Defining who belongs in a bargaining unit forms the foundation of collective bargaining rights. Yet these determinations aren't set in stone—positions evolve, new jobs emerge, and disputes arise about unit composition. Understanding how the State Employment Relations Board (SERB) approaches these issues empowers unions to protect their jurisdiction and ensure appropriate representation for all eligible employees.

Initial Unit Determination: Setting the Foundation

When employee organizations first seek to represent public workers, SERB must determine whether the proposed bargaining unit is "appropriate" for collective bargaining. Ohio Revised Code Section 4117.06 guides this determination through specific factors that SERB must consider.

These factors include the desires of employees, community of interest among workers (shared concerns about wages, hours, and working conditions), effects of over-fragmentation, efficiency of employer operations, the employer's administrative structure, and any history of collective bargaining. SERB weighs these elements holistically, recognizing that no single factor controls the outcome.

The "community of interest" factor often proves most significant. Employees sharing similar skills, working conditions, supervision, and employment terms typically belong together. However, SERB also considers practical realities—creating too many small units can fragment the workplace and impede both bargaining and employer operations.

Two Paths Forward: Clarification vs. Amendment

Once units exist, questions inevitably arise about specific positions. Ohio law provides two distinct mechanisms for addressing these issues, each serving different purposes with different standards.

Petitions for Clarification (PC)

Unit clarification determines whether particular employees or positions fall within or outside an existing bargaining unit based on current unit descriptions and actual duties performed. Crucially, clarification doesn't alter the status quo—it merely interprets what already exists.

Clarification addresses situations where job titles change but duties remain substantially similar to existing unit work, or where newly created positions perform duties historically done by unit members. For example, if a Fire Inspector position performs duties traditionally handled by firefighters in the unit, SERB may clarify that position into the existing unit.

The test focuses on whether the duties in question align with work already performed by unit employees. This prevents employers from removing bargaining unit work simply by changing position titles or creating new classifications for essentially the same functions.

Petitions for Amendment (PAC)

Amendment petitions, by contrast, seek to actually change the unit's composition or description. These petitions acknowledge that the existing unit definition doesn't cover the positions in question and request SERB to expand or modify the unit's scope.

Amendment represents a more significant change than clarification. While clarification asks "what does our current unit already include?", amendment asks "can we change what our unit includes?" This distinction carries important procedural and strategic implications.

The Critical Distinction: Deemed-Certified vs. Board-Certified Units

Perhaps no factor influences unit modification procedures more than whether the unit is "deemed-certified" or "Board-certified." This distinction stems from Ohio's labor law history and significantly impacts parties' rights to seek changes.

Deemed-Certified Units

These units existed before SERB's establishment, recognized under prior law. Ohio courts have emphasized stability in these established relationships, leading SERB to apply special rules. For deemed-certified units, SERB generally refuses to alter composition based on unilateral amendment petitions if the other party opposes the change. This policy promotes cooperative solutions and prevents either side from unilaterally disrupting longstanding relationships.

However, SERB will process unilateral clarification petitions for deemed-certified units. Since clarification doesn't change the unit but merely interprets its existing scope, allowing these petitions doesn't upset established relationships. This distinction gives unions important tools to protect their jurisdiction when employers attempt to remove work through creative position restructuring.

Board-Certified Units

Units certified by SERB through elections face different standards. While changes remain possible, severing employees from existing Board-certified units requires demonstrating "extraordinary circumstances." This high bar protects unit stability and recognizes that SERB already determined the existing unit was appropriate.

The presumption favoring existing units means challengers must show more than mere preference for a different configuration. Changed circumstances must be truly extraordinary to justify disrupting established bargaining relationships. This protection helps unions maintain coherent units despite employer attempts at fragmentation.

Navigating the Process

Both clarification and amendment petitions require specific information: party names and addresses, current unit descriptions, proposed changes, and supporting rationale. While many SERB filings now occur electronically, petitions requiring showings of interest must still be filed in hard copy.

After filing, SERB conducts preliminary investigations. Disputed issues proceed to hearings before Administrative Law Judges, where parties present evidence and arguments. The ALJ issues proposed orders, parties file exceptions, and SERB ultimately issues binding decisions through Orders or Directives.

Understanding these procedural requirements prevents technical dismissals and ensures proper presentation of substantive arguments. Unions should carefully document position duties, historical unit practices, and community of interest factors supporting their positions.

Strategic Burden Considerations

In exclusion cases—where employers claim positions shouldn't be in units—the burden of proof rests on the party seeking exclusion. This allocation recognizes that inclusion is the default for employees meeting the statutory definition. Employers must prove positions are truly confidential, managerial, or otherwise exempt.

This burden allocation provides unions with defensive advantages. Rather than proving positions belong, unions can focus on defeating employer claims for exclusion. Understanding this dynamic helps unions effectively advocate for maximum unit inclusion.

Practical Implications for Ohio Unions

These technical distinctions carry real-world consequences. Unions protecting their jurisdiction should monitor position changes closely, distinguishing between cosmetic relabeling and genuine duty modifications. When employers create new positions performing traditional unit work, prompt clarification petitions can prevent jurisdiction erosion.

For deemed-certified units, the ability to file unilateral clarification petitions provides crucial protection against employer gamesmanship. Even without employer agreement, unions can seek SERB rulings that positions performing unit work belong in the unit. This tool proves especially valuable when employers resist acknowledging that "new" positions simply repackage existing unit functions.

Understanding when amendment rather than clarification is necessary prevents wasted efforts. If positions genuinely involve new duties outside the existing unit's scope, unions must evaluate whether pursuing amendment makes strategic sense, considering the need for employer agreement in deemed-certified units or showing extraordinary circumstances in Board-certified units.

Building Stronger Units

SERB's unit determination processes balance multiple interests—employee choice, operational efficiency, bargaining stability, and labor relations policy. By understanding these nuances, unions can better protect their existing units while strategically pursuing appropriate expansions.

The distinction between clarification and amendment, the special rules for deemed-certified units, and the presumptions favoring existing units all serve important purposes in Ohio's collective bargaining framework. Unions that master these concepts position themselves to maintain strong, coherent bargaining units capable of effectively representing all employees performing related work.

Whether defending against employer attempts to erode units or seeking to include new positions, understanding SERB's approaches to unit issues remains fundamental to successful representation. These technical rules ultimately serve a practical purpose—ensuring employees with shared interests can exercise their collective bargaining rights together.

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