OHIO VOTERS REJECT SENATE BILL 5
Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
Ohio voters sent a loud and clear message on November 8, 2011: Senate Bill 5 as passed by the Ohio General Assembly deserved to be thrown out into the trash. SB 5 was an anti-union, anti-employee and anti-collective bargaining act. It was designed to take away the freedom of public employees to bargain over important workplace issues, to impair the abilities of unions to effectively represent public employees, and to dictate not only to employees but to local governments as well the terms and conditions of employment for the employees of those local governments.
SB 5 would have made Ohio a collective bargaining state in name only. Although the Act stated that employees and employers may bargain wages, hours, and terms and conditions of employment, other provisions of the Act stripped away that right, making it illegal to even attempt bargaining of many important issues, and transforming what remained of collective bargaining into a meaningless exercise.
THE ACT WOULD HAVE PROHIBITED THE PARTIES FROM BARGAINING IMPORTANT WORKPLACE ISSUES
SB 5 removed many important issues, issues which have been traditionally bargained in the past, from the topics that are subject to negotiation. Even if the parties wanted to bargain the issues, SB 5 would have prohibited bargaining those issues. Among the important workplace issues that could no longer have been bargained if SB 5 became effective, were the following:
Pension contributions (pension pickups are often proposed by employers as cost savings measures; under SB 5 pension pickups would have been illegal and some employees would have seen their take home pay automatically reduced by thousands of dollars overnight, regardless of whether the employer needed to reduce personnel costs or even wanted to eliminate pension pickup, and despite the fact that pension pickups in the past were often granted to employees in lieu of wage increases).
Wage scale progression would have been based solely on “performance” and employees could not have bargained a wage progression on anything other than performance (the question as to how “performance” for firefighters, police officers, security guards, corrections officers and many other public employees is measured was not addressed by the Act).
Job security issues, including issues relating to privatization, contracting out and seniority, would have been totally off-limits to bargaining.
It would have been illegal to negotiate staffing levels (safe staffing levels are often of critical importance to safety forces; staffing in some occupations has a direct correlation to the rate of injuries and even the number of workplace deaths, but employee organizations could not have even brought minimally safe staffing levels to the bargaining table).
Overtime rates beyond the bare minimum required by Federal law could not have been bargained (provisions requiring employees to receive overtime pay if they work extra hours, to compensate them for working holidays, or for the time and inconvenience in reporting when they are supposed to be off-duty, etc., would have been illegal).
The continuation of past practices could not have been bargained.
Contrary to current law, SB 5 excused employers from bargaining over the continuation, modification, or deletion of an existing provision of a collective bargaining agreement or the effects of management decisions on employees’ wages, hours, and terms and conditions of employment.
Management rights were greatly expanded by SB 5. For instance, under SB 5, employers no longer would need just cause for disciplining employees, and an employer could have simply refused to agree to a provision that would require just cause for it to discipline employees. Employees would have had no contractual recourse if an employer arbitrarily and unjustly terminated an employee.
As another example, although unions supposedly could negotiate “hours,” SB 5 stated that “the starting and quitting time and the number of hours to be worked” are management rights and can be part of a collective bargaining agreement only if the public employer “specifically agrees.” What is left to negotiate?
EVEN FOR THOSE ISSUES THAT COULD BE “BARGAINED,” THERE WAS NO REAL BARGAINING AS THE EMPLOYER, IN THE END, COULD SIMPLY IMPOSE ITS OFFER ON THE EMPLOYEES
Under SB 5, there was no incentive, and no reason, for an employer to ever agree to a union proposal. Collective bargaining was essentially replaced by SB 5 with a system in which the public employer needed only to sit down with its employees, listen or pretend to listen to their issues and proposals, and then, in the end, implement whatever language it wanteds as the parties’ new “agreement.”
Striking was made illegal, and substantial penalties would have been imposed on employees who were deemed to be on strike. The impasse resolution procedures currently found in Chapter 4117 would have been replaced by a procedure in which the employer itself decided how to resolve any issues between the parties. With employees effectively eliminated from the bargaining process, employers could simply implement their own offers, regardless of how arbitrary, unfair, and unreasonable those offers were.
EMPLOYEES WHO HAD BEEN ABLE TO BARGAIN WILL HAVE BEEN DEPRIVED OF THAT RIGHT.
Fire department officers, who have been able to bargain since 1984, would have been classified as “fire supervisory officers” who could not bargain.
Other employees, such as faculty members, who have been able to bargain would also have found themselves deprived of bargaining rights.
THE ACT MADE IT MORE DIFFICULT FOR EMPLOYEE ORGANIZATIONS TO REPRESENT THEIR MEMBERS
The Act made it more difficult for employee organizations to operate and to effectively represent their members. It would have been more difficult and sometimes almost impossible for unions to obtain recognition under the Act. On the other hand, the Act made it easier for employers to decertify unions and to hinder their operation.
Employees do not have to join a union now. They have the right to refuse to join their union, but the union still represents them. It is not expected, however, that employees will get a free ride (i.e., representation by the union and all the benefits of the union contract without paying any of the costs of the union). A member who does not join the union may, if agreed to by the employer, have to pay what is known as a fair share fee representing his/her pro-rated costs of the union’s representation of all bargaining unit members. SB 5 would have made fair share fees illegal. Under the Act, employees would have been able to get free rides (all the benefits of having a representative without any of the costs of that representation).
Collective bargaining agreements were singled out for special adverse treatment by employers who claim to be in fiscal emergency. Political jurisdictions could have invalidated their contracts with unions, while their contracts with other organizations or entities remained sacrosanct and not subject to being set aside by the jurisdiction.
SB 5 made it easier for employers to retaliate against or terminate employees for the exercise of their protected rights.
In a clear demonstration of its anti-union bias, SB 5 imposed penalties on unions, but not on employers, for violations of the unfair labor practice section. If a union committed an unfair labor practice, no matter how trivial, minor, or technical, the State Employment Relations Board would have had to order the suspension of payment of the union members’ dues for 30 days or twice the duration of the illegal activity, whichever period is greater. However, there were no penalties if an employer commits an unfair labor practice.
Senate Bill 5 amended 160 sections, enacted 13 new sections, and repealed 9 sections of Ohio law. It might as well have been called the Make Work for Lawyers Act because its many poorly drafted provisions and numerous constitutionally questionable changes would have resulted in years of litigation.
It is impossible to detail every one of the many changes that would have been made in the 445 page bill in this short summary. But it is safe to say that every one of the changes made by SB 5 was designed to (1) restrict employees in exercising their freedom to form and join a labor union to address workplace issues, (2) take away the rights of employees to bargain their wages, hours, terms and conditions of employment and dramatically limit collective bargaining, (3) turn collective bargaining into a game where the employer always gets what it wants, (4) mandate a substantial reduction in benefits and take home pay for almost all public employees (even those working for governmental units that are not in financial distress and those that are already underpaid), (5) dictate, at the state level, what local communities may, or may not, do, or (6) curtail and weaken the ability of employees to represent themselves.
While proponents of SB 5 claimed it was necessary to achieve balanced budgets, SB 5 was in reality a union-busting bill masquerading as a budget balancing tool. Unions across the State have been working side by side with public employers to address fiscal concerns. Indeed, the last few years demonstrate how collective bargaining can and does work to the benefit of all. There is no reason to change a system that has worked and continues to work.
Ohio voters agreed. By an overwhelming margin, they rejected SB 5 in the referendum election.