Is It Time for Fact Finding?

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, April 15, 2015

With the changes brought about by PA 103, which expanded the prohibited subjects of bargaining, as well as Right to Work and decreasing school revenues, the bargaining table rhetoric has changed dramatically over the past few years. Steps and lanes are no longer a “right” that teachers can expect and, indeed, salary cuts are becoming an all too familiar reality for many districts. As a result of these changes in the bargaining dynamic, it may be time to reexamine the role of fact finding.

Fact finding is a labor dispute resolution measure through the Michigan Employment Relations Commission wherein an independent third party, the “fact finder,” examines the arguments of the parties and offers a nonbinding recommendation to resolve the situation. It is usually the next step after mediation and generally must be explored before a contractual “impasse” can be declared and a district can begin to simply implement a contract.

While fact finding remains one of the final stops in the negotiation process, and still occurs only when mutual agreement between a district and a bargaining unit cannot be reached, it used to be that it was the bargaining unit that invariably requested it. This was because, by and large, these groups often had more to gain (or nothing to lose) from a fact finder’s review. Typically, at least in terms of compensation, fact finding was requested when the union felt that a district was not providing fair and adequate wage increases. The fact finder would review the resources of the district and, more often than not, recommend a larger increase in compensation than the district was offering. Previously, bargaining units had almost nothing to lose by requesting fact finding because they could (generally) never do worse than what the district was offering and often stood a good chance of doing much better.

In today’s reality, this is no longer the case. Now, more union groups are content to simply insist on protracted bargaining rather than initiate fact finding. Why? Because with so many districts in dire financial straits fact finders are now more likely to side with a district in its attempts to control costs than with a bargaining unit that is seeking hundreds of thousands of dollars in additional compensation. To that end, union groups are becoming content with hoping that ongoing pressure on the school board will yield better results.

So, are we at a point now where the school district should be initiating fact finding? The answer: “perhaps.” Conventional wisdom dictates that if a district is offering a compensation increase that is considered inadequate in the view of the union, the district is better served by continuing the bargaining process and extending the time under which its employees continue working under the prior, less expensive agreement. However, this isn’t a sentiment shared by everyone.

The reality is that some districts might prefer to request fact finding instead of letting the bargaining process drag on indefinitely. Depending upon the circumstances, some districts may be more concerned with community sentiment and staff morale than expenses. Working under an expired contract may save a district money, but that savings can be outstripped by the negativity these situations can generate. Hence, for some, the validation of having an independent fact finder review the matter and (hopefully) side with your district may be worth more in the long run.

And, of course, if your district is attempting to negotiate salary reductions then working under an expired contract translates into a net financial loss. In that scenario there should be no hesitation to move to fact finding as soon as it’s appropriate.

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