Ben Davis at the University Toledo sent these thougths on Ohio Senate Bill 5 out on the AALS list serv last week. His concerns at the end of this post were sent to me via email.
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For all of you following the developments with regard to Public Sector Employees that have been in the news, I was given today a copy of the Amendments to what is in Ohio Senate Bill 5 and a brief commentary. It contains a section that I think would fit wonderfully in discussions of dispute system design whether in private-ordering or in public ordering space (or both in how they interrelate) and I reprint it below.
4. Establishes a procedure for dispute settlement for all public employees. If the parties are unable to reach agreement, any party may request the State Employment Relations Board (SERB) to intervene. The board shall appoint a mediator. Any time after appointment of a mediator, either party may request appointment of a fact-finder. The fact-finder must consider factors listed in statute. Fact finding meetings may be open to the public at request of either party. The interests and welfare of the public and ability of employer to administer and finance the proposals must be a primary consideration.
If the parties are unable to reach agreement within 14 days after publication of the findings and recommendations, or if the Collective Bargaining Agreement (CBA) has expired, the public employer shall submit the findings, the employer’s last best offer, and the employee organization’s last best offer to the legislative body of the public employer. The legislative body shall conduct a public hearing, as soon as practicable, at which the parties shall explain their positions. At the conclusion of the hearing, the legislative body must vote to accept either the last best offer of the employee organization or the last best offer of the public employer. The parties shall execute a CBA that represents the last best offer chosen by the legislative body and the agreement is effective for 3 years.
During negotiations between a public employer and exclusive representative, for purposes of determining inability of the public employer to pay for any terms agreed to, only the employer’s current financial status at the time period surrounding the negotiations – not any potential future increases in income that would only be possible by the employer obtaining funds from an outside source including passage of a levy or bond issue, ability to sell assets, raise revenue, or other revenue enhancements. “
It has aspects of mediation, fact-finding, baseball type last-off arbitration with a twist (“arbitrator” is the legislator) and lots of language that seems to be about channeling discretion.
This language reminded me of the issue in consumer arbitration clauses or employment arbitration clauses with drafting to limit liability by the stronger party as opposed to or in contradistinction to neutral dispute resolution. The reaction of arbitral institutions to shape processes through protocols to balance that out was another private measure to rekilter the clause. I am curious how the mediator, fact-finder, or in particular the legislator will operate in this space will operate.
Public or private space – dispute system design. I was thinking of the Cole factors including “neutral arbitrators” in looking at this language.
It seemed to me that the tendency of one side or the other to try to “tilt” the dispute resolution or limit its downside keeps coming up again and again.
He who has the gold makes the rules, redux?
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I would add a couple of points related to having the legislator as the last offer arbitrator which bugged me.
1. The option to go to the legislator is one only given to the public employer. Presumably, the other side can not go that route and is effectively blocked.The option to go to the legislator is one only given to the public employer. Presumably, the other side can not go that route and is effectively blocked.
2. Assuming the matter goes to the legislator (as arbitrator) in this kind of baseball arbitration last offer space, as a colleague with more knowledge than I noted to me, a current legislature presumably can not bind a future legislature to only choose between Option A or Option B (which is what the law seems to try to say). I felt it also sounded a bit like “delegation to the public employer/public employee” of the creation of the two options from which the legislator would choose.
3. A colleague also raised the issue as to whether the Executive should be in this function of “arbitrator” rather than the Legislature. Put another way, that maybe there is a separation of powers problem with the legislature doing something that really should be the executive’s role.
4. With final arbitrator being the Legislator, under the Sanford Levinson “separation of parties” vs. “separation of powers” vision, if the Executive and Legislature are of the same party, you could have one kind of “groupthink”. If you have Executive and Legislature led by different parties, you would not have that kind of groupthink
5. With the final arbitrator instead being the Executive, under a unitary executive vision, the final arbitrator is one side – the Executive.
No answers on these things, but some musings.
