Monday, August 15, 2011

Senate Bill 5 And Collective Bargaining in Ohio

This November the people of Ohio will have the opportunity to decide whether they want to give Governor Kasich and the current Republican-controlled legislature the power to limit the bargaining rights of Ohio’s teachers, police officers and firefighters when they vote on Issue 2—the referendum of the infamous Senate Bill 5. Both sides agree that if not repealed by the voters this piece of legislation is a major change in the labor negotiation process for the state of Ohio.

As it stands now, if the local governing body and the teachers (and all other public servants including police officers and firefighters) can not agree to a new contract; the matter goes into a stage known as “fact finding.” Under current law, an objective third-party is brought in to mediate the situation and make a decision in a process known as “binding arbitration”—meaning the decision of the third-party mediator must be followed by both sides. Under Senate Bill 5, however, if a labor negotiation is unresolved the situation again goes into fact finding. Some try to argue that the fact finding process will make all of the relevant information available and result in the optimal decision being made. However, there is not shortage of information available about the U.S. debt crisis and politicians were unable to reach a decision that satisfied anyone. It will be even more difficult for the public to educate themselves about tax policy, public finance and labor markets related to all of the public services provided. The argument that simply making information available will result in optimal decisions being made by politicians does not seem to be supported by recent events. If the two sides are unable to reach an agreement after fact finding, the original governing body gets to make the final decision this time-- without having a third-party mediate. So, in reality the legislative body does not have to engage in good faith negotiate with its workers. The governing body with authority over the workers can just not agree with the offer from teachers, for example, go into fact-finding and choose their own original offer. The law goes further and effectively abolishes the right of public workers to strike. So, although the law does not technically abolish the right of teachers, police officers and firefighters to collectively bargain; in reality the governing body has no need to “bargain” or negotiate with the workers at all.

This reality caused Republican Senator Timothy J. Grendell, who was hoping the bill would be changed, to testify, "If you can't strike and the city council or the legislative authority gets to impose the ultimate terms, you don't have collective bargaining. From my perspective, you might as well forget going through the motions of a negotiations." Because changes were not made to the bill, Senator Grendell, who earned his Juris Doctor from Case Western Reserve University and his law degree from the University of Virginia, stated that Senate Bill 5 was unconstitutional in his public testimony before the Ohio Senate on March 30, 2011 based on the 1989 Ohio Supreme Court case City of Rocky River v. State Employment Relations Board. This caused Republican Senator Tim Grendell and five other Republican Senators along with all of the Ohio Senate Democrats to vote against Senate Bill 5. So, although Ohio Senate Bill 5 does not technically abolish collective bargaining rights for teachers, in reality it means that governing bodies do not really have to negotiate with their workers because the workers will have no power to bargain. Make no mistake about it—if the voters of Ohio fail to vote no Issue 2, this will be a radical departure from the current process that teachers, police officers and firefighters engage in to negotiate issues related to workplace safety, compensation and even class sizes.