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 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.
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.
Last Updated (Thursday, 06 October 2011 18:35)