Issue 2

I was asked to put together a brief explaining the reason for Issue 2. Issue 2 is a referendum on Ohio Senate Bill 5. SB 5 changed the Ohio Revised Code with regard to what was and was not permitted in bargaining between public employers (AKA “taxpayers”) and public employees. A “YES” vote is a vote to keep the changes. A “NO” vote is a vote to reject the changes.

SB 5 has been opposed by the unions. There are a number of important reasons for their opposition. New section 4113.80 prohibits discrimination in laying off employees. Section 4117.80 was changed to remove from collective bargaining certain items. New section 4117.081, which applies only to public schools, prohibits public schools from bargaining with unions over certain workplace rules, fixes at 85% the maximum amount the public might be required to pay for public school employee health care insurance premiums, and specifically exempts personal safety equipment from the prohibition. Section 4117.09 was changed to prohibit requiring non-union public employees to pay union dues, or to require union membership. Section 4117.26 was added to define public employee compensation as anything of value given to the employee in exchange for service.

While most private employees would see these changes as making public employee pay and benefits conform to the “real world”, the requirements that teachers agree individually in writing to pay union dues is rightly viewed as a major attack on union power. The unions have resorted to lies about what the bill contains, and many of the people who say they are opposed have simply been mislead or are otherwise ill-informed. Few of the opponents of Issue 2 will flatly admit that it challenges the feathering of their own nests.

The Official Argument and Explanation for Issue 2 (one page) can be found on the Ohio Secretary of State’s website. A synopsis of the critical changes follows; text in red has been added to (underlined) or deleted from (struck through) the existing ORC.



Sec. 4113.80. (A) As used in this section, "public employer" means the state or any agency or instrumentality of the state, and any municipal corporation, county, township, school district, or other political subdivision or any agency or instrumentality of a municipal corporation, county, township, school district, or other political subdivision.
    (B) "Age," "ancestry," "color," "disability," "military status," "national origin," "race," "religion," and "sex" have the same meanings and shall be construed in the same manner as in Chapter 4112. of the Revised Code.
    (C) When determining whether to lay off an employee as part of a reduction in force, a public employer shall not consider the race, color, religion, sex, military status, national origin, disability, age, or ancestry of the employee in violation of Chapter 4112. of the Revised Code or any applicable federal law.

Sec. 4117.08. (A) All matters pertaining to wages, hours, or and terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative, except as otherwise specified in this section and division (E) of section 4117.03 4117.081 of the Revised Code. Any existing provision of a collective bargaining agreement that was modified, renewed, or extended from a prior collective bargaining agreement that does not concern wages, hours, and terms and conditions shall not be a mandatory subject of collective bargaining and shall not be subject to any impasse procedure without the mutual agreement of both the public employer and exclusive representative. The inclusion of a provision in a previous collective bargaining agreement shall not be used as a basis for the provision being determined to concern wages, hours, and terms and conditions.
    (B) The following subjects are not appropriate subjects for collective bargaining:
    (1) The conduct and grading of civil service examinations, the rating of candidates, the establishment of eligible lists from the examinations, and the original appointments from the eligible lists are not appropriate subjects for collective bargaining;
    (2) Health care benefits, except that, subject to division (E) of this section, the amount of the cost of those benefits for which a public employer and the public employees of the public employer pays is an appropriate subject of collective bargaining;
    (3) The payment of a contribution by a public employer to the public employees retirement system, the Ohio police and fire pension fund, the state teachers retirement system, the state highway patrol retirement system, or the school employees retirement system on behalf of an employee, contributor, or teacher, as applicable, that the employee, contributor, or teacher otherwise is required to pay;
    (4) The privatization of a public employer's services or contracting out of the public employer's work;
    (5) The number of employees required to be on duty or employed in any department, division, or facility of a public employer.
    (C) Unless a public employer specifically agrees otherwise in an express written provision of a collective bargaining agreement, nothing in Chapter 4117. of the Revised Code impairs the right and responsibility of each public employer to:
    (1) Determine matters of inherent managerial policy which include, but are not limited to areas of discretion or policy such as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, and organizational structure;
    (2) Direct, supervise, evaluate, or hire employees;
    (3) Maintain and improve the efficiency and effectiveness of governmental operations;
    (4) Determine the overall methods, process, means, or personnel by which governmental operations are to be conducted;
    (5) Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote, or retain employees;
    (6) Determine the adequacy of the work force;
    (7) Determine the overall mission of the employer as a unit of government;
    (8) Effectively manage the work force;
    (9) Take actions to carry out the mission of the public employer as a governmental unit Hire, discharge, transfer, suspend, or discipline employees;
    (2) Determine the number of persons required to be employed or laid off;
    (3) Determine the qualifications of employees;
    (4) Determine the starting and quitting time and the number of hours to be worked by its employees;
    (5) Make any and all reasonable rules and regulations;
    (6) Determine the work assignments of its employees;
    (7) Determine the basis for selection, retention, and promotion of employees;
    (8) Determine the type of equipment used and the sequence of work processes, except as provided in division (F) of this section;
    (9) Determine the making of technological alterations by revising either process or equipment or both, except as provided in division (F) of this section;
    (10) Determine work standards and the quality and quantity of work to be produced;
    (11) Select and locate buildings and other facilities;
    (12) Establish, expand, transfer, or consolidate work processes and facilities;
    (13) Transfer or subcontract work;
    (14) Consolidate, merge, or otherwise transfer any or all of its facilities, property processes, or work with or to any other municipal corporation or entity or effect or change in any respect the legal status, management, or responsibility of such property, facilities, processes, or work;
    (15) Terminate or eliminate all or any part of its work or facilities.
    The employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment, and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement. A public employee or exclusive representative may raise a legitimate complaint or file a grievance based only on the violation of the express written provisions of a collective bargaining agreement.
    (D) During negotiations between a public employer and an exclusive representative, the parties shall consider, for purposes of determining the ability of the public employer to pay for any terms agreed to during collective bargaining, only the financial status of the public employer at the time period surrounding the negotiations. When determining whether the employer can pay for those terms, the parties shall consider the employer's inability to pay. The parties shall not consider either of the following when determining the ability of the public employer to pay for those terms:
    (1) Any potential future increase in the income of the public employer that would only be possible by the employer raising revenue, including, but not limited to, passing a levy or a bond issue;
    (2) The employer's ability to sell assets.
    (E) The provision of health care benefits for which the employer is required to pay more than eighty-five per cent of the cost is not an appropriate subject for collective bargaining. No public employer shall agree to a provision that requires the public employer to pay more than eighty-five per cent of the cost paid for health care benefits.
    (F) Notwithstanding division (C) of this section, equipment issues directly related to personal safety are subject to collective bargaining.

Sec. 4117.081. (A) This section applies only to school districts, educational service centers, certain conversion community schools established under Chapter 3314. of the Revised Code, and STEM schools established under Chapter 3326. of the Revised Code.
    (B) No public employer to which this section applies shall enter into a collective bargaining agreement on or after the effective date of this section that does any of the following:
    (1) Requires the public employer to employ a minimum number of total personnel or any category of personnel;
    (2) Restricts the authority of the public employer or a district or service center superintendent to assign personnel to school buildings or restricts the authority of a building principal to designate the responsibilities and workloads of personnel assigned to the building;
    (3) Establishes a maximum number of students who may be assigned to a classroom or teacher;
    (4) Prohibits the public employer from making reductions in teachers or nonteaching employees for any applicable reason specified in division (B) of section 124.321 or section 3319.17 or 3319.172 of the Revised Code or in a policy adopted under section 3319.171 of the Revised Code;
    (5) Restricts the authority of the public employer, when making personnel reductions, to determine the order of layoffs;
    (6) Restricts the authority of the public employer to acquire noneducational services from another public or private entity through competitive bidding;
    (7) Restricts the authority of the public employer to acquire any products, programs, or services pursuant to section 3313.841, 3313.842, 3313.843, or 3313.845 of the Revised Code;
    (8) Otherwise relinquishes, impairs, or restricts the managerial rights and responsibilities of the public employer described in division (C) of section 4117.08 of the Revised Code.
    (C)(1) Except as otherwise provided in division (C)(2) of this section, each collective bargaining agreement entered into on or after the effective date of this section between a public employer to which this section applies and its employees shall comply with all applicable state or local laws or ordinances regarding wages, hours, and terms and conditions of employment of public employees.
    (2) A collective bargaining agreement entered into on or after the effective date of this section may include a provision that conflicts with an applicable law or ordinance, if the provision establishes benefits that are less than the benefits conferred by the law or ordinance and division (A) of section 4117.10 of the Revised Code does not require that the law or ordinance prevail over the conflicting provision. Any provision of the agreement that conflicts with an applicable law or ordinance and does not meet these requirements shall be void.
    (D) Notwithstanding division (A)(5) of section 4117.11 of the Revised Code, a public employer to which this section applies is not required to, and may refuse to, collectively bargain on the continuation, modification, or termination of a provision of an existing collective bargaining agreement.

Sec. 4117.09. (A) The parties to any collective bargaining agreement shall reduce the agreement to writing and both execute it.
    (B) The agreement shall contain a provision that:
    (1) Provides for a grievance procedure which may culminate with final and binding arbitration of unresolved grievances, and that are based on the disputed interpretations of the express written provisions of the agreements, and which is valid and enforceable under its terms when entered into in accordance with this chapter. No publication thereof is required to make it effective. A party to the agreement may bring suits for violation of agreements or the enforcement of an award by an arbitrator in the court of common pleas of any county wherein a party resides or transacts business.
    (2) Authorizes the public employer to deduct the periodic dues, initiation fees, and assessments of members of the exclusive representative upon presentation of a written deduction authorization by the employee so long as the employee organization has filed and maintained its financial report outlining the organization's expenditures.
    (C) The No agreement may contain a provision that requires as a condition of employment, on or after a mutually agreed upon probationary period or sixty days following the beginning of employment, whichever is less, or the effective date of a collective bargaining agreement, whichever is later, that the employees in the unit who are not members of the employee organization pay to the employee organization a fair share fee. The arrangement does not require any employee to become a member of the employee organization, nor shall fair share fees exceed dues paid by members of the employee organization who are in the same bargaining unit. Any public employee organization representing public employees pursuant to this chapter shall prescribe an internal procedure to determine a rebate, if any, for nonmembers which conforms to federal law, provided a nonmember makes a timely demand on the employee organization. Absent arbitrary and capricious action, such determination is conclusive on the parties except that a challenge to the determination may be filed with the state employment relations board within thirty days of the determination date specifying the arbitrary or capricious nature of the determination and the board shall review the rebate determination and decide whether it was arbitrary or capricious. The deduction of a fair share fee by the public employer from the payroll check of the employee and its payment to the employee organization is automatic and does not require the written authorization of the employee. The internal rebate procedure shall provide for a rebate of expenditures in support of partisan politics or ideological causes not germaine to the work of employee organizations in the realm of collective bargaining. Any public employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion or religious body which has historically held conscientious objections to joining or financially supporting an employee organization and which is exempt from taxation under the provisions of the Internal Revenue Code shall not be required to join or financially support any employee organization as a condition of employment. Upon submission of proper proof of religious conviction to the board, the board shall declare the employee exempt from becoming a member of or financially supporting an employee organization. The employee shall be required, in lieu of the fair share fee, to pay an amount of money equal to the fair share fee to a nonreligious charitable fund exempt from taxation under section 501(c)(3) of the Internal Revenue Code mutually agreed upon by the employee and the representative of the employee organization to which the employee would otherwise be required to pay the fair share fee. The employee shall furnish to the employee organization written receipts evidencing such payment, and failure to make the payment or furnish the receipts shall subject the employee to the same sanctions as would nonpayment of dues under the applicable collective bargaining agreement.
    No public employer shall agree to a provision requiring that a public employee become a member of an employee organization as a condition for securing or retaining employment. Any agreement that purports to require that employees join any exclusive representative is void and unenforceable.
    No public employer shall agree to a provision that provides for the payroll deduction for any contributions to a political action committee using any other method than the method prescribed in sections 3517.082, 3517.09, and 3599.031 of the Revised Code.
    (D) As used in this division, "teacher" means any employee of a school district certified to teach in the public schools of this state.
    The agreement may contain a provision that provides for a peer review plan under which teachers in a bargaining unit or representatives of an employee organization representing teachers may, for other teachers of the same bargaining unit or teachers whom the employee organization represents, participate in assisting, instructing, reviewing, evaluating, or appraising and make recommendations or participate in decisions with respect to the retention, discharge, renewal, or nonrenewal of, the teachers covered by a peer review plan.
    The participation of teachers or their employee organization representative in a peer review plan permitted under this division shall not be construed as an unfair labor practice under this chapter or as a violation of any other provision of law or rule adopted pursuant thereto.
    (E) No agreement shall contain an expiration date that is later than three years from the date of execution. The parties may extend any agreement, but the extensions do not affect the expiration date of the original agreement.
    (F) No public employer shall agree to a provision that requires the public employer, when a reduction in force is necessary, to use an employee's length of service as the only factor to determine whether to lay off the employee.


Sec. 4117.26. (A) As used in this section, "compensation" means wages, salary, and other earnings paid to a public employee by reason of employment. "Compensation" includes all of the following that are provided by a public employer to a public employee:
    (1) Allowances for food or drink;
    (2) Allowances or stipends for clothing;
    (3) Compensation in addition to base salary for labor performed or services rendered by the public employee, including any additional compensation paid for attending an event that occurs outside the public employee's normal work schedule;
    (4) Payments for length of service;
    (5) Allowances for dry cleaning services;
    (6) Insurance coverage, including health insurance, vision insurance, dental insurance, disability insurance, or life insurance;
    (7) Anything of value given to a public employee by a public employer for labor performed or services rendered by the public employee that is not generally offered to any of the public employer's employees that are not subject to a collective bargaining agreement, unless they are de minimis.