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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Bargaining Outlook

Although the private sector economy is showing signs of life, a recent story in the New York times shows that public sector employment continues to decline.  Ohio actually has one of the lowest unemployment rates in the country but it is the private sector that is adding jobs.

Public employers state-wide continue to lay off employees, leave job vacancies unfilled, and demand concessions at the bargaining table.  There are two related forces causing this.

First, the Wall Street crash from five years ago caused massive job losses in the private sector.  Unemployed people do not pay municipal income tax and so city budgets get squeezed.  Similarly, the unemployed have less money to spend so sales tax receipts take a hit that impacts counties.  Adding further fuel to the fire is the fact foreclosed homeowners don’t pay property taxes.  These are all factors largely beyond the control of state and local governments.

The second factor holding down employment and wage growth, however, is entirely the doing of Governor Kasich and his Republican lackeys in Columbus.  When he took office he vowed to break the backs of the public sector unions.  Senate Bill 5 was one such attempt but it failed.  The real damage, however, has been reduced state revenue going to the local governments.

In one moderate-size city I’m familiar with they received over $650,000 is state revenue sharing in 2011.  In 2013 they will receive only $100,000.  That equates to about six or more full-time jobs.

The slash to local government funding was a “two-fer” for Kasich.  It allowed the state to balance its budget by dumping the hard decisions on the cities and counties.  And it also put a choke hold on the public sector unions as membership falls.  Ultimately, the greatest pain is felt by the little guys who lose their jobs.  But it is also being felt by those still working because it is near impossible to bargain for higher wages when the increases could only be funded by further layoffs.  The chart below taken from SERB’s website dramatically illustrates the impact.

State Employment Relations Board

Annual Wage Settlement Report

Wage Settlement Breakdown (2002-2011)

Comparison Group 2002200320042005200620072008200920102011
Statewide3.59 3.102.792.72 3.012.982.922.151.260.73

The data is not yet compiled for 2012 but if the average settlement is higher than it was in 2011 I will be surprised.

Let us hope that we have hit bottom and that in 2013 we’ll start climbing out of this prolonged recession.  But even once local revenues start to increase, I foresee more years of downward pressure on wages and benefits.  Most employers will want to use new revenues to make overdue capital purchases and neglected infrastructure improvements.  Others will want to hire more employees rather than give wage increase to current staff.

 

The Last Chance Agreement and The Union's Rights

As a union attorney, I am often hopeful that grievances can be settled in the early stages of the grievance procedure, before I even have to get involved.  This allows local directors and employers to craft settlements unique to their departmental needs and promotes good labor relations.  Unfortunately, sometimes employers interpret this approach as negating the need to involve the Union in settling grievances. Also unfortunate, at times the employer purposely tries to keep the Union from being in the room during the grievance proceedings.  Regardless of which situation may apply, most directors and longtime union members can recall a situation where either they or someone they knew were pressured into agreeing to a grievance settlement without a union representative being present.  Often times, directors may only learn of these agreements after the fact, leading directors to ask two questions: (1) Did the employer have to notify the Union of the proposed agreement before the employee signed it? and (2)  Can the Union do anything about it?

Recently, the OPBA asked the State Employee Relations Board (SERB) to answer these two basic questions in an unfair labor practice charge brought against the Williams County Sheriff’s Office.  The charge involved conduct by the Sheriff against a Deputy during the signing of a “Last Chance Agreement” (LCA).

The basic facts supporting the charge were undisputed.  After investigating allegations of the Deputy’s misconduct, the Sheriff called the Deputy and the local OPBA Director in for a meeting to discuss the Deputy’s discipline.  During the course of the meeting, the Sheriff presented the Deputy with a LCA.  Under the terms of the agreement, the Sheriff agreed to not terminate the Deputy for her alleged misconduct.  In return, the agreement stated that the Deputy would waive the right to grieve any future discipline or termination arising out of similar misconduct.

After looking over the document, the OPBA director asked to have time to talk to an OPBA attorney, and to fax the document to the attorney for review.  The Sheriff denied this request, stating that this was a “take it or leave it” deal and any attempt to have the LCA reviewed by the OPBA attorney would result in the agreement being taken off the table.  Facing this ultimatum, the director left the room to contact the OPBA attorney for further guidance.

While the director was out of the room, the Deputy continued questioning the Sheriff about the terms of the LCA.  Faced with the threat of immediate termination if she did not sign the agreement, the Deputy decided to sign the LCA before the director returned to the room.  Upon learning of this, the OPBA filed an unfair labor practice over the Sheriff denying the Deputy and director time to talk to the OPBA and denying their request to fax the agreement to an OPBA attorney for review.

After reviewing the facts of the case, SERB concluded that the Sheriff had committed an Unfair Labor Practice.  SERB reasoned that a LCA is a contract whereby the employee agrees to give up his or her rights under the CBA to grieve any future discipline in return for the employer’s promise to not terminate the employee for the current misconduct.  SERB further concluded that the OPBA was the exclusive bargaining representative for all bargaining unit employees and had the sole authority to negotiate contracts on the employees’ behalf.  When the Sheriff refused the request to have the OPBA’s attorney review the agreement and represented that the deal was “take it or leave it,” the Sheriff refused to honor the OPBA’s status as the exclusive bargaining representative.  Moreover, the Sheriff’s representation that the deal was “take it or leave it” was a refusal by the Sheriff to bargain over an agreement that affected the terms and conditions of employment of an OPBA member.

Although SERB has long recognized an employee’s right to union representation during investigatory meetings, with the decision in Williams County Sheriff’s Office SERB has affirmed that this right also applies to the Union’s right to review and negotiate the terms of a Memorandum of Understanding or Last Chance Agreement.  Directors may also use the reasoning that SERB applied in this case to assert the OPBA’s right to review and negotiate over the terms of any grievance settlement.

The bottom line is this.  Although employees are allowed to settle their own grievances so long as the settlement is consistent with the terms of the CBA, when the proposed settlement affects the terms and conditions of the grievant’s employment, such as a Memorandum of Understanding or a Last Chance Agreement, then the employer must bargain with the Union over its terms.

Importantly, the decision in Williams County Sheriff Office reminds us of one other principle.  When engaged in discussion with your employer over grievances or other matters covered by the CBA, the employer cannot unreasonably deny your ability to contact an OPBA director or attorney to discuss the issue.  If you are faced with a situation such as this, and you are unsure what to do, please do not hesitate to contact the OPBA for further guidance.

 

Know Your Rights Concerning Union Representation

Members often tell me in the context of an internal investigation something to the effect that their Employer asked them questions and never offered them Union representation.

While I am sure that this topic has been addressed before, it bears repeating that an Employer is not required to offer an employee Union representation before questioning, unless the collective bargaining agreement specifically mandates that the Employer do so.

Rather, what the law requires in these situations is that the Employer permit the employee to be represented, under certain stated conditions, upon the employee’s request.

Specifically, in In re Davenport, SERB 95-023 (12/29/95) the State Employment Relations Board (“SERB”) adopted the standard set forth by the United States Supreme Court in NLRB v. Weingarten, 420 US 251 (1975), at page 3-156, by stating:

We believe that Weingarten provides the proper balance between the public employees’ rights in ORC §4117.03(A)(2) to engage in concerted activities for mutual aid and protection.  Therefore, we specifically find that, upon an employee’s request, representation by an employee organization is required at investigatory interviews which the employee reasonably believes could lead to discipline (the Weingarten standard) and at grievance meetings.


SERB amplified its above finding in Davenport, above, in In re City of Cleveland, SERB 97-011 (6-30-97) when it held that an unfair labor practice, under R.C. §4117.11(A)(1), for the denial of the right to representation is established when the following four elements are proven:

  1. That the interview was investigatory[1];
  2. That the employee requested the presence of a Union representative and the request was denied;
  3. That the employee reasonably believed that the interview might result in discipline[2]; and
  4. That after the Employer denied the employee’s request for representation, the Employer compelled the employee
    to continue with the interview.

Consequently, absent express contract language requiring the Employer to offer Union representation prior to interrogating an employee in an investigatory interview, the employee must specifically request the presence of a Union representative.

Please contact your OPBA representative anytime that you have any questions about representation issues or any other relevant matters.


[1] In In re State Employment Relations Board v. State of Ohio, Dept. of Rehab. & Corrections, Ross Correctional Institution, SERB 99-004 (2-12-1999), SERB indicated that “a meeting is investigatory if its purpose is to elicit information pertaining to the conduct of the employee being interviewed.”

[2] “An employee’s reasonable belief that discipline may be imposed as a result of the interview will be measured by an objective standard: whether a reasonable person would believe that discipline may be imposed on the employee involved as a result of the interview.  Id.  It is irrelevant that no discipline actually resulted if the employee possesses the requisite reasonable belief that discipline might result.”  Ohio Dept. of Rehab. & Corrections, supra, at p. 5 of 7.


 

Florence v. Board of Chosen Freeholders

I have written a lot of my articles about the economy and wage increases lately.  Most everyone is interested in the outlook for wage increases and most of us have been impacted by the recession that started in 2009.  In fact, most of us are still being impacted today.

However, I noticed an article recently that many represented by the OPBA might be interested in.  It relates to the use of strip searches at jails and other detention facilities based upon the recent ruling by the U. S. Supreme Court in Florence v. Board of Chosen Freeholders, #10-945, 132 S. Ct. 1510, 2012 U.S. Lexis 2712.

In the instant case, the arrest was made due to a bench warrant that was no longer good.  He had fallen behind on paying a court fine, but had actually paid it off several years prior to his arrest.  He was then strip searched at one prison and transferred to another six days later.  He was then strip searched again, which lead to his complaint.

Mr. Florence felt that he should not have had to endure the humiliation of a strip search based upon the charges against him and his good behavior. Both of the prisons had a blanket policy of strip searching any and everybody when they arrive regardless of the charges.  This was the focus of the ruling.

Prior to the Florence ruling, a reasonable suspicion standard was the law of the land.  There had to be a detailed analysis to prove the need to strip search an inmate.They had to consider such issues as what type of inmates they were housing, what type of offence they were charged with, and how they were behaving.

Four of the Justices felt there should be a reasonable suspicion that the detainee might be in possession of contraband that could be a threat to the safety and/or security of officers in order to conduct a strip search. They felt there were other options available rather than forcing the humiliation associated with strip searches.

Although they did mention that it is difficult and dangerous to work in such environments, they pointed to the seven federal courts that have ruled for a reasonable suspicion standard for strip searches.  They also noted that ten states have made the reasonable suspicion standard the law.

The dissenting judges also pointed out that many correction officer organizations believe that in most circumstances strip searches should only be done for reasonable suspicion.  They further noted the amount of contraband found during the strip searches was quite small.

Rather than strip searching without reasonable suspicion, they said much more reasonable methods could be just as useful without being so humiliating.  Among their suggestions were metal detectors, pat downs, and searching clothing while the detainee is showering.

However, the majority ruled otherwise.  They acknowledged the inherit dangers in the Corrections field and the requirement for safety at length.  Further, they noted that those in the field understand the risks and dangers much better than anybody else.  Therefore, they should be the ones to create proper policies.  As such, they gave the administrations a great deal of latitude in the creation of such search policies.  In effect, they ruled that the interest in safety and properly running the institution trumped the inmate’s constitutional rights.  Of course they also noted that different institutions may not have such rights given the differences in facilities and their populations.

In addition, they pointed out that case law upheld the use of strip searches due to the decrease in the likelihood of carrying contraband into prisons.  The amount of contraband actually found wasn’t a major factor in such cases.

New inmates may not even be fully researched when they enter the system.  Some may be weekend inmates because they are low risk, but that would make it easier for them to bring contraband into the system on a regular basis.

Furthermore, given the ever changing populations, it creates a large burden to monitor them enough to properly weed out those who should be strip searched.  Given the large number of injuries committed with contraband, it doesn’t make sense to create such burdens.  Over ten thousand COs are injured annually from inmates, and many more inmates are hurt by each other.

There are also some benefits to the actual inmates being searched.  In doing so, illness and infectious diseases can often be noticed.  Thus treatment can begin and the rest of the population can safely avoid it. Furthermore, gang symbols are easily detected, which allows officials to place them accordingly.