CREATIVE SETTLEMENT OPPORTUNITIES FOR A NEW CONTRACT
By: Max Rieker, Esq.
Earlier this year my colleague Joe Hegedus thoroughly outlined Ohio’s statutory Factfinding and Conciliation process in this publication. It is important for OPBA members to have a good understanding of this process because the OPBA utilizes Factfinding and Conciliation with a high degree of regularity.
The State Employment Relations Board (“SERB”) oversees 3,343 collective bargaining contracts in the public sector in Ohio. In 2016, SERB appointed a total 235 Factfinders when the various public employers and unions could not reach a voluntary contract settlement. Of those appointments, only 84 Factfinding hearings were actually held. (Meaning, that for about 150 of those cases where a Factfinder was appointed, there were settlements brokered either before or at the Factfinding hearing.)
Half of those 84 actual hearings were in police bargaining units. Of the 84 Factfinding reports issued, 48 were mutually accepted by the parties and 36 were rejected by one party or by both parties. Once a Factfinding report is rejected, the parties can, and often do, find themselves in Conciliation, which is essentially binding arbitration to reach a contract.
As a function of economics, public sentiment, and public employer strategy, it appears that OPBA bargaining units have found themselves using this statutory process more in recent years. For example, I, as just one OPBA attorney, have handled several Factfinding and/or conciliation hearings this year alone.
Experienced negotiators, many of whom are OPBA members who have served on your respective bargaining committees for several rounds of contract negotiations, will recognize that there are several different ways to ultimately reach a contract.
One method that I have utilized with great success recently is going back to negotiations AFTER a Factfinding hearing has been held and a report has been issued by the Factfinder. This may sound rather unusual – and it is, but if the circumstances are right for it, this can lead to a favorable outcome.
One of my law professors was fond of saying, “You have to get up awfully early in the morning to overturn the verdict of a jury.” In that same vein, one must have a very good argument in order to convince a Conciliator to deviate in an appreciable way from the recommendation of the underlying Factfinder. This is not to say that better results cannot be reached in Conciliation as opposed to Factfinding. They can, but there usually needs to be a legitimate, if not compelling reason to convince a Conciliator to depart from what another neutral has already decided.
While this may not traditionally appear to be the case, the reality is that this reluctance on the part of Conciliators to do something wildly out of line from the Factfinder’s report gives the parties some leverage toward settlement prior to Conciliation. There is bargaining power here and I would submit that the potential for post-Factfinding negotiations is something that ought to be explored.
Another non-traditional method to achieve a contract is the use of interest-based bargaining (“IBB”). Parties can use this either through the course of full negotiations or post-Factfinding negotiations discussed above.
There are reams of studies and scholarly discussions about the concept of IBB and it should only be used under two conditions (1) if the parties are committed to the concept, and (2) if the bargaining teams, or at least lead negotiators know what they are doing with respect to IBB. The Federal Mediation and Conciliation Service recommends specialized training in the area of IBB and offers that training periodically in an effort to foster the use of IBB in public sector bargaining.
The basic idea of IBB is that the parties forgo the idea of fixed, formal “proposals.” Rather, they discuss and bargain in terms of each party’s interests or problems. Generally, the thought is that both bargaining committees become mutual “problem-solvers” rather than “negotiator” whose aim is to win.
For example in a law enforcement agency context: Employer interest = morale/getting volunteers to fill open shifts without the corresponding administrative hassles. Union interest = morale/having a logical/fair method for people to be mandated to fill open shifts and/or adding incentives for volunteering.
Rather than having competing written proposals which are polar opposites of one another and which drive the respective parties toward digging in their heals, the IBB method of bargaining encourages the parties to try to solve the mutual problem through a cooperative process.
One must acknowledge that sometimes the conditions are simply not right for IBB. However, I can attest to it’s worth. I recently had a Factfinder use a version of the IBB method to conduct a mediation session on the day of the Factfinding hearing. The main hang-up in the negotiations was money. The parties were miles apart in terms of wages and a reasonable settlement appeared impossible. Yet the Factfinder was able to get the parties to set aside personality and historical difficulties and brokered a settlement which had favorable components for both parties. The “interests” or problems of each respective party was satisfied. What had been a very difficult negotiation which started off on a terribly rocky note ended up with both sides unanimously voting in favor of the settlement. I never would have predicted that result, but it happened.
The take-away message is that there are creative ways to arrive at a labor contract these days. Not always, but often, it is wise to explore non-traditional options and methods in order to try to deliver the best possible contract for our membership. One very experienced Conciliator once told me that he knows he did his job when everyone is equally unhappy with the result. Perhaps a better way is to try to seek happiness and acceptability for both sides, so long as it fits squarely within the membership’s goals.
As always, please consult with your OPBA attorneys and representatives. You have at your disposal a group of true experts in the field of public sector bargaining. They are there to help all aspects of the process for your benefit.