Senate Bill 5 – another perspective

I took the time to review Senate Bill 5. It is as has been said, very comprehensive. Governor Kasich and its supporters talk about giving local communities the power to negotiate agreements and to deal with increasing costs of government, especially as it relates to personnel costs.. Nothing is further from the truth.  Not only does this legislation tie the hands of unions, it ties the hands of management. Further it creates, in my opinion, unethical solutions to deadlocks and increases the amount of politics in the negotiation and contract approval process.  Concurrently, it also appears to be the biggest negative impact upon home rule government in Ohio that I have seen in decades.  In this proposed legislation, all manners of employee benefits are prescribed including: health care, vacation time, sick time, personal days and cash out of sick leave at retirement.   Further, the legislation puts governing boards (i.e, city councils, township trustees) in an untenable and unethical position in resolving fact-finder reports.

Sections 124 and 4117 limit the amount of benefits that a community can offer.  True, 4117 is the collective bargaining law.  However, there are communities in Ohio that just cannot offer competitive wages and have utilized benefits to balance their ability to attract quality employees.  SB 5 in actuality hamstrings and micromanages a communities ability to discuss levels of benefits.  This process undermines home rule and councils’ discretion in rewarding employees at all levels, including the ability of a city manager  to negotiate a contract with a city council.

Section 4117.114(D)(1) and (2) creates a process whereby not only do city councils establish the parameters of labor negotiations and directs a manager (or negotiator) to proceed by those directions, but also makes the final decision on negotiations based upon unresolved fact-finding issues.  The council will be forced to hold a public hearing on the negotiations and choose the last best offer presented by either the council’s representative or the union representative.  It is a little like asking the the fox to guard the henhouse.

Acceptance of a labor contract has always required the City Council to act on a labor contract, even if it was a fiat accompli via an arbitration process.  A council could either declare an emergency and vote on the contract or use the three reading procedure.  By having a public hearing, according to a staff member of Senator Jones, under the guise of being transparent, creates a potentially hostile environment in a triangle of the general public, the union and the council.  This process essentially destroys the labor-management relationship.  The idea here being that if the community does not like the negotiated union agreement, the city council will be voted out and a new council voted in.

In my opinion, again the concept of home rule is usurped and frankly puts a city council in an unethical position of arbitrating something in which it has a vested interest and potentially making a decision based on political interference, an antithesis of a republican form of government.   The overall effect is to create a group of public servants that are now reduced to servants.  Of equal concern from a selfish standpoint is the tenure of the manager and the dilution of professional activity.

If the Council is “held accountable” so will the manager by the newly elected council.  Professional standards and behavior are now subject to political whims even more than they are now.  Such behavior will drive councils to hire candidates that are of a lesser qualification that are anti-labor in their sentiments and actions.

Without delving into all of the other items that I find objectionable in this bill, SB 5 certainly reduces home rule in many ways and is something that I encourage every local government manager to read at length.

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One Response to Senate Bill 5 – another perspective

  1. John Barkan says:

    Having spent my entire professional career (40+yrs) in the field of labor relations and from both sides of the bargaining table, I have seen almost everything. I also have an opinion of the proposed changes to ORC Chapter 4117, Ohio’s Collective Bargaining Law, by #SB5.

    When ORC 4117 can into play in 1984, no one can dispute that fact that the pendulum initially swung in favor of public employees. One could only look at the decades preceding 4117 and see that public employees would reap benefits that were delayed for years. Then after many years of “pro-union” decisions, the pendulum swung the other way, bringing more control on economics back to public employers. This was a filtering process as well. Now after 25 years, the collective bargaining pendulum swings in a small direction either way. Cases and decisions have provided the basis for fact finders and conciliators (also known as arbitrators) to make their decisions based on comparative figures. They, fact finders/conciliators, are not forced to “fix” problems between the parties any longer. They are more inclined to “force” the parties to fix inequities “themselves”. In common language, the threat of a neutral making a decision, has caused each side to be reasonable in initial positions and work for common mutual solutions. This folks, is the true basis for collective bargaining. As the saying goes, “the best labor agreement, is the one where neither party wins everything, nor loses everything, but can live with it for the duration of the agreement.”

    Contrary to current public “misconception”, collective bargaining DOES NOT and HAS NOT contributed to the “deficit” facing OH government today. No one held a gun to either sides collective heads to sign a labor agreement. Each side always had the opportunity to present a case to the other side during negotiations. Each side always had the opportunity to make fair and equitable comparisons during negotiations. When one side, management and/or labor, make outrageous claims; make incomprehensible claims; present inflated, biased figures on positions; and generally does not respect the other side’s position, does the collective bargaining process breakdown, resulting in decisions that then become problems. These problems may become fiscal problems; operational problems; or even problems of trust. At this point, and in my opinion, only at this point do settlements create the fiscal concerns that seem to be in the eyes of the public now.

    I could give actual instances where the employer has used 4117 as it is currently written, to gain major economic concessions; modify needed contract language changes; and generally prevail during this time of economic distress. Move to the other side of the bargaining table, unions have been just as successful. And this has included both fact finding and conciliation, now so vilified by the current governor.

    Also, can someone tell me how many strikes in the public sector have take place in the past 3 to 5 years? Not sure of the exact number, but that shows not many have taken place. Conciliation decisions have been fewer over the years. All this means, is that the current process has worked and to me, warrants no major overhauls. Minor tweaking I can live with. Major proposed changes, for ideological purposes only, bring politics into a process that was passed to take politics out of the bargaining process. Changes to #SB5 is really an attempt to bring politics back into the process and then no one will win, and everyone will lose!

    In closing, I did not fully explain what side of the bargaining table I work from, because it makes no difference. Be fair; respectful; accurate; and professional, your opponent will respect you and both of you will be mutually satisfied with your result, a fair collective bargaining agreement that you can live with.

    Thank you.

    John Barkan

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