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Mark Volcheck

IN RE CITY OF GREEN: SERB AGAIN TAKES ON THE PART-TIME QUESTION

By:  Mark Volcheck, Esq.

An employer’s attempt to utilize part-time workers to perform work traditionally done by full-time bargaining unit workers can be the source of significant tension and dispute.  Full-time bargaining units generally take the position that their work and potential for overtime should be protected from being contracted out to lesser paid non-union employees.  Among safety forces, full-time units additionally oppose the introduction of part-time employees on the basis of officer safety, as similarly experienced and dedicated personnel are vital to confronting the profession’s dangers.  In the case of In re City of Green, SERB No. 14-01, 2014 OH SERB LEXIS 1 (2/20/14), the State Employment Relations Board held that the City of Green committed unfair labor practices by unilaterally reassigning bargaining unit work performed exclusively by full-time firefighters to part-time non-bargaining unit firefighters and by refusing to bargain collectively with the Union over such reassignment.  The Board’s holding effectively warns employers that any intention to reassign the work of a full-time safety service bargaining unit to part-time employees must be subjected to the procedural protections of fact-finding and conciliation.

Prior to June of 2001, the collective bargaining agreement between the City of Green and its full-time firefighter bargaining unit referenced part-time, non-bargaining unit employees, but as the City moved to an exclusively full-time firefighter staff, the parties agreed to delete part-time references in the agreement.  Since June of 2001, the City’s Fire Department has been staffed exclusively with full-time firefighters/paramedics (firefighters) and the emergency response and related safety-service work performed in the City’s Fire Division has been performed exclusively by full-time bargaining unit members.

In 2010 and 2011, the parties negotiated a successor collective bargaining agreement.  During the first bargaining session for a successor agreement, the City presented the Union with a proposal to eliminate a minimum staffing clause in the collective bargaining agreement that required the City’s Fire Department to be staffed each shift by ten (10) on-duty, full-time firefighters.  Additionally, at this session, the City handed the Union a “Notice of Intent” wherein the City announced its intent “to establish and utilize part-time firefighter/medics to assist in avoiding overtime, covering time off, meeting its service needs and performing duties that it otherwise determines necessary.”

The parties proceeded to fact-finding where the City proposed to eliminate the minimum staffing clause and proposed to add language allowing the City to establish part-time firefighter positions.  The fact-finder rejected such proposal.  At conciliation, the City abandoned such proposals.  Instead, it proposed that minimum full-time staffing be reduced from ten to nine under certain circumstances.  The parties agreed to such language in mediation prior to the conciliation hearing.  Thus, the successor agreement included no language allowing the City to use part-time personnel.

After the successor agreement was executed, the Fire Chief issued a memorandum announcing that the City “will begin using part-time fire medics to supplement (their) response shift staffing in the very near future. . . .”  The Union requested to bargain the issue, but the City refused.  Approximately (3) months later, the City hired part-time firefighters to perform emergency response work.  Thereafter, the Union filed an unfair labor practice charge with SERB alleging that such refusal to bargain and unilateral action constituted violations of R.C. 4117.11(A)(1)&(5).

The Board’s analysis finding the unfair labor practices is plain and clear-cut.  Pursuant to R.C. 4117.08(A), all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative.  Citing an extensive trail of SERB and court precedent, the Board reiterated its consistently held ruling that “the reassignment of work previously performed by members of a bargaining unit to persons outside the unit is a mandatory subject for collective bargaining under R.C. 4117.08(A) & (C).”  In re City of Green, 2014 OH SERB LEXIS 1, 10-11; quoting Lorain City School Dist. Bd. of Educ. v. State Employment Relations Board, 40 Ohio St.3d 257, 262 (1988).  Accordingly, the City’s unilateral reassignment of bargaining unit work and refusal to bargain over such reassignment constituted unfair labor practices.

As a remedy, the Board ordered that the City return to the status quo ante the bargaining unit work of full-time firefighters in the City of Green Fire Division prior to the City’s hiring of part-time firefighters.  By such order, the City must return to utilizing only full-time bargaining unit employees to perform the work of the bargaining unit.  Additionally, SERB ordered that the City of Green cease and desist from interfering with, restraining or coercing employees in the exercise of their rights by such unfair labor practices.  R.C. 4117.11(A)(1)&(5).

The Board made a point in its decision to refute the City’s argument that this case renders the management rights set forth in R.C. 4117.08(C) meaningless.  However, the Board’s decision does place the issue of reassignment at the negotiating table.  If the subject is brought up at the table as part of a negotiation for a successor agreement or initial agreement, the matter will ultimately be decided by a conciliator if the parties are unable to reach agreement.  If it is brought up as a proposal by the employer during mid-term bargaining, such can only be imposed by the employer after bargaining to impasse in the extraordinarily rare circumstance where such immediate action is necessary due to: (1) exigent circumstances unforeseen at the time of negotiations or (2) legislative action taken by a higher level legislative body after the agreement became effective that requires a change to conform to the statutes.  In re City of Toledo, SERB No. 11-01, 2011 OH SERB LEXIS 22.  It is most difficult to conceive a scenario where either of those conditions can be met relative to the subject of reassigning bargaining unit work.

The heavy-handed tactics of the City to impose its own sense of industrial justice irrespective of its duty to bargain under the Ohio Collective Bargaining Act was deservedly shot down by the Board in City of Green.  Such decision highlights the importance of the Act’s protections and the necessity of each bargaining committee to be prepared to successfully negotiate and/or block reassignment of work proposals at the table.



Last Updated (Saturday, 07 June 2014 13:42)

 

The SERB 2013 Report on Health Insurance Costs

The Research and Training Section of the State Employment Relations Board has released its annual report on the cost of health insurance in Ohio’s public sector.  The 2013 report analyzes health care surveys completed by 1,226 public employers in the state representing about 394,388 employees.  Such amounts to a 92.5% employer participation rate.  The survey answers are representative of public sector medical insurance plans in effect on January 1, 2013.  The report is necessary reading for negotiating committee members as it offers useful comparative data and background information for numerous healthcare issues.

The statewide average for an employee’s share of the medical and prescription drug premium is 11.2% for single coverage and 12.2% for family coverage. In terms of actual dollars and cents, employees are statewide paying $59 per month for single coverage and $171 per month for family coverage.  Among political subdivisions, employees of townships pay the least amount at approximately 6.3% of the premium for single coverage and 6.4% for family coverage.  This translates into township employees paying $28 per month for single coverage and $84 per month for family coverage.  Employees in cities are paying 9.6% for single coverage and 9.8% for family coverage.   This amounts to city employees paying $49 per month for single coverage and $135 per month for family coverage.  Employees of counties are paying 13.3% of the premium for single coverage and 14.4% of the premium for family coverage.  These percentages require county employees with single coverage to pay $72 per month for single coverage and $217 per month for family coverage.

SERB also analyzes employee contributions by eight geographical regions in the state.  Employees in the Dayton region pay the greatest share for medical and prescription drug insurance.  Employees with single coverage in the Dayton region are paying 13.2% of the premium while employees with family coverage pay 14.4% of the premium.  These employees are paying $69 per month for single coverage and $200 per month for family coverage.  The employee share of the premium is least in the Warren/Youngstown region with employees contributing 6.9% of the premium for single coverage and 6.8% of the premium for family coverage.  This equates to $36 per month for single coverage and $102 per month for family coverage.

It is also interesting to examine SERB’s report on medical plan design.  The report identifies the number of medical plans by deductible amounts.  Statewide, 29.7% of medical plans have deductibles for single in-network coverage in the amount of $100 or less, while 26.8% of the plans have deductibles for such coverage in an amount between $125 and $400.  23.0% of the plans have deductibles for such coverage in an amount of $1,200 or greater.  For in-network family coverage, 28.2% of plans statewide have deductibles in the amount of $200 or less, while 27.2% of the plans have deductibles between $250 and $800.  23.7% of the plans have deductibles for such coverage in an amount of $2,400 or greater.

After the deductible is reached, the percentage of costs paid by employees until they reach their out-of-pocket maximum amount is called co-insurance.  33.4% of plans statewide for in-network coverage do not require an employee co-insurance contribution while 32.5% of plans require a maximum employee co-insurance share of 10%.  Only 2.6% of plans require a maximum employee co-insurance share over 20%.  The statewide median out-of-pocket maximum amount for in-network coverage is $1,350 for single coverage and $2,600 for family coverage.

The SERB report also provides plan data for prescription drug costs.  The statewide median co-pay amounts for a 30 day drug supply under the “three tier” option most common in Ohio are as follows:  $10 for generic; $25 for brand and $40 for non-formulary brand.   SERB notes, as explained herein, that the employee premium contribution for prescription drug coverage is figured into the employee’s medical insurance premium contribution in 87.5% of reporting jurisdictions.

While the employee contribution to health care costs is always of prime concern in labor negotiations, it is also useful to look at the history of premium costs for medical and prescription drug coverage.  For 2013, the average premium for medical and prescription drug coverage statewide is $520 for single coverage and $1,370 for family coverage.  This represents a 2.8% increase for single coverage and a 2.3% increase for family coverage in comparison to 2012.  SERB shows in its report that from 1993 through 1999, premium increases were modest at around 4% per year.  From 2000 through 2005, annual increases in premium amounts were close to 15%.  Increases have moderated since then, as the increases from 2006 through 2013 have averaged only 4.8% per year.

The report also touches on dental and vision insurance.  When dental insurance is carved out from medical and prescription drug coverage and employees contribute to the premium, employees statewide are paying $5.00 per month for single coverage and $13.98 per month for family coverage.   The majority of dental plans statewide have annual maximums of between $1,000 and $1,500.    When vision insurance is carved out and an employee is required to contribute, the employee is statewide paying $2.00 per month for single coverage and $5.35 per month for family coverage.

Opt-out provisions are often discussed by employees in anticipation of negotiations.  Under these provisions, employees are paid by the employer for not enrolling in the employer’s health insurance plan.  According to the SERB report, opt-out provisions are offered statewide in 43.9% of jurisdictions.  The average incentive payment for an employee opting-out of single coverage is $1,344 per year while the average incentive payment for an employee to opt-out of family coverage is $2,048 per year.

High Deductible Health Plans now make up 21.0% of the plans across the state.  In 2012, such made up 22.3% of plans statewide, compared to 17% in 2011.  When such plans are offered in conjunction with a Health Savings Account or Health Reimbursement Arrangement, 49.3% of employers annually contribute to the account of single coverage employees in an amount between $1,000 and $1,999.  12.3% of employers annually contribute to such accounts in an amount over $2,000, while 38.4% of employers contribute less than $1,000.  For family coverage employees, 41.6% of employers annually contribute to such accounts in an amount between $2,000 and $3,499.  16.4% of employers annually contribute to such accounts in an amount of $3,500 or more, while 42% of employers contribute less than $2,000.

I wrote a similar analysis for Police Beat of SERB’s 2012 report on the cost of health insurance in Ohio’s public sector.  A comparison of the 2012 report with the 2013 report does not evidence any worrisome change in benefits and costs for employees or employers.  While we cannot control the employer’s objectives at the table, the SERB report on healthcare provides a tool to measure the reasonableness of both our position and the employer’s position relative to external comparability.  It is advisable to check out the SERB website to review the report and gain some statewide perspective on the specific issues that are relevant to your negotiations.

 

The Statutory Considerations For Making The Case At Hearing

Fact-finders and conciliators are not known to exclude evidence from hearings.  Generally, the neutrals accept all of the evidence and judge how much weight, if any, to give to the testimony or documents.  A starting point for determining such weight is a review of the statutory factors identified for a neutral’s consideration in Ohio’s Collective Bargaining Act.  For Union members new to the negotiating process and veteran negotiators alike, it is beneficial to review the statutory considerations that neutrals apply to each party’s case so that your unit can be best equipped to make a persuasive argument at hearing.

R.C. 4117.14 dictates that for both fact-finding and conciliation the neutral shall take into consideration the following factors:

(a) Past collectively bargained agreements, if any, between the parties;

(b)  Comparison for the issues submitted to final offer settlement relative to the employees in the bargaining unit involved with those issues related to other public and private employees doing comparable work, giving consideration to factors peculiar to the area and classification involved;

(c)  The interests and welfare of the public, the ability of the public employer to finance and administer the issues proposed, and the effect of the adjustments on the normal standard of public service;

(d)  The lawful authority of the public employer;

(e)  The stipulations of the parties;

(f)  Such other factors, not confined to those listed in this section, which are normally or traditionally taken into consideration in the determination of the issues submitted to final offer settlement through voluntary collective bargaining, mediation, fact-finding, or other impasse resolution procedures in the public service or in private employment.

A review of these factors explains the typical case put on by either side’s advocates.  The relevancy of past collective bargaining agreements goes to various issues from arguing in favor of maintaining long-standing provisions to arguing customary wage increases.  This factor pertains to both economic and non-economic factors and is especially important to parties with mature collective bargaining agreements.

The statutory guideline on the comparison of issues speaks to the comparability factor for which we are all familiar.  Interestingly, in addition to identifying work, geography, and classification as measures of comparability, the statute also identifies public and private employees.  Since there really are no comparable private employees for law enforcement to compare itself, this consideration is typically restricted to public employees for OPBA negotiations.  The rather general identification of the comparability factor leaves ample room for argument between the parties on relevant comparables.  As experienced negotiators are aware, it is not uncommon that a dispute over comparables lingers even for parties with long-standing bargaining relationships.

A neutral’s assessment of the financial condition of a public entity is framed by the statutory guidelines as the ability of the employer to “finance and administer” the issues proposed.  This rather broad guideline does not offer specific financial measurements and results in differing interpretations and conclusions among neutrals and advocates even when everyone can agree on the public entity’s numbers.  Also to be considered, whether related to financial proposals or operational proposals, are the interests and welfare of the public and the effect of the adjustments on the normal standard of public service.

Finally, the statutory guidelines provide a general provision that neutrals consider factors “normally or traditionally” taken into consideration through voluntary collective bargaining, mediation, fact-finding or other impasse resolution procedures in the public service or in private employment.  This provision acknowledges the traditions and customs of the collective bargaining relationship in the public and private sectors prior to the 1984 Act and permits the parties to present particular items of evidence to the neutral even when the relevance is not otherwise directly related to an expressed statutory consideration.  This factor would also include macro economic considerations traditionally considered in labor negotiations.

It is evident that the statutory considerations for neutrals at fact-finding and conciliation are general and susceptible to various interpretations, methods of proof, and judgments. Still, before a negotiating team settles on a position or strategy to make its case, a double check of the statutory guidelines is always helpful.  This review can alert committees of losing arguments and, at the least, help contextualize arguments to show compatibility with the statutory guidelines.

 

The SERB 2012 Report on Health Insurance Costs

The Research and Training Section of the State Employment Relations Board has released its annual report on the cost of health insurance in Ohio’s public sector.  The 2012 report analyzes health care surveys completed by over 1,100 public employers in the state representing over 370,000 employees.  Such amounts to an 84% employer participation rate that is very similar to past reports.  The survey answers are representative of health care costs for employers and their employees as of January 1, 2012.  The report is necessary reading for members of a negotiating committee as it offers useful comparative data and background information for numerous healthcare issues. 

The statewide average for an employee’s share of the medical and prescription drug premium is 10.7% for single coverage and 11.5% for family coverage. In terms of actual dollars and cents, employees statewide are paying $55 per month for single coverage and $157 per month for family coverage.  Among political subdivisions, employees of townships pay the least amount at approximately 5.5% of the premium for single coverage and 4.7% for family coverage.  This translates into township employees paying $25 per month for single coverage and $64 per month for family coverage.  Employees in cities are paying 8.4% for single coverage and 8.2% for family coverage.   This amounts to city employees paying $43 per month for single coverage and $116 per month for family coverage.  Employees of counties are paying 13.1% of the premium for single coverage and 14.3% of the premium for family coverage.  These percentages require county employees with single coverage to pay $67 per month for single coverage and $198 per month for family coverage. 

SERB also analyzes employee contributions by eight geographical regions in the state.  Employees in the Dayton region pay the greatest share for medical and prescription drug insurance.  Employees with single coverage in the Dayton region are paying 12.9% of the premium while employees with family coverage pay 14.2% of the premium.  These employees are paying $65 per month for single coverage and $189 per month for family coverage.  The employee share of the premium is least in the Warren/Youngstown region with employees contributing 6.3% of the premium for family coverage and 6.5% of the premium for single coverage.  This equates to $34 per month for single coverage and $85 per month for family coverage.

It is also interesting to examine SERB’s report on medical plan design.  The report identifies the number of medical plans by deductible amounts.  Statewide, 30.3% of medical plans have deductibles for single in-network coverage in the amount of $100 or less, while 29.3% of the plans have deductibles for such coverage in an amount between $125 and $400.  For in-network family coverage, 28.9% of plans statewide have deductibles in the amount of $200 or less, while 29.3% of the plans have deductibles between $250 and $800.   After the deductible is reached, the percentage of costs paid by employees until they reach their out-of-pocket maximum amount is called co-insurance.  33.7% of plans statewide for in-network coverage do not require an employee co-insurance contribution while 31.2% of plans require a maximum employee co-insurance share of 10%.  The statewide median out-of-pocket maximum amount for in-network coverage is $1,225 for single coverage and $2,500 for family coverage. 

The SERB report also provides plan data for prescription drug costs.  The statewide median co-pay amounts for a 30 day drug supply under the “three tier” option most common in Ohio are as follows:  $10 for generic; $20 for brand and $40 for non-formulary brand.   SERB notes, as explained herein, that the employee premium contribution for prescription drug coverage is figured into the employee’s medical insurance premium contribution in 86.6% of reporting jurisdictions.  

While the employee contribution to health care costs is always of prime concern in labor negotiations, it is also useful to look at the history of premium costs for medical and prescription drug coverage.  For 2012, the average premium for medical and prescription drug coverage statewide is $506 for single coverage and $1,339 for family coverage.  This represents a 6.8% increase for single coverage and a 7.0% increase for family coverage.  SERB shows in its report that from 1993 through 1999, premium increases were modest at around 4% per year.  From 2000 through 2005, annual increases in premium amounts were close to 15%.  Increases have appeared to moderate since then, as the increases for 2012 were the largest since 2006 for family coverage and 2005 for single coverage. 

The report also touches on dental and vision insurance.  When dental insurance is carved out from medical and prescription drug coverage and employees contribute to the premium, employees statewide are paying $4.50 per month for single coverage and $13.70 per month for family coverage.   61% of the jurisdictions have annual dental maximums of $1,000 per person.  SERB notes that the plans can vary drastically with some employers reporting plans including $4,000 annual per person maximums.  When vision insurance is carved out and an employee is required to contribute, the employee is statewide paying $2.48 per month for single coverage and $8.06 per month for family coverage.

Opt-out provisions are often discussed by employees in anticipation of negotiations.  Under these provisions, employees are paid by the employer for not enrolling in the employer’s health insurance plan.  According to the SERB report, opt-out provisions are offered statewide in 44% of jurisdictions.  The average incentive payment for an employee opting-out of single coverage is $1,392 per year while the average incentive payment for an employee to opt-out of family coverage is $1,990 per year.  


High Deductible Health Plans are becoming more popular across the state, as they now make up 22.3% of plans statewide, compared to 17% in 2011.  When such plans are offered in conjunction with a Health Savings Account or Health Reimbursement Arrangement, 50% of employers annually contribute to the account of single coverage employees in an amount between $1,000 and $1,999.  14% of employers annually contribute to such accounts in an amount over $2,000, while 36% of employers contribute less than $1,000.  For family coverage employees, 47% of employers annually contribute to such accounts in an amount between $2,000 and $3,499.  19% of employers annually contribute to such accounts in an amount over $3,500, while 34% of employers contribute less than $2,000.   

I wrote a similar analysis for Police Beat of SERB’s 2010 report on the cost of health insurance in Ohio’s public sector.  A comparison of 2010 report with the 2012 report does not evidence cause for alarm.  Generally, whether by percentage or actual amounts, some averages of employee costs have modestly increased while others have remained constant or decreased.   While we cannot control the employer’s objectives at the table, the SERB report on healthcare provides a tool to measure the reasonableness of both our position and the employer’s position relative to external comparability.





 

In re Urbana Firefighters: The Latest from SERB on the Toledo Exceptions


The recent attempt by labor’s foes to eliminate collective bargaining rights highlights the fact that law enforcement must defend itself on two fronts – the bargaining table and the Statehouse.  Following the defeat of Senate Bill 5, the State Employment Relations Board addressed labor politics on the local level with a bit of a twist.  In the decision of In re Urbana Firefighters Association, IAFF Local 1823 et al., SERB 2011-006 (11-17-2011), the Board held that the IAFF did not have to bargain with the City employer in order to circulate a petition to place on the ballot a City charter amendment aimed at setting full-time staffing requirements and establishing a Fire Division.  While the decision absolved the firefighters of any wrongdoing, the implications of the decision point to possible concerns.

In Urbana, the Union and City were parties to a collective bargaining agreement effective November 2008 through November 2011.  Among the agreement’s provisions, Article 3 set forth a Management Rights clause that reserved as exclusive management rights, inter alia, the right to determine the size and duties of the work force, staffing patterns, and to discontinue any Department or Division.

Early in 2010, the City conducted Labor/Management meetings with the City’s bargaining unit members to address the City’s budget shortfall.  The City sought wage and benefits concessions of ten percent from each of its Divisions during the first six months of 2010.  Similar meetings were held in June and July addressing the budget reductions for the second part of 2010.  After a June meeting, IAFF Local 1823 and several of its bargaining unit members acting as agents of the Union circulated petitions in the City for an amendment to the City charter.  The proposed amendment required the City to establish a Fire Division to provide fire, emergency, medical and rescue services.  Further, the amendment required the Division to be the sole and exclusive publicly-funded enterprise providing these services.  The amendment also required the City to: (1) employ no fewer than twenty-three employees in the Division; (2) employ all such employees as full-time employees and (3) fill vacancies within ninety days.  The Union was able to acquire the necessary number of signatures and the amendment was placed on the November ballot.

In September of 2010, the City filed unfair labor practice charges against the Union and its member agents alleging that they violated R.C. 4117.11(B)(3).   This section prohibits an employee organization, its agents, representatives or public employees to refuse to bargain collectively with a public employer.  The City alleged that the Union circumvented its duty to bargain by circulating the petition.   The proposed charter amendment ultimately did not pass.  SERB still heard the merits of the City’s charges after such failure at the polls.

The Board analyzed the case by initially finding that the proposed amendment language involved an “attempt to change the parties’ existing CBA during the term of the agreement by circulating a petition to amend the City’s Charter to permanently add, inter alia, a minimum manning provision for firefighters.”  SERB specified that “a review of Article 3 of the parties’ CBA reveals that this agreement clearly states that the City has the exclusive right to determine the size of the work force.”  SERB offered no other discussion to explain its finding that the amendment would have changed the CBA.      

Upon such finding, SERB  explored the question of whether such change to the agreement could be accomplished under the mid-term bargaining rule of In re Toledo School Dist. Bd. of Ed., SERB 2001-005 (9/20/2001).  The Board in Toledo explained:
Where the parties have not adopted procedures in their collective bargaining agreement to deal with midterm bargaining disputes, SERB will apply the following standard to determine whether an unfair labor practice has been committed when a party unilaterally modifies a provision in an existing collective bargaining agreement after bargaining the subject to ultimate impasse as defined in Vandalia-Butler:

A party cannot modify an existing collective bargaining agreement without the negotiation by and agreement of both parties unless immediate action is required due to (1) exigent circumstances that were unforeseen at the time of negotiations or (2) legislative action taken by a higher-level legislative body after the agreement became effective that requires a change to conform to the statute.

In addition, to clarify Youngstown, follow Franklin County Sheriff, and assure consistency in future cases involving issues not covered in the provision of a collective bargaining agreement, but which require mandatory midterm bargaining, SERB will apply the same two-part test as stated above.

In re Toledo School Dist. Bd. of Ed., SERB 2001-005 (9/20/2001).  According to the Board, the petition’s circulation in Urbana would not be an unfair labor practice if the “higher-level legislative body” exception applied.

The Board concluded that the “higher-level legislative body” exception did apply per the holding of In re Cincinnati, SERB 2005-006 (9-8-2005), SERB v. Queen City Lodge No. 69, 174 Ohio App.3d 570 (2007).  In the Cincinnati case, SERB found that the City of Cincinnati did not violate its duty to bargain when it placed a charter amendment concerning a police promotional process on an upcoming ballot to be voted on by the City’s electors.  Since the electorate was ultimately responsible for the proposed charter amendments in both the Cincinnati and Urbana cases, the Board found the circumstances analogous and concluded that the Urbana firefighters did not violate their duty to bargain by circulating the charter amendment petition.

The Union prevailed in Urbana.  However, the case raises concerns as the Board authorized the possibility of a City charter amendment operating to “change” a collective bargaining agreement under the “higher-level legislative body” exception announced in Toledo.   As you may recall, a 2011 Police Beat article noted that the Board has recently used the “exigent circumstances” exception from the Toledo case to approve, contrary to express provisions in the parties’ existing CBA, a City’s unilateral increase of employee health care premium contributions and its unilateral elimination of the City’s requirement to pay employee pension contributions.  See In re City of Toledo, SERB 2011-001 (March 29, 2011).     

Any purported right to actually change a collective bargaining agreement by charter amendment is antithetical to the purposes and protections of Ohio’s Collective Bargaining Act.  It is basic that R.C. 4117.10 (A) requires that the terms of a collective bargaining agreement prevail over a local law when the two are in conflict.  Jurcisin v. Cuyahoga County Bd. of Elections, 35 Ohio St.3d 137 (1988).  As noted in past columns, Rocky River v. State Employment Relations Bd., 43 Ohio St.3d 1 (1989), held, in part, that the finality of the conciliation process does not violate a City’s “home-rule” powers.  While it is not inarguable that the Charter amendment would have constituted a “change” to the CBA in Urbana, the fact that the Board’s holding was based on such finding legitimizes concern over the potential effects of the decision.

The Board, perhaps aware of the slippery slope that it was navigating, saw fit to temper its decision with a warning to both employers and Unions who would draw broad conclusions from the decision:
[W]e caution both public employers and employee organizations that deal with public employers to be circumspect when considering taking any action to secure through a charter amendment terms and conditions of employment that are different from those in the parties’ existing CBA.  Such actions will be closely scrutinized in future unfair labor practice charges that come before the Board and the Board will make its determinations on a case-by-case basis.

The Board’s warning reminds one of Judge Hildebrandt’s dissent in the Cincinnati case where he cautioned that “SERB has set a dangerous precedent by allowing the City to circumvent the rights of the Union and to frustrate the purpose of Ohio’s collective-bargaining law by allowing a public employer to agree to certain terms and conditions of employment with a Union and then shortly thereafter pass legislation that conflicts with those terms.”  Cincinnati, 582.


It is becoming evident that the Toledo exceptions will have to be revisited by the Board in some form, whether by interpretation or overhaul.  Both sides to a collective bargaining agreement deserve the right to rely on its provisions irrespective of attempts to change such terms by Charter amendment.  Any exception to maintaining the integrity of an agreement’s provisions must be closely scrutinized, even when it is the Union that would seemingly be favored.

 
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