In re Urbana Firefighters: The Latest from SERB on the Toledo Exceptions
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.