What Faculty Need to Know About Ohio’s Collective Bargaining Law

Adapted from a 2004 Right Flier article by Rudy Fichtenbaum

Collective Bargaining for public employees in Ohio is governed by Ohio Revised Code (ORC) 4117. This law gives public employees certain rights, but it places certain limitations on them as well. It is important that BUFMs understand the basic features of ORC 4117 as they pertain to CBA negotiations.

It is the stated goal of ORC 4117 to promote “orderly and constructive relationships between all public employers and their employees.”

Collective bargaining means that employers and the employees must meet to negotiate about “wages, hours, terms and conditions of employment and the continuation, modification or deletion of an existing provision of a collective bargaining agreement.” Neither party can be forced to accept the position of the other party; however, they must negotiate with the intent of reaching an agreement.

How does the negotiations process begin? At least 60 days prior to the end of an existing contract, if either party wishes to modify the existing agreement, they need to provide written notice to the other party stating their intention. Once this notice has been served the parties are required to begin negotiating.

(Here at WSU, the parties have traditionally begun triennial negotiations in January to replace a CBA set to expire the following June. That is how negotiations began this year. As we have reported previously, the parties were making progress on non-economic CBA articles and had agreed in writing to exchange proposals on economic articles on April 7. But in late March and subsequently, the administration has been unwilling to exchange economic proposals and has not even been willing to negotiate in any substantial way over non-economic issues. Further, the reasons stated by the administration’s negotiating team for this stoppage have not been at all credible. This intransigence on the part of the administration left AAUP-WSU with no viable choice other than initiating the fact-finding process, the dispute resolution process specified by ORC 4117, about which please continue reading.)

Since neither party is required to accept the position of the other, ORC 4117 has a built-in dispute resolution procedure. ORC 4117 also allows the parties to agree to an alternative dispute resolution procedure. Otherwise, the parties are governed by the dispute resolution procedure contained in ORC 4117.

The dispute resolution procedure contained in ORC 4117 states that if the parties cannot reach an agreement within 50 days before the expiration of a contract, either party can request intervention by Ohio’s State Employee Relations Board (SERB). If SERB determines that both parties have been bargaining in good faith but have reached an impasse or they have not reached an agreement 45 days before the end of an agreement, then SERB can appoint a mediator. The job of the mediator is to try to help the parties reach an agreement on outstanding issues.

(In this case, a mediator has been appointed, and mediation dates of July 21, July 28, and August 4 have been established.)

If the mediator reports to SERB that an impasse exists or that the parties have been unable to reach an agreement 30 days prior to the expiration of the contract, then SERB must appoint a fact finder (or fact finding panel) selected by the parties from a list provided by SERB.

The fact finder(s) may engage in mediation efforts. If these efforts fail then a fact-finding hearing is held. The fact finder(s) must make a recommendation no later than 14 days after his or her (their) appointment by SERB unless both parties agree to extend the deadline.

(In this case, a fact finder has already been appointed, and October 3 and 4 have been selected for fact finding.)

When a fact-finding report is issued it is in the form of a recommendation to the two parties, a recommendation regarding what language to put in the CBA for every unresolved issue. Typically, the report incorporates all CBA language to which the parties had already tentatively agreed. Either party may reject the fact-finding report by a three-fifths vote of its total membership. This means it takes three-fifths of the Board of Trustees or three fifths of the AAUP-WSU membership (RCMs) to reject the fact-finding report. If neither party rejects the report, then it is determined by SERB that both parties have reached an agreement. If either party rejects the fact-finding report, then they can voluntarily agree to resume negotiations, adopt an alternative dispute resolution procedure, or, the union can go on strike after a ten-day written notice to the employer.

It is critical for AAUP-WSU members to understand that unless one of the parties rejects a fact-finding report, we are prohibited from going on strike.

Rejecting a fact-finding report is a necessary condition, according to ORC 4117, to give public employees the right to strike. However, rejecting a fact-finding report does not automatically mean that we must go on strike.

 

Negotiations at a Standstill

June 6, 2017

To all BUFMs:

In January 2017, negotiations toward a new CBA began fruitfully. AAUP-WSU and the administration agreed in writing on ground rules to govern negotiations, exchanged proposals on non-economic CBA articles, began discussing them, exchanged counter-proposals on some of these, and even tentatively agreed on four such articles. Given the tenor of negotiations, we had good reason to believe that the parties would reach agreement on all non-economic articles, and we were looking forward to the exchange of economic articles on April 7as specified in the ground rules.

But suddenly, negotiations effectively ground to a halt. Indeed, in the past two months, there has been essentially no progress. During that time, the administration has replaced its chief negotiator with a labor attorney – and yet has refused to make counter-proposals on non-economic CBA articles, has not responded to our counter-proposals, and been unwilling to put economic articles on the table at all.

The reasons given by the administration for this halt are not credible, and we have no reason to expect progress anytime reasonably soon. Thus, we have asked our chapter attorney to initiate the fact-finding process specified by state law.

Shortly, we will explain what fact-finding is all about and where it may lead us. But right now, we need Bargaining Unit Faculty to continue taking visible action. Your next opportunity is to attend the Board of Trustees budget meeting on Thursday, June 8 at 8:30 am in the Student Union’s Apollo Room. Wear an AAUP-WSU t-shirt! About additional actions, please stay tuned.

For more details about this matter, please see the attached.

Thank you for your attention to this message, and thank you for supporting AAUP-WSU.

Best regards,
Marty
Marty Kich, President, AAUP-WSU

 

What’s Up with CBA Negotiations?

Below you will find additional details as promised in our June 6, 2017 e-mail to all BUFMs (see inset).

On January 13, 2017, the Chief Negotiators for the administration (Dr. Steven J. Berberich, Associate Provost) and AAUP- WSU (Dr. Adrian M. Corbett) signed Ground Rules to govern the negotiations toward a new CBA. Item 4 specifies, “On April 7, the parties will exchange Articles 23, 24, 26, 31, and Appendix E”. These are the so-called economic articles, i.e., those with substantial budgetary impact such as the articles on salary and benefits. As we stated in our June 6 e-mail, negotiations proceed fruitfully on non-economic articles, even concluding with tentative agreement on four of them.

April 7: Administration Misses Deadline

But on March 21, the administration notified us that it was unilaterally suspending negotiations until Dr. Curtis L. McCray (the WSU Interim President who had been appointed the previous week) was up to speed on the budget. Shortly thereafter, we learned that the administration had hired a new Chief Negotiator: Mr. Daniel J. Guttman, a labor attorney and partner with a national law firm, Baker & Hostetler LLP. The parties met on April 7, and AAUP-WSU was ready to exchange economic articles as specified by the ground rules, but the administration had none. Subsequently, Mr. Guttman informed us that the administration would be ready to resume negotiations on Friday, May 26, explaining that he too needed time to get up to speed.

May 23: Yet Another Delay

Then, on May 23, the administration or the BoT apparently changed its mind yet again. Mr. Guttman informed us that the administration would not be ready after all on May 26 for negotiations, and he indicated that negotiations might even be delayed beyond the July 1 arrival of the new President, Dr. Cheryl B. Schrader (the implication being that she too would need time to get up to speed). On May 24, we wrote Dr. McCray, Mr. Guttman, and Dr. Berberich saying, “…we do not agree to these delays in negotiations …”. In the letter we called for the administration to return to substantive negotiations by June 2nd and thus demonstrate its willingness to engage in good faith bargaining.

May 31st:  AAUP Sends Counter-Proposals to Administration

We sent Mr. Guttman counter-proposals on two non-economic articles by 1 pm on May 31st (thus honoring the 48-hour advance notice required by our ground rules) and again encouraged a return to negotiations on June 2nd, extending the deadline for receipt of any counter-proposals from the administration to midnight. After 10 pm, we received a letter from Mr. Guttman, saying that they would meet with us on June 2nd at 3 pm to discuss an early retirement incentive. The text of this early retirement incentive was neither included nor attached.

June 2:  More Of The Same from Administration

The parties did meet on June 2. (The administration brought three lawyers to that meeting: Mr. Guttman, another attorney from Baker & Hostetler LLP, and one of WSU’s two Assistant General Counsels.) However, aside from a brief conversation regarding the two counter-proposals we sent on May 31st, the administration was unwilling / unable to negotiate about any matter, save only a retirement incentive. The administration had previously sent us an early retirement “supposal”

(informal, non-binding proposal), but not until this meeting did the administration clarify that it was asking to incorporate this matter into the CBA. Repeatedly, the administration’s negotiating team stated that it was not then authorized to resume negotiations about any other CBA matters and needed instructions / directives from those to whom it reports. For this, the administration team blamed the changeovers in the WSU Presidency and WSU’s fiscal mess.

Administration Excuses Not Credible

But more than a year ago, the Board of Trustees (BoT) and administration knew that former President David Hopkins was expected to remain in office only through June 30, 2017 and that the presidential search process begun in May 2016 was not guaranteed to succeed. So, changes and uncertainty regarding the office of President are hardly new news.

Likewise, the BoT and administration have known for a long time of the fiscal crisis (though they inaccurately blamed revenue shortfalls until somewhat recently, when they finally agreed with our long-held position that overspending and mismanagement were the real culprits). In fact, in a letter to BUFMs on April 4, 2016 – over one year ago – we wrote

“…these budget issues cannot have come as a sudden surprise to anyone charged with managing the university…”.

Just nine days later, on April 13, 2016, we wrote to the BoT, stating that

[WSU has] “…experienced negative operating cash flows for the past three years. … Three consecutive years of negative operating cash flows is prima facie evidence that the administration is incompetent and that the Board of Trustees has abdicated its fiduciary responsibility.”

In the same letter, we provided a list of nine ways to reduce spending while protecting the college budgets (for, as we wrote, “instruction and research sustain the core mission of the university and are the primary source of its operating revenue.”)

So, for nearly three months, the administration negotiated with us in a productive manner about the new CBA and, to repeat, had committed in writing to exchange economic articles on April 7. But today, two months after that date, the administration has not even given us its opening position on those articles. Further, thus far it has been unwilling to return to substantive negotiations over anything else (except an early retirement incentive). The excuses – presidential turnover and budget problems – have both been known for a long time, and thus those excuses are just not credible and border on the absurd. That is especially so in light of the administration’s miraculous willingness to negotiate about a retirement incentive, which certainly has some economic implications, but nothing else – not even totally non-economic articles.

What Now?

It is still our hope that the administration will resume immediately good-faith negotiations toward a successor CBA. In that regard, the ball has been in their court for two months. However, as we stated in our June 6 e-mail, we have asked our chapter attorney to initiate the fact-finding process specified in state law. Our objective is to obtain a fair, reasonable CBA for the Bargaining Unit Faculty by any means necessary. But no matter what our attorney, Negotiating Team, and Executive Committee do, we won’t get a fair, reasonable CBA without continued visible, active support of BUFMs. Your next opportunity to act is to attend the Board of Trustees budget meeting on Thursday, June 8 at 8:30am in the Student Union’s Apollo Room. Wear an AAUP-WSU t-shirt!

About additional actions, please stay tuned.