In My Crystal Ball, I See Factfinding in Your Future

1. In My Crystal Ball,I See Factfinding in Your Future Presented by John Gray Vice President School Services of California, Inc. Bonnie Castrey Neutral Factfinder Center for Collaborative Solutions Jim Schlotz Negotiations Specialist California Teachers Association

2. Continue to Negotiate Report Union Strike No TA No TA No TA At-table Negotiations Mediation Factfinding Tentative Agreement DistrictUnilateral Implementation Ratify Done 1 Negotiations Process

3. 2 Impasse History

4. 3 Per-ADA Revenue VolatilityMakes Negotiating Difficult

5. 4 The Current State of the StateMakes Negotiations Difficult • Possible midyear cuts • Low- or zero-funded cost-of-livings adjustments (COLAs) • Increased academic pressures • Multiyear projections

6. 5 Multiyear Projections:The Impact of AB 1200/1708/2756 • AB 1708 (Chapter 924/1993) clarified exactly what was meant by the term "multiyear" (ref. Education Code [E.C.] Section 42131) • For budget approval, must show solvency by meeting standards and criteria in budget year and next succeeding fiscal year • For positive interim report, must meet standards and criteria for budget year and two succeeding fiscal years • AB 2756 (Chapter 52/2004) added personal certification by Superintendent and CBO

7. 6 Factfinding • Factfinders shall consider (Educational Employment Relations Act 3548.2): • State and federal laws applicable to the employer. • Stipulations of the parties. • Interest and welfare of the public and the financial ability of the public school employer. • Comparison of the wages, hours, and conditions of employment with other employees generally in public school employment in comparable communities.

8. 7 Factfinding • The Consumer Price Index (CPI) for goods and services, commonly known as the cost of living. • Overall compensation, including wages, vacations, holidays, insurance, pension, medical, and hospitalization benefits received. • Any other facts not included in 1 to 6 above that normally are taken into consideration in making findings and recommendations.

9. 8 Preparing for Negotiations • Comparability means that, within some select group of districts, your salary, benefits, and working conditions are within the normal expected range for the group • Show that by selecting reasonable districts for comparison • Districts within the normal commuting distance of your district make good comparables • We are measured by what others are able to do

10. 9 Preparing for Negotiations • Maintenance of effort means that what you are offering will allow you to maintain relative comparability • Think total compensation and working conditions • Inability to pay means we have special circumstances that prevent us from spending more • Declining enrollment, lower revenues, and other conditions may require discussion of the district's ability to pay more • So, how do we demonstrate these three factors?

11. 10 Preparing for Negotiations • The best way to stay out of factfinding is to prepare for it • If you end up in factfinding, you must show: • Comparability • Maintenance of effort • And sometimes inability to pay • Factfinding isn't fun, but it's better than a bad agreement

12. 11 Preparing for Factfinding • Selection of comparable districts • By type • Unified, elementary, high • By size • ADA, geography, etc. • By revenue opportunities • Unrestricted revenue limit per ADA • By comparable communities Reference: Educational Employment Relations Act 3548.2

13. 12 Factfinding – The FormalProcess of Dispute Resolution • A panel of three “hears” the dispute • One panel member is chosen by the union • One panel member is chosen by districtmanagement • The neutral is selectedfrom a list provided by PERB • A list of issues is filed with PERB

14. 13 Selecting the Panel • Characteristics of a good partisan panel member • Knowledge of the factfinding process and of the options available to the parties • A problem-solving attitude that facilitates development of settlement options • Knowledge of and experience with the issues in dispute • Credibility with the appointing party and the other panel members • Remember, the panel is only as strong as its members – appoint someone in whom you have confidence

15. 14 Selecting the NeutralChairperson • The partisan panel members work with the Public Employment Relations Board (PERB) to select a neutral chairperson • Selection must be timely or the choice is forfeited to PERB • What are the panel members looking for in a neutral chairperson? • Someone who has recent experience in school agency disputes • A good chair facilitates the hearing and gets all the information out

16. 15 Selecting the NeutralChairperson • Flexibility is a key element of success for the chair; the panel members are looking for someone who will adapt the process to the situation • In case a report is needed, the chair needs to be able to give a good rationale for decisions • Most of all, the chair must be truly neutral • The chair must hear and evaluate the information provided by the parties

17. 16 Selecting the NeutralChairperson • The “burden of persuasion” is with the moving party on the issue – have they made their case? • Panel members work hard with the parties to prepare their respective cases; they want and expect that preparation to be considered in recommendations • The partisan panel members know a lot of neutrals and usually agree on a selection for a particular case • Good neutrals are hard to come by – and are very much in demand!

18. 17 What to Expect Duringthe Hearing • Panel chair will make an opening statement • Introductions of all persons in the room • Sign in record • Disclosures by chair • What to expect • Conduct for the hearing • Moving party for each issue identified • When questions are appropriate for clarifications • Press (only if this is an issue) • Statements from panel members

19. 18 What to Expect Duringthe Hearing • Issue-by-issue presentations by the parties • Opening statement by moving party on identified issue • Presentation of the facts based on criteria • Clarifying questions from panel • Clarifying questions from other party • Opening statement by other party • Presentation of the facts based on criteria • Clarifying questions from panel • Clarifying questions from other party • Binders with facts for panel and other party • Closing argument

20. 19 Prepare for a Long Day • The day of the hearing presents a unique opportunity to settle the case • The evidence has all been heard and the parties are all present • The panel has the opportunity to mediate before moving forward with the report • The most skilled panels take advantage of this day to try to close the deal • Both sides need a reason to moderate their positions and there is uncertainty about the recommendations to be included in the report

21. 20 Prepare for a Long Day • The parties may feel that they will have a better agreement if they solve the problem themselves • The panel will undoubtedly have ideas for consideration • An informal proposal from the panel may serve as a vehicle for settlement • It is not binding on either party, but may provide a compromise • The proposal may not resemble in substance or form either of the parties last, best, and final positions

22. 21 Prepare for a Long Day • Both parties may feel pushed by the panel – particularlyby the chair • The experience of the panel and the sense of urgency in the process cause options to appear and a settlement window to open • Most cases settle at this stage of the process • If it doesn’t settle, there will be a report

23. 22 The Report • The written report with recommendations • Chair drafts report • Issues • Facts presented by parties • Analysis by chair • Recommendation for settlement • Chair meets in executive session with panel • Discussion draft report

24. 23 The Report • Change as agreed • Concur ______ • Dissent ______ • Concur in part ______ • Dissent in part ______ • Panel members’ concurring/dissenting opinions

25. 24 The Report • Report with attachments issued by chair within 30 days • Both parties and panel members • District must make report public in ten days • In that ten-day timeframe, parties often use the report with recommendations as a framework for further negotiations and settlement • Parties may ask the California State Mediation and Conciliation Service (CSMCS) Mediator to come back to the table to assist in reaching settlement

26. 25 Post-Factfinding Mediationand Closing the Deal • This is where things often turn ugly! • By this time, the parties have often been negotiating for more than a year • They have had months of unsuccessful mediation • And more months of unsuccessful factfinding • Disputes that remain after all that are usually very “hardcore” disagreements • Once the report has been made public • The district may unilaterally implement its last, best, and final offer • The union may take job actions, including a strike

27. 26 Post-Factfinding Mediationand Closing the Deal • At this point, there is no more process • No matter what the parties decide to do,there is no binding solution imposedupon them • The issues are not resolved until there is anagreement – so negotiations continue evenduring and after any unilateral implementation or job action • The results at this point are so disruptive to the parties and the community that settlement becomes even more difficult • And that is why it is so important that the factfinding process works!

28. Continue to Negotiate Report Union Strike No TA No TA No TA At-table Negotiations Mediation Factfinding Tentative Agreement DistrictUnilateral Implementation Ratify Done 27 Negotiations Process

29. Thank you for attending!