Bill Text: OH HB271 | 2009-2010 | 128th General Assembly | Engrossed

Ohio House Bill 271 (Prior Session Legislation)

Engrossed

Bill Title: To modify coverage of the Public Employees' Collective Bargaining Law with respect to township fire departments.

Spectrum: Partisan Bill (Democrat 44-2)

Status: (Engrossed - Dead) 2009-12-09 - To Insurance, Commerce, & Labor [HB271 Detail]

Download: Ohio-2009-HB271-Engrossed.html

As Passed by the House

128th General Assembly

Regular Session

2009-2010

Sub. H. B. No. 271

Representatives Patten, Stewart

Cosponsors: Representatives DeGeeter, Dodd, Domenick, Foley, Garland, Gerberry, Goyal, Hagan, Harris, Letson, Luckie, Mallory, Murray, Oelslager, Phillips, Pryor, Szollosi, Ujvagi, Brown, Book, Boyd, Carney, Celeste, Chandler, DeBose, Driehaus, Dyer, Fende, Garrison, Harwood, Heard, Lundy, Okey, Otterman, Pillich, Sayre, Skindell, Slesnick, Weddington, Williams, B., Williams, S., Winburn, Yates, Yuko

A BILL

To amend sections 4117.01 and 4117.09 of the Revised

Code to modify coverage of the Public Employees'

Collective Bargaining Law with respect to township

fire departments.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 4117.01 and 4117.09 of the Revised	5
Code be amended to read as follows:	6

Sec. 4117.01. As used in this chapter:

(A) "Person," in addition to those included in division (C)	8
of section 1.59 of the Revised Code, includes employee	9
organizations, public employees, and public employers.	10

(B)(1) "Public employer" means the state or any political	11
subdivision of the state located entirely within the state,	12
including, without limitation, any municipal corporation with a	13
population of at least five thousand ~~according to the most recent~~	14
~~federal decennial census~~; county; township with a population of at	15
least five thousand in the unincorporated area of the township	16
~~according to the most recent federal decennial census~~; school	17
district; governing authority of a community school established	18
under Chapter 3314. of the Revised Code; state institution of	19
higher learning; public or special district; state agency,	20
authority, commission, or board; or other branch of public	21
employment.	22

(2) In addition, with respect to members of a fire department	23
of a township with a population of less than five thousand in the	24
unincorporated area of the township, "public employer" means a	25
township with a total population of at least five thousand in the	26
incorporated and unincorporated areas of the township that are	27
served by the township fire department.	28

(3) For purposes of division (B) of this section, population	29
shall be determined in accordance with the most recent federal	30
decennial census.	31

(C) "Public employee" means any person holding a position by	32
appointment or employment in the service of a public employer,	33
including any person working pursuant to a contract between a	34
public employer and a private employer and over whom the national	35
labor relations board has declined jurisdiction on the basis that	36
the involved employees are employees of a public employer, except:	37

(1) Persons holding elective office;

(2) Employees of the general assembly and employees of any	39
other legislative body of the public employer whose principal	40
duties are directly related to the legislative functions of the	41
body;	42

(3) Employees on the staff of the governor or the chief	43
executive of the public employer whose principal duties are	44
directly related to the performance of the executive functions of	45
the governor or the chief executive;	46

(4) Persons who are members of the Ohio organized militia,	47
while training or performing duty under section 5919.29 or 5923.12	48
of the Revised Code;	49

(5) Employees of the state employment relations board,	50
including those employees of the state employment relations board	51
utilized by the state personnel board of review in the exercise of	52
the powers and the performance of the duties and functions of the	53
state personnel board of review;	54

(6) Confidential employees;

(7) Management level employees;

(8) Employees and officers of the courts, assistants to the	57
attorney general, assistant prosecuting attorneys, and employees	58
of the clerks of courts who perform a judicial function;	59

(9) Employees of a public official who act in a fiduciary	60
capacity, appointed pursuant to section 124.11 of the Revised	61
Code;	62

(10) Supervisors;

(11) Students whose primary purpose is educational training,	64
including graduate assistants or associates, residents, interns,	65
or other students working as part-time public employees less than	66
fifty per cent of the normal year in the employee's bargaining	67
unit;	68

(12) Employees of county boards of election;

(13) Seasonal and casual employees as determined by the state	70
employment relations board;	71

(14) Part-time faculty members of an institution of higher	72
education;	73

(15) Participants in a work activity, developmental activity,	74
or alternative work activity under sections 5107.40 to 5107.69 of	75
the Revised Code who perform a service for a public employer that	76
the public employer needs but is not performed by an employee of	77
the public employer if the participant is not engaged in paid	78
employment or subsidized employment pursuant to the activity;	79

(16) Employees included in the career professional service	80
of the department of transportation under section 5501.20 of the	81
Revised Code;	82

(17) Employees of community-based correctional facilities	83
and district community-based correctional facilities created under	84
sections 2301.51 to 2301.58 of the Revised Code who are not	85
subject to a collective bargaining agreement on June 1, 2005;.	86

(D) "Employee organization" means any labor or bona fide	87
organization in which public employees participate and that exists	88
for the purpose, in whole or in part, of dealing with public	89
employers concerning grievances, labor disputes, wages, hours,	90
terms, and other conditions of employment.	91

(E) "Exclusive representative" means the employee	92
organization certified or recognized as an exclusive	93
representative under section 4117.05 of the Revised Code.	94

(F) "Supervisor" means any individual who has authority, in	95
the interest of the public employer, to hire, transfer, suspend,	96
lay off, recall, promote, discharge, assign, reward, or discipline	97
other public employees; to responsibly direct them; to adjust	98
their grievances; or to effectively recommend such action, if the	99
exercise of that authority is not of a merely routine or clerical	100
nature, but requires the use of independent judgment, provided	101
that:	102

(1) Employees of school districts who are department	103
chairpersons or consulting teachers shall not be deemed	104
supervisors;	105

(2) With respect to members of a police or fire department,	106
no person shall be deemed a supervisor except the chief of the	107
department or those individuals who, in the absence of the chief,	108
are authorized to exercise the authority and perform the duties of	109
the chief of the department. Where prior to June 1, 1982, a public	110
employer pursuant to a judicial decision, rendered in litigation	111
to which the public employer was a party, has declined to engage	112
in collective bargaining with members of a police or fire	113
department on the basis that those members are supervisors, those	114
members of a police or fire department do not have the rights	115
specified in this chapter for the purposes of future collective	116
bargaining. The state employment relations board shall decide all	117
disputes concerning the application of division (F)(2) of this	118
section.	119

(3) With respect to faculty members of a state institution of	120
higher education, heads of departments or divisions are	121
supervisors; however, no other faculty member or group of faculty	122
members is a supervisor solely because the faculty member or group	123
of faculty members participate in decisions with respect to	124
courses, curriculum, personnel, or other matters of academic	125
policy;	126

(4) No teacher as defined in section 3319.09 of the Revised	127
Code shall be designated as a supervisor or a management level	128
employee unless the teacher is employed under a contract governed	129
by section 3319.01, 3319.011, or 3319.02 of the Revised Code and	130
is assigned to a position for which a license deemed to be for	131
administrators under state board rules is required pursuant to	132
section 3319.22 of the Revised Code.	133

(G) "To bargain collectively" means to perform the mutual	134
obligation of the public employer, by its representatives, and the	135
representatives of its employees to negotiate in good faith at	136
reasonable times and places with respect to wages, hours, terms,	137
and other conditions of employment and the continuation,	138
modification, or deletion of an existing provision of a collective	139
bargaining agreement, with the intention of reaching an agreement,	140
or to resolve questions arising under the agreement. "To bargain	141
collectively" includes executing a written contract incorporating	142
the terms of any agreement reached. The obligation to bargain	143
collectively does not mean that either party is compelled to agree	144
to a proposal nor does it require the making of a concession.	145

(H) "Strike" means continuous concerted action in failing to	146
report to duty; willful absence from one's position; or stoppage	147
of work in whole from the full, faithful, and proper performance	148
of the duties of employment, for the purpose of inducing,	149
influencing, or coercing a change in wages, hours, terms, and	150
other conditions of employment. "Strike" does not include a	151
stoppage of work by employees in good faith because of dangerous	152
or unhealthful working conditions at the place of employment that	153
are abnormal to the place of employment.	154

(I) "Unauthorized strike" includes, but is not limited to,	155
concerted action during the term or extended term of a collective	156
bargaining agreement or during the pendency of the settlement	157
procedures set forth in section 4117.14 of the Revised Code in	158
failing to report to duty; willful absence from one's position;	159
stoppage of work; slowdown, or abstinence in whole or in part from	160
the full, faithful, and proper performance of the duties of	161
employment for the purpose of inducing, influencing, or coercing a	162
change in wages, hours, terms, and other conditions of employment.	163
"Unauthorized strike" includes any such action, absence, stoppage,	164
slowdown, or abstinence when done partially or intermittently,	165
whether during or after the expiration of the term or extended	166
term of a collective bargaining agreement or during or after the	167
pendency of the settlement procedures set forth in section 4117.14	168
of the Revised Code.	169

(J) "Professional employee" means any employee engaged in	170
work that is predominantly intellectual, involving the consistent	171
exercise of discretion and judgment in its performance and	172
requiring knowledge of an advanced type in a field of science or	173
learning customarily acquired by a prolonged course in an	174
institution of higher learning or a hospital, as distinguished	175
from a general academic education or from an apprenticeship; or an	176
employee who has completed the courses of specialized intellectual	177
instruction and is performing related work under the supervision	178
of a professional person to become qualified as a professional	179
employee.	180

(K) "Confidential employee" means any employee who works in	181
the personnel offices of a public employer and deals with	182
information to be used by the public employer in collective	183
bargaining; or any employee who works in a close continuing	184
relationship with public officers or representatives directly	185
participating in collective bargaining on behalf of the employer.	186

(L) "Management level employee" means an individual who	187
formulates policy on behalf of the public employer, who	188
responsibly directs the implementation of policy, or who may	189
reasonably be required on behalf of the public employer to assist	190
in the preparation for the conduct of collective negotiations,	191
administer collectively negotiated agreements, or have a major	192
role in personnel administration. Assistant superintendents,	193
principals, and assistant principals whose employment is governed	194
by section 3319.02 of the Revised Code are management level	195
employees. With respect to members of a faculty of a state	196
institution of higher education, no person is a management level	197
employee because of the person's involvement in the formulation or	198
implementation of academic or institution policy.	199

(M) "Wages" means hourly rates of pay, salaries, or other	200
forms of compensation for services rendered.	201

(N) "Member of a police department" means a person who is in	202
the employ of a police department of a municipal corporation as a	203
full-time regular police officer as the result of an appointment	204
from a duly established civil service eligibility list or under	205
section 737.15 or 737.16 of the Revised Code, a full-time deputy	206
sheriff appointed under section 311.04 of the Revised Code, a	207
township constable appointed under section 509.01 of the Revised	208
Code, or a member of a township police district police department	209
appointed under section 505.49 of the Revised Code.	210

(O) "Members of the state highway patrol" means highway	211
patrol troopers and radio operators appointed under section	212
5503.01 of the Revised Code.	213

(P) "Member of a fire department" means a person who is in	214
the employ of a fire department of a municipal corporation or a	215
township as a fire cadet, full-time regular firefighter, or	216
promoted rank as the result of an appointment from a duly	217
established civil service eligibility list or under section	218
505.38, 709.012, or 737.22 of the Revised Code.	219

(Q) "Day" means calendar day.

220

Sec. 4117.09. (A) The parties to any collective bargaining	221
agreement shall reduce the agreement to writing and both execute	222
it.	223

(B) The agreement shall contain a provision that:

224

(1) Provides for a grievance procedure which may culminate	225
with final and binding arbitration of unresolved grievances, and	226
disputed interpretations of agreements, and which is valid and	227
enforceable under its terms when entered into in accordance with	228
this chapter. No publication thereof is required to make it	229
effective. A party to the agreement may bring suits for violation	230
of agreements or the enforcement of an award by an arbitrator in	231
the court of common pleas of any county wherein a party resides or	232
transacts business.	233

(2) Authorizes the public employer to deduct the periodic	234
dues, initiation fees, and assessments of members of the exclusive	235
representative upon presentation of a written deduction	236
authorization by the employee.	237

(C) The agreement may contain a provision that requires as a	238
condition of employment, on or after a mutually agreed upon	239
probationary period or sixty days following the beginning of	240
employment, whichever is less, or the effective date of a	241
collective bargaining agreement, whichever is later, that the	242
employees in the unit who are not members of the employee	243
organization pay to the employee organization a fair share fee.	244
The arrangement does not require any employee to become a member	245
of the employee organization, nor shall fair share fees exceed	246
dues paid by members of the employee organization who are in the	247
same bargaining unit. Any public employee organization	248
representing public employees pursuant to this chapter shall	249
prescribe an internal procedure to determine a rebate, if any, for	250
nonmembers which conforms to federal law, provided a nonmember	251
makes a timely demand on the employee organization. Absent	252
arbitrary and capricious action, such determination is conclusive	253
on the parties except that a challenge to the determination may be	254
filed with the state employment relations board within thirty days	255
of the determination date specifying the arbitrary or capricious	256
nature of the determination and the board shall review the rebate	257
determination and decide whether it was arbitrary or capricious.	258
The deduction of a fair share fee by the public employer from the	259
payroll check of the employee and its payment to the employee	260
organization is automatic and does not require the written	261
authorization of the employee.	262

The internal rebate procedure shall provide for a rebate of	263
expenditures in support of partisan politics or ideological causes	264
not ~~germaine~~germane to the work of employee organizations in the	265
realm of collective bargaining.	266

Any public employee who is a member of and adheres to	267
established and traditional tenets or teachings of a bona fide	268
religion or religious body which has historically held	269
conscientious objections to joining or financially supporting an	270
employee organization and which is exempt from taxation under the	271
provisions of the Internal Revenue Code shall not be required to	272
join or financially support any employee organization as a	273
condition of employment. Upon submission of proper proof of	274
religious conviction to the board, the board shall declare the	275
employee exempt from becoming a member of or financially	276
supporting an employee organization. The employee shall be	277
required, in lieu of the fair share fee, to pay an amount of money	278
equal to the fair share fee to a nonreligious charitable fund	279
exempt from taxation under section 501(c)(3) of the Internal	280
Revenue Code mutually agreed upon by the employee and the	281
representative of the employee organization to which the employee	282
would otherwise be required to pay the fair share fee. The	283
employee shall furnish to the employee organization written	284
receipts evidencing such payment, and failure to make the payment	285
or furnish the receipts shall subject the employee to the same	286
sanctions as would nonpayment of dues under the applicable	287
collective bargaining agreement.	288

No public employer shall agree to a provision requiring that	289
a public employee become a member of an employee organization as a	290
condition for securing or retaining employment.	291

(D) As used in this division, "teacher" means any employee of	292
a school district certified to teach in the public schools of this	293
state.	294

The agreement may contain a provision that provides for a	295
peer review plan under which teachers in a bargaining unit or	296
representatives of an employee organization representing teachers	297
may, for other teachers of the same bargaining unit or teachers	298
whom the employee organization represents, participate in	299
assisting, instructing, reviewing, evaluating, or appraising and	300
make recommendations or participate in decisions with respect to	301
the retention, discharge, renewal, or nonrenewal of, the teachers	302
covered by a peer review plan.	303

The participation of teachers or their employee organization	304
representative in a peer review plan permitted under this division	305
shall not be construed as an unfair labor practice under this	306
chapter or as a violation of any other provision of law or rule	307
adopted pursuant thereto.	308

(E) No agreement shall contain an expiration date that is	309
later than three years from the date of execution. The parties may	310
extend any agreement, but the extensions do not affect the	311
expiration date of the original agreement.	312

(F) An agreement entered into between a township and an	313
employee organization representing the members of the township's	314
fire department shall contain a provision stating that if any	315
incorporated municipal corporations located within the township	316
elect to no longer receive fire protection through the township,	317
and as a result the population served by that township's fire	318
department becomes less than five thousand according to the most	319
recent federal decennial census, the township, at the township's	320
option, may terminate the agreement entered into between the	321
township and the employee organization.	322