As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 129

Senator Strahorn 

Cosponsors: Senators Miller, D., Morano, Miller, R. 

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A BILL

To amend sections 4117.01 and 4117.03 of the Revised

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Code to eliminate an exemption from the Public

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Employees' Collective Bargaining Law for specified

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educational employees.

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

Section 1. That sections 4117.01 and 4117.03 of the Revised	5
Code be amended to read as follows:	6

Sec. 4117.01.  As used in this chapter:

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(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) "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

(C) "Public employee" means any person holding a position by	23
appointment or employment in the service of a public employer,	24
including any person working pursuant to a contract between a	25
public employer and a private employer and over whom the national	26
labor relations board has declined jurisdiction on the basis that	27
the involved employees are employees of a public employer, except:	28

(1) Persons holding elective office;

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(2) Employees of the general assembly and employees of any	30
other legislative body of the public employer whose principal	31
duties are directly related to the legislative functions of the	32
body;	33

(3) Employees on the staff of the governor or the chief	34
executive of the public employer whose principal duties are	35
directly related to the performance of the executive functions of	36
the governor or the chief executive;	37

(4) Persons who are members of the Ohio organized militia,	38
while training or performing duty under section 5919.29 or 5923.12	39
of the Revised Code;	40

(5) Employees of the state employment relations board;

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(6) Confidential employees;

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(7) Management level employees;

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(8) Employees and officers of the courts, assistants to the	44
attorney general, assistant prosecuting attorneys, and employees	45
of the clerks of courts who perform a judicial function;	46

(9) Employees of a public official who act in a fiduciary	47
capacity, appointed pursuant to section 124.11 of the Revised	48
Code;	49

(10) Supervisors;

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(11) Students whose primary purpose is educational training,	51
including graduate assistants or associates, residents, interns,	52
or other students working as part-time public employees less than	53
fifty per cent of the normal year in the employee's bargaining	54
unit;	55

(12) Employees of county boards of election;

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(13)(12) Seasonal and casual employees as determined by the	57
state employment relations board;	58

(14) Part-time faculty members of an institution of higher	59
education;	60

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

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(16)(14) Participants in a work activity, developmental	62
activity, or alternative work activity under sections 5107.40 to	63
5107.69 of the Revised Code who perform a service for a public	64
employer that the public employer needs but is not performed by an	65
employee of the public employer if the participant is not engaged	66
in paid employment or subsidized employment pursuant to the	67
activity;	68

(17)(15) Employees included in the career professional	69
service of the department of transportation under section 5501.20	70
of the Revised Code;	71

(18)(16) Employees of community-based correctional facilities	72
and district community-based correctional facilities created under	73
sections 2301.51 to 2301.58 of the Revised Code who are not	74
subject to a collective bargaining agreement on June 1, 2005.	75

(D) "Employee organization" means any labor or bona fide	76
organization in which public employees participate and that exists	77
for the purpose, in whole or in part, of dealing with public	78
employers concerning grievances, labor disputes, wages, hours,	79
terms, and other conditions of employment.	80

(E) "Exclusive representative" means the employee	81
organization certified or recognized as an exclusive	82
representative under section 4117.05 of the Revised Code.	83

(F) "Supervisor" means any individual who has authority, in	84
the interest of the public employer, to hire, transfer, suspend,	85
lay off, recall, promote, discharge, assign, reward, or discipline	86
other public employees; to responsibly direct them; to adjust	87
their grievances; or to effectively recommend such action, if the	88
exercise of that authority is not of a merely routine or clerical	89
nature, but requires the use of independent judgment, provided	90
that:	91

(1) Employees of school districts who are department	92
chairpersons or consulting teachers shall not be deemed	93
supervisors;	94

(2) With respect to members of a police or fire department,	95
no person shall be deemed a supervisor except the chief of the	96
department or those individuals who, in the absence of the chief,	97
are authorized to exercise the authority and perform the duties of	98
the chief of the department. Where prior to June 1, 1982, a public	99
employer pursuant to a judicial decision, rendered in litigation	100
to which the public employer was a party, has declined to engage	101
in collective bargaining with members of a police or fire	102
department on the basis that those members are supervisors, those	103
members of a police or fire department do not have the rights	104
specified in this chapter for the purposes of future collective	105
bargaining. The state employment relations board shall decide all	106
disputes concerning the application of division (F)(2) of this	107
section.	108

(3) With respect to faculty members of a state institution of	109
higher education, heads of departments or divisions are	110
supervisors; however, no other faculty member or group of faculty	111
members is a supervisor solely because the faculty member or group	112
of faculty members participate in decisions with respect to	113
courses, curriculum, personnel, or other matters of academic	114
policy;	115

(4) No teacher as defined in section 3319.09 of the Revised	116
Code shall be designated as a supervisor or a management level	117
employee unless the teacher is employed under a contract governed	118
by section 3319.01, 3319.011, or 3319.02 of the Revised Code and	119
is assigned to a position for which a license deemed to be for	120
administrators under state board rules is required pursuant to	121
section 3319.22 of the Revised Code.	122

(G) "To bargain collectively" means to perform the mutual	123
obligation of the public employer, by its representatives, and the	124
representatives of its employees to negotiate in good faith at	125
reasonable times and places with respect to wages, hours, terms,	126
and other conditions of employment and the continuation,	127
modification, or deletion of an existing provision of a collective	128
bargaining agreement, with the intention of reaching an agreement,	129
or to resolve questions arising under the agreement. "To bargain	130
collectively" includes executing a written contract incorporating	131
the terms of any agreement reached. The obligation to bargain	132
collectively does not mean that either party is compelled to agree	133
to a proposal nor does it require the making of a concession.	134

(H) "Strike" means continuous concerted action in failing to	135
report to duty; willful absence from one's position; or stoppage	136
of work in whole from the full, faithful, and proper performance	137
of the duties of employment, for the purpose of inducing,	138
influencing, or coercing a change in wages, hours, terms, and	139
other conditions of employment. "Strike" does not include a	140
stoppage of work by employees in good faith because of dangerous	141
or unhealthful working conditions at the place of employment that	142
are abnormal to the place of employment.	143

(I) "Unauthorized strike" includes, but is not limited to,	144
concerted action during the term or extended term of a collective	145
bargaining agreement or during the pendency of the settlement	146
procedures set forth in section 4117.14 of the Revised Code in	147
failing to report to duty; willful absence from one's position;	148
stoppage of work; slowdown, or abstinence in whole or in part from	149
the full, faithful, and proper performance of the duties of	150
employment for the purpose of inducing, influencing, or coercing a	151
change in wages, hours, terms, and other conditions of employment.	152
"Unauthorized strike" includes any such action, absence, stoppage,	153
slowdown, or abstinence when done partially or intermittently,	154
whether during or after the expiration of the term or extended	155
term of a collective bargaining agreement or during or after the	156
pendency of the settlement procedures set forth in section 4117.14	157
of the Revised Code.	158

(J) "Professional employee" means any employee engaged in	159
work that is predominantly intellectual, involving the consistent	160
exercise of discretion and judgment in its performance and	161
requiring knowledge of an advanced type in a field of science or	162
learning customarily acquired by a prolonged course in an	163
institution of higher learning or a hospital, as distinguished	164
from a general academic education or from an apprenticeship; or an	165
employee who has completed the courses of specialized intellectual	166
instruction and is performing related work under the supervision	167
of a professional person to become qualified as a professional	168
employee.	169

(K) "Confidential employee" means any employee who works in	170
the personnel offices of a public employer and deals with	171
information to be used by the public employer in collective	172
bargaining; or any employee who works in a close continuing	173
relationship with public officers or representatives directly	174
participating in collective bargaining on behalf of the employer.	175

(L) "Management level employee" means an individual who	176
formulates policy on behalf of the public employer, who	177
responsibly directs the implementation of policy, or who may	178
reasonably be required on behalf of the public employer to assist	179
in the preparation for the conduct of collective negotiations,	180
administer collectively negotiated agreements, or have a major	181
role in personnel administration. Assistant superintendents,	182
principals, and assistant principals whose employment is governed	183
by section 3319.02 of the Revised Code are management level	184
employees. With respect to members of a faculty of a state	185
institution of higher education, no person is a management level	186
employee because of the person's involvement in the formulation or	187
implementation of academic or institution policy.	188

(M) "Wages" means hourly rates of pay, salaries, or other	189
forms of compensation for services rendered.	190

(N) "Member of a police department" means a person who is in	191
the employ of a police department of a municipal corporation as a	192
full-time regular police officer as the result of an appointment	193
from a duly established civil service eligibility list or under	194
section 737.15 or 737.16 of the Revised Code, a full-time deputy	195
sheriff appointed under section 311.04 of the Revised Code, a	196
township constable appointed under section 509.01 of the Revised	197
Code, or a member of a township police district police department	198
appointed under section 505.49 of the Revised Code.	199

(O) "Members of the state highway patrol" means highway	200
patrol troopers and radio operators appointed under section	201
5503.01 of the Revised Code.	202

(P) "Member of a fire department" means a person who is in	203
the employ of a fire department of a municipal corporation or a	204
township as a fire cadet, full-time regular firefighter, or	205
promoted rank as the result of an appointment from a duly	206
established civil service eligibility list or under section	207
505.38, 709.012, or 737.22 of the Revised Code.	208

(Q) "Day" means calendar day.

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Sec. 4117.03.  (A) Public employees have the right to:

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(1) Form, join, assist, or participate in, or refrain from	211
forming, joining, assisting, or participating in, except as	212
otherwise provided in Chapter 4117. of the Revised Code, any	213
employee organization of their own choosing;	214

(2) Engage in other concerted activities for the purpose of	215
collective bargaining or other mutual aid and protection;	216

(3) Representation by an employee organization;

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(4) Bargain collectively with their public employers to	218
determine wages, hours, terms and other conditions of employment	219
and the continuation, modification, or deletion of an existing	220
provision of a collective bargaining agreement, and enter into	221
collective bargaining agreements;	222

(5) Present grievances and have them adjusted, without the	223
intervention of the bargaining representative, as long as the	224
adjustment is not inconsistent with the terms of the collective	225
bargaining agreement then in effect and as long as the bargaining	226
representatives have the opportunity to be present at the	227
adjustment.	228

(B) Persons on active duty or acting in any capacity as	229
members of the organized militia do not have collective bargaining	230
rights.	231

(C) Except as provided in division (D) of this section,	232
nothing in Chapter 4117. of the Revised Code prohibits public	233
employers from electing to engage in collective bargaining, to	234
meet and confer, to hold discussions, or to engage in any other	235
form of collective negotiations with public employees who are not	236
subject to Chapter 4117. of the Revised Code pursuant to division	237
(C) of section 4117.01 of the Revised Code.	238

(D) A public employer shall not engage in collective	239
bargaining or other forms of collective negotiations with the	240
employees of county boards of elections referred to in division	241
(C)(12)(11) of section 4117.01 of the Revised Code.	242

(E) Employees of public schools may bargain collectively for	243
health care benefits; however, all health care benefits shall	244
include best practices prescribed by the school employees health	245
care board, in accordance with section 9.901 of the Revised Code.	246

Section 2. That existing sections 4117.01 and 4117.03 of the	247
Revised Code are hereby repealed.	248