Senate Bill 5 and HB 153: Impact on County Boards

STEPHEN P. POSTALAKIS B L A U G R U N D , H E R B E R T , K E S S L E R , M I L L E R , M Y E R S & P O S T A L A K I S , I N C O R P O R A T E D 3 0 0 W E S T W I L S O N B R I D G E R O A D , S U I T E 1 0 0 W O R T H I N G T O N , O H I O 4 3 0 8 5 ( 6 1 4 ) 9 2 3 - 3 1 1 2 S P P @ B H M L A W . C O M O H I O A S S O C I A T I O N O F C O U N T Y B O A R D S S E R V I N G P E O P L E W I T H D E V E L O P M E N T A L D I S A B I L I T I E S 2 0 1 1 S P R I N G C O N F E R E N C E H I L T O N A T P O L A R I S M A Y 1 9 , 2 0 1 1

Introduction

 S.B. 5 amends collective bargaining for public employees and mandates other changes in personnel actions for local governments.

 H.B. 153 – the state budget – picks up in some respects where SB 5 drops off and adds some other twists.

Recognition

 SERB must determine the most appropriate unit, which is not appealable.

 SERB would no longer be able to determine a unit to be the appropriate unit in a particular case, even though some other unit might also be appropriate.

Recognition

  Under continuing law, a union becomes the exclusive representative in one of the following ways:  By being certified by SERB after a SERB ‐ conducted election, or  Through filing a request for recognition.

If an employer has filed a petition for election, SB 5 prohibits SERB from certifying the union without an election unless, under continuing law, SERB determines that a free and untrammelled election cannot be conducted because of the employer’s ULPs and that at one time the union had the support of the majority of the employees in the unit.

Recognition

   No election allowed for a unit for which a SERB ‐ conducted election was held in the preceding 12 effective date of SB 5.

‐ month period, nor during the term of any lawful CBA entered into before the Petition for election can be filed with SERB no sooner than 120 days before the expiration date of any CBA or after the expiration date.  Current law limits the filing period to no sooner than 120 days but no later than 90 days before the expiration date.

No CBA can bar the conduct of an election or certification pursuant to a petition that is timely filed in accordance with SB 5.

Recognition

  SB 5 extends the time period during which an employee can object to the certification of a union as an exclusive representative from 21 days to 30 days. SERB must investigate a request for recognition on the 31st day following the request, unless by the 30th day (extended from 21 days under current law) following the request SERB receives any of the following:   A petition for election from the public employer; Substantial evidence demonstrating that a majority of the employees in the described bargaining unit do not wish to be represented by the union;   Substantial evidence from another union demonstrating that at least 10% of the employees in the described bargaining unit wish to be represented by the other union; Substantial evidence indicating that the proposed unit is not an appropriate unit.

Recognition

  Public employer cannot recognize a union if a lawful written agreement, contract, or memorandum of understanding exists on the effective date of SB 5 recognizing another employee organization or if the employee organization traditionally is the only representative of the unit. Under SB 5, nonexclusive or deemed certified recognition previously granted through an agreement or memorandum of understanding does not preclude SERB from doing any of the following:    Determining an appropriate unit; If necessary, removing classifications from a bargaining unit under an existing nonexclusive contract, agreement, or memorandum of understanding; Holding an election to determine an exclusive representative for all those employees deemed a part of the appropriate unit.

Recognition

  SB 5 allows another union, employees currently represented by the union, or the public employer to file a petition for decertification with SERB that is supported by substantial evidence, demonstrating that at least 30% of the employees in the described bargaining unit support the petition.  The petition may be submitted at any time subsequent to 120 days prior to the expiration of the CBA.

Under continuing law, if a petition is filed by any employee or group of employees, or any individual or union acting in their behalf, asserting that the designated exclusive representative is no longer the representative of the majority of employees in the unit, SERB must investigate the petition, and if it has reasonable cause to believe that a question of representation exists, provide for an appropriate hearing upon due notice to the parties.  If after the hearing SERB determines that a question of representation exists, SERB shall conduct an election in accordance with procedures under existing law.

Duty to Bargain

   For initial negotiations, SB 5 states that parties negotiating an initial agreement must offer to meet for a period of 120 days, increased from 90 days under current law, for purposes of negotiating an agreement.

With respect to parties that have an existing CBA, SB 5 requires the parties to, not less than 105 days prior to the existing CBA’s expiration date, offer to bargain collectively with the other party for the purpose of modifying or terminating any existing CBA or negotiating a successor CBA and notify SERB of the offer by serving upon SERB a copy of the written notice to the other party and a copy of the existing CBA.

All the terms and conditions of any existing CBA continue in full force and effect for a period of 105 days, increased from 60 days under current law, after the party gives notice or until the CBA’s expiration date, whichever occurs later.

Collective Bargaining-Strikes

 Prohibits public employees and employee organizations from striking and prescribes penalties for violating this prohibition (R.C. § 4117.15).

 Public employer can seek an injunction.

 Employees may be subject to removal or other disciplinary action provided by law for misconduct.  Employees who strike are subject to monetary penalties.

Collective Bargaining-Strikes

  No supervisor has the power to authorize, approve, condone, or consent to a strike, or the engaging in a strike, by one or more public employees, and such person shall not authorize, approve, condone or consent to such strike or engagement. Public employee who is absent from work without permission or who abstains wholly or in part from the full performance of the employee's duties in the employee's normal manner without permission, on the date when a strike occurs, shall be presumed to have engaged in the strike on that date.

 No public employee is entitled to pay or compensation from the public employer for the period engaged in any strike.

Collective Bargaining-Strikes

 Superintendent shall, on the basis of such investigation and affidavits as he/she may deem appropriate, determine whether or not such a violation has occurred and the dates of such violation.

 Has to determine the names of public employees who committed the violation and the dates of such violations.  Such determination shall not be final until the completion of the procedures provided by statute.

Collective Bargaining-Strikes

   Superintendent shall immediately notify each public employee that he/she was found to have committed the violation, the dates of the violation, and that the public employee has the right to object to the determination. Superintendent shall also notify the chief fiscal officer of the names of all the employees and of the total number of days, or portions thereof, on which it has been determined that the violation occurred.  Notice to each employee shall be by personal service or by certified mail to the employee's last address.

Not earlier than 30 days or later than 90 days following the date of the determination, the chief fiscal officer shall deduct from the compensation an amount equal to twice the employee's daily rate of pay (rate of pay at the time of the violation ) for each day or part thereof that the employee violated the law.  Employee is credited for amounts already withheld from an employee's compensation on account of the employee's absence from work or other withholding of services on the dates of the violation.

Collective Bargaining-Strikes

  Within 20 days after the date on which notice was served or mailed to a public employee, the employee may object to the determination by filing with the Superintendent the employee's sworn affidavit, which shall contain a short and plain statement of the facts upon which the employee relies to show that such determination was incorrect and which shall be supported by available documentary proof. 3 outcomes:  If the Superintendent determines that the affidavit and supporting proof establishes that the employee did not violate the law, the Superintendent shall sustain and dismiss the objection and so notify the employee.

Collective Bargaining-Strikes

  If the Superintendent determines that the affidavit and supporting proof raises a question of fact which, if resolved in favor of the employee, would establish that the employee did not violate the law, the Superintendent shall appoint a hearing officer to determine whether in fact the employee did violate the law.  Employee bears the burden of proof at the hearing. If the hearing officer determines that the employee failed to establish that the employee did not violate the strike prohibition, the Superintendent shall so notify the employee. If the Superintendent sustains an objection or the hearing officer determines on a preponderance of the evidence that the employee did not violate the law, the Superintendent shall immediately notify the chief fiscal officer who shall cease all further deductions and refund any deductions previously made.

Collective Bargaining-Strikes

 Employees may appeal the determinations made under R.C. § 4117.15 under R.C. Chapter 119.  The public employer, SERB, or any court of competent jurisdiction shall not waive the penalties or fines as part of the settlement of an illegal strike.

Collective Bargaining-Ability to Bargain

 Public employees have the right to collectively bargain with their public employers, and those public employers must bargain with those employees.  A public employee generally is any person holding a position by appointment or employment in the service of a public employer, but numerous exceptions exist.  Supervisor, confidential employees, management level employees, COG employees.

Collective Bargaining-Ability to Bargain



Removes the right of public employees to bargain collectively with their public employers to determine the continuation, modification, or deletion of an existing provision of a CBA.



Retain right to bargain collectively to determine “wages, hours, and terms and conditions of employment” and to enter into CBAs.



Retain right to refrain from joining a union.

Mandatory Subjects of Bargaining

  Parties to a collective bargaining relationship must bargain over certain topics, so-called “mandatory subjects”.  Not listed in statute, but are generally described as “matters pertaining to wages, hours, and terms and other conditions of employment.” R.C. § 4117.08. Parties may bargain, if they choose, over non-mandatory subjects.   Either party can simply refuse to bargain over a permissive subject, but it is an unfair labor practice to refuse to bargain over a mandatory subject. Currently, permissive subjects of bargaining, if those subjects are addressed by an existing collective bargaining agreement, become mandatory subjects.  For example, if an employer agrees to include a non-mandatory subject in a contract, perhaps evaluations or staffing levels, those matters become mandatory subjects of bargaining.

Mandatory Subjects of Bargaining

  S.B. 5 is likely to lead to disputes over what is and is not a mandatory subject. R.C. § 4117.01(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 [ agreement] and the continuation, modification, or deletion of an existing provision of a collective bargaining , with the intention of reaching an agreement, or to resolve questions arising under the agreement.”

Inappropriate Subjects of Bargaining

 Current list is expanded:  Employer ‐ paid employee contributions to any of the five public employee retirement systems;    Health care benefits, except for the amount of the premium for which a public employer and the public employees of the public employer pays. The provision of health care benefits for which the employer is required to pay more than 85% of the cost is not an appropriate subject for collective bargaining; The privatization of a public employer’s services or contracting out of the public employer’s work; The number of employees required to be on duty or employed in any department, division, or facility of a public employer.

Prohibited provisions

   Fair share fee cannot be required as a condition of employment.

Public employer prohibited from agreeing to a provision in a CBA that requires a public employee to become a member of a union as a condition for securing or retaining employment.  Any agreement that requires employees to join any union is void and unenforceable.

Cannot agree to a provision that provides for the payroll deduction for any contributions to a PAC using any other method than the method prescribed in Ohio’s Campaign Finance Law.  Written authorization must be obtained from the employee before automatic deductions for certain political contributions may be made.

Prohibited provisions

  Cannot agree to a provision in a CBA that requires the public employer, when a reduction in force is necessary, to use an employee’s length of service as the only factor to determine whether to lay off the employee.

CBA grievance procedure is limited to unresolved grievances that are based on the disputed interpretations of the express written provisions of the CBA.

 Currently, the grievance procedure addresses unresolved grievances and disputed interpretations of agreements.

Prohibited provisions

  Agreement to authorize the public employer to deduct the periodic dues, initiation fees, and assessments of members of the union upon presentation of a written deduction authorization by the employee is allowed to occur only if the union has filed and maintained its financial report outlining the organization’s expenditures as required by current law.

CBA cannot prohibit a public employer that the Auditor of State has declared to be in a state of fiscal watch from serving a written notice to modify a collective bargaining agreement so that salary or benefit increases, or both, are suspended.

Prohibited provisions

   CBA cannot prohibit a public employer that the Governor or Auditor of State has declared to be in a state of fiscal emergency from serving a written notice to terminate, modify, or negotiate a CBA.

CBA must have a statement that it can be terminated, modified, or negotiated when a fiscal watch/emergency has been declared.

If the public employer sends either of these notices, the parties may collectively bargain and enter into a new CBA.

Prohibited provisions

 Privatization:  CBA cannot contain any provisions that cause the public employer to do any of the following:  Retain existing employees as employees of the public employer if their work is privatized or subcontracted to another entity;  Pay any additional payments to employees who may be laid off as the result of such privatization or subcontracting, except for payments for accumulated time or leave credits that would normally be paid by the public employer to any other employee who is laid off for reasons other than the subcontracting or privatization of their work.

 Any provision inconsistent is void and unenforceable.

Prohibited provisions

 CBA cannot contain any provision that does any of the following:  Limits a public employer in determining the number of employees it employs or has working at any time, in any facility, building, classroom, on any work shift, or on any piece of equipment or vehicle, except provisions regarding certain equipment;    Provides for the public employer to pay any portion of a public employee's state pension contributions or payments; Provides for an hourly overtime payment rate that exceeds the overtime rate required by the Fair Labor Standards Act of 1938, 29 U.S.C. 207; Requires the public employer to adhere to, follow, or continue any practices or benefits not specifically set forth in the specific written provisions of the agreement.

 Any provision inconsistent is void and unenforceable.

Prohibited provisions

 CBA cannot contain any provision that exceeds the annual earnings or accrual rate of the following leave credits:    For vacation leave a maximum annual accumulation of six (6) weeks paid vacation prior to twenty years of continuous service; For compensated holidays a maximum annual earning of twelve (12) paid holidays; For compensated personal days a maximum annual earning of three (3) paid personal days.

 For purposes of this section, "day" means eight (8) working hours and "week" means forty (40) working hours for employees working a normally scheduled work week.  Those employees working a work week that exceeds or is less than forty hours shall have the number of hours per day or week increased or reduced proportionately based on the difference in hours between the employee's average work week and forty hours.

Prohibited provisions

   CBA cannot contain any provision for the exchange or sell-back of a public employee's accumulated paid sick leave balance at the public employee's final retirement or death that provides for a cash payment that exceeds fifty per cent of the public employee's total sick leave accumulations. No payment shall be made for accumulated sick leave in excess of one thousand hours. Such payment shall be based upon the public employee's hourly rate of pay at time of final retirement.  For purposes of this section, "final retirement" means when an employee retires and is immediately eligible to receive pension benefits by satisfying the normal length of service and age qualifications or as a result of disability.

School-related provisions

 Prohibits school district, educational service center, a conversion community school that engages in collective bargaining, or STEM school (“School”) from entering into a CBA that does any of the following:    Requires the School to employ a minimum number of total personnel or any category of personnel; Restricts the authority of the School to assign personnel to school buildings or restricts the authority of a building principal to designate the responsibilities and workloads of personnel assigned to the building; Establishes a maximum number of students who may be assigned to a classroom or teacher;

School-related provisions

     Prohibits the School from making reductions in teachers or nonteaching employees for specified reasons or adopted in an authorized policy; Restricts the authority of the School, when making personnel reductions, to determine the order of layoffs; Restricts the authority of the School to acquire non-educational services from another public or private entity through competitive bidding; Restricts the authority of the School to acquire any products, programs, or services from an educational service center under continuing law; Otherwise relinquishes, impairs, or restricts the managerial rights and responsibilities of the School.

School-related provisions

  A CBA between a School and union must comply with all applicable state or local laws or ordinances regarding wages, hours, and terms and conditions of employment of public employees, except that the CBA may include a provision that conflicts with an applicable law or ordinance if the provision establishes benefits that are less than the benefits conferred by the law or ordinance and the law or ordinance has not been expressly deemed to prevail over the conflicting provision.  The bill declares void any provision of the agreement that conflicts and that does not fulfill the exception.

A School is not required to, and may refuse to bargain on the continuation, modification, or termination of a provision of an existing CBA.

Management Rights

 Requires public employer to specifically agree otherwise in an express written provision of a CBA to waive the right to do any of the following:  Hire, discharge, transfer, suspend, or discipline employees;  Determine the number of persons required to be employed or laid off (similar to current law);  Determine the qualifications of employees;  Determine the starting and quitting time and the number of hours to be worked by its employees;  Make any and all reasonable rules and regulations;

Management Rights

 Determine the work assignments of its employees;  Determine the basis for selection, retention, and promotion of employees;  Determine the type of equipment used and the sequence of work processes;*  Determine the making of technological alterations by revising either process or equipment or both;*  Determine work standards and the quality and quantity of work to be produced;  Select and locate buildings and other facilities;

Management Rights

 Establish, expand, transfer, or consolidate work processes and facilities;  Transfer or subcontract work;  Consolidate, merge, or otherwise transfer any or all of its facilities, property, processes, or work with or to any other municipal corporation or entity or effect or change in any respect the legal status, management, or responsibility of such property, facilities, processes, or work;  Terminate or eliminate all or any part of its work or facilities.

Negotiations

 During negotiations, the parties must consider, for purposes of determining the ability of the public employer to pay for any terms agreed to during collective bargaining, only the financial status of the public employer at the time period surrounding the negotiations.

 When determining whether the employer can pay for those terms, the parties must consider the employer’s inability to pay.

Negotiations

 May not base the ability of the public employer to pay for those terms on either of the following:  Any potential future increase in the income of the public employer that would only be possible by the employer obtaining funding from an outside source, including, but not limited to, the passage of a levy or a bond issue;  The employer’s ability to sell assets.

Approval



Submission for approval to legislative body extended to 30 days from 14 days.

Dispute Resolution

 Mediation:  Eliminates ability of the parties to submit disputed issues to a mutually agreed ‐ upon dispute resolution procedure.  Changes timelines to request SERB to intervene and for SERB to appoint a mediator.  If the parties are unable to reach an agreement 75 days before the CBA expires, changed from 50 days under current law, any party may request SERB to intervene.

Dispute Resolution

 The request must set forth the names and addresses of the parties, the issues involved, and, if applicable, the expiration date of any CBA.

 SERB must intervene and investigate the dispute to determine whether the parties have engaged in collective bargaining.  If an impasse exists or 70 days before the expiration date of the CBA, changed from 45 days under current law, SERB also must appoint a mediator to assist the parties in the collective bargaining process.

Dispute Resolution

  After mediator appointed, can now request fact-finder, not a fact-finding panel. If no CBA exists 45 days before the expiration of the CBA if one exists, SERB shall appoint a fact-finder.  If a fact-finder is appointed, SERB and the public employer promptly shall post in a conspicuous location on the web site maintained by SERB or public employer, respectively, the terms of the last CBA offered by the public employer and the terms of the last CBA offered by the union.

Dispute Resolution

 Fact-finder must consider all of the following:  Past CBAs, if any, between the parties;  Comparison of the issues submitted to fact-finding 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;  As the primary consideration, the interests and welfare of the public and the ability of the public employer to pay for and administer the issues proposed;  The lawful authority of the public employer;  The stipulations of the parties;

Dispute Resolution

 Fact-finder must consider all of the following:  The compensation paid by the public employer to its public employees who are not members of the bargaining unit represented by the union or who are members of that bargaining unit but are not members of the union;   The effect of the recommendations on the public employer's employer-wide collective bargaining program and practices, and the potential increases in cost to the public employer; Such other factors that 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.

Dispute Resolution

  Fact ‐ finder’s findings of fact and recommendations on the unresolved issues must be sent to the public employer, union, and SERB no later than 15 days prior to the date the CBA expires (changed from 14 days after the panel is appointed as under current law). Must include with the findings of fact and recommendations a written report explaining how each of the factors described above factored into the findings and recommendations.

Final Resolution

   Legislative body must vote 15 days after the findings and recommendations are sent or after the collective bargaining agreement expires, whichever occurs earlier (currently 7 days after report).

Only a majority (not 3/5) vote is necessary for both legislative body and union.

But, if rejected, employees cannot strike, and conciliation is eliminated.

New Final Resolution

  If the parties are unable to reach agreement within 5 days after the publication of findings and recommendations from the fact ‐ finder or within 5 days after the CBA, if one exists, has expired, then the Superintendent must submit to the legislative body a copy of the public employer’s last best offer, and the union must submit the union’s last best offer.

Legislative body (or committee) must conduct a hearing, within 15 days after the date the CBA, at which the parties must be required to explain their positions with respect to the report of the fact ‐ finder.

New Final Resolution

   After receipt of the submissions and prior to the hearing, the legislative body must have the CFO of the legislative body determine which last best offer costs more.

 CFO must certify the results of the determination. Legislative body must hold the hearing open to the public and must not deem the hearing an executive session of the legislative body. Upon conclusion of the hearing, legislative body must vote, within 15 days after the date the collective bargaining agreement expires, to accept either the last best offer of the exclusive representative or the last best offer of the public employer.

New Final Resolution

  If, by reason of a tie vote, or for any other reason, the legislative body does not accept either last best offer within 30 days after the date the CBA expires, then the public employer’s last best offer becomes the agreement between the parties.

Such agreement must be effective for a term of three years.

Voter approval

  Within 3 days after the legislative body selects a last best offer or the public employer's last best offer becomes the agreement, the CFO of the legislative body shall determine whether sufficient revenues exist to cover the agreement.

If the last best offer that costs more was chosen and if the CFO determines that insufficient funds exist or refuses to make the determination, either party to the agreement or any constituent who resides within the county may submit the last best offer from each party that was submitted to the legislative body to the electors.

Voter approval

   The party or constituent must submit to the board of elections the signatures of either 5% of the number of electors within that area that voted in the most recent gubernatorial election or 100 electors who reside in the geographic area, whichever is greater. The petition for collecting the signatures must include a summary of each last best offer. The signatures must be submitted not later than 75 days prior to the date of the election.  If the petition contains the required number of signatures, the board of elections must submit the last best offers to the electors.

Voter approval

 The following question shall be placed on the ballot at the next succeeding general election or at a special election on the day of the next succeeding primary election in any year occurring subsequent to 75 days after the petition is filed:  “Vote for not more than one:  The union’s labor contract proposal  The (name of public employer) labor contract proposal.”

Voter approval

   Only electors who reside within the county are eligible to vote on the issue. The board must place a copy of each last best offer at each polling location at which the electors vote on the issue. Legislative body must post on its web site the full text of each last best offer submitted to the legislative body.

Notice of the election must be published in a newspaper of general circulation in the applicable voting area once a week for two consecutive weeks prior to the election, and if the board of elections maintains a web site, it must post notice of the election on the web site for 30 days prior to the election.  Each notice must contain the summaries prepared by the parties.

Voter approval

   Last best offer receiving a majority of the votes cast in the election must become the agreement of the parties. Parties must enter into a CBA in accordance with the last best offer upon certification of the results of the election.  CBA must be for a term of three years after the date the results of the election are certified.

Any CBA entered into on or after the SB 5’s effective date that is subject to the voter approval procedure must contain a provision that states that the agreement may be subject to approval of the voters.

Unfair Labor Practices

 Three new ULPS for union and employees:  Inducing or encouraging any individual to engage in a secondary boycott whether under the existing agreement or as part of another employee organization’s s concerted activity, whether in the public or private sector;  Insisting that a permissive subject of collective bargaining be bargained to impasse.

 Striking or other concerted refusal to work.

Unfair Labor Practices

  NOT a ULP: Expression of any views, argument, or opinion, or the dissemination of any of those items, whether in written, printed, graphic, or visual form, cannot constitute or be evidence of a public employer’s or an employee organization’s engagement in an unfair labor practice if the expression contains no threat of reprisal or force or promise of benefit.

ULP procedures

   Failure to answer a ULP is not an admission or cause for a finding, and non-responding party can present arguments later.

In addition to agents of SERB and the person charged, the charging party or the charging party's representative are also parties and may present evidence.

SB 5 eliminates requirement that if the parties file no exceptions within 20 days after service of the proposed decision, the recommended order becomes the order of SERB effective as prescribed in the decision.

ULP remedies

 SERB must order the suspension of the payment of dues or fees to the union for the greater of 30 days or two (2) times the duration of the illegal activity:  A union, its agents, or a public employee called, instituted, maintained, or conducted a boycott against any public employer, or picketed any place of business of a public employer, on account of any jurisdictional work dispute.

 A union, its agents, or a public employee induced or encouraged any individual to do either of the following:  To engage in a strike or refusal to handle goods or perform services;  To engage in a secondary boycott whether under the existing agreement or as part of another union’s concerted activity, whether in the public or private sector.

ULP remedies

   A union, its agents, or a public employee threatened, coerced, or restrained any person where an object thereof was to force or require any public employee to cease dealing or doing business with any other person, or force or require a public employer to recognize for representation purposes a union not certified by SERB.

A union, its agents, or a public employee induced or encouraged any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.

A union, its agents, or a public employee engaged in any striking or other concerted refusal to work.

ULP remedies

    Reinstatement of terminated employee is allowed.

But, no reinstatement or back pay if the suspension or discharge was for just cause and the predominant basis for the suspension or discharge was not related to the employee’s rights under the collective bargaining law.

Aggrieved party may appeal SERB’s decision to the court of common pleas of any county where the ULP in question was alleged to have been engaged in, or where the person resides or principally transacts business. The court shall cause a copy of the notice to be served forthwith upon SERB and all other parties.

Reporting requirements

  Beginning with the first CBA entered into on or after SB 5’s effective date, and for each one thereafter, public employer must submit a report to SERB concerning compensation paid to employees under the CBA, which must list all of the following:  Each provision in the CBA that affects the compensation paid to the public employees;   A description of the changes in compensation paid to the public employees that are not addressed in the CBA but will occur during the time period the CBA is in effect; Any material terms of the agreement.

Must submit the required report within 30 days after entering into the CBA.

 Employer and SERB must post a copy of the report in a conspicuous manner on the employer’s web site.

Reporting requirements

  If a change in compensation is to occur during the time period a CBA is in effect and that change was not included in the report submitted to SERB, or if the public employer and union enter into a modified CBA agreement during that time period, the public employer must submit an updated report to SERB not less than 5 days before the change is to take effect. Public employer also must post the updated report in a conspicuous manner on its web site not less than 5 days before the change is to take effect.

Miscellaneous

    Public official /employee cannot participate on behalf of a public employer in the collective bargaining process with respect to any matter in which the immediate family of the official/employee has a direct interest in the outcome.  “Immediate family” is a spouse residing in the person’s household or any dependent child.

SB 5 repeals the requirement that R.C. Chapter 4117 be “liberally construed.” SB 5’s amendments apply to a CBA entered into on or after the bill’s effective date and to versions of a CBA in effect on the bill’s effective date that result from extension, modification, or renewal of the CBA on or after that date. Nothing in the bill is to be construed as applying to a CBA that exists on the bill’s effective date.

Compensation

 Requires performance ‐ based pay for most employees of political subdivisions.  Replaces pay ranges and step values provided in statute with pay ranges that must be established in rule by the Director of Administrative Services.  Pay within the newly established ranges must be based upon performance.

Compensation – SB 5

 R.C. § 5126.24:  Current: adopt separate salary schedules for teachers and non-teaching employees.

 SB 5: Salary schedule eliminated.

 Must pay employees a salary based upon performance as described in R.C. § 3317.13 (same as current law).

 R.C. § 3317.13 amended to state that each teacher shall be paid a salary based upon performance.

Compensation – SB 5

 Under R.C. § 3317.13, performance is measured by considering all of the following:     The level of license issued under R.C. § 3319.22; Whether the teacher is a "highly qualified teacher" as defined in R.C. § 3319.074; The value-added measure the County Board uses to determine the performance of the students assigned to the teacher's classroom; The results of the teacher's performance evaluations or any peer review program created by an agreement entered into by the County Board and representatives of the teachers;  Any other criteria established by the County Board.

Compensation – SB 5

 Evaluation process:  Superintendent of Public Instruction recommend framework to State Board of Education by April 30, 2012, adopted no later than July 1, 2012  Schools, in consultation with teachers, must adopt a policy for evaluations utilizing the adopted framework.

Compensation – ASHB 153

 Retains salary schedules based upon performance but requires County Board to comply with R.C. §§ 3317.14 and 3317.141 in the same manner as a school district:  R.C. § 3317.14 (repealed under SB 5) stays the same, except to say it will not apply after the 2012-2013 school year;  Must follow R.C. 3317.14 until school year starting July 1, 2013 as R.C. 3317.141 states its provisions do not apply until school year starting July 1, 2013 .

Compensation – ASHB 153

  R.C. § 3317.141: Beginning with school year of July 1, 2013, must annually adopt a salary schedule for teachers based upon performance measured by considering all of the following:   The level of license issued under R.C. 3319.22; Whether the teacher is a highly qualified teacher, as defined in R.C. 3319.074;  The ratings received by the teacher on performance evaluations conducted under R.C. 3319.111 (looks to be same process; Superintendent must approve evaluation policy adopted by County Board).

Healthcare benefits

   According to LSC, under SB 5, public employees, including employees of the state and any of its political subdivisions, must be responsible for at least 15% of the cost of the provision of health care benefits provided by/through Department of Administrative Services.

“Health care benefits” include hospitalization, surgical, major medical, dental, vision, and medical care, disability, hearing aids, prescription drugs, or a combination of these benefits. Health care benefits provided to a management level employee under R.C Chapter 4117 must be the same as any health care benefits provided to other employees of the same public employer.

Healthcare benefits – SB 5

 R.C. § 4117.08(B)(2): Inappropriate subject of bargaining:  “Health care benefits, except that, subject to division (E) of this section, the amount of the cost of those benefits for which a public employer and the public employees of the public employer pays is an appropriate subject of collective bargaining.”  Division (E): “The provision of health care benefits for which the employer is required to pay more than eighty-five per cent of the cost is not an appropriate subject for collective bargaining. No public employer shall agree to a provision that requires the public employer to pay more than eighty-five per cent of the cost paid for health care benefits.”

Healthcare benefits – SB 5

   What about non-bargaining unit employees?

 LSC cites to R.C. 124.81(H) to (J) and 124.82(G) and (H).

 In our view, R.C. 124.81(A) – (G) do not apply to county employees, except possibly (G), which requires a CBA. R.C. 124.81 (H): “The health care benefits provided to a management level employee, as defined in section 4117.01 of the Revised Code, under a contract entered into under this section shall be the same as any health care benefits provided to other employees of the same public employer.” R.C. 124.81(I): “A public employer, including the state and any of its political subdivisions, shall not pay more than eighty-five per cent of the cost of the provision of health care benefits pursuant to this section.”

Healthcare benefits – HB 153

 Did not do anything with R.C. 124.81 or 124.82.

 Initially required DAS to prepare health care plans.

 Now requires investigation by DAS.

Healthcare benefits – HB 153

 Not later than July 1, 2012, DAS shall submit a report to the General Assembly on the feasibility of all of the following regarding health care plans to cover persons employed by political subdivisions:  (A) Designing multiple health care plans that achieve an optimal combination of coverage, cost, choice, and stability, which plans include both state and regional preferred provider plans, set employee and employer premiums, and set employee plan copayments, deductibles, exclusions, limitations, formularies, and other responsibilities;    (B) Maintaining reserves, reinsurance, and other measures to insure the long-term stability and solvency of the health care plans; (C) Providing appropriate health care information, wellness programs, and other preventive health care measures to health care plan beneficiaries; (D) Coordinating contracts for services related to the health care plans;

Healthcare benefits – HB 153

   (E) Voluntary and mandatory participation by political subdivisions, public school districts, and institutions of higher education; (F) The potential impacts of any changes to the existing purchasing structure on existing health care pooling and consortiums;  (G) Removing barriers to competition and access to health care pooling.

No action shall be taken regarding health care coverage for employees of political subdivisions, public school districts, and state institutions of higher education without the enactment of law by the General Assembly.

Retirement pick-up

 S.B. 5 prohibits the payment of employee contributions by a public employer.

 Prohibited in all retirement system statutes.

 Prohibited subject of bargaining in R.C. § 4117.08(B):  “(3) The payment of a contribution by a public employer to the public employees retirement system, the Ohio police and fire pension fund, the state teachers retirement system, or the school employees retirement system on behalf of an employee, contributor, or teacher, as applicable, that the employee, contributor, or teacher otherwise is required to pay.”  Appears to only prohibit fringe benefit pick-ups, not salary reduction pick-ups.

Leave provisions

  Reduces sick leave to 10 days per year (3.1 accrual rate) although can still accumulate without limit.

CBA cannot allow accrual of leave credits in excess of the following:  6 weeks annually of paid vacation prior to 20 years of service;  12 paid holidays annually;  3 paid personal days annually.

Layoff provisions – R.C. 124.322

  Layoffs, job abolishments, and displacements shall be governed by the Revised Code or the rules adopted pursuant to it that are in effect at the time the appointing authority files the statement of rationale and supporting documentation in accordance with section 124.321 of the Revised Code, as applicable. Otherwise, layoffs, job abolishments, and displacements shall be governed by the Revised Code or the rules adopted pursuant to it that are in effect at the time of notification of layoff or displacement to the employee.

S.B. 5 modifies layoff statutes to preclude length in service as only factor for reduction.

Layoff provisions – R.C. 124.325

  R.C. § 124.325: An appointing authority shall calculate an employee's retention points based upon length of service, efficiency of service, and other similar factors the director of administrative services, in the rules the director adopts for state or county employees under section 124.322 of the Revised Code, or the appointing authority, as applicable, determines is appropriate .

Appointing authority shall adopt rules to determine which employee will be laid off first if two or more employees have an identical number of retention points.

HB 153 provisions – Mandatory cost savings programs     R.C. § 124.393: A county appointing authority may establish a mandatory cost savings program applicable to its exempt employees. Each exempt employee shall participate in the program of mandatory cost savings for not more than 80 hours, as determined by the appointing authority, in each of state fiscal years 2010 to 2013.  Program may include, but is not limited to, a loss of pay or loss of holiday pay. Program may be administered differently among employees based on their classifications, appointment categories, or other relevant distinctions. After June 30, 2013, a county appointing authority may implement mandatory cost savings days in the event of a fiscal emergency. A county appointing authority shall issue guidelines concerning how the appointing authority will implement the cost savings program.

HB 153 provisions – Mandatory cost savings programs     R.C. § 124.394: A county appointing authority may establish a modified work week schedule program applicable to its exempt employees. Each exempt employee shall participate in any established modified work week schedule program in each of state fiscal years 2012 and 2013.  Program may provide for a reduction from the usual number of hours worked during a week by exempt employees immediately before the establishment of the program by the appointing authority.   Reduction in hours may include any number of hours so long as the reduction is not more than 50% of the usual hours worked by exempt employees immediately before the establishment of the program. Program may be administered differently among employees based on classifications, appointment categories, or other relevant distinctions. After June 30, 2013, a county appointing authority may implement a modified work week schedule program in the event of a fiscal emergency.

HB 153 provisions – Miscellaneous County Board of DD   R.C. 5126.029: Reduces to eight (from ten) the number of times a county board of DD that shares a superintendent or other administrative staff with one or more other county boards of DD is to meet each year following its annual organizational meeting .

 Appears to only apply to the County Board that initially employs the Superintendent/or staff.

 “the board shall meet at least the following number of times annually in regularly scheduled sessions in accordance with section 121.22 of the Revised Code, not including in-service training sessions:  (1) Unless division (A)(2) of this section applies to the board, ten;  (2) If the board shares a superintendent or other administrative staff with one or more other boards of developmental disabilities, eight.

HB 153 provisions – Miscellaneous County Board of DD  R.C. 5126.23:  Changes selection of referees for discipline from list provided by Superintendent of Public Instruction to selection from a list of resident electors compiled from names that the Director of the Department of Developmental Disabilities shall solicit annually from the Ohio State Bar Association.

HB 153 provisions – R.C. 305.23

  A board of county commissioners may adopt a resolution establishing centralized purchasing, printing, transportation, vehicle maintenance, human resources, revenue collection, and mail operation services for a “county office.” The resolution shall specify all of the following:  Which county offices are required to use the centralized services;   If not all of the centralized services, which centralized service each county office must use; A list of rates and charges the county office shall pay for the centralized services;  The date upon which each county office specified in the resolution shall begin using the centralized services.

Not later than 10 days after a resolution is adopted under this section, the clerk of the board of county commissioners shall send a copy of the resolution to each county office that is specified in the resolution.

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