Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

The headline on our last post certainly seems apt now.  A battle truly has erupted -- and not just here in Ohio -- over the issue of public sector employee collective bargaining rights.  Wisconsin also confronts the issue; coverage of that dispute is easy enough to come by, but here is a recent example.  Michigan, however, appears set to stay out of the fray.  The issue has even garnered President Obama's attention.

Here in Ohio, the hearings on Senator Jones' bill continue, as do the mass crowds at the Statehouse.  Supporters and opponents of the bill have testified.  Supporters tell the Senate committee, among other things, that the bill provides needed flexibility in the management of their workforces, helps address looming budget problems, and addresses imbalances of power between unions and the public employers.  Opponents of the bill tell the committee, among other things, that the law isn't needed and that concessions have already been made.

While the back and forth is certainly an interesting case study in politics, the labor professional will want to remain focused on what is actually in the bill.  And so far, that hasn't changed.  Despite invitations to unions during the hearings to provide suggested changes to the bill, no amendments have yet been proposed. 

For an excellent summary of the content of the bill, check out the bill analysis (pdf) prepared by the Ohio Legislative Services Commission.  The Commission is a non-partisan state agency that is part of the General Assembly.  As the legislative process continues, monitoring what is actually in the bill will help the labor professional plan for future developments.

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On February 9, 2011, Senator Shannon Jones (R - Springboro) introduced Senate Bill 5.  It contains significant changes to Ohio's State Employment Relations Act, the law that governs public employee labor/management relations.  Labor unions decried the proposal, and hundreds of union members appeared at the initial hearing of the bill.

The law amends several provisions of the Ohio Revised Code and runs for 475 pages.  As it pertains to the State Employment Relations Act, however, Senate Bill 5 (pdf) would:

• Prohibit a state institution of higher education, the state itself, and any agency, authority, commission, or board of the state from collectively bargaining with its employees.
• Alter the procedures applicable once the parties reach an impasse in their negotiations.
• Change the definition of "supervisor" as it applies to police officers.
• Limit bargaining on health care benefits to just the question of how much the public employee must pay for employer-provided coverage, and prohibiting any agreement that would permit the public employee to pay less than 20% of that cost.
• Prevent public school districts from agreeing in a labor contract to a laundry list of proposals, including those that would require minimum staffing, maximum number of students per class, or limit the ability to transfer staff between buildings.
• Take away the authority of a public school district to negotiate over salaries or health insurance benefits.
• Direct public employers not to agree to a provision that would require the public employer to consider only length of service in any reduction-in-force.
• Abolish Ohio's Office of Collective Bargaining.

Governor Kasich  who has previously signaled his support for reform of Ohio's public employee union system, voiced his support for the bill.  Interestingly, however, it appears that the Governor may also have his own ideas on public sector labor law reform.  These go well beyond what Senate Bill 5 proposes.  The Columbus Dispatch reports that the Governor is considering legislation that would outlaw strikes for all public employees, not just for certain groups of public employees, as is the case in the proposed Senate bill.

If Senate Bill 5 passes in its current form, the implications for public sector labor relations will be substantial.  Indeed, the list above contains only some highlights, it is not even a comprehensive catalogue of all the changes proposed.  The public sector labor professional will need to monitor the legislative process closely, and may want to consider the impact of these changes on any unionized component of their workforce.

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Last November, the NLRB's regional office in Hartford, Connecticut, issued a complaint against an employer that had disciplined an employee for something she posted on her Facebook page.  The unfair labor practice complaint was previously reported on this blog.

Yesterday, the NLRB announced that the employer had agreed to settle this charge.  As it relates to the portion of the complaint dealing with the employer's policies, the employer agreed (pdf) to revise its rules of conduct to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.  The employer promised not to discipline employees for engaging in that conduct. 

The employer came to a separate, private agreement with the discharged employee.  Thus, it is unknown what terms were agreed upon to resolve that part of the complaint.

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Last year, President Obama nominated Craig Becker to the NLRB.  Mr. Becker's nomination, however, bogged down in the U.S. Senate over his controversial views on the NLRA.  The U.S. Chamber of Commerce even took the step of opposing Mr. Becker's nomination, a position it had not taken since the early 1990's.  Ultimately, Mr. Becker's nomination failed to garner the 60 votes needed to overcome a threatened filibuster in the Senate.

In response, President Obama used a recess appointment to place Mr. Becker on the NLRB in 2010.  Since that time, he has participated in a number of decisions the NLRB has issued.

Rather than looking for a different individual to fill this seat on the NLRB, last week the President again nominated Mr. Becker.  Given the change in composition of the Senate in the 2010 election cycle, it seems unlikely that Mr. Becker will be confirmed by the Senate.

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Earlier this year, Catholic Health Partners filed an "RM" petition with the NLRB's regional office in Cincinnati, Ohio.  An RM petition is a way for employers to initiate NLRB-conducted, secret ballot elections when the employer believes that a union representation issue exists.  Catholic Health Partners sought elections in 44 different units at more than a dozen hospitals and nursing homes to determine whether employees in those units wanted to join the SEIU.

Significantly, according to the NLRB's press release, both the employer and the union agreed not to campaign against each other.  The only materials distributed to employees were jointly-created documents explaining the election process.

The elections were held at the end of January.  Despite the employer's neutrality, the SEIU won representation rights in only four of the 44 units.  A total of 672 employees are employed in those four units.  There is one unit in which the outcome is still uncertain.

For labor professionals, this is an interesting development for two reasons:

• First, it is a good reminder that the NLRA contains a mechanism -- the RM petition -- by which employers can resolve union representation questions.  Whether this is the right strategy in any given case will necessarily be fact specific.
• Second, it is an interesting case study in the area of neutrality agreements.   These  agreements usually seek to silence the employer, while leaving the union free to campaign.  They may also be combined with "card check" recognition, rather than a secret ballot election.  Not surprisingly, the result is typically recognition of the union by the employer.  The results of these elections suggest that if the concept of "neutrality" is approached differently, and the secret ballot is preserved, the outcome is less certain.

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