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.

By: Mark Volcheck, OPBA Attorney

While Senate Bill 5 is the first major legislative attack on public sector unions since Ohio’s collective bargaining law was adopted by the General Assembly and signed by Democratic Governor Richard Celeste in 1983, it is not the first attempt by labor’s foes to quash the law’s protections.  Upon the law’s effectuation in 1984, the battle lines were in the courts and all eyes were focused on the City of Rocky River’s constitutional challenge to the law’s conciliation provision.  The story of such challenge is eye-opening as it shows the narrow margin upon which over a quarter century of labor peace was confirmed for municipal safety forces.

In 1984, the City of Rocky River and the Rocky River Firefighters’ Union went to fact-finding for the first time under the new collective bargaining law.  The fact-finder found for the City on every issue except wages.  The City rejected the report and the parties proceeded to conciliation.  Under Ohio’s collective bargaining law, conciliation is the last step of the negotiation process for safety forces whereby a conciliator chooses among either side’s final offer on each outstanding issue on an issue by issue basis.  The conciliator’s decision represents a binding mandate to the parties to implement the award.  The conciliator in this matter also ruled in favor of the Union on the issue of wages.  

Prior to conciliation, the City filed a declaratory judgment action in the Cuyahoga County Court of Common Pleas alleging that the conciliation process violated the City’s “home-rule” powers and otherwise was an unlawful delegation of municipal legislative power.  The Court of Common Pleas rejected the City’s claims for declaratory judgment and upheld conciliation.  This decision was affirmed by the Eighth District Court of Appeals.  The case then proceeded to the Ohio Supreme Court.  It is there where things got interesting.

On November 2, 1988, the Ohio Supreme Court reversed the Eighth District.  In a decision popularly known as Rocky I, the Court held that the law’s conciliation provision “is unconstitutional to the extent that it violates a municipality’s right to exercise its powers of local self-government under Sections 3 and 7, Article XVIII of the Ohio Constitution, because it interferes with the municipality’s power to determine municipal safety employee compensation.”  Further, it held conciliation to be “unconstitutional to the extent that it unlawfully delegates municipal legislative authority by mandating binding arbitration for collective bargaining disputes over municipal safety employee benefits and wages.”  Accordingly, the City prevailed.  The decision was by a vote of four to three.

Following the Ohio Supreme Court’s decision, a number of motions for rehearing and/or clarification were filed.  On December 22, 1988, the Court denied such motions by the same four to three vote.  By such denials, the Court’s decision in Rocky I was preserved.  Such decision is known as Rocky II. Beginning January 2, 1989, Justice Alice Robie Resnick, formerly the Presiding Judge on the Sixth District Court of Appeals, began her first term on the Ohio Supreme Court after having been elected in 1988. She took the place of Justice Ralph Locher, a former Cleveland mayor who had sided with the majority in Rocky I and Rocky II.  On January 3, 1989, a motion for reconsideration was filed by the Union.  A grant of such motion would permit the Supreme Court to reconsider its prior rulings.  In a decision known as Rocky III, the Supreme Court voted four to three to grant the motion for reconsideration and the case was resubmitted.  Justice Resnick was the deciding vote as she sided with the three other Justices who had been in the minority for Rocky I and Rocky II.    

On May 10, 1989, by the same four to three vote as Rocky III, the Court upheld the constitutionality of conciliation.  In a decision known as Rocky IV, the Court rejected the City’s argument that conciliation was an unconstitutional delegation of municipal legislative authority. It found that the conciliation process provides practical and intelligible standards and principles for the conciliator’s decisions that are subject to judicial review under Chapter 2711 of the Revised Code.  Therefore, the Court reasoned, such clearly meets the accepted legal threshold for such statutory process. 

The Court also rejected the City’s home-rule argument.  Specifically, the Court held that the plain and express language of Section 34, Article II of the Ohio Constitution establishes the primacy of the collective bargaining law relative to any other alleged constitutional authority.  Section 34, Article II of the Ohio Constitution states:  “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.”  The City’s claim to invalidate the law upon Sections 3 and 7 of Article XVIII fails by the clear and unambiguous language of the Ohio Constitution expressing the primacy of laws passed under Section 34, Article II.  Thus, the Ohio Supreme Court rescued conciliation for municipal safety forces from its prior decision.

Conciliation is among the most prized components of the collective bargaining law for safety forces.  It guarantees that either party’s position on any negotiable item in dispute will ultimately be determined by a neutral and fair third party arbitrator upon sound and accepted standards for judgment.  Of course, Senate Bill 5 eliminates this process for all safety forces and surrenders such judgment and authority to the legislative body of the employer.  In a bill plagued with countless problems, that provision alone makes a sham of the entire negotiation process.  So, don’t forget to vote on November 8.  As history makes abundantly clear, every vote counts.

The Research and Training Section of the State Employment Relations Board annually publishes a report on the cost of health insurance in Ohio’s public sector.  The report for the year 2010 analyzes health care surveys completed by over 1,000 public employers in the state representing over 370,000 employees. Since nearly 80% of public employers in the state responded to SERB’s survey, the data and statistical averages furnished in the report are presented by SERB to be representative of various aspects of public employee health care in the state. The report is useful for negotiators as it presents an efficient overview of the current state of affairs on the healthcare front. 

The statewide average for an employee’s share of the medical and prescription drug premium is 9.4% for single coverage and 10.6% for family coverage. In terms of actual dollars and cents, employees are statewide paying $43 per month for single coverage and $128 per month for family coverage.  Among political subdivisions, employees of townships pay the least amount at approximately 4% of the premium for either single or family coverage.  This translates into township employees paying $17 per month for single coverage and $51 per month for family coverage. Employees of counties pay the largest premium share, as they are paying 15.9% of the premium for single coverage and 17.5% of the premium for family coverage.  These percentages require county employees with single coverage to pay $59 per month for single coverage and $181 per month for family coverage.  Employees in cities are paying 8.1% for single coverage and 8.3% for family coverage.   This amounts to city employees paying $36 per month for single coverage and $102 per month for family coverage.

SERB also analyzes employee contributions by eight geographical regions in the state. Employees in the Columbus region pay the greatest share for medical and prescription drug insurance.  Employees with single coverage in the Columbus region are paying 11.2% of the premium while employees with family coverage pay 14.5% of the premium.  These employees are paying $55 per month for single coverage and $180 per month for family coverage.  The employee share of the premium is least in the Warren/Youngstown region with employees contributing 5.6% of the premium for family coverage and 6.0% of the premium for single coverage.  This equates to $27 per month for single coverage and $67 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, 41% of medical plans have deductibles for single in-network coverage in the amount of $100 or less, while 30% of the plans have deductibles for such coverage in an amount between $125 and $400. For in-network family coverage, 41% of plans statewide have deductibles in the amount of $200 or less, while 29% 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.  36% of plans statewide for in-network coverage do not require an employee co-insurance contribution while 32% of plans require a maximum employee co-insurance share of 10%.  The statewide median out-of-pocket maximum amount for in-network coverage is $1,000 for single coverage and $2,000 for family coverage.  Similar to employee premium contributions, employees of counties pay greater deductibles, co-insurance percentages and out-of-pocket maximum amounts than employees in cities and townships.

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 $35 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 nearly 90% of all 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 2010, the average premium for medical and prescription drug coverage statewide is $458 for single coverage and $1,186 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 increases have stayed below 5% per year since 2007. For 2010, single premiums increased 4.6% and family premiums increased 3.1%.

The report also touches on dental and vision insurance.  When dental insurance is carved out from medical and prescription drug coverage and a contribution is required, employees statewide are paying $9.58 per month for single coverage and $23.01 per month for family coverage.   39% of the plans have a $1,000 annual per person maximum as compared to 28% having a $1,500 per person maximum and 24% having between $1,600 and $4,000 per person maximum.  When vision insurance is carved out and an employee is required to contribute, the employee is statewide paying $4.55 per month for single coverage and $11.17 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 $1,211 per year while the average incentive payment for an employee to opt-out of family coverage is $1,694 per year. 

Information and data are crucial for any negotiation.  This is especially true for negotiating issues of health care. While each negotiation is different and each jurisdiction may have relevant subjects of inquiry and evidence specific to itself, the SERB report can be beneficial to your bargaining committee’s internal deliberations and at the table.   

Health insurance is a hot topic for nearly every negotiating term.  Over the past ten to fifteen years, employers have sought to diminish coverages and benefits by offering inferior plans and by requiring employees to contribute a greater share of the premium.  A potential up-and-coming subject for health insurance negotiations may be wellness programs.  These programs are sold upon the basis that they force employees to get healthier.  As a result, employers argue that implementing wellness programs will increase productivity and decrease health care costs.  Irrespective of whether these claims are founded, wellness programs present a variety of concerns for all employees, especially those with health problems.

There is not a single definition for a wellness program.  Members may have heard this term used by employers to tout fitness center discounts, voluntary opportunities for physical fitness during the workday, or offerings of employee seminars on nutrition and health.  These types of programs do not present problems and are generally favored by employees.  The programs that do present concerns are those that penalize employees for non-participation or failing health.  
Each wellness program will typically require a health assessment for each employee and their dependents (if dependents are included in the program).  The assessment is done by a third party health care provider that is bound by law not to share confidential health information with the employer.  Before any consideration is given to a wellness program, the privacy and confidentiality for such data should be confirmed.

The assessment, which is conducted at least annually, is used to measure the various health factors considered by the program and establish individual goals for each of the factors. The determination of what health factors are measured varies from program to program.  For example, while one program may measure for the body mass index, another may not.  An assessment can include health factors that are measured by height and weight, heart rate and blood pressure.  Additionally, an assessment may also include highly invasive procedures such as blood draws for a biometric screen that measures various molecular health factors.  For example, the blood draw may test for cholesterol, triglycerides, nicotine levels, etc.  As part of the assessment, employees and their dependents may also be given questionnaires that pertain to personal health issues.        
Upon being assessed, the participants’ results are quantitatively scored by and according to the health factors screened.  For each factor, achievement goals are assessed.   Additionally, recommendations may be made to the participant on how to improve any health factor and/or to seek medical assistance.  As part of the program, there may be additional requirements to attend “coaching” sessions, health-related seminars and/or like events.

At the time of the next assessment, the participant is assessed as to whether he met his goals for the particular health factors measured.  Depending how the particular program scores employees, scores relating to each health factor are tabulated and an employee is given either a passing or failing grade.
The scores can be very important as some programs use them to determine employee penalties or rewards (depending how one views the matter).  For example, some programs require failing employees to pay a greater share of their premium contribution compared to those employees who passed.  Accordingly, the employer will be aware as to whether an employee passed or failed by virtue of his contribution.  If employee premium contributions are at issue, there are a host of HIPAA regulations concerning non-discrimination that come into play.  For example, employees must be given the opportunity to present medical waivers of certain graded criteria and the opportunity to seek a reasonable alternative standard.  However, the consideration given to such requests and the ultimate outcome of disputes over such matters present administrative and legal concerns that may not have a simple answer. 

As noted above, an unusual feature of a wellness program is that it may require dependant classes of employees to participate.  Thus, an employee may be penalized with a higher premium contribution even though the employee has passed his annual health assessment but the employee’s spouse, for example, failed or refused to participate.
The issue of penalizing or rewarding employees by premium contribution percentages recently became a point of debate in Congress’ consideration of health care reform.  Presently, per HIPAA regulations, the amount of the reward must not exceed twenty percent of the cost of coverage.  The Senate bill for health reform increased the amount to thirty percent.  This increase was publicly opposed by numerous health research groups who argued that shifting costs to less healthy people is unfair.  As of today, the twenty percent rule still applies.

It is impossible in this space to address all of the various forms that wellness programs can take.  Generally speaking, however, these programs do present cause for concern.  First, invasive methods for acquiring health factor measurements and the biometric screening system itself causes privacy concerns.  Second, charging higher premiums to the unhealthy may be a way of undermining protections for those with pre-existing conditions.  Third, those with genetic predispositions for medical illness may be unfairly determined to be failures and subjected to higher premiums.  Fourth, the determination of what health factors are assessed is ultimately a subjective decision that may punish those who are, in fact, healthy.  Fifth, it is simply unfair to punish the unhealthy.  Finally, the sweeping nature of the program raises “big brother” concerns whereby behavior modification outside the workplace is either obeyed by the employee (and his family) or the employee is required to pay.

Should wellness programs become a matter of interest in your negotiations, it advisable to give close scrutiny to any such proposal.  While there are legal protections that address some of the concerns, there is no guarantee that one’s expectations under these protections will be met.  In any event, each program requires a close review on its own merits and the pertinent laws at issue in order for a fair assessment to be made of the program’s suitability for the bargaining unit.