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S.Randall Weltman

Striving for Perfect Objectivity in the World of Police Promotions

Lately I have been handling several matters involving the issue of promotions, which is unusual.  I do believe however, that there is a sound explanation for the increased frequency of promotion related inquiries that make up my work docket.

Ever since the financial crisis there have been many ranking positions eliminated by many managements.  The ability of managements to “abolish” or otherwise eliminate promoted positions is practically as awesome as all of the most fundamental of management rights.

As many of you have discovered, abolishment of supervisory positions is permissible so long as the employer can demonstrate that its actions are driven by “economy and efficiency”.  Unfortunately for the employee, the ability to successfully appeal an abolishment is difficult to impossible given that such appeals are decided by the civil service commissions that are so intricately linked to the employer.

Undoubtedly over the last 5-7 years the opportunities for promotion in virtually every OPBA police department have become more scarce.  At the same time, as DROP dates began to occur, there has been a steady stream of newly hired patrol officers.

This presents a situation where the number of officers interested and anxious to participate in the promotional process is on the rise while the number of available opportunities is dropping.  This results in a supply/demand imbalance making each opportunity much more precious and valuable than under normal circumstances.

Another explanation, also with roots in the financial crisis, is the money necessarily associated and attached to each promoted position.  Rank differentials guarantee an automatic jump in the promoted employee’s base rate in amounts between 12% and 18%, a very nice and meaningful raise!

Compare the financial lot of a newly promoted employee to that of every other employee who is not promoted.  Over the same 7 year period as previously cited, everyone’s wage growth has been flat at best.  Furthermore, their annual income has been reduced, due to increased employee health care and pension contributions and general inflation.

This presents a situation where about the only way officers can meaningfully boost their standards of living is by getting promoted.  This results in more competition, concern and anxiety over the promotional process.

Most of the promotion related calls I get concern the fairness of the process.  I hear concerns relating to the awarding of extra points, the assessment and grading process and the ability to bargain around civil service issues.  All concerns contain an element suggesting that someone, other than the caller, has gotten an unfair advantage.

Everyone expects that the promotional process is to be perfect.  Everyone wants to believe that the process is designed and administered in a fashion that objectively produces the most qualified candidate.  Over the years though I have concluded that this is simply not possible.

At the time I began representing the OPBA, promotions were governed exclusively by the Ohio Revised Code, Section 124.44 (“Section 124”) and/or each jurisdiction’s local civil service commission rules.  Statutory cities were bound to strictly adhere to Section 124 while “charter” cities could, in certain instances, adopt rules that varied from Section 124.

Section 124 is very simple and quite objective in that it requires a written competitive examination that ultimately results in the establishment of an “eligibility list” of names ranked by the grade on their exam, plus applicable points.  Once that is completed Section 124 requires that the highest ranking name be promoted, henceforth.

Many observers of Section 124’s objective process concluded and commented that its simple procedure did not necessarily produce the best supervisor.  They noted that to obtain good supervision more should be considered than just the person who scores the highest on a written examination.

As a response to this concern charter cities that could stray from Section 124 did so by introducing the “1 in 3” rule.  This permitted the employer to promote any of the names on the list from a grouping of the top 3, thereby doubling the employer’s options beyond just the top test taker.

Using “1 in 3”, though, added an element of subjectivity to the process and with subjectivity comes human nature and the potential for favoritism or bias to be added to the equation.  With “1 in 3” it is entirely possible that one very smart and very capable candidate, who once left a bad impression on someone influential, can go a long time, if not forever,  without being promoted.

Along the way competitive oral assessment components have been added allowing considerations for how a candidate reacts to spontaneous situations.  Assessment centers too add subjectivity to the process because they necessarily involve humans who can either favor someone for reasons other than their qualifications or be tipped to favor someone.

Furthermore, the various providers of the oral assessment component are either companies for profit (ex. PRADCO) or interest based associates (ex. Chiefs of Police Association).  As such they are capable of constructing ambiguous examinations or ambiguously grading them, while incorporating their own biases.  Or they can make mistakes in the process itself that can not be undone.

Several years ago, the Ohio Supreme Court ruled that unions or managements could force each other to bargain over the issues of promotions.  A handful of OPBA units have seized on this ability and have bargained their own promotional process, thereby superseding the applicable civil service law.

While our bargained for promotional processes have narrowed the chances for subjective abuse, they do not guarantee an entirely objective selection.  Again, this is because people are involved and when people make selections they naturally tend to use their own experiences and biases as part of their decision-making process.

In the midst of this unsolvable situation I must provide advice and counsel to a member seeking total fairness.  And mostly they do not like what I have to tell them.

I believe that any decision involving individuals and upward mobility, in terms of money and power, will necessarily entail some measure of subjectivity or bias.  The object of every promotional process is to avoid or minimize this, but in reality it is a challenge to construct a promotional process that is entirely objective.

Last Updated (Saturday, 27 September 2014 12:06)


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)

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