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Four cases are reproduced here. Each illustrates a problem or a principle of the law's interaction with negotiation. Concepts of confidentiality, as well as other concerns, encourage negotiators and mediators to treat law, and negotiation or mediation, as separate domains. One result is that few mediators have had occasion to examine in detail the legal concepts that underlie and enforce notions of "participation" and "good faith." But as Robert Mnookin has written, much of negotiation takes place against the backdrop of the legal structures that define the parties' rights. In most negotiation settings there is (as yet) little in the way of legal structure to the bargaining process itself. Yet for many years, in a few contexts where statutes explicitly compel substantive negotiation, there has been a developing "law of negotiations." 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 four Honeyman decisions selected for this page are representative. The first listed was for Wisconsin's Waste Facility Siting Board; the remaining three were for the Wisconsin Employment Relations Commission. Note: Some (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" under a novel statute which required Wisconsin landfill operators to negotiate terms of operation with the local communities affected. The case illustrates a rethinking of conventional assumptions of "good faith" requirements, needed because there were particularly harsh potential penalties for failure to negotiate, and less draconian remedies were available. Brown County (1984) demonstrates the complex interplay between public bodies' rights of public policy management, and their bargaining obligations 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 the presence of good or bad faith in negotiations must usually be determined in the context of the accused party's "totality of conduct"—and that its opponent's totality of conduct is not irrelevant to that assessment. Racine Unified School District (1992) is an insurance case. Employers' desire to reduce the rate of increase in health insurance costs has led to a great deal of bargaining over many years concerning how much freedom a given employer will have under its labor contract to negotiate with health insurers, or to self-insure, without needing to return to the bargaining table with the union. Cases that challenge the scope of 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. |