Collective bargaining agreements (CBAs) in the Ohio public sector frequently include clauses intended to define the scope of bargaining obligations during the life of the agreement. Among these are reservation of rights clauses and zipper clauses, both of which can be invoked by employers to argue a lack of duty to bargain on certain matters. For Ohio labor unions and their members, understanding the implications and limitations of these clauses is essential to protecting their bargaining rights under Ohio Revised Code (ORC) Chapter 4117.

Understanding Reservation of Rights Clauses

A reservation of rights clause typically outlines specific areas that the employer asserts are within its sole discretion and not subject to mandatory bargaining during the term of the CBA. These clauses often mirror the management rights enumerated in ORC 4117.08(C), such as determining the functions and programs of the public employer, standards of services, overall budget, utilization of technology, organizational structure, direction and supervision of employees, and determination of overall methods and personnel by which governmental operations are conducted.

Employers may attempt to use reservation of rights clauses to justify a refusal to bargain on issues they claim fall within these reserved rights, even if such issues could otherwise be considered mandatory subjects of bargaining under ORC 4117.08(A), which pertains to wages, hours, terms, and other conditions of employment.

However, it is crucial to understand that a reservation of rights clause does not automatically eliminate the employer's duty to bargain on mandatory subjects. Ohio law, as interpreted by the State Employment Relations Board (SERB) and Ohio courts, sets a high bar for finding a waiver of a statutory right to bargain. Such a waiver must be clear and unmistakable from the language of the CBA, demonstrating that the union consciously yielded its statutory right. Ambiguous language or silence on a particular issue within a reservation of rights clause will not be interpreted as a waiver of the union's bargaining rights on mandatory subjects. Unless a CBA specifically eliminates a right provided by statute, the employee retains that right.

For instance, the reassignment of work previously performed by bargaining unit members to non-bargaining unit employees has long been held by the Ohio Supreme Court to be a mandatory subject of bargaining under ORC 4117.08(A) and (C). For an employer to unilaterally reassign such work without bargaining, the CBA must contain a specific reservation of that right or a clear waiver by the union. A general reservation of management rights is typically insufficient to constitute such a waiver.

Understanding Zipper Clauses

A zipper clause, also known as a "total agreement" or "entire agreement" clause, typically states that the written CBA constitutes the full and complete agreement between the parties on all bargainable subjects, and that both parties voluntarily waive the right to demand further negotiations on any subject or matter, whether or not specifically addressed in the agreement, during its term. The purpose of a zipper clause is often to ensure stability in the collective bargaining relationship by limiting the obligation to bargain during the contract's duration to the explicit terms of the CBA.

Employers may argue that a zipper clause relieves them of the duty to bargain on any matter not specifically included in the CBA, even if that matter pertains to wages, hours, terms, or conditions of employment that arose or became relevant after the agreement was executed.

However, similar to reservation of rights clauses, zipper clauses are subject to limitations regarding mandatory subjects of bargaining. While a zipper clause may prevent a union from demanding mid-term bargaining on a new issue, it does not automatically constitute a clear and unmistakable waiver of the right to bargain over the effects of management decisions that impact wages, hours, terms, and conditions of employment. Furthermore, silence on a particular issue in a CBA containing a zipper clause does not equate to a waiver of the statutory right to bargain on that issue if it later arises and constitutes a mandatory subject of bargaining.

Ohio courts have recognized that interpreting a zipper clause as a complete bar to bargaining on any matter not explicitly mentioned could effectively nullify the statutory duty to bargain under ORC 4117.08 for the duration of the agreement, which is inconsistent with public policy. A purported waiver of the right to bargain on a subject or matter not within the knowledge or contemplation of the parties at the time of the contract is also unlikely to be enforced as a conscious yielding of a statutory right.

The Interplay and Limitations of These Clauses

Reservation of rights and zipper clauses often coexist within CBAs. Employers may argue that the presence of both types of clauses demonstrates a clear intent by the union to waive its right to bargain on any matter not explicitly addressed in the agreement that also falls within the scope of the employer's reserved rights.

Despite such arguments, the fundamental principle remains that a waiver of the statutory right to bargain on mandatory subjects must be clear and unmistakable. Neither a reservation of rights clause nor a zipper clause, individually or in combination, can be interpreted to eliminate the mandatory duty to bargain on wages, hours, terms, and conditions of employment unless the CBA contains explicit language demonstrating a conscious relinquishment of that right by the union.

Even when an employer has a reserved management right to make a particular decision, it may still have a duty to bargain the effects of that decision if it significantly impacts employees' wages, hours, terms, and conditions of employment. SERB has consistently held that the effects of the exercise of management rights on wages, hours, terms, and conditions of employment are mandatory subjects of bargaining.

Analysis of City of Cleveland v. State Emp. Rels. Bd., 2024-Ohio-30

The case of City of Cleveland v. State Emp. Rels. Bd., 2024-Ohio-30, provides a significant illustration of how Ohio courts analyze reservation of rights and zipper clauses in the context of an employer's refusal to bargain. In this case, the City of Cleveland refused to bargain with the Cleveland Association of Rescue Employees (CARE) regarding its decision to hire part-time paramedics and assign them bargaining unit work. The City argued that the CBA's reservation of rights clause and zipper clause relieved it of this obligation.

The CBA in question contained a reservation of rights clause mirroring ORC 4117.08(C) and a zipper clause. The City contended that these provisions constituted a waiver by CARE of its right to bargain the hiring of part-time paramedics. However, both SERB and the trial court found that no such waiver existed, and the Eighth District Court of Appeals affirmed this decision.

The court emphasized that for the City to have the ability to reassign bargaining unit work to non-bargaining unit members without negotiating, there must be a reservation of that specific right or a clear waiver of such right in the CBA. The court cited precedent establishing that the reassignment of work to non-union employees is a mandatory subject of bargaining. It reiterated the principle that a waiver of a statutory right must be clear and unmistakable, demonstrating that the union consciously yielded that right. Because the CBA did not explicitly reserve the right to reassign bargaining unit work to non-bargaining unit employees, and the general reservation of management rights was deemed insufficient, the court upheld SERB's finding that the City violated ORC 4117.11(A)(1) and (A)(5) by refusing to bargain.

Analysis of City of Cleveland v. State Emp. Rels. Bd., 2024-Ohio-4787

Similarly, the case of City of Cleveland v. State Emp. Rels. Bd., 2024-Ohio-4787, further clarifies the limitations of reservation of rights and zipper clauses regarding the duty to bargain the effects of management decisions. In this case, the City of Cleveland implemented a dashboard camera program in its ambulances without bargaining the effects of this program with CARE. The City argued that the Union waived its right to bargain these effects through provisions in the CBA and by refusing to meet and confer. Again, the CBA contained a reservation of rights clause similar to ORC 4117.08(C) and a zipper clause.

The Eighth District Court of Appeals upheld the trial court's affirmation of SERB's finding that the City committed an unfair labor practice by refusing to bargain the effects of the camera program. The court reiterated that public employers must bargain over all matters pertaining to wages, hours, or terms and other conditions of employment under ORC 4117.08(A), and that the exercise of a management right becomes a mandatory subject of bargaining when it affects these conditions.

The court emphasized that a waiver of the statutory right to bargain must be clear and unmistakable. It noted that a zipper clause, meant to represent a complete agreement on all proper subjects of bargaining, requires clear and unmistakable language for a waiver; silence on an issue does not meet this test. Furthermore, the court cited the principle that a waiver of the right to bargain on a subject not within the knowledge or contemplation of the parties at the time of the contract is unenforceable unless there is clear evidence the union consciously yielded its right. The court agreed with SERB's argument that the waiver clause in the CBA did not negate the Union's bargaining rights regarding the effects of the camera program on wages, hours, or terms and conditions of employment. The court found that SERB's determination that the camera program materially affected factors under ORC 4117.08(A), thus requiring mandatory bargaining of the effects, was supported by substantial evidence.

Implications for Labor Unions and Their Members

The rulings in City of Cleveland v. SERB, 2024-Ohio-30 and 2024-Ohio-4787 underscore the significant limitations on how reservation of rights and zipper clauses can be used to avoid the duty to bargain in Ohio. These cases reinforce the following key principles for labor unions and their members:

Clear and Unmistakable Waiver: A union's statutory right to bargain on mandatory subjects is not easily waived. Any purported waiver within a CBA, whether through a reservation of rights or a zipper clause, must be clear, unmistakable, and demonstrate that the union consciously yielded that right. Ambiguous language or silence is insufficient.
Mandatory Subjects Remain Mandatory: General reservation of rights clauses that mirror ORC 4117.08(C) do not automatically negate the duty to bargain on mandatory subjects under ORC 4117.08(A).
Effects Bargaining: Even when an employer has a reserved management right to take an action, it likely retains a duty to bargain the effects of that action on employees' wages, hours, terms, and conditions of employment, absent a clear and unmistakable waiver of that right.
Specificity is Key: For an employer to avoid bargaining on a specific mandatory subject, the CBA must contain a specific reservation of that right or a clear and explicit waiver of the union's right to bargain that particular issue.
Matters Not Contemplated: Waivers of the right to bargain on subjects or matters not within the knowledge or contemplation of the parties at the time of contracting are unlikely to be enforced.

Given these principles, Ohio labor unions should:

Carefully Scrutinize CBA Language: During negotiations, unions must carefully examine the language of reservation of rights and zipper clauses and ensure that any intended waivers of bargaining rights are specific, unambiguous, and fully understood by the membership.
Challenge Improper Refusals to Bargain: When an employer refuses to bargain on a matter by citing these clauses, unions should analyze whether the issue constitutes a mandatory subject of bargaining under ORC 4117.08(A) and whether the CBA language truly reflects a clear and unmistakable waiver of the right to bargain on that specific issue.
File Unfair Labor Practice Charges: If a union believes an employer has improperly refused to bargain despite the presence of these clauses, filing an unfair labor practice (ULP) charge with SERB is a crucial step to protect bargaining rights. SERB and the Ohio courts will ultimately determine whether a valid waiver exists, with the burden of proof resting on the employer.

Conclusion

Reservation of rights and zipper clauses in Ohio public sector CBAs are subject to significant limitations when an employer claims they extinguish the duty to bargain. The consistent legal standard in Ohio requires a clear and unmistakable waiver of the statutory right to bargain on mandatory subjects. The recent City of Cleveland v. SERB decisions serve as important reminders that general CBA language is often insufficient to constitute such a waiver, particularly concerning the reassignment of bargaining unit work and the effects of management decisions. Ohio labor unions must remain vigilant in understanding and challenging attempts by employers to avoid their bargaining obligations based on these clauses, ensuring the continued protection of their members' rights under ORC Chapter 4117.

Ohio Union Labor Lawyers