In many settings, negotiation and other ADR processes take place against a heavy backdrop — the structures that define the parties’ legal rights. Six of Chris Honeyman’s hundreds of decisions are reproduced here. Each illustrates a different problem or principle in the law’s interaction with ADR. These six are not subject to confidentiality concerns, as they are matters of public record.
State Bar of Wisconsin (2008) shows how even a battle that’s purely between lawyers, and supervised in different ways by federal and state courts, may still find an ADR process the most practical way of reaching a conclusion. The result is an arbitration award in which all of the issues were legal rather than contractual. That’s just one of the unusual factors. Another is that one of the parties in dispute was the State Bar itself — while the opposing group was headed by a past President of the State Bar. The issues surrounded a much-litigated Constitutional issue, freedom of association; in this case, whether objecting members of an “integrated” bar association (one to which all Wisconsin lawyers were required to belong) could be required also to contribute to a PR campaign — a Bar initiative to which they objected on principle.
Federal Bureau of Prisons (2008) involved a federal agency and a union of federal employees. They sought a decision on an issue that arose in the wake of hurricanes Katrina and Rita — and the arbitration award had to be based on an interpretation of the Code of Federal Regulations, not a contractual provision in any normal sense. Not only was the basis for the decision legal rather than explicitly contractual, but under this arbitration procedure, as a matter of law the award could be (and was) appealed to the relevant federal tribunal, the Federal Labor Relations Authority (FLRA. The award was upheld on appeal.)
Unlike the two situations above, in most negotiation settings there is (as yet) little in the way of legal structure to the bargaining process itself. For many years, however, there has been a developing “law of negotiations” in a few contexts where statutes explicitly compel substantive negotiation. This class of cases seeks to define what must be negotiated under the relevant statute, and sometimes, what the limits of good or bad faith are.
The remaining four decisions selected for this page demonstrate how different facets of the law-ADR relationship work. One was for Wisconsin’s Waste Facility Siting Board; the remaining three were for the Wisconsin Employment Relations Commission. Note: in these documents, non-substantive changes have been made to accommodate conversion to electronic publication; for example, formatting has not been preserved, and footnotes have in most cases been converted to endnotes.
Troy Area Landfill vs. Town of East Troy (1984) was the “case of first impression” nationally under a novel type of statute, which required Wisconsin landfill operators to negotiate terms of operation with the local communities affected. The case demanded a rethinking of conventional assumptions of “good faith” requirements. The reasons will become apparent if the reader considers the harshness of the statute’s potential penalty for “failure to negotiate.”
Brown County (1984) demonstrates the complex interplay between public bodies’ rights of public policy management, and their bargaining obligations (at that time, in that jurisdiction) with unions that represent their employees. This case arose over a unilateral action which involved elements of both public policy and “mandatory” bargaining subjects.
Milwaukee Board of School Directors (1988) illustrates how good or bad faith in negotiations must be assessed in the context of the accused party’s “totality of conduct” — and that its opponent’s totality of conduct is not irrelevant. In this case “best practice” was not to be found on either side.
Racine Unified School District (1992) is an insurance case. How much freedom a given employer has under its labor contract or under law to negotiate with health insurers, or to self-insure, without needing to return to the bargaining table with the union has been a recurring issue. Administrative-law cases that challenge actions taken by employers without specific union agreement have often become particularly complex. This case shows how that complexity — and its attendant legal costs to both sides — accumulates.