By Frank Guido, General Counsel
When a Public Employer and Police/Fire labor union are unable to arrive at a negotiated collective bargaining agreement, their dispute is subject to resolution through the statutory Compulsory Arbitration process. Since its creation in 1969, the Compulsory Arbitration Act, commonly referred to as “Act 312,” has maintained a level playing field in labor-management relations. History has conclusively shown that both unions and employers have benefitted in resolution of disputes by resorting to Act 312 arbitration. The public purpose of the Act states: It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure of the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.
Unlike private sector employees who have the right to strike in response to economic conditions in bargaining or the commission of unfair labor practices by an employer, public sector employees have no such recourse– in fact, it is illegal. The Compulsory Arbitration Act bridges that gap by establishing an alternate dispute resolution mechanism to resolve disputes. So, one might ask, what is the problem with a law that benefits both an employer and a union to resolve disputes in a peaceful manner? The answer should be that there is no “genuine” problem. The only “problems” which exist are those that are contrived through the “collective wisdom” of a few municipal politicians across the state and the “municipal lobbyist league” from Lansing with who they conspire. It is amazing how ignorance gravitates toward ignorance. Like a band of misfits who engage in mutual admiration of their own collective stupidity, this group of “lets tamper with Act 312″ proponents, could not find their proverbial rear end with both hands if they tried.
The “band of misfits” have long sought to change and thereby tamper with Act 312, including restricting of who is eligible to participate in compulsory arbitration, restricting the issues which can be presented, slanting the standard of proof in favor of the employer and prohibiting retroactive recovery of wages and benefits. If they had their way, there would not be much of a law left to resolve disputes.
In 2006, broad revisions to the Act were proposed by the band of misfits. POAM vehemently opposed the proposed changes. At the time, the State was on the cusp of the economic downturn in which it still finds itself in 2010. The claim at the time was that changes to the Act were necessary because the process took too long, municipalities did not have control over their financial destiny and arbitration panels were not giving sufficient credence to the ability of government to pay for proposals sought by unions. Each claim was disingenuous given that often it is the employer who has engaged in dilatory practices, as well as the obvious fact that the statute, as written and applied, contained numerous safeguards for employers in the evaluation of evidence, including ability to pay. The changes which were proposed, by not only the band of misfits but also their new cohorts, certain self-serving representatives of various law enforcement and fire fighter unions, were opposed by POAM, because they constituted nothing more than sophomoric, knee-jerk reactions by individuals who had no clue to what the law meant, what it had accomplished or how it could be constructively changed for the true benefit of the public—which, hold your breath, meant both labor and management!
If the question was legitimately asked in 2006 whether the Act could be changed in a meaningful manner to benefit labor and management and therefore the public, the answer would have been, “yes.” POAM asked and answered that question and was at the forefront of recommending meaningful change. While there was never any legitimate evidence to substantiate the claimed reasons of the band of misfits for tampering with the Act, POAM took the initiative to draft responsible and meaningful modifications to streamline the Act, procedurally and substantively. Among the changes that I drafted in 2006 on behalf of POAM, included: – adding a requirement that parties submit their final last best offer of settlement during the pre-arbitration mediation process, thereby prohibiting the dilatory practice of changing issues in dispute during a compulsory arbitration proceeding. This proposed change also would have served the benefit of forcing the parties into more meaningful collective bargaining prior to filing for compulsory arbitration;
- removing the State from any financial cost sharing responsibility for the hearing;
- requiring a compulsory arbitration panel to select, without modification, the total package final offer as submitted by the parties at the end of mediation; once again enhancing meaningful collective bargaining prior to the inception of arbitration;
- reducing time delays and legal costs to the parties by prohibiting post-hearing briefs, thereby requiring the parties to submit closing oral arguments; and
- avoiding litigation in court during a proceeding, which merely delays the process, by utilizing the Michigan Employment Relations Commission, on an expedited emergency basis, to decide status quo violation disputes.
Every proposed change would have strengthened the Act for both unions and management. So now you ask what happened when our seemingly logical changes were proposed? Well you would have thought that the band of misfits and their new cohorts, the self-serving representatives of other fire fighting and law enforcement unions, were being asked to undergo forced enemas. None of them wanted to make real changes that made sense—so they all did what they do best, they balked, whined and bickered to the point that a stalemate occurred resulting in no action being taken. So chalk one up for the POAM in beating everyone else into submission resulting in the status quo of the Act being preserved. Fast forward this saga to 2009. Now the State is mired in somewhat selfinduced economic problems. Call it lack of leadership, lack of insight, whatever; but the State, who cannot seem to get its house in order, proclaimed that it was going to somehow resolve its problems, in part, by helping local government through various actions, including, proposals for changing, i.e., tampering with the Compulsory Arbitration Act. Enter, once again, POAM. I dusted off my 2006 proposals and through hard work with our lobbyist, Tim Ward, our concerns and objections were made known to the powers that be, which resulted in a taming of the legislative proposals.
The result is that the modifications which remain pending before the legislature in the revised bill will purportedly shorten the length of time it takes to complete the process with movement of the last best offer to an earlier stage in the process. The changes proposed are just that, change for the sake of change, with no real, substantive value existing. The interesting twist in this story is how the “shoe is now on the other foot.” Because of the economic market, public employers are filing for compulsory arbitration to seek changes to wages and benefits that they could not achieve at the bargaining table. So, guess who was not so interested in changing the law this time around? You guessed right! The band of misfits hid under a rock and were content on not pushing to change much of the Act. You have got to love their sincerity and the credibility of their arguments over the years.
So, members of POAM rest assured that we will be ever vigilant in monitoring the conduct of those individuals who attempt to tamper with the Compulsory Arbitration Act. If change is in the wind, we will continue to launch our platform of meaningful change for your protection. That’s my column for this edition of the LEJ, generally speaking.