SERB Rules Staffing Can Be Submitted to Fact-finding




Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

Firefighters and public employers in Ohio have traditionally bargained over safe staffing levels and have frequently submitted those issues to fact-finding over the years. However, the City of Salem, in September, 2008, filed an unfair labor practice with the State Employment Relations Board (SERB) (Case No. 08-ULP-09-0380), contending that the Salem firefighters local committed an unfair labor practice when it submitted a staffing issue to fact-finding. SERB found probable cause and issued a complaint, alleging that IAFF Local 283 committed an unfair labor practice by submitting to fact-finding the issue of whether a provision on minimum staffing, already contained in its current contract, should be continued in the successor collective bargaining agreement. SERB alleged this was a violation of R.C. �4117.11(B)(2) and (B)(3).

The hearing on SERB�s Complaint was held in April, 2009. On July 20, 2009, the Administrative Law Judge issued her recommended decision. The ALJ recommended that the unfair labor practice charge be dismissed. According to the ALJ, the firefighters had every right to take the issue of staffing to fact-finding, and no violation of Ohio law occurred when they did so.

The City filed exceptions to the ALJ�s decision, arguing that it did not have to bargain staffing issues at all. On October 1, 2009, the three members of SERB issued a final decision reaffirming that firefighters can continue to bargain staffing issues and submit those issues to fact-finding.

SERB first ruled that a party has to negotiate the continuation, modification or deletion of an existing provision of a collective bargaining agreement. Once a subject is included in a collective bargaining agreement, either party has the absolute right to bargain over the subject in a succeeding agreement. This right includes submitting the issue to fact-finding and, if need be, to conciliation. Thus, the Salem firefighters had the absolute right to submit staffing to fact-finding since it was already contained in their agreement.

Second, without deciding whether minimum staffing was a permissive or mandatory subject of bargaining, SERB also ruled that a party may submit an issue to fact-finding regardless of whether it is categorized as permissive or mandatory. Because Ohio law authorizes a fact-finder to address all “unresolved issues,” there is no distinction between mandatory and permissive subjects of bargaining at fact-finding. The plain language of Ohio law allows a fact-finder to consider an unresolved issue, regardless of the label given to that issue. Accordingly, the Salem firefighters did not commit an unfair labor practice when they asked the fact-finder to rule on minimum staffing, since the staffing issue whether it was permissive or mandatory, was unresolved.

SERB�s opinion recognizes that labor relations are best served when the parties negotiate their issues. Allowing one party to refuse to negotiate an issue, or allowing it to simply engage in surface negotiations, knowing it will not have to defend the merits of its position at fact-finding, does not accomplish the purpose of promoting orderly and constructive relationships between all public employers and their employees.