Henry A. Arnett, General Counsel for the Ohio
Association of Professional Fire Fighters
Amended Substitute Senate Bill 5 has been passed by the Ohio General Assembly, but a diverse group of organizations and individuals is mounting an effort to subject the Act to a referendum where Ohio voters will have the final say as to whether the Act becomes effective.
While the bill affects virtually every public employee in Ohio, this analysis is limited to the main parts of the bill that significantly affect firefighters. This analysis attempts to address some of the more pertinent provisions of the bill, made in the order in which they appear in the bill.
Revised Code §124.322 (Length of service cannot be only factor in layoffs)
Ordinarily the order of layoffs is based on length of service. The bill proposes to amend this section to provide that the order of layoffs may be based in part on length of service; however, length of service cannot be the only factor to determine the layoff order.
REVISED CODE §124.34 (Deletion of reduction in longevity as a possible disciplinary action)
Current law allows the reduction or elimination of longevity pay as a disciplinary action. This option is deleted as the General Assembly proceeds to eliminate longevity pay (pay must be based on performance, formerly called merit).
Revised Code §124.38 (Sick leave reduced)
Currently employees of municipal corporations and civil service townships are entitled to 4.6 hours of sick leave for each 80 hours of service. This is reduced to an accrual rate of 3.1 hours for each 80 hours of service.
Revised Code §124.81 (Employees must pay 15% of cost of health care benefits)
Although this section deals primarily with state employees, one change would mandate that no public employer, including political subdivisions, may pay more than 85% of the cost of “health care benefits.”
Revised Code §145.47 (No PERS Pension Pickup)
No public employer may pay the employees’ contribution to PERS.
Revised Code §307.054 (Merit pay in Joint EMS Districts)
Joint EMS Districts may use “performance” as the only basis for an employee’s progression through the salary schedule.
Revised Code §505.38 (Merit pay in Township Fire Departments)
Township trustees, when determining a salary schedule for its fire department personnel, must make “performance” the only basis for employees’ progression through the schedule.
Revised Code §709.012 (Layoffs and hiring of laid-off firefighters due to annexation cannot be based solely on seniority)
Current law provides that if a municipal corporation annexes township territory, resulting in a reduction of the fire fighters of the township, the township fire fighters are laid off or dismissed in the order of their seniority, and then hired by the annexing municipal corporation in the inverse order of dismissal by the township. This provision is not applied very often, but the bill would change it to provide that seniority cannot be the only factor to determine who is laid off. No order of hiring by the annexing municipal corporation is required.
Revised Code §742.31 (No OPFPF Pension Pickup)
No public employer may pay the employees’ contribution to the Ohio Police and Fire Pension Fund.
REVISED CODE §742.63 (LANGUAGE ADDED REGARDING DEATH BENEFITS).
Revised Code §4117.01(C) (Contract employees excluded)
Employees employed pursuant to a contract between a public employer and a private employer, over whom the NLRB has declined jurisdiction, are no longer covered by Chapter 4117.
Revised Code §4117.01(C)(9) (Unclassified employees excluded)
Most unclassified employees are now automatically excluded from 4117.
Revised Code §4117.01(C)(10) (Fire supervisory officers excluded)
Supervisors are currently excluded from protection under Chapter 4117. This section is amended so that “supervisors, including fire supervisory officers” are not entitled to bargain under Chapter 4117.
Revised Code §4117.01(F)(2) (Definition of fire supervisor [chief or alter ego] deleted)
Revised Code §4117.01(F)(2)) currently provides in part:
“With respect to members of a police or fire department, no person shall be deemed a supervisor except the chief of the department or those individuals who, in the absence of the chief, are authorized to exercise the authority and perform the duties of the chief of the department.”
Fire department bargaining units traditionally include rank and file firefighters as well as officers in the same bargaining unit. Chapter 4117 provided that no person would be excluded from a fire department bargaining unit on the ground that he or she was a supervisor except for the chief and the person who acts in the absence of the chief. The bill would eliminate this general exception to the definition of supervisors. Under the bill, all fire department supervisory officers would be excluded from bargaining.
Revised Code §4117.01(G) (Obligation to bargain over the continuation, modification, or deletion of an existing provision of a collective bargaining agreement deleted)
Current law states the following:
(G) “To bargain collectively” means to perform the mutual obligation of the public employer, by its representatives, and the representatives of its employees to negotiate in good faith at reasonable times and places with respect to wages, hours, terms, and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement, with the intention of reaching an agreement, or to resolve questions arising under the agreement. (Emphasis added).
The bill would delete the portion of the law emphasized above.
Revised Code §4117.01(H) (Strike redefined and reference to unauthorized strike deleted)
Reference and definition of an “unauthorized strike” deleted, since other provisions of the bill make all strikes illegal.
Revised Code §4117.03(A) (Obligation to bargain over the continuation, modification, or deletion of an existing provision of a collective bargaining agreement deleted)
As in 4117.01(G), the obligation to bargain over the continuation, modification, or deletion of an existing provision of a collective bargaining agreement is deleted).
Revised Code §4117.05(A) (Certification process of representative changed)
Currently certification of a bargaining unit representative is automatic after 21 days unless a petition for election is filed, substantial evidence exists to demonstrate there is not majority support, the unit is inappropriate, etc. The amendment changes this to provide only that SERB may “investigate” a request for recognition 31 days after the filing of the petition unless a petition for election is filed, substantial evidence exists to demonstrate there is not majority support, the unit is inappropriate, etc.
Revised Code §4117.05(C) (Deemed certified units no longer protected)
Deemed certified units may be changed by SERB and are subject to an election. A decertification petition may be filed by employees, another union, or the employer if evidence that 30% of the unit employees support the decertification petition.
Revised Code §4117.06(A), (C) (Only the most appropriate unit may be certified)
Currently, SERB may designate an unit sought by a union as an appropriate unit, even though another unit might also be appropriate. The bill changes this so that only the “most appropriate” unit may be certified.
Revised Code §4117.06(C)(6) (Rank and file members of a fire department may not be in the same unit as members who hold the rank of lieutenant or above)
The law is changed so that “rank and file members of a fire department” (firefighters?) may not be in the same unit as members who hold the rank of lieutenant or above (similar to current practice in police units). Any existing unit that has rank and file members in the same unit as members who hold the rank of lieutenant or above shall cease to be an appropriate unit when the existing collective bargaining agreement expires or three years from the effective date of the act, whichever is sooner. SERB would then have to designate the appropriate unit.
Revised Code §4117.07(A) (Election required if requested by employer)
SERB not to certify a unit without an election if an election is requested by the employer.
Revised Code §4117.07(C) (Limited contract bar to an election)
Currently no election pursuant to a decertification petition or rival petition may be held during the pendency of a collective bargaining agreement unless the petition is filed within a 30 day window period. The bill now allows such petitions and elections, if the collective bargaining agreement was entered into after the effective date of the act, no sooner than 120 days before the expiration date of the agreement and after the expiration date of the agreement.
Revised Code §4117.08(A) (Obligation to bargain over the continuation, modification, or deletion of an existing provision of a collective bargaining agreement deleted)
As also found in other sections, no longer would an employer have to bargain over the continuation, modification, or deletion of an existing provision of a collective bargaining agreement.
Revised Code §4117.08(B) (Parties may not bargain health care, pension pickup, privatization, contracting out or staffing levels)
List of subjects that cannot be bargained is expanded.
Unions could not bargain health insurance or health care benefits, except whether employees pay more than 15% could be bargained.
A pension pickup could not be bargained.
Parties may not bargain privatization, contracting out or staffing levels.
Revised Code §4117.08(C) (Management rights expanded)
Management rights are now waived only if the employer “specifically” agrees to do so, and the scope of management rights is expanded. Employers no longer need just cause for discipline. Staffing, scheduling, promotions, subcontracting, and so forth are now all encompassed within the scope of management rights.
Revised Code §4117.08(C) (Effects bargaining eliminated)
Effects bargaining is also eliminated. Currently an employer might have the management right to make a change, but if that change affects wages, hours, terms, and other conditions of employment, it has to bargain those effects. The bill eliminates the obligation to bargain over the effects of management decisions.
Revised Code §4117.08(D) (Employer’s ability to pay redefined)
The bill also states that in negotiating items that involve the employer’s ability to pay, “only the financial status of the public employer at the time period surrounding the negotiations” may be considered. The bill also prohibits the parties from looking at potential other sources of funding, such as future increases in the employer’s income “that would only be possible by the employer raising revenue,” tax levies, bond issues and ability to sell assets.
Revised Code §4117.08(E) (Parties cannot bargain a provision that would require the employer to pay more than 85% of the cost of health care benefits)
Revised Code §4117.08(F) (Nurses and safety forces may bargain “equipment issues directly related to safety”).
Revised Code §4117.09(B) (Arbitration only of disputed interpretations of express written provision of CBA)
Broad grievance and arbitration provisions are no more; parties can arbitrate only disputed interpretations of express written provision of the CBA.
Revised Code §4117.09(B) (Dues and fees deductions allowed only if union has filed financial report)
Union dues may be deducted from employees’ checks and paid to the union only so long as the union has filed and maintained its financial report outlining its expenditures.
Revised Code §4117.09(C) (Any agreement that an employee must join the union is void and unenforceable). Fair share fees are made an illegal subject of bargaining; fair share fees are not allowed. No employer shall agree to a provision for PAC deductions except in a manner as authorized by other specified provisions of Ohio law.
Revised Code §4117.09(F) (Seniority cannot be only factor in layoffs). The bill states that the parties cannot negotiate a contract in which length of service is the only factor to determine whether to layoff an employee.
Revised Code §4117.10(A) (Laws pertaining to health care prevail over conflicting provisions of a CBA).
Revised Code §4117.10(B) (Time limit for submitting a tentative agreement to a legislative body extended from 14 to 30 days..
Revised Code §4117.10(D) (Compensation of a supervisor cannot be automatically tied to compensation negotiated in a CBA).
Revised Code §4117.104 (New section allowing employers in fiscal watch to reopen a CBA and suspend increases; employers in fiscal emergency may serve notice to terminate, modify or negotiate an existing CBA)
This new section would change existing practice and allow an employer in fiscal emergency to send a notice to terminate, modify or negotiate to the union even though the parties’ contract is still in effect and not due to expire. The union would be forced to negotiate. Employers in fiscal watch could serve a notice to modify a CBA so that salary and/or benefit increases are suspended. Each CBA must contain a provision that it may be terminated or modified in accordance with this new section.
Revised Code §4117.105 (New section stating that privatization and contracting out may not be bargained)
No CBA may contain provisions (1) prohibiting contracting out, (2) requiring employer to retain existing employees if service is privatized or contracted out, (3) making employers pay anything additional to employees laid off because of privatization or contracting out.
Revised Code §4117.106 (New section stating staffing, pension pickup, overtime rates greater than the rate required by FLSA, and past practices may not be bargained)
For CBA’s entered into after the effective date of the act, it is illegal to have provisions (1) on staffing, (2) on pension pickup, (3) providing for an overtime rate greater than the rate required by FLSA, and (4) past practices.
Revised Code §4117.107 (New section creating limitations on benefits available to employees in DROP)
For CBA’s entered into after the effective date of the act, it is illegal to have certain provisions for employees in DROP including (1) longevity, (2) vacation in excess of 5 weeks, (3) vacation carryover in excess of 3 years (4) buyouts at an hourly rate greater than the employee’s rate at the time employee commenced participating in DROP. OPFPF must notify employer that employee is in DROP.
Revised Code §4117.108 (New section creating limitations on leave benefits)
For CBA’s entered into after the effective date of the act, there are limits on vacation (6 weeks for service less than 20 years), holidays (12) and personal days (3). Day means 8 hours and week means 40 hours, but these can be adjusted for employees who work more or less than 40 hours per week.
Revised Code §4117.109 (New section creating limitations on sick leave sellbacks)
For CBA’s entered into after the effective date of the act, sick leave sell-back limited to 50% and 1,000 hours. Police & fire sell-backs must be based on hourly rate when employee entered DROP.
Revised Code §4117.11 (ULP for union or employees to encourage secondary boycott)
Unions may not induce or encourage any individual to participate in a secondary boycott.
Revised Code §4117.11 (ULP for union or employees to engage in striking, or other concerted refusal to work)
Revised Code §4117.11 (ULP committed if party insists on bargaining a permissive subject of bargaining to impasse)
Revised Code §4117.11 (Expression of views, opinions or argument does not constitute or amount to evidence of a ULP if expression contains no “threat of reprisal or force or promise of benefit.”)
Revised Code §4117.12 (If union commits a ULP, SERB must order the suspension of payment of its dues for the greater of 30 days or twice the duration of the illegal activity, whichever period is greater)
Revised Code §4117.12 (Employer commits a ULP for suspension or discharge of an employee for exercise of protected rights if the “predominant basis for the suspension or discharge” was not related to exercise of those rights)
Adena ULP case overturned.
Revised Code §4117.14 (Numerous changes to negotiation time lines, publication of offers, etc.)
This section of the bill seeks to change many aspects of the negotiation process:
Time limits are changed (generally extended).
It removes any requirement to negotiate the continuation, modification, or termination of a provision of an existing agreement (also see above).
Current language authorizing mutually agreed to dispute resolution procedures (MADs) is deleted.
Parties’ offers become public records and must be posted on a website.
Fact-finder to consider additional factors including the interests and welfare of the public and the ability of the employer to finance and administer the issues to be resolved (labeled as the “primary consideration” by the bill), compensation paid by the employer to other employees, and the effect of the issues resolution upon the employer-wide collective bargaining program and the potential increases in cost to the public employer.
Simple majority rather than 3/5 needed to reject fact-finder’s report.
Conciliation completely removed as an impasse resolution procedure. After rejection of fact-finding, conciliation replaced by a hearing before the employer’s legislative body or a committee of the legislative body which chooses the last best offer of the union or of the employer. Ensuing contract is for three years. Limitations are placed on when a CBA can be retroactive and, if legislative body does not accept either offer, then the employer’s last best offer becomes the agreement.
Revised Code §4117.141 (New section added by house that allows a referendum on agreement if the chief financial officer determines that “new revenue” must be generated to fund the agreement or if he/she fails to timely make a determination as to whether new revenue is needed to fund the agreement)
Revised Code §4117.15 (No strikes by any public employee. Strikers may be fired. Absence from work creates presumption of strike. If chief executive officer of employee determines a strike, automatic deduction of pay equal to 2X daily rate for each day of strike. Penalties set forth for striking cannot be waived. No SERB review of employer’s finding that employees have engaged in a strike and imposition of penalties, but some determinations may be appealed pursuant to Chapter 119 of the Revised Code).
Revised Code §4117.21 (Fact-finding hearings open to the public if requested by either party).
Revised Code §4117.26 (Employer must report publicly the compensation made to employees).
Revised Code §4117.27 (Chief legal officer of employer must apply to court for an injunction if there is a strike and to impose penalties)
Section 4 (Amendments to 4117 apply to CBA’s entered into on or after effective date of act)
This uncodified section applies only to CBA’s and the amendments to Chapter 4117. Other sections of the bill presumably become effective on the date the bill becomes effective. Nothing in Act shall be construed as applying to CBA’s existing on effective date of Act.