Columbus Dispatch...
Issue 2 would give management more say
By Jim Siegel and  Joe Vardon 

When Kirk Hamilton faced a major overcrowding problem as superintendent of South-Western schools in 1998, the district implemented split schedules, forcing some students to arrive as early as 7 a.m. or leave as late as 6:30 p.m. 

Hamilton said it wasn’t the busing or the class schedules that were the most difficult to develop. It was bargaining the change with the teachers’ union. 

The process was delayed as management and the South-Western Education Association fought over student schedules, staff assignments and, according to a union official at the time, “many areas of working and teaching conditions.” Eventually, the sides were forced to call in a federal mediator. 

“You’re trying to do something in the best interest of kids, but we had to balance that against the desires of the adults in the system as well,” said Hamilton, now the executive director of the Buckeye Association of School Administrators. 

“Sometimes, things don’t happen in the best interest of kids because of the need to negotiate what would be a reasonable decision for school-district administrators to make.” 

The Republican group Building a Better Ohio has stuck largely to economic arguments in making the case for why Ohioans should vote “yes” on Issue 2 and preserve the anti-collective-bargaining law known as Senate Bill 5. But some say the extent of the law’s true impact will be felt not through mandatory health-insurance and pension contributions, but rather by tilting the balance of power definitively in the direction of management. 

The law rewrites the definition of management rights and makes it tougher for elected officials to bargain them away. It also no longer requires that any current provision of a contract becomes a mandatory subject of future collective bargaining — pushing the reset button on a host of workplace issues that were bargained in the past. 

Police and firefighters argue this puts them, and ultimately the public, at risk by eliminating prior agreements on staffing levels, equipment, vehicles, weapons and weapons training. The unions say the changes to management rights are vague and “so overreaching and fundamentally unfair that it could completely leave a bargaining unit with no rights, whatsoever.” 

Even if unions wanted to fight, the law would leave them toothless by eliminating both binding arbitration for safety forces as a way to settle contract disputes and the right to strike for all other public unions. It also allows the governing body to ultimately pick and implement its own last contract offer. 

“The biggest safety standard we have is staffing,” said Doug Stern, a Cincinnati firefighter and star of the first TV commercial by the anti-Senate Bill 5 group We Are Ohio. “It’s not the equipment. It’s making sure we have the right number of people to react before the fire spreads too far, too fast.” 

We Are Ohio, a coalition of Democrats and labor unions, has consistently argued that safety forces and the public could be put in danger if managers try to cut costs by having fewer police and firefighters on the clock. 

In Newark, firefighters rejected a fact-finder’s report in July that recommended doing away with mandatory minimum staffing levels that ensure 19 firefighters are on duty at all times, with at least three assigned to a fire engine. 

At the time, David McElfresh, president of the International Association of Fire Fighters Local 109, said getting rid of staffing requirements would put the safety of firefighters in jeopardy and could result in closing a fire station. He said Newark firefighters would rather have four people per engine, which national studies show is more effective for fighting fires. 

Stern said he doesn’t think city managers would cut daily staffing levels (which includes determining how many firefighters serve on a truck) with “malicious intent,” but public safety might be jeopardized “if they make the cuts with a lack of knowledge on what levels are appropriate to keep people safe.” 

He added, “I’m not confident that people on City Council might always take the time to be informed.” 

While Senate Bill 5 says that staffing levels are among the items that are not “appropriate” for bargaining, administrators still could consult voluntarily with unions to determine staffing levels. In smaller cities such as Findlay, in northwestern Ohio; Elyria, in northeastern Ohio; and Warren, near Youngstown, mandatory firefighter staffing levels are not a part of union contracts. 

Because managers for the city of Findlay have final say on staffing levels and work shifts, Mayor Pete Sehnert, a Republican and former police officer, was able to switch police officers from four, 10-hour shifts to five, eight-hour shifts in 2009 and reduce overtime costs by $160,000. 

Jim Barker, Sehnert’s safety director, said the firefighters’ contract Sehnert inherited allowed the department’s last retiree under that contract to receive an additional $106,000 in accrued holiday and vacation pay upon retirement. 

“You have the Toledos and the Daytons and the Youngstowns, where unions have been able to nip at management rights over the years,” Barker said. “Some municipalities have bargained away their management rights, but we’ve never done that here. 

“Senate Bill 5 would allow them to get those back, I guess.” 

Administrators who want to see mandatory staffing levels disappear base their support on the costs of maintaining those levels. But there are myriad factors that can make mandatory staffing an expensive clause. 

Toledo firefighters’ contract requires that 103 firefighters be on duty each day. If there is a flood of vacation or sick days used by those scheduled to work, the city is required to pay overtime to otherwise off-duty firefighters to maintain the 103-person staffing level. 

Toledo, which had a budget shortfall of about $48 million in 2009 and is again facing cash concerns, spends more than $4 million per year on overtime for the fire department. 

And in Mansfield, which narrowly avoided a government shutdown because of its financial woes earlier this year, state Auditor Dave Yost recommended in a July report that the city “negotiate to eliminate minimum manning requirements; reduce severance payouts, sick leave accrual rates” and other items with its fire union.

Mansfield, which was placed under “fiscal emergency” by the state last year, tried to address its financial woes by laying off police officers and firefighters, but it was found in violation of its contract with firefighters by falling below a mandatory daily staffing level. Under Senate Bill 5, Mansfield officials could act on Yost’s suggestions without the union’s consent. 

“There’s no incentive to negotiate if you hold all the cards,” said Stephen Lazarus, a Cincinnati attorney who represents public-employee unions in contract negotiations. “Sure, you can ‘ bargain’ all you want, but what’s their incentive to bargain if at the end of the day they can do what they want?” 

Among Lazarus’ 100-plus clients is the Cincinnati firefighters union, which has been involved in contentious discussions with city officials about contract concessions — concessions Lazarus called “rushed” and “unreasonable” demands by council. 

“With Senate Bill 5, all of a sudden we’d have to trust them to do the right thing,” he said. “ What’s going to change?” 

Jeff Berding, a former Democratic and independent Cincinnati councilman, said he was stunned when the firefighters union last year chose layoffs or tax increases over giving up their “ sweetheart deals.” He pointed to a Cincinnati Enquirer report in February that said the city will owe current workers $93 million in unused holiday, vacation and sick days when they retire. 

“Can we take some of that out of the contract? It stunned me that the answer from the unions was ‘no,’ ” said Berding, who left the council in March 2011 after five years. “Under Issue 2, you don’t have to ask permission. When the contract is up, it resets. All of these perks and generous benefits that maybe previous city councils put in the ’80s and ’90s, maybe when economic times were good or city councils weren’t very bright, they’re not sustainable.” 

The city said it needed concessions to fill a $50 million hole. Lazarus said that two weeks prior to asking for cuts, the city’s attorney offered to extend the contract without reductions. So when the need for givebacks was broached, he said, “Frankly, given the history with the city, we didn’t believe them.” 

When a fact-finder’s report that kept the status quo was implemented, Lazarus said: “Guess how many firefighters were laid off? Zero. 

“Stuff does come out of the contracts, but whoever wants to take it out has to show justification for it.” 

Van Keating, the Ohio School Boards Association’s top contract negotiator, said he has never bargained a new contract that was shorter than the previous one. Provisions are added — a little concession here, a new district policy there, creating a snowball effect over nearly 30 years of collective bargaining. 

“The list of regrets in those contracts is long, and they vary,” Keating said. 

A number of teacher contracts define a student’s day, he said, though “students aren’t covered by this collective-bargaining agreement. But once it’s put in there, the school is stuck with that as the student day. 

“Then ... teachers bargain how their days are going to be. What their periods are going to be. How long they have to stay after the students leave. It gets to be a real big mess. Once it’s in a contract, you never get that out.” 

Tom Ash, director of governmental development for the Buckeye Association of School Administrators, said his group routinely hears from new superintendents who read through their teacher contracts for the first time. “They’re calling, saying: ‘Who in his right mind would have ever agreed to this?’ ” 

But someone did agree, on both sides of the table. Ash said management shares responsibility for the erosion of their powers and rights over time. 

“We probably did some things we shouldn’t have done. We make little concessions because there was no money,” he said. He pointed to a district that created a common planning time for all teachers of the same grade level. “And then enrollment declines 10 years later, and you need to start making cutbacks, but you can’t do it because there won’t be common planning time.” 

Ash also recalled a north-central Ohio school that had to bargain when the consolidation of a freshman and high-school building changed the schedule from three 40-minute lunch periods to four 30-minute periods. “The process was drawn out for three or four months.” 

Policy Matters Ohio, a liberal-leaning research group, found that some management provisions in public-union contracts directly benefit communities. The group highlighted teacher contracts that limit class sizes, develop student-discipline plans and ensure that certain classes are taught, such as art, music and foreign language. Safety forces and nursing contracts can include staffing-level requirements. 

“Public professions are often dangerous and require substantial expertise,” said Amy Hanauer, executive director of Policy Matters. 

Bill Liebensperger, vice president of the Ohio Education Association, told lawmakers that students would lose because bargaining “gives educators and support personnel a voice to speak for the learning conditions students need to achieve and the support teachers need to be effective.” 

Hamilton said if a school board wants a “management right” issue removed from a contract, unions often see it as a concession and want something in return. Most districts don’t have extra dollars, particularly after Republicans cut education funding by $780 million in the two-year state budget implemented July 1. 

“The system doesn’t provide any incentive to make any kind of concession,” he said. 

Read this and other articles at the Columbus Dispatch