As union members, we stand together to protect our livelihoods, our working conditions, and the integrity of our collective bargaining agreements. One of the challenges we sometimes face is the prospect of our employers subcontracting our work to outside entities. While employers may claim this is for efficiency or cost savings, it can have a devastating impact on our jobs and our union's strength. It's crucial for us to understand that under Ohio law, specifically Ohio Revised Code (ORC) Chapter 4117, certain subcontracting actions by public employers can be illegal unfair labor practices (ULPs). This post will delve into when subcontracting crosses the line and what rights we have as union members in these situations.

The Bedrock of Our Rights: The Duty to Bargain

At the heart of this issue is the fundamental duty of public employers in Ohio to bargain collectively with our union, our exclusive representative. ORC § 4117.11(A)(5) clearly states that it is an unfair labor practice for a public employer to "[r]efuse to bargain collectively with the representative of his employees recognized as the exclusive representative or certified pursuant to Chapter 4117. of the Revised Code". This isn't just about wages; it encompasses "all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement". These are legally recognized as "mandatory subjects of bargaining," and our employers are obligated to discuss them with us in good faith.

Subcontracting: A Direct Threat to Our Terms of Employment

The decision by a public employer to subcontract work can have profound and direct consequences on these mandatory subjects of bargaining. Think about it: subcontracting can lead directly to:

Our Jobs Being Eliminated: If the work we perform is outsourced to another company, our positions within the bargaining unit can be eliminated entirely. This is a direct assault on our terms and conditions of employment.
A Weakening of Our Union's Strength: Even if some jobs remain, subcontracting can shrink the size of our bargaining unit and erode our collective power when it comes time to negotiate future contracts, impacting potential gains in wages and benefits for all of us.
Increased Workload and Changed Responsibilities: Those of us who remain might find ourselves burdened with increased workloads or entirely new duties as a result of work being shifted out of our unit.
Undermining Our Hard-Won Contract Protections: Existing provisions in our collective bargaining agreement concerning staffing levels, job classifications, or other crucial terms can be effectively undermined or rendered meaningless through subcontracting.

When Does Subcontracting Become an Illegal Refusal to Bargain?

Given these serious potential impacts, a public employer generally has a legal obligation to bargain with our union before making a decision to subcontract work that will significantly affect us, the employees in the bargaining unit. Failing to engage in good-faith bargaining over such a decision can be deemed a refusal to bargain, a clear violation of ORC § 4117.11(A)(5).

The State Employment Relations Board (SERB) doesn't just take an employer's word for it. They look at the "totality of the circumstances" to determine if an employer has truly bargained in good faith. This means SERB will scrutinize all aspects of the employer's actions and intentions, not just isolated statements or superficial discussions.

More Than Just Refusal: Subcontracting as Interference, Restraint, or Coercion

It's important to know that subcontracting can also be an unfair labor practice under ORC § 4117.11(A)(1). This section prohibits employers from "[i]nterfere[ing] with, restrain[ing], or coerce[ing] employees in the exercise of the rights guaranteed in Chapter 4117. of the Revised Code or an employee organization in the selection of its representative for the purposes of collective bargaining or the adjustment of grievances". This can occur in several ways related to subcontracting:

Targeting Our Union: If the employer's decision to subcontract is motivated by anti-union sentiment or a desire to weaken our union's influence, it's a direct interference with our rights. For example, if subcontracting happens right after we successfully organize or achieve union recognition, it raises a red flag about the employer's true intentions.
Retaliation for Our Union Activity: Subcontracting should never be used as a punishment for us exercising our protected rights, such as filing grievances, participating in negotiations, or advocating for our fellow members. If it is, that's illegal retaliation.
Undermining Our Collective Voice: Employers cannot bypass our union and deal directly with us about the potential impacts of subcontracting. Threatening to subcontract if we don't agree to certain terms outside of the bargaining process is also a violation of our rights and undermines our union's authority.

Maintaining the Status Quo: Our Existing Protections

Even when our collective bargaining agreement expires, our employers generally have a legal obligation to maintain the "status quo" regarding our wages, hours, and other terms and conditions of employment until a new agreement is reached or the negotiation process reaches a legal impasse. Implementing subcontracting that significantly alters these established conditions without first bargaining in good faith is a violation of this duty and an unfair labor practice.

What Happens When Our Rights Are Violated? SERB's Role

If SERB investigates and determines that a public employer has committed an unfair labor practice by unlawfully subcontracting, they have the power to issue significant orders. These can include:

Cease and Desist Orders: SERB can order the employer to immediately stop the unlawful subcontracting practice.
Affirmative Action: SERB can require the employer to take specific actions to remedy the violation, such as:
- Rescinding the subcontracting decision.
- Reinstating any affected employees with back pay to compensate them for lost wages and benefits.
- Bargaining in good faith with our union over the subcontracting decision and its effects.
- Posting notices informing all employees of their rights under ORC Chapter 4117 and detailing the employer's violation.

Our Strength in Unity: What We Can Do

Brothers and sisters, understanding our rights is the first step in protecting them. If we suspect that our employer is considering subcontracting work that would impact our bargaining unit, we must:

Stay Informed: Keep each other informed about any rumors or official announcements regarding potential subcontracting.
Communicate with Our Union Leadership: Immediately notify our union representatives of any concerns. Our union has the expertise to assess the situation and respond appropriately.
Demand to Bargain: Our union has the right and the responsibility to demand that the employer bargain in good faith over any decision to subcontract that would affect our wages, hours, or terms and conditions of employment.
Document Everything: Keep records of any communications, meetings, or actions related to the potential subcontracting. This information can be crucial if an unfair labor practice charge needs to be filed.
Stand Together: Our collective strength is our greatest asset. By standing united, we can demonstrate to our employers that we will not allow our rights to be violated.

The decision to subcontract can have serious consequences for us and our families. By understanding our rights under Ohio law and working together through our union, we can effectively challenge unlawful subcontracting practices and protect the hard-won gains in our collective bargaining agreements. Let us remain vigilant and stand strong in defense of our rights.

Next Step: If your employer is considering subcontracting, your immediate next step should be to contact your union leadership to discuss the situation and develop a strategic response that may include demanding to bargain with the employer over this decision and its potential effects on your bargaining unit.

Ohio Union Labor Lawyers