UPDATE: August 14, 2019: Sen. Sherrod Brown, D-Ohio, wrote to FirstEnergy Solutions President and CEO John Judge Aug. 14 calling on FES to honor existing union contracts with its workers. "The company should waste no more time or funds attempting to rob your employees of their deserved wages and retirement security," Brown wrote.



FirstEnergy Solutions said it has reached agreement with the unions at three of its power plants and made updated proposals to the remaining two earlier this month. "We have an agreement already in place to ensure that all employees receive any retirement benefits they have already earned," the company told Utility Dive in an emailed statement. "For future benefits we have made a proposal that is very competitive, based on extensive benchmarking of generating company peers and broader national industry," the statement continued.



"The court filing on July 23 was made based on a required court deadline and contained the same language that was agreed to in March by the unions for use in our amended plan filings," FES said.

On the same day in July that Ohio lawmakers approved state-wide customer charges to give FirstEnergy Solutions a six-year $1.1 billon nuclear plant subsidy, the company told a bankruptcy court it could not honor existing contracts with unions representing power plant employees and intended to negotiate completely new bargaining agreements once it emerged as a reorganized company.

That revelation emerged Friday in an objection to the company's latest reorganization plan by lawyers representing locals of the Utility Workers Union of America and the International Brotherhood of Electrical Workers. The unions were among more than half dozen parties in the case filing objections.

In a reference to the FES reorganization plan filed July 23 — less than 12 hours after House Bill 6 had been approved by the legislature and signed by Republican Gov. Mike DeWine — the unions argue that the company intends to use the court to emerge from bankruptcy without its union contracts. And that contradicts the testimony of David Griffing, the company's vice president of governmental affairs, the union filing to the court charges.

Griffing assured lawmakers in April before an Ohio House subcommittee that "that new [collective bargaining agreements] were in essence agreed upon … Both parties … believe the negotiations were acceptable." But Friday's filing on behalf of the union locals indicates that the company has neither agreed to assume the existing contracts nor reached new ones with the unions at two of the three FES nuclear plants, Perry, east of Cleveland and Beaver Valley, near Pittsburgh.

The struggle between the company and its unions is erupting publicly just weeks before court hearings are scheduled on the company's bankruptcy reorganization plan and also comes at a time when opponents of HB 6 are gearing up a referendum petition drive to put the subsidy issue before voters on the November 2020 ballot.

The union is basing its position in the bankruptcy struggle to remain viable at the power plants on the argument that "successorship clauses" in the contracts obligate FES to require any new company — including a reorganized FirstEnergy Solutions — to assume the contracts as they were agreed to. The unions point out that FES abided by that contract language when it sold other power plants to outside companies.

FES: Can't assume the contract

The company position, as laid out in its July 23 reorganization plan, is that the reorganized FES cannot assume the contract because "the collective bargaining agreements require the Debtors to provide benefits to their employees under health care, severance, welfare, incentive compensation, and retirement plans sponsored by FirstEnergy Corp."

Instead, FES wants to negotiate new terms "consistent with the business plan" of the reorganized company. FES also held out the possibility that it might ask the court to throw out the contracts.

The unions are countering that under the bankruptcy code and existing case law, the company must declare before reorganization whether it is rejecting the contract. "They simply want the benefit of plan confirmation, without deciding whether to assume or reject," the union attorneys wrote. "However this is not what the law provides."

The union filing reveals that in bargaining talks over the past few months the company has contended that the benefits in the existing union contracts, particularly the pension benefits, "are non-replicable."

The union filing also notes that it would have the right to file an "administrative damage claim" later if the issue is not resolved now and the company later decides to reject the contracts out of hand.

Unions play key role in HB 6

The power plant unions played what has been described as a key role in the company's media and lobbying campaigns to persuade Democrat lawmakers of the necessity of approving the unprecedented bailout in Ohio of an unregulated power plant company.

And though it appears from the vote totals that Republicans would have been able to pass House Bill 6 in the House and Senate without help from Democrats, the margins of victory would have been much thinner. The final vote in the House was 51 to 38. To pass, a bill must have at least 50 votes in the 99-seat chamber.

Ohio House Minority Leader Emilia Strong Sykes, D-Akron, issued a statement Monday questioning FirstEnergy Solutions' move and praising unions for quickly filing their objection in bankruptcy court.

"HB 6 was problematic because I thought it was a bad idea to direct rate payer money to a corporation who refused to unequivocally agree to protect and support union contracts and the men and women who rely on those contracts to put food on their table," Sykes wrote.

"Less than 12 hours after the bill was signed into law, the ink hardly dry, FirstEnergy Solutions began backing away from the workers who depend on those jobs. FES can make this right by coming to the table and affirming and recognizing these union employees who deserve to be treated fairly through this process," she continued.

Two other Democratic members of the House expressed outrage on Friday when reached for comment. Rep. David Leland, D-Columbus, and Rep. Michael J. O'Brien, D-Warren, both voted against HB 6.

"This is so blatant. This is like spitting in the face of every Ohio taxpayer," said Leland, adding that the company had said it would have to close its plants without the subsidy. "They are clearly more concerned about taking care of Wall Street than they are of taking care of workers at their plant. I think this is such a damaging piece of information that if this had been known before the vote, I don't know it would have passed."

O'Brien, who pointedly asked Griffing about the contract talks during an April 17 hearing in a House subcommittee, said the company "has been less than honest from the beginning."

"My question [to Griffing] was what guarantee do the unions have that you will keep everything status quo. Griffing said we absolutely intend to keep the union jobs and the union will be recognized. Now we see that is not the case at all," he said.