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ANNUAL REPORT
PANEL OF MEDIATORS
Fiscal Year 2006

The following report is submitted pursuant to 26 M.R.S.A. § 965(2)(E) (1988).

The primary function of the Panel of Mediators is to assist bargaining agents, who represent public employees at all levels of government and education in Maine, and public employers to successfully negotiate initial or successor collective bargaining agreements. This process is called interest mediation and it entails a State mediator persuading the parties to alter their positions sufficiently to permit agreement. The Panel also has authority to engage in interest mediation pursuant to the Agricultural Marketing and Bargaining Law, 13 M.R.S.A. § 1953, et seq. (2005), and to participate in helping resolve private sector collective bargaining disputes.

The number of new interest mediation requests received this fiscal year increased from the total for the preceding year; there were 58 new requests compared with 55 in FY 2005 and 65 in FY 2004. During the last fifteen years, the number of new interest mediation filings per year ranged from the low of 54 in FY 2002 to a high of 115 filings in FY 1993. The numerical average number of mediation requests received per year over the last 15 years (including this year) is 74 new filings per year. In addition to the new mediation requests received during the fiscal year just ended, there were 36 matters carried over from FY 2005 that required some form of mediation activity during the year. Last year, 23 matters were carried over from FY 2004. Thus, the total number of mediation matters requiring the Panel's attention in this fiscal year totaled 94, up significantly from 78 during the previous fiscal year. Demand for the Panel's services was essentially unaffected by the introduction of user fees during FY 1992. In the uncertain economy of the early 90's, most parties negotiated only one-year agreements, hoping that the situation would stabilize or improve sufficiently the next year to permit more productive negotiations at that time. Beginning about the middle of calendar year 1994, parties began returning to the practice of negotiating multi-year agreements, thereby reducing the number of agreements which expired each year. The increase in demand this year is at least in part a consequence of parties either deferring negotiations or extending their expiring agreements for one year last year.

Mediation is recorded as a single request, even though it may involve multiple bargaining units of a single employer. For example, two filings this year were for 3 units each and two involved 2 units each. In such situations, the mediator undoubtedly expends substantial periods of time on issues particular to individual bargaining units, making the mediation process a long and complicated one.

The following table reflects the Panel's rate of success over the past several years:

Fiscal Year	Settlement Rate
1992	74%
1993	68.5%
1994	75.2%
1995	50%
1996	66.2%
1997	82.1%
1998	82.3%
1999	73.91%
2000	80.7%
2001	85.94%
2002	76%
2003	83.1%
2004	86.8%
2005 2006	88.5% 77.8%

 

The Panel's settlement rate decreased somewhat this year. As in recent bargaining cycles, the most difficult issues in Maine public sector negotiations were those with fiscal impact, especially wages and health insurance financing. Anecdotal evidence from Panel members indicates that a major factor that had a negative impact on settlement rates was the continued increase in health insurance premiums. Prior to FY 2000, health insurance costs had remained relatively stable for the preceding few years due to efficiencies and economies realized through the introduction of managed care systems (HMO's, PPO's, etc.). Premiums began rising faster than the general rate of inflation in the economy in the last quarter of FY 2000 and have continued to do so since then. Another factor contributing to the lower settlement rate this year was the continued uncertainty regarding the impact of municipal spending caps in coming years. The negotiation of several initial collective bargaining agreements, particularly those concerning sizeable educational support staff bargaining units, also had a negative impact on the settlement rate. Initial agreements are generally more difficult to achieve. Public employees whose contracts were negotiated this year received an average compensation increase of approximately 3% on base, exclusive of any applicable longevity adjustments.

The Panel received a request for services this year pursuant to the Agricultural Marketing and Bargaining Law for a dispute between the Agricultural Bargaining Council and McCain Foods U.S.A., involving approximately one-half of the Maine potato crop. State Mediator David Bustin met with the parties for the 3 consecutive days of mandatory mediation. Although the mediation did not result in an agreement, it did help the parties to narrow their differences and served to clarify their respective positions. Consistent with long-standing practice, the MLRB worked with the Department of Agriculture to supply the parties with a list of arbitrators, from which they selected the person who issued a decision in the case. The parties ultimately reached agreement, resolving the dispute.

Several years ago, members of the Panel of Mediators received instruction by the U.S. Department of Labor in interest-based bargaining techniques. Starting in FY 1996, State mediators have offered non-confrontational bargaining services to the public sector labor-management community upon the joint request of the parties. In the 59 instances where this problem-solving "preventive mediation" approach has been used, 57 settle-ments resulted (96.6% settlement rate). This year, we received a single request for preventive mediation services and the dispute was resolved.

Since both new filings and cases carried over from prior years contributed to the actual workload of the Panel in the course of the 12-month period, we have reported settlement figures that represent all matters in which mediation activity has been completed during the reporting period. In calculating the settlement rate, only those matters where the mediator was actively involved in the settlement are considered as having been successful. Although parties who reach agreement after concluding formal mediation often credit the mediator's efforts as having been instrumental in resolving the dispute, the degree to which mediation contributed to the settlement is too speculative for such cases to constitute settlements for reporting purposes. Likewise, cases in which a request for mediation was filed but in which the parties settled their differences prior to participating in mediation are not included in the settlement rate.

The distribution of the Panel's caseload, according to the statute pursuant to which referrals were made over the last several years, is as follows:

Fiscal Year	New Cases Referred	Under State University and Judicial Acts	Under Municipal Act, inc. County & Turnpike Auth.	Private Sector Referrals	Agricultural Marketing Act
1992	94	3	90	1	0
1993	115	4	109	0	2
1994	114	4	109	0	1
1995	77	9	67	0	1
1996	69	5	64	0	0
1997	74	12	60	2	0
1998	68	2	66	0	0
1999	69	3	66	0	0
2000	73	6	67	0	0
2001	61	6	55	0	0
2002	54	3	50	0	1
2003	64	8	55	0	1
2004	65	2	63	0	0
2005	55	1	54	0	0
2006	58	4	53	0	1

 

The 58 requests for services received this year involved the following employee organizations:

Bargaining Agent	Requests
Maine Education Association/NEA[fn1]	25
Teamsters Union Local 340	12
AFSCME Council 93	11
International Association of Fire Fighters	3
Maine State Employees Association	3
Agricultural Bargaining Council	1
American Federation of Teachers	1
Maine Association of Police[fn2]	1
International Longshoremen’s Association	1

While the overall level of demand for mediation increased by 5.45% this year, requests in connection with K-12 school unit bargaining decreased by 26.7%. The demand for mediation services in the municipal sector, including the Maine Turnpike Authority and quasi-municipal utility districts, increased by 29.2%. In FY 2005, the demand in the K-12 sector was much stronger than that in the municipal sector. While it is possible that fewer school district contracts may have expired this year, it is more likely that these numbers are the result of a situation noted in last year’s report. Anecdotal evidence from practitioners indicated that in FY 2005 many municipal sector negotiations were concluded by one-year agreement extensions with a wage adjustment, rather than comprehensive successor agreements. Municipal employers and bargaining agents were apprehensive regarding the impact of spending caps on personnel and operations and that either slowed the bargaining process, so fewer cases became ripe for mediation, or resulted in the parties agreeing to one-year contract extensions with wage adjustments only. Either scenario would account for the increased demand for mediation services this year.

The most difficult issue in municipal public safety negotiations again this year has been the subject of retirement benefits. As a consequence of the uninterrupted bull market in the 1990’s, many public safety bargaining units negotiated for defined contribution plans, in lieu of the defined benefit plans administered by the Maine State Retirement System (“MSRS”). The more recent bear market, resulting in dramatic losses in the value of retirement portfolios, has caused bargaining agents to propose returning to MSRS plans. The difficulties and costs associated with returning to defined benefit plans have had a negative impact on municipal public safety negotiations this year.

The average number of mediation-days per case decreased substantially from 3.89 in FY 2005 to 3.01 for the combined total of 72 matters, including carryovers, for which mediation was concluded. The maximum mediation days devoted to a single case this fiscal year was 19. Of the 72 cases in which mediation was concluded this year, 51.4% were resolved in 3 days or less (17 cases were resolved in one day, 10 were resolved in two days and 10 were resolved in three days). The mediation-days per case for all mediations completed this year was 3.01 days, with traditional mediations averaging 2.80 days per case and the single preventive mediation having required 18 days to resolve. Although requiring more time to complete, the great majority of parties in preventive mediation over the years have reported greater satisfaction with the process and the belief that participation in the process has resulted in a better relationship with the other party.

The figures for the past fifteen-year period are summarized below:

Fiscal Year	Mediation Days-Expenditure Per Case
1992	2.75
1993	2.40
1994	2.51
1995	3.33
1996	3.20 (3.20)
1997	3.76 (3.25)
1998	2.84 (2.27)
1999	3.46 (3.47)
2000	4.19 (4.02)
2001	3.89 (3.60)
2002	3.86 (3.60)
2003	3.46 (3.14)
2004	4.16 (4.22)
2005	3.89 (3.86)
2006	3.01 (2.80)

 

In order to assist in comparing the number of mediation-days per case over a multi-year period, we have included the number of mediation-days per case in traditional mediations within parentheses in the above table for the years during which preventive mediation services were provided.

Of the mediations, including carryovers, that were concluded in FY 2006, 13.9% proceeded to fact finding. The percentage of cases proceeding to requests for fact finding after mediation in each of the past several years is indicated in the following chart:[fn3]

 

Fiscal Year	Percentage of Cases Proceeding to Fact Finding
1992	23.8%
1993	23%
1994	23.6%
1995	25.8%
1996	30.99%
1997	15.94%
1998	14.71%
1999	30.43%
2000	14.04%
2001	9.375%
2002	20%
2003	13.8% (38.5%)
2004	8.8% (19.11%)
2005	5.8% (25%)
2006	13.9% (20.8%)

Assuming the average of 3.01 mediation-days per case, the 27 matters still pending will consume an additional 82 mediation-days, for a total expenditure of approximately 299 mediation-days devoted to matters docketed in or carried over to FY 2006.

Despite their good faith, parties can, and often do, disagree over the meaning and intent of collective bargaining agreement provisions they have negotiated. The resulting disputes are resolved through the contractual grievance procedure, which usually culminates in final, binding arbitration. In 2001, the Legislature amended 26 M.R.S.A. § 965(2)(F) to permit members of the Panel to assist parties in resolving grievance disputes, if the parties had so agreed. Two requests for grievance mediation services were received this year. Parties are invariably more satisfied with results they have negotiated than with those imposed by a third party. The use of grievance mediation is a positive development in public sector collective bargaining. In one case, the mediation resolved the dispute; in the other, involving 2 separate grievances which the parties had agreed the mediator would resolve through a mediation/arbitration process, the mediation was unsuccessful and the mediator was required to issue a binding arbitration decision.

Members of the Panel of Mediators during the past fiscal year were:

John Alfano, Biddeford
Osip Bukharin, Gorham
David Bustin, Hallowell
James Carignan, Harpswell
Jack Hunt, Kennebunk
James Mackie, South Portland
Sheila Mayberry, Cape Elizabeth
Charles A. Morriso, Auburn
John M. Norris[fn4], Carrabasset Valley
Richard Taylor, Scarborough
Don Ziegenbein, Bangor

The mediation process continues to be the cornerstone of the dispute resolution process in Maine. Practitioners in the public sector labor relations community have come to accept and value the process and the expertise and competence of members of the Panel. The members of the Panel have gained practical experience and insights that are invaluable in the effective use of this tool. The Panel's reputation and expertise, coupled with a growing awareness of alternative dispute resolution in our society, are likely to result in continued demand for the Panel's services in the future.

Dated at Augusta, Maine, this 30th day of June, 2006.

Respectfully submitted,

 

____________________________________
Marc P. Ayotte
Executive Director
Panel of Mediators and
Maine Labor Relations Board

 

[fn1] While reference is made to the Maine Education Association/NEA for sake of simplicity, the various activities described were undertaken by local associations which are affiliated with MEA.

[fn2] While reference is made to the Maine Association of Police for sake of simplicity, the various activities described were undertaken by local associations which are affiliated with MAP.

[fn3] Prior to FY 2003, all post-mediation fact-finding requests were included, whether later dismissed, withdrawn or settled prior to hearing. This was somewhat inaccurate because the mediator continues to work with the parties after the fact-finding request has been filed and, in many instances, settlement is achieved in mediation before the fact-finding proceeding is ever held. We have included the former calculation in parentheses in the chart for comparison purposes with prior years.

[fn4] John M. Norris was appointed September 2, 2005, replacing Osip Bukharin.

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