.26%. It has been steadily declining since 2006 when it was at 3.01%. In 2007 it was 2.98%. Over the ten years of the survey, the highest average wage increase was in 2001, when it was up to 3.78%. Obviously, the present average is the lowest ever since the state first started keeping track. I certainly hope it doesn’t get any lower.
The Akron/Canton region had the largest decrease in wage rate from the following year of 1.24%. That is a large difference and brings the region in with the second lowest wage increase overall. The Warren/Youngstown region not only has the lowest wage decrease of all of the regions, but the smallest decrease from the prior year with a difference of 0.38%. This is the fourth year in a row that the Warren/Youngstown region has come in with the lowest wage increase. Ironically, in 2001, the year of the highest average wage increase across the state, Warren/Youngstown had the highest average wage increase of any region.
The Columbus Area has the distinction of having the largest increase in wage rates in 2010. They came in at 1.51%. Cleveland came in next at 1.34%, and Dayton and Southeast Ohio tied at 1.23%. That rounds up the best of the bad.
Townships were the jurisdiction with the highest wage increase last year. Their 1.99% was way above the City’s 1.39%. School Districts did not come in last for the first time in five years with 1.07% compared with .94% for Counties.
Police lost a larger percentage than any other unit type compared to 2009. The 1.39% average is a whopping 1.07% less than the 2.46% average in 2009. Fire did much better. They averaged 1.74% compared to 2.74% for 2009. They had the largest average wage increase again this year. The teachers found themselves on the bottom of the pack again in 2010. This marks the seventh year in a row that teachers have had the lowest average wage increase. It seems all those failed levies are having a large impact.
The first year of most contracts usually had the largest wage increase of the contract. At least the first year of a contract was the largest until 2009 and 2010. Referred to as front loaded, Unions usually prefer to get the most we can as soon as we can, since it maximizes the amount of money earned over the life of a contract. With the economy being hit with a recession and slow recovery, the pattern seems to be shifting to back loaded. The good news is the average goes from 1.04% in the first year of a contract to 2.12% in the third year of an average contract. Looks like things are expected to improve.
News from the State does look pretty bad right now. Since the economic downturn, there has been a fairly steady decline in wage increases that could continue for quite a while. On the national level there are renewed fears of a double dip recession at worst or a slow recovery at best. I don’t think that next year will bring about any large wage increases.
I was speaking to several Fact-finders at a seminar recently. One of them complained to me that they had to recommend decreasing wages while increasing the amount of money the employees had to pay towards the health insurance. From my prior experiences with him, he had always been pretty generous with employees. It seems he made the right choice, since the employees accepted the recommendation.
Don A. DeWitt, of Cortland, Ohio, author of U.S. Marines at Guantanamo Bay, Cuba, announces the release of his third book. Mr. DeWitt is also the author of Former Marine’s Unbroken Spirit, and of, Traditional Shotokan Karate-Do: Brief History, Katas and Masters in Shotokan’s Development.
The author’s newest book is about when the United States Marines first landed at “Gitmo” Guantanamo Bay, Cuba in 1898, during the Spanish-American War. In 1903 “Gitmo” officially became a U.S. Naval Base, and later, in 1934, became a permanent naval installation. Over the next several decades learn how several high profile incidents, along with the various detention camps that houses the enemy combatants (al-Qaeda and Taliban fighters) had affected both the U.S. Marines and the U.S. Naval Base, and finally, the strategic importance of “Gitmo” to the U.S. Navy’s Atlantic Fleet and the U.S. Coast Guard.
Furthermore, find out what the U.S. Marines do 365 days a year to actually protect the U.S. Naval Base from potential military aggression/invasion from Communist Cuba. Also learn how the U.S. Marines and the Cuban soldiers actually guard their heavily defended borders that’s made up of miles of barbed wire fence lines, guard and observation towers, along with thousands of active landmines, making it the second heaviest fortified border in the world, only surpassed by the Korean DMZ. And lastly, learn of the actual event(s) that inspired the Hollywood movie “A Few Good Men,” along with viewing never before seen pictures of Guantanamo Bay, Cuba.
Mr. DeWitt served a one year tour of duty (1985-1986) at the Marine Barracks/Ground Defense Force, U.S. Naval Base at “Gitmo” Guantanamo Bay, Cuba, as he served his country in the United States Marine Corps from 1984-1988.
DeWitt’s book, U.S. Marines at Guantanamo Bay, Cuba, can be ordered directly from either the publisher at iUniverse.com, or by calling 1-800-288-4677; or from Barnes and Noble.com; and finally, amazon.com.
For more information about DeWitt and his two previous books, feel free to visit the author’s Web site at: https://sites.google.com/site/ddewittbooks.