FACT-FINDING: ITS VALUES AND LIMITATIONS

175

This is why I was and am in such wholehearted support of the special program of the past two days. We have started a long-needed endeavor. It is a significant beginning. Let us see to it that this effort will be expanded and pursued. Comment— ROBERT G. HOWLETT *

Fact-finding as a means of resolving collective bargaining impasses in the public sector is defended and criticized by persons moved to put pen to paper or who appear at meetings, forums, programs, and institutes. Indeed, experts have discussed legislative determination of working conditions, advisory arbitration (another name for factfinding), voluntary arbitration, compulsory arbitration, and strikes in the public sector almost to the point of saturation. All methods to resolve impasses in the public sector, singly or combined, have been successfully defended and successfully demolished. Each critic cites examples of failure; each advocate notes examples of success. Bill Simkin has summarized well the procedures and objectives of fact-finding. He has noted its merits and its flaws. His paper has added to our knowledge of the fact-finding process. Perhaps a few comments based on our Michigan experience are in order. Since the enactment of the Public Employment Relations Act in 1965, the Michigan Employment Relations Commission has appointed 52 fact-finders, who have served in 305 cases. Of our 52 fact-finders, 15 have been members of the National Academy of Arbitrators. There are 32 Academy members in Michigan. Some Academy members have been "too busy" to serve. Bill Simkin suggests that fact-finders ing in the Michigan legislature would arbitration." This item seems of little of Danton, "Let my name wither, so

be renamed. A bill pendcall the process "advisory importance. In the words long as France is free." 1

• Member, National Academy of Arbitrators, and Chairman, Michigan Employment Relations Commission, Grand Rapids, Mich. 1 Danton, in the National Convention, March 8, 1783. Carlisle, French Revolution, Vol. Ill, Book 3, Ch. 4.

176

ARBITRATION AND THE EXPANDING ROLE OF NEUTRALS

Fact-finding, generally by that name, has been adopted by 20 states as the terminal point in public employment relations acts. It would seem, therefore, that the "name of the game" has gained some acceptability.2 Although our statute does not affirmatively authorize a factfinder to make recommendations, we have directed that our factfinders do so. As Ed Krinsky stated in his unpublished monoraph, the public employer and the union know the facts.3 The significant role of the fact-finder is to interpret the facts for the parties and to recommend a settlement that is reasonable and has some relationship to that which the parties might gain through collective bargaining. My colleagues and I believe that fact-finding without recommendations is about as useful as a martini without gin. • California (state and municipal employees), West's California Government Code Annotated, Ch. 10, Div. 4, Title 1, Sec. 3500-3509 (1961), 14 SLL 219; Connecticut (municipal employees), Conn.Stat.Ann., Title 7, Sec. 7-467 to 7-475 (1965), 16 SLL 253; Florida (firemen), Fla. Stat.Ann., Ch. 67-900 (1967), 19 SLL 225; Illinois (firemen), IU.Rev.Stat., Ch. 24, Sec. 10-3-8 to 10-3-11 (1965), 23 SLL 251; Iowa (firemen), Code of Iowa, Ch. 90, Sec. 90.15 to 90.27 (1959); Maine (municipal and school employees), Me.Rev.Stat.Ann., Title 26, Ch. 9-A (1969), 29 SLL 216; Maryland (employees of City of Baltimore), Baltimore City Code, Sec. 110-24 (1968), 30 SLL 222; Massachusetts (municipal employees), Annotated Laws of Mass., Ch. 149, Sec. 178 G-N (1965), as amended, 31 SLL 245; Michigan (all employees except state employees), Mich.Stat.Ann., Sec. 17.455 (7) (1965), 32 SLL 263; Minnesota (teachers), Minn.Stat., Ch. 633, Sec. 1-9 (1967), 33 SLL 250c; Nebraska (all public employees), Rev.Stat. of Neb., Sec. 48.801 to 48.823 (1943), as amended by L.B. 257 (1965), 37 SLL 235, (teachers), L.B. 485, L. 1967, 37 SLL 225; Nevada (municipal employees), Nev.Rev.Stat., Title 23, Ch. 650, L. 1969, 38 SLL 226; New Hampshire (state employees), N.H. RSA, 1955, Ch. 98-C, L. 1969, 39 SLL 202f; New Jersey (municipal employees), Rev.Stat. of N.J., 1937, Ch. 100, L. 1941, Sec. 34:13A-1 to 34:13A-13, as amended, 40 SLL 245; New York (state and municipal employees), McKinney's Consolidated Laws of N.Y. Ann., Civil Service Law, Art. 14, Sec. 209, 42 SLL 266a; North Dakota (all public employees), N.D. Rev.Laws, Ch. 34-11, Sec. 34-11-01 (1951), 44 SLL 225, (teachers), H.B. 175, L. 1969, 44 SLL 223; Oregon (all municipal employees except teachers), Ore.Rev.Stat., Sec. 243.710 to 243.760, as amended (1969), 47 SLL 234a, (nurses), Ore.Rev.Stat., Ch. 720, Sec. 53 to 62 (1961), 47 SLL 235, (teachers), Ore.Rev.Stat., Ch. 342, Sec. 342.450 to 342.470; Rhode Island (municipal employees for noneconomic issues), R.I.Gen.Laws, Title 28, Sec. 28-9.4-1 to 28-9.4-19 (1967), 50 SLL 239; Vermont (all state employees), Vt.Stat.Ann., Ch. 27, L. 1969, 56 SLL 212; Washington (teachers), Rev .Code of Wash.Ann., Ch. 28.72, Sec. 28.72.010 to 28.72.090 (1964) , 58 SLL 242e; Wisconsin (municipal employees, except policemen), Wis.Stat.Ann., Subchapter IV, Ch. II, Sec. 111.70 (1959), as amended, 60 SLL 243, (state employees), Wis.Stat.Ann., Subchapter V of Ch. Ill, Sec. 111.80 to 111.94, 60 SLL 242a. 3 Krinsky, "An Analysis of Fact Finding as a Procedure for the Settlement of Labor Disputes Involving Public Employees," Ph.D. diss., University of Wisconsin, 1969. See also Krinsky, "Public Employment Fact-Finding in Fourteen States," 17 Lab. L.J. 532 (1966).

FACT-FINDING: ITS VALUES AND LIMITATIONS

177

Both "raw power" and "prenegotiation research" are factors, but a competent fact-finder, we have found, is able to sift out those facts that are relevant and, where necessary, give some weight to the respective power of the participants. I am not sure I understand "legislative value judgments." Every decision by a judge, trial examiner, hearings officer, arbitrator, or fact-finder is a "value judgment." Whether "legislative," "judicial," "administrative," or just common sense recommendations under a new procedure would appear to be a non sequitur. Of course, recommendations are not facts, but they do develop from facts. There are two types of issues which have confronted our factfinders: (1) the typical economic type of issue, i.e., salaries, wages, vacations, leave time, overtime pay, preparation time, and the like; and (2) policy issues, such as union security, checkoff, and grievance procedure. It is clear as I read the reports that the recommendations of our fact-finders with respect to the economic issues are based on factual evidence and that they develop out of the contractual framework where there has been a previous contract, and, in a first-contract context, out of prior negotiations. The "policy" questions differ. The only relevant "fact" of an agency shop, for example, is that a certain number of other public employers have agreed to it. The fact-finder either believes in the concept of an agency shop, or he does not. This type of issue is not well adapted to fact-finding. The statement in the Simkin paper that "the exercise of mediation skills is the prime requirement for effective dispute settlement involving new or renewed labor agreements" cannot be emphasized too often. But it is mediation skills which has meaning, not solely a mediator, for mediation skills in bargaining are used by competent representatives of employers and unions. Mediation should be placed in its proper perspective. It is important, but is not the ultimate in completing a contract. Our Michigan public sector experience is illustrative. There are currently over 3,000 collective bargaining agreements in 1,400 units of government.4 In fiscal 1968-1969, Michigan mediators participated in 1,099 public sector bargaining sessions in 410 cases. 1

This number of governmental units excludes townships.

178

ARBITRATION AND THE EXPANDING ROLE OF NEUTRALS

Thus, at least 2,600 collective bargaining agreements were negotiated without mediators or other impasse-resolving neutrals. Admittedly, when we discuss mediation, we are talking of the "tough" cases, but perhaps more emphasis on competence in collective bargaining than on mediation will result in more settlements without an impasse panel. The Simkin paper proposes successive stages of mediation in difficult cases as preferable to "the mediation, then fact-finding sequence." An "original mediator," Bill Simkin suggests, should, in some cases, "be supplemented by a panel, or replaced. . . ." We have, on occasions, substituted mediators or sent in two; in some cases, a member of the commission has participated, on a theory, which may or may not have validity, that the commissioner's stature (and perhaps his ability) will result in the necessary pressure to bring settlement. But fact-finding is not, as Bill Simkin suggests, a "one-play ball game." It is part of the mediation process. Public pressure has been minimal except in rare instances when a fact-finder's report has become part and parcel of a political situation, with the several interest groups using the fact-finder's recommendations to support their positions. This is not to say that the recommendations have not been helpful in settlement. But, generally, the news media do not print or discuss the reports. However, well-reasoned reports on which recommendations are based are used by employer and union representatives and by mediators to aid in contract resolution. Bill Simkin raises an issue that has plagued us. He asks whether arbitrators can mediate. Immediately after our Public Employment Relations Act was enacted, we directed our factfinders to mediate. This, we found, was a mistake: (1) It destroys the confidential nature of mediation; (2) some qualified factfinders (arbitrators), who have had no collective bargaining experience, are not skilled in mediation; and (3) our mediators felt, quite properly, that mediation by an ad hoc mediator after a staff mediator had completed his work carried an implication that the staff mediator had not performed his job. After this experience, we requested our fact-finders to serve as judicial officers, although we do not rule out "in chambers"

FACT-FINDING: ITS VALUES AND LIMITATIONS

179

settlements if such appear feasible. Some fact-finders, including members of the Academy, have not followed our instructions, and, fortunately, some are good mediators. We are convinced, however, that if there has been effective mediation, the role of the fact-finder is primarily judicial. If the mediator has performed his role with excellence, a second mediator is generally not helpful. In our 1970 fact-finders' education seminar, two lawyers representing the Michigan Education Association and the Michigan Federation of Teachers, a lawyer representing school districts, and the executive secretary of the Michigan Association of School Boards were in accord that the role of a fact-finder should be judicial and not mediatory. As one lawyer said: "Fact-finding should not be super mediation. If it is used by the fact-finder to club a settlement, the value of the process will be destroyed." After our initial wandering in the wilderness, we announced that we will not appoint fact-finders until the mediator assigned to the negotiations certifies that mediation has been exhausted and that every effort has been made to narrow the issues to those two or three key items which may make the difference between settlement and failure. Failure may result in a strike. The "strike" is a factor in settlement, as public employees retain the power to strike, even though they do not have that privilege.5 We do not authorize a fact-finder to return to the dispute after the issuance of his report. We require that our mediators re-enter each case after the fact-finding report if the report is not accepted immediately. Reports have been instrumental in mediated settlements, even though the fact-finder's report was not, per se, accepted. The debate over whether to combine mediation and factfinding appears to arise principally from those jurisdictions that do not have an established, competent mediation staff, as we do have in Michigan. I can understand a combination of mediation and fact-finding in those states that use ad hoc mediation and ad hoc fact-finding, with the same person performing both services. In Michigan, ad hoc mediation is seldom needed. 6 Eight public employers have locked out public employees, an impasse-resolving procedure of questionable legality.

180

ARBITRATION AND THE EXPANDING ROLE OF NEUTRALS

Nor have we found that our fact-finders react defensively if employer and union do not accept their recommendations. Perhaps this is because our fact-finders do not return to the bargaining scene, but are succeeded by a mediator. My knowledge of the ability and balance of our fact-finders, however, leads me to conclude that even though these men should engage in postfact-finding mediation, few of them would react defensively or be unduly concerned at the failure of employer and union to accept their recommendations. Possibly Michigan fact-finders are more thick-skinned than fact-finders in other states, but I doubt it. Contacts with my "opposite numbers" in other states lead me to conclude that they, too, have able fact-finders who perform a significant role in resolving impasses and who are neither prima donnas nor live in a world of fantasy in which they believe that their dictates will, ipso facto, be accepted. Bill Simkin opines that the fact-finder "has no adequate opportunity to gauge acceptability by the parties." Our experience denies the validity of this criticism if the fact-finder is competent. He has greater flexibility than the arbitrator, for he may meet with the parties separately because—in spite of our jaundiced view of mediation by fact-finders—fact-finders do engage in the "search for a solution." A fact-finder, unlike an arbitrator, may discuss the case with each party separately.8 The arbitrator, who renders a "legal" and binding solution, may not "trim." The fact-finder may, because his primary task is to find an equitable —not necessarily the most equitable—settlement. The acceptability factor supports tripartite fact-finding. Employers' and unions' representatives may "level" with a factfinder in private session as they will not at the public hearing. Some fact-finders have the ability to draw out "partisan" neutrals in this matter. A bill introduced in the Michigan Legislature during the 1969 session provided for tripartite fact-finding and required that all members of each tripartite fact-finding panel swear to "judge the matter before me objectively and in good conscience, with proper concern for the public interest and with fairness and " During the session, a questioner inquired whether a fact-finder should talk separately with one party without the knowledge of the other. A mediator may do so, but a fact-finder should never engage in such a practice.

FACT-FINDING: ITS VALUES AND LIMITATIONS

181

justice for all." The requirement was eliminated in committee. Perhaps this was unfortunate, as such an oath might assist the "side judges" to "wear the conscience as well as the gowne." Mediator/Arbitrator Simkin says, "The hard fact remains that adaptation of an arbitrator to the mediation function is not an easy transition." This we have found is true of some arbitrators, but not because of inflated ego. The missing link for some arbitrators is the absence of collective bargaining experience. On the other hand, there are arbitrators with extensive collective bargaining experience who have not forgotten how to engage in it. These men (against our instructions) have engaged in successful mediation, although less recently than during our early experience. We have also found that there are fact-finders, with little or no collective bargaining experience, who understand the collective bargaining process. This supports my oft-expressed thesis that arbitrators can be trained, but good collective bargainers and mediators are born. The fact-finding process has been attacked as of little value. These assaults are generally based on induction and isolated examples. The procedure is so new that there has been little opportunity for in-depth studies of fact-finding. The Michigan Department of Labor and Michigan State University studied fact-finding in 1965 to 1968.7 During this period, MERC appointed 34 different fact-finders in 118 public cases. There was a 55-percent response from employers and unions; 70-percent from fact-finders; and answers from all mediators.8 The study disclosed that only seven out of 55 employers, and no employee organizations out of the 57 which answered, were reluctant to accept fact-finders' services. As a procedure, however, 39 out of 44 unions and 28 out of 47 employers favored factfinding. Of the mediators answering the question, "Do you believe fact-finding materially assisted in resolving the dispute?" 64 answered yes and 25 no. Thirty employers and 32 unions stated 7 The results of the study, entitled "Fact-Finding in Public Employee Disputes in the State of Michigan 1965-1968," have been published by the Michigan Department of Labor. 8 Except for two mediators who had retired.

182

ARBITRATION AND THE EXPANDING ROLE OF NEUTRALS

that fact-finding led directly to resolution of the dispute, as opposed to 18 employers and 14 unions who answered that factfinding did not do so. This parallels our 1969 experience. We asked our mediators to express their opinions on the effectiveness of fact-finders' reports in dispute settlement. The mediators reported that out of 60 fact-finders' reports, settlement was aided in 39 cases. Thus, it appears that fact-finding, like collective bargaining and like voluntary arbitration, is a means for impasse resolution in the public sector. It is not perfect, but neither is any dispute-resolving procedure in either public or private sector. It is a tool which can, and should, be used intelligently by those charged with administrative responsibility in the public sector. It seems to my fellow commissioners and to me that emphasis should be placed on the improvement of fact-finders rather than on minute professorial dissection of the process. We have tried to bring improvement, by care in selection and by one session each year in which our fact-finders discuss procedures and are instructed on some areas of concern in education.9 Perhaps one more item should be mentioned. While some criticism of fact-finders and the fact-finding process is legitimate, I have observed that some of the more virulent observations directed toward a particular fact-finder, and at the process, have come from the mouths and pens of those who have not done their homework prior to presenting a case to a fact-finder. Comment— JACOB FINKELMAN *

Having accepted your invitation to participate in this panel, as soon as I received a copy of Bill Simkin's paper I realized how few qualifications I had to participate in such a session. The thought occurred to me that perhaps I might derive a grain of com8 We have not had instruction qn other areas in the public sector because fact-finding in schoolteacher disputes has comprised about 80 percent of our fact-finding. Undoubtedly, more than one session per year would have value, but our fact-finders are not paid for attending the day of schooling. There is a limit on what we can ask. • Member, National Academy of Arbitrators; Chairman, Public Service Staff Relations Board, Ottawa, Ont., Canada.