Michael Nauyokas, labor lawyer and mediator, points to some of the framed thank-you notes and other keepsakes around his office, symbols of disputes he helped to resolve. People are sometimes so happy to have peace in the valley again, he said, that they send champagne and flowers. "A lot of times people are just so relieved to get the dispute behind them," he added. "A lot of times they say, ‘Thank you for getting us out of this mess.’"
Nauyokas, 52, is not involved in what must be among the biggest labor conflicts in recent state history: the Hawaii State Teachers Association’s complaint before the Hawaii Labor Relations Board. In it, the union charges that the state administration engaged in a prohibited practice when Gov. Neil Abercrombie unilaterally implemented his "last, best and final" offer amounting to 5 percent pay cuts.
But he’s following events with great interest. Nauyokas the professional thinks mediation would help. On a more personal basis, the fact that both his parents are retired teachers means he understands how the rank and file might feel about the concessionary terms that have been imposed on them.
Nauyokas has garnered two credentials in the Western tradition of conflict resolution: This spring the Mediation Center of the Pacific conferred a lifetime achievement award and more recently he was named a fellow of the American College of Civil Trial Mediators, one of nine in the U.S. with that distinction.
Over the course of 30 years in Hawaii, the Detroit-born Nauyokas has taken interest in other approaches, especially the indigenous Hawaiian practice of ho‘oponopono. The method of giving all parties their say and a chance to reconcile, he said, still works. Both parties might say they have a "bottom line," he said, but mediation avoids absolutist thinking.
"Everyone’s bottom line always moves in mediation — it’s magical," he said. "The biggest thing that the mediator has to offer is persistence. Never give up."
QUESTION: What are your thoughts on the current HSTA standoff with the administration?
ANSWER: I think that the HSTA should give the governor a counteroffer, per his request, right now, and say, "When can we meet for mediation?"
Q: Wasn’t the arbitration proposal the point of contention there?
A: Yeah. But I watched the governor’s YouTube thing this morning, and he didn’t say anything about arbitration. … But you can arbitrate. Some people think that you can’t because the statute doesn’t provide for the teachers to go to arbitration. It doesn’t provide for mandatory arbitration, but the parties can always agree. He could do it if he wanted to agree to it. More realistically, I think mediation, and go back to the bargaining table as soon as possible.
Q: Why is mediation more realistic?
A: Because of the HGEA (Hawaii Government Employees Association) "most favored nations" deal, and because the arbitrator’s not going to have direct or final say over the arbitration award that’s final and binding. And if it’s more than what the HGEA (settlement) was, then he’s got a problem, he’s got to give it to the HGEA as well.
Q: Would you say the other unions are watching this all unfold?
A: Oh, yeah. And in fact, UHPA (University of Hawaii Professional Assembly) intervened last week, so they’re right in the middle of it. And I talked with (United Public Workers State Director) Dayton Nakanelua Friday afternoon (Aug. 5), and of course his negotiations are still going on. He’s watching it, like, daily.
Q: More generally, do you think mediation will become more common as a route to take toward union settlements?
A: Oh, yeah, sure. Because the other dispute-resolution systems — public — whether they’re administrative agencies like the Hawaii Labor Relations Board, or whether they’re courts, are overextended and underfunded, especially in a recession. So it takes too long, costs too much money. … Either side has something to lose there. I think the governor has expressed that he feels strongly about his position there, and the legal advice that he’s gotten. But I’m not sure. There’s always risks, any time there’s litigation.
Q: Isn’t the unilateral implementation of "last, best and final offer" an unusual practice for public employees?
A: Yes, and here it’s never happened before. It’s not unprecedented in the private sector. … Our law was modeled after other public employment laws, 1970 when it passed, and there’s nothing in there anywhere … so where does the law come from? I guess it’s created by the Hawaii Labor Relations Board, if it goes that far without a resolution.
Q: Wouldn’t it be better for the union to settle this before an HLRB ruling?
A: Yeah — what if they lose? Then that becomes the way the governors bargain from now, with all the state unions: "They can’t strike — I’ll make the last, best and final offer and then if unions don’t take it, implement it."
That’s never been done before, and that’s a weapon that’s very strong for management — "last, best and final offer" — especially in a cut, because then they can impose cuts by doing that. And that’s what he did.
Q: Do you see evidence that recent developments nationally represent a last-gasp effort for the labor movement?
A: No, I wouldn’t call it the last gasp, but I would call it a continuing trend of what’s been going on for the last 20 years, and that membership in unions is declining, the power of unions to collectively bargain for their members. … There’s a whole generation of people that don’t understand and don’t appreciate, that haven’t been members of unions, that don’t understand the security and job protections that unions provide. They pay for half of an arbitrator, they pay for a lawyer for you, your employer can’t get rid of you but for just cause. People don’t understand that because they never had those kinds of jobs, because there’s so few union jobs out there.
Q: And now, would you call the public-sector unions the last bastions of labor strength?
A: Yes. … The thing none of us expected here was, OK, Lingle was a Republican, and she said, "We’re going to cut across the board to balance the budget, and get used to it, that’s the way it’s gonna happen." What we didn’t expect: this kind of behavior from a liberal, lifelong Democrat that’s been elected to every position he’s had with union support. The HSTA was the first to endorse Abercrombie. So that’s what’s odd, that he would be the first guy to cut the teachers’ pay — not talking about furloughs.
Q: But he did warn people that he was going to do this, right?
A: Yeah. But I don’t think they believed it, do you? I think they thought it was a bargaining tactic. You’re right, he warned them. But still, it was a very aggressive move for a pro-union governor.
Q: Do you think that’s indicative of the times we’re in?
A: Yes, I think so. We gotta cut back. If we weren’t faced with recession and declining tax revenues, and members of our society that expect more in government services than they’re willing to pay for, then he wouldn’t be in this situation where he’d have to do this.
Q: What is the key characteristic of mediation that makes it an effective tool?
A: The neutral third party facilitates the discussion and carries the offers and counteroffers back and forth in a manner that maybe politically the parties themselves can’t do directly. … The mediator can take responsibility for something that’s really been suggested by the other side. And then it becomes the mediator’s proposal instead of the other side’s . … It’s one more thing that you can add to a negotiation.
Q: If you see an obvious middle path, would you throw it out there?
A: Sometimes, if you think they’d bite. … Each side’s an advocate for their own constituency, right? And the mediator’s neutral. … The only thing the mediator’s an advocate for is resolution of the dispute. And this may sound crass, but the mediator doesn’t care if it’s a 5 percent cut or a 5 percent increase, and the HGEA gets their’s, too, or 700 teachers get laid off. The mediator’s not in charge of policy. … The mediator believes the dispute is best resolved by the parties, instead of imposed from some kind of third party — court, HLRB, arbitrator.
Q: Would you say Hawaii is in any way at some kind of juncture here?
A: Sure, yeah. First of all, the first step backward is wages for teachers, the first time they’ve been cut. … No. 2, the successful, albeit challenged, implementation in the public sector of the "last, best and final offer" against the union.
Q: What sorts of disputes have you mediated?
A: We have grievances — rights — and we then have interests. Interests are what these guys (HSTA) are talking about now: forming the contract. I’ve done both. And they’re both challenging, both interesting — and they both, 99 percent of the time, result in resolution. So it’s an extremely effective process.
Q: But it doesn’t necessarily result in happiness?
A: No, and that’s not the mediator’s job. The mediator’s job is resolution, not make both parties happy. Solve the problem, and get on.
