As Introduced

127th General Assembly Regular Session 2007-2008

H. B. No. 371

Representative Flowers 

Cosponsors: Representatives Barrett, Beatty, Blessing, Bolon, Book, Brady, Brown, Budish, Celeste, Chandler, Collier, Combs, DeGeeter, Distel, Dodd, Domenick, Driehaus, Dyer, Fende, Foley, Garrison, Gerberry, Goyal, Hagan, J., Hagan, R., Harwood, Healy, Heard, Huffman, Hughes, Letson, Luckie, Lundy, Mallory, McGregor, J., McGregor, R., Oelslager, Okey, Otterman, Patton, Peterson, Sayre, Schindel, Skindell, Strahorn, Stewart, D., Stewart, J., Sykes, Szollosi, Uecker, Ujvagi, Wagoner, Williams, B., Williams, S., Wolpert, Yates, Yuko, Zehringer 

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A BILL

To amend sections 4117.01 and 4117.09 of the Revised

1

Code to modify coverage of the Public Employees'

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Collective Bargaining Law with respect to township

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fire departments.

4

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:

7

(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 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;

38

(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

(6) Confidential employees;

51

(7) Management level employees;

52

(8) Employees and officers of the courts, assistants to the	53
attorney general, assistant prosecuting attorneys, and employees	54
of the clerks of courts who perform a judicial function;	55

(9) Employees of a public official who act in a fiduciary	56
capacity, appointed pursuant to section 124.11 of the Revised	57
Code;	58

(10) Supervisors;

59

(11) Students whose primary purpose is educational training,	60
including graduate assistants or associates, residents, interns,	61
or other students working as part-time public employees less than	62
fifty per cent of the normal year in the employee's bargaining	63
unit;	64

(12) Employees of county boards of election;

65

(13) Seasonal and casual employees as determined by the state	66
employment relations board;	67

(14) Part-time faculty members of an institution of higher	68
education;	69

(15) Employees of the state personnel board of review;

70

(16) Participants in a work activity, developmental activity,	71
or alternative work activity under sections 5107.40 to 5107.69 of	72
the Revised Code who perform a service for a public employer that	73
the public employer needs but is not performed by an employee of	74
the public employer if the participant is not engaged in paid	75
employment or subsidized employment pursuant to the activity;	76

(17) Employees included in the career professional service of	77
the department of transportation under section 5501.20 of the	78
Revised Code;	79

(18) Employees of community-based correctional facilities and	80
district community-based correctional facilities created under	81
sections 2301.51 to 2301.58 of the Revised Code who are not	82
subject to a collective bargaining agreement on June 1, 2005.	83

(D) "Employee organization" means any labor or bona fide	84
organization in which public employees participate and that exists	85
for the purpose, in whole or in part, of dealing with public	86
employers concerning grievances, labor disputes, wages, hours,	87
terms, and other conditions of employment.	88

(E) "Exclusive representative" means the employee	89
organization certified or recognized as an exclusive	90
representative under section 4117.05 of the Revised Code.	91

(F) "Supervisor" means any individual who has authority, in	92
the interest of the public employer, to hire, transfer, suspend,	93
lay off, recall, promote, discharge, assign, reward, or discipline	94
other public employees; to responsibly direct them; to adjust	95
their grievances; or to effectively recommend such action, if the	96
exercise of that authority is not of a merely routine or clerical	97
nature, but requires the use of independent judgment, provided	98
that:	99

(1) Employees of school districts who are department	100
chairpersons or consulting teachers shall not be deemed	101
supervisors;	102

(2) With respect to members of a police or fire department,	103
no person shall be deemed a supervisor except the chief of the	104
department or those individuals who, in the absence of the chief,	105
are authorized to exercise the authority and perform the duties of	106
the chief of the department. Where prior to June 1, 1982, a public	107
employer pursuant to a judicial decision, rendered in litigation	108
to which the public employer was a party, has declined to engage	109
in collective bargaining with members of a police or fire	110
department on the basis that those members are supervisors, those	111
members of a police or fire department do not have the rights	112
specified in this chapter for the purposes of future collective	113
bargaining. The state employment relations board shall decide all	114
disputes concerning the application of division (F)(2) of this	115
section.	116

(3) With respect to faculty members of a state institution of	117
higher education, heads of departments or divisions are	118
supervisors; however, no other faculty member or group of faculty	119
members is a supervisor solely because the faculty member or group	120
of faculty members participate in decisions with respect to	121
courses, curriculum, personnel, or other matters of academic	122
policy;	123

(4) No teacher as defined in section 3319.09 of the Revised	124
Code shall be designated as a supervisor or a management level	125
employee unless the teacher is employed under a contract governed	126
by section 3319.01, 3319.011, or 3319.02 of the Revised Code and	127
is assigned to a position for which a license deemed to be for	128
administrators under state board rules is required pursuant to	129
section 3319.22 of the Revised Code.	130

(G) "To bargain collectively" means to perform the mutual	131
obligation of the public employer, by its representatives, and the	132
representatives of its employees to negotiate in good faith at	133
reasonable times and places with respect to wages, hours, terms,	134
and other conditions of employment and the continuation,	135
modification, or deletion of an existing provision of a collective	136
bargaining agreement, with the intention of reaching an agreement,	137
or to resolve questions arising under the agreement. "To bargain	138
collectively" includes executing a written contract incorporating	139
the terms of any agreement reached. The obligation to bargain	140
collectively does not mean that either party is compelled to agree	141
to a proposal nor does it require the making of a concession.	142

(H) "Strike" means continuous concerted action in failing to	143
report to duty; willful absence from one's position; or stoppage	144
of work in whole from the full, faithful, and proper performance	145
of the duties of employment, for the purpose of inducing,	146
influencing, or coercing a change in wages, hours, terms, and	147
other conditions of employment. "Strike" does not include a	148
stoppage of work by employees in good faith because of dangerous	149
or unhealthful working conditions at the place of employment that	150
are abnormal to the place of employment.	151

(I) "Unauthorized strike" includes, but is not limited to,	152
concerted action during the term or extended term of a collective	153
bargaining agreement or during the pendency of the settlement	154
procedures set forth in section 4117.14 of the Revised Code in	155
failing to report to duty; willful absence from one's position;	156
stoppage of work; slowdown, or abstinence in whole or in part from	157
the full, faithful, and proper performance of the duties of	158
employment for the purpose of inducing, influencing, or coercing a	159
change in wages, hours, terms, and other conditions of employment.	160
"Unauthorized strike" includes any such action, absence, stoppage,	161
slowdown, or abstinence when done partially or intermittently,	162
whether during or after the expiration of the term or extended	163
term of a collective bargaining agreement or during or after the	164
pendency of the settlement procedures set forth in section 4117.14	165
of the Revised Code.	166

(J) "Professional employee" means any employee engaged in	167
work that is predominantly intellectual, involving the consistent	168
exercise of discretion and judgment in its performance and	169
requiring knowledge of an advanced type in a field of science or	170
learning customarily acquired by a prolonged course in an	171
institution of higher learning or a hospital, as distinguished	172
from a general academic education or from an apprenticeship; or an	173
employee who has completed the courses of specialized intellectual	174
instruction and is performing related work under the supervision	175
of a professional person to become qualified as a professional	176
employee.	177

(K) "Confidential employee" means any employee who works in	178
the personnel offices of a public employer and deals with	179
information to be used by the public employer in collective	180
bargaining; or any employee who works in a close continuing	181
relationship with public officers or representatives directly	182
participating in collective bargaining on behalf of the employer.	183

(L) "Management level employee" means an individual who	184
formulates policy on behalf of the public employer, who	185
responsibly directs the implementation of policy, or who may	186
reasonably be required on behalf of the public employer to assist	187
in the preparation for the conduct of collective negotiations,	188
administer collectively negotiated agreements, or have a major	189
role in personnel administration. Assistant superintendents,	190
principals, and assistant principals whose employment is governed	191
by section 3319.02 of the Revised Code are management level	192
employees. With respect to members of a faculty of a state	193
institution of higher education, no person is a management level	194
employee because of the person's involvement in the formulation or	195
implementation of academic or institution policy.	196

(M) "Wages" means hourly rates of pay, salaries, or other	197
forms of compensation for services rendered.	198

(N) "Member of a police department" means a person who is in	199
the employ of a police department of a municipal corporation as a	200
full-time regular police officer as the result of an appointment	201
from a duly established civil service eligibility list or under	202
section 737.15 or 737.16 of the Revised Code, a full-time deputy	203
sheriff appointed under section 311.04 of the Revised Code, a	204
township constable appointed under section 509.01 of the Revised	205
Code, or a member of a township police district police department	206
appointed under section 505.49 of the Revised Code.	207

(O) "Members of the state highway patrol" means highway	208
patrol troopers and radio operators appointed under section	209
5503.01 of the Revised Code.	210

(P) "Member of a fire department" means a person who is in	211
the employ of a fire department of a municipal corporation or a	212
township as a fire cadet, full-time regular firefighter, or	213
promoted rank as the result of an appointment from a duly	214
established civil service eligibility list or under section	215
505.38, 709.012, or 737.22 of the Revised Code.	216

(Q) "Day" means calendar day.

217

Sec. 4117.09.  (A) The parties to any collective bargaining	218
agreement shall reduce the agreement to writing and both execute	219
it.	220

(B) The agreement shall contain a provision that:

221

(1) Provides for a grievance procedure which may culminate	222
with final and binding arbitration of unresolved grievances, and	223
disputed interpretations of agreements, and which is valid and	224
enforceable under its terms when entered into in accordance with	225
this chapter. No publication thereof is required to make it	226
effective. A party to the agreement may bring suits for violation	227
of agreements or the enforcement of an award by an arbitrator in	228
the court of common pleas of any county wherein a party resides or	229
transacts business.	230

(2) Authorizes the public employer to deduct the periodic	231
dues, initiation fees, and assessments of members of the exclusive	232
representative upon presentation of a written deduction	233
authorization by the employee.	234

(C) The agreement may contain a provision that requires as a	235
condition of employment, on or after a mutually agreed upon	236
probationary period or sixty days following the beginning of	237
employment, whichever is less, or the effective date of a	238
collective bargaining agreement, whichever is later, that the	239
employees in the unit who are not members of the employee	240
organization pay to the employee organization a fair share fee.	241
The arrangement does not require any employee to become a member	242
of the employee organization, nor shall fair share fees exceed	243
dues paid by members of the employee organization who are in the	244
same bargaining unit. Any public employee organization	245
representing public employees pursuant to this chapter shall	246
prescribe an internal procedure to determine a rebate, if any, for	247
nonmembers which conforms to federal law, provided a nonmember	248
makes a timely demand on the employee organization. Absent	249
arbitrary and capricious action, such determination is conclusive	250
on the parties except that a challenge to the determination may be	251
filed with the state employment relations board within thirty days	252
of the determination date specifying the arbitrary or capricious	253
nature of the determination and the board shall review the rebate	254
determination and decide whether it was arbitrary or capricious.	255
The deduction of a fair share fee by the public employer from the	256
payroll check of the employee and its payment to the employee	257
organization is automatic and does not require the written	258
authorization of the employee.	259

The internal rebate procedure shall provide for a rebate of	260
expenditures in support of partisan politics or ideological causes	261
not germainegermane to the work of employee organizations in the	262
realm of collective bargaining.	263

Any public employee who is a member of and adheres to	264
established and traditional tenets or teachings of a bona fide	265
religion or religious body which has historically held	266
conscientious objections to joining or financially supporting an	267
employee organization and which is exempt from taxation under the	268
provisions of the Internal Revenue Code shall not be required to	269
join or financially support any employee organization as a	270
condition of employment. Upon submission of proper proof of	271
religious conviction to the board, the board shall declare the	272
employee exempt from becoming a member of or financially	273
supporting an employee organization. The employee shall be	274
required, in lieu of the fair share fee, to pay an amount of money	275
equal to the fair share fee to a nonreligious charitable fund	276
exempt from taxation under section 501(c)(3) of the Internal	277
Revenue Code mutually agreed upon by the employee and the	278
representative of the employee organization to which the employee	279
would otherwise be required to pay the fair share fee. The	280
employee shall furnish to the employee organization written	281
receipts evidencing such payment, and failure to make the payment	282
or furnish the receipts shall subject the employee to the same	283
sanctions as would nonpayment of dues under the applicable	284
collective bargaining agreement.	285

No public employer shall agree to a provision requiring that	286
a public employee become a member of an employee organization as a	287
condition for securing or retaining employment.	288

(D) As used in this division, "teacher" means any employee of	289
a school district certified to teach in the public schools of this	290
state.	291

The agreement may contain a provision that provides for a	292
peer review plan under which teachers in a bargaining unit or	293
representatives of an employee organization representing teachers	294
may, for other teachers of the same bargaining unit or teachers	295
whom the employee organization represents, participate in	296
assisting, instructing, reviewing, evaluating, or appraising and	297
make recommendations or participate in decisions with respect to	298
the retention, discharge, renewal, or nonrenewal of, the teachers	299
covered by a peer review plan.	300

The participation of teachers or their employee organization	301
representative in a peer review plan permitted under this division	302
shall not be construed as an unfair labor practice under this	303
chapter or as a violation of any other provision of law or rule	304
adopted pursuant thereto.	305

(E) No agreement shall contain an expiration date that is	306
later than three years from the date of execution. The parties may	307
extend any agreement, but the extensions do not affect the	308
expiration date of the original agreement.	309

(F) As used in this division, "township" means a public	310
employer as defined in division (B)(2) of section 4117.01 of the	311
Revised Code.	312

An agreement entered into between a township and an employee	313
organization representing the members of the township's fire	314
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

Section 2. That existing sections 4117.01 and 4117.09 of the	323
Revised Code are hereby repealed.	324