THOUGHTS HERE AND THERE
By: Randall Weltman, Esq.
Caught in the Crossfire
Police officers are trained to protect themselves from all lines of fire. They are taught to stay a step, and a thought, ahead of their aggressor.
Senate Bill 5 is one such aggressive force. That legislation’s quest to weaken public sector unions and workers has unfortunately dragged in the police officer profession. Because Senate Bill 5 includes the police profession, virtually every law enforcement officer in the State of Ohio faces a severe reduction in what had become the “going rate” for what was once considered a worthy profession.
The line that Governor Kasich and Senate Bill 5 supporters will use in the referendum campaign is that public sector workers make more money and have better benefits than their counterparts in the private sector. They will say that this (unproven allegation) is unsustainable given the financial struggles facing the employers of those employees (local governments).
There may be some truth to that line in general, but there is also a significant falsehood. And that falsehood is grouping the profession of “police officer” in the broad category of “public sector worker”.
Unlike a service department worker or a water treatment worker, or a snow plow driver, or an administrative secretary or a finance director or a records clerk, a police officer does not have a counterpart (an employee doing like work) in the private sector. Except for the police officers working for the Cleveland Clinic and perhaps other hospitals, there is no such thing as a police officer working for the private sector.
The falsehood that Kasich and his supporters infer, if not express, is that public sector police officers make more than private sector police officers and it’s all due to collective bargaining so let’s undermine their ability to bargain. No Governor, the market forces that you so trust have properly defined the police officer’s wage and benefit package
The true measuring stick for Ohio’s police officers wages and benefits is determined by comparing them to what police officers in other cities and other states make, not by comparing them to their employer’s other workers or to their city’s school teachers. Comparisons are the proper way that the value for any object is determined, but the comparison must be between like objects.
When you determine what is a fair price for selling or buying a home you look to see what other similar homes are selling for. You do not measure a home’s value by comparing it with the costs of an apartment complex or commercial building just because they are in the same neighborhood. While they all may be structures within a near vicinity, their values are all measured with different measuring sticks.
The market adjustment that Kasich and his supporters want to achieve with Senate Bill 5 has already successfully occurred under the current bargaining law. Trust me, when the OPBA’s employers struggle so do the OPBA’s members.
As such we have made virtually no progress in pushing up law enforcement wages and benefits ever since September, 2008. And until revenues begin to rise again we will continue on the same course, with or without Senate Bill 5.
The 5th Quarter Management Tool
For a few years now I have been referring to what I have deemed the 5th quarter in the law enforcement collective bargaining process. Not coincidentally, the past few years have been marked by the “Great Recession.”
The 5th quarter is the ultimate push back technique utilized by employers when they feel squeezed by what they consider an unfair decision issued by a “neutral” such as a fact-finder, conciliator, or arbitrator. As for example, the employer who finds itself “ordered” by a conciliator to pay a raise that the employer maintains it cannot afford.
What this employer might do is file an action in Common Pleas Court seeking to vacate the conciliator’s “order”. This is one way how the OPBA can be forced into a 5th quarter in a process that everyone believed was a four quarter game.
Creating a 5th quarter can benefit the employer in several ways beyond the obvious attempt to “overturn” the conciliator. Most important it creates another battle with the union as the union is forced to counter-claim, in court, with its own action to “enforce” the conciliator’s “order”.
While the parties engage in what can be lengthy and costly litigation, the employer is not obligated to implement the terms of the conciliator’s “order”. Until the Common Pleas Court rules on the enforcement/vacation countering claims lawsuit, there is no basis for either the union or the employees to compel payment of the ordered wage increases.
As you can imagine, creating a 5th quarter can afford the employer great leverage in regard to the negotiations’ final outcome. During the litigation process, which can be further lengthened by an appeal to the Appeals Court, the parties can continue to bargain and make an agreement that would then “moot” the litigation. Most assuredly any such agreement reached will involve the union “giving up” something that it had obtained in conciliation.
Indeed the employer does not even have to wait until bargaining to invoke or create a 5th quarter. During the term of every labor contract the employer is able to take action either under its lay-off clause or pursuant to a lay-off provision contained in a civil service rule.
So what is there to prevent an employer from claiming that its finances are necessitating a reduction in expenditures to its police department? That kind of declaration then allows the employer to approach the union and demand that it choose between a layoff or a wage and benefit “adjustment” (reduction) in order to maintain the status quo.
Unfortunately there is nothing, short of a weak grievance, that can be used to counter such a move. As a result there are some OPBA units who have been literally forced to give up the present value of portions of their contract while that contract is in full force in order to prevent a layoff. And this is accomplished without Senate Bill 5!
As the Pendulum Swings
Observers of the economy know that markets sway back and forth and up and down, but usually in one direction until there is a bubble and bust causing the direction to reverse, but still in a back and forth and up and down direction. When the overall direction of these markets reverse, one way or the other, some observers call this the swing of the pendulum.
The pendulum effect happens in virtually every market. Markets like the housing market where properties gain value over time or lose value over time. Same thing with the stock and money markets.
All of those markets, along with the “labor market”, swing back and forth over periods of time. This effect is known and proven. What is not known is how long these movements last and when they do actually reverse, at what pace and at what rate.
Right now the pendulum is obviously swinging in a direction that will be harmful to the interests of all law enforcement personnel. This swing follows a fairly long stretch of a direction yielding nice gains in the wage and benefit areas. This swing was created by the Great Recession which deflated property values, deleted jobs and reduced revenue to local governments.
Coinciding with the Great Recession and its monumental effect on governmental revenues is a swing in political attitudes. This recession greatly influenced last fall’s elections to the point where anti-government politicians were elected. Their lopsided victories left many of them with what they think is a “mandate” to reduce government. In trying to accomplish that a new political and economic direction has been created, for sure.
Who knows how far such a negative direction will go or how long will it take to bust and reverse to the other direction. It may last for a little while or it may last for half of your career but trust me the pendulum will one day swing back to a better and more prosperous direction. The sooner, the better!!