SERB ACADEMY

STATUTORY DISPUTE RESOLUTION PROCEDURES

The Bargaining Process Negotiations

• Maximum 3 year contract

The Statutory Process

• Mediation

• Fact Finding

• Conciliation

• Strike

MADS

NEGOTIATIONS

• A process between a public employer and a deemed – or Board-certified representative of a bargaining unit to determine terms and conditions of employment.

• Results in Collective Bargaining Agreement

Types of Negotiations • Initial Agreement Notice 90 days

• Successor Agreement Notice 60 days

• Re-opener Notice filed with SERB per CBA - 60 day negotiation period established by the parties

• If the parties are unable to reach an agreement on their own ….

Statutory Procedure

Three steps progressively more formal and regulated:

Mediation: • Neutral helps facilitate discussion between the parties to find a

solution to the dispute • Advisory, Confidential, Outcome controlled by parties • SERB/FMCS Mediators assigned by SERB 45 days prior to

expiration of agreement • Can occur before or after fact-finding and before or during a

strike

Transitional Page

Statutory Procedures

Fact-Finding:

• Occurs after the appointment of Mediator

• Must be requested in writing

• Can be requested by either party

• Bureau of Mediation sends a panel within 5 days of receipt of written request

• Parties have 7 days from date the panel is issued to make a mutual selection

Fact Finding Continued • Neutral (fact finder) reviews arguments and

evidence of each party on each issue in dispute

• Fact finder writes a report incorporating his/her recommended resolution of each disputed issue

• Fact finder may craft compromise solutions taking

both parties positions into account

Fact Finding continued

• Fact-Finding report must be voted on within 7 days of issuance

• Voting period can be mutually extended by the parties – does not constitute a MAD

Fact Finding continued

• Adopted unless one or both parties reject the report

• Vote must pass by 3/5 or 60 % of all ELIGIBLE voters (does not include fair-share-fee payers)

• 3/5 of the legislative body

STRIKES

If Fact-Finding Report is rejected…

• Strike-Permitted units – right to strike is available to employees not entitled to conciliation or similar procedure under a MAD

• Employer may implement last best offer

• Strike-Prohibited units – no right to strike; statutory procedure is called “conciliation”

STRIKES (continued)

Strike can occur legally if : • Employees are in a strike-permitted classification • Existing agreement has expired • Statutory or alternate settlement procedures exhausted • Notice of intent to strike has been filed with SERB and

with the employer at least 10 days before intended strike date

Strikes continued

• The employer can file with SERB a request for determination of unauthorized strike. Reasons may include clear and present danger issues or failure to meet timelines

• A public employer may not lock out employees under

any circumstances

Conciliation or Non-Strike Units • Available to employees of Strike-prohibited

units as defined under O.R.C. §4117.14(D)(1) -- for example, police, fire fighters, prison guards, dispatchers, exclusive units of nurses

• Unresolved issues are submitted to conciliation

• Conciliator reviews positions, arguments, and

evidence on each disputed issue

• Conciliator, unlike a fact finder, cannot devise a solution but must choose between the final offer from each party

• Writes an award resolving each issue by

awarding one or the other parties’ final offer position

• Award is binding and becomes part of the CBA

along with the parties’ TA’s

Conciliation or Non-Strike Units continued:

MADS: Mutually Agreed Dispute Settlement Procedures

• MAD replaces Statutory Procedure

• Must put procedure in writing with signatures of representatives of both parties

• Must be filed with SERB within 5 days of execution

• Still must file Notice to Negotiate with SERB

MADS continued

• If the MAD is contained in the current CBA a copy must be filed with the Notice to Negotiate and cite the relevant provision

• MAD can’t require any action by or obligation upon SERB. SERB will provide assistance as deemed appropriate

MADS continued

• Strike-prohibited unit MADS must contain a provision for final and binding arbitration by a neutral third party and may not permit employees to strike

• Strike-permitted unit MADS may provide for third

party final and binding arbitration, which therefore waives the employees’ right to strike

MADS continued

• Parties who deviate from statutory procedures are deemed to have entered into a MAD

• Parties negotiating under a MAD may revert to statutory procedures by mutual written agreement and by filing a motion with SERB

SERB Roster of Neutrals • Mediators appointed by SERB or FMCS are

free of charge to the parties

• Fact Finders, Conciliators, and grievance Arbitrators are private contractors and charge a fee to the parties for their services

• SERB provides for the development and maintenance of a roster of neutrals

• SERB monitors the roster to insure that standards of neutrality are maintained

Fact-Finding and Conciliation Guide Books

• Guidebooks provide an information source of statutory provisions, rules and current administrative practices regarding Fact Finding and Conciliation

• Covers panel membership, distribution, and

selection

• Reviews appointments, hearings, and report extensions

Fact-Finding Guide Book

• Hearing date, time, and location

• Describes position statements, timelines, and other information needed prior to hearing

• Describes settlement agreement and suggested structure of a fact-finding report

• Details fact-finding criteria and voting requirements

Conciliation Guide Book

• Details factors that a conciliator must consider

• Highlights issue of retroactivity of conciliation award under O.R.C. §4117.14(G)(11)

• Award includes decisions of the conciliator on all issues in dispute

Conciliation Guide Book continued

• Details issuance and distribution of Award – the Award must be issued to SERB the same day that it is issued to the parties

• Explains implementation, enforcement, and appeal of Award through the courts

FY 2012 Bureau of Mediation Summaries

• 1449 Notices to Negotiate, varies from fiscal year to year

• Types of Notices to Negotiate (Statutory)

• Initial contract – 43

• Re-opener – 273 and typically involve wages and health care

• Successor contract – 740

• (MADS) – Approximately 600

Bureau of Mediation Summaries continued

• Most school districts have MADS – no fact finding procedure

• Majority of Mediator appointments are from SERB. Can also be from FMCS. No charge for these services

Bureau of Mediation Summaries continued

• FY 2012 130 cases go to a fact-finding hearing. 60 % of the reports were accepted. Employers often opt not to vote and allow report to be accepted by law. Unions usually vote

• Many cases are resolved earlier. Even of those rejected, the final agreement often resembles the fact-finding report

• Very few strikes, last ones July 2012 and September 2011

Example

Strike-Permitted Unit –Police Records Clerks and Secretaries

• Issues of Note:

• Have a MAD – Eliminated Fact-Finding

• Notice of Intent to Strike

• Employer files for determination of unauthorized strike and retroactive penalties, SERB must act within 72 hours O.R.C. §4117.23

• SERB determines at hearing that strike is unauthorized but denies penalties

Example

• Parties meet with mediator and reach a TA and strike ends

• Copy of ratified, signed agreement is sent to SERB Research and Training within 30 days of execution. This becomes part of the Clearinghouse database which is available as a resource to everyone

Example

Strike-Prohibited Unit - Police Officers • Parties unable to make a mutual selection of fact

finder – SERB appoints one • Fact Finder issues report

Example

• Deemed Acceptance of fact-finding report by Employer due to lack of required 3/5 to reject (needed 5 of 7 votes). Rejection of fact-finding report by employee organization (31 of 31 voting rejected-total needed was 21 of 35)

• Posting of notice of rejection of fact-finding report

• Resolution through conciliation

Example • Fact finder schedules hearings

• The day before the Employer sends Position Statement to Fact finder. Gives it to the Union at the Hearing

• Employer precluded from presenting position

• Suggestion:

Send well in advance

Allow Fact finder to be well informed

Example

• Employer rejects Fact finder’s recommendation 10 days after receipt

• Is deemed accepted

• Suggestion:

Agree on date of issuance

Line up your members for a special vote

Pay Attention to Timelines in ORC 4117.14 • Notice to Negotiate Late notice delays dispute resolution

• Fact Finding Position Statement – Day before Fact finder and

other side OAC 4117-9-05(F)

Reject Fact-finder Report by 3/5 of membership or legislative body ORC 4117.14(C)(6)(a)

Within 7 days after Recommendation is sent

Verify Fact-finding Rejection with a copy to SERB and other party OAC 4117-9-05(M) electronically

Ohio State Employment Relations Board

Promoting orderly and constructive

labor relations since 1984 Bureau of Mediation

65 East State Street-12th Floor

Columbus, Ohio 43215-4213

(614) 644-8716

mary.laurent@serb.state.oh.us

www.serb.state.oh.us