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S.Randall Weltman

Six Years Later and Still Fighting to Recover

by S. Randall Weltman, Esq.

September of this year will mark 6 years since the wholesale collapse of the U.S. economy.  As big of a blow that the Great Recession was to the OPBA’s membership, it was never contemplated that it would take 6 years to recover from!

It did not help that during the long, slow battle back to normalcy other harmful shots were delivered to the core of the OPBA’s membership, public employees working for municipalities and counties.  One was the state’s recent reduction and deletion of both its local government funds and the estate tax.  These moves reduced and eliminated revenue that was vital to our employers at the exact time that their  revenue was already diminishing from the recession.

Another blow was Senate Bill 5 and its implicit backlash against public employees.   While Senate Bill 5 was beaten back it has left lingering effects, all negative in nature.  One such negative is  my belief that SERB and its neutrals have shifted their thinking and attitudes in a way that is conducive to our employers’ loss of those important revenue streams.

It is now apparent that the state’s annual grant of local government revenue and the funds derived from the estate tax served as our employers’ “margin” or their “house money”, the dough that they depended on getting every year in varying but large amounts.  This was the money that our employers often used to fund wages and benefits, allowing us to slowly but steadily negotiate our pay packages to respectable, “middle-class” levels.

The elimination of these monies, spread out over the last few years, has allowed every one of the OPBA’s employers to truthfully declare that it has lost significant revenue.  And unless that employer has the demographic composition that produces growing income tax revenue, that employer has had some powerful arguments in favor of “towing the line” on wages and benefits.

As you know, when we can not get an employer to offer a reasonable settlement on wages, benefits and healthcare the only recourse we have to get more is to use SERB’s fact-finding/conciliation process.  Those are the proceedings before a professional neutral who will consider the facts and certain factors and then dictate the outcome of the parties’ negotiations.

You might recall that per the terms of Senate Bill 5, the fact-finding process was to be altered in favor of limiting the fact-finder’s so call “free reign” to impose a fair settlement.  Conciliation, per the bill, was to be modified so drastically as to render it virtually ineffective and useless.

Senate Bill 5’s proponents complained loudly that the neutrals on SERB’s roster were beholden to the unions and not sensitive to the specific needs of the employers or their communities.  They maintained that these neutral “outsiders” had too much power over local officials and the locality’s issues.  Senate Bill 5 was designed to reverse what its supporters perceived as a biased process.

Even though Senate Bill 5 was repealed, SERB has apparently taken heed of its anti-public employee sentiment.  In the last few years, SERB has clearly modified the fact-finding selection process so that we are offered neutrals that we are unfamiliar with and who are unfamiliar with our jurisdictions. More and more the “panels” of neutrals offered by SERB to the OPBA and its Cleveland area employers are from the Columbus, Cincinnati, and Toledo areas instead of from Northeast Ohio, as in the past.  I suspect that our area’s neutrals are now being offered to downstate parties in an attempt by SERB to alleviate any claims of bias.

Furthermore, we have learned that SERB is now “training” its neutrals in a manner that is conducive to addressing other Senate Bill 5 elements.  I do believe that SERB has urged its neutrals to more strongly consider “the public’s interest” when making their recommendations and rulings.  And I am convinced that this has resulted in decisions far less favorable to us than those received even a few years ago.

Where does all of the foregoing put us, or leave us?  Much like the world in which we live, the “have” cities and counties are now back to doing ok; restoring lost positions, granting raises and acting reasonable in regard to health care costs.  Then there are the “have-not” jurisdictions which, because of the nature of their community, have not recovered because their income tax or sales tax have not grown sufficiently.

The have-nots  really miss that “house money” and their miss results in substandard offers and below average settlements.  When we challenge those offers in fact-finding and conciliation it is harder than ever to get a really good result.  Ah, such is life 6 years after the outset of the financial crisis.

Meanwhile, I am not sure how good of a “go” these neutrals are having here in Ohio given the atmosphere and the persistent decline of union membership.  Based on the simple law of “supply and demand” this period of time can not be favorable for a career as a neutral.

There really is no factor that can control or limit the “supply” of neutrals.   Pretty much anyone can hang a shingle and vie for work as a neutral.  While all neutrals have to meet certain standards to be on the SERB roster and even more standards to be on the American Arbitration Association (AAA”) or Federal Mediation and Conciliation Service (“FMCS”) rosters, and even more for entry into the National Academy of Arbitrators, all can and do ultimately compete for the same work.  This makes for a lot of supply which ultimately means that they all work less frequently if not for less money unless, of course, the “demand” for their services outstrips their supply.

Unfortunately for the neutrals the demand for their services is declining and really shows no prospects for a pick-up.  Some of the slack in demand for neutrals is attributable to the slow but steady drop in union membership during the last several years.   Fewer union members translates  into fewer collective bargaining agreements meaning fewer grievance procedures and fewer grievances to arbitrate, or disputes to mediate or otherwise resolve.

I believe that even within the existing union/management situations there are less grievances that are ultimately arbitrated.  No doubt that the economy has forced some employers to be more conciliatory now that their budgets for outside counsel and other legal costs have been cut.  Or, maybe we can say that the parties are familiar enough with each other and the reality of each situation so as to permit them to more readily settle matters.  Either way, being a financially successful, full-time neutral these days must be quite a challenge.

 

Collective Bargaining Health Care in 2013

Collective bargaining in late 2012, early 2013 continues to be marked by uncertainty.  In the fall the largest uncertainty was the presidential race.  At stake was the means for addressing the economy as well as the survival of the Affordable Healthcare Act, legislation that Mitt Romney vowed to repeal.

After the election the uncertainty regarding the economy persists but the health reform law’s survival was eliminated.  Nevertheless, uncertainty about the implementation of the Act and its real impact on both private and public sector employers is still very present and very significant.

It is apparent to your OPBA negotiators that public sector employers are preparing for the law’s uncertainties by stepping up their efforts to shift health care costs away from them and on to you.  One way that many are seeking to accomplish this is to gain some form of “spousal exclusion or restriction”.

Long before the Great Recession of 2008 the US economy was forever transformed by the rise of the household with two working spouses.  Unlike the generation of your grandparents and maybe even your parents, households containing two working spouses is now the overwhelming norm.

It is also the norm for employers of all types to provide health care coverage to their employees.  Health care is such an important benefit for workers that both federal and state lawmakers have passed laws that regulate both health care providers and employer coverages.

The laws that govern health care and pension plans prohibit employers from discriminating amongst its employees in regard to the provision and uniformity of coverage.  This has ensured that both female and male employees must be offered the same types and levels of health insurance coverage.

As such, in most cases both spouses of a household have the ability to secure health care coverage from their employer.  If this has not been the case, it will be now as the Affordable Care Act requires all employers (except tiny ones), beginning in 2014, to either provide health care coverage to all of its employees or face a costly surcharge.

With health care to be all but guaranteed to every worker, employers have found a new way in their never ending quest to attack rising health care costs.  The new concept at our collective bargaining tables is “Spousal Exclusion” or “Spousal Carve-Out”.

Spousal policies and the proposals we get for it generally take one of three (3) forms:

 

  • A requirement that a working spouse pay a premium surcharge for coverage through the employer’s plan if the spouse’s employer offers health insurance;
  • A requirement that the spouse purchase health insurance through the working spouse’s employer plan before also purchasing it through the employer’s plan;
  • An outright exclusion from coverage under the employer’s plan if coverage is available from the spouse’s employer.

 

Fortunately the third option is not common.  This saves the working spouse whose employer has a clearly inferior and/or more costly (to employee) plan than the other spouse from having to take that plan in lieu of the spouse’s better plan.  This sort of exclusion results in a considerable savings to the spouse’s employer, because there is one less body to cover.

The second option is more common and less harsh than complete exclusion.  By requiring a spouse to enroll in his or her own plan, the other spouse’s employer saves money because it is only responsible for “secondary coverage” to the excluded spouse.  Per this method the secondary employer derives its savings from the fact that it does not pay anything until the deductibles and out-of-pocket maximums are reached under its own (now secondary) plan.

The most common type of spousal exclusion is the system that at the outset excludes all working spouses who have coverage opportunities from their employer.  Then it permits such excluded spouse to “buy” back into his or her spouse’s coverage by paying a monthly surcharge.

The size of the spousal surcharge will normally determine the effectiveness and amount of savings for the primary employer.  To influence employee behavior such charges must be significant, but if too significant the employer runs the risk of alienating good employees who will not appreciate such charges and the ultimate erosion of income that such a concept entails.

Do working spouse provisions result in significant savings to employers?  You bet they do.  The only question is how much.

In a family plan the two bodies that will almost always cost the most are the husband and wife.  They are now, or will become, of the age when they will incur the procedures and take the medication that are most costly to insurers.

While everyone thinks that children eat up health care costs, their multiple visits to the doctor’s office for the ear infection and their antibiotics are relatively cheap.  Normally they are not hospitalized and they are not forced to take expensive maintenance prescriptions.

Eliminating one-half of the costly spouse factor will necessarily lower both the “claims” experience and “cost per employee” factors of insurance costs.  While it may be difficult to identify the exact savings each employer will experience, it is easy to recognize that savings will occur.

The statistics show that spousal restrictions are a rapidly growing component of public sector health plans in Ohio.  In every major type of jurisdiction reported by SERB, except counties, the percentage having spousal restrictions has increased significantly.  According to SERB’s 2012 Health Care Survey, from 2011 to 2012 the percentage for cities in Ohio, the percentage jumped from 18.7% to 50%.

I believe that more and more of your employers will try to implement spousal exclusion provisions.  If they are of the type that allows for a reasonably affordable buy-in they are difficult to argue against, although we still do!

The best response to this issue is to identify and quantity the value of savings afforded the employer and then seek to obtain and add as much of that value back to the revenue side, in the form of wages or lower or less health care costs for everyone else on the plan.

Spousal exclusion is not the only new concept that employers are proposing at current contract negotiations.  More than ever we are seeing “wellness plans” that, through employee participation, can result in either higher or lower costs for the employee.

Most wellness plans require commitments, by the employee and sometimes the spouse, to complete certain metrics testing and/or conform to certain behavioral changes.  Employees may be required to regularly measure their blood pressure or cholesterol levels.  Some plans may require that employees engage in positive lifestyle behaviors like exercising or stopping smoking.

Employees who participate in wellness programs are normally provided some thing of value in exchange for their participation.  Usually it is a break in their monthly employee health care contribution.  This is called the “carrot” approach.

Some employers, though, insist to employ the opposite approach known as the “stick” method.  The stick method raises costs for workers who refuse to participate, who do not take action to improve their measured metrics or who continue to engage in risky health behaviors such as smoking.

There really is not much of fight in regard to wellness plans.  They generally fall into that rare event known as a “win-win” situation.

At this stage of history though, it sure seems that there is not much else we can “win” when it comes to health care.

 

Moving Past The Past Practice Misconception

Over the years I have noticed many misconceptions that OPBA members possess in the area of labor law.  Those misconceptions range from “the law provides us with guaranteed breaks” to “HIPPA prevents my employer from inquiring about my illness” to “we’ve always done it that way so it’s a past practice.”    
Each of these misconceptions has a basis for belief but none are actually true.  In this article I examine and discuss the real law and meaning of the popular term “past practice”.

Past practice is a term of art that arises when a party to a collective bargaining agreement attempts to enforce a “practice” regarding a matter that is not included in the written contract.  It is also asserted in order to assist in the actual interpretation of a confusing written term of a contract.  And finally, past practice is sometimes cited to support a claim that a “clear” term of the written contract has been “amended” by mutual agreement as evidenced by the parties’ past practice.

Evidence Required To Establish A Past Practice

Most arbitrators have recognized that for a past practice to be established that certain elements must be proven  in regard to the practice.  The practice must be unequivocal; clearly understood and acted upon; and readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.

A couple of understandable ways that arbitrators have defined a past practice are: “a pattern of conduct which appears with such frequency that the parties understand that it is the accepted way of doing something”; “a practice exists when a certain result has been utilized in repetitive and identical circumstances”; “a practice is established if, when one circumstance occurs, it is consistently treated in a certain way”. To constitute a past practice, the occurrence need not be daily or weekly, or even yearly, but when it happens, a given response to that occurrence must always follow.

Past Practice When The Contract Is Silent

In cases where the labor contract is completely silent with respect to a given activity, the presence of a well-established practice may constitute an “implied” term of the contract.  In law, an implied term of a contract is as enforceable as a written term.
In labor law, though, the enforcement of an implied term often depends on whether the term involves methods of operation and/or direction of the workforce or whether it involves a benefit of personal value to the employees.  Generally, past practices involving a benefit are permitted to become an implied term while practices involving the exercise of management rights are not.

As we all know, arbitrators have permitted wide authority in management to control methods of operation and to direct the work force, including the right without penalty to make changes if the changes do not violate some right of the employees granted elsewhere by the written contract.  As such, arbitration case law contains many examples of a past practice not becoming an implied term sufficient enough to prevent management from: changing work schedules or reassigning work or determining the number of workers or eliminating a job and/osr adding or eliminating job duties within reasonable limits.  The rationale behind these cases is that if management really intended to concede its management rights, then it would do so expressly in writing, and not implicitly.

An illustration of this outcome would be a situation where management has retained its  right to schedule and pursuant to that right management has utilized fixed shifts for several years.  Despite this history the parties have not referenced such a practice anywhere in their labor contract.  When the employer suddenly decides to implement rotating shifts instead, most employees think that the long standing  past practice of utilizing fixed shifts will prevail.  Uh, no; the contract is silent and the implied term we think exists will not be enforced because a management right relating to running the operation is involved.

In contrast to the freedom management is afforded regarding its basic functions, arbitrators often rule that past practice matters involving “a benefit of peculiar personal value to the employees” can be implied enough to become enforceable.  Because these matters generally do not involve management rights and because a long standing but unwritten benefit is at stake, arbitrators have found the provision of the benefit to be implied. 

Arbitrators reason that an employer would not ever provide something of value to its employees, regularly and routinely, unless it intended to do so.  Wash-up periods, lunch period arrangements, paid work breaks, free coffee or free meals, payment of employee’s salary during workers’ compensation waiting period, release time for collective bargaining, allowances and maternity leaves of absence are all examples of a “benefit of a peculiar value” that arbitrators have permitted to become implied terms of a contract.

A great example of a past practice becoming an implied term of the contract involves the giving/taking of a promotional test in 24/7 operation like a police department.  In this instance there will always be candidates taking the exam while they are on duty and other candidates taking the exam while they are on their off time.  Yet rarely is there a contract term that addresses this activity.

In most cases involving this activity the parties have, knowingly or not, developed a past practice of releasing working candidates from duty and/or compensating off duty candidates for attending.  Even though this may happen once every three (3) years, it happens the same way each time. Should the employer ever decide to terminate such a practice and refuse to pay those taking the test while off duty, it will probably be on the losing end of an implied term past practice case.

Past Practice Used To Interpret A Contract Term

The most common use of a past practice is for the interpretation of ambiguous or unclear contract language.  This makes sense because unclear language can best be defined or explained by the parties’ “intent” in agreeing to and constructing the contract’s language. And a party’s intent is most often and best defined in its actions.  Those actions are demonstrated and measured through the “practice and custom of the parties” in relation to the unclear term.  Thus the parties’ past practice often provides the real meaning to an unclear contract term.

The general attitude of arbitrators is that they give great weight to a past practice when interpreting unclear language.  They routinely rule that where a practice has established a meaning for language in a contract, the language will be “presumed” to have the meaning given it by that practice.
A past practice used to interpret an ambiguous term does not have to be so “frequent and regular and repetitious.”  For purposes of interpreting ambiguous language, relatively few past instances have been required to establish a binding practice.  This is especially so when the incidents giving rise to the issue rarely occur.  So long as the parties’ practice is consistent upon each infrequent occurrence, it still rates as sufficient to define the ambiguous term.

Past Practice Used To Permit Variances From Clear Contract Language

While past practice is frequently used to establish the intent of contract language that is subject to different interpretations, it rarely can be used to alter the meaning of a clear and unambiguous term.  In almost every instance the clear language is enforced.  This is so even where an arbitrator overwhelmingly believes that, on the basis of fairness, the past practice should have prevailed.

Here are some illustrative arbitration holdings standing for the principle that clear language always trumps a past practice:  “Where a conflict exists between the clear and unambiguous language of the contract and a long standing past practice, the Arbitrator is required to follow the language of the contract”; “While the Arbitrator recognizes that it is difficult to accept the overturn of a fifteen (15) year past practice, the Arbitrator is required to do so in light of the clear and certain language”;  “Past practice” is a useful means of ascertaining intention in case of ambiguity or indefiniteness, but no matter how well established a practice may be, it is unavailing to modify a clear promise.” 

A good example of this principle involves the specific time limits set forth in a grievance procedure that also includes a provision requiring the parties to “strictly adhere” to such time limits.  Even though the parties may have established a past practice of routinely ignoring and/or relaxing those specified time limits, should one or the other insist that one acted untimely, that insistence will prevail.  This is because of the contract’s clear language requiring strict compliance.

Any past practice that the parties have mutually followed or that have been enforced by an arbitrator can ultimately be broken and discontinued.  This can only occur, though, upon the expiration of the contract, during the collective bargaining process.  At the table the party who wants to terminate the practice simply declares that the practice will no longer be recognized, thus allowing or forcing the other party to regain (or not) the practice through the bargaining process.
As the foregoing indicates, what OPBA members often think of as a past practice is probably still a past practice.  It is wrong, however, to think that every past practice can be made to be binding as if it was a written contract term.  For further guidance and explanation of the law of past practice, consult your OPBA Representative.    

 

From Defeating SB5 to Defeating the Right To Work Movement

Remember Senate Bill 5, the itsy bitsy piece of legislation that consumed the OPBA for eleven months last year?  Remember Senate Bill 5's long formation process involving  additions, modifications and ultimately the final amendments that resulted in the final legislation?

To refresh your memory, among the last additions to Senate Bill 5 (SB5) were the prohibitions against fair-share agreements and payroll deductions directed to union political action committees.  Those additions had nothing to do with SB5's stated purpose – "financial relief and flexibility for strapped public employers" – and everything to do with its real purpose which was to strip unions of their financial resources, the same resources used to elect Democrats and/or to support causes favorable to workers.

Fair-share agreements are essential for any chance of success by a union.  Simply put, they are the provision in your contract that requires all employees to either join the union or to pay their fair share to the union.  Obviously, such agreements maximize the union's financial resources but they also foster the American tradition that no one (without good cause) should be permitted to get a "free-ride".

Public opinion polls taken last Fall  indicated that Ohioans bought into many of  SB5's elements.   They liked SB5's pay requirements and its anti-seniority prohibitions not to mention its shift in health-care burdens.  At least those elements of SB5 supported its stated purpose.  Had those elements of SB5 been adopted, public employers could have then followed the tactics routinely used by many private sector non-union employers ie., eliminate the more senior, highly paid employee leaving behind the newer, less paid employees, some of whom  are now compensated from a newly created 2nd tier for wages and even benefits.

Had SB5 been limited to include only those aspects addressing employee wages and benefits, it would have been a much tougher fight for your OPBA sponsored "Protector of the Protectors" opposition group to defeat the bill.  Instead, Ohioans were wise enough to recognize SB5 for what it was:  an over-reach; a law driven by political vindictiveness and a sinister ulterior motive; a hypocritical grab by anti-union/anti-Democratic politicians, who themselves survive and/or thrive from their own special interests' political action committees.

Thankfully, Ohio voters recognized and rejected the "over-reach" that Senate Bill 5 represented.  Ohioans sent a resounding message to Kasich and his supporters to back off from any political agenda that serves no purpose other than to eliminate political opposition and worker's rights.
Unfortunately, there still are a substantial amount of misguided and hostile individuals in Ohio and nation-wide who believe that unions are the cause of all evil and a hindrance to the success of the U.S. economy.  They have now turned their attention and energy to implementing "right-to-work" laws in many of the 28 states, including Ohio, that currently do not have one. 

Right- to-work laws came into effect in 1947 with the passage of the "Taft-Hartley Act" by the U.S. Congress.  Under the National Labor Relations Act (NLRA), passed 12 years earlier in 1935, all private sector unions were allowed to enter into labor contracts that required employees at private sector workplaces to either become members of the union or pay their "fair-share" for the union's services and benefits.  The Taft-Hartley Act amended   the NLRA so as to permit any of the 50 states the ability to pass their own law that would forbid "union shops" in their state.  To date, 23 states have implemented a right-to-work law.

Proponents of right-to-work laws of course claim that individual freedom is restricted when workers are forced to pay fees when they do not wish to.  Looking beyond that claim, the real motive of right-to-work law proponents is no different than the motive of the over-reaching legislators in Ohio – to weaken the union at the shop level and to undermine the financial resources of the private sector unions who, too, generally support and contribute to Democratic and pro-worker candidates and causes.

This obvious motive notwithstanding, right-to-work campaigns famously assert the line successfully used by the Indiana Chamber of Commerce during its successful campaign for a right-to-work law there – "that the law helps create jobs, because companies searching for a good location won't even consider non-right-to-work states for their business growth and expansion plans."

Whether or not right-to-work laws harm states is a matter of interpretation.  Former U.S. Labor Department economist Jared Berstein recently told the Washington Post that "other variables affect the job-growth equation, including natural resources, infrastructure, workforce quality, location, standard of living, schools, tax rates and other policy decisions not related to unionization.

Even our beloved Governor Kasich knows that union shops, and laws allowing fair-share agreements, are not an obstacle to job growth or to a state's fiscal success.  Kasich is on record as being "dismissive" of a right-to-work law in Ohio, commenting to the Associated Press that "the public is not prepared for that and does not have an understanding of the issue."   

Kasich must concede and disagree with the falsehoods spread by right-to-work proponents because he often boasts about the superior ranking and favorable conditions he has brought to Ohio.  Ohio's willingness to permit unions to enjoy full membership has not stopped American Greetings,  Wendy's and others from leaving or Ford, Chrysler and Timken from expanding.

The sad fact is that hardly any private sector employees are actually "union" and covered by collective bargaining agreements.  There are less than 2 out of every 10 U.S. workers who are union members.  Under this circumstance, how much difference could a right-to-work law even make?  Except, of course, to the financial resources of the union, some of which support political causes and candidates!

I recently read an article written by Holly Rosenkrantz for Bloomberg News where she quoted a labor law professor from Clark University as saying "There is a very strong likelihood that a Republican Congress and a Republican White House would pass a national right-to-work law.  It should be expected from a Republican Congress that, in terms of national jobs growth, sees unions as a part the problem rather than part of the solution."

In the same article, Rosenkrantz wrote that "Labor leaders say Republicans trying to limit unions are misreading public sentiment, as demonstrated by Ohio voters who repealed a law limiting bargaining for public employees".   The labor leaders remark that because of the "backlash against governors who have tried to pass anti-worker laws off as job creation, national Republicans would be wise to take heed."  The Bloomburg News article closed with a quote from Harley Shaiken, a prominent labor professor at Cal Berkeley, who said "the likelihood of a national right-to-work law dimmed somewhat after the Ohio vote and the effort in Wisconsin to recall Governor Scott Walker, who also won legislation restricting public worker unions.

How about that, members of the OPBA community?  Congratulations, you and the rest of the broad based "Vote No" campaign not only shut down Kasich and his cronies, you may have also become the actual catalyst to a country-wide shutdown of this irrational and wasteful right-to-work movement.  
Keep up the good work!


Last Updated (Sunday, 11 March 2012 13:44)

 

Thoughts Here And There

Caught in Crossfire

 

Police officers are trained to protect themselves from all lines of fire.  They are taught to stay a step, and a thought, ahead of their aggressor.

Senate Bill 5 is one such aggressive force.  That legislation’s quest to weaken public sector unions and workers has unfortunately dragged in the police officer profession.  Because Senate Bill 5 includes the police profession, virtually every law enforcement officer in the State of Ohio faces a severe reduction in what had become the “going rate” for what was once considered a worthy profession.

The line that Governor Kasich and Senate Bill 5 supporters will use in the referendum campaign is that public sector workers make more money and have better benefits than their counterparts in the private sector.  They will say that this (unproven allegation) is unsustainable given the financial struggles facing the employers of those employees (local governments).

There may be some truth to that line in general, but there is also a significant falsehood.  And that falsehood is grouping the profession of “police officer” in the broad category of “public sector worker”.

Unlike a service department worker or a water treatment worker, or a snow plow driver, or an administrative secretary or a finance director or a records clerk, a police officer does not have a counterpart (an employee doing like work) in the private sector.  Except for the police officers working for the Cleveland Clinic and perhaps other hospitals, there is no such thing as a police officer working for the private sector.

The falsehood that Kasich and his supporters infer, if not express, is that public sector police officers make more than private sector police officers and it’s all due to collective bargaining so let’s undermine their ability to bargain.  No Governor, the market forces that you so trust have properly defined the police officer’s wage and benefit package

The true measuring stick for Ohio’s police officers wages and benefits is determined by comparing them to what police officers in other cities and other states make, not by comparing them to their employer’s other workers or to their city’s school teachers.  Comparisons are the proper way that the value for any object is determined, but the comparison must be between like objects.

When you determine what is a fair price for selling or buying a home you look to see what other similar homes are selling for.  You do not measure a home’s value by comparing it with the costs of an apartment complex or commercial building just because they are in the same neighborhood.  While they all may be structures within a near vicinity, their values are all measured with different measuring sticks.

The market adjustment that Kasich and his supporters want to achieve with Senate Bill 5 has already successfully occurred under the current bargaining law.  Trust me, when the OPBA’s employers struggle so do the OPBA’s members.

As such we have made virtually no progress in pushing up law enforcement wages and benefits ever since September, 2008.  And until revenues begin to rise again we will continue on the same course, with or without Senate Bill 5.

The 5th Quarter Management Tool

 

For a few years now I have been referring to what I have deemed the 5th quarter in the law enforcement collective bargaining process.  Not coincidentally, the past few years have been marked by the “Great Recession.”

The 5th quarter is the ultimate push back technique utilized by employers when they feel squeezed by what they consider an unfair decision issued by a “neutral” such as a fact-finder, conciliator, or arbitrator.  As for example, the employer who finds itself “ordered” by a conciliator to pay a raise that the employer maintains it cannot afford.

What this employer might do is file an action in Common Pleas Court seeking to vacate the conciliator’s “order”.  This is one way how the OPBA can be forced into a 5th quarter in a process that everyone believed was a four quarter game.

Creating a 5th quarter can benefit the employer in several ways beyond the obvious attempt to “overturn” the conciliator.  Most important it creates another battle with the union as the union is forced to counter-claim, in court, with its own action to “enforce” the conciliator’s “order”.

While the parties engage in what can be lengthy and costly litigation, the employer is not obligated to implement the terms of the conciliator’s “order”.  Until the Common Pleas Court rules on the enforcement/vacation countering claims lawsuit, there is no basis for either the union or the employees to compel payment of the ordered wage increases.

As you can imagine, creating a 5th quarter can afford the employer great leverage in regard to the negotiations’ final outcome.  During the litigation process, which can  be further lengthened by an appeal to the Appeals Court, the parties can continue to bargain and make an agreement that would then “moot” the litigation.  Most assuredly any such agreement reached will involve the union “giving up” something that it had obtained in conciliation.

Indeed the employer does not even have to wait until bargaining to invoke or create a 5th quarter.  During the term of every labor contract the employer is able to take action either under its lay-off clause or pursuant to a lay-off provision contained in a civil service rule.

So what is there to prevent an employer from claiming that its finances are necessitating a reduction in expenditures to its police department?  That kind of declaration then allows the employer to approach the union and demand that it choose between a layoff or a wage and benefit “adjustment” (reduction) in order to maintain the status quo.

Unfortunately there is nothing, short of a weak grievance, that can be used to counter such a move.  As a result there are some OPBA units who have been literally forced to give up the present value of portions of their contract while that contract is in full force in order to prevent a layoff.  And this is accomplished without Senate Bill 5!

 

As the Pendulum Swings

 

Observers of the economy know that markets sway back and forth and up and down, but usually in one direction until there is a bubble and bust causing the direction to reverse, but still in a back and forth and up and down direction.  When the overall direction of these markets reverse, one way or the other, some observers call this the swing of the pendulum.

The pendulum effect happens in virtually every market.  Markets like the housing market where properties gain value over time or lose value over time.  Same thing with the stock and money markets.

All of those markets, along with the “labor market”, swing back and forth over periods of time.  This effect is known and proven.  What is not known is how long these movements last and when they do actually reverse, at what pace and at what rate.

Right now the pendulum is obviously swinging in a direction that will be harmful to the interests of all law enforcement personnel.  This swing follows a fairly long stretch of a direction yielding nice gains in the wage and benefit areas.  This swing was created by the Great Recession which deflated property values, deleted jobs and reduced revenue to local governments.

Coinciding with the Great Recession and its monumental effect on governmental revenues is a swing in political attitudes.  This recession greatly influenced last fall’s elections to the point where anti-government politicians were elected.  Their lopsided victories left many of them with what they think is a “mandate” to reduce government.  In trying to accomplish that a new political and economic direction has been created, for sure.

Who knows how far such a negative direction will go or how long will it take to bust and reverse to the other direction.  It may last for a little while or it may last for half of your career but trust me the pendulum will one day swing back to a better and more prosperous direction.  The sooner, the better!!

Last Updated (Tuesday, 28 June 2011 20:15)

 
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