It Has Been a Fight From the Beginning: Rocky I – IV

By:  Mark Volcheck, OPBA Attorney

While Senate Bill 5 is the first major legislative attack on public sector unions since Ohio’s collective bargaining law was adopted by the General Assembly and signed by Democratic Governor Richard Celeste in 1983, it is not the first attempt by labor’s foes to quash the law’s protections.  Upon the law’s effectuation in 1984, the battle lines were in the courts and all eyes were focused on the City of Rocky River’s constitutional challenge to the law’s conciliation provision.  The story of such challenge is eye-opening as it shows the narrow margin upon which over a quarter century of labor peace was confirmed for municipal safety forces.

In 1984, the City of Rocky River and the Rocky River Firefighters’ Union went to fact-finding for the first time under the new collective bargaining law.  The fact-finder found for the City on every issue except wages.  The City rejected the report and the parties proceeded to conciliation.  Under Ohio’s collective bargaining law, conciliation is the last step of the negotiation process for safety forces whereby a conciliator chooses among either side’s final offer on each outstanding issue on an issue by issue basis.  The conciliator’s decision represents a binding mandate to the parties to implement the award.  The conciliator in this matter also ruled in favor of the Union on the issue of wages.

Prior to conciliation, the City filed a declaratory judgment action in the Cuyahoga County Court of Common Pleas alleging that the conciliation process violated the City’s “home-rule” powers and otherwise was an unlawful delegation of municipal legislative power.  The Court of Common Pleas rejected the City’s claims for declaratory judgment and upheld conciliation.  This decision was affirmed by the Eighth District Court of Appeals.  The case then proceeded to the Ohio Supreme Court.  It is there where things got interesting.

On November 2, 1988, the Ohio Supreme Court reversed the Eighth District.  In a decision popularly known as Rocky I, the Court held that the law’s conciliation provision “is unconstitutional to the extent that it violates a municipality’s right to exercise its powers of local self-government under Sections 3 and 7, Article XVIII of the Ohio Constitution, because it interferes with the municipality’s power to determine municipal safety employee compensation.”  Further, it held conciliation to be “unconstitutional to the extent that it unlawfully delegates municipal legislative authority by mandating binding arbitration for collective bargaining disputes over municipal safety employee benefits and wages.”  Accordingly, the City prevailed.  The decision was by a vote of four to three.

Following the Ohio Supreme Court’s decision, a number of motions for rehearing and/or clarification were filed.  On December 22, 1988, the Court denied such motions by the same four to three vote.  By such denials, the Court’s decision in Rocky I was preserved.  Such decision is known as Rocky II.

Beginning January 2, 1989, Justice Alice Robie Resnick, formerly the Presiding Judge on the Sixth District Court of Appeals, began her first term on the Ohio Supreme Court after having been elected in 1988. She took the place of Justice Ralph Locher, a former Cleveland mayor who had sided with the majority in Rocky I and Rocky II.  On January 3, 1989, a motion for reconsideration was filed by the Union.  A grant of such motion would permit the Supreme Court to reconsider its prior rulings.  In a decision known as Rocky III, the Supreme Court voted four to three to grant the motion for reconsideration and the case was resubmitted.  Justice Resnick was the deciding vote as she sided with the three other Justices who had been in the minority for Rocky I and Rocky II.

On May 10, 1989, by the same four to three vote as Rocky III, the Court upheld the constitutionality of conciliation.  In a decision known as Rocky IV, the Court rejected the City’s argument that conciliation was an unconstitutional delegation of municipal legislative authority. It found that the conciliation process provides practical and intelligible standards and principles for the conciliator’s decisions that are subject to judicial review under Chapter 2711 of the Revised Code.  Therefore, the Court reasoned, such clearly meets the accepted legal threshold for such statutory process.

The Court also rejected the City’s home-rule argument.  Specifically, the Court held that the plain and express language of Section 34, Article II of the Ohio Constitution establishes the primacy of the collective bargaining law relative to any other alleged constitutional authority.  Section 34, Article II of the Ohio Constitution states:  “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.”  The City’s claim to invalidate the law upon Sections 3 and 7 of Article XVIII fails by the clear and unambiguous language of the Ohio Constitution expressing the primacy of laws passed under Section 34, Article II.  Thus, the Ohio Supreme Court rescued conciliation for municipal safety forces from its prior decision.

Conciliation is among the most prized components of the collective bargaining law for safety forces.  It guarantees that either party’s position on any negotiable item in dispute will ultimately be determined by a neutral and fair third party arbitrator upon sound and accepted standards for judgment.  Of course, Senate Bill 5 eliminates this process for all safety forces and surrenders such judgment and authority to the legislative body of the employer.  In a bill plagued with countless problems, that provision alone makes a sham of the entire negotiation process.  So, don’t forget to vote on November 8.  As history makes abundantly clear, every vote counts.